United States v. Decoud

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, No. 04-50318

v. D.C. No.

SEDRICK ROSHUN DECOUD, JR., a/k/a  CR-02-00063-VAP-

Rab; Shaun Dee Merced; and 03

Shaun Vance,

Defendant-Appellant.



UNITED STATES OF AMERICA,  No. 04-50374

Plaintiff-Appellee, D.C. No.

v.  CR-02-00063-VAP-

KENDRA TRICE, 12

Defendant-Appellant.



UNITED STATES OF AMERICA,  No. 04-50478

Plaintiff-Appellee, D.C. No.

v.  CR-02-00063-VAP-

AUDRA ISRAEL, 8

Defendant-Appellant.

 OPINION

Appeal from the United States District Court

for the Central District of California

Virginia A. Phillips, District Judge, Presiding

Argued and Submitted

February 13, 2006—Pasadena, California

Filed August 2, 2006

8685

8686 UNITED STATES v. DECOUD

Before: Betty B. Fletcher, Warren J. Ferguson, and

Consuelo M. Callahan, Circuit Judges.

Opinion by Judge Callahan

Dissent by Judge Ferguson

UNITED STATES v. DECOUD 8691

COUNSEL

Vincent J. Oliver, Los Angeles, California, argued the cause

for appellant Decoud.

Gail Ivens, Glendale, California, argued the cause for appel-

lant Trice.

Richard D. Rome, Van Nuys, California, argued the cause for

appellant Israel.

Craig H. Missakian, Assistant United States Attorney, argued

the cause for the government. With him on the consolidated

brief were Debra Wong Yang, United States Attorney for the

Central District of California, Thomas P. O’Brien, Assistant

United States Attorney, and Nancy Kardon, Assistant United

States Attorney.

OPINION

CALLAHAN, Circuit Judge:

This case involves the Drug Enforcement Administration’s

(“DEA”) investigation and the prosecution of a drug-

8692 UNITED STATES v. DECOUD

trafficking organization in Riverside, California. Sedrick

Decoud, Kendra Trice, and Audra Israel (collectively, “the

appellants”) challenge their convictions and sentences for

engaging in a conspiracy to distribute cocaine base and, in

Decoud’s case, for being a felon in possession of a firearm.

They raise a number of issues ranging from the government’s

non-disclosure of its confidential informant’s identity to the

district court’s dismissal of a juror based on her claimed

inability to discharge her duties in light of her religious views.

We hold that under the various standards that govern our

review, the appellants fail to show that the district court com-

mitted reversible error. The government concedes, however,

that a limited remand is appropriate to give the district court

the opportunity to correct the supervised-release term that it

imposed as part of Israel’s sentence. Accordingly, we affirm

the judgments entered by the district court and remand Isra-

el’s sentence for further proceedings.

I

A. Conspiracy

The investigation beginning in April 2001 uncovered the

appellants’ participation in an enterprise that manufactured

and distributed cocaine base, otherwise referred to as “crack”

cocaine. The organization was run by Cleo Page, Israel’s

then-boyfriend.

Israel met with drug customers at her home and gave them

cocaine base in exchange for money. Israel allowed Page to

store drugs at her home and introduced Page to her sister,

Trice, as someone who could also sell drugs. From then on,

Trice was involved in selling drugs for Page and would

deliver cocaine base to buyers at prearranged locations.

Decoud was also a member of the organization, selling and

manufacturing cocaine base for Page.

UNITED STATES v. DECOUD 8693

B. Wiretap

Six or seven months into its investigation, the government

approached the district court with a wiretap application and

supportive declaration by a DEA Special Agent (“case

agent”), requesting authority to intercept calls to and from a

cellular telephone primarily used by Page. In addition to Page,

the affidavit named Trice as a principal subject of the investi-

gation. The stated purpose of the wiretap was primarily to

investigate an alleged conspiracy to manufacture and distrib-

ute controlled substances. The affidavit detailed the probable

cause for the wiretap, relying on discoveries made during the

pre-wiretap investigation and stating that “Special Agents of

the DEA have received information concerning an organized

cocaine trafficking and distribution network including[ ] Page

. . . and others as yet unknown[ ] from Confidential

Sources[.]” The affidavit also explained that the wiretap was

necessary because normal investigative procedures had been

exhausted and other methods of investigation had already

been used by or were unavailable to law enforcement.

On November 28, 2001, the district court authorized the

initial interception of wire communications, which began the

following day. On December 31, 2001, based on the same

affidavit, the district court authorized continued interceptions

of Page’s cellular telephone through mid-January 2002. The

wiretap uncovered evidence of the conspiracy: mainly inter-

cepted phone calls with Page.

C. Automobile Search and Firearm Possession

In a December 7, 2001 intercepted call, Page stated that

Decoud was “cooking” cocaine base. The DEA then con-

tacted the California Highway Patrol to ask for help in stop-

ping Decoud’s automobile, with the expectation that a stop

would be made as long as there was a legitimate, independent

basis for doing so.

8694 UNITED STATES v. DECOUD

Later that day, a highway patrol officer traveling with a

narcotics canine pulled Decoud over for speeding and having

improperly tinted windows. Once stopped, Decoud provided

the officer with his driver’s license. After running a Depart-

ment of Motor Vehicles check on Decoud’s license, the offi-

cer learned that the license had been suspended on account of

his failure to appear for a prior violation. The officer arrested

Decoud and impounded the automobile pursuant to the Cali-

fornia Vehicle Code, which authorizes a peace officer to take

possession of a vehicle when the driver has been arrested or

cited for driving on a suspended license. CAL. VEH. CODE

§ 22651(p) (West 2001).

The officer conducted an inventory search of the automo-

bile’s contents while Decoud was still present and came

across a cooking pot, duct tape, sandwich-size plastic baggies,

cellular telephones, cash, and a locked metal briefcase. When

asked about the briefcase, Decoud claimed that it did not

belong to him and that he did not know how to open it.

Decoud further stated that he had borrowed the automobile

and that the briefcase belonged to the owner of the automo-

bile. The officer then brought the canine over to the vehicle

and the canine “alerted” to the presence of drugs in the brief-

case. The officer forced it open and found inside a loaded

semi-automatic handgun, a large supply of cocaine base, and

a digital scale.

D. Pretrial Proceedings

On June 6, 2002, a grand jury returned an eight-count

indictment charging the appellants and nine others with vari-

ous drug- and firearm-related offenses. After the nine other

defendants pleaded guilty, the government filed a two-count

superseding indictment charging the appellants with conspir-

ing to possess with the intent to distribute and distributing

more than 50 grams of cocaine base. Decoud alone was

charged in count two with being a felon in possession of a

firearm.

UNITED STATES v. DECOUD 8695

The government also filed a motion under Federal Rule of

Evidence 404(b) to admit prior felony narcotics convictions

for each of the appellants.1 The government sought to admit

Israel’s 1990 conviction for possession of cocaine base for

sale, along with her 1997 and 2001 convictions for possession

of cocaine base. After Israel argued that these convictions

were too prejudicial, the trial court tentatively admitted the

two more recent convictions and excluded the older convic-

tion.

Decoud filed a motion to suppress the evidence derived

through the wiretaps, claiming that the supporting affidavit

showed that the DEA had failed to exhaust standard investiga-

tive techniques, including its use of informants, before seek-

ing a wiretap.2 Decoud argued that the affidavit contained

material misstatements and omissions relating to the alleged

necessity of the wiretap investigation which, if redacted, may

have resulted in denial of the wiretap application. The district

court held a hearing and denied the motion, concluding that

the affidavit “more than adequately explain[s] why the gov-

ernment either did not undertake other methods of investiga-

tion or to the extent that they did or they had, why such efforts

in all likelihood, would not produce the evidence for which

the wiretaps were needed.”

Decoud also filed a motion to suppress the evidence that

the highway patrol officer seized from him, including the con-

tents of the briefcase. After holding a hearing, the district

court issued a written denial of the motion, explaining that the

evidence established that (1) there was probable cause for the

1

Rule 404(b) begins by confirming the prohibition on the use of charac-

ter evidence to prove conforming conduct, but then states that evidence of

other crimes is admissible when the evidence is offered to prove some-

thing other than character, “such as proof of motive, opportunity, intent,

preparation, plan, knowledge, identity, or absence of mistake or acci-

dent[.]” FED. R. EVID. 404(b).

2

Both Israel and Trice joined Decoud’s motion to suppress wiretap evi-

dence.

8696 UNITED STATES v. DECOUD

officer to believe Decoud was speeding and that the tinting on

the automobile’s windows violated the California Vehicle

Code, (2) the officer performed a valid inventory search of the

vehicle and that his subjective motivation to conduct the traf-

fic stop “ ‘play[s] no role in [the] ordinary, probable-cause

Fourth Amendment analysis’ ” (quoting Whren v. United

States, 517 U.S. 806, 813 (1996)), and (3) Decoud lacked

standing to object to the search of the briefcase because he

denied owning it.

At a pretrial status conference, Israel’s counsel made an

oral motion for the government to disclose the identity of its

confidential source (“CS1”). The wiretap affidavit described

CS1 as performing controlled drug buys with Page and two

other defendants who had already pleaded guilty. Israel

wanted CS1 to testify as a defense witness at trial to show that

there was no contact between CS1 and Israel. Although the

government did not dispute the lack of contact, Israel argued

that she should not be limited to eliciting this fact from the

case agent. Recognizing that the lack of contact between CS1

and Israel was undisputed, the court determined that CS1 did

not have material testimony, but indicated that it would con-

sider any authority Israel provided in support of her motion.

The following day, Israel filed a written motion for the dis-

closure of CS1, claiming, without further elaboration, that

“testimony from the government’s confidential source is not

only material to the defendant’s trial, but will provide excul-

patory evidence relating to her innocence of the charges.” The

court denied the motion in a minute order, explaining that the

motion “only contains an utterly conclusory assertion . . . that

the informant’s testimony will include unspecified ‘exculpa-

tory information’ ” and that “[t]his is insufficient to meet the

threshold requirement of showing that disclosure would be

relevant to at least one defense.”

E. Trial Proceedings

Trial commenced on September 30, 2003. In its case-in-

chief, the government called a fingerprint examiner to testify

UNITED STATES v. DECOUD 8697

that prints taken from Israel at the time of her arrest for the

instant offense in 2002 matched a set of prints that had been

obtained from her in connection with a prior arrest. The

examiner did not refer to the origin of the prior prints, which

pertained to Israel’s 1990 narcotics conviction that the district

court had already excluded. The government explained that it

would redact the reference to the 1990 charge and conviction

and the link to a prior conviction on the fingerprint card. The

government did not specifically refer to any of Israel’s prior

convictions and the 1990 fingerprint card was not admitted in

evidence. In addition, the court specifically excluded the 2002

set of fingerprints, reasoning that the fingerprint expert’s testi-

mony was sufficient to establish that all of the fingerprints

belonged to appellant Israel.

After Israel called a number of witnesses, but before Israel

herself testified, it became clear that Israel’s theory of the

case was that she was a user, not a seller, of drugs. The gov-

ernment renewed its argument that Israel’s 1990 conviction

for possession of cocaine base for sale should be admitted

under Rule 404(b), asserting that Israel “opened the door” by

claiming that she was not a drug seller. After extensive argu-

ment, the court excluded all of Israel’s prior convictions under

Rule 404(b).

In response, the government inquired whether the convic-

tions could be used for their impeachment value under Fed-

eral Rule of Evidence 609. The court ruled that the

government could impeach Israel’s testimony with the two

more recent (1997 and 2001) convictions. During her direct

examination, Israel admitted to both convictions, stating that

she was convicted twice for felony narcotics possession

because she was using cocaine base.

On October 9, 2003, after seven days of trial, the jury

began its deliberations. Later that day, the jury sent a hand-

written note by Juror No. 8 and signed by the foreperson

requesting clarification of the jury instructions regarding the

8698 UNITED STATES v. DECOUD

conspiracy count. The note specifically read: “It was stated in

court that in order [for there] to be a conspiracy[,] the profits

have to be shared by the partners in crime, is this true?” Half

an hour later, the jury sent a second handwritten note by Juror

No. 8 and signed by the foreperson. This note requested a

playback of recorded calls “to clarify description and lan-

guage of defendant Israel’s phone conversations.”

Immediately after the court responded to these notes, Juror

No. 8 sent another handwritten note that read: “Dear Judge[,]

Would you please allow me to speak with you privately. I

should have maybe said this sooner. I am sorry but I cannot

go further until I do. Thank you very much in advance.”

The court decided to question the juror in front of the par-

ties and counsel but outside the presence of the other jurors.

The juror explained that she had been struggling throughout

the trial as to whether she could carry out her duties as a juror

and it had become clear that, due to her religious convictions,

she was unable to judge any defendant. The following

exchange transpired between the court and the juror:

Q: Maybe you could tell me what your concern

is[?]

A: Well, I’ve been wrestling with this ever since it

started. I’m to the point now, I can’t sleep at

night. I’m just — I’m a very religious person,

and I have my own set of values and I believe

in the Bible. Completely. It is what I live my

life by. And I just — I’m to the point I cannot

do anything that is going to leave me in a state

of unrest. I feel that I shouldn’t be here. I don’t

feel that I should be judging anyone. And I feel,

I said well, the judge did ask that question, if

there is anyone here very religious. And I

should have spoken up then. I can’t judge

another person. And my Bible states certain

UNITED STATES v. DECOUD 8699

facts that I have to live by and those take prece-

dence. So I wanted to ask, maybe I could be

excused and you could ask someone else to

judge because I can’t do it.

Q: I really appreciate you being — coming for-

ward and telling us this[.] You have done the

right thing by bringing these concerns and send-

ing the note in and so I want to thank you for

doing that, first of all. I think the question that

you are remembering that I asked during voir

dire goes something like, do any of you have —

you can tell I have asked this question a few

times. But that doesn’t mean it’s just not as

important every time. But do any of you have

any strongly held religious, philosophical, or

moral beliefs that would keep you or prevent

you from sitting in judgment o[f] another per-

son? Is that the question you are remembering?

A: Yes, I am.

Q: And as you sit here today, how would you

answer that question?

A: I would say, yes, I do.

Q: Do you find that you are unable to deliberate

with the other jurors, discuss the evidence and

the law?

A: Yes, I do. Because in my studies in the Bible

there are certain rules, and their standards are

different.

Q: And so you are having — you are finding it

impossible to set those standards aside and fol-

low the instructions if there is a conflict?

8700 UNITED STATES v. DECOUD

A: Yes.

The court then opened up the questioning to counsel. Only

Israel’s counsel was interested in inquiring further and the fol-

lowing dialogue ensued between Israel’s counsel and the

juror:

Q: [H]ave you shared these views with the other

jurors during your deliberations?

A: No, I did not.

Q: I noticed that . . . today you wrote three of the

questions. Have you mentioned any of your

feelings or expressed any of your religious feel-

ings to the other jurors concerning these defen-

dants or how they might be judged in the eyes

of God or whoever?

A: No.

***

Q: So at least, in part, you have been willing to dis-

cuss the case with the other jurors because you

have participated to the degree of writing notes

asking for more information; correct?

A: Yes. Actually, we got started and the Holy

Spirit convicted my heart so bad ——

The court interrupted the juror in mid-sentence to instruct her

not to share anything about the jury discussions. After

acknowledging the court’s directive, the juror continued with

her response and additional questioning from Israel’s counsel

followed:

A: There are scriptures that keep coming into my

heart that convicted me. And so that is when I

UNITED STATES v. DECOUD 8701

decided[,] well, you know, I mean, I came

because it was my civic duty.

Q: I’m sorry, . . . I didn’t hear you.

A: I said I came because I felt it was my civic duty.

But then the Holy Ghost convicts me and tells

me that I am to come out of the world. And that

is the way that I have been taught. And that is

the way I try to live every day. And I don’t feel,

I mean, scripture tells me not to sit in judgment

and there are other scriptures that keep coming

up in my mind that I know is God’s Word. And

I have to live by what I know is His Word.

Q: And you did not discuss any of this with any of

the other jurors?

A: No.

Q: How about when you wrote this [third] note?

A: I started to and then I thought well, I can talk

with the judge first. I started to tell them how

I felt, but then I thought it would be better to

talk with the judge first.

Q: How far did you get in telling them how you

felt?

A: I didn’t tell them.

Q: You wrote the note and showed it to your

foreperson though?

A: Yes.

Q: Did he express any — or did he ask you any

questions about it?

8702 UNITED STATES v. DECOUD

A: Yes, he did. But I didn’t answer. I told him that

I wanted to speak with the judge first.

When counsel’s inquiry ended, the judge asked the juror to

wait out in the hallway for a few moments. Once the juror

exited the courtroom, the court stated that the juror should be

excused because she “told us unequivocally that she is unable

to deliberate and unable to follow the court’s instructions[.]”

The court then solicited the perspectives of counsel. Initially

there was no objection and Israel’s counsel stated that “the

court’s conclusion is correct.” Israel’s counsel, however, then

asked the court to declare a mistrial because the juror was the

only “black person” on the jury and her exclusion would be

“grossly unfair” given that all the trial defendants are African-

American. When the court asked Israel’s counsel whether he

had any legal authority to support his argument, he responded

“No.” Counsel for Decoud noted that the juror appeared to

have participated in the jury’s deliberation and speculated that

perhaps she sought to be excused because she felt “ganged up

on” in light of the fact that she was “the only black juror.”

Counsel for Trice shared the same speculations and told the

court that “I have a gut feeling maybe something transpired

in there.”

The court appreciated the defense’s concern but rejected

these suggestions, finding “that this juror would have told us

[if race was an issue] because . . . of her level of intelligence

and articulation.” Nonetheless, the court had the juror return

to answer an additional question: “Is there anything in the jury

room in terms of anything that was said or done by any of the

other jurors towards you that brought you in here today with

this concern?” She responded “No” and the court dismissed

her from the jury with just cause for not being able to dis-

charge her duties. The court commented that the juror’s “re-

plies seemed to be extraordinarily . . . articulate, sincere, and

well thought through” and that “she indicated very positively

that she was not making her request to be excused as a result

UNITED STATES v. DECOUD 8703

of any conduct or anything that was said to her by any other

juror.”

Without waiving their concerns over the juror’s dismissal,

the appellants consented to the court’s substitution of an alter-

nate juror, and the jury was instructed to “set aside and disre-

gard all past deliberations and begin deliberating anew.” The

reconstituted jury began its deliberations from scratch and

returned unanimous special verdicts against the appellants,

finding each guilty on the conspiracy charge. As to Israel and

Decoud, the jury specifically found that they had respectively

conspired to possess more than 50 grams of cocaine base. The

jury also found Decoud guilty on the firearm count.

F. Post-verdict Proceedings

The appellants moved for judgments of acquittal and a new

trial. Four days before the scheduled hearing on the motions,

Decoud filed a motion to further examine the dismissed juror,

in which Trice and Israel subsequently joined. Decoud based

his request on a declaration signed by Israel and Trice’s sister,

who was a defense witness at trial. The declaration claimed

that the juror approached the sister at a bank a couple of

months after the trial and asked what had happened in the

case. The declaration also stated that the juror told the sister

that the juror had been subjected to severe pressure from some

of the other jurors while deliberating. According to the sister,

the juror implied that there may have been some racial pres-

sure to get her off the case and that she was a “holdout” for

acquittal. The declaration also notes that the juror refused to

provide her telephone number, address, or any other form of

contact information to the sister.3

3

The relevant passage of the declaration states:

On or about Tuesday, December 02, 2003, while I was at the

Wells Fargo Bank in Moreno Valley to do banking business, I

saw [the juror]. She also saw me and approached me and asked

8704 UNITED STATES v. DECOUD

After a hearing, the district court denied the motions. In a

written order, the court memorialized its ruling on Decoud’s

motion to further examine the juror, observing that the juror’s

testimony before the court contradicted the declaration’s hear-

say assertion that the juror felt pressured and that there might

have been racial implications to such pressure. The district

court also noted that evidence concerning pressure brought to

bear on a juror — whether it be in the form of a written decla-

ration or live testimony — was inadmissible under Federal

Rule of Evidence 606(b).

On June 24, 2004, the district court sentenced Decoud to a

20-year prison term on count one, a concurrent 10-year prison

term on count two, and a 10-year term of supervised release

following his release from custody. On July 26, 2004, the dis-

trict court sentenced Trice to serve a 10-year prison term fol-

lowed by an eight-year term of supervised release. On

September 27, 2004, the district court sentenced Israel to

serve a 10-year prison term followed by a 10-year term of

supervised release.

me if she knew me because I looked familiar and wondered

where she had seen me. I informed [the juror] that I was the sister

of Audra Israel and Kendra Trice and that I had been in Court

during the trial. [The juror] asked me what had happened in the

case and I explained to her [sic]. Without soliciting any informa-

tion from her, she volunteered that while deliberating, she was

subject to severe pressure from some of the other jurors and for

that and other reasons, she felt compelled to ask[ ] to be excused.

She implied that there might have been some racial implications

to pressure her to get off the case. She further told me that she

was a holdout for acquittal but was severely pressured by the

other jurors and for that reason asked to be excused. She also told

me that the jurors had their minds made up from the beginning

and in fact did not deliberate when they received the case. [She]

did not want to go into detail, but suggested that the defense

attorneys contact her. She refused to give me her telephone num-

ber or address, but suggested that we go through the Court pro-

cess to obtain it.

UNITED STATES v. DECOUD 8705

II

With this background in mind, we consider the appellants’

contentions in the order in which they arose, starting with the

challenged pretrial rulings and concluding with the appel-

lants’ objections to their sentences.

A. The Wiretap Application

[1] In order to obtain a wiretap, the government must dem-

onstrate, inter alia, that normal investigative techniques have

been tried and failed or reasonably appear unlikely to succeed

or to be too dangerous, and must present a full and complete

statement establishing that normal investigative means will

not suffice. 18 U.S.C. § 2518(1)(c), (3)(c); United States v.

McGuire, 307 F.3d 1192, 1197 (9th Cir. 2002). We review the

district court’s finding of necessity in a wiretap application

for abuse of discretion. United States v. Canales Gomez, 358

F.3d 1221, 1225 (9th Cir.), cert. denied sub nom. Fregoso v.

United States, 543 U.S. 908 (2004).

[2] On appeal, Israel restates Decoud’s claim that the gov-

ernment failed to establish the necessity for the wiretap.

Although Israel challenges the case agent’s representations

concerning CS1, she does not give this court any reason to

doubt those representations. As noted, the case agent’s affida-

vit provided that CS1 would no longer be available to make

controlled drug buys because of CS1’s prison term.

[3] We have articulated that the necessity requirement does

not “ ‘mandate[ ] that the government organize the release of

jailed informants before a wiretap will be authorized[.]’ ”

United States v. Staves, 383 F.3d 977, 982 (9th Cir. 2004)

(quoting Canales Gomez, 358 F.3d at 1226), cert. denied, 543

U.S. 1169 (2005). We have further reasoned that “any previ-

ous success from the use of confidential informants is even

less persuasive [in determining necessity] in the context of an

investigation of criminal conspiracy.” Canales Gomez, 358

8706 UNITED STATES v. DECOUD

F.3d at 1226. Thus, Israel’s argument does not present a valid

basis to challenge the wiretap.

Israel has similarly failed to present any factual allegations

to substantiate her conclusory statement that the pen registers

were sufficient or likely to succeed in furthering the govern-

ment’s investigation. In contrast, the case agent’s 54-page

affidavit noted that because pen registers only supplied identi-

fying information regarding calls made from a particular tele-

phone, the technique would neither establish the identity of

the person called nor reveal contents of conversations. The

necessity for the wiretap is evaluated in light of the govern-

ment’s need not merely to collect some evidence, but to “de-

velop an effective case against those involved in the

conspiracy.” United States v. Brone, 792 F.2d 1504, 1506 (9th

Cir. 1986) (Kennedy, J.); see also McGuire, 307 F.3d at 1198-

99 (defining “effective case” as “evidence of guilt beyond a

reasonable doubt”). Therefore, even if Israel had shown that

the pen registers would have been productive to some degree,

that showing would not have extinguished the need for the

wiretap. United States v. Bennett, 219 F.3d 1117, 1122 (9th

Cir. 2000).

[4] Israel also urges that the government’s physical surveil-

lance was beneficial and “could have been continued.” This

view directly conflicts with the affidavit’s statement that on

one particular occasion during surveillance, Page left his resi-

dence and drove directly to (and confronted) law enforcement

agents who were conducting the surveillance. The district

court reasonably found that Page’s knowledge of the surveil-

lance only increased the necessity for law enforcement to

wiretap Page’s telephones. Accordingly, the district court did

not abuse its discretion in finding a necessity for the wiretap.

Canales Gomez, 358 F.3d at 1225.

B. Automobile Search

Decoud asks us to reverse the district court’s denial of his

motion to suppress the fruits of the automobile search. We

UNITED STATES v. DECOUD 8707

review the district court’s denial of his suppression motion de

novo. United States v. Crawford, 372 F.3d 1048, 1053 (9th

Cir. 2004) (en banc). Whether Decoud has standing to assert

a Fourth Amendment claim is reviewed de novo, although

underlying findings of fact are reviewed for clear error.

United States v. Davis, 932 F.2d 752, 756 (9th Cir. 1991).

[5] Decoud argues that the highway patrol officer’s inven-

tory search that led to the discovery of the firearm inside the

briefcase violated the Fourth Amendment because the search

was not conducted in accordance with any standardized policy

and was merely a ruse for general rummaging to find incrimi-

nating evidence. Although a briefcase is property in which

one may have a Fourth Amendment interest, Decoud fails to

appreciate that he gave up any expectation of privacy in the

briefcase by unequivocally disclaiming ownership. See United

States v. Nordling, 804 F.2d 1466, 1469-70 (9th Cir. 1986)

(stating that a defendant relinquishes any expectation of pri-

vacy after disclaiming interest in the property); see also

United States v. Cella, 568 F.2d 1266, 1283 (9th Cir. 1977)

(explaining that denying ownership of property when ques-

tioned constitutes abandonment of that property). As a result,

we reject his protestations against the search of the briefcase.

See Abel v. United States, 362 U.S. 217, 241 (1960) (holding

that one who has voluntarily abandoned property cannot sub-

sequently complain about its search and seizure).

C. Non-severance

We now turn to Decoud’s argument that the district court

erred in trying him along with Trice and Israel. Almost a year

before the government filed the superseding indictment, Trice

brought a motion to sever, challenging the joinder of co-

defendants in the original indictment. At an October 2002

hearing, the district court denied Trice’s motion. It is this rul-

ing that Decoud challenges on appeal.

A district court’s denial of a motion to sever is reviewed for

an abuse of discretion. United States v. Pitner, 307 F.3d 1178,

8708 UNITED STATES v. DECOUD

1181 (9th Cir. 2002). “The test for abuse of discretion by the

district court is ‘whether a joint trial was so manifestly preju-

dicial as to require the trial judge to exercise his discretion in

but one way, by ordering a separate trial.’ ” United States v.

Patterson, 819 F.2d 1495, 1501 (9th Cir. 1987) (quoting

United States v. Abushi, 682 F.2d 1289, 1296 (9th Cir. 1982)).

Initially, we must determine whether Decoud has waived

any challenge to the district court’s non-severance determina-

tion. Decoud claims that he preserved the issue for appeal by

filing his own severance motion. But the district court’s

docket does not indicate that Decoud filed a severance

motion, and the parties do not state that Decoud joined Trice’s

severance motion. We must therefore conclude that Decoud

has waived his challenge to the district court’s ruling.

[6] Assuming arguendo that he filed a severance motion or

joined Trice’s motion, Decoud has nevertheless waived this

issue because he failed to renew a severance request at the

close of the government’s case-in-chief or at any time during

trial. We have held that a defendant waives his right to appeal

the denial of his severance motion if he does not renew the

motion at the close of evidence. United States v. Sherwood,

98 F.3d 402, 409 (9th Cir. 1996) (as amended). The reason for

requiring a defendant to renew his severance motion is to “en-

able[ ] the trial court to assess more accurately whether a join-

der is prejudicial at a time when the evidence is fully

developed.” United States v. Plache, 913 F.2d 1375, 1379

(9th Cir. 1990).

A defendant, however, will not be found to have waived his

challenge if he can show either that he diligently pursued sev-

erance or that renewing the motion would have been an

unnecessary formality. Sherwood, 98 F.3d at 409. Decoud

seeks to come within this exception by claiming that the sev-

erance motion was accompanied by the introduction of preju-

dicial evidence that need not have been raised again at the

trial stage of the proceedings. He cites evidence that both

UNITED STATES v. DECOUD 8709

Trice and Israel interacted with Page and were involved in the

drug conspiracy. Decoud concludes that the jury likely trans-

ferred “the clear guilt of Trice and Israel” to Decoud.

Decoud’s theory of prejudice is misconceived. The mere

fact that a defendant has a better chance of acquittal if tried

separately does not require severance. See United States v.

Jenkins, 785 F.2d 1387, 1394 (9th Cir. 1986) (holding that,

absent a showing of manifest prejudice, a co-conspirator is

not entitled to severance by merely suggesting or demonstrat-

ing a comparative advantage in separate trials). The inevitable

consequence of any joint trial is that the jury will become

aware of evidence of one crime while considering a defen-

dant’s guilt or innocence of another crime. But this does not

amount to an abuse of discretion on the part of the trial court.

As the Supreme Court has noted, there is a strong preference

in the federal system for joint trials. Zafiro v. United States,

506 U.S. 534, 537 (1993); accord FED. R. CRIM. P. 8(b) (pro-

viding that defendants who are alleged to have participated in

the same act of transaction or in the same series of acts or

transactions may be indicted and tried together). Furthermore,

here the trial court gave limiting instructions for the jury to

consider the evidence against each of the appellants and to

separately evaluate each one’s guilt. See United States v. Fer-

nandez, 388 F.3d 1199, 1243 (9th Cir. 2004) (specifying that

a district court’s limiting instructions for the jury to “evaluate

each defendant’s guilt separately . . . more than sufficient[ly]

guard against the possibility of prejudice to the defendants”).

There is no indication that the jury was unable to separately

evaluate the case against each trial defendant. Thus, Decoud’s

severance argument, if not waived, is not meritorious.

D. Non-disclosure of Informant

Notwithstanding Israel’s acknowledgment that the govern-

ment’s confidential informant, CS1, had no contact with the

appellants, Israel contends that the district court abused its

discretion in denying disclosure of information about CS1. A

8710 UNITED STATES v. DECOUD

trial court’s refusal to compel disclosure of a confidential

informant’s identity is reviewed for an abuse of discretion.

United States v. Henderson, 241 F.3d 638, 646 (9th Cir. 2000)

(as amended). Non-disclosure is an abuse of discretion when

“an informer’s identity, or [ ] the contents of his communica-

tion, is relevant and helpful to the defense of an accused, or

is essential to a fair determination of [the accused’s] cause[.]”

Roviaro v. United States, 353 U.S. 53, 62 (1957). The defen-

dant bears the burden of showing a need for disclosure.

United States v. Wong, 886 F.2d 252, 256 (9th Cir. 1989).

[7] While Israel postulates that CS1 could have testified to

a lack of any knowledge about her involvement in the con-

spiracy, CS1’s lack of knowledge on this point was undis-

puted and could have been elicited at trial through a

stipulation or the testimony of the case agent. Also, as the dis-

trict court observed, such testimony would have been of lim-

ited value to Israel, for the informant’s non-knowledge would

have done little to refute the government’s otherwise persua-

sive evidence of Israel’s affirmative involvement in the con-

spiracy. Furthermore, the government did not rely on CS1 in

any aspect of its case against Israel; CS1 was not involved in

any transaction contained in her indictment, there is no dis-

pute about the facts to which CS1 could have testified, and the

involvement of CS1 in securing the government’s wiretap is

insufficient to compel disclosure of the informant’s identity.

See United States v. Williams, 898 F.2d 1400, 1402 (9th Cir.

1990).

[8] For these reasons, Israel has not carried her burden of

proving that the disclosure of the informant’s identity is “es-

sential to a fair determination” of her case. Roviaro, 353 U.S.

at 62. We must therefore conclude that the district court did

not abuse its discretion in declining to compel the identifica-

tion of the confidential informant.

E. Evidentiary Rulings

The appellants also question various evidentiary rulings

made by the district court during trial. A trial court’s evidenti-

UNITED STATES v. DECOUD 8711

ary rulings are generally reviewed for an abuse of discretion.

Old Chief v. United States, 519 U.S. 172, 174 n.1 (1997);

United States v. Alvarez, 358 F.3d 1194, 1205 (9th Cir. 2004)

(noting a district court’s “ ‘wide discretion’ ” (quoting United

States v. Long, 706 F.2d 1044, 1054 (9th Cir. 1983))). Under

this standard, an evidentiary ruling will be reversed only if

such error “ ‘more likely than not affected the verdict.’ ”

United States v. Pang, 362 F.3d 1187, 1192 (9th Cir. 2004)

(quoting United States v. Angwin, 271 F.3d 786, 798 (9th Cir.

2001)).

1. Fingerprint Expert’s Trial Testimony

Israel takes issue with the district court’s admission of the

fingerprint expert’s testimony that the fingerprints taken in

connection with Israel’s 1990 conviction matched the finger-

prints she submitted in 2002. Although the 1990 fingerprint

card was never introduced in evidence and the district court

excluded the 2002 fingerprints, Israel claims that the district

court did not go far enough and should have granted her

request to strike the expert’s testimony because that testimony

was “highly prejudicial” as it linked her to the excluded 1990

conviction.

[9] Israel is mistaken because the fingerprint expert did not

inform the jury of her 1990 conviction. The government asked

the expert to compare the prints taken at Israel’s arrest in

2002 with the fingerprint card from the 1990 conviction, but

the source of the card was not disclosed to the jury. The testi-

mony concerning the 1990 fingerprint card was limited to the

following exchange between government counsel and the

expert:

Q: What is on page 2?

A: Page 2 is the 35 prints from the Department of

Justice given [sic] the booking number and the

date of arrest, when the subject was printed.

8712 UNITED STATES v. DECOUD

Q: Now, who does page 2 relate to?

A: This [sic] prints belong to the prints that I com-

pared to the submitted prints.

Q: Focusing just on page 2, who do those prints

belong to?

A: They belong on [sic] the subject name is Audra

Rene Trice.

Q: And did you compare those prints on page 2 to

the prints that were submitted to you on page 3?

A: Yes, I did.

Q: And — did you come to any conclusions?

A: That it was the same. They were a match and it

belonged to the same subject.

As this excerpt illustrates, the jury only heard the fingerprint

expert compare fingerprints taken at Israel’s 2002 arrest with

fingerprints on another document involving an arrest and con-

clude that the two sets matched. The record shows that the

expert said nothing else. Based on this record, the district

court did not abuse its discretion by declining to strike the

fingerprint-comparison testimony.

Moreover, assuming that there was error, Israel has failed

to establish that such error more likely than not affected the

jury’s verdict. As Israel testified to having been convicted on

two prior occasions, the expert’s indication that she had been

previously arrested was not materially prejudicial. We find no

reason to disturb the district court’s evidentiary ruling.

UNITED STATES v. DECOUD 8713

2. Israel’s Prior Convictions

Israel also objects to the district court’s decision allowing

the government to impeach her testimony with her two prior-

possession convictions under Rule 609.4 She states that these

prior convictions bore no relevance to the instant offense of

conspiracy and that their prejudicial value greatly outweighed

their probative value. The government demurs, asserting that

Israel has waived her right to challenge the admission of these

prior convictions by testifying about them on direct examina-

tion.

[10] The government is right. In Ohler v. United States,

529 U.S. 753 (2000), the Supreme Court pronounced that a

defendant may not appeal an evidentiary ruling allowing the

admission of evidence of a prior conviction if the defendant

herself introduced the prior conviction, even if the defendant

properly objected to the ruling. Id. at 760. In Ohler, the dis-

trict court had ruled “that if Ohler testified, [the] prior convic-

tion would be admissible under Rule 609(a)(1).” Id. at 755.

When the case was before us on direct appeal, we had con-

cluded that the defendant had waived her objection to the

admissibility of a prior conviction by introducing evidence of

the conviction during her direct examination. 169 F.3d 1200

(9th Cir. 1999). The Supreme Court granted certiorari, 528

U.S. 950 (1999), and affirmed our decision.

The Court made it clear that, where tough trial decisions

are concerned, a defendant must live with the consequences

that flow from his choices. 529 U.S. at 758-59. In Ohler, this

meant that after trying and failing to keep Rule 609 evidence

out, the defendant who preemptively introduced her prior con-

4

When impeaching the testimony of the accused, Rule 609(a)(1) pro-

vides that evidence of a prior conviction is admissible if that crime was

punishable by imprisonment in excess of one year and if the court deter-

mines that the probative value of the evidence outweighs its prejudicial

effect. FED. R. EVID. 609(a)(1).

8714 UNITED STATES v. DECOUD

viction to lessen its sting waived her right to challenge the ini-

tial ruling on appeal. Id.

[11] Israel’s predicament is the same in all material

respects. The record indicates that Israel knew that she had to

make the difficult election of whether to reveal or to conceal

evidence of her prior conviction on direct examination. She

deliberately sought to lessen the impact of the prior convic-

tion by mentioning it in her direct testimony rather than

allowing the government to introduce it on cross-examination.

See id. at 758 (explaining that a defendant may not “short-

circuit” the government’s right to decide whether to use evi-

dence against her by offering the evidence herself and “still

preserve its admission as a claim of error on appeal”). Ohler

is clear: once a defendant “preemptively introduces evidence

of a prior conviction on direct examination[, she] may not on

appeal claim that the admission of such evidence was error.”

Id. at 760. We must therefore conclude that Israel has waived

the opportunity to appeal this evidentiary ruling.

3. Case Agent’s Trial Testimony

The case agent testified at trial and provided the jury with

background information about the investigation, focusing on

the beginning of the investigation in April to July 2001 when

CS1 was involved. She described how she used CS1 to gather

information about cocaine-base sales in a certain area and also

noted the drug purchases that CS1 made from Page and

another co-conspirator. Based on the intercepted phone calls

and her observations, the case agent also testified about the

role played by several co-conspirators, but not about the roles

of the appellants here. At several points, the defense objected

on grounds of hearsay and lack of foundation. The district

court discussed striking certain portions of the testimony, but

ultimately did not do so. It did, however, offer to give a limit-

ing jury instruction, should the defense so request, that the

case agent’s testimony was not admitted for the truth of the

UNITED STATES v. DECOUD 8715

matter asserted. The defense never proposed a limiting

instruction, and the court did not provide one sua sponte.

Israel now argues that the case agent’s background testi-

mony constitutes inadmissible hearsay and lacks proper foun-

dation. Israel claims that this evidence was not within the case

agent’s personal knowledge and was hearsay relayed by oth-

ers. This contention is not borne out in the record.

The case agent testified about her direct interactions with

CS1, which included participating in surveillance on the

transactions to which she testified. In addition, the case agent

gave a description of the records she reviewed, such as

telephone-subscriber information for numbers called by CS1,

and told the jury that she had listened to each one of the

approximately 7,000 intercepted calls involved in the case.

Further, when it came to identifying the roles various individ-

uals played in the conspiracy, she described the nature of her

investigation for each individual.

Israel’s objections, on the other hand, lack specificity.

Israel does not identify what aspects of the case agent’s testi-

mony lack proper foundations or constitute inadmissible hear-

say. Israel only alleges in a conclusory manner that the

testimony was inadmissible and should have been excluded

by the district court. Israel also doesn’t explain why she or the

other appellants did not take up the district court on its offer

to provide the jury with a limiting instruction that could have

mitigated, if not negated, Israel’s hearsay concerns. Further,

she provides no case law or other authority to support her

argument. Accordingly, we must conclude that Israel has

failed to show that the district court abused its discretion in

not limiting the case agent’s testimony.

4. Expert Testimony on Drug Codes

Israel next takes issue with the district court’s decision to

allow the testimony of another witness, the government’s

8716 UNITED STATES v. DECOUD

drug expert. She objects to the drug expert’s explanation that

certain words and phrases caught on tape were actually code

for drug deals and drug use.

[12] In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509

U.S. 579 (1993), the Supreme Court set forth the guiding

principle that “under the Rules [of Evidence] the trial judge

must ensure that any and all scientific testimony or evidence

admitted is not only relevant, but reliable.” Id. at 589. In order

to assist the trial courts with this task, the Court suggested a

flexible, factor-based approach to analyzing the reliability of

expert testimony. Id. at 593-95. Although not an exclusive

list, these factors include: (1) whether a method can or has

been tested; (2) the known or potential rate of error; (3)

whether the methods have been subjected to peer review; (4)

whether there are standards controlling the technique’s opera-

tion; and (5) the general acceptance of the method within the

relevant community. Id. at 593-94.

[13] The Court has further held that the trial judge’s

responsibility to keep unreliable expert testimony from the

jury applies to all expert testimony, not only to “scientific”

testimony. Kumho Tire Co. v. Carmichael, 526 U.S. 137, 148

(1999). In other words, this “basic gatekeeping obligation”

applies with equal force in cases, such as this one, where

“non-scientific” experts wish to relate specialized observa-

tions derived from knowledge and experience that is foreign

to most jurors. Id. Kumho Tire also makes clear that “the trial

judge must have considerable leeway in deciding in a particu-

lar case how to go about determining whether particular

expert testimony is reliable.” Id. at 152. We therefore review

the district court’s decision not to exclude the government

expert’s testimony for abuse of discretion that requires rever-

sal only if that decision is “ ‘manifestly erroneous.’ ” United

States v. Hankey, 203 F.3d 1160, 1167 (9th Cir. 2000) (quot-

ing Gen. Elec. Co. v. Joiner, 522 U.S. 136, 142 (1997)).

Prior to the expert’s testimony, the district court held a

Daubert hearing at which the expert explained the methodol-

UNITED STATES v. DECOUD 8717

ogy that he used to interpret each of the handful of disputed

words. The expert explained that for words that he had not

heard before, he based his interpretation of such words on

three factors: (1) his training and experience; (2) each word

in the context of the specific phone call; and (3) each phone

call in the context of other phone calls that he understood.

Israel expresses doubt over the reliability of the expert’s

methods of interpretation, specifically disputing the expert’s

testimony that he knew the meaning of such slang terms as

“diznerty,” “woop-wop,” “weezy,” and “shake my speezy.”

Israel maintains, citing United States v. Hermanek, 289 F.3d

1076 (9th Cir. 2002), that the district court erred in admitting

the testimony because the court relied solely on the expert’s

general qualifications without receiving a sufficient explana-

tion of the methods used to arrive at his interpretations of

words that he had not previously encountered.

Not so. The defendants in Hermanek appealed a district

court’s decision to allow the government’s expert to interpret

words and phrases not commonly used in the drug trade that

he had not previously heard. 289 F.3d at 1090. The govern-

ment at trial had described only the expert’s method for inter-

preting words commonly used in the drug trade, words with

which the expert was familiar. Id. at 1093. We found that the

government’s explanation “offer[ed] no basis for assessing

the reliability of [the expert]’s interpretation of words and

phrases encountered for the first time in this case.” Id. We

also expressed concern with the government’s offer of proof

because “at least one of the words listed on the government’s

offer under the rubric of ‘commonly used’ drug terms with

which [the expert] was ‘familiar’ . . . was not familiar to [the

expert].” Id. We held that the district court improperly relied

on the expert’s general qualifications without assuring that his

interpretations of particular encoded words were supported by

reliable methods.5 Id. at 1090. Nonetheless, we concluded that

5

The Hermanek panel limited its holding by stating, “[w]e do not hold

that a government expert . . . can never be qualified to interpret coded drug

8718 UNITED STATES v. DECOUD

“the error, although serious, was harmless” in consideration of

all the other incriminating evidence that was properly before

the jury. Id. at 1096.

[14] Here, in addition to setting forth the expert’s experi-

ence, the government focused on the expert’s methodology

for interpreting new encoded words, thereby complying with

Hermanek.6 See id. at 1094 (noting that the government expert

“failed to explain in any detail the knowledge, investigatory

facts and evidence he was drawing from”). Thus, the concerns

with the government expert’s testimony expressed in Her-

manek are not present here. We resolve that the district court

faithfully followed the strictures of Hermanek in fulfilling its

gatekeeping function under Daubert and did not err in allow-

ing the government’s expert to testify as to the meaning of the

new encoded words.

F. Sufficiency of Evidence

We next encounter Decoud and Israel’s argument that the

district court erred in denying their motions for a judgment of

acquittal on the conspiracy charge. They claim that the evi-

dence presented at trial was insufficient to support the jury’s

verdict.

[15] We review claims of insufficient evidence de novo.

conversations using words and phrases experienced for the first time in the

prosecution at issue[,]” and that “[t]he advisory committee’s note to Rule

702 . . . approves such expert testimony where the ‘method used by the

agent is the application of extensive experience to analyze the meaning of

the conversations.’ ” Hermanek, 289 F.3d at 1096.

6

For example, the expert gave a lengthy explanation of how he inter-

preted “diznerty” based on his understanding of a common speaking style

in “most black communities” where they “will put an ‘e’ or ‘ez’ in words,

“such as, ‘I’m at his housez,’ something like that. Just as a certain slang,

certain words. And here[,] ‘diznerty’ is just a slang on dirty” (emphasis

added).

UNITED STATES v. DECOUD 8719

United States v. Shipsey, 363 F.3d 962, 971 n.8 (9th Cir.

2004). In a criminal prosecution, “[t]here is sufficient evi-

dence to support a conviction if, ‘viewing the evidence in the

light most favorable to the prosecution, any rational trier of

fact could have found the essential elements of the crime

beyond a reasonable doubt.’ ” Id. (quoting Jackson v. Vir-

ginia, 443 U.S. 307, 319 (1979)). To sustain a federal conspir-

acy conviction, the government must prove “ ‘(1) an

agreement to accomplish an illegal objective, (2) coupled with

one or more acts in furtherance of the illegal purpose, and (3)

the requisite intent necessary to commit the underlying sub-

stantive offense.’ ” United States v. Chong, 419 F.3d 1076,

1079 (9th Cir. 2005) (quoting United States v. Pemberton,

853 F.2d 730, 733 (9th Cir. 1988)). Once a conspiracy is

established, the government can prove a defendant’s “know-

ing participation” with evidence of the defendant’s “connec-

tion with the conspiracy.” United States v. Delgado, 357 F.3d

1061, 1066 (9th Cir. 2004).

1. Trial Evidence Against Decoud

Decoud argues that the government failed to present any

evidence that he engaged in an agreement to commit a crime

with anyone else. He concedes that he “prepared drugs for

sale,” but maintains that he did so on his own and not as part

of any conspiracy. He claims that there was no proof that the

money he obtained from sales was distributed to others

involved in a conspiracy. He further claims that there was no

evidence of him having a telephone conversation with Page or

another member of the conspiracy concerning matters of an

illegal nature. He questions how he could have had an agree-

ment with others in a conspiracy when there is no evidence

that he spoke to anyone in the conspiracy.

The record, however, provides a different account of the

evidence. The government introduced several intercepted

calls between Page and Decoud in which they discussed

cocaine base. For example, in one series of calls, Decoud and

8720 UNITED STATES v. DECOUD

Page discussed a batch of cocaine base that Decoud had pre-

pared for Page to sell to “Capone.” Capone had complained

about the quality of the drugs and Page and Decoud agreed to

replace them. At one point, Page referred to Decoud as “his

boy,” which the decoding expert translated to mean his part-

ner, associate, or cook. There was evidence that Decoud also

met with Capone to deliver the substitute batch. In a later call,

made while Decoud was in Page’s apartment cooking another

batch of cocaine base, Decoud confirmed that he had replaced

Capone’s drugs. In yet another call, Page told Decoud that his

customers were unhappy with the batch of cocaine base that

Decoud had cooked and told Decoud to fix another batch.

Decoud agreed to do so. The jury also learned of a call where

Decoud gave Page step-by-step instructions on how to correct

another batch of cocaine base.

[16] While it may be true that there was no evidence of

Decoud sharing profits, he fails to cite any authority that sug-

gests this fact negates his membership in the conspiracy. The

government, on the other hand, cites United States v. Boswell,

372 F.2d 781, 783 (4th Cir. 1967), for the proposition that “a

sharing of the fruits of the conspiracy has never been held . . .

to be an essential element of the offense.” Of course, a divi-

sion of profits may be an integral part of a conspiracy and

proof of the same. Id. The point, however, is that we know of

no authority that holds that evidence of a division of profits

is essential for a conviction of conspiracy, and accordingly we

may affirm Decoud’s conspiracy conviction without evidence

that the money obtained from drug sales was distributed to

others involved in the conspiracy. Id. In light of the over-

whelming evidence that Decoud prepared the drugs sold by

Page’s drug organization, we hold that there was sufficient

evidence to support the jury’s verdict. Jackson, 443 U.S. at

319; Shipsey, 363 F.3d at 971 n.8.

2. Trial Evidence Against Israel

Israel also argues that the evidence presented against her

was too isolated to link her to the overall conspiracy, analo-

UNITED STATES v. DECOUD 8721

gizing her case to United States v. Umagat, 998 F.2d 770 (9th

Cir. 1993). In Umagat, we held that there was insufficient evi-

dence to permit a trier of fact to impute to two of the defen-

dants the knowledge of a conspiracy to smuggle marijuana.

Id. at 774. We reasoned that the indictment alleged an overall

conspiracy joined after its inception by both defendants and

that the evidence showed each defendant was involved in a

single transaction which was only a part of the ongoing con-

spiracy. Id. at 773-74. We further noted that the government

did not offer any other evidence as to the defendants’ knowl-

edge of the conspiracy. Id. at 774.

The instant case is readily distinguishable because Israel’s

involvement was not limited to a single transaction, and the

multiple intercepted calls between Israel and Page established

Israel’s knowledge of the overall conspiracy. The phone calls

demonstrate that Israel played a variety of roles in Page’s

drug distribution business. For instance, in one call, Israel

responded to Page’s complaint about business losses and

offered to introduce Page to her connections in the drug trade.

In another call, Israel acted as a go-between for Page, arrang-

ing for Trice to sell Page’s drugs. The jury also heard calls

evidencing that Israel facilitated a drug transaction between

Page and Trice, delivered drugs for Page, and stored Page’s

drugs at her house.

The government also presented the jury with evidence of

Israel’s participation in a series of calls involving the sale of

a quarter kilo of cocaine base for $5,400. At times during

those calls, Israel referred to the drugs with various slang

words, such as “crumbs” and “little ball,” and also expressed

the view that the money generated from the sale belonged to

her and Page jointly.

[17] The totality of the trial evidence demonstrates that

Israel worked with Page in his drug-trafficking operation,

shared the profits from the illicit drug sales, knowingly stored

crack at her house, met with customers, and, at Page’s direc-

8722 UNITED STATES v. DECOUD

tion, took money from customers and delivered drugs to them.

Accordingly, there was more than sufficient evidence to sup-

port the jury’s verdict. Jackson, 443 U.S. at 319; Shipsey, 363

F.3d at 971 n.8.

G. Dismissal of Juror

We now arrive at Israel and Trice’s shared contention that

they were denied their right to a fair and impartial jury when

the district court dismissed Juror No. 8. They also challenge

the district court’s decision not to hold an evidentiary hearing

on the issue in light of their new-trial motions.

1. Invited Error

The government asserts that these claims are waived under

the invited-error doctrine because Israel’s counsel agreed with

the district court’s decision to dismiss Juror No. 8 due to her

testimony that religious views prevented her from determin-

ing a defendant’s guilt.7 The invited-error doctrine does not

apply here. First, Israel’s counsel in no way invited the

“error.” Second, on the immediate heels of his concurring

statement that the court was “correct” in excusing the juror,

Israel’s counsel launched into an argument for a mistrial

because the juror was “the only black person” on the jury and

her exclusion would be “grossly unfair” given that the appel-

lants are all African-American. Counsel for Trice contempo-

raneously voiced the same concerns. Thus, we perceive no

barrier to our review of the claims on their merits.

2. Dismissal for Just Cause

[18] Israel and Trice recognize that religious convictions

preventing a juror from rendering a verdict amount to good

7

An error is waived and unreviewable when a defendant both invites the

error and affirmatively relinquishes or abandons a known right. United

States v. Perez, 116 F.3d 840, 845 (9th Cir. 1997) (en banc).

UNITED STATES v. DECOUD 8723

cause for that juror’s dismissal. They argue, however, that

Juror No. 8 lied to the district court about her reason for want-

ing to be excused and that she, in fact, was able to deliberate

impartially.

United States v. Symington, 195 F.3d 1080 (9th Cir. 1999),

on which the appellants rely, concerned a scenario that is very

different from the present case. There, on the eighth day of

deliberations following a three-month trial, the district court

received a note from the jury indicating that “ ‘[o]ne juror has

stated their [sic] final opinion prior to review of all counts.’ ”

Id. at 1083. The district court sent back a note reminding the

jurors “of their duty to participate in deliberations with each

other, but emphasizing also that each juror should make up

his or her own mind on the charges.” Id. Several days later,

the jury sent another note to the court indicating that one juror

“cannot properly participate in the discussion” for various rea-

sons including that juror’s “[i]nability to maintain a focus on

the subject of discussion[, i]nability to recall topics under dis-

cussion[, and r]efusal to discuss views with other jurors.” Id.

The district court then questioned each juror individually. Id.

at 1083-84. Every juror (except the one that was the subject

of the complaint) stated that there was one particular juror

who refused to explain her views, stating she did not “have to

explain herself to anybody.” Id. at 1084.

Our decision noted that the “statements of some jurors indi-

cated that their frustration with [the juror] may have derived

more from their disagreement with her on the merits of the

case, or at least from their dissatisfaction with her defense of

her views.” Id. We also pointed out that the juror “stated that

she was prepared to continue deliberating” and “that the other

jurors’ frustration with her might be because ‘[she] can’t

agree with the majority all the time . . . .’” Id. Expressing con-

cern over the sanctity of jury deliberations, we held “that if

the record evidence discloses any reasonable possibility that

the impetus for a juror’s dismissal stems from the juror’s

views on the merits of the case, the [district] court must not

8724 UNITED STATES v. DECOUD

dismiss the juror.”8 Id. at 1087 (emphasis in original). Apply-

ing this standard, we reversed the judgment of conviction,

concluding that “there was a reasonable possibility that [the

juror]’s views on the merits of the case provided the impetus

for her removal.” Id. at 1088.

[19] Here, Juror No. 8 asked to be excused because of her

religious convictions and, when specifically asked by the

judge, she confirmed that there had been no improprieties by

the other jurors. E.g., United States v. Burrous, 147 F.3d 111,

117 (2d Cir. 1998) (permitting the removal of a juror for just

cause due to the juror’s indication during deliberation that he

is unable to render a verdict because of a “personal religious

objection”); United States v. Geffrard, 87 F.3d 448, 451 (11th

Cir. 1996) (affirming the dismissal of a juror who wrote in a

letter to the judge that her religious beliefs made her feel that

she could not “live with a verdict of guilty for any of the

accused on any of the charges”). As the record amply illus-

trates, the district court took care in inquiring into the circum-

stances that gave rise to the juror’s request for discharge,

making sure that there was no reasonable possibility that the

juror harbored some other reason for discharge, such as her

views on the merits of the case. When defense counsel ques-

tioned the juror, once again there was absolutely nothing to

suggest that the juror’s problem stemmed from anything other

than her observance of religion. Indeed, defense counsel

remarked that the court was “correct” in dismissing her.

Because substantial evidence supports the district court’s

assessment that the juror was unable to further deliberate and

8

We clarified in Symington that “the standard is any reasonable possi-

bility, not any possibility whatever.” Symington, 195 F.3d at 1087 n.5

(emphasis in original). Understanding that “ ‘anything is possible in a

world of quantum mechanics[,]’ ” we purposefully avoided fixing a stan-

dard that would “prohibit juror dismissal [only where] there is no possibil-

ity at all that the juror was dismissed because of her position on the

merits[.]” Id. (quoting United States v. Watkins, 983 F.2d 1413, 1424 (7th

Cir. 1993) (Easterbrook, J., dissenting)). As we observed, such an unat-

tainable standard would “prohibit dismissal in all cases.” Id.

UNITED STATES v. DECOUD 8725

perform her duties as a member of the jury, we find no error

in the district court’s dismissal of the juror.9

3. Post-verdict Challenge to Juror’s Dismissal

In addition, Israel and Trice claim that they were entitled

to a post-verdict evidentiary hearing with the dismissed juror

present in light of the declaration that their sister submitted

before sentencing. As noted, the sister declared that she had

coincidentally run into the dismissed juror at a bank and

believed that the juror had implied that racial motivations fac-

tored into her desire to be excused from the jury and that she

had been a holdout for acquittal.

[20] We review a district court’s denial of an evidentiary

hearing concerning a dismissed juror for an abuse of discre-

tion. United States v. Saya, 247 F.3d 929, 934 (9th Cir. 2001).

A district court is not required to hold an evidentiary hearing

upon every allegation of juror misconduct, and in determining

whether to hold a hearing, it should consider the content of

9

Moreover, the district court was in the best position to evaluate the

juror’s credibility when she stated that her religious convictions prevented

her from deliberating in the case. See United States v. Beard, 161 F.3d

1190, 1194 (9th Cir. 1998) (stressing that the decision to excuse a juror

is committed to the district court’s discretion and must be affirmed unless

the appeals court is left with the definite and firm conviction that the dis-

trict court committed a clear error of judgment); accord Nichols v. Azteca

Rest. Enters., Inc., 256 F.3d 864, 871 (9th Cir. 2001) (giving “great defer-

ence to district court findings relating to credibility” and conferring

“ ‘even greater deference’ ” when the factual findings rest on credibility

determinations (quoting Anderson v. City of Bessemer, 470 U.S. 564, 575

(1985))). As noted, Juror No. 8 in no uncertain terms told the judge that

the jurors had not said or done anything to motivate her request to be

excused from the jury. The district court believed the juror’s testimony to

be extraordinarily articulate and sincere, and found that she entertained no

undisclosed pretext. We conclude that the district court acted entirely

within its discretion in believing the juror’s stated reason for dismissal.

Id.; see also Wainwright v. Witt, 469 U.S. 412, 424 (1985) (permitting a

juror’s discharge for cause if a particular belief prevents or substantially

impairs the performance of the juror’s duties).

8726 UNITED STATES v. DECOUD

the allegations, the seriousness of the alleged misconduct, and

the credibility of the source. Id. at 934-35.

In the case at bar, at the hearing on the new-trial motions,

the defense requested that the court arrange for the dismissed

juror to be present for further examination. The district court

declined to do so for two independent reasons. First, it noted

that counsel already had an opportunity to question the juror

at the time when she sought to be discharged from the jury.

Second, the court held that a further inquiry into the juror’s

participation in the jury’s deliberations would be improper

under Rule 606(b).10

On appeal, Trice and Israel do not argue that the district

court abused its discretion in denying a hearing based on its

and counsel’s previous examination of the juror. Rather, they

focus their challenge on the district court’s Rule 606(b) ratio-

nale. Trice argues that Rule 606(b) does not prohibit jurors

from testifying about evidence of racial bias and relies on

United States v. Henley, 238 F.3d 1111, 1120 (9th Cir. 2001).

Although Henley implied in dictum that evidence of racial

prejudice might be exempt from Rule 606(b)’s restriction on

post-trial evidence, 238 F.3d at 1120-21, Henley was specifi-

10

Rule 606(b) provides in relevant part:

Upon an inquiry into the validity of a verdict . . . , a juror may

not testify as to any matter or statement occurring during the

course of the jury’s deliberations or to the effect of anything upon

that or any other juror’s mind or emotions as influencing the juror

to assent to or dissent from the verdict or . . . concerning the

juror’s mental processes in connection therewith, except that a

juror may testify on the question whether extraneous prejudicial

information was improperly brought to the jury’s attention or

whether any outside influence was improperly brought to bear

upon any juror. Nor may . . . evidence of any statement by the

juror concerning a matter about which the juror would be pre-

cluded from testifying be received for these purposes.

FED. R. EVID. 606(b).

UNITED STATES v. DECOUD 8727

cally referring to racial bias “ ‘unrelated to the specific issues

that the juror was called upon to decide.’ ” Id. at 1120 (quot-

ing Rushen v. Spain, 464 U.S. 114, 121 n.5 (1983) (per

curiam)); see also Williams v. Price, 343 F.3d 223, 237 (3d

Cir. 2003) (Alito, J.) (detecting Henley’s “dictum” and point-

ing out that “[t]he actual holding in Henley did not concern

racial bias”). Indeed, Henley presented an instance where a

juror made racist remarks while carpooling to and from the

trial. Henley, 238 F.3d at 1114. Here, to the extent that the sis-

ter’s declaration alluded to racial matters, it did not reflect

evidence of racial bias against the defendants and related

purely to the dismissed juror’s position on the merits of the

defendants’ guilt or innocence.11 There was no allegation of

racial epithets indicating a racially-biased juror, as there had

been in Henley. Id.; cf. United States v. Heller, 785 F.2d 1524,

1527 (11th Cir. 1986) (concluding that ethnic bias warranted

a mistrial upon discovery that deliberations consisted of

numerous anti-Semitic slurs and jokes made by a juror about

the Jewish defendant that were met with “gales of laughter”).

Rather, at most the declaration claimed that the dismissed

juror “implied” that she felt racial pressure because she was

a “holdout.” While the dismissed juror and the appellants are

African-American, this fact alone does not warrant piercing

the secrecy and sanctity of jury deliberations or disrupting the

finality of the process. See Brewer v. Hall, 378 F.3d 952, 956

(9th Cir.) (citing Remmer v. United States, 350 U.S. 377, 382

11

Rule 606(b) clearly bars consideration of the declaration’s allegation

that the juror said that she was subjected to pressure by other jurors for

being a “holdout for acquittal.” See United States v. Briggs, 291 F.3d 958,

961 (7th Cir. 2002) (barring evidence of one juror being “ ‘intimidated’ by

other jurors into finding [the defendant] guilty”); see also United States v.

Brito, 136 F.3d 397, 414 (5th Cir. 1998) (deeming evidence of internal

coercion inadmissible per Rule 606(b)); United States v. Tallman, 952

F.2d 164, 167 (8th Cir. 1991) (“To admit proof of contentiousness and

conflict to impeach a verdict under Rule 606(b) would be to eviscerate the

rule.”); United States v. Norton, 867 F.2d 1354, 1366 (11th Cir. 1989)

(noting that “alleged harassment or intimidation of one juror by another

would not be competent evidence to impeach the guilty verdict”).

8728 UNITED STATES v. DECOUD

(1956) (instructing that “it is the law’s objective to guard jeal-

ously the sanctity of the jury’s right to operate as freely as

possible from outside unauthorized intrusions”)), cert. denied,

543 U.S. 1037 (2004). The sanctity of the jurors’ deliberations

would be seriously compromised if they were subject to post-

verdict examination because a juror, who did not participate

in the verdict, felt some racial pressure when she successfully

sought discharge on a distinct and adequate ground.

What is more, if Rule 606(b) is removed from the consider-

ation of the appellants’ motions for a new trial, the inade-

quacy of the declaration is still apparent. Indeed, the

speculative and vague nature of the declaration precludes a

finding that the district court abused its discretion. In Fields

v. Woodford, we rejected a defendant’s claim that several

jurors were racially prejudiced against him because “assum-

ing that the declarations upon which he relies are admissible,

they are vague and speculative; they do not show that any rac-

ist statements were made.” 315 F.3d 1062, 1063 (9th Cir.

2002) (as amended). Fields compared the “lack of any sub-

stantial evidence” before it to other cases finding sufficiently

weighty evidence: Henley, 238 F.3d at 1114, in which a juror

had declared that “the niggers are guilty,” and Tobias v.

Smith, 468 F. Supp. 1287, 1289-90 (W.D.N.Y. 1979), in

which the jury foreperson had stated “[y]ou can’t tell one

black from another.” Fields, 315 F.3d at 1063 (emphasis

added).

[21] As in Fields, the declaration at issue neither alleges

that any racist statements were made nor provides “substantial

evidence” that any of the jurors were racially prejudiced

against the appellants. Id. at 1062. The declaration sets forth

only the sister’s belief that the dismissed juror “implied that

there might have been some racial implications to pressure

her to get off the case.” In view of the declarant’s obvious

bias in favor of her sisters (Israel and Trice), the fact that her

trial testimony appears to have been rejected by the jury,12 and

12

The district court may have doubted the sister’s credibility because

she had testified at trial that her sisters would never have anything to do

with drugs, a perspective that the jury obviously rejected.

UNITED STATES v. DECOUD 8729

Juror No. 8’s thorough examination and contrary testimony at

the time of her discharge when deliberation events were fresh

in her mind, we conclude that the district court did not abuse

its discretion in declining an evidentiary hearing. See United

States v. Shyrock, 342 F.3d 948, 974 (9th Cir. 2003) (uphold-

ing district court’s refusal to conduct a further evidentiary

hearing based on its finding regarding the affected juror’s

credibility), cert. denied, 541 U.S. 965 (2004).

Trice also attempts to liken her case to United States v.

Brande, 329 F.3d 1173 (9th Cir. 2003). That case involved

one juror reporting post-trial that another juror, after express-

ing the view that he was unable to find anyone guilty on

account of personal religious beliefs, had been approached by

district court personnel and questioned about whether he

would be able to find a defendant guilty of a crime. Id. at

1175. The juror stated that he would. Id. In remanding for an

evidentiary hearing, we emphasized that the credibility of the

allegation was not in doubt, the juror’s susceptibility to

improper influence was heightened because the contact

involved a court officer, and there was no opportunity to

address the ex parte contact at trial because it came to light

only after the verdict. Id. at 1177.

[22] Several of the critical factors in Brande are absent

here. First, Juror No. 8 was not a member of the jury that con-

victed the appellants. Second, Juror No. 8 was not approached

by a court officer or anyone from the government. Third, as

we have already noted, the sister’s declaration is speculative

at best. Finally, unlike Brande, Juror No. 8’s dismissal was

fully considered by the trial judge before the jury — with a

substituted alternate juror — convicted the appellants. Thus,

even if the declaration were admissible under Rule 606(b), the

district court did not abuse its discretion in declining to hold

an evidentiary hearing.13

13

Contrary to some language in the dissent, we do not condone racial

prejudice within a jury. Rather, conscious of our role as an appellate court,

8730 UNITED STATES v. DECOUD

H. Sentencing Issues

Finally, we reach the appellants’ various challenges to their

respective sentences.

1. Booker Claims

Decoud claims error under United States v. Booker, 543

U.S. 220 (2005), arguing that the district court wrongly based

his sentence on a judge-made finding that his conspiracy

offense involved cocaine base rather than what he alleges to

be powder cocaine.14 Decoud also complains that the judge

determined the amount of drugs attributed to him. Employing

a similar rationale, Trice argues that the district court should

not have relied on one of her prior convictions to enhance her

sentence because she had not admitted to the fact of that prior

conviction nor was it found by a jury. We review these claims

we hold that the district judge did not abuse her discretion in determining

that the appellants failed to make a sufficient showing of possible racial

bias to warrant an evidentiary hearing. The district court had before it only

an affidavit by a sister of two of the appellants. The sister alleged that dur-

ing a chance encounter over two months after the trial, the dismissed juror

had “implied that there might have been some racial implications to pres-

sure her to get off the case,” and had suggested “that the defense attorneys

contact her.” The record contains no affidavit from either the dismissed

juror or defense counsel. On this record, we are forced to conclude that the

district judge — mindful of the dismissed juror’s firmly expressed reason

for being excused and her specific denial that any other juror had influ-

enced her decision to seek to be excused, and of the potential impropriety

of questioning jurors about the content of their deliberations — did not

abuse her discretion in declining to hold an evidentiary hearing.

14

While this appeal was pending, the Supreme Court handed down its

decision in Booker, holding that the federal sentencing guidelines as con-

stituted violated a defendant’s Sixth Amendment right to a jury trial. 543

U.S. at 245. That outcome followed from the conclusion that, in a manda-

tory sentencing regime, the Sixth Amendment precludes a judge from

enhancing a sentence beyond the statutory maximum based on facts that

are not found by a jury or admitted by the defendant. Id. at 232. The

Court, however, remedied the perceived constitutional infirmity by render-

ing the guidelines merely advisory rather than mandatory. Id. at 245.

UNITED STATES v. DECOUD 8731

for plain error. See United States v. Ameline, 409 F.3d 1073,

1084 (2005) (“If an eligible party seeks resentencing under

Booker[ ], we will then engage in the plain error analysis[.]”).

Decoud’s sentencing challenge is not well taken because it

is based on the false premise that a judicial finding enhanced

his sentence. The record unmistakably reveals that Decoud

was sentenced on the jury’s special verdict, which found

beyond a reasonable doubt that Decoud conspired to possess

for purposes of distribution more than 50 grams of a mixture

containing cocaine base. This finding, combined with

Decoud’s prior felony drug conviction, authorized the

mandatory-minimum sentence of 20-years imprisonment. See

21 U.S.C. § 841(b)(1)(A)(iii) (mandating a minimum sentence

of 20 years for a second-time offender who is convicted of

participating in a narcotics transaction involving at least 50

grams of cocaine base). Moreover, we have determined that

“Booker does not bear on mandatory minimums[.]”15 United

States v. Cardenas, 405 F.3d 1046, 1048 (9th Cir. 2005).

With respect to Trice’s sentencing challenge, she acknowl-

edges that existing law forecloses her argument but nonethe-

less seeks to assert her position. She correctly notes that

Booker specifically exempted prior convictions from the cate-

gory of enhancing facts that “must be admitted by the defen-

dant or proved to a jury beyond a reasonable doubt.” Booker,

15

Decoud also objects to the sentencing enhancement he received for

possessing a firearm in relation to the drug offenses with which he was

charged. He argues that there was no basis for this enhancement in the

jury’s verdict. Any Booker error that may have occurred, however, was

harmless, as the statutory minimum would have applied to Decoud regard-

less of the enhancement for possession. United States v. Cardenas, 405

F.3d 1046, 1048 (9th Cir. 2005); see also United States v. Ameline, 409

F.3d 1073, 1084 (9th Cir. 2005) (en banc) (noting that a remand is neces-

sary to correct Booker errors only “where it is not possible to reliably

determine from the record whether the sentence imposed would have been

materially different had the district court known that the Guidelines were

advisory”).

8732 UNITED STATES v. DECOUD

543 U.S. at 244. This court has held the same, observing that

Booker does not affect sentencing enhancements based on the

fact of a prior conviction. United States v. Delaney, 427 F.3d

1224, 1226 (9th Cir. 2005). Accordingly, Trice’s argument

fails under the weight of this authority.

2. Limited Remand

Israel seeks a limited remand for the district court to correct

an error regarding her term of supervised release even though

she did not raise the issue below. She notes that the district

court sentenced her to a supervised-release term of 10 years

based on a prior conviction that the government withdrew.

She asserts that the proper term is five years.

[23] When a defendant raises an issue on appeal that was

not presented to the district court, the court of appeals may

review only for plain error. FED. R. CRIM. P. 52(b); see also

United States v. Jordan, 256 F.3d 922, 926 (9th Cir. 2001)

(reviewing for plain error a challenge to sentencing that the

defendant did not raise before the district court). Here, how-

ever, the government concedes that it withdrew the prior con-

viction and has no objection to our vacating Israel’s term of

supervised release and allowing the requested remand.

Accordingly, a limited remand appears appropriate to afford

the district court an opportunity to reconsider Israel’s

supervised-release term.

III

For all of the foregoing reasons, the appellants’ convictions

and sentences are AFFIRMED and appellant Israel’s sen-

tence is REMANDED for reconsideration of her supervised-

release term.

UNITED STATES v. DECOUD 8733

FERGUSON, Circuit Judge, dissenting:

I respectfully dissent from the majority’s approval of the

District Court’s failure to hold an evidentiary hearing regard-

ing whether racial bias infected the jury that sat in judgment

of Appellants Israel and Trice. See maj. op. at 8725-29.

Appellants Israel and Trice are both African-American. The

original jury impaneled in their case had only one African-

American member, Juror No. 8. This same juror, after a day

of deliberations, asked to be dismissed. She claimed she could

not continue to deliberate, despite the fact that she had been

actively participating in deliberations and sending out ques-

tions to the Judge up until that point, because her religious

beliefs prevented her from sitting in judgment of another per-

son. The District Court accepted Juror No. 8’s explanation

and dismissed her. An alternate juror, who is not African-

American, was then impaneled. The jury began deliberations

anew, eventually finding each Appellant guilty of the charges

against her.

After the Appellants were convicted, they moved for a new

trial based on an affidavit submitted by their sister, Shondra

White. According to the affidavit, a couple months after the

trial, while in a local bank, White was approached by Juror

No. 8, who recognized White from the trial. After White iden-

tified herself, Juror No. 8 told White she had been subject to

severe pressure in the jury room, and that pressure, not her

religious beliefs, led her to ask to be dismissed. According to

White, Juror No. 8 “implied that there might have been some

racial implications to pressure her to get off the case.” Despite

this troubling information, the District Court denied the

Appellants’ request for an evidentiary hearing to further ques-

tion Juror No. 8 regarding what role, if any, racial prejudice

played in the jury deliberations.

I dissent on two grounds. First, the majority misconstrues

United States v. Henley, 238 F.3d 1111 (9th Cir. 2001), which

8734 UNITED STATES v. DECOUD

persuasively reasons that racial prejudice is a mental bias that

is never acceptable in the jury room. Instead of disregarding

Henley, we should apply its reasoning to hold that Federal

Rule of Evidence 606(b) does not bar testimony regarding

evidence of racial prejudice within the jury. Second, White’s

affidavit, combined with the circumstances of Juror No. 8’s

dismissal, sufficiently raises the prospect that the jury may

have been tainted by racial bias to require an evidentiary hear-

ing on the matter. If called to testify, Juror No. 8 may confirm

that nothing untoward occurred during deliberations. Until

such an evidentiary hearing is held, however, the specter of

racial prejudice hangs over the trial and undermines public

confidence in the verdict. See Developments in the Law —

Race and the Criminal Process: VII. Racist Juror Misconduct

During Deliberations, 101 Harvard L. Rev. 1595, 1600

(1988) (“Permitting defendants to expose racially tainted

deliberations gives the public—particularly minority citizens

—more reason, not less, to trust the final results of the crimi-

nal justice system.”).

I.

We refuse to be a society in which a defendant’s guilt or

innocence is decided by the color of her skin. Accordingly,

the Sixth Amendment entitles every defendant to an impartial,

unbiased jury. See Henley, 238 F.3d at 1120. We have held

that the Sixth Amendment is violated by “the bias or prejudice

of even a single juror.” Id. (quoting Dyer v. Calderon, 151

F.3d 970, 973 (9th Cir. 1998)). The danger caused by such

bias or prejudice, and the need to take extra measures to pro-

tect against it, has been repeatedly recognized. See, e.g., Tur-

ner v. Murray, 476 U.S. 28, 35-36 (1986); Batson v.

Kentucky, 476 U.S. 79 (1986).

To be consistent “with the broad goal of eliminating racial

prejudice from the judicial system,” evidence of racial bias

within jury deliberations should be admissible. Henley, 238

F.3d at 1120. The majority, however, would use Rule 606(b)

UNITED STATES v. DECOUD 8735

to prohibit the introduction of some evidence of racial preju-

dice. This is inconsistent with the Supreme Court’s holding

that, despite Rule 606(b), “[a] juror may testify concerning

any mental bias in matters unrelated to the specific issues that

the juror was called upon to decide . . . .” Id. (quoting Rushen

v. Spain, 464 U.S. 114, 121 n.5 (1983)). In Henley we cor-

rectly reasoned that Rule 606(b)’s general bar on inquiry into

the deliberations of the jury does not apply to testimony relat-

ing to racial prejudice because “[r]acial prejudice is plainly a

mental bias that is unrelated to any specific issue that a juror

in a criminal case may legitimately be called upon to deter-

mine.” Henley, 238 F.3d at 1120.1

The majority attempts to distinguish the present case from

Henley by arguing that “to the extent that [White’s] declara-

tion alluded to racial matters, it did not reflect evidence of

racial bias against the defendants and related purely to the dis-

missed juror’s position on the merits of the defendants’ guilt

or innocence.” Maj. op. at 8727. The majority apparently

would allow racial prejudice within the jury as long as there

is no explicit evidence that the bias was directed at the defen-

dants. Such a position is untenable, and violates the basic

premise that racial bias should never play a role in the

decision-making process of a jury. If the prejudice of other

members of the jury forced Juror No. 8., who was inclined to

vote for acquittal, off the case, then that prejudice is no less

troubling than racial bias aimed directly at the defendants

because such prejudice effectively decided the outcome of the

case. Furthermore, if the racial prejudice present in the jury

room was strong enough to pressure a fellow juror to seek dis-

missal, it is very likely such bias also invaded the remaining

1

Racial bias may also be characterized as “extraneous prejudicial infor-

mation” that has an effect on the jury. By its own terms, Rule 606(b)

admits such evidence. Fed. R. Evid. 606(b) (“except that a juror may tes-

tify on the question whether extraneous prejudicial information was

improperly brought to the jury’s attention”); see also Henley, 238 F.3d at

1120; Tobias v. Smith, 468 F. Supp. 1287, 1290 (W.D.N.Y. 1979).

8736 UNITED STATES v. DECOUD

jurors’ deliberations regarding the African-American defen-

dants.

Henley dictates the result in this case. We should hold that

Rule 606(b) does not bar the admission of juror testimony and

other evidence regarding racial prejudice within the jury.

II.

Based on White’s declaration and the circumstances of

Juror No. 8’s dismissal, the Appellants are entitled to an evi-

dentiary hearing regarding the existence and extent of racial

bias within their jury.

In determining whether to hold a hearing, a district court

“must consider the content of the allegations, the seriousness

of the alleged misconduct or bias, and the credibility of the

source.” United States v. Saya, 247 F.3d 929, 935 (9th Cir.

2001). Holding an evidentiary hearing is “usually preferable,”

unless “the court [knows] the exact scope and nature of the

. . . extraneous information.” Id. (internal quotation marks and

citation omitted).

Here, the seriousness of the alleged misconduct, racial prej-

udice within the jury, weighs heavily in favor of holding an

evidentiary hearing. Nonetheless, the majority would dismiss

such grave allegations as vague and speculative based on

flawed comparisons with cases that differ significantly from

this case in their procedural postures.

First, the content of White’s declaration is no more vague

or speculative than statements that have justified other eviden-

tiary investigations. For instance, a judge stopped a trial and

questioned the jury after a bare allegation that “ethnic slurs”

had been made in the jury room. See United States v. Heller,

785 F.2d 1524, 1525 (11th Cir. 1986).

UNITED STATES v. DECOUD 8737

The majority compares White’s statement2 against several

statements of racial bias discussed in other cases within this

Circuit, and finds it lacking in some unquantified degree of

specificity. See maj. op. at 8726-29. In most of the cases cited

by the majority, however, an evidentiary hearing had already

been held, which produced more specific and detailed state-

ments of racial prejudice. See Henley, 238 F.3d at 1113 (“the

district court conducted evidentiary hearings on the motions

for a new trial”); Heller, 785 F.2d at 1525 (noting specific

statements of racial bias were only revealed after the judge

stopped deliberations and questioned the jury). And in Fields

v. Woodford, the case on which the majority most heavily

relies, it is not clear whether the appellant was seeking a new

trial, or an evidentiary hearing, based on the scant evidence of

racial bias. 315 F.3d 1062, 1063 (9th Cir. 2002) (as amended).

This distinction in remedy sought is relevant since, as the

cases cited by the majority demonstrate, far less specific evi-

dence is needed to justify an evidentiary hearing than is

required for the grant of a new trial. Here, the Appellants are

not seeking a new trial, but merely an evidentiary hearing to

explore in more detail the content of Juror No. 8’s implied

allegations of racial bias. The very purpose of that hearing

would be to elicit the more specific statements of prejudice

the majority is searching for.

Second, the strength of the allegations in White’s declara-

tion must be viewed in the context of the entire trial. Accord-

ing to the statement, Juror No. 8 implied that racial prejudice

may have been behind her decision to seek dismissal from the

jury. Such an inference is circumstantially corroborated by the

actual dismissal of Juror No. 8, the only African-American

juror. At the time of her dismissal, Juror No. 8 claimed she

could not judge another person due to her religious beliefs.

2

The majority also calls into question White’s credibility. Maj. op. at

8728-29. The District Court, however, never explicitly found White not to

be credible. Nor should we assume White’s statements about her interac-

tion with Juror No. 8 to be untrue.

8738 UNITED STATES v. DECOUD

During voir dire, however, she testified her beliefs would not

interfere with her ability to deliberate. Furthermore, up until

her request for dismissal, Juror No. 8 had been actively delib-

erating with the other jurors, as evidenced by two signed

questions and requests for additional information that she sub-

mitted to the District Court.

Despite the fact that Juror No. 8 initially denied that the

other jurors influenced her decision to request dismissal, that

denial was called into question by her later statements to

White and the circumstances of her dismissal. Only an evi-

dentiary hearing can reconcile Juror No. 8’s contradictory

assertions. See United States v. Jackson, 209 F.3d 1103, 1109

(9th Cir. 2000) (“The discrepancy between the juror’s state-

ments during the voir dire and his later statement to the inves-

tigator calls for a resolution that can be reached only through

an evidentiary hearing.”).

Accordingly, I find the District Court abused its discretion

by denying Appellants’ request for an evidentiary hearing and

would remand for a hearing on Appellants’ allegations of

racial prejudice within the jury.