Petition — Charapata v. United States
Supreme Court brief1983
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82-2074
No. 82-
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ALEXANDER L. STEVAS
In the Supreme Coun
OF THE
United States
Octoser TERM, 1982
Epwarp Pavt CHArRAPATA,
Petitioner,
vs.
Unrrep States oF AMERICA,
Respondent.
ANNE CHARAPATA,
Petitioner,
Vs.
Unirep States or AMERICA,
Respondent.
CLERK
PETITION FOR WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
Sanrorp Jay Rosen
Law OFFICES OF
Sanrorp Jay Rosen
155 Montgomery Street,
8th Floor
San Francisco, CA 94104
(415) 433-6830
Counsel of Record
Nina K. Grnssere
Barsara Y. PHILLIPS
Law OFFICES OF
Sanrorp Jay Rosen
Counsel for Petitioners
Orrtn L. Grover, III
Counsel for Edward
Charapata
Frank Noonan
Counsel for Anne
Charapata
et eame
The petitioners, Edward Paul Charapata
and Anne Charapata, who were defendants
below, pray that a writ of certiorari issue
to review the judgment of the United States
Court of Appeals for the Ninth Circuit,
entered in these cases on January 18, 1983.
A timely petition for rehearing was denied on
May 9, 1983.
QUESTIONS PRESENTED FOR REVIEW
A Whether The Government's Contention Of
‘ Strong Evidence Of Guilt Can Overcome The
Heavy Presumption of Prejudice Resulting From
A Sub Rosa Intrusion Of The Prosecutor's.
Belief In The Defendants’ Guilt Into A
Criminal Jury's Deliberations?
r Whether A District Court's Failure To
Conduct A Prompt and Thorough Investigation
Into A Presumptively Prejudicial Jury
Intrusion, And to Take Timely Curative
Measures Invalidate Its Decision That The
Jury Intrusion Was Non-Prejudicial?
i
ve : a SS 5 MES FURS tat? os d
a +s ~ ae ; eo aT - = sa Fe RE eg ee ee ne ee ee
a ae Sere oP Ie ae Gee emer Oey a ei See ee Ty EE ee ra ST ee ee EN RR NS ae
: Se Whether Rule 606(b) Of The Federal Rules
Of Evidence Prohibits A District Court From
Eliciting And Relying On Post-Verdict
Testimony Of The Jurors Concerning The Effect
Of Extraneous Communications On A Criminal
Jury's Deliberations, In Order To Overcome
The Presumption Of Prejudice?
4, Whether The Fourth Amendment Can Be
Circumvented By Federal Criminal
Investigators By Conducting A Prolonged
Surreptitious And Warrantless Search Of A
Suspect's Papers And Files Under The Guise Of
A State Civil Audit.
ii
TABLE OF CONTENTS
Page
QUESTIONS PRESENTED FOR REVIEW L
TABLE OF AUTHORITIES vi
OPINIONS BELOW 1
JURISDICTION is 2
CONSTITUTIONAL AND
STATUTORY PROVISIONS INVOLVED 3
STATEMENT OF THE CASE 4
1. Facts Pertaining to Illegal
Search Issue 7
2. Facts Pertaining to The Jury
Instrusion ll
REASONS FOR GRANTING THE WRIT 24
I. THIS COURT SHOULD GRANT THE PETITION
FOR WRIT OF CERTIORARI IN ORDER TO
ADDRESS SERIOUS ISSUES OF CONSTITU-
TIONAL LAW THAT HAVE NOT BEEN, BUT SHOULD
BE RESOLVED, AS WELL AS CONFLICTS
AMONG THE CIRCUITS CONCERNING
INTRUSION OF DAMAGING MATTERS INTO
CRIMINAL JURY DELIBERATIONS. 24
A. The Decision Below Is Inconsistent
With Well-Established Authority
Of This Court and Evidences Wide-
spread Confusion Among the Circuits
Concerning Proper Application of
The Strong Presumption of Prejudice
That Applies Whenever There Is a
Potentially Damaging Jury
Intrusion. 29
iii
B. The Decision Below Raises
Important Unresolved Questions
Which Have Not Been But Ought
To Be Decided By This Court
‘Concerning the Kind of Investi-
gation and Proceedings a District
Court Must Conduct When It
Becomes Aware of a Potentially
Prejudicial Jury Intrusion. 38
C. The Decision Below Raises
Important Unresolved Questions
Which Have Not Been But Should
Be Decided by This Court Con-
cerning the Effect of Rule 606(b)
Of the Federal Rules of Evidence
On the Scope of a Post-Verdict
Inquiry Into Presumptively
Prejudicial Extraneous Intrusions
Into a Criminal Jury. 45
II. THE DECISION BELOW RAISES IMPORTANT
UNRESOLVED QUESTIONS OF FEDERAL LAW
CONCERNING THE APPLICATION OF THE
FOURTH AMENDMENT IN CIRCUMSTANCES
WHERE A PROLONGED SURREPTITIOUS AND
WARRANTLESS FEDERAL CRIMINAL INVES-
TIGATORY SEARCH OF A SUSPECT'S
PAPERS AND FILES IS CONDUCTED
THROUGH THE AGENCY OF A CIVIL
STATE AUDITOR. . 55
CONCLUSION ; 65
APPENDIX
Order of the U.S. Court of Appeals,
Ninth Circuit, filed May 9, 1983. la
Memorandum Opinion of the U.S. Court
of Appeals, Ninth Circuit, filed
January 18, 1983. 3a
iv
eee ; ‘ oe
ES See me ¥ ae oe Pr sea Te A or ak ge en
Judgment of the U.S. District Court,
D. Oregon, dated June 10, 1981.
Judgment of the U.S. District Court,
D. Oregon, dated June 10, 1981.
Finding and Conclusions As to Motion
For New Trial of the U.S. District
Court, D. Oregon, dated August 14,
1981.
Oral Ruling and Findings of Fact on
Motion for New Trial of the U.S.
District Court, D. Oregon, May 26,
1981.
Oral Ruling and Findings of Fact on
Motion for Severance of the U.S.
District Court, D. Oregon, March 10,
1981.
Oral Ruling and Findings of Fact on
Motion to Suppress of the U.S.
District Court, D. Oregon,
February 9, 1981.
United States Constitutional Pro-
visions
United States Code
Federal Rules of Evidence
Federal Rules of Criminal Procedure
19a
30a
32a
35a
39a
42a
49a
5la
TABLE OF AUTHORTIES
CASES: Page
Dennis v. United States,
339°0.S. 162 (1950) 53
Dept. of Health v.
Florida Nursing Home Assn.,
450 U.S. 147 (1981) 64
Elkins v. United States,
364 U.S. 206 (1960) 59
Gibson v. Clanon,
633 F.2d 851 (9th Cir.),
cert. denied 450 U.S.
1035 (1981) ; 36
Hoffa v. United States,
385 U.S. 293 (1966) 60
Krause v. Rhodes,
470 F.2d 563 (6th Cir.
1977), cert. denied
435 U.S. 924 (1978) 39 ,44,48
Leonard v. United States,
378 U.S. 544 (1964) (per |
curiam) 31
Llewellyn v. Stynchcombe,
609 F.2d 194 (5th Cir.
1980) 47
Lusting v. United States,
338 U.S. 74 (1949) 60-61
Marshall v. Barlows, Inc.,
436 U.S. 307 (1978) 64-65
Mattox v. United States,
146 U.S. 140 (1892) 29-30,49,51,53
vi
Parker v. Gladden,
385 U.S. 363 (1966)
Remmer v. United States,
Page
31,37-38
347 U.S. 227 (1954) 29,30,32,34,35,36,
(Remmer I) 37,39,49,50,51,52,53
Remmer v. United States,
350 U.S. 377 (1957)
(Remmer II)
Smith v. Phillips,
44,49,50
455 U.S. 209 (1982) 31,51,52,53,54,55
(O'Connor, J. concurring)
United States v. Armstrong,
654 F.2d 1328 (9th Cir. 1981),
cert. denied 454 U.S. 1157 and
455 U.S. 926 (1982)
United States v. Bagley,
641 F.2d 1235 (9th Cir.),
cert. denied 454 U.S. 942
(1981)
“wited States v. Bagnariol,
665 F.2d 877 (9th Cir. 1981),
cert. denied U.S.
102 S.ct. 2040 (1982)
United States v. Betner, |
489 F.2d 116 (5th Cir. 1974)
United States v. Birrell,
470 F.2d 113 (2d Cir. 1972)
United States v. Brumbaugh,
471 F.2d 1128 (6th Cir.),
cert. denied 412 U.S. 918
(1973)
vii
33,37
36
33,44,47
39,44
62-63
48
Page
United States v. Bruscino,
687 F.2d 938 (7th Cir. 1982),
reversing en banc 662 F.2d
450 (7th Cir. 1981) 25,33,34,35,49
United States v. Doe,
513 F.2d 709 (lst Cir. 1975) 34
United States v. Duncan,
598 F.2d 839 (4th Cir. 1979),
cert. denied 444 U.S. 871 (1979) 47
United States v. Ferguson,
486 F.2d 968 (6th Cir. 1973) 34
United States v. Fleming,
594 F.2d 598 (7th Cir.),
cert. denied 442 U.S. 931 (1979) 33
United States v. Green,
523 F.2d 229 (2d Cir. 1975),
cert. denied 423 U.S. 1074
(1976) 47
United States v. Greer,
620 F.2d 1383 (10th Cir. 1980) 34,47,54
United States v. Love,
535 F.2d 1152 (9th Cir. 1976) 31
United States v. McKinney,
429 F.2d 1019 (5th Cir.),
cert. denied 401 U.S. 922
(1971) 34
United States v. Miller,
425 U.S. 435 (1976) 56,57,58,59,63
United States v. Payner,
447 U.S. 727 (1980) 58,59,63
viii
United States v. Pfingst,
447 F.2d 177 (2d Cir.),
cert. denied 412 U.S. 941
(1973)
United States v. Robbins, |
500 F.2d 650 (6th Cir. 1974)
United States v. Searp,
586 F.2d 1117 (6th Cir. 1978),
cert. denied 440 U.S. 921
(1979)
United States v. Sellers,
483 F.2d 37 (5th Cir. 1973),
cert. denied 417 U.S. 908
(1974)
United States v. Shapiro,
669 F.2d 593 (9th Cir. 1982)
(Skopil, J. concurring)
United States v. Sublet,
644 F.2d 737 (8th Cir. 1981)
United States v. Tashjian,
660 F.2d 829 (lst Cir.),
cert. denied 454 U.S. 1102
(1981)
United States v. Vasquez,
597 F.2d 192 (9th Cir. 1979)
United States v. Wilson,
534 F.2d 375 (D.C.Cir. 1976)
ix
33
48,54
61,62
60
25,33,36,37
33
32-33
36
47,49
CONSTITUTIONAL AND
STATUTORY PROVISIONS
United States Constitution
Amendment IV
Amendment V
Amendment VI
United States Code
Title 18, § 2
§ 1001
3231
Title 21, 610
676
Title 26, 6206
7203
“A A TB AHN
7206
Federal Rules of Evidence
Rule 606 (b)
Federal Rules of Criminal
Procedure
Rule 8
Page
3,57,58,61,39a
3,39a
3,40a
3,42a
3,4,42a
4
3,5,43a
3,5,44a
5
3,5,46a
3,4,47a
3,24-25,27,46,
47,48,53,54,49a
3,5la
OPINIONS BELOW
The May 9, 1983 Order of the United
States Court of Appeals for the Ninth
Circuit, denying the petitioners' Petition
for Sabeating, is unreported. It is set
forth in the Append. at la. The January 18,
1983 Memorandum Opinion of the Court of
Appeals, affirming the final judgments of
conviction in the District Court, is
unreported. It is set forth in the Append.
at 3a.
The Judgments of Conviction and
Commitment entered by the District Court on
June 10, 1981 are unreported. They are set
forth in the Append. at 10a and 15a.
The Findings and Conclusions as to
Motion For New Trial issued on August 14,
1981 by the District Court is unreported. It
is set forth in the Append. at 19a.
The May 26, 1981 oral ruling and
findings of fact of the District Court
denying petitioners' motion for new trial is
unreported. The reporter's transcript of
this ruling is included in the Append. at
30a.
The February 9, 1981 oral ruling and
findings of fact of the District Court deny-
ing petitioners’ motion to suppress is not
reported. The reporter's transcript of this
ruling is included in the Append. at 35a.
JURISDICTION
The judgment of the United States Court
of Appeals for the Ninth Circuit was entered
on January 18, 1983. A timely petition for
rehearing and suggestion for a rehearing en
banc was denied on May 9, 1983, and this
petition for a writ of certiorari was filed
within 60 days of that date. This Court's
jurisdiction is invoked pursuant to 28 U.S.C.
§1254(1).
CONSTITUTIONAL AND
STATUTORY PROVISIONS INVOLVED
United States Constitution
Amendment IV, Append. at 39a.
Amendment V, Append. at 39a.
Amendment VI, Append. at 40a.
United States Code
Title
Title
Title
Title
Title
Title
18,
18,
21,
21,
26,
26,
Federal Rules of
2, Append. at 42a.
1001, Append. at 42a.
610, Append. at 43a.
676, Append. at 44a.
7203, Append. at 46a.
7206, Append. at 47a.
Evidence
Rule 606(b), Append. at 49a.
Federal Rules of Criminal Procedure
Rule 8, Append. at 5la.
eee ee ge ee ee
ee Ee are oe ee eee mE eee ee ma ee ne eae
STATEMENT OF THE CASE
Petitioners Edward Charapata and Anne
Charapata, husband and wife, were indicted on 3
July 31, 1980 in twenty-one counts by a grand ;
jury in the United States District Court for
the District of Oregon. CR 1.2/ The
original jurisdiction of the district court
was invoked pursuant to 18 U.S.C. §3231.
Counts 1 through 13 of the indictment
charged violations of 18 U.S.C. §1001,
through the making of false statements on
nursing home cost reimbursement statements to —
a government agency. Counts 14 through 17
charged violations of 26 U.S.C. §7206(1) in
oe!
aa
inc
(cont'd next page)
the filing of false United States individual
and corporate income tax returns. Count 18
charged violation of 26 U.S.C. §6206(2) by
aiding and abetting the preparation of a
false United States corporate income tax
return. Count 19 charged a violation of 26
U.S.C. §7203 by failing to file a United
States corporate income tax return. Counts
20 and 21 charged violations of 21 U.S.C.
§610(b) (2) and §676 through the selling and
transportation in interstate commerce of
uninspected meat.
Edward Charapata was charged in each
count of the indictment. Anne Charapata was
charged only in counts 5, 11, 13, 14, 15, 18
and 19.
Two of the counts against Edward
_Charapata, counts 20 and 21 (the meat counts),
_i/ (cont'd) appropriate, the initials of the
person interrogated; and references to the
May 27, 1981 sentencing transcript will be
indicated as "RT Sentencing."
were severed by the district court for sepa-
rate trial which was conducted immediately
preceding trial on the remaining 19 counts.
On February 19, 1981, after a three-day
trial, Edward Charapata was convicted on one
meat count and acquitted of the second count.
RT FMIA 499-500; CR 78.
The trial of both petitioners on the
fraud and tax counts commenced on February
24, 1981, on the second court day after the
conclusion of the meat trial. On March 12,
1981, after a three-week jury trial, Edward
Charapata was convicted on, counts 1 through
18, and Anne Charapata was convicted on
counts 5, li, 13 and 18. Both petitioners
were acquitted of an additional corporate tax
count (count 19). CR 95; CR 96.
Each petitioner was sentenced to a
prison term on a single count of making false
statements on nursing home cost reimbursement
statements to a government agency. Mr.
Charapata was ordered committed for five
years; Mrs. Charapata for three years. They
also received substantial financial
penalties. Judgments, Append. at 10a-18a.
ae Facts Pertaining to Illegal Search Issue
Prior to trial, the petitioners moved to
suppress much of the government's evidence on
the grounds that it was the product of a
six-month-long secret and illegal search of
petitioners’ papers and records. CR 52.
A suppression hearing was conducted, RT Feb.
9, 1981, which revealed that the indictment
resulted from a search conducted by Donald
Lauritsen, a civil auditor with the State of
Oregon Adult and Family Services Division, on
_ behalf of the Inspector General's Office of
the United States Department of Health,
Education and Welfare ("HEW").
In November of 1976, Lauritsen commenced
a routine civil cost audit of several of the
defendants’ nursing homes. RT Feb. 9, 1981
at 75. His audit continued through June or
July of 1977. RT Feb. 9, 1981 at 74, 75.
The petitioners and members of their staff
cooperated in providing whatever records
Lauritsen properly requested. RT Feb. 9,
1981 at 90.
Unknown to petitioners, on April 25,
1977, William Edward Griffith, an officer of
the Inspector General's Office of the United
States Department of Health, Education and
Welfare ("HEW"), officially began his own
warrantless investigation of petitioner. RT
Feb. 9, 1981 at 57, 60. Rather than
contacting the petitioners, he conducted his
investigation surreptitiously by using the
cover of Lauritsen's civil audit from whom he
requested and received all the information he
needed. RT Feb. 9, 1981 at 59, 62-63, 64,
65, 80-81, 87.
Griffith testified that "if I saw an
expenditure and it looked suspicious, Don and
I would talk it over and Don Lauritsen would
expand his audit to include that document."
RT Feb. 9, 1981 at 62. See also CR 52
(Append. thereto at 55, 56, 59). (Griffith's
pretrial testimony that Lauritsen obtained
documents at his request). Griffith.
described his relationship with Lauritsen as
"“piagy-back[ing]," “work[ing] together"
"side-by-side", and one in which they >
discussed on "numerous occasions" information
Lauritsen was obtaining from Petitioners and
made decisions on what they needed "jointly".
R.T. Feb. 9, 1981 at 58, 59, 60, 61-63. CR 52
(Appendix thereto at 54, 55, 61). Griffith
also participated with Assistant United
States Attorney Collins and other officials
of HEW to determine whether or not to conduct
a criminal investigation. CR 52 (Append.
thereto at 58).
Griffith recommended prosecution in
September 1977. RT Feb. 9, 1981 at 50. The
Government concedes that, by January 12,
1978, Griffith's findings and recommendations
were presented to the United States Attorney
and the case was referred to a federal Grand
Jury. Subsequently, a Grand Jury subpoena
was served on Lauritsen by Earl M. Campbell
with whom Griffith had recommended a criminal
investigation. CR 58 at 3, 8. The subpoena
requested production of the very documents
illegally searched and copied by Lauritsen
(and Griffith) during the months before. The
fruits of the six-month long, secret ‘jot
warrantless search of petitioners' papers and
files thus became the basis for the grand
jury investigation and the resulting
indictments.
-10-
The district court denied petitioners'
motion to suppress the evidence seized by
Lauritsen and Griffith on the grounds that
the search was not improperly motivated or
unlawful and petitioners had consented
to it in their provider agreements. RT Feb.
9, 1981 at 104-106; CR 68 (reproduced in
Append. at 36a). The Court of Appeals
affirmed the trial court's ruling on the
ground that petitioners’ had no privacy
interest in the material once it came into
Lauritsen's possession. (Append.at 7a-8a.)
Be Facts Pertaining To The Jury Intrusions
On March 2, 1981, the fifth day of the
medicare/medicaid and tax trial, alternate
juror Alloway was approached by Jack Waggoner
at a bus stop. Waggoner identified himself
as the brother-in-law of Ron Hoevet, one of
the Assistant United States Attorneys who
prosecuted this case. While discussing
=ll-
Hoevet and his official duties, including
Hoevet's previous child pornography
prosecution, Waggoner sub rosa stated the
prosecutor's opinion that the petitioners
were guilty. RT 782.
The next day in an elevator at the
courthouse, juror Alloway reported the
opinion of guilt and its source to Tawny
Balash, a sitting juror. This conversation
was witnessed by a Judge who told Alloway to
report the Waggoner incident to the trial
court.
Alloway reported both the bus
stop conversation with Waggoner and the
unidentified Judge's comment, to the district
court. She was interviewed by the court in
counsel's presence on March 3 and 4, 1981.
In these interviews, Alloway lied when asked
if she had told Balash the substance of the
communication from Waggoner. She stated
a} Je
incorrectly: "I did not relate the
conversation.” RT 784, line 5. Alloway also
failed to inform the court that she had told
Balash that Waggoner was the prosecutor's
brother-in-law. RT 1133.
The district court refused defense
requests to conduct a hearing with Balash
concerning the jury intrusion. The district
court also refused to investigate whether
Alloway had told any other jurors about the
jury intrusion, or to identify and question
the Judge in the elevator. The district
court also refused to admonish Alloway not to
discuss the matter with the jurors. RT
1133-34. Despite repeated defense requests
for an inquiry of the Judge who was present
at the Alloway-Balash conversation, the
district court also failed until after trial
to locate and question that Judge. RT 1669;
RT/J.W. March 31, 1981 at 24.
-13<-
After the trial, the district court identi-
fied and spoke with Judge Skopil of the Ninth
Circuit, who had overheard the Alloway-Balash
discussion, and later put its hearsay version
of its conversation with Judge Skopil on the
record. Ibid. According to the district court,
Judge Skopil reported that he overheard Alloway
inform Balash that she had spoken to a
relative of one of the attorneys about the
case. RT/J.W. March 31, 1981 at 24-25.
Alloway had denied so identifying to Balash
the person who conveyed the prosecutor's
opinion of guilt to her. RT 1133.
Given the conflict between Judge
Skopil's version and Alloway's versions of
the elevator encounter, petitioners urged the
district court to examine Balash. CR 105.
The trial judge then examined both Balash and
Waggoner by telephone, RT/J.W. March 31,
1981; RT/T.B. March 31, 1981.
-14-
Balash admitted that Alloway told her
that a close relative of one of the attorneys
in the case had informed her of his opinion
that the petitioners were guilty. RT/T.B.
March 31, 1981 at 4, 7. In addition, Balash
said that Alloway plainly had been very upset
by the incident and had told several other
jurors about it as well. Id. at 4. This was
the first the trial court and counsel learned
of these facts.
Immediately after the Balash and
Waggoner interviews, petitioners requested a
prompt hearing to interrogate the other
jurors. Four weeks had already elapsed since
the jury intrusions. Mrs. Balash's interview
indicated that her memory of the trial and
the surrounding events was fading. RT/T.B.
March 31, 1981 at 5-10. Time plainly was of
the essence; yet the delays continued.
-15-
On May 1l, 1981, the hearing finally was
held, ten weeks after the jury intrusion.
This six-week delay after the interrogation
of Balash seriously hampered the inquiry
because the jurors had difficulty with
recollection, resulting in a potpourri of
frequently conflicting juror recollections by
the time they were all questioned. RT May
11, 1981 at 13, 21, 24, 32, 42, 47, 50, 57,
63. :
The May 11, 1981 hearing nevertheless
revealed the following striking facts:
(1) Every juror who had deliberated was
aware that an extrajudicial communication to
Alloway occurred. RT May 1l, 1981 at 4, 10,
14, 20-21, 24-25, 29-30, 37, 42, 43, 46-48.
(2) Several jurors recalled the jury
room discussion of the conversation at the
bus stop. Id. at 20-21, 32, 36, 42, 50-51,
60.
et.
i I ia arta ME eal a
§
(3) Other jurors recalled discussion of
the conversation in the elevator. Id. at 25,
39, 47.
(4) Five deliberating jurors believed
that the communication came from the brother
of the prosecutor, from the defense counsel
or from a relative of the defendants. Id. at
29, 32-33, 42, 51-52, 61.
(5) Eight jurors, including six who
deliberated, used serious terms to describe
the incident, i.e. that Alloway was
- “accosted" (Clark), "frightened" (Carlsen),
“quite disturbed" (Saxton), "very scared"
(Jaynes), “startled” (Dobbs), and "upset"
(Daniels, Brumley, Ralash). Id. at 5, 38, 49,
54, 57, 59, 60, 62; RT/T.B. March 31, 1981 at 8.
(6) Every sitting juror and alternate
juror admitted that he or she had violated
his or her oath and the district court's
daily instructions not to discuss the case or
listen to discussions of the case. RT May 11,
1981 at 5-6, 10, 17, 21, 22, 25, 29-30, 32-33
34, 37, 42, 45-46, 48, 52, 54, 57, 60; RT/T.B
March 31, 1981 at 4, 8-9. q
Over the objection of defense counsel,
e.g. RT May 11, 1981 at 2-3, 9, the district
court questioned these jurors, well after
their verdicts had been rendered, about |
whether the extrajudicial communication had '
affected their deliberations. All the jurors
represented that the incident did not affect
the deliberations. Id. at 7, 11, 15, 19-20,
25-26, 30-31, 33-34, 38, 43, 51-52; RT/T.B.
March 31, 1981 at 10.
However, in addition to juror Balash,
juror Jaynes (who later was excused) recall
that Alloway had said that Waggoner had
stated that the petitioner were "just pla[i]
guilty." RT May 1l, 1982 at 48.
Juror Frentess, who deliberated,
; remembered that it was "very possible" that
Beconer had said something to Alloway about
- guilt or innocence. Id. at 53. She also
_ recalled that he was the brother or
_ brother-in-law of one of the attorneys in the
case. Id. at 50-53.
Juror Dobbs, who also deliberated,
recalled that Waggoner had made "a rather
_ pointed statement” (Id. at 42) to Alloway
that "the Charapatas were guilty or were not
guilty" (Id. at 44-45). She also recalled
: that he was "related to someone pertaining to
the Charapatas" or "possibly could be one of
the Charapata's attorneys." Id. at 42-43.
Her recollection on this, however, was not
Clear. And, when she testified in May, Dobbs
could not recall whether the statement was of
guilt or innocence (Id. at 44-45), although
she did know which in March when she learned
of the statement (Id. at 45). She had since
then “put it out of [her] mind" (Id. at
42-43) as had juror Twedt who "blocked [what
she heard] out" after hearing of the incident
with Waggoner (Id. at 17).
Juror Dobbs remembered, however, that
Alloway made her statement about the incident
and the pointed statement of guilt or
innocence in the jury room on the morning
after the incident, when most of the jurors
were assembled. According to her,
It became a general discussion.
Everyone was startled [that]
anything like this would evolve
-- it went around -- people
talked about it for a few minutes.
Id. at 49 (Emphasis added).
Juror Dobbs admitted she too was startled.
Id. at 46.
The district court denied petitioners’
motion for a new trial on the grounds that
the jury intrusion was not prejudicial. From
the bench the district court made findings
-28-
that the jurors were truthful in describing
the incident as as not affecting their
deliberations. RT Sentencing at 8-9.
(Reprinted in Append. at 30a-3la). Two
months later, well after the notices of
appeals had been filed, the district court
entered formal findings of fact to support
its denial of the petitioners' motion for a
new trial. The district court's written
findings attempt to minimize the importance
of the jurors' own statements concerning the
effect of the intrusions on their
deliberations and, with the advantage of
hindsight, added additional findings in
support of its conclusion that there was "no
reasonable possibility" that the incident
could have tainted the verdict. CR 135-36;
(Reprinted in Append. at 19a.)
The Court of Appeal's brief memorandum
opinion conceded that a more thorough
@2ie
examination of the jury intrusion or
misconduct would have been preferable.
Nevertheless, the Court of Appeals affirmed
the district court's finding that the jury's
exposure to extrinsic material was "harmless
beyond a reasonable doubt," (see Append. at
5a) relying upon the following factors:
(1) The jury had only a vague
recollection of the incident at the time of
the post-trial examination;
(2) The extrajudicial communication was
expressed in the form of an opinion rather
than a statement of objective fact;
(3) The district court gave a daily
instruction to the jury not to discuss the
case or expose themselves to extrinsic
material and to consider only the evidence
produced at trial; and
(4) There was strong evidence of guilt.
The Court of Appeals thus ignored a
222s
number of critical facts. For example:
(1) The vagueness of juror recollection
almost certainly resulted from the district
court's failure to conduct a prompt
investigation and to take protective measures
once the intrusion was brought to its
attention;
(2) After verdict, the district
court improperly inquired into the subjective
effect of the juror intrusion on the juror's
deliberations and decision (See Rule 606(b)
Fed. R. of Ev.), and relied upon the results
of that testimony for its decision;
(3) The jurors by their own admissions
had disregarded the District Court's
instructions not to discuss the case or to
expose themselves to extrinsic material;
(4) The intrusion was of the gravest
sort going to the ultimate issue of guilt or
innocence and was intrinsically prejudicial
&23<
because it involved a sub rosa expression of
the prosecutor's belief in the petitioners'
guilt.
REASONS FOR GRANTING THE WRIT
I. THIS COURT SHOULD GRANT THE PETITION FOR
WRIT OF CERTIORARI IN ORDER TO ADDRESS
SERIOUS ISSUES OF CONSTITUTIONAL LAW THAT
HAVE NOT BEEN, BUT SHOULD BE RESOLVED,
AS WELL AS CONFLICTS AMONG THE CIRCUITS,
CONCERNING INTRUSION OF DAMAGING MATTERS
INTO CRIMINAL JURY DELIBERATIONS.
In this case a criminal jury was infected
sub rosa by extrinsic matter going to the
ultimate issue of guilt or innocence. An
extrinsic opinion of guilt, attributed to the
prosecutor, was secretly introduced to the
jury. This prosecutor opinion of guilt was
set at large among the "startled" jurors like
a loose caanon.
Under prior decisions of this Court, a
heavy presumption of prejudice plainly
attaches to such an intrusion. Partly relying
on improper evidence (See Rule 606(b) Fed. R.
-24-
Ev.) and partly relying on the Government's
contention that strong evidence of petitioner's
guilt outbalanced or eliminated the presumption
of prejudice, the lower courts refused to
vacate the convictions that were tainted by
this gross intrusion. No decision of this
Court allows the presumption of prejudice to
be overridden by such a showing. Indeed, the
decisions of the courts below are part of a
dangerous trend to eliminate the presumption
of prejudice as a standard for use in federal
jury intrusion cases. See, e.g., United
States v. Bruscino, 687 F.2d 938 (7th Cir.
1982), (en banc); United States v. Shapiro,
§69 F.2d 593, 602-605 (9th Cir. 1982)
(Skopil, J. concurring).
As will appear below, this case thus
provides this Court with an appropriate
vehicle to treat with and clarify the law of
jury intrusions with respect to the presumption
~25-
of prejudice. Other reasons exist for this
Court to review the instant case.
By the time the district court finally
acted, weeks after the intrusion, it was no
longer possible to determine accurately its
effect on the jury. This case thus presents
a particularly egregious injustice because
the district court's refusal to investigate
promptly exacerbated the sary taint by
allof#ing rumors and suspicion to spread and
fester and by rendering the subsequent
evidentiary investigation ineffective due to
the passage of time. The district court's
own actions, therefore, significantly
increased the prejudice to the petitioners.
Although it conceded the district court had
not properly handled the intrusions, the
Court of Appeals condoned the district
court's errors and entirely ignored the trial
court's own role in enhancing the tainting of
-26-
the jury. Its summary affirmation of the
district court's ruling on the jury intrusion
issue reflects the considerable confusion
which already exists concerning the proper
procedure for handling incidents of this kind.
In addition, both the lower courts
ignored Rule 606(b) of the Federal Rules of
Evidence in treating the jury intrusion.
When the district court finally interrogated
each member of the jury, many weeks after the
verdict, it specifically asked each juror
over defense objection, whether the incident
affected the jurors' deliberations and
verdict, and relied upon their statements to
the contrary to hold the jury intrusion
harmless. This inquiry is one example of the
confusion existing among the lower federal
courts concerning the rropriety under Rule
606(b) of post-verdict inquiries into the
subjective effect of extraneous influences on
-37-
the jury. Although the district court's
error was brought squarely to the attention
of the Court of Appeals, the Court of Appeals
simply ignored the issue.
Both lower courts handled the jury
intrusion question in this case in a manner
which has wrought considerable injustice to
the petitioners and reflects the confusion
which exists in this area of the law. Essen-
tially, both courts ignored controlling legal
standards and fair procedure to accomplish
their end of affirming the convictions. Such
a result-oriented approach cannot possibly
square with our legal system's need for
principled decision-making when treating
issues that go to the very heart of the
fairness of the criminal justice system.
Guidance from this Court is needed to
clarify and reaffirm the existence of the
presumption of prejudice and prevent the kind
-28-
of injustice which results in this case from
a district court's mishandling of this
sensitive subject.
A. The Decision Below is Inconsistent With
Well-Established Authority Of This Court
And Evidences Widespread Confusion Among
The Circuits Concerning Proper Applica-
tion Of The Strong Presumption Of
Prejudice That Applies Whenever There Is
A Potentially Damaging Jury Intrusion.
The Court of Appeals recognized that an
improper intrusion of damaging extraneous
communication into the jury had occurred, as
did the district court. In summarily
affirming the district court's conclusion
that the intrusion was "harmless", the Court
of Appeals also followed the district court's
lead in ignoring entirely this Court's
well-established constitutional doctrine that
a “presumption of prejudice” attaches
whenever extraneous influences intrude upon
the jury. See Remmer v. United States, 347
U.S. 227, 229 (1954) (Remmer I); Mattox v.
-29-
te
ae
United States, 146 U.S. 140, 150 (1892). The
disposition of this case is an example of a
recent dangerous trend among the circuits
particularly in the Ninth and Seventh
circuits, weakening significantly
this Court's rule that:
In a criminal case, any private
communication, contact, or tampering,
directly or indirectly, with a juror
during a trial about the matter pending
before the jury is, for obvious reasons,
deemed presumptively prejudicial...
The presumption is not conclusive; but
the burden rests heavily upon the
Government to establish, after notice to
and hearing of the defendant, that such
contact with the juror was harmless to
the defendant.
Remmer I, 374 U.S. at 229.
| This Court should review the instant
case 0 provide the lower courts with
guidance on the question of the proper
application of that presumption of prejudice.
For example, petitioners submit that the
presumption of prejudice is especially
-30-
strong when the intrusion into the jury is by
damaging matter going to ultimate issues in
the case, e.g., guilt or innocence. A
different standard well may be appropriate
when the jury intrusion involves peripheral
matters. Compare, e.g., United States v.
Love, 535 F.2d 1152 (9th Cir. 1976) (a
juror's bus stop conversation with defendant
was, as defendant conceded, entirely innocent
and the rest of the jury knew of its
innocuous nature). The offense to due process
is all the more egregious when the sub rosa
extrinsic opinion of guilt that infects the
jury is attributed to the prosecutor. See,
e.g., Parker v. Gladden, 385 U.S. 363 (1966)
(opinion of guilt expressed by bailiff);
Smith v. Phillips, 455 U.S. 209, 221-224
(1982) (O'Connor, J. concurring, including
discussion of Leonard v. United States, 378
U.S. 544 (1964) (per curiam) (prospective
-3l-
jurors who heard trial court announce
defendants' guilty verdict in the first trial
"automatically disqualified from sitting on a
second trial on similar charges.")
In addition, this Court should review
this case to resolve the conflict among the
Circuits concerning the viability and proper
application of the "presumption of prejudice"
standard, especially when the jury intrusion
involves central or ultimate issues in the
case.
The decisions of the courts below are but
one example of a recent move away from
adherence to the "presumption of prejudice”
standard.
Many lower courts cite Remmer and
acknowledge the "presumption of prejudice”
standard, but apply it in such a weak and
loose fashion that it has become meaningless.
See e.g. United States v. Tashjian, 660 F.2d
@32<
829 (lst Cir.) cert. denied 454 U.S. 1102
(1981); United States v. Sublet, 644 F.2d
737 (8th Cir. 1981); United States v.
Fleming, 594 F.2d 598 (7th Cir.) cert. denied
442 U.S. 931 (1979); United States v.
Pfingst, 477 F.2d 177 (2d Cir.) cert. denied
412 U.S. 941 (1973). Other courts
increasingly ignore the presumption and apply
a looser, more amorphous "continuum"
approach. See e.g. United States v.
Bruscino, 687 F.2d 938 (7th Cir. 1982) (en
banc); United States v. Shapiro, 669 F.2d
593, 602-605 (9th Cir. 1982) (Skopil, J.
concurring); United States v. Bagnariol, 665
F.2d 877, 885-887 (9th Cir.) cert. denied
U.S. , 102 S. Ct. 2040 (1982); United
States v. Armstrong, 654 F.2d
1328, 1332 (9th Cir.) cert. denied 454 U.S.
1157 and 455 U.S. 926 (1982).
On the other hand, the First, Fifth,
~33«
Sixth and Tenth Circuits apply considerably
more rigid rules which more vigorously
enforce the Remmer presumption of prejudice.
See, e.g., United States v. Greer, 620 F.2d
1383, 1385 (10th Cir. 1980); United States v.
Doe, 513 F.2d 709, 711-12 (lst Cir. 1975);
United States v. Ferguson, 486 F.2d 968, 971
(6th Cir. 1973); United States v. McKinney,
429 F.2d 1019, 1026 (5th Cir.) cert. denied
401 U.S. 922 (1971).
The most dangerous implications of the
trend away from the "presumption of prejudice”
are revealed in a recent Seventh Circuit
decision involving the intrusion of two
inflammatory and damaging pieces of inadmis-
sible information into the jury room during
trial. See United States v. Bruscino, 687 F.2d
938 (7th Cir. 1982) reversing en banc 662 F.2d
450 (7th Cir. 1981).
The en banc opinion set out the Seventh
Circuit's general approach to the standards
=-34-
for passing on jury intrusions as follows:
A criminal defendant in our system has
a right to be tried on the basis of the
evidence admitted at his trial, and this
right may be violated if the jury gets
access to extra-record evidence...
But as with so much in our system of
criminal justice, this is the statement
of an ideal rather than of a standard
for when a defendant is entitled to a
new trial. For that there has to be
some showing of prejudice.
Id. at 940 (emphasis added). The en banc
opinion goes on to describe the district
court's analysis of the prejudice issue and
concludes:
{t]he district court did not abuse
its discretion in concluding that
it was highly unlikely that the jury
had been prejudiced...
Id. at 942 (emphasis added). Instead of
applying a presumption of prejudice as
required by Remmer, the Seventh Circuit thus
explicitly puts the burden on the defendant
rather than the government as is required by
Remmer.
-35-
The Ninth Circuit also has been in the
forefront of the movement away from Remmer.
Many recent Ninth Circuit decisions do not
even cite Remmer or acknowledge that this
Court requires explicit application of a
presumption of prejudice when extraneous
influences intrude into the jury. See e.g.
United States v. Bagley, 641 F.2d 1235,
1240-41 (9th Cir.) cert. denied 454 U.S. 942
(1981); Gibson v. Clanon, 633 F.2d 851 (9th
Cir.) cert. denied 450 U.S. 1035 (1981);
United States v. Vasquez, 597 F.2d 192 (9th
Cir. 1979).
Only where the Ninth Circuit is
particularly moved by the circumstances of
a case is the Remmer presumption of prejudice
applied. See United States v. Shapiro, 669
F.2d 593, 599 (9th Cir. 1982) (member of the
jury attempted to extort money from the
defendant.) Otherwise the courts in the
-36-
Ninth Circuit either blithely ignore Remmer,
as did the courts below, or explicitly
question the propriety of applying the Remmer
presumption analysis, see United States v.
Shapiro, 669 F.2d at 603-05 (Skopil, J.,
concurring); United States v. Armstrong, 654
F.2d 1328, 1332 (9th Cir. 1981).
Under this loose continuum approach, if
a defendant appears to the reviewing court to
be guilty it concludes that he received a
fair trial, giving only lip service to the
presumption of prejudice. Only if the facts
of the case are particularly egregious do
the courts actually apply the constitution-
ally required presumption of prejudice:
See e.q., United States v. Shapiro, 669 F.2d
593 (9th Cir. 1982).
Under the Ninth Circuit's approach, for
example, Parker v. Gladden, 385 U.S. 363
«37
(1966), the facts of which are only
superficially different from those of the
instant case, was wrongly decided and should
be overruled.
Plainly this Court should review this
case to clarify the law of jury intrusion,
and to instruct the lower courts as to the
meaning and application of the presumption of
prejudice, when there is a serious jury
intrusion going to ultimate issues in the
case.
B. The Decision Below Raises Important
Unresolved Questions Which Have Not
Been But Ought To Be Decided by This
Court Concerning the Kind of Investi-
gation and Proceedings a District Court
Must Conduct When It Becomes Aware of a
Potentially Prejudicial Jury Intrusion.
In its opinion in the instant case,
the Court of Appeals acknowledged that the
district court's treatment of the jury
intrusion was flawed. Nevertheless, it
chose to forgive the district court's highly
~36~-
prejudicial failings in order to apply its
improper continuum approach and affirm the
conviction. The Court of Appeal's continuum
approach to jury intrusion law thus allowed
it summarily to affirm the district court's
finding of harmlessness without seriously
addressing the procedural deficiencies
and tardiness of the district court's evi-
dentiary investigation. Compare Krause v.
Rhodes, 570 F.2d 563, 569-70 (6th Cir. 1977);
United States v. Betner, 489 F.2d 116, 119
(5th Cir. 1974). See also Remmer v. United
States, 347 U.S. 227 (1954), where this
Court established minimal parameters for the
process to be followed by trial courts in
addressing proven jury intrusions.
In the instant case, the trial court's
refusal to conduct a timely investigation of
the jury intrusion precluded an accurate
assessment of its effect on the jury, and
-39-
lost all opportunity to cure or cauterize
that intrusion.
The trial court's errors began on March
3-4,1981 when Alloway informed the court of
her encounter with Waggoner. The district
court failed, despite petitioners’ request:
(1) to ask Alloway if she had discussed the
incident with any jurors other than Balash;
or (2) to admonish Alloway not to discuss the
incident with the other members of the jury;
or (3) to seek out the judge who
overheard Alloway telling Balash about her
encounter with Waggoner and whose version of
the Alloway-Balash conversation; or (4) to
interview Balash promptly; or (5) to
investigate the other jurors' exposure to the
extrinsic material; and (6) prematurely
concluded that Alloway would be unbiased. See
RT 784-85; RT 1133-34; RT 1669.
Had the district court promptly taken
-40-
the right steps, it would have both learned
the full extent of the jury intrusion and
been able to take available measures to
minimize or, if possible, cure the intrusion.
The errors in the trial court inves-
tigation were compounded when the inquiry
at last proceeded once the conflict between
Judge Skopil's and Alloway's accounts of the
Alloway-Balash conversation was revealed,
See CR 105. The ensuing March 31 telephone
inquiry of Balash and Waggoner was not only
belated but also was improperly conducted.
For example, the court asked Balash repeatedly
about the subjective effect of the information
she heard from Alloway on her deliberations
_ (RT/T.B. March 31, 1981 at 10); relayed
Alloway's entire version of the incident tc
Waggoner and Alloway before questioning them
(RT/J.W. March 31, 1981 at 3-4; RT/T.B.
March 31, 1981 at 2-3); and did not question
-4l-
Waggoner about his admitted consultation with
Assistant United States Attorney Hoevet prior
to his interview (RT/J.W. March 31, 1981 at
2, 14)
In her telephone interview, Balash made
the court and counsel aware for the first time
that Alloway had also discussed the jury in-
trusion in the jury room with all the jurors
present. RT/T.B. March 31, 1981 at 9. At this
point, the trial judge acknowledged that he
was remiss in not questioning Balash earlier.
RT/T.B. March 31, 1981 at 16. He also stated
his understanding, at last, that time was of
the essence, "simply because the memories
will grow dimmer as time passes." RT/T.B.
March 31, 1981 at 16. Nevertheless, interro-
gation of the remaining jurors did not occur
until six weeks later (ten weeks after the
Waggoner incident), on May ll, 1981.
The trial court's investigation was
-42-
further mismanaged during its belated
examination of the remaining jurors. Over-
ruling defendants' continuing objection (See
RT May 31, 1981 at 2-3) the court
asked all jurors about the subjective effect
of the incident on their, and the other jurors'
deliberations. RT May 1l, 1981 at 7, ll, 15,
19-20, 25-26, 30-31, 33-34, 38, 43, 51-52.
On May 26, 1981, the court denied
defendants' motion for a new trial on the
basis of the jury intrusion. The court's
decision rested heavily on the jurors'
subjective representations that Waggoner's
"remark played no part whatsoever in their
decision." RT Sentencing at 8-9. (Append.
at 30a-3la). The trial court attempted to
remedy the deficiencies in its proceedings
and ruling by entering formal findings of
fact and conclusions of law, on August 14,
1981, well after the notice of appeal was
filed. See Append. at 19a.
Where, as here, the trial court's
inquiry is tardy, factually incomplete and
legally defective, its conclusions do not
deserve the same deference as do the con-
clusions resulting from a prompt and thorough
investigation. See, e.g., Krause v. Rhodes,
supra, 570 F.2d at 568-70; United States v.
Betner, supra, 489 F.2d at 119. Cf. Remmer
v. United States, 350 U.S. 377 (1957), dis-
trict court proceedings after remand deemed
inadequate, hence this Court reviewed the
evidence as though de novo. See also,
comments in United States v. Bagnariol,
665 F.2d 877, 887 (9th Cir. 1981).
This case provides the Court with an
unusual opportunity to clarify the require-
ments as to timeliness and scope of trial
court investigation of a proven jury intrusion.
-44-
c. The Decision Below Raises Important
Unresolved Questions Which Have Not Been
But Should Be Decided By This Court
Concerning The Effect of Rule 606(b) of
the Federal Rules of Evidence On the
Scope of a Post-Verdict Inquiry Into
Presumptively Prejudicial Extraneous
Intrusions Into A Criminal Jury.
When the district court finally con-
ducted its tardy inquiry into the jury intru-
sions, it repeatedly asked each juror, over
vigorous objections by petitioners, e.g.
R.T. May 11, 1981 at 2-3, whether the extra-
judicial communication affected their deliber-
ations. In its oral ruling on the motion for
a new trial, the district court explicitly
relied upon the jurors' statements that the
incident did not affect their verdict, see
Append. 30a-3la.
In affirming,the Court of Appeals stressed
the fact that the post-trial examination of
the jurors revealed that the incident did not
affect them. See Append. at 5a. The Court
a§S~
of Appeals, like the district court, thus
entirely ignored Federal Rule of Evidence
606(b), which was extensively briefed to
it.2/
Federal Rule of Evidence 606 (b)
prohibits the kind of inquiry conducted by
the District Court in this case. Most of
lower federal courts have concluded that Rule
606(b) flatly prohibits post-verdict juror
2/ The rule provides as follows:
*ypon an inquiry into the validity of a
verdict or indictment, 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 his or any other juror's mind
or emotion as influencing him to assent
to or dissent from the verdict or indictment
or concerning his 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 his
affidavit or evidence of any statement
concerning a matter about which he would be
precluded from testifying be received —_
these purposes.”
-46-
testimony about the subjective effects of
extraneous information on the jury's
deliberation. See, e.g. United States v.
Greer, 620 F.2d 1383, 1385 N. 2 (10th Cir.
1980); Llewellyn v. Stynchcombe, 609 F.2d
194, 196 (5th Cir. 1980); United States v.
Duncan, 598 F.2d 839, 866 (4th Cir. 1979)
(cert. denied 444 U.S. 871 (1979); United
States v. Wilson, 534 F.2d 375, 378 (D.C.
Cir. 1976); United States v. Green, 523 F.2d
229, 235 (2d Cir. 1975) cert. denied 423
U.S. 1074 (1976).
The Ninth Circuit itself appears to have
adopted this interpretation of Rule 606(b).
See United States v. Bagnariol, 665 F.2d 877,
884-85 (9th Cir. 1981). However, in the
instant case, despite extensive briefing of the
subject, Court of Appeals ignored Rule 606 (b)
and its previous interpretation of it.
oi Tan
This is yet another example of the Ninth
Circuit's continuum approach to jury intrusion
cases.
Other courts, have consistently ex-
pressed confusion as to whether Rule 606(b)
precludes post-verdict inquiry into sub-
jective effects of intrusion, see Krause v.
Rhodes, 570 F.2d 563, 570 (6th Cir. 1977),
cert. denied 435 U.S. 924 (1978), or have per-
mitted reliance on post-verdict subjective
juror testimony, see United States v. Robbins,
500 F.2d 650, 653 N. 5 (6th Cir. 1974);
United States v. Brumbaugh, 471 F.2d 1128,
1129 (6th Cir.) cert. denied 412 U.S. 918 (1973).
This difference in approaches probably
results because a number of this Court's
decisions give confusing and contradictory
indications as to the propriety of such a
post-verdict inquiry.
Most of the lower courts construe Rule
606(b) as consistent with this Court's long-
-48-
standing common law rule that:
A juryman may testify to any facts
bearing upon the question of the
existence of any extraneous influence,
although not as to how far that
influence operated upon his mind.
Mattox v. United States, 146 U.S. 140, 149
(1892). See e.g. United States v. Bruscino,
687 F.2d 938, 941 (7th Cir. 1982) (en banc);
United States v. Wilson, 534 F.2d, 375, 378.
(D.C. Cir. 1976).
The holding of Mattox appears to be incon-
sistent with a literal reading of this Court's
opinion in the cases of Remmer v. United States,
347 U.S. 227, 229-30 (1954)(Remmer I), and
Remmer v. United States, 350 U.S. 377, 379
(1956) (Remmer II).
In Remmer, a criminal juror was informed
by a third party that the juror could profit
by bringing in a verdict favorable to the
defendant. Remmer v. United States, supra,
347 U.S. at 228. The district court denied a
-49-
motion for a new trial without a hearing and
was affirmed by the Court of Appeals on the
grounds that the defendant had not shown pre-
judice. Id. at 229. This Court vacated the
judgment and ordered a remand to the district
court for a hearing to determine "the circum-
stances, the impact thereof upon the juror,
and whether or not it was prejudicial.” Id,
at 230. (emphasis added). When the case
came before this Court for the second time,
the Court reiterated that it was concerned
with the “impact” of the incident on the juror.
Remmer v. United States, 350 U.S. 377, 379
(1959). This Court's use of the term, “impact,'
in its Remmer opinions strongly implies that
a district court conducting any post-trial
hearing in response to allegations of jury
intrusion, should inquire into the subjective
effect of such extraneous influences on the
jury.
-50-
Although the Court's opinion in Remmer I
cites Mattox as to its holding that the
burden is on the Government to establish the
harmlessness of jury intrusions, it does not
acknowledge the other holding of Mattox which
prohibited inquiry into the subjective
"impact" of extraneous influences on the
jury. Remmer v. United States, supra, 347
U.S. at 229. Thus, this Court's Mattox and
Remmer decisions give conflicting directions
as to the proper scope of a post-verdict
Remmer hearing into allegations of jury
intrusion.
Recently, this Court rendered a decision
on the related issue of implied juror bias
which further confused the qicetibn as to the
effect of Rule 606(b) on post-verdict hearings
into allegations of jury misconduct or intrusion.
See Smith v. Phillips, 455 U.S. 209 (1982).
Smith, involved habeas review of a state court
criminal conviction by a jury a member of
who during trial submitted an employment
application to the office that was
prosecuting the case.
This Court addressed the issue of whether
due process imposes a conclusive presumption
of bias in such circumstances. This Court
held that due process does not require juror
bias to be imputed. It only requires a
hearing in which defendants can show actual
bias. Id. at 217.
Although Smith concerned allegations of
juror bias rather than allegations of extra-
neous influence on the jury, and, therefore,
the Remmer presumption of prejudice did not
apply, the Court quoted Remmer I to describe
the kind of hearing which would satisfy due
process in cases involving allegations of
jury partiality. Id. at 215-16. The Court
specifically quoted Remmer's direction to the
trial court to determine, among other things,
-52-
the “impact” of the impropriety upon the jury.
In a footnote, the Court specifically
addressed the question of the role of subjective
juror testimony in such "Remmer" type hearings,
and relying on language from Dennis v. United
States, 339 U.S. 162, 171 (1950), indicated
that such subjective juror testimony is both
permissible and not suspect. Dennis, however,
involved pre-trial voir dire of jurors rather
than post-verdict impeachment testimony by
jurors, as was involved in Smith and is involved
in the instant case. Yet, in Smith ,the Court
cited Dennis as though it were not distinguish-
able from Smith on this basis. Id. Moreover,
nowhere in its opinions does the Court address
the apparent inconsistency of this approach
with Mattox, nor the implications of the Smith
dictum in circumstances, unlixe those in Smith
(a habeas review of a state conviction), where
Rule 606(b) applies. Since the Mattox rule
parallels Rule 606(b), the Smith opinion further
exacerbates the already existing confusion
and conflict among the lower courts as to
whether it is proper to inquire after verdict
into subjective effects on the jury's delibera-
tions.
Indeed, the case at bar is but one
example of the considerable confusion among
the lower courts concerning the effect of
‘Rule 606(b) on post-trial inquiries into jury
intrusions. See United States v. Greer, 620
F.2d 1383, 1385 (10th Cir. 1980). There are
explicit conflicts among the circuits on this
question. Compare e.g. United States v.
Robbins, 500 F.2d 650, 653 N.5 (6th Cir.
1974) (inquiry permitted) with, e.g., United
States v. Greer, 620 F.2d 1383, 1385 N.2
(10th Cir. 1980) (inquiry proscribed). And,
the majority of the circuits apply Rule of
Evidence 606(b) to prohibit the kind of
-54-
is ay
subjective juror testimony which recent dicta
of this Court in Smith has implicitly
encouraged. Review should be granted in this
case where such subjective testimony was
elicited and relied upon by the trial court,
to enable this Court to address this issue
definitively and provide clear guidance to
the lower courts on this recurring problem.
II. THE DECISION BELOW RAISES IMPORTANT
UNRESOLVED QUESTIONS OF FEDERAL LAW
CONCERNING THE APPLICATION OF THE FOURTH
AMENDMENT IN CIRCUMSTANCES WHERE A
PROLONGED SURREPTITIOUS AND WARRANTLESS
FEDERAL CRIMINAL INVESTIGATORY SEARCH OF A
SUSPECT'S PAPERS AND FILES IS CONDUCTED
THROUGH THE AGENCY OF A CIVIL STATE
AUDITOR.
The district court denied petitioner's
motion to suppress all evidence seized as a
result of the search conducted by Lauritsen
and Griffith,on alternative grounds. First,
the Court held there was no evidence that the
motive for the state auditor's investigation
was to gain evidence for a federal criminal
=85<
prosecution or that the state auditor's
cooperation with the federal agent was |
unlawful, even though it found that "some-
where along the way it turns from a straight
audit into a criminal prosecution..."
RT Feb. 9, 1981 at 104-06, Append. at
35a-37a. Second, the district court held
that petitioners “quite clearly consented
validly and knowingly and intelligently in
the provider agreements to the kind of
examination had and furnishing of records
that has occurred in this case." RT Feb. 9,
1981 at 106, Append. at 38a.
The Court of Appeals affirmed the district
court on the grounds that "[a] defendant has
no privacy interest in material in the pos-
session of a third person. United States v.
Miller, 425 U.S. 435 (1976)" (Append.
at 6a). The Court of Appeals' reliance on
United States v. Miller, 425 U.S. 435 (197€),
-56-
to condone a six-month long secret warrant-
less federal criminal search under the
guise of a lengthy civil audit of books and
records raises an important issue of federal
law which has not been, but should be settled
by this Court.
In Miller, this Court considered the
Fourth Amendment rights of a defendant
challenging the use in a federal prosecution
of bank records which federal agents procured
by service of subpoenas duces tecum on two
banks. The Court held that defendant's
motion to suppress had been correctly denied
since the defendant possessed no Fourth
Amendment interest that could be vindicated
by a challenge to the subpoenas. The Court
reasoned that the documents subpoenaed and
produced were "the business records of the
banks," that the documents contained “only
information voluntarily conveyed to the banks
-57-
and exposed to their employers in the
ordinary course of business", "(t]he lack of
any legitimate expectation of privacy
concerning the information kept in bank
records was assumed by Congress in enacting
the Bank Secrecy Act" and "the Fourth
Amendment does not prohibit the obtaining of
information revealed to a third party, and
conveyed by him to Government authorities,
even if the information is revealed on the
assumption that it will be used only for a
limited purpose and the confidence placed in
the third party will not be betrayed." 425
U.S. at 440, 442-43.
Subsequently, in United States v.
Payner, 447 U.S. 727 (1980), this Court cited
Miller in holding that a defendant lacked
standing under the Fourth Amendment to
suppress bank records illegally seized from a
third party -- a bank vice-president -- even
-58-
though federal agents approved the plan of a
private investigator retained by a federal
agent to steal the documents". 447 U.S. at
731-32.
The facts of this case are clearly
distinguishable from those of either Miller or
Payner. Significantly, this case does not in-
volve the mere exertion of federal control over
documents lawfully within the possession of a
true third party. In this case, a federal
officer conducted a secret search of documents
in defendants' possession through his agent,
who pretended. simply to be conducting a civil
audit of a closely regulated business but was
actually pursuing a federal criminal investiga-
tion and prosecution without a warrant and without
defendants’ consent. See Elkins v. United States,
364 U.S. 206 (1960) (repudiating the "silver
platter" doctrine). This improper search led
to the production of evidence which was the basis
-59-
for the criminal prosecution that followed.
By defining the state auditor as a third
party, the Ninth Circuit's decision
implicitly finds that the state auditor was
not a federal agent. This determination is
inconsistent with the standard applied in
Hoffa v. United States, 385 U.S. 293, 295-99
(1966), in which a private individual who
agreed to become an informant and obtain
information for the government was deemed a
government agent.
The Fifth Circuit has held that a
federal search occurred when a federal
informant and a federal officer participated
in certain phases of a search, United States
v. Sellers, 483 F.2d 37, 42 N. 4 (5th Cir.
1973), cert. denied, 417 U.S. 908 (1974).
This Court has held that a search is a search
by a federal officer "if he had a hand in
it," Lusting v. United States, 338 U.S. 74,
-60-
78-79 (1949).
The holding of the Ninth Circuit in this
case reflects the unsettled nature of the law
governing cooperation between civil regulatory
agents and federal criminal agents. The
tension between the government's interest in
permitting and encouraging cooperative law
enforcement efforts between state officers
and federal agents and between civil and
criminal investigations and the requirements
of the Fourth Amendment presents an issue
similar to that addressed by the Sixth
Circuit in United States v. Searp, 586 F.2d
1117 (6th Cir. 1978), cert. denied 440 U.S.
921 (1979). Searp, concerned the question of
whether evidence seized under a state warrant
in conformity with state law, but in
violation of federal statutory procedures, is
admissible in federal court. The Sixth
Circuit noted that “the temptation to federal
-61-
officers to take advantage of more lenient or
more flexible state procedures in the course
of conducting a federal investigation is
still a reality" and that “when a federal
officer has participated in a search in an
official capacity, his or her conduct, and
thus the legality of the search, is to be
judged by federal standards” 586 F.2d at
1121. The federal character of the search
‘ and seizure thus is not affected by the fact
that an investigation search and seizure are
jointly undertaken by state and federal
officers. Id.
In line with this approach, the Second
Circuit has held that a search by federal
officers violated defendant's Fourth
Amendrent rights when federal agents failed
to obtain a search warrant to examine
documents taken lawfully into custody by city
police. United States v. Birrell, 470 F.2d
; é
ei” ‘
a ;
FF Tee 4553 Rok ye a ‘+ ie Fre oe "- oe ge Fak
Me. CS RN eee rs aa hin 8 ~ poe fa T'S PIRES ROS, ONE
113 (2d. Cir. 1972). The Second Circuit
ruled that "a search by law enforcement
officers of another sovereign for a different
purpose could not be made without a warrant,"
470 F.2d at 117, and reversed the convictions
with instructions to dismiss the indictment.
Neither Miller nor Payner provide
guidance to the lower courts on the question
of how the protections of the Fourth
Amendment apply in circumstances such as
those of the instant case, involving secret
Federal criminal investigations through an
agent who obtains consent to examine
defendants' records under the guise
of conducting a civil audit for a state
agency. Just as federal criminal law
enforcement officers may find it tempting to
take advantage of more lenient state criminal
law procedures, this case shows that federal
criminal investigators will secretly use a
=63<
state civil audit for the purpose of pursuing
a criminal investigation and prosecution to
deprive defendants of the protection of the
Fourth Amendment.
The alternative ruling of the trial
court was that defendants' consent to the
federal criminal investigation search and
seizure arose from the Medicare and Medicaid
provider agreements. The Court of Appeals
did not explicitly rely upon nor reject this
conclusion. To the extent that the decision
' of the Court of Appeal may be justified by
this alternative holding, its decision is
fundamentally inconsistent with Dept. of
Health v. Florida Nursing Home Assn., 450
U.S. 147 (1981), in which this Court held
that such a provider agreement could not be
the basis upon which to conclude waiver of
other constitutionally protected rights by a
state. C.f. Marshall v. Barlows, Inc., 436
-64-
a ¥ # bs ie YS PSs Sia > i A as oii Soe iS ah Ais
PD Stern ts) SS ee ee Rr Bek - SS Se ee at ee ee ee oe Be Ce ee Oe ee ee
U.S. 307, 318 (1978).
This Court should review this case to
clarify this important question of search and
seizure law, that is, whether a civil audit
by a regulatory agency may serve sub rosa as
an opportunity for federal criminal evidence
gathering.
CONCLUSION
For all of the reasons discussed above,
a writ of certiorari should issue in this
case.
Respectfully submitted,
Sanford Jay Rosen
Law Offices of Sanford Jay Rosen
155 Montgomery St.
8th Floor
San Francisco, CA 94104
(415) 433-6830
Counsel of Record
Nina K. Ginsberg
Barbara Y. Phillips
Law Offices of Sanford Jay Rosen
Counsel for Petitioners
Orrin L. Grover, III
Counsel for Edward Charapata
Frank Noonan
Counsel for Anne Charapata
June 1983
-65- ae
FILED: May 9, 1983
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee, Nos. 81-1394
81-1396
vs.
ORDER
EDWARD PAUL CHARAPATA,
Defendant-Appellant.
Plaintiff-Appellee,
vs.
ANNE CHARAPATA,
)
)
)
)
)
)
)
)
)
UNITED STATES OF AMERICA, )
)
)
)
)
)
Defendant-Appellant. )
)
Before: GOODWIN and POOLE, Circuit Judges,
and WILKINS*, District Judge.
The panel as constituted in the above
case has voted to deny the petition for
*fhe Honorable Philip Cc. Wilkins, Senior
United States District Judge for the
Eastern District of California, sitting by
designation.
7 a eat
is si ‘A i ch. ey
F Eo tien 7s. i : : .
ie Ai eee ee Oe OS tha +. oa fo. £ fs ed.
2a
for rehearing. Judges Goodwin and Poole
vote to reject the suggestion for rehearing
en banc and Judge Wilkins recommends such
rejection.
The full court has been advised of the
suggestion for rehearing en banc and no judge
of the court has requested a vote on the
suggestion. Fed. R. App. P. 35(b).
The petition for rehearing is denied
and the suggestion for rehearing en banc is
rejected.
3a
FILED: Jan. 18, 1983
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee, No. 81-1394
vs. MEMORANDUM
EDWARD PAUL CHARAPATA, D.C. #
CR 80-148 JMB
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
vs. No. 81-1396
ANNE CHARAPATA,
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
.
Defendant-Appellant. )
)
Appeal from the United States District
Court for the District of Oregon
Honorable James M. Burns, District
Judge, Presiding
Argued and Submitted May 5, 1982
Before: GOODWIN and POOLE, Circuit
4a
Appellants challenge their conviction
for making false statements to a government
agency on nursing home cost reimbursement
documents, 18 U.S.C. § 1001; and for filing
false corporate income tax returns,
26 U.S.C. §§ 7206(2), 7203. Edward
Charapata also appeais his conviction for
filing false individual tax returns,
26 U.S.C. § 7206(1); and for shipping
uninspected meat in interstate commerce,
21 U.S.C. §§ 610(b) (2), 676.
The Charapatas first argue that
reversal of their convictions is required
because of jury intrusion. We disagree.
When the jury is exposed to extrinsic
material, “[(t)he defendant is entitled to
a new trial if the judge finds a ‘possi-
bility that the extrinsic material could
have affected the verdict.'" United
States v. Bagnariol, 665 F.2d 877, 885
(9th Cir. 1981)(quoting United States v.
5a
Vasquez, 597 F.2d 192, 193 (9th Cir.
1979). We affirm the district court's
finding that any intrusion was harmless
beyond a reasonable doubt.
The jury intrusion, although
improper, was in context not of great
impact. +/ Examination of the jurors
subsequent to trial disclosed that the
incident left little if any impression;
few remembered anything significant about
the incident. The statement was expressed
as an opinion and not an objective fact,
and was not made by one in a position of ;
real or apparent authority in the court.
Cf. Parker v. Gladden, 385 U.S. 363 (1966).
The district judge gave instructions
that went far toward curing any taint. At
the commencement and conclusion of each
day's hearing, he reminded the jury not
to discuss the case or expose themselves
to extrinsic information about the case.
bint.
6a
The district judge also repeatedly instruc-
ted the jury to consider only evidence
presented at trial. See United States v.
Bagnariol, 665 F.2d at 889 (district judge
instructed the jury on each day to consider
only the evidence produced at trial) ;
United States v. Bagley, 641 F.2d 1235,
1241 (9th Cir. 1981) (curative instruction
“generally deemed curative of prejudicial
impact. ")
The district court found, and we
agree, that there was strong evidence of
the Charapatas' guilt with respect to
the offenses of which they were convicted.
See United States v. Bagnariol, 665 F.2d
at 889; United States v. Bagley, 641 F.2d
at 1241.
While appellants argue that the
district judge's examination into the
jury intrusion was inadequate, the extent
and nature of a hearing into jury
7a
misconduct is properly largely within the
discretion of the trial judge. United
States v. Berry, 627 F.2d 193, 197 (9th
Cir. 1980). With the benefit of hindsight
one might argue that a more thorough-going
examination would have been preferred. We
are satisfied however that the examination
was not inadequate in light of the factual
setting, the strong evidence against
appellants and the curative instructions
given. We note that appellants expressed
satisfaction on this issue after the
district judge's initial examination of
the juror exposed to the extrinsic
information, and that no objection was
raised when the jurors were not placed
under oath before questioning.
Appellants next argue that the dis-
trict court erred in refusing to suppress
certain documents. We disagree. The
defendants voluntarily relinquished these
8a
documents to a state official who turned
the material over to federal investigators.
A defendant has no privacy interest in
material in the possession of a third
person. United States v. Miller, 425 U.S.
435 (1976).
Appellants' other contentions are
without merit.
The judgment of the district court
is AFFIRMED.
FOOTNOTES
1/ This claim is inapplicable to Edward
Charapata's conviction for shipping
uninspected meat, as that count was tried
separately.
During the trial juror Alloway
reported having been approached at a bus
stop by a courtroom spectator who
identified himself as “the brother of
one of the attorneys." They discussed
9a
“the boring nature" of the trial, until
Alloway told him to change the subject.
Later, she said that the person might
have "insinuated or implied" that the
defendants were guilty; she remembered no
flat statement of guilt. Subsequently,
in the courthouse elevator, she mentioned
the incident to another juror. A judge
who was also in the elevator advised her
to report the incident. Other members
of the panel were subsequently questioned
and none indicated the narrative had
great impact. The trial judge concluded
that the probability of any effect on the
verdict was slight and involved no sub-
stantial prejudice to the defendants.
10a
FILED: Jun. 10, 1981
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
UNITED STATES OF AMERICA,
)
)
vs. ) CR 80-148-1
)
EDWARD PAUL CHARAPATA, ) JUDGMENT OF
) CONVICTION
Defendant. ) AND COMMIT-
MENT
On this 26th day of May, 1981,
appeared the attorney for the government
and the defendant appeared in person and
with his attorney Norman Sepenuk.
IT IS ADJUDGED the defendant has
been convicted upon his plea of not
guilty and a verdict of guilty of the
offenses of filing false claims and
statements to H.E.W. for nursing homes,
in violation of 18 USC 1001 and 2, as
charged in counts 1 through 13; sub-
scribing false joint U.S. Individual
Income Tax Returns for calendar years
1975 and 1976, in violation of 26 USC
7206(1), as charged in counts 14 and 15;
lla
subscribing false U.S. Corporation
Income Tax Returns for calendar year
1975, in violation of 26 USC 7206(1), as
charged in counts 16 and 17; aiding and
assisting in preparation of false U.S.
Corporation Income Tax Return for calen-
dar year 1976, in violation of 26 USC
7206(2), as charged in count 18; and
selling and transporting in Interstate
Commerce Uninspected meat and meat food
products, in violation of 21 USC 610(b) (2)
and 676, as charged in count 20 of the
indictment.
The Court then having asked the defen-
dant personally whether he had anything
to say why judgment should not be pro-
nounced and he personally having made a
statement to the Court, and no sufficient
cause to the contrary being shown or
appearing to the Court,
12a
IT IS ADJUDGED on count 1, the
defendant is committed to the custody of
the Attorney General or his authorized
representative for imprisonment for a
period of five (5) years, 18 USC 4205(a).
IT IS ADJUDGED on counts 2 through
18 and 20, the imposition of sentence is
suspended and the defendant placed on
probation for a period of five (5) years
on each count, to run concurrently with
each other and to commence upon defendants
release from physical custody on count l,
upon the conditions of probation as
contained in Probation Form No. 7 and the
following special conditions:
1. As to counts 14, 15, 16, 17 and
18, the defendant shall pay all taxes due
and owing and shall obey all tax laws.
2. Defendant shall submit a complete
and truthful financial statement to the
probation officer and shall provide
13a
accompanying documentation as requested,
at such times as directed by the probation
officer.
3. As to counts 3, 4, 7 and 12, the
defendant shall make restitution in the
amount of $40,802.00.
4. As to counts 2 through 13, defen-
dant shall pay a fine in the amount of
$10,000.00 on each count, said fine to be
paid within two (2) years of the commence-
ment of the probation period, total
$120,000.00.
5. As to counts 14 through 18, the
defendant shall pay a fine in the amount
of $5,000.00 on each count, at such times
and in such amounts as determined by the
probation officer, total $25,000.00.
6. As to count 20, the defendant
shall pay a fine in the amount of
$10,000.00, at such times and in such
amounts as determined by the probation
officer.
l4a
7. As to counts 14 through 18, the
defendant shall pay the cost of prosecu-
tion in the amount of $49,519.09.
IT IS ORDERED that the Clerk deliver
a certified copy of this judgment and
commitment to the United States Marshal
or other qualified officer and the copy
serve as the commitment of the defendant.
DATED this 10 day of June, 1981.
s/ James M. Burns
JAMES M. BURNS
Chief Judge
15a
FILED: Jun. 10, 1981
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
UNITED STATES OF AMERICA,
vs. CR 80-148-2
ANNE CHARAPATA, JUDGMENT OF
CONVICTION AND
Defendant. ) COMMITMENT
On this 26th day of May, 1981,
appeared the attorney for the government
and the defendant appeared in person and
with her attorney Frank Noonan.
IT IS ADJUDGED the defendant has been
convicted upon her plea of not guilty and
_a verdict of guilty of the offenses of
filing false claims and statements to
H.E.W. for nursing homes, in violation of
18 USC 1001 and 2, as charged in counts 5,
ll and 13; aiding and assisting in pre-
paration of false U.S. Corporation Income
Tax Return for culendar year 1976, in
violation of 26 USC 7206(2) as charged
in count 18 of the indictment.
l6a
The Court then having asked the
defendant personally whether she had any-
thing to say why judgment should not be
pronounced and she personally having
answered no, and no sufficient cause to
the contrary being shown or appearing to
the Court,
IT IS ADJUDGED on count ll, the
defendant be committed to the custody of
the Attorney General or his authorized
representative for imprisonment for a
period of three (3) years, 18 USC 4205(a).
IT IS ADJUDGED on counts 5, 13 and
18, the imposition of sentence is
suspended and the defendant placed on pro-
bation for a period of five (5) years on
each count, to run concurrently with each
other and to commence upon defendants
release from physical custody on count ll,
upon the conditions of probation as con-
tained in Probation Form No. 7 ae the
following special conditions:
17a
1. As to count 18, the defendant
shall pay all taxes due and owing and shall
obey all tax laws.
2. Defendant shall submit a complete
and truthful financial statement to the
probation officer and shall provide accom-
pamying documentation as requested, at such
times as directed by the probation officer.
3. As to counts 5 and 13, defendant
shall make restitution in the amount of
$14,365.00.
4. As to counts 5 and 13, defendant
pay a fine in the amount of $10,000.00 on !
each count, said fine to be paid within
two (2) years following the commencement
of the probation period, total $20,000.00.
5. As to count 18, defendant pay a
fine in the amount of $5,000.00, said
fine to be paid within two (2) years
following the commencement of the proba-
tion period.
">
“9
18a
IT IS ORDERED that the Clerk deliver
a certified copy of this judgment and
commitment to the United States Marshal
or other qualified officer and the copy
serve as the commitment of the defendant.
DATED this 10 day of June, 1981.
/s/ James M. Burns
JAMES M. B Ss
Chief Judge
19a
PILED: Aug. 14, 1981
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
UNITED STATES OF AMERICA,
Plaintiff, No. CR 80-148
FINDINGS AND
CONCLUSIONS AS
TO MOTION FOR
NEW TRIAL
Vv.
EDWARD CHARAPATA and
ANNE CHARAPATA,
Defendants.
ee ee ee ee ee ee ee ee ee ee
On March 12, 1981, after a lengthy
jury trial, defendants Edward and Anne
Charapata were found guilty on several
charges relating to Medicare and Medicaid
fraud and the filing of false income tax
returns. Defendants subsequently moved
for a new trial on the basis of an outside
communication which one of the alternate
jurors received during the course of the
trial. Evidentiary hearings concerning
this matter were held on March 31, and
May 11, 1981. At the time of sentencing,
20a
on May 26, 1981, I orally denied the
motion for a new trial. In accordance
with my prior ruling, and at the sugges-
tion of counsel, i enter the following
findings of fact and conclusions of law.
PINDINGS OF FACT
1) Trial in this case commenced on
February 24, 1981, and concluded on
March 12, 1981, when the jury returned a
verdict of guilty against defendant
Edward Charapata on Counts 1 through 18
of the indictment, and against defendant
Anne Charapata on Counts 5, ll, 13 and 18.
Both defendants were acquitted by the
jury on Count 19.
2) During the course of the trial,
on March 2, 1981, alternate juror Delpa
Alloway had a brief conversation outside
the courtroom with Mr. Jack Waggoner,
brother-in-law of Ronald Hoevet, one of
the Assistant United States Attorneys
2la
prosecuting the case for the government.
Mr. Waggoner had been in the courtroom
during part of the proceedings on that day,
and he and Mrs. Alloway recognized each
other (as having been in the courtroom
that day) as they waited at a bus stop
near the courthouse. The two spoke
generally about the boring nature of the
proceedings; Mr. Waggoner informed Mrs.
Alloway of his relation to attorney Hoevet.
Mr. Waggoner then made some general
comments on some past cases attorney
' Hoevet had worked on, and the conversation
ended.
3) From Mr. Waggoner's remarks, Mrs.
Alloway concluded that he had insinuated
or implied that in his opinion the
Charapatas were guilty.
4) The following morning (March 3)
on the way to the courtroom, Mrs. Alloway
rode in the elevator with Tawny Balash,
22a
one of the regular jurors sitting on the
case. Mrs. Alloway told Mrs. Balash that
a relative of one of the attorneys had
come up to her after court on the previous
day and told her that in his opinion the
defendants were guilty. Mrs. Alloway
asked Mrs. Balash what she should do, and
Mrs. Balash replied that she should tell
the judge what happened. When interviewed
by the court on March 31, Mrs. Balash
recalled that she did not think much
about the incident at the time, but she
saw that Mrs. Alloway was very upset.
(TR.4, telephone conference of Tawny
Balash.
5) Mrs. Alloway reported the encoun-
ter with Mr. Waggoner to the court before
trial began on March 3. She was inter-
viewed by the court out of the presence
of the other jurors. In response to the
court's inquiry, she stated that the
23a
incident would have no bearing on her
ability to sit fairly‘as a juror on the
case. (TR.781, Vol. 6; removed and
placed in Vol. 13.) As it turned out,
Mrs. Alloway's services as an alternate
juror were not needed. She was dismissed
at the conclusion of the case and did not
participate in the verdict deliberations.
6) At some point shortly after the
incident occurred, Mrs. Alloway mentioned
it to some of the other jurors and alter-
nate jurors. Of the twelve jurors who
actually deliberated on and voted for the
verdict, ten (Clark, Setziel, Twedt, Immer,
Liebel, Miston, Roton, Saxton, Frentress
and Daniels) recalled only that Mrs.
Alloway had had a contact with some person
outside the courtroom. These ten did not
remember any discussion among the jurors
as to the content of the conversation
which Mrs. Alloway had outside the
Se gin
5. Bae
24a
courtroom. They remembered only that
the outside conversation had something to
do with the case. (TR. generally, Examin-
ation of Jurors.)
7) Juror Dobbs, one of the deliber-
ating jurors, recalled that the remarks
made to Mrs. Alloway were “rather pointed;"
that is, that they pertained to either
guilt or innocence. However, juror Dobbs
could not recall which way the remarks
heard by Mrs. Alloway were "pointed."
(TR. 44 Examination of Jurors.)
8) Juror Jaynes recalled hearing that
the person Mrs. Alloway spoke with had
said that the defendants were guilty.
Although a regular juror, Jaynes was
excused later on during the trial for
other reasons; she did not participate in
the verdict deliberations. She was
replaced by alternate juror Daniels.
(TR.48 Examination of Jurors.)
25a
9) Of the jurors who deliberated on
the verdict, only Mrs. Balash recalled
being told by Mrs. Alloway that the person
she had encountered had said that the
defendants were guilty. Mrs. Balash
_ received this information in the elevator
with Mrs. Alloway, when no other jurcers
were present.
10. Many of the jurors, including
jurors Twedt, Miston, Toron, Saxton, Dobbs,
and Balash, and alternate juror Bromley,
indicated that they viewed the incident as
insignificant and thought that Mrs. Alloway
overreacted to an unintentional, casual
encounter.
os. Sid members of the jury, including
the alternates, stated that the incident
involving Mrs. Alloway was mentioned only
once, sometime shortly after it happened.
The incident was not discussed again and
it was not brought up during the verdict
deliberations.
26a
12) All deliberating jurors indicated
that they were able to follow the court's
admonition that the case was to be decided
solely on the evidence and instructions
presented in court. All the alternates
indicated, in response to a hypothetical
question, that if they had been called upon
to deliberate on the case they would have
been able to decide the case solely on
the evidence and instructions presented,
and that incident involving Mrs. Alloway
would have played no part in their decision.
13) I am satisfied that each of the
jurors and alternate jurors testified
truthfully when he or she said that the
incident was thought of as insignificant
and that it did not affect their ability
to follow the court's admonitions to
decide the case solely on the evidence
and instructions.
27a
CONCLUSIONS OF LAW
1) The incident involving Mrs. Alloway,
as it was related to the other jurors, was
not in fact prejudicial to the defendants,
or, if so, was not so prejudicial that it
deprived them of a fair trial.
2) Whether or not the jurors' own
statements concerning the effect the
incident had on their deliberations are
considered, there is no reasonable possi-
bility, given all the circumstances of
this case, that the incident could have
affected the jury's verdict. See United
States v. Vasquez, 597 F.2d 192, i93 (9th
ir. 3979.)
3) Whether or not the juror's own
statements concernilig the effect the
incident had on their deliberations are
considered, it is certain beyond a reason-
ble doubt that the incident did not affect
or taint the jury's verdict. See Gibson v.
28a
Clanon, 633 F.2d 851, 855 (9th Cir. 1980);
United States v. Bagley, 641 F.2d 1235,
1240-41 (9th Cir. 1981).
4) These conclusions are based on
the following considerations, among others:
(1) Mrs. Alloway interpreted Mr. Waggoner's
comments as only an opinion of the defen-
dants' guilt; (2) although related to an
attorney in the case, Mr. Waggoner had no
position of authority or attarent [sic]
authority in the court; (3) ten of the
deliberating jurors recalled only that
Mrs. Alloway had an encounter outside the
courtroom, they did not recall anything
about an opinion on guilt; (4) the jutfors
thought Mrs. Alloway was overreacting to
a casual encounter; (5) the incident was
brought to the jury's attention only once
during the course of a lengthy trial; (6)
the court was able to give effective cura-
tive and remedial instructions; (7) there
29a
Was strong evidence ef guilt as to all
counts on which defendants were convicted;
and, (8) the jury acquitted defendants on
Count 19.
5) No matter how the applicable test
is phrased, the motion for a new trial
must be denied.
The foregoing shall constitute Find-
ings of Fact and Conclusions of Law
pursuant to Rule 52, Fed.R.Civ.P.
DATED this 14 day of August, 1981.
/s/ James M. Burns
U.S. District Judge
30a
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
UNITED STATES OF AMERICA,
Plaintiff, No. CR-80-148
REPORTER'S
PARTIAL TRANS-
CRIPT OF ORAL
BENCH RULING
AND FINDINGS
OF FACT ON
DEFENDANTS '
MOTION FOR
NEW TRIAL,
May 26, 1981
vs.
EDWARD CHARAPATA and
ANNE CHARAPATA,
ee eee ee ee ee ee ee ee ee
Defendants.
THE COURT:
The motion for new trial is denied.
I am satisfied under any of the standards
applicable in the Ninth Circuit, number
one, that the extrinsec [sic] material wes not
in fact, prejudicial; and, number two, it
was not sufficiently prejudicial to affect
the Defendants' opportunity to have a fair
trial.
Specifically, I rely on the accounts
furnished by each of the members of the
3la
jury; those who were alternates through-
out; those who were regular jurors
‘throughout and the one juror who changed
positions in that regard.
I am also satisfied that, that each
of the jurors was truthful and correct
when he responded that whatever they did
here [sic] of the episode was described as
insignificant. They were fully aware of
the admonitions which had been given
throughout the trial, before and after
this incident, and that they were fully
able to follow and comply with those admoni-
tions and that the remark played no part
whatsoever in their decision.
32a
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
UNITED STATES OF AMERICA, )
)
Plaintiff, ) No. CR-80-148
)
vs. ) REPORTER'S
) PARTIAL TRANS-
)
)
)
)
)
EDWARD CHARAPATA and
ANNE CHARAPATA,
CRIPT OF ORAL
BENCH RULING
AND FINDINGS
ON DEFENDANT
ANN CHARAPATA'S
MOTION FOR
SEVERANCE,
March 10, 1981
Defendants.
THE COURT:
Well, I'm ready to rule. I think the
Government has to fish or cut bait on this
one and I think they have already in fact
made their decision by putting Mr. Engelgau
on and by offering 653 and 654. I am
satisfied that a limiting instruction --
well, I'm satisfied, first of all, that the
analysis is not that of business record
but that of an admission by a party opponent
that it comes in somewhat in the same way >
33a
that if a police officer is on the stand
and testified that he prepared an acci-
dent report and he says that as a part of
his accident investigation he interviewed
the defendant and the defendant said he
ran the red light, that part of the report
comes in, not because primarily it is a
business record. It comes in primarily
because it's an admission by a party oppo-
nent. In that sense it would come in only as
against Mr. Charapata, at least in circum-
stances presented here, that I find no
other, no other avenue of admissibility as
against Mrs. Charapata for that and I find
that the prejudicial impact that it would
have on her is such that a limiting instruc-
tion would not be climate to furnish the
appropriate safeguards to which she's.
entitled as regards tax counts. Conse-
quently, I grant the defendant's motion,
34a
Defendant Charapata's motion for severance
insofar as it relates to Counts XIV and XV.
The same analysis does not require, in
My judgment, severance of the other charges
against her, either the Medicaid or Medi-
care false statements in which she is named
or the corporate tax charges in which he is
named, and I will furnish, with the assis-
tance of Counsel, an appropriate limiting
idetriekton that it is applicable only as
regards Edward Charapata and only as
regards Counts XIV and XV and not appli-
cable for any other purpose.
35a
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
UNITED STATES OF AMERICA,
)
)
Plaintiff, ) No. CR-80-148
)
vs. ) REPORTER'S
) PARTIAL TRANS-
) CRIPT OF ORAL
) BENCH RULING
) AND FINDINGS
) OF FACT ON
) DEFENDANTS '
MOTION TO
SUPPRESS,
February 9,
1981
EDWARD CHARAPATA and
ANNE CHARAPATA,
Defendants.
THE COURT:. Well, if that's the law,
it's going to have to take the Ninth
Circuit or the Supreme Court to say so.
I'm not going to say that is the law. It
may be. In fact, I would not be able to
make a finding which, I think, is neces-
sary to your theory that the obtaining by
Lauritsen was prompted by Griffith and
was prompted by Griffith with criminal
motivation. There is no such evidence
in this record; there wasn't evidence
36a
anywhere along the way that I recall in the
enormous record compiled over the last
three years in the various Grand Jury pro-
ceedings, including one which essentially
tracks this contention. There isn't any
evidence that the motivation was, we are
going to prosecute, we are going to pro-
ceed criminally, we are going to gain
evidence to do so and thus, we are going
to ask Mr. Lauritsen to funnel the stuff
to us. That isn't what the facts are in
this case. And I find exactly the
contrary.
Now, the fact that Lauritsen in his
function comes across documents which are
questionable, he in turn, makes them
available to Griffith, ard the fact that
along the way Mr. Griffith himself has
questions about their validity and the
priority of the expenses shown, and so on,
doesn't mean they can't be used. At
37a
least my understanding of the law is such.
The fact that somewhere along the way
it turns from a straight audit into a
criminal prosecution, you don't go back and
rule out everything that Mr. Lauritsen did
in 1976 and '77.
Also, I am satisfied, based upon the
record and upon the submissions, that I have
grave doubt whether or not these individual
defendants had a reasonable expectation of
privacy, though I need not reach that ques-
tion at least along the lines the Government
asserts as its justification, because I
think it is quite clear that the defendants
or others on their behalf, or the corporate
owners all quite clearly consented to the
providing of this information to either
federal or state, federal or state auditors
or other officials who could audit the books
and records and make sure the program was
38a
being carried out properly, so that the
defendants, assuming they had a reasonable
expectation or standing as we used to call
it -- quite clearly consented validly and
knowingly and intelligently in the provider
agreements to the kind of examination had
and furnishing of records that has occurred
in this case.
And the scope of that concern was not
expressly limited to any civil audit or
state audit, or state civil matter as
opposed to a federal audit, or federal
criminal investigation.
I deny the motion to suppress.
39a
UNITED STATES
CONSTITUTIONAL PROVISIONS
AMENDMENT IV
The right of the people to be secure
in their persons, houses, papers, and
effects, against unreasonable searches and
seizures, shall not be violated, and no
Warrants shall issue, but upon probable
cause, supported by Oath or affirmation,
and particularly describing the place to
be searched, and the persons or things to
be seized.
AMENDMENT V
No person shall be held to answer for
a capital, or otherwise infamous crime,
unless on a presentment or indictment of
a Grand Jury, except in cases arising in
the land or naval forces, or in the Militia,
when in actual service in time of War or
pwns .
40a
public danger; nor shall any person be
subject for the same offence to be twice
put in jeopardy of life or limb; nor shall .
be compelled in any criminal case to be a
witness against himself, nor be deprived
of life, liberty, or property, without due
process of law; nor shall private property
be taken for public use, without just
compensation.
AMENDMENT VI
In all criminal prosecutions, the
accused shall enjoy the right to a speedy
and public trial, by an impartial jury of
the State and district wherein the crime
shall have been committed, which district
shall have been previously ascertained by
law, and to be informed of the nature and
cause of the accusation; to be confronted
with the witnesses against him; to have
compulsory process for obtaining witnesses
4la
in his favor, and to have the Assistance
of Counsel for his defence.
42a
UNITED STATES CODE
TITLE 18
§ 2. Principals.
(a) Whoever commits an offense
against the United States or aids, abets,
counsels, commands, induces or procures
its commission, is punishable as a
principal.
(b) Whoever willfully causes an act
to be done which if directly performed by
him or another would be an offense against
the United States, is punishable as a
principal.
§ 1001. Statements or entries generally.
ieemeae. tn any manner within the
jurisdiction of any department or agency
of the United States knowingly and will-
fully falsifies, conceals or covers up by
any trick, scheme, or device a material
43a
fact, or makes any false, fictitious or
fraudulent statements or representations,
or makes or uses any false writing or
document knowing the same to contain any
false, fictitious or fraudulent statement
or entry, shall be fined not more than
$10,000 or imprisoned not more chan five
years, or both.
TITLE 21
§ 610. Prohibited Acts.
No person, firm, or corporation
shall, with respect to any cattle, sheep,
swine, goats, horses, mules, or other
equines, or any carcasses, parts of car-
casses, meat or meat food products of any
such animals--
* * * *
(c) sell, transport, offer for
sale or transportation, or receive for
transportation, in commerce, (1) any
44a
such articles which (A) are capable of
use as human food and (B) are adulterated
or misbranded at the time of such sale,
transportation, offer for sale or transpor-
tation, or receipt for transportation; or
(2) any articles required to be inspected
under this subchapter unless they have
been so inspected and passed;...
§ 676. Violations-Misdemeanors; felonies:
intent to defraud and distribution
of adulterated articles; good faith
(a) Any person, firm or corpora-
tion who violates any provision of this
chapter for which no other criminal penalty
is provided by this chapter shall upon
conviction be subject to imprisonment for
not more than one year, or a fine of not
more than $1,000, or both such imprison-
ment and fine; but if such violation
involves intent to defraud, or any
45a
distribution or attempted distribution
of an article that is adulterated (except
as defined in section 601(m) (8) of this
title), such person, firm, or corporation
shall be subject to imprisonment for not
more than three years or a fine of not
more than $10,000, or both: Provided,
That no person, firm, or corporation, shall
- be subject to penalties under this section
for receiving for transportation any arti-
cle or animal in violation of this chapter
if such receipt was made in good faith,
unless such person, firm, or corporation
refuses to furnish on request of a repre-
sentative of the Secretary the name and
address of the person from whom he received
such article or animal, and copies of all
documents, if any there be, pertaining
to the delivery of the article or animal
to him.
46a
(p) Nothing in this chapter shall
be construed as requiring the Secretary
to report for prosecution or for the insti-
tution of libel or injunction proceedings,
minor violations of this chapter whenever
he believes that the public interest will
be adequately served by a suitable written
notice of warning.
TITLE 26
§ 7203. Willful failure to file return,
supply information, or pay tax
Any person required under this
title to pay any estimated tax or tax,
or required by this title or by regula-
tions made under authority thereof to make
a return (other than a return required
under authority of section 6015), keep
any records, or supply any information,
who willfully fails to pay such estimated
tax or tax, make such return, keep such
47a
records, or supply such information, at
the time or times required by law or
regulations, shall, in addition to other
penalties provided by law, be guilty of a
misdemeanor and, upon conviction thereof,
shall be fined not more than $10,000, or
imprisoned not more than l year, or both,
together with the costs of prosecution.
§ 7206. Fraud and false statements.
Any person who --
(1) Declaration under penalties
of perjury. -- Willfully makes and sub-
scribes any return, statement, or other
document, which contains or is verified
by a written declaration that it is made
under the penalties of perjury, and which
he does not believe to be true and correct
as to every material matter; or
(2) Aid or assistance. -- Will-
fully aids or assists in, or procures,
48a
counsels, or advises the preparation or
presentation under, or in connection with
any matter arising under, the internal
revenue laws of a return, affidavit, claim,
or other document, which is fraudulent or
is false as to any material matter, whether
or not such falsity or fraud is with the
knowledge or consent of the person author-
ized or required to present such return,
affidavit, claim, or document; or
x kkk
shall be guilty of a felony and, upon
conviction thereof, shall be fined not
more than $5,000, or imprisoned not more
than 3 years, or both, together with the
costs of prosecution.
49a
FEDERAL RULES OF EVIDENCE
Rule 606(b). Inquiry into validity of
verdict or indictment.
Upon an inquiry into the validcty
of a verdict or indictment, a juror may
not testify as to any matter or statement
occuring during the course of a jury's
deliberations or to the effect of anything
upon his or any other juror's mind or
emotions as influencing him to assent to
or dissent from the verdict or indictment
or concerning his 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 impro-
perly brought to bear upon any juror. Nor
may his affidavit or evidence of any
statement by him concerning a matter about
50a
which he would be precluded from testi-
fying be received for these purposes.
5la
FEDERAL RULES OF CRIMINAL PROCEDURE
Rule 8. Joinder of Offenses and of
Defendants.
(a) Joinder of Offenses. Two or
more offenses may be charged in the same
indictment or information in a separate
count for each offense if the offenses
charged, whether felonies or misdemeanors
or both, are of the same or similar charac-
ter or are based on the same act or
transaction or on two or more acts or
transactions connected together or consti-
tuting parts of a common scheme zr plan.
(b) Joinder of Defendants. Two
or more defendants may be charged in the
same indictment or information if they
are alleged to have participated in the
same act or transaction or in the same
series of acts or transactions constitu-
ting an offense or offenses. Such
52a
defendants may be charged in one or more
counts together or separately and all of
the defendants need not be charged in each
count.
Rule 14. Relief from Prejudicial Joinder.
If it appears that a defendant
or the government is prejudiced by a
joinder of offenses or of defendants in an
indictment or information or by such join-
der for trial together, the court may
order an election or separate trials of
counts, grant a severance of defendants or
provide whatever other relief justice
requires. In ruling on a motion by a
defendant for severance the court may order
the attorney for the government to deliver
to the court for inspection in camera
any statements or confessions made by the
defendants which the government intends to
introduce in evidence at the trial.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.