* The Honorable Wiley Y. Daniel, United States District Judge for the

District of Colorado, sitting by designation. 

## F I L E D United States Court of Appeals Tenth Circuit 

### MAR 11 1997 

### PATRICK FISHER Clerk PUBLISH UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. ELENO AGUIRRE, Defendant-Appellant. No. 95-2068

Appeal from the United States District Court for the District of New Mexico (D.C. No. CR-92-486-2-JC)
Charles L. Barth, Assistant United States Attorney (John J. Kelley, United States Attorney, Laura Fashing, Special Assistant United S tates Attorney, with him on the brief), Albuquerque, New Mexico, for Plaintiff- Appellee. Brenda G. Grantland, Mill Valley, California, for D efendant-Appellant.

Before BALDOCKandBRORBY , Circuit Judges, and DANIEL , * District Judge.

BRORBY , Circuit Judge.-2-

A New Mexico federal jury convicted Eleno Aguirre o n four counts in a multi-defendant, multi-count indictment, and the Un ited States District Court for the District of New Mexico sentenced Mr. Aguirre to a term of 235 months imprisonment. Mr. Aguirre now appeals his convicti ons. We exercise jurisdiction over Mr. Aguirre's appeal pursuant to 28 U.S.C. § 1291 (1994).

I. FACTUAL AND PROCEDURAL BACKGROUND Gabriel Rodriguez-Aguirre managed a family-run organization ("the Aguirre organization") specializing in the sale anddistribution of large amounts of marijuana and cocaine. United States v. Denogean , 79 F.3d 1010, 1011 (10th Cir.), cert. denied, 117 S. Ct. 154 (1996). Between 1984 and 1992, th e organization sold more than 20,000 pounds of mariju ana and over 20,000 pounds of cocaine to narcotics traffickers in New Mexico, Arizona, Utah, Kansas, Massachusetts, and elsewhere throughout the United States. Id. The organization used narcotics proceeds to purchase real property and other assets. Id. Defendant Eleno Aguirre, the brother of Gabriel Rodriguez-Agu irre, was involved in the Aguirre organization.

On October 20, 1992, a federal grand jury in the Di strict of New Mexico returned a twenty-three count indictment against Mr . Aguirre and twenty-one-3-

other defendants, including Mr. Rodriguez-Aguirre. The bill of indictment charged Mr. Aguirre with conspiracy to distribute m ore than 1,000 kilograms of marijuana, in violation of 21 U.S.C. § 841 (1994), and conducting a financial transaction with illicit proceeds with knowledge th e transaction was designed to avoid federal reporting requirements, in violation of 18 U.S.C. §§ 1956(a)(1)(B)(ii) and 2 (Supp. 1996). Mr. Aguirre pled not guilty to the charges against him, and proceeded to trial with hi s co-defendants in January 1994.

The original trial of Mr. Aguirre and his co-defend ants lasted six months, becoming "the longest federal criminal trial ever h eld in the District of New Mexico." United States v. Rodriguez-Aguirre , 73 F.3d 1023, 1024 (10th Cir. 1996). After deliberating for more than six weeks, the jury was unable to reach a verdict on the majority of counts, and the trial ju dge declared a mistrial. Id. Neither the United States nor counsel for Mr. Aguirre objected to the mistrial.

In August 1994, the United States obtained a supers eding indictment against Mr. Aguirre and nine of his co-defendants. In addition to the charges included in the original indictment, the supersedin g indictment contained additional charges against Mr. Aguirre. Count II c harged Mr. Aguirre with-4-

conspiracy to possess with the intent to distribute cocaine, and conspiracy to distribute cocaine. Count XIII charged Mr. Aguirre with receiving income from the distribution of controlled substances and inves ting this income in the E & J Lounge, in violation of 21 U.S.C. § 854 (1994). Co unt XVII charged Mr. Aguirre with possession with the intent to distribute more than five kilograms of cocaine.

The United States retried Mr. Aguirre and his co-de fendants in November and December 1994. Prior to trial, the court rando mly selected a jury panel of approximately 250 jurors at random from voter regis tration lists for the Roswell Division of the District of New Mexico. The distri ct judge excused the remaining jurors sua sponte after reviewing the juror questionnaires; the court directed only 115 jurors to report for jury service. Six days pr ior to the start of trial, defense counsel were provided copies of the jury questionna ires for the panel that had been selected for service and learned that the court had excused the remaining jurors.

On the first day of trial, prior to jury selection, defendant Gabriel Rodriguez-Aguirre filed a motion to stay the procee dings, and defendant David1 Pursuant to the court's order that "one motion ma de by one defense

counsel applies to all [defendants]," all of the de fendants, including Mr. Aguirre, adopted the motions of Mr. Rodriguez-Aguirre and Mr . Morales.

-5- Morales filed a motion to quash the jury venire 1 . The motions alleged the jury venire panel seriously misrepresented the ethnic makeup of the District of New Mexico. Specifically, the defendants claimed perso ns of Hispanic origin and American-Indian background were underrepresented. The defendants sought a stay of the trial to allow time for an investigatio n of the ethnic background of all the jurors. In addition, Mr. Morales' counsel, Pau l Kennedy, advised the court orally of United States v. Calabrese , 942 F.2d 218 (3d Cir. 1991). Mr. Kennedy argued Calabrese stood for the proposition that reversible error ex ists once a court excludes a juror prior to voir dire "simply b ecause a juror knows a defendant." Mr. Kennedy claimed it appeared the co urt had excused at least one juror because the juror stated he or she knew one o f the defendants.

Following Mr. Kennedy's comments, the court held anevidentiary hearing at which Nancy Metzger, jury administrator for the Federal Court Clerk's office, testified. Ms. Metzger stated the jury panel of ap proximately 250 jurors had been selected at random from voter registration lists. Ms. Metzger testified that the district judge reviewed the juror questionnaires an d directed her to excuse more-6-

than 100 specific jurors. Ms. Metzger stated she d id not know the ethnicity of either the excused jurors or the jurors who had rep orted for service.

The court then stated it had reviewed the individua l juror questionnaires and "retained the stack of those who, for some reas on or other, claimed that they couldn't serve." The court explained: I think it goes without saying that the ones that w ere not summoned, I never looked at the last name, whether it was [a] Hispanic surname or whether it was not a Hispanic surname, or whethe r they were American Indians or not. As a matter of fact, I'm not real sure that that's part of the questionnaire -- Ms. Metzger confirmed the jurors were not directed to list their ethnicity on the questionnaire forms.

The district court denied the defendants' motion to stay the proceedings and the defendants' motion to quash the jury venire. H owever, the court allowed the defendants to supplement the record within ten days of the completion of the trial with information concerning the racial composition of the District of New Mexico and the Roswell Division. None of the defendants c hose to supplement the record with such information.

Following a one month trial, the jury returned a ve rdict against Mr. Aguirre2The United States attached affidavits from jurors Ronnie Warmuth and

Kerry Romine to the United States' response to Ms. Gallegos' motion for a new trial. Mr. Warmuth stated: On further reflection, I do not believe that a dict ionary was used at all. The only definition which was questioned regarded the word "pontificate" as used by the witness John Henry Lee . Mr. Kerry -7- on all four counts the United States charged him wi th in the superseding indictment. Thereafter, Ms. Sonia Gallegos, Mr. Ag uirre's co-defendant who was also convicted, filed a motion for a new trial. Mr . Aguirre adopted Ms. Gallegos' motion for a new trial pursuant to the district cou rt's standing order that "anything that anybody files the others adopt." Mr. Aguirre argued, inter alia , he was entitled to a new trial because of jury misconduct. Mr. Aguirre attached an affidavit from defense investigator Kelly Owens to his motion. Mr. Owens testified that following the trial, he questioned n ine of the twelve jurors who convicted the defendants. Mr. Owens stated that on e of the jurors, Linda Howard, admitted looking up the dictionary definition of th e word "distribution" on the evening after the first day of deliberations and or ally sharing its definition with the other jurors on the following day. According t o Mr. Owens, Ms. Howard stated the juror's discussed the meaning of "distri bution" as it related to the guilt or innocence of Ms. Gallegos. Mr. Owens also testi fied juror Ronnie Warmuth claimed he had knowledge of another juror researchi ng the dictionary definition of the word "hypothecate." 2 In his post-trial motion, Mr. Aguirre contended thisRomine, a fellow juror, knew the definition of this word and no

dictionary was consulted. Similarly, Mr. Romine testified that although a que stion arose during deliberations as to the definition of the word "pontificate," "the jury ... did not at any time consult a dictionary."

-8- improper juror conduct prejudiced him and entitled him to a new trial.

The district court denied Mr. Aguirre's motion for a new trial, rejecting the defendants' claim of jury misconduct. The court co ncluded the word distribution was one of common usage, and there was no indicatio n any of the jurors relied upon its dictionary definition or that it "made any difference at all in the jury deliberations."

At sentencing, the district court determined Mr. Ag uirre had an offense level of 38, a criminal history category of I, and a sentencing range of 235 to 293 months. The court sentenced Mr. Aguirre to a term of 235 months imprisonment on Counts II, XII and XVII. As to Count XIII, the district court sentenced Mr. Aguirre to a term of 120 months, to run concurrentl y with the 235 month
sentence.3 In his opening brief, Mr. Aguirre also argued the district court erred in

summarily rejecting Mr. Aguirre's objections to his presentence report without a hearing and without findings of fact. (Id.) However, Mr. Aguirre withdrew this argument in a subsequent motion to strike. (Apt's motion to supplement and strike part III, at 1-2.) -9- II. ISSUES RAISED ON APPEAL Mr. Aguirre raises three issues on appeal: (1) whe ther the district court's dismissal of over 100 jurors, off the record, and o utside the presence of the defendants and counsel, violated Mr. Aguirre's cons titutional rights and his rights under the Jury Selection and Service Act of 1968, 2 8 U.S.C. §§ 1861-1878 (1994) ; (2) whether the district court abused its discretio n in failing to grant Mr. Aguirre a new trial based upon the jury's misconduc t in looking up the dictionary definitions of certain words; and (3) whether the s uperseding indictment filed after the mistrial should have been dismissed on gr ounds of prosecutorial vindictiveness. 3

III. ANALYSIS A. Jury Selection and Service Act Mr. Aguirre first contends the district court's exc usal of over half of the original jury panel, off the record and outside the presence of the defendants and counsel, violated the Jury Selection and Service Ac t and his constitutional rights under the Fifth and Sixth Amendments. 28 U.S.C. § 1867(d) requires all motions-10-

challenging compliance with the Jury Selection and Service Act to be accompanied by a "sworn statement of facts which, i f true, would constitute a substantial failure to comply with the [Jury Select ion and Service Act]." In the recent appeal of Mr. Aguirre's co-defendant, Dolora s Contreras, we determined Ms. Contreras' claim under the Jury Selection and S ervice Act was barred by the defendants' failure to accompany their motions chal lenging the district court's jury selection process with an adequate sworn statement as required by 28 U.S.C. § 1867(d). United States v. Contreras , __ F.3d ___ (10th Cir., Mar. 11, 1997). Here, as in Contreras , Mr. Aguirre failed to file a sworn affidavit in s upport of his motions challenging the district court's jury s election procedures. Consequently, Mr. Aguirre 's Jury Selection and Service Act claim is barred.

Also in Contreras , we denied Ms. Contreras' Fifth and Sixth Amendment challenges to the jury selection procedures. See id. at ___. Specifically, we determined Ms. Contreras could not establish a prima facie case of a fair cross section violation or an equal protection violation, and we concluded Ms. Contreras' Sixth Amendment impartial jury claim was without merit. Id. For the reasons stated in Contreras , we likewise find no merit in Mr. Aguirre's4In Contreras , we also determined the district court did not vio late Fed. R.

Crim. P. 43 or 28 U.S.C. § 753(b) by failing to dis miss the 132 jurors in open court and in the presence of the defendants. See id. at ___. To the extent Mr. Aguirre asserts claims under Rule 43 or 28 U.S.C. § 753(b), these claims are rejected pursuant to our reasoning in Contreras

.
-11- constitutional challenges to the jury selection pro cedures. 4

B. Jury Misconduct Mr. Aguirre next contends the district court erred in failing to grant him a new trial based upon the jury's misconduct in using a dictionary to look up the definition of the words "distribution" and "pontifi cate." It is well settled that a jury's exposure to extrinsic information gives rise to a rebuttable presumption of prejudice. See Mayhue v. St. Francis Hosp. of Wichita, Inc. , 969 F.2d 919, 923 (10th Cir. 1992); United States v. Hornung , 848 F.2d 1040, 1044-45 (10th Cir. 1988), cert. denied, 489 U.S. 1069 (1989); United States v. Perkins , 748 F.2d 1519, 1533 (11th Cir. 1984). To overcome this pres umption, the United States must prove the jury misconduct was harmless to the defendant. Hornung , 848 F.2d at 1044-45; Marino v. Vasquez , 812 F.2d 499, 505 (9th Cir. 1987); Perkins , 748 F.2d at 1534; United States v. Kupau , 781 F.2d 740, 744 (9th Cir.), cert. denied, 479 U.S. 823 (1986).-12-

To determine whether the United States has overcome the presumption of prejudice, the court must objectively weigh all of the facts and circumstances of the case. Mayhue , 969 F.2d at 923-24. When a trial court is apprised of the fact that an extrinsic influence may have tainted the trial, the proper remedy is a hearing to determine the circumstances of the improper contactand the extent of the prejudice, if any, to the defendant.... [A] n objective test should be applied in making an assessment of whethe r the defendant was prejudiced by the extraneous information. The court "should assess the 'possibility of prejudice' by reviewing the entire record, analyzing the substance of the extrinsic evidence, and comparing it to that information of which the jurors were properly aware." Hornung , 848 F.2d at 1045 (citations omitted). The trial judge is "uniquely able to assess the likelihood that the extraneous inform ation [considered by the jury] was prejudicial." Mayhue , 969 F.2d at 922.

In Mayhue , the jury foreman in a race discrimination case co pied the dictionary definitions of the words "discriminate" and "prejudice" on to a piece of paper and read the definitions aloud to the other j urors during their deliberations. Id. at 921. The district court granted a new trial fo r the defendant based upon the jury's misconduct, and the plaintiff appealed. Id. at 921-22. On appeal, we cited a number of factors relevant to determining whetherthe presumption of prejudice has been rebutted when a jury consults a dictionarywithout authorization. Id. at 924. They are as follows:-13-

(1) The importance of the word or phrase being def ined to the resolution of the case. (2) The extent to which the dictionary definition differs from the jury instructions or from the proper legal definiti on. (3) The extent to which the jury discussed and emp hasized the definition. (4) The strength of the evidence and whether the j ury had difficulty reaching a verdict prior to introduction of the dic tionary definition. (5) Any other factors that relate to a determinati on of prejudice. Id. at 924. Applying these factors to the circumstanc es in Mayhue , we determined the trial court did not abuse its discretion in gra nting the defendant a new trial. Id. at 926.

In the instant case, the district court provided co unsel for Mr. Aguirre with the opportunity to present evidence and oral argume nt on the issue of whether the court should grant Mr. Aguirre a new trial due to j uror misconduct. After careful consideration of the parties post-trial briefs and oral arguments, the court found: The word distribute is a word that's commonly used, has a meaning that I think all of us understand. No showing thatMs. Howard or anybody else relied on what she saw, if anything, i n whatever book she looked it up that made any difference at all in the jury deliberations. And I don't really care whether they looked up pont ificate or not because that doesn't have anything to do with anything except it was a nice word and it was used, you know, in the c ourse of the trial for a little humorous relief.-14- But I do not believe that the violation of my instr uctions to the jury not to seek out any evidence outside the court room and looking up the word distribute or distribution, since it's a word of common use, common knowledge, I find that it had no prejud icial effect on the jury whatsoever. Accordingly, the district court denied Mr. Aguirre' s motion for a new trial.

We now turn to the factors delineated in Mayhue to determine whether the district court properly concluded the presumption o f prejudice was rebutted.

1. Importance of the words. First, we note the word pontificate was unimportantto the resolution of the case. As the district court found, "pontificate" w as used during the trial "for a little humorous relief." The record does not show, nor does Mr. Aguirre even allege, that the term had any relevance to the jury 's deliberations or to the offenses Mr. Aguirre was charged with committing. Thus, assuming the definition of the word "pontificate" was even researched, Mr. Aguirre was not prejudiced by such conduct.

The jury's exposure to the dictionary definition of the word "distribution" requires a closer inquiry. Unlike "pontificate," t he term "distribution" was important to the jury's deliberations. "Distributi on" appears repeatedly-15-

throughout the superseding indictment and the term is referred to in two of the counts Mr. Aguirre was charged with violating.

2. Extent to which dictionary and legal definition s differ. Notwithstanding the term's importance, the districtcourt properly noted the term "distribution" is a word of common usage and c ommon knowledge. Webster's Ninth New Collegiate Dictionary includes the following definitions for distribute: to divide among several or many; to spr ead out so as to cover something; to give out or deliver, especially to me mbers of a group. Webster's New Collegiate Dictionary 368 (1984). Webster's pr ovides the following synonyms for distribute: dispense, divide, deal, and dole. Id. In its instructions to the jury, the district court defined the term "d istribution," in the context of drug conspiracy, to mean "the defendant intentionally de livered marijuana to another person." We do not believe the dictionary definiti on of distribution differs appreciably or is less demanding than its legal def inition provided by the district court. If anything, the dictionary definition is m ore detailed than the court's definition. Thus, to the extent any of the jurors d etermined Mr. Aguirre engaged in distribution under the term's dictionary meaning , they also determined Mr. Aguirre engaged in distribution under its legal def inition.-16-

3. Extent to which jury discussed and emphasized definition. Mr. Owens testified that Ms. Howard read aloud the dictionary definition of distribution to the other jurors. However, the rec ord does not indicate any of the jurors relied upon or attached any significance to the definition. Although Mr. Owens questioned nine of the twelve jurors after th eir verdict, he did not allege any of them relied upon this definition in reaching their verdict. Nor did he testify that any of the jurors other than Ms. Howar d recalled that the definition of distribution was even read to them. Thus, this fac tor weighs in favor of a finding that Mr. Aguirre was not prejudiced by the juror mi sconduct. 4. Strength of evidence and whether jury had diffi culty reaching verdict prior to introduction of definition. The United States introduced a plethora of evidence at trial establishing Mr. Aguirre's involvement in large-scale drug distr ibution and money laundering. Between 1985 and 1992, the Internal Revenue Service estimated Eleno Aguirre and his wife spent $2,127,244.95 more than their re ported income. In 1992, federal agents discovered $1,800,000.00 in cash bur ied in the backyard of Mr. Aguirre. Indeed, Mr. Aguirre does not even challen ge the sufficiency of evidence against him on appeal. Furthermore, there is no ev idence in the record that the jury was deadlocked or was having any difficulty re aching a verdict prior to the introduction of the definition.-17-

5. Other factors relating to a determination of pr ejudice. Mr. Owens' affidavit indicates the term distributio n was looked up and discussed as it related to the guilt or innocence o f Sonia Gallegos . There is absolutely no evidence the term was researched or d iscussed in connection with the determination of Mr. Aguirre's guilt. Accordin gly, this factor also indicates the juror misconduct was not prejudicial to Mr. Agu irre.

Based on the above factors, we conclude the distric t court properly determined Mr. Aguirre was not prejudiced by the ju ror misconduct. The record clearly establishes any juror impropriety was harml ess to Mr. Aguirre. Consequently, the district court did not err in denying the defendants' motion for a new trial based on juror misconduct.

C. Prosecutorial Vindictiveness Finally, Mr. Aguirre contends the district court sh ould have dismissed the superseding indictment because of prosecutorial vin dictiveness. Following the mistrial, the United States filed a superseding ind ictment expanding the charges against Mr. Aguirre. Mr. Aguirre asserts the Unite d States was aware of the information giving rise to the increased charges pr ior to his first trial. Given its prior knowledge, along with the fact the United States suffered negative publicity-18-

following the mistrial, Mr. Aguirre contends vindic tiveness motivated the increased charges.

We decided a virtually identical vindictive prosecu tion claim in the recent appeal of Mr. Aguirre's co-defendant, Doloras Contr eras. See Contreras , __ F.3d at ___. In Contreras , based on the totality of the circumstances, we de termined there was no reasonable likelihood the increased ch arges in the superseding indictment stemmed from prosecutorial vindictivenes s. Based on our reasoning in Contreras , Mr. Aguirre's vindictive prosecution claim also f ails.

IV. CONCLUSION Based on the foregoing reasons, we hereby affirm th e convictions of Mr. Aguirre in all respects.