UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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No. 94-6086

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UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

Belarmino SANCHEZ,

Defendant-Appellant.

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Appeal from the United States District Court

for the Southern District of Texas

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January 23, 1996

Before WISDOM, GARWOOD, and JONES Circuit Judges:

EDITH H. JONES, Circuit Judge

Defendant Belarmino Sanchez (“Sanchez”) appeals his

conviction on five counts of misdemeanor civil rights violations

under 18 U.S.C. § 242 (“§ 242") and one count of felonious civil

rights violation under the same statute. Because the district

court abused its discretion when it empaneled an anonymous jury

to adjudicate Sanchez’s guilt, this court reverses and remands

for a new trial.

I. FACTUAL BACKGROUND

Sanchez was a Galveston Police Officer assigned to patrol

an area of that city frequented by prostitutes and bustling with

illi cit drug activity. While patrolling this area between

September and November of 1992, Sanchez allegedly used the threat1 Specifically, Sanchez was sentenced to prison for 120 months on the

felony count and 12 months on each of the five misdemeanor counts, to be served

consecutively.

2 Because of our disposition of the case on the jury issue, this court

need not reach the merits of Sanchez’s additional argument that the district

court erred in refusing certain of his peremptory challenges.

2 of arrest to coerce five suspected prostitutes to engage in various

sexual acts with him against their will.

Following trial in which the district court empaneled an

anonymous jury, Sanchez was convicted and sentenced to serve 180

months of imprisonment. 1 On appeal, Sanchez contends that: (a)

the district court erred in empaneling an anonymous jury; (b) the

evidence of “significant injury” was insufficient to support

Sanchez’s conviction for a felonious civil rights vio lation; and

(c) the district court erred in e xcluding testimony that

purportedly corroborated Sanchez’s defense that he was the victim

of a conspiracy by the suspected prostitutes against him and the

Galveston Police Department. 2

II. DISCUSSION

A. Anonymous Jury

Until recently, this court had not addressed the

constitutionality of empaneling anonymous juries in criminal

trials. However, in U nited States v. Krout, 66 F.3d 1420, 1427

(5th Cir. 1995) we recognized that “the decision to empanel an

anonymous jury

. . . is a drastic measure, which should be

undertaken only in limited and carefully delineated circumstances.”

Accordingly, this court approved the use of anonymous juries only

“when needed to ensure against a serious threat to juror safety, if3

the courts al so protect the defendants’ interest in conducting

effective voir dire and maintaining the presumption of innocence.”

Id. Krout’s narrowly conscribed approval of anonymous juries

concurs with the reasoning of other federal circuits that have

addressed this issue. S ee, e.g., United States v. Paccione, 949

F.2d 1183 (2d Cir.), cert. denied,

___ U.S.

_ __, 112 S. Ct. 3029

(1992); United States v. Scarfo, 850 F.2d 1015, 1023-26 (3d Cir.),

cert. denied, 488 U.S. 910, 109 S. Ct. 263 (1988); United States v.

Crockett, 979 F.2d 1204 (7th Cir. 1992), cert. denied,

___ U.S.

___, 113 S. Ct. 1617 (1993); U nited States v. Ross, 33 F.3d 1 507

(11th Cir. 1994); United States v. Edmond, 52 F.3d 1080 (D.C. Cir.

1995).

A district court’s decision to empanel an anonymous jury

is entitled to deference and is scrutinized by this court for abuse

of discretion. K rout, 66 F.3d at 1426; United States v. Thornton,

1 F.3d 149, 154 (3d Cir.), cert. denied, ___ U.S. ___, 114 S. Ct.

483 (1993). Factors that may justify the district court’s decision

to protect jurors through anonymity include:

(1) the defendants’ involvement in organized

crime; (2) the defendants’ participation in a

group with the capacity to harm jurors ; (3)

the defendants’ past attempts to interfere

with the judicial process or witnesses; (4)

the potential that, if convicted, the

defendants will suffer a lengthy incarceration

and substantial monetary penalties; and, (5)

extensive publicity that could enhance the

possibility that jurors’ names would become

public and expose them to intimidation and

harassment.

Krout, 66 F.3d at 1427. Additionally, so that “the use of

anonymous juries will remain a device of last resort, it is4

necessary that the district court base its decision on more than

m ere allegations or inferences of potential risk.” I d. As a

result, a district court does not abuse its discretion to empanel

an anonymous jury if the “evidence at trial supports the conclusion

that anonymity was warranted.” I d. ( citing United States v. Wong,

40 F.3d 1347, 1376-77 (2d Cir. 1994)).

In the instant case, jury selection occurred on June 3,

1994, but because the trial judge was required to attend a judicial

conference the following week, the evidentiary phase of trial was

not scheduled to commence until June 13. Planning for this delay,

the magistrate judge issued an or der on May 20 that redacted all

identifying information about prospective jurors from the jury

selection information provided to the parties. The express purpose

of this order was “[t]o minimize the possibility of jury tampering

in this cause during the ten day delay between jury selection and

commencement of the evidentiary phase of the trial.”

The district court overruled the defendant’s objections

to this order and confirmed that the names of the jurors and their

spouses, their addresses and places of employment be deleted from

the jury lists. Simultaneously, however, the district court

acknowledged that there were neither allegations nor inferences of

tampering. Nevertheless, the district court concluded that

redacting the jurors’ identities was necessary because of the delay

following jury selection as well as the potential fears of jurors

adjudicating the guilt or innocence of a police officer. These

potential fears were based on the district judge’s speculation that5

“I don’t think there’s anything more frightening to the p opulous

[sic] [than] having a rogue cop on their hands.”

U nder the framework enunciated in K rout, the court's

decision cannot be upheld. Virtually none of the factors listed in

Krout as justifying an anonymous jury exists in the present case.

No one could demonstrate or even allege that Sanchez was either

involved in organized crime or participated in a group that would

attempt to harm the jurors. Likewise, despite the courts' concern

about jurors' fears of deciding a case about an alleged renegade

policeman, there was no evidence that Sanchez had attempted to

interfere with the judicial process or witnesses. Finally, there

was no indication that the jurors in this case would be subjected

to the ty pe of extensive publicity that might bring about

intimidation and harassment. Because there was no evidence before

the district cour t to support the conclusion that anonymity was

warranted, the district court’s decision erroneously rested on the

“mere allegations or inferences of potential risk.” K rout, 66 F.3d

at 1427. We must conclude that Sanchez's right to be tried before

a panel of identified jurors was not required to be sacrificed in

this case.

The government argues that even if t he K rout criteria

were lacking, it was harmless error to try the ca se before an

anonymous jury because the court conducted extensive voir dire and

enabled Sanchez to pick an unbiased jury, albeit Sanchez did not

know the jur ors' names and addresses or their spouses' or

employers' names. We disagree. The defendant has a right to a3 In part, Harper was prompted by the Supreme Court’s holding in

Hudson v. McMillian, 503 U.S. 1, 112 S. Ct. 995 (1992), that rejected significant

injury as a requirement for claims of cruel and unusual punishment under the

Eighth Amendment.

6 jury of known individuals not just because information such as was

redacted here yields valuable clues for purposes of jury selection,

but also because the verdict is both personalized and personified

whe n rendered by 12 known fellow citizens. Unless the type of

circumstances listed in K rout exist, where the defendant has

essentially compromised his right, he should receive a verdict, not

from anonymou s decisionmakers, but from people he can name as

responsible for their actions. In closer cases on the merits of

requiring anonymity, there mig ht be room for a harmless error

analysis, but this is not such a case. The conviction must be

reversed and remanded for retrial.

B. “Significant Injury”

Sanchez cannot escape retrial on the ground that there

was insufficient evidence to sustain his conv iction for the

felonious civil rights violation of one of his victims, Paula Ruiz

(“Ruiz”). Specifically, Sanchez argues that the government failed

to prove that Ruiz suffered a significant injury during Sanchez’s

attack. While Sanchez recognizes that after H arper v. Harris Co.,

21 F.3d 597, 600 (5th Cir. 1994), this court no longer requires

significant injury for a victim to complain of excessive force

under the Fourth Amendment, he nevertheless urges that Harper was

not clearly established, controlling law in 1992, when the attack

on Ruiz occurred. 3 Rather, Sanchez argues that H arper’s4 United States v. Olano, ___ U.S. ___, 113 S. Ct. 1770, 1776-79

(1993).

5 Since Ruiz did suffer significant injury, this court need not

address whether such injury was required as part of a violation of the Fourth

Amendment right to be free from excessive force in October or November, 1992.

7 predecessor, Johnson v. Morel, 876 F.2d 477, 480 (5th Cir. 1989)

( en banc ) was the controlling law in this circuit and that Johnson

required a showing of significant injury for a victim to seek

Fourth Amendment relief for excessive force.

Sanchez did not argue in the trial court, as he does

here, that significant injury was an element of a criminal civil

rights violation based on excessive force. He did not object to

the jury charge for failing to require a finding of significant

injury; the charge required only a finding of bodily injury. Thus,

to the extent Sanchez’s present position is a jury charge argument

cloaked as a sufficiency argument we may review it only for plain

error. Under the stringent Olano test, we find none. 4

Even if Sanchez is correct and Johnson was the

controlling law when the attack on Ruiz occurred, 5 the evidence at

trial was sufficient to demonstrate significant injury and to

sustain a felony conviction under Count 5. Ruiz testified that

Sanchez, who had on an earlier occasion coerced her into performing

or al sex, not only threatened to kill her, but also slammed her

against his car, struck her on the head with his gun, and, when she

fell, pulled her up by the hair and choked her. The assault left

Ruiz with torn clothing, a knot on her head, and scratches on her

body. Her roommate, Rebecca McAdams (“McAdams”) testified that6 The conclusion that Ruiz’s injury was significant accords with other

decisions of this court. For example, in Hay v. City of Irving, Tex., 893 F.2d

796 (5th Cir. 1990), this court held that an arrestee who was physically

resisting the police demonstrated significant injury when the officer's assault,

although leaving the arrestee with bruises and extensive pain, did not require

him to be “hospitalized, and the doctor prescribed nothing stronger than

Tylenol.” Hay, 893 F.2d at 798. See also Oliver v. Collins , 914 F.2d 56, 58

(5th Cir. 1990).

8 when Ruiz returned to their home after the attack, “[s]he was very

hysterical. She was crying and screaming and her clothes were

torn. She was very upset and hurting. She was hurting real bad.”

According to McAdams, Ruiz repeatedly complained about pain in her

stomach and abdomen. Although McAdams offered to take Ruiz to the

hospital, Ruiz refused, fearful that Sanchez would retaliate if she

discussed the assault with hospital personnel.

As this testimony demonstrates, Sanchez’s attack on Ruiz

satisfies Johnson’s requirement of significant injury. In J ohnson,

the vict im was handcuffed by police so tightly as to scar his

wrists and cause him pain for two weeks. J ohnson, 876 F.2d at 478.

By contrast, Ruiz was threatened by Sanchez with death, slammed

against his car, struck on the head with his gun, pulled from the

floor by her hair, and choked, leaving her with a knot on her head,

scr atches, bruises, and abdominal as well as stomach pain.

Furthermore, in Johnson, the victim was under arrest when he was

allegedly subjected to excessive force by the police, while in the

present case, Ruiz was never under arrest; in different terms, the

a ssault on Ruiz was an assault on a citizen over whom the police

had no probab le cause even to exert reasonable force. 6 Even if

Sanchez had enjoyed such authority, Ruiz is a 23-year-old woman who

was neither belligerent nor any physical threat to him; hence,9

Sanchez’s use of such violent force was obviously excessive. The

evidence at trial was sufficient to conclude that because Ruiz was

not under arrest and posed no threat to Sanchez, his use of violent

force was excessive and violated her civil rights.

C. Conspiracy Theory

Finally, Sanchez contends that the district court erred

when it excluded the testimony of Jorge Trevino (“Trevino”), a

fellow Galveston police officer, who was to testify that at some

time after Sanchez had been indicted, Trevino was approached by a

local prostitute and was warned, “You’re next.” From this

statement, Sanchez apparently inferred that he was a victim of a

conspiracy organized by local prostitutes to remove law enforcement

officers from the streets. As a result, Sanchez argues that the

district court’s exclusion of the testimony deprived him of the

right to present a witness in his defense, implicating his Sixth

Amendment rights and other due process concerns.

Finding no basis fo r Sanchez’s inference, the district

court ruled that the testimony was inadmissible under Fed. R. Evid.

403 because “the prejudicial implication of an uncorro b orated

allegation manifestly outweighs the probative value.” Indeed, the

court found that such an unsupported allegation “would tax the

bounds of paranoia to suggest that all the women in Galveston have

banded together to do violence to the police department.” The

court further concluded that the testimony was inadmissible under

either Fed. R. Evid. 405(b) or 40 4(a) because it constituted

“merely a random uncorroborated act that seeks to exonerate.”10 This court reviews for abuse of discretion the district

court’s decision to exclude u nduly prejudicial evidence. U nited

States v. Rocha, 916 F.2d 219, 241 (5th Cir. 1990), cert. denied,

500 U.S. 934, 111 S. Ct. 2057 (1991) (requiring a “clear showing of

prejudicial abuse of discretion”); United States v. Blake, 941 F.2d

334, 340 (5th Cir. 1991), cert. denied,

___ U .S. ___, 113 S. Ct.

596 (1992). In this case, there was no evidence before the

district court that any of Sanchez’s victims had con spired to

conjure charges against him. The excluded statement was allegedly

made by a prostitute who, apart from her illicit vocation, had no

discernible association with any of the victims. Although Sanchez

contends that the statement was somehow exculpatory, there was

substa ntial and corroborated evidence of his guilt. Hence, the

district court’s decision to exclude uncorroborated, speculative

testimony of a mysterious conspiracy to frame Sanchez was not an

abuse of its discretion.

CONCLUSION

Because the district court abused its discretion when it

empaneled an anonymous jury to adjudica te Sanchez’s guilt, this

court REVERSES his convictions and REMANDS for a new trial.