IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 97-40172

_____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

EDELMIRO DELAGARZA-VILLARREAL,

Defendant-Appellant.

_________________________________________________________________

Appeal from the United States District Court for the

Southern District of Texas, McAllen

_________________________________________________________________ May 8, 1998

Before WISDOM, JOLLY, and HIGGINBOTHAM, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

Edelmiro Delag arza-Villarreal (“Delagarza”) appeals his

convictions for conspiracy to possess with int ent to distribute

marijuana and possession with inten t to distribute marijuana.

Delagarza argues that the evidence is insufficient to support the

convictions, that he received ineffective assistance o f counsel,

and that the trial court erred when it refused to grant his motion

for a mistrial based upon evidence of government misconduct. This

appeal also presents an issue of apparent first impression in this

circuit--the scope of the fugitive disentitlement doctrine in the

light of the Supreme Court’s opinion in Ortega-Rodriguez v. United

States

. 507 U.S. 234, 113 S.Ct. 1199, 122 L.Ed.2d 581 (1993). We-2-

decline to apply the doctrine in this instan ce to dismiss

Delagarza’ s appeal. We instead affirm the conspiracy conviction

and reverse the conviction for possession because of insufficient

evidence that Delagarza aided and abetted any co-conspirator’s

possession of marijuana.

I

This case arises from a reverse-buy sting operation. In March

1994, Delagarza asked Jorge Guajardo-Benavidez (“Guajardo”), an

acquaintance of Delagarza’s for more than ten years, to broker a

marijuana transaction. Delagarza had several prospective

purchasers and Guajardo had connections--one of whom, unbeknownst

to him, was an informant. Guajardo contacted the informant to set

up the transaction and a meeting was arranged between Guajardo, and

the informant, and the Mexican drug supplier, “Juan Fonseca,” who

was in fact an undercover officer.

At the meeting, Guajardo inspected a sample of marijuana--a 41⁄2

pound “brick”--and, based upon the sample, struck a deal for a 500-

pound purchase at $250 per pound with a $40,000- to $60,000-down

payment, with the remainder due in two weeks. Guajardo suggested

that the transaction take place at a “stash house” on Sprague

Street in Edinburg, Texas, a location selected by Delagarza. The

men attempted to do the deal the following day, March 31, 1994, but

Delagarza’s purchasers had suddenly departed. They agreed to try

again later.-3-

On April 18, 1994, Delagarza met with Guajardo and told him

that his purchasers had returned to town and they could complete

the drug deal. Guajardo and Delagarza agreed to meet later after

Guajardo had conta cted the undercover officer. Guajardo and the

officer met at a K-Mart parking lot an d agreed on a 500-pound

delivery. Guajardo then returned to the Sprague Street stash

house, where he found Delagarza with Norberto De La Rosa and Felipe

Clemente Munoz--the buyers. All three men joined Delagarza in his

vehicle and proceeded to rendezvous with the undercover officer at

the K-Mart parking lot.

The undercover office r, who carried a hidden wire, recorded

the meeting on audiotape. Guajardo approached the undercover

officer and told him that the money was there. Both men then

returned to Guajardo’s vehicle. The undercover officer asked how

much money they had and De La Rosa answered “Cuarenta” (meaning

$40,000). De La Rosa then asked if the marijuana was “guaranteed”

and Munoz displayed the cash contained in a towel. Delagarza

inquired whether the weed was of good quality, specifically, if the

marijuana was “green.” The officer answered affirmatively that the

drug was “pino” or green.

Upon confirmation that the marijuana was to be delivered to

the S prague Street stash house, the undercover officer gave the

“bust signal” and arrested all four men--Guajardo, Delagarza, De La

Rosa, and Munoz. The authorities seized exactly $40,000.

II-4-

Delagarza, Guajardo, De La Rosa, and Munoz were all charged in

a two-count indictmen t for conspiracy to possess with intent to

distribute and possession with intent to distribute marijuana. The

three co-defendants pled guilty, but Delagarza elected for trial.

The ca se began on August 9, 1994, and two days later, Delagarza

a bsconded during a court recess. A warrant was issued for his

arrest, and the trial went forward.

Meanwhile, the prosecutor learned that the case agent had held

a brief, unauthorized conversation with two jurors, discussing his

educational background, job experience, personal on-the-job safety,

and law enforcement corruption. The prosecutor advised the court

of the se happenings and the court interviewed the two jurors,

discussed the communications with the entire panel, dismissed the

two conversationalists, and replaced them with two alternates. The

case proceeded against Delagarza in absentia, and the jury returned

a guilty verdict as to the two charges o n August 15, 1994. A

sentencing date was set two months later, but Delagarza failed to

show.

Co-defendants De La Rosa and Munoz m oved to withdraw their

guilty pleas during Delagarza’s absence in the spring of 1995. A

superseding indictment was handed down against them and a jury

selected for the upcoming trial. Before trial began, however, the

two defendants opted to withdraw their motions to withdraw their

guilty pleas and abide by the terms of their original plea1 Delagarza had previously pled guilty to a superseding

indictment for his failure to appear.

-5- agreements. Guajardo, De La Rosa, and Munoz were sentenced on

March 27, 1996. None appealed.

Authorities recaptured Delagarza on April 23 , 1996, and

returned him to the custody of the trial cou r t. The court

sentenced him on August 7, 1996, to serve two concurrent 120-month

terms of imprisonment for the drug convictions followed by a

consecutive one-day sentence for his failure to appear conviction. 1

Delagarza timely appealed.

III

As an initial matter, we address the government’s request that

we invoke our discretion and employ the fugitive disentitlement

doctrine to dismiss Delagarza’s appeal without reaching the merits.

It is genera lly accepted that circuit courts have the

authority to fashion procedural rules governing the management of

litigation before them. O rtega-Rodriguez v. United States

, 5 0 7

U.S. 234, 252, 113 S.Ct. 1199, 1210, 122 L.Ed.2d 581 (Rehnquist,

C.J., dissenting) (1993). Specifically, the Supreme Court

recognized almost thirty years ago that an appeal may be dismissed

if the appellant becomes a fugitive from justice while his appeal

is pending. M olinaro v. New Jersey

, 396 U.S. 365, 365-66, 90 S.Ct.

498, 498-99, 24 L.Ed.2d 586 ( 1970) (coining doctrine of

disentitlement); United States v. DeValle , 894 F.2d 133, 134, 138

(5th Cir. 1990) (“As a general matter, willful flouting of the-6-

judicial system on the part of one seeking appellate redress should

not go wholly unrecognized.”); United States v. Glomb

, 877 F.2d 1,

3 (5th Cir. 1989). Since then, we have incrementally expanded the

rule to allow dismissal when the fugitive is captured before the

motion to dismiss the appeal is ever filed, and, even further, this

circuit has held that the appellate court retains the discretion to

dismiss an appeal when the appellant’s fugitive status commences

before the f iling of an appeal. D eValle

, 894 F.2d at 136. In

fact, the case law could be read to condone dismissal even though

recapture may occur before the appellate process is invoked. Id.

(noting dismissal may be appropriate “at least a s to trial

proceedings completed before the appellant became a fugitive.”).

The Supreme Court, however, curtailed the application of the

fugitive disentitlement doctrine in its 1993 Ortega-Rodriguez

opinion. S ee 507 U.S. at 249-51, 113 S.Ct. at 1208-10. The facts

then b efore the Court closely mirror those before us now. The

defendant had fled the jurisdiction of the district court after

conviction, but was apprehended before sentencing and appeal. The

Eleventh Circuit, without addressing the merits of the appellant’s

arguments, dismissed the appeal under the fugitive disentitlement

doctrine. The Supreme Court granted certiorari to determine the

proper reach of the doctrine.

The Co urt initially acknowledged that “dismissal by an

appellate court after a defendant has fled its jurisdiction serves

an im portant deterrent function and advances an interest in-7-

efficient, dignified appellate practice.” O rtega-Rodriguez

, 507

U.S. at 24 2, 113 S.Ct. at 1204-05 (emphasis added). Noting that

the justifications advanced for allowing dismissal all assume that

a sufficient connection exists b etween the defendant’s fugitive

status and the appellate process so as to make dismissal a

reasonable sanction, the Court turned to examine the basis for that

assumption when a fugitive is recaptured before the appellate

process begins. Id. at 243-45, 113 S.Ct. at 1205-06.

The Court first noted that the risk of unenforceability of an

appellate court’s judgment is nonexistent if the defendant is in

cu stody when he begins the appellate process. I d. at 244, 113

S.Ct. at 1206. Similarly, the “efficient operation” of the

appellate process generally will not have been int errupted by a

fugitive’s absconding when the fugitive files an appeal after

recapture. Id. at 245, 113 S.Ct. at 1206 (noting that court that

faces “additional trouble” is “the court before which the case is

pending at the time of escape”). Similarly, the fugitive’s flight

from the district court’s jurisdiction affronts the dignity of the

district court--not that of the appellate court--and the t rial

court has available to it adequate sanctioning authority to defend

its own dignity. I d. at 245-46, 113 S.Ct. at 1206-07. Because the

trial court “is quite capable of defending its own jurisdiction,”

the district court may fashion an appropriate punishment to deter

escape. Deterrence from escape of the district court’s

jurisd iction thus fails to withstand scrutiny as a justification2 The Court specifically noted, however, that an appeal

successfully premised on insufficiency of the evidence would fall

outside that class of cases. Irrespective of the prejudice to the

gov ernment, a defendant may not be retried if he wins under that

argument. 507 U.S. at 249, 113 S.Ct. at 1208. Delagarza presents

arguments premised on insufficiency of the evidence, but also on

ineffective assistance of counsel and failure to grant a mistrial.

-8- for appellate dismissal when recapture occurs before the appellate

process is invoked. Id. at 247, 113 S.Ct. at 1207.

Thus, the Court concluded that

while dismissal of an appeal pending while the defendant

is a fugitive may serve substantial interests, the same

interests do not support a rule of dismissal for all

appeals filed by former fu gitives, returned to custody

before invocation of the appellate system. Absent some

connection between a defendant’s fugitive status and his

appeal , as provided when a defendant is at large during

“the ongoing appellate process,”

. . . the justifications

advanced for dismissal of fugitives’ pending appeals

generally will not apply.

Id. at 249, 113 S.Ct. at 1208 (emphasis added).

The Court, however, did not completely disembowel an appellate

court’s authority to apply the disentitlement doctrine when a

defendant’s fugitive status predates the appeal. I d.

, 113 S.Ct. at

1208 . For instance, if a long escape would so prejudice the

government at ret rial after a fugitive’s successful appeal,

employment of the doctrine may be appropriate. 2 I d.

, 113 S.Ct. at

1208. Similarly, a defendant’s flight that prevents the appellate

court from consolidating his appeal with that of his co-defendants

could justify application of the dismissal rule, if the appellate

court were to determine that the inability to consolidate worked a

“s i gnificant interference with the operation of its appellate-9-

process.” I d. at 250, 113 S.Ct. at 1209. Finally, the Court

declined to require a case-specific analysis, but provided that

appellate courts may fashion generally applicable rules to apply to

specific, recurring situations. Furthermore, the circuits need not

operate in uniformity in their promulgation of fugitive dismissal

rules. Id. at 250-51 nn.23 & 24, 113 S.Ct. at 1209 nn.23 & 24.

This appeal presents this Circuit’s first opportunity to offer

our interpretation of Ortega-Rodriguez . The government maintains

that it will be unduly prejudiced should Delagarza succeed in his

appeal and this action be remanded for a new trial. The audio

taped conversations of Delagarza and his co-defendants along with

the “brick” of marijuana have since been destroyed, and the $40,000

has been forfeited to state authorities. The government also

contends that it already has been unduly prejudiced by Delagarza’s

fleeing because the co-defendants, who had initially pled guilty,

attempted to withdraw their pleas when Delagarza fled.

Notwithstanding the government’s arguments, however, we must

conclude that the alleged prejudice to the government will not

suffice to support d ismissal of Delagarza’s appeal. First, the

government failed sufficiently to demonstrate that the “brick” of

marijuana would not have been destroyed nor the $40,000 forfeited

to the state absent Delaga rza’s fugitive status. Second, should

Delagarza succeed on his insufficiency of the evidence arguments,

this action will not be remanded for a new trial. The Supreme

Court laid down a specific rule that prejudice to the government at3 See supra note 2.

-10-

retrial may not be utilized as a factor favoring dismissal of the

appeal when the fugitive defendant’s argument concerns sufficiency

of the evidence, simply because success on an insufficiency of

evidence argument would not result in retrial. 3

Additionally, the govern ment made no attempt to tie the

co-defendants’ decisions to withdraw their guilty pleas to

Delagarza’s absence. There is no evidence before this court that

De La Rosa and Munoz attempted to withdraw their guilty pleas

because of Delagarza’s fugitive status. We do not mean to place a

significantly heavy burden on the prosecution to demonstrate

prejudice before application of the disentitlement doctrine may be

imposed. We simply hold that, whatever the burden may be, the

government did not meet it in this instance.

The government also suggests that the long d elay of the

instant appeal, occasioned by Delagarza’s fugitive status,

unnecessarily burdened this court’s appellate process. We cannot

say, however, that the delay in this case significantly interfered

with our judicial process. S ee Ortega-Rodriguez

, 507 U.S. at 250,

113 S.Ct. at 1209. Again, it is important to note what we are n ot

holding: We are n ot holding that delay occasioned by a defendant’s

fleeing may never work a significant interference with our court

system so as to justify di smissal. We are holding only that the

delay in this case fails to meet that standard.-11-

Finally, the government maintains that dismissal is proper

because Delagarza’s fugitive status created the potential for

separate appeals. Although the three co-defendants who pled guilty

did not appeal, the government argues that they could have done so

and this court could not have consolidated all of the defendants’

appeals beca use of Delagarza’s absence. For instance, the

g overnment maintains that the three co-defendants’ appeals cou l d

have been consolidated had they appealed, but, in such a situation,

Delagarza, because of his fugitive status, would have been afforded

his own separate appeal absent application of the disentitlement

doctrine. Thus, the government suggests that we develop a general

rule allowing dismissal of any fugitive defendant’s appeal when

that defendant has bee n tried and convicted with one or more codefendants who could have appealed from their own convicti ons or

sentences.

It is true that the Supreme Court specifically noted that a

defendant’s flight that worked a significant interference with the

appellate process by preventing the appellate court from

consolidating his appeal with those of his co-defendants c ould

justify application of the dismissal rule. In this case, however

Delagarza’s co-defendants did not appeal and we are unable to hold

that affording Dela garza an appeal works a “significant

interference” with our normal appellate practice. We are thus

constrained to hold that the mere potential interference with our

consol idation process presented here does not meet the requisite4 We employ this standard of review because Delagarza preserved

his insufficient evidence claim by moving for a judgment of

acquittal at trial. U nited States v. Sneed

, 63 F.3d 381, 385, n.2

(5th Cir. 1995), cert. denied , 516 U.S. 1048, 116 S.Ct. 712, 133

L.Ed.2d 667 (1996); see United States v. Galvan

, 949 F.2d 777, 782-

83 (5th Cir. 1991) (reviewing for “manifest miscarriage of justice”

because defendant failed to move for directed verdict or judgment

of acquittal).

-12- test for demonstrating “some connection between [the] defendant’s

fugitive status and his appeal.” The prosecution’s motion to

dismiss shall be denied.

IV

A

Turning to the merits of the appeal, Delagarza initially

argues that the evidence is insufficient to support his conviction

for conspiracy to knowingly and intentionally possess with intent

to distribute a controlled substance. He contends that there is no

evidence that he made any arrangements to purchase the marijuana

and that the uncorroborated testimony of an alleged co-conspirator

does not prove his guilt beyond a reasonable doubt. The government

maintains, however, that all of the evidence, including Guajardo’s

testimony, sufficiently supports the conviction.

(1)

When evaluating an insufficiency claim, we view the evidence

and all reasonable inferences to be drawn therefrom in the light

most favor able to the government to determine whether a rational

trier of fact could have found the essential elements of the

offense beyond a r easonable doubt. 4 U nited States v. Greer

, 137-13-

F.3d 247, 249 (5th Cir. 1998) (citing United States v. Bell , 678

F.2d 547, 549 (5th Cir. 1982) (en banc), aff’d , 462 U.S. 356, 103

S.Ct. 2398, 76 L.Ed.2d 638 (1983)); United States v. Burton

, 126

F.3d 666, 669-70 (5th Cir. 1997). “‘The evidence need not exclude

every reasonable hypothesis of innocence or be wholly inconsistent

with every conclusion except that of guilt, and the jury is free to

choose among reasonable constructions of the evidence.’” Burton

,

126 F.3d at 669-70 (quoting United States v. Bermea

, 30 F.3d 1539,

1551 (5th Cir. 1994)). Our review does not change irrespective of

whether the evidence is direct or circumstantial. B urton

, 126 F.3d

at 670. What we may not do is reweigh the evidence or assess the

credibility of the witnesses, but instead we must “‘accept all

credibility choi ces that tend to support the jury’s verdict.’”

Sneed

, 63 F.3d at 385 (quoting United States v. Anderson

, 933 F.2d

1261, 1274 (5th Cir. 1991)); United States v. Lopez , 74 F.3d 575,

577 (5th Cir.), cert. denied

,

___ U .S. ___, 116 S.Ct. 1867, 134

L.Ed.2d 964 (1996).

(2)

To prove a drug conspiracy in violation of 21 U.S.C. §§ 841

and 846, the government must present evidence demonstrating beyond

a reasonable doubt (1) the existence of an agreement between two or

more persons to violate the narcotics laws, (2) that the defendant

knew of the agreement, and (3) that he voluntarily participated in5 Delagarza argues that the government failed to prove an overt

act in furtherance of the conspiracy. No proof of an overt act is

required in order to obtain a conviction for conspiracy to possess

a controlled substance with the intent to distribute it. U nited

States v. Bermea

, 30 F.3d 1539, 1551-52 (5th Cir. 1994), cert.

denied

, 513 U.S. 1156, 115 S.Ct. 1113, 130 L.Ed.2d 1077 (1995);

United States v. Ayala , 887 F.2d 62, 67 (5th Cir. 1989).

-14- the agreement. 5 U nited States v. Malt os , 985 F.2d 743, 746 (5th

Cir. 1992) (citing United States v. Gallo , 927 F.2d 815, 820 (5th

Cir. 1991)). The government is not required to make its case

through direct evidence, but “[t]he agreement, a defendant’s guilty

knowledge and a defendant’s participation in the conspiracy all may

be inferred from the ‘ development and collocation of

circumstances.’” M altos

, 985 F.2d at 746 (quoting United States v.

Lentz

, 823 F.2d 867, 868 (5th Cir.) (quoting United States v.

Vergara , 687 F.2d 57, 61 (5th Cir. 1982)), cert. denied , 484 U.S.

957, 108 S.Ct. 354, 98 L.Ed.2d 380 (1987)).

The defendant’s mere presence at the crime scene is alone

insufficient to support a reasonable inference that he is a

participant in the conspiracy. United States v. Chavez , 947 F.2d

742, 745 (5th Cir. 1991). Presence and association, along with

other evidence, however, are factors that may be considered by the

jury in finding conspiratorial participation. Id.

The record contains ample evid e nce supporting the jury’s

finding beyond a reasonable doubt that Delagar za knew about and

voluntarily participated in a drug conspiracy. Guajardo testified

that he sought to buy marijuana from the informant at Delagarza’s-15-

request and that a connection existed between D elagarza and the

stash house on Sprague Street. Delagarza actively participated in

discussions with the undercover officer before the drug deal was

consummated and he was present w hen the participants decided to

make the drugs-for-money exchange at the Sprague Street residence.

We find unpersuasive Delagarza’s sufficiency argument with respect

to his conviction for conspiracy.

B

Delagarza argues more persuasively that the evidence is

insufficient to support his conviction for possession with intent

to distribute marijuana, the substantive count of which he was

convicted. To obtain a conviction for possession with intent to

distribute, the government must prove that the defendant: (1)

knowingly (2) possessed a controlled substance (3) with intent to

distribute it. United States v. Gonzales , 121 F.3d 928, 936 (5th

Ci r. 1997); L opez

, 74 F.3d at 577 (citing United States v. DiazCarreon

, 915 F.2d 951, 953 (5th Cir. 1990)). The government

proceeded against Delagarza under an aiding and abetting theory--

that is, that he aided and abetted Guajardo in possessing marijuana

with the intent to distribute it.

A defendant may b e convicted of aiding and abetting a

substantive criminal offense “when he associates with the criminal

activity, participates in it, and acts to help it succeed.”

Gonzales , 121 F.3d at 936. “A conviction for aiding and abetting

the possession of a controlled substance with intent to distribute-16-

does not require that [the defendant] have actual or constructive

possession of the drug. It only requires that [he] associate

himself with the venture, and participate in a way calculated to

bring about that venture’s success.” U nited States v. Pena

, 949

F.2d 751, 755-56 (5th Cir. 1991). Here, Delagarza must have aided

a nd abetted “both the possession of the drug and the intent to

distribute it.” U nited States v. Williams

, 985 F.2d 749, 753 (5th

Cir. 1993). We may uphold the conviction even if Delagarza never

had actual or constructive possession of the marijuana. G onzales

,

121 F.3d at 93 6; Williams , 985 F.2d at 753. While Delagarza

hi mself need not have actually or constructively possessed the

marijuana in order to sustain his conviction, at least one of his

co-defendants must have had such possession. U nited States v.

Lindell

, 881 F.2d 1313, 1322-23 (5th Cir. 1989) (noting defendant’s

actions “facilitated the possession by others of marihuana with the

intent to distribute.”).

The government contends that co-defendant Guajardo’s

“possession” of the sample 41⁄2 pound brick of marijuana when he

inspected it for its quality, along with evide nce of Delagarza’s

active participation and presence at the drug negotiations,

suffices to support Delagarza’s conviction. Although the evidence

easily supports a reasonable juror’s finding that Delagarza aided

and abetted an intention or plan to distribute marijuana once it

was possessed, the evidence will not support a finding that he

aided and abetted the possession of marijuana. The simple fact is-17-

that Guajardo never possessed the 41⁄2 pound sample. Based on the

evidence in the record before us, no rational trier of fact could

have so found. The only evidence in the record is that the

undercover agent “handed Guajardo a sample of marihuana . . . for

his inspection” during the negotiations. Guajardo’s mere

inspection in this instance does not constitute poss ession,

especially when Guajardo did not purchase the brick and returned it

to the undercover agent. Inasmuch as the record will not support

possession by Guajardo , Delagarza did not aid and abet the

possession of the marijuana brick and his aiding a nd abetting

conviction must thus be overturned.

C

As his third point of error, Delagarza argues that he received

ineffective assistance of counsel at trial in violation of the

Sixth Amendment. Delagarza raises this issue for the first time on

appeal . As a general rule of practice, we will not address on

direct appeal ineffective assistance c laims not presented to the

district c ourt. U nited States v. Chavez-Valencia

, 116 F.3d 127,

133-34 (5th Cir. 1997); United States v. Gaytan , 74 F.3d 545, 557

(5th Cir.), cert. denied , ___ U.S. ___, 117 S.Ct. 77, 136 L.Ed.2d

36 (1996); U nited States v. Packer

, 70 F.3d 357, 361 (5th Cir.

1995) (quoting United States v. Navejar

, 963 F.2d 732, 735 (5th

Cir. 1992)), cert. denied

,

___ U.S.

___, 117 S.Ct. 75, 136 L.Ed.2d

34 (1996); United States v. Fry

, 51 F.3d 543, 545 (5th Cir. 1995).

We gra nt an exception to this rule “only in rare cases where the-18-

record allow[s] us to fairly evaluate the merits of the claim.”

Navejar , 963 F.2d at 735.

Delagarza maintains that his trial attorney failed to object

to numerous hearsay statements and to the admission into evidence

of several extraneous offenses of his co-conspirators. The

district court held no hearing on the matter to develop the facts

and the record does not provide sufficient detail about the

attorney’s conduct to allow us to make a fair evaluati on of the

merits of Delagarza’s claim. We thus deny Delagarza’s appeal on

this ground without prejudice to his ability to raise it

collaterally in a habeas corpus proceeding.

D

In his final point of error, Delagarza maintains that his

Fourteenth Amendment rights were violated “by the intentional acts

of government agents.” While the trial was ongoing, two sitting

jurors approached the case agent and engaged in a five- to

fifteen-minute conversation with him. Their inquiries did not

concern the specifics of the trial, but instea d indicated their

curiosity with certa in aspects of the agent’s occupation.

Delagarza’s trial counsel requested a mistrial, but the district

judge denied the motion, dismissed the two jurors from the panel,

and replaced them with two alternates. Although trial counsel

indicated his satisfaction with the remaining jurors’ retention on

the panel and did not renew the motion for mistrial, Delagarza now

argues that the officer’s conduct was so outrageous that it6 The government maintains that Delagarza has not appealed the

denial of his motion for mistrial and, thus, that he has waived

that issue. United States v. Denman , 100 F.3d 399, 405 (5th Cir.

1996) (“We review for abuse of discretion a trial judge’s denial of

a motion for mistrial based on alle gations of improper

extrajudicial conduct by jurors.”); United States v. Almeida-Biffi

, 825 F.2d 830, 833 (5th Cir. 1987), cert. denied

, 485 U.S. 1010, 108

S.Ct. 1478, 99 L.Ed.2d 706 (1988). A pplewhite v. Reichhold

Chemicals, Inc. , 67 F.3d 571, 573 (5th Cir. 1995) (noting failure

to brief and argue issue constitutes waiver ). Because Delagarza

did not raise this argument with the district court, according to

the government, we review for plain error. U nited States v.

Wilson , 116 F.3d 1066, 1085 (5th Cir. 1997); Fed.R.Crim.P. 52(b).

Plain error is “‘error so obvious and substantial that failure to

notice it would affect the fairness, integrity, or public

reputation of the judicial proceedings and would result in manifest

injustice.’” U nited States v. Johnson

, 127 F.3d 380, 393 (5th Cir.

1997) (quoting United States v. Reyes

, 102 F.3d 1361, 1364 (5th

Cir. 1996)). In his brief, however, Delagarza lists as his fourth

issue that “[t]he trial court e rred in not granting a motion for

mistrial upon receiving evidence that one of the Government’s

wit ness [sic] had conversed with jury members outside of the

courtroom

. . . .” As is evident from our discussion, however,

Delagarza’s appeal on this ground is meritless irrespective of the

standard of review.

-19- violated his right to a fair trial and we should thus dismiss the

charges against him. 6

In a criminal case, any private communication,

contact, or tampering dire ctly 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.

Denman

, 100 F.3d at 405 (quoting Remmer v. United States

, 347 U.S.

227, 229, 74 S.Ct. 450, 451, 98 L.Ed.2d 654 (1954)). The trial

court must conduct a hearing after receiving notice of such

communication to determine the underlying circumstances, the impact-20-

of the contact on the juror, and if prejudice resulted. Id. Our

cases set out a two-p ronged inquiry: (1) whether the challenged

interchange was about the matter pending before the jury, and (2)

whether the defendant was prejudiced by the discussion. Id.

The distric t court conducted an adequate investigation into

the case age nt’s conversation with the two jurors. Before

dismissing them, the judge interviewed the two jurors and

determined that the topic of their communication with the agent was

unrelated to the trial and, although certainly improper, resulted

in no prejudice to Delagarza. The court further questioned the

remaining jurors as to wheth er they had communicated with the

dismissed jurors. None had and the court properly replaced the

dismissed jurors with alternates and allowed the trial to continue.

Whether we review for plain error or abuse of discretion,

Delagarza’s appeal on this issue is without merit and is denied.

V

For the foregoing reasons, we reverse Delagarza’s conviction

for possession with intent to distribute marijuana and affirm his

conviction for conspiracy to possess with intent to distri bute

marijuana.

MOTION TO DISMISS DENIED;

AFFIRMED in part; REVERSED in part; and

REMANDED for RESENTENCING.