IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 97-41147

_____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOSE LUIS SNELL,

Defendant-Appellant.

________________________________________________________________

Appeal from the United States District Court for the

Southern District of Texas

_________________________________________________________________ August 19, 1998

Before JOLLY, SMITH, and BARKSDALE, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

Jose Luis Snell solicited a bribe to deliver a “not guilty”

verdict from the jury on which he served. He was then prosecuted

and stands convicted by his gu ilty plea. He appeals only his

sentence. He argues that the district court erroneously applied a

sentencing enhancement for bribery of a “government official” in a

“high-level decision-making or sensitive position” under U.S.S.G.

§ 2C1.1(b)(2)(B). Because we agree that a juror falls within this

provision, we affirm.2 I

Snell served as a juror in the trial of U nited States v.

Alejandro Gudino-Vara & Ruben Anselmo Zea-Luna

, CR No. M-96-198, in

federal district court in the Southern District of Texas. The

defendants in that case we re accused of conspiracy to possess

approximately 113 kilograms of marijuana with th e intent to

distribute it.

During the trial, Snell approached members of the defendants’

families, suggesting that they contact him. When they did not do

so, he approached again, telling Gudino-Vara’s wife that he could

“make the others also be in favor; there are 5 or 6 of us.” He met

with three family members that eveni ng in Reynosa, Mexico, to

discuss a payment in exchange for delivering a “not guilty”

verdict. He requested $18,000 for his efforts, but agreed to

accept $10,000 up front and $8,000 upon delivery of the favorable

verdict. He received the $10,000 later that night.

Snell persuaded the other jurors to select him as foreman.

Despite Snell’s efforts, the other jurors favored a guilty verdict

almost immediately. He nevertheless held out for a “not guilty”

verdict, protracting the jury deliberations. Snell finally gave up

when other jury members asked him whether “he had been paid off or1 One of the jurors also informed law enforcement officers that

Snell had been observed approaching the defendants’ family members

during the trial.

3 if someone had gotten to him.” 1 The jury delivered a verdict of

guilty for both defendants.

Shortly after the trial, the family members contacted Snell.

It should not have surprised Snell that they wanted their money

back. Snell, however, returned only $3,000, while claiming that he

had spent the rest to bribe other jury members. This would not do.

So, the family members went to the Federal Bureau of Investigation.

Ultimately, they agreed to cooperate with the government in

exchange for immunity. In a series of taped conversations, Snell

described the previous events. Furthermore, and apparently trying

to redeem his failure to deliver a not guilty verdict, he discussed

the p ossibility of bribing the judge or probation officer to

achieve lesser sentences for the defendants. With this evidence in

the hands of the prosecutors, Snell was indicted for bribery under

18 U.S.C. § 201(b)(2)(A). He later pleaded guilty and was duly

sentenced. He appeals his sentence.

II

The d istrict court determined Snell’s sentence by applying

U.S.S.G. § 2C1.1, which deals with bribery of a person, such as a

public official, for a corrupt purpose. The court began with the

required base offense level of ten, see § 2C1.1(a), and added two4

levels because the offense involved mor e than one bribe, s ee

§ 2C1.1(b)(1). The court then added eight levels because the

o ffense involved a “payment for the purpose of influencing an

elected offi cial or any official holding a high-level decisionmaking or sensitive position

. . . .” § 2C1.1(b)(2)(B). Snell

challenges this last enhancement.

A

In reviewing sentences under the sentencing gui delines, we

examine a distr ict court’s factual findings only for clear error

and afford great deference to the court’s application of the

guidelines to those facts. U nited States v. Tomblin

, 46 F.3d 1369,

1391 (5th Cir. 1995). Factual questions, such as the discretion,

supervisory authority, and other indicia of responsibil ity of an

o fficial, are not at issue in this case, however. The question

whether a juror is an official holding a high-level decision-making

or sensitive position, because it depends pri marily upon

interpretation of the sentencing guidelines, is a question of law

that we review de novo

. S ee United States v. Stephenson

, 895 F.2d

867, 877 (2d Cir. 1990) (examinin g whether an “Export Licensing

Officer” in the U.S. Department of Commerce held a “sensitive”

position within the meaning of § 2C1.1(b)(2)(B)); see also United

States v. Morris

, 131 F.3d 1136, 1138 (5th Cir. 1997), cert.

denied , 118 S.Ct. 1546 (1998).5 B

(1)

Whether a juror is an “official holding a high-level decisionmaking or sensitive position” under section 2C1.1(b)(2)(B) of the

Sentencing Guidelines is informed by th e Application Notes. The

note to section 2C1.1(b)(2)(B) lists, as examples of officials

within its scope, “prosecuting attorneys, judges, agency

administrators, supervisory law enforcement officers, and other

governmental officials with similar levels of responsibility.”

U.S.S.G. § 2C1.1, comment. (n.1). There can be no doubt that, as

a juror, Snell was acting as a government “official” for purposes

of section 2C1.1. S ee 18 U.S.C. § 201(a)(1) (defining “public

official” to include “a juror”). The question, therefore, is

whether a juror holds a position with a level of responsibility

similar to that held by officials listed in the Application Notes.

Snell argues that there are several critical d ifferences in

the level of responsibility bet ween the examples provided in the

Application Notes and a juror. The listed positions all involve

officials with extended ter ms of service, who exercise a

substantial amount of unilateral discretion and who possess

supervisory powers of other government employees. A juror, Snell

contends, plays no role in implementing governmental policy, has no

power over other government employees, and has a term of service6

limited to a single case. The government, on the other hand,

argues that jurors play a crucial role in our justice system

similar to judges and are, in fact, referred to as “judges” in

p attern jury instructions. Thus, it maintains that the district

court did not err in concluding that jurors are sufficiently

analogous to judges so as to fall within the scope of section

2C1.1(b)(2)(B).

(2)

To determine the applicability of section 2C1.1(b)(2)(B),

courts have focused on several in dicia of high-level

responsibility. One major consideration is the possession of

supervisory authority over a significant group of other government

employees. S ee, e.g.

, United States v. Gatling

, 96 F.3d 1511, 1526

(D.C. Cir. 1996); United States v. Matzkin

, 14 F.3d 1014, 1021 (4th

Cir. 1994). Another important mark of high-level responsibility is

the existence of discretion involving final decision-making

authority over matters of public policy or over the expenditure of

substanti al sums of money. S ee, e.g.

, Tomblin

, 46 F.3d at 1391;

Matzkin

, 14 F.3d at 1021; United States v. Lazarre

, 14 F.3d 580,

582 (11th Cir. 1994); United State v. Gaines

, 37 F.3d 1496, 1994 WL

567681, at *2 (4th Cir. 1994) (unpublished). Such discretion,

however, is not always required, and courts have readily found an

eight-level enhancement appropriate under section 2C1.1(b)(2)(B)7

based on the official’s ability to use his position to influence

another in the exercise of such discretion. S ee, e.g.

, United

States v. ReBrock , 58 F.3d 961, 970 (4th Cir.), cert. denied , 516

U.S. 970 (1995); Tomblin , 46 F.3d at 1391.

Examining the role of a juror in our criminal justice system,

some of these indicia of high-level responsibility are present.

Although a juror does not alone possess final decision-making

authority over the guilt or innocence of a criminal defendant, he

does maintain the essentially absolute power to force a mistrial--

at least in the federal system, as in this case. His discretion in

this respect is virtually unchecked and, depending on the case, may

result in the squander of substantial amounts of precious time and

money in the form of both judicial and prosecutorial resources.

Moreover, each juror is in a very potent position to influence the

verdict. Being isolated with fellow jurors for the sole purpose of

arriving at a decision as to guilt or innocence, with the

understanding that such deliberations may be continued for

substantial periods of time until a final verdict is reached, the

forceful or stubborn juror may wield remarkable influence. Snell’s

position as jury foreman may have increased his ability to

influence jury deliberations. And apart from being in a position

to persuade other jurors of his views, any single juror may also be

able to exact concessions from the other jurors as to, for example,8

convictions on lesser included offenses or sentences. Cf., e.g.

,

Susan Borreson, Raw Deal Under New Rule?

, Texas Lawyer, June 22,

1998, at 1, 16 (story of jurors arriving at compromise verdict and

sentence in Texas criminal case).

M ore profound than any of these considerations, however, is

the tremendous responsibility every juror has with respect to the

criminal justice system as a whole. The critical importance of

n eutral, law-respecting juries to our legal system cannot be

gainsaid. “England, from whom the Western World has largely taken

its concepts of individual liberty and of the dignity and worth of

every man, has bequeathed to us safeguards for their preservation,

the most pric eless of which is that of trial by jury.” I rvin v.

Dowd

, 366 U.S. 717, 721 (1961); see also, e.g.

, Spaziano v.

Florida

, 468 U.S. 447, 481 (1984) (Stevens, J., concurring in part)

(“The autho rs of our federal and state constitutional guarantees

uniformly recognized the special function of the jury in any

exercise of plenary power over the life and liberty of the

citizen.”). From the Magna Carta, to the Declaration and Bill of

Rights of 1689, to the Declaration of Independence, the importance

of juries has been etched into our Anglo-American heritage. As our

most respected legal commentators have observed:

“[T]he founders of the English law have, with excellent

forecast, contrived that

. . . the truth of every

accusation, whether preferred in the shape of indictment,

information, or appeal, should afterwards be confirmed by9

the unanimous suffrage of twelve of his equals and

neighbors, indifferently chosen and superior to all

suspicion.”

Duncan v. Louisiana

, 391 U.S. 145, 151-52 (1968) (quoting 4 William

Blackstone, Commentaries on the Laws of England 349 (Cooley ed.

1898)). “In the ultimate analysis, only the jury can strip a man

of his liberty or his life.” Irvin , 366 U.S. at 722.

Because the jury trial is “essential for preventing

miscarriages of justice and for assurin g that fair trials are

provided for all defendants,” Duncan

, 391 U.S. at 157-58, “it [is]

obviously fundamental to fairness that [the right to] a ‘jury’

means [the right to] an ‘impartial jury,’” id. at 181-82 (Harlan,

J., dissenting). So fundamental is the unbiased jury to our

nation’s criminal justice system that the Framers p rovided the

absolute right to an “impartial jury” in the Bill of Rights. See

U.S. Const. ame nd. VI. In sum, it is apparent that the solemn

responsibility of each and every juror to protect the integrity of

our criminal justice system is, in fundamental ways, unsurpassed

among the other offices of public service. C f. Remmer v. United

States

, 347 U.S. 227, 229 (1954) (“The integrity of jury

proceedings must not be jeopardized by unauthorized invasions.”);

Clark v. United States

, 289 U.S. 1, 16 (1933) (Cardozo, J.)

(speaking of the “overmastering need, so vital in our polity, of10

preserving trial by jury in its purity against the inroads of

corruption”).

In view of the prominence of juries in our legal system, and

of the extraordinary responsibility of every juror in preserving

that system, we have little difficulty concluding that a juror, in

the role assigned to him, shares a level of responsibility at least

equal to a prosecutin g attorney, agency administrator, or

supervisory law enforcement officer, as they perform their

respective roles. Snell’s conduct as a juror in this case fell far

short of the standard expec ted of those accepting such

responsibility. Although he ultimately failed to convince eleven

other jurors to undermine the integrity of the system, Snell’s

impotence does not exculpate him. The district court’s decision to

assess an eight-level enhancement for such misconduct was not

error.

III

For the foregoing reasons, the district court’s calculation of

Snell’s sentence is

A F F I R M E D.