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IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF ALABAMA 

SOUTHERN DIVISION 

UNITED STATES OF AMERICA ) 

 ) 

v. ) 

 ) CRIMINAL NO. 07-00349-CG 

ELDA LOPEZ ) 

 ) 

 Defendant. ) 

ORDER

 This matter is before the court on the motion of the Defendant, Elda Lopez 

(“Lopez”) to communicate with the jurors that considered the facts of her case at her 

trial and found her guilty. (Doc. 195). Lopez makes this motion pursuant to Local 

Rule 47.2, alleging that four witnesses saw a prosecuting attorney talking to one or 

more jurors while the trial was recessed for a lunch break. Id. For the reasons 

stated below, Lopez’s motion is DENIED. 

FACTUAL BACKGROUND 

 After a five day trial, Lopez the jury returned guilty verdicts on Friday, 

January 9, 2009, of multiple counts, including conspiracy to distribute cocaine, 

conspiracy to possess with intent to distribute cocaine, conspiracy to commit money 

laundering, and money laundering. (Doc. 91). Lopez now alleges that during the 

course of the trial, Assistant United States Attorney (“AUSA”) Gloria Bedwell 

conversed with one or more jurors, an alleged violation of the court’s instructions. 

(Doc. 195, p. 1). 

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 In support of her motion, Lopez has submitted four affidavits from witnesses 

who attended the trial and claim to have seen AUSA Bedwell conversing with 

jurors. Additionally, three of the four affiants testified at an evidentiary hearing 

held before this court on February 3, 2012. 

 The first affidavit, dated September 30, 2011, is that of Jacqueline Alvarez, 

who stated that she is the best friend of co-defendant Aracely Lopez’s daughter. 

(Doc. 195-1). Alvarez stated in her affidavit that on Wednesday, January 7, or 

Thursday, January 8, she saw AUSA Bedwell “walking next to the jurors and 

talking to them inside the court house as trial [sic] recessed for lunch.” Id. at 1. 

Alvarez also stated that she was not within hearing distance and therefore could 

not hear the alleged conversation, and did not state whether she informed anyone of 

what she saw. Id. At the February 3, 2012, evidentiary hearing, Alvarez admitted 

that the daughter who is her best friend is defendant Elda Lopez, and that she saw 

Ms. Bedwell walking next the jurors and talking to one of them as they recessed for 

lunch on the first day of trial. (Emphasis supplied). She testified it was the first 

day, because the defense lawyer first planned on using her as a witness and she was 

excluded from the courtroom that day, however the lawyer changed his mind and 

she was in the courtroom as a spectator during the subsequent trial days. The court 

notes that the first day of trial was Monday, January 5, 2007, not the Wednesday or 

Thursday as reflected in the affidavit. Alvarez further testified that she did not 

immediately inform defense counsel of what she saw in the courthouse hallway, but 

instead spoke of it only with the defendant’s sister, Sandra Lopez, as the two 

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women returned to Texas after the jury voted to convict. Alvarez testified that she 

swore out her affidavit two and a half years later after being contacted by defense 

lawyers. 

 The second affidavit, dated October 17, 2011, is that of Rosa Solis, who states 

that she has been “best friends” with defendant Elda Lopez since they both were ten 

years old. (Doc. 195-2, p. 1). Solis stated in her affidavit that on Tuesday, January 

6, she saw AUSA Bedwell and people she describes as “government agents” talking 

to two or three jurors as they walked into the court house after lunch. Id. Solis did 

not state whether she was able to hear what was said, and stated that she did not 

inform anyone about what she saw. Id. At the February 3, 2012, evidentiary 

hearing, Solis revealed for the first time that on she also saw AUSA Bedwell 

talking to a female juror in a hallway of the courthouse as the trial recessed for 

lunch and while she and Jacqueline Alvarez were seated on a bench in the hallway 

nearby. Solis also reaffirmed the allegations she made in her affidavit, saying that 

she saw AUSA Bedwell talking to three jurors outside the front entrance to the 

courthouse as Bedwell and the jurors were returning from lunch. Solis once again 

admitted that she did not alert defense counsel about what she saw, and in fact 

waited for more than two and a half years until she was approached by defense 

counsel before pursuing the allegations. 

 The third affidavit, dated September 28, 2011, is that of Yesenia Ramirez, 

who is the niece of co-defendant Aracely Lopez. (Doc. 195-3). Ramirez stated that 

on either Tuesday, January 6, or Wednesday, January 7, she saw AUSA Bedwell 

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and people she describes as “government agents” talking with “a small mixed group 

of jurors” outside the court house as they “walked past the parking lot and on to a 

side street.” Id. at 1. Ramirez also stated that she could not see where Bedwell 

and the jurors went once they were on the side street, and that she did not tell 

anyone about what she saw. Id. Ramirez did not testify at the February 3, 2012, 

hearing. 

 The fourth affidavit, dated September 28, 2011, is that of Yolanda Ramirez, 

who is the sister of co-defendant Aracely Lopez. (Doc. 195-4). In her affidavit, 

Ramirez stated that a few days after the trial started, she saw AUSA Bedwell 

walking and talking outside the courthouse with one male and one female juror 

during the lunch break. Id. Ramirez stated that she was with Jacqueline Alvarez 

when she witnessed this, but Alvarez’s affidavit makes no mention of seeing 

Bedwell outside of the courthouse. See Doc. 195-1. Ramirez also states, somewhat 

contradictorily, that she saw this happen “everyday of the trial,” and that she 

informed her sister’s attorney, Domingo Soto. Id. at 1-2. Mr. Soto submitted his 

own affidavit in which he states that neither Ramirez nor anyone else reported such 

a breach of the “juror/lawyer no-contact protocol,” and seriously doubts that any 

such breach occurred. (Doc. 200-1, p. 1). Soto confirmed his affidavit by testifying 

before the court at the February 3, 2012, evidentiary hearing. During that 

testimony, he also added that had anyone told him of contact with a juror by the 

prosecution, he would have taken action by at least informing the court. 

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 Ramirez’s testimony at the February 3 evidentiary hearing was no less 

contradictory than her affidavit. At various points on direct and cross examination, 

Ramirez stated that she saw AUSA Bedwell “together” with jurors, but did not see 

her talking; alternatively, she stated that she saw AUSA Bedwell talking with 

jurors, but does not know what was said. When confronted on cross examination 

with her affidavit, which stated that she saw Bedwell interacting with jurors every 

day of the trial, Ramirez claimed that she could not remember if she saw this every 

day or not. Ramirez also testified that she saw AUSA Bedwell talking to a male 

and a female juror, but admitted on cross examination that she cannot remember 

what those jurors looked like because of the passage of three years’ time. 

Furthermore, Ramirez testified that she recalls the court warning the jurors not to 

have any contact with the attorneys in the case, but also freely admitted that she 

does not speak English and testified through a Spanish interpreter. 

 In her affidavit, AUSA Bedwell “emphatically” denied that she had any 

contact with any jurors in the Lopez trial, or that she in any way conducted herself 

unethically. (Doc. 200-1, p. 4). She also asserted that it is “ludicrous to believe that 

improper conduct involving jurors and government personnel would be conducted in 

the open, and in plain sight of court personnel and defendant family members.” Id.

at 5. Similarly, the two government agents who participated in the Lopez 

investigation and who were present at the Lopez trial, IRS Special Agent Victor 

Henken and FBI Special Agent Ruth Kroona, denied that they had any contact with 

jurors. (Doc. 200-1, pp. 8-11). AUSA Bedwell and Special Agents Henken and 

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Kroona also asserted that, during the course of the trial, they typically ate their 

lunch in the U.S. Attorney’s trial preparation room in the courthouse, rather than 

venture out of the courthouse to eat. (Doc. 200-1, pp. 9 and 11). Bedwell, Henken 

and Kroona stated that the one day that they did leave the court house for lunch, 

none of them engaged any jurors in conversation or had any contact with jurors. Id. 

Bedwell, Henken, and Kroona’s testimony at the February 3 evidentiary hearing 

was substantially the same as what was contained in their affidavits. At the 

hearing, AUSA Bedwell also noted that the normal courtroom procedure during 

trial is for the court security officer (“CSO”) to escort the jury from the courtroom 

before anyone else leaves the courtroom, making it unlikely that she would have the 

opportunity to approach a juror even if she were so inclined. 

 The government also pointed to alleged inconsistencies among the four 

affidavits and inconsistencies between the affidavits and the live testimony offered 

by three of the four affiants. For example, Jacqueline Alvarez claims that she saw 

AUSA Bedwell walking next to the jurors and talking to a “lady juror” as the court 

recessed for lunch on Wednesday or Thursday during the week of the trial. (Doc. 

195-1). Yet Rosa Solis, who claimed that she was with Jacqueline Alvarez, made no 

mention in her affidavit of seeing AUSA Bedwell talking to a juror in the courthouse 

hallway, instead asserting that she saw AUSA Bedwell plus two government agents 

walking and talking with jurors outside the courthouse on Tuesday. (Doc. 195-2). 

It was only when she testified at the February 3 evidentiary hearing that Solis 

claimed to have seen Bedwell talking to a juror in the hallway. Conversely, Alvarez 

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made no mention in her affidavit or her testimony of seeing AUSA Bedwell talk to 

jurors outside the courthouse or in the front lobby of the courthouse. 

 Also, Yesenia Ramirez claimed to have seen AUSA Bedwell and “government 

agents” talking to jurors outside the court house on Tuesday, January 6 or 

Wednesday, January 7 and asserted that she was with Yolanda Ramirez and 

Iresema Lopez. (Doc. 195-3). Yolanda Ramirez, however, made no mention in her 

affidavit of seeing any government agents with AUSA Bedwell and the jurors. (Doc. 

195-4). Furthermore, Yolanda Ramirez claimed that she was with Yesenia 

Ramirez, Iresema Lopez, and Jacqueline Alvarez , whereas Yesenia Ramirez made 

no mention of Alvarez at all. Id. And, as stated, supra, Alvarez made no mention in 

either her affidavit or at the evidentiary hearing of seeing AUSA Bedwell talking to 

jurors outside the courthouse, nor does she mention having been with either 

Yesenia or Yolanda Ramirez. See Doc. 195-1. 

 The trial transcript in this case shows that the jury was instructed by the 

court after they were selected and before they went to lunch on the first day as 

follows: 

Now, although you've been selected as jurors in this case, you have 

not yet heard any of the evidence nor heard any of the law on this 

case. So you can't be going out and trying to find out anything else 

about this case. You have to decide this case solely on the law and 

the evidence as given to you in that courtroom. Do not discuss the 

case among yourselves. Do not discuss the charges among 

yourselves. Just put it out of your mind until you come back at 2 

o'clock to begin your service as jurors in this case. Now, at this 

time you may go downstairs and check out . . . with the jury 

assembly clerk and be back in the jury assembly room by 2 P.M. to 

begin your service as jurors . 

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(Doc. 166, pp. 97-98). The transcript further shows that the jury was recessed 

before the lawyers left the courtroom. (Doc. 166, p. 98). 

 In the preliminary instructions to the jury at the beginning of the case that 

afternoon, the Court gave the following instruction: 

 First, I instruct you that during the trial you are not to discuss the 

case with anyone or let anyone discuss the case with you. Until 

you retire to the jury room at the end of the case to deliberate on 

your verdict, you are simply not to talk about the case. If anyone 

should try to talk to you about it, please report it to the Court 

promptly. 

(Doc. 167. pp. 16-17). There was no specific admonition by the Court that the jurors were to 

have no contact whatsoever with the lawyers. Whenever the court recessed the jury for a break, 

for lunch, or at the end of each day, the Court reminded the jurors that they were not to discuss 

the case with anyone, or to allow anyone to discuss it with them. (Doc. 167 at p. 69; Doc. 168 at 

pp. 65, 118, 164, 241-242; Doc. 169 at pp. 79, 140, 216-217, 248; Doc. 170 at pp. 61, 110, 174, 

230; Doc. 171 at pp. 89, 129). 

STATEMENT OF THE LAW

 “Where there are allegations of extraneous information, outside influence or 

other jury misconduct, the decision whether to investigate rests in the sound 

discretion of the district court.” United States v. Darby, 744 F.2d 1508, 1540 (11th 

Cir. 1984) (citing United States v. Barshov, 733 F.2d 842, 850 (11th Cir. 1984); 

United States v. Lopez, 728 F.2d 1359, 1363 (11th Cir. 1984); United States v. 

Williams, 716 F.2d 864, 865 (11th Cir. 1983); United States v. Edwards, 696 F.2d 

1277, 1282 (11th Cir. 1983)). See also United States v. Caldwell, 776 F.2d 989, 997 

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(11th Cir. 1985). Courts “must only have a hearing on possible extraneous 

influences on the jury's deliberations if [the affidavits] warrant one.” United States 

v. Siegelman, 467 F.Supp.2d 1253, 1272 (M.D. Ala. December 13, 2006) (citing

United States v. Venske, 296 F.3d 1284, 1290 (11th Cir. 2002)). 

 “In any trial, there is initially a presumption of jury impartiality; prejudice 

will not be presumed, but can be demonstrated by a defendant by a preponderance 

of credible evidence.” United States v. Winkle, 587 F.2d 705, 714 (5th Cir.), cert.

denied, 444 U.S. 827 (1979) (citations omitted). “Such prejudice may be shown by 

evidence that extrinsic factual matter tainted the jury's deliberations; any 

‘prejudicial factual intrusion’ denies a defendant [her] rights to trial by an impartial 

jury and to challenge the facts adverse to [her] that are made known to the jury.” 

Id. (quoting United States v. Howard, 506 F.2d 865, 866 (5th Cir. 1975); Remmer v. 

United States, 347 U.S. 227, 229 (1954)). “The defendant bears the burden of 

establishing that extrinsic matters have been considered by the jury during its 

deliberations.” United States v. Ayarza-Garcia, 819 F.2d 1043, 1051 (11th Cir. 

1987). It is only when the defendant has made a colorable showing of extrinsic 

influence that the court must investigate the asserted impropriety. Id. Such a 

colorable showing must consist of evidence that is “clear, strong, substantial and 

incontrovertible ...” United States v. Cuthel, 903 F.2d 1381, 1383 (11th Cir. 1990) 

(citing Barshov at 851). 

 “Cases dealing with the degree of investigation required fall along a 

continuum focusing on two factors: the certainty that some impropriety has 

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occurred and the seriousness of the accusation.” United States v. Ayarza-Garcia, 

819 F.2d 1043, 1051 (11th Cir. 1987) (citing United States v. Caldwell, 776 F.2d 

989, 998 (11th Cir. 1985)). “The more speculative or unsubstantiated the allegation 

of misconduct, the less burden there is to investigate; the more serious the potential 

jury contamination, especially where alleged extrinsic influence is involved, the 

heavier the burden to investigate.” Id. 

LEGAL ANALYSIS 

 The seriousness of the accusation that the prosecution had ex parte

conversation with a juror or jurors self-evident. The Supreme Court, in Maddox v. 

United States, 146 U.S. 140, 150 (1892), stated that “[p]rivate communications, 

possibly prejudicial, between jurors and third persons, or witnesses, or the officer in 

charge, are absolutely forbidden, and invalidate the verdict, at least unless their 

harmlessness is made to appear.” The Fifth Circuit has interpreted this language 

more loosely, however, stating that “each case must depend upon its own facts.” 

United States v. Betner, 489 F.2d 116, 119 (5th Cir. 1974).1 Thus, there is no “rigid 

per se rule automatically requiring the reversal of a conviction for any 

communication between jurors and attorneys or other third persons.” Id. 

 Still, though, in the few cases that address this specific scenario, the courts of 

appeal nevertheless reversed and remanded district courts that permitted the case 

 1

 In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981), the Eleventh 

Circuit adopted as binding all Fifth Circuit precedent prior to October 1, 1981. 

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to proceed before juries where even some of the jurors were alleged to have “at least 

... established a social contact with the prosecuting attorney.” Pekar v. United 

States, 315 F.2d 319, 322 (5th Cir. 1963); see also Betner, supra. 

 What distinguishes this case from Pekar and Betner is the fact that Lopez 

raised her allegations more than two and a half years after the jury returned a 

guilty verdict, whereas the allegations in the cited cases were brought to the courts’ 

attention before those cases went to the jury.2 See Betner at 117; see also Pekar at 

322. Lopez offers no explanation for such a long delay. Nor does she offer any 

explanation for the contradictions between and among the affiants and witnesses 

who testified on her behalf at the evidentiary hearing, as discussed, supra. 

 After careful review and consideration of the affidavits and testimony 

presented by Lopez, the court finds that she has failed to meet her evidentiary 

burden of proof by a preponderance of credible evidence. See Winkel, 587 F.2d at 

714. The court finds that the credibility of the factual accounts of the government 

witnesses far outweighs the credibility of the accounts of prosecution contact with 

jurors given by the defense witnesses. In addition, given that the court instructed 

the jury on numerous occasions about having no communications about the case 

with anyone, and specifically asked the jurors to report any such conduct to the 

court immediately, it is certainly more probable than not that no such conduct 

occurred. Because “[t]he duty to investigate arises only when the party alleging 

 2

 In Pekar, defense counsel objected to the composition of the jury panel being seated, 

while in Betner, defense counsel moved for a mistrial; both were denied by the respective district 

courts. See Pekar at 117 and Betner at 322. 

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misconduct makes an adequate showing of extrinsic influence to overcome the 

presumption of jury impartiality,” United States v. Barshov, 733 F.2d 842, 851 

(11th Cir. 1984), Lopez’s motion for leave to contact jurors is hereby DENIED. 

 DONE and ORDERED this 8th day of February 2012.

 /s/ Callie V. S. Granade 

 UNITED STATES DISTRICT JUDGE 

 

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