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States v. Milne

United States District Court, D. New Mexico

November 3, 2017




         A jury in Las Cruces, New Mexico, convicted John Leroy Milne of conspiracy to distribute marijuana and possession with intent to distribute marijuana. After he was convicted, Mr. Milne renewed his previously-filed motion for a mistrial (Doc. 91), contending that he is entitled to a new trial because the government improperly altered an admitted exhibit and because the alteration exposed the jury to a marijuana odor. Mr. Milne also asks the Court to find that the government acted with the intent to provoke a mistrial. For the reasons explained below, the Court denies all of Mr. Milne's requests.


         On the morning of June 23, 2017, Matthew Defayette, an agent with the United States Border Patrol, saw a brown Ford Explorer (“Explorer”) with tinted windows heading north on a stretch of road notorious for illegal smuggling. Agent Defayette did not recognize the Explorer as a local vehicle, and when he could not see a license plate, Agent Defayette decided to investigate the Explorer. Agent Defayette's investigation that morning resulted in the arrests of John Leroy Milne and Manuel Pavon-Rodriguez after Border Patrol agents discovered five burlap backpacks containing ten duct-taped bundles in the cargo area of the Explorer. The government claimed that those ten bundles, which were each about 24 by 12 by 12 inches, held 111.8 kilograms (around 246 pounds) of marijuana.

         The government tried Mr. Milne and Mr. Pavon-Rodriguez together for conspiracy to distribute marijuana and possession with intent to distribute marijuana. At trial, the government displayed ten hefty, duct-taped bundles to the jury during Agent Defayette's testimony. The government contended that the bundles had been removed from the burlap backpacks. The government later formally introduced the bundles into evidence as a single exhibit. The Court asked the government to maintain custody of the exhibit because the Court did not have an airtight, secure room in which to store bulk marijuana throughout the trial.

         As the case continued, the government's witnesses revealed that the government had chemically tested eleven samples from one of the ten bundles and determined that the samples all contained marijuana. After the government rested its case, both Mr. Milne and Mr. Pavon-Rodriguez moved for a judgment of acquittal under Rule 29. See Fed. R. Crim. P. 29. Defendants argued that there was insufficient evidence to sustain the charges against them because the government did not test nine of the ten bundles. After consulting the relevant law, the Court denied the defendants' motion.

         Realizing that it had greatly diminished its case by not testing nine of the ten bundles, the government attempted to fix its mistake by opening and testing the other bundles at the courthouse. The government then asked the court for permission to reopen its case and present its new findings to the jury. Unfortunately for the government, by opening and testing the bundles, it had altered an admitted exhibit without the court's approval. Additionally, by opening the bundles in the attorney conference room, located between the courtroom and the outside hall, an appreciable marijuana odor had spread into the hall. Jurors adjourning for the day had to pass through that hall as they exited the courthouse. The Court was surprised by the government's actions and admonished the government for its irresponsible handling of an admitted exhibit. Consequently, the Court denied the government's request to reopen its case and refused to permit the jury to see the bundles again.

         Both Mr. Milne and Mr. Pavon-Rodriguez asked the Court to grant a mistrial on the bases that the government tampered with an admitted exhibit and that the odor of marijuana tainted the jury. The Court took the mistrial motion under advisement and allowed the case to proceed to the jury. The jury ultimately convicted Mr. Milne of all charges and acquitted Mr. Pavon-Rodriguez of all charges. Mr. Milne then renewed his mistrial motion, which the Court now considers.


         I. Jury exposure to extraneous information.

         A. The relevant law.

         The Sixth Amendment guarantees a defendant the right to be tried by an impartial jury. See U.S. Const. amend. VI. A jury is impartial if it is, among other things, willing and able to decide the case solely on the evidence properly presented during trial. See Stouffer v. Duckworth, 825 F.3d 1167, 1177 (10th Cir. 2016). To enforce the defendant's Sixth Amendment right, courts guard the jury from extraneous information that may taint the jury's impartiality. See Id. No trial is perfect, however, and the Constitution recognizes that it is “virtually impossible to shield jurors from every contact or influence that might theoretically affect their vote.” Id. at 1177-78. When a jury is exposed to extraneous information, the trial judge must determine, in light of all the facts and circumstances of the case, whether the extraneous information has so tainted the jury that the defendant is entitled to a new trial under the Sixth Amendment. See id.

         The Tenth Circuit has articulated two different standards for a trial judge to apply when assessing the impact of extraneous information on a jury. See Smith v. Ingersoll-Rand Co., 214 F.3d 1235, 1241 (10th Cir. 2000). One standard calls for the trial judge to grant a new trial if there is the “slightest possibility” that the extraneous information affected the verdict. See Id. (citations omitted). The other standard calls for the trial judge to give a presumption of prejudice to the defendant when the jury is exposed to extraneous information. See Id. Only if the government rebuts the presumption by showing that the exposure was harmless beyond a reasonable doubt does the burden shift onto the defendant to show actual prejudice. See id.; see also Stouffer 825 F.3d at 1178. The key distinction between the two standards is who holds the initial burden of proof: under the “slightest possibility” standard, the burden is on the moving party to show prejudice, whereas under the “presumption of prejudice” standard, the burden is on the nonmoving party to show that the exposure was harmless. See Ingersoll-Rand, 214 F.3d at 1241-42. Because the cases considered came out the same way under either standard, the Tenth Circuit, exercising its judicial restraint, has repeatedly declined to decide which standard controls.[1] See, e.g., Ingersoll-Rand, 214 F.3d at 1242; United States v. Muessig, 427 F.3d 856, 865 (10th Cir. 2005).

         Both standards recognize, however, that the trial judge is uniquely qualified to assess the prejudicial effect of extraneous information on a jury since the trial judge “has the advantages of close observation of the jurors and intimate familiarity with the issues at trial.” See Mayhue v. St. Francis Hosp. of Wichita, Inc., 969 F.2d 919, 922 (10th Cir. 1992); see also Ingersoll-Rand, 214 F.3d at 1242. The trial judge's unique advantages translate into broad discretion on how to handle allegations of jury taint by exposure to extraneous information, including discretion on whether to hold a hearing on the exposure. See United States v. Davis, 60 F.3d 1479, 1483 (10th Cir. 1995). Thus, while the Tenth Circuit has previously said that the “proper remedy” to allegations of juror exposure to extraneous information is for the district court to hold a hearing, the Circuit has clarified that a hearing is not mandatory, even where a hearing might be prudent or otherwise appropriate. See Id. For example, given Federal Rule of Evidence 606(b)'s limit on the trial judge to ask jurors only about the nature of ...

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