United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
C. BRACK, UNITED STATES DISTRICT JUDGE
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
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.
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.
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
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.
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.
Jury exposure to extraneous information.
The relevant law.
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.
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. See, e.g.,
Ingersoll-Rand, 214 F.3d at 1242; United States
v. Muessig, 427 F.3d 856, 865 (10th Cir. 2005).
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 ...