United States v. Fred Eubanks, Eugene Martinez, Leroy Jones, Henry D. Yanez

591 F.2d 513 4 Fed. R. Evid. Serv. 266 UNITED STATES of America, Appellee, v. Fred EUBANKS, Eugene Martinez, Leroy Jones, Henry D. Yanez, Appellants. Nos. 77-3919, 77-3955, 77-4003 and 78-1032. United States Court of Appeals, Ninth Circuit. Feb. 2, 1979. As Amended March 12, 1979. Robert J. Hirsh (argued), of Hirsh & Shiner, John E. Lindberg (argued), George Haskel Curtis (argued), of Curtis & Cunningham, Tucson, Ariz., Michael D. Kimerer (argued), Henry, Wallach, Kimerer & LaVelle, Phoenix, Ariz., for appellants. Stephen M. Dichter, Asst. U. S. Atty. (argued), Tucson, Ariz., for appellee. Appeal from the United States District Court for the District of Arizona. Before ELY and HUFSTEDLER, Circuit Judges, and KRAFT, * District judge. PER CURIAM: 1 Appellants and three others were indicted on charges of conspiracy to distribute heroin and to possess heroin with intent to distribute in violation of 21 U.S.C. §§ 841 (a)(1) and 846. Appellants were jointly tried and convicted by a jury. On appeal, they raise numerous claims of error, the most serious of which is founded on the alleged bias of one of the trial jurors. It is unnecessary for us to discuss all the…

(concurring):

I concur in the superb majority opinion for which my Sister Hufstedler is principally responsible.

As, however, I near the fifteenth anniversary of my service with our court, I must voice concerns that have troubled me for many years, even for a much longer time than I have performed the judicial function. My concerns have to do with the unrestrained, and sometimes indiscriminate, application by prosecuting authorities of the conspiracy charge. As I see them, the circumstances of this case present a unique opportunity and, perhaps, the last opportunity, that I shall have to record my pertinent sentiments. There is nothing new about my views, for they have been repeatedly expressed, better than I can express them, by some of the greatest, most perceptive jurists that have ever served our country’s judicial system. I shall reiterate, particularly, utterances of Mr. Justice Jackson and Judge Learned Hand, both of whom have long since gone to their eternal peace.

Here involved is a prosecution of seven individuals charged by the prosecution with having participated in a vastly far-reaching, wide-ranging illegal scheme involving the distribution of heroin. As I see it,…

Appellants and three others were indicted on charges of conspiracy to distribute heroin and to possess heroin with intent to distribute in violation of 21 U.S.C. §§ 841 (a)(1) and 846. Appellants were jointly tried and convicted by a jury. On appeal, they raise numerous claims of error, the most serious of which is founded on the alleged bias of one of the trial jurors. It is unnecessary for us to discuss all the issues raised by appellants, because we hold that the district court erred in denying appellant’s motion for a new trial based on juror bias. We do consider appellants’ claims of error based on the refusal of certain jury instructions and the admission of hearsay testimony, because they are likely to arise again on retrial.

I

Appellants argue that the district court erred by denying their motion for a new trial because of the alleged bias of juror Collins. After the conclusion of the trial, appellants’ counsel learned that juror Collins had two sons who were serving long prison terms for murder and robbery. Both of the juror’s sons were heroin users and their crimes had been committed in an effort to acquire additional heroin.

Defense counsel had been unaware of…