United States v. Karen Shapiro, United States of America v. Rebecca Howard

669 F.2d 593 UNITED STATES of America, Plaintiff-Appellee, v. Karen SHAPIRO, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Rebecca HOWARD, Defendant-Appellant. Nos. 80-1187, 80-1188. United States Court of Appeals, Ninth Circuit. Argued and Submitted July 7, 1981. Decided March 1, 1982. Russell J. Frackman, Los Angeles, Cal., for Shapiro. Morris L. Davidson, Los Angeles, Cal., for Howard. Kathleen P. March, Asst. U.S. Atty., Los Angeles, Cal., for plaintiff-appellee. Appeal from the United States District Court for the Central District of California. Before SKOPIL, NELSON, and NORRIS, Circuit Judges. NORRIS, Circuit Judge: 1 Shapiro and Howard appeal from their conviction, after trial by jury, of conspiracy to possess cocaine with intent to distribute, in violation of 21 U.S.C. § 846 (1976), and possession of cocaine with intent to distribute, in violation of 21 U.S.C. § 841 (a)(1) (1976). Because we find that the appellants' motion for mistrial should have been granted by the district court, we reverse. I. Facts 2 On the evening of November 13, 1979, three local law enforcement officers, working undercover in a joint investigation with agents of…

Shapiro and Howard appeal from their conviction, after trial by jury, of conspiracy to possess cocaine with intent to distribute, in violation of 21 U.S.C. § 846 (1976), and possession of cocaine with intent to distribute, in violation of 21 U.S.C. § 841 (a)(1) (1976). Because we find that the appellants’ motion for mistrial should have been granted by the district court, we reverse.

I.

Facts

On the evening of November 13, 1979, three local law enforcement officers, working undercover in a joint investigation with agents of the Drug Enforcement Administration, drove to the apartment of Roy and Karen Shapiro. 1 At an earlier meeting at which appellants Karen Shapiro and Howard were not present, Roy Shapiro had agreed to deliver a quantity of cocaine to Officer DeAmicis at Shapiro’s apartment. DeAmicis entered the apartment and was introduced to Karen Shapiro, Roy’s wife. When Roy Shapiro asked if DeAmicis had the money, the officer told him that it was in the car outside. Roy Shapiro directed DeAmicis to return to the car and tell Officer Brown to bring the money inside. DeAmicis returned to the Cadillac and stood outside it. Appellant Karen Shapiro then approached the ear and…

concurring:

I agree with the majority that the facts in this case reveal a sufficiently substantial likelihood of prejudice that a new trial is warranted. The district court, in a difficult situation, attempted to eliminate any possibility of prejudice. The responses he received from the jurors revealed that the jury was tainted. There was evidence that the jury had discussed the case prematurely, giving juror Leoni the opportunity to convince others to vote for acquittal. The jurors’ statements also showed that they believed the voir dire was necessitated by misconduct on the part of one of the parties. Because of these responses, a new trial was required. I believe that a narrower rule than that apparently announced by the majority would satisfactorily decide this ease and would be more consistent with other decisions. I therefore write separately-

I do not think that this case can be evaluated in terms of a presumption of prejudice. As this court has recently stated:

United States v. Armstrong, 654 F.2d 1328, 1332 (9th Cir. 1981).

This approach is consistent with other recent decisions. The majority correctly notes that in United States v. Ferguson, 486 F.2d 968 (6th Cir.…