United States v. Robert Paul Gagnon, Pedro Valenzuela, Donald P. Storms, Glenn E. Martin

721 F.2d 672 UNITED STATES of America, Plaintiff-Appellee, v. Robert Paul GAGNON, Pedro Valenzuela, Donald P. Storms, Glenn E. Martin, Defendants-Appellants. Nos. 82-1289, 82-1310, 82-1311 and 82-1350. United States Court of Appeals, Ninth Circuit. Argued and Submitted April 12, 1983. Decided Dec. 8, 1983. Negatu Molla, Asst. U.S. Atty., Tucson, Ariz., for plaintiff-appellee. Robert S. Wolkin, Stephen C. Villarreal, Michael L. Piccarreta, L. Anthony Fines, Tucson, Ariz., for defendants-appellants. Appeal from the United States District Court for the District of Arizona. Before WISDOM, * SKOPIL and FERGUSON, Circuit Judges. FERGUSON, Circuit Judge: 1 Defendants were convicted after a jury trial of conspiracy to possess cocaine with intent to distribute and related felony drug offenses. They appeal on numerous grounds, most of which are disposed of by memorandum decision of this date. We deal here only with the contention that the trial court committed reversible error by questioning a juror during the course of the trial outside the presence of any of the defendants. We agree and reverse the convictions. FACTS 2 On the first day of trial, one of the jurors noticed defendant Gagnon…

Defendants were convicted after a jury trial of conspiracy to possess cocaine with intent to distribute and related felony drug offenses. They appeal on numerous grounds, most of which are disposed of by memorandum decision of this date. We deal here only with the contention that the trial court committed reversible error by questioning a juror during the course of the trial outside the presence of any of the defendants. We agree and reverse the convictions.

FACTS

On the first day of trial, one of the jurors noticed defendant Gagnon sketching portraits of jury members. Juror Garold Graham became alarmed and informed the bailiff, who in turn informed the judge. Out of the presence of the jury, the judge told Gagnon that it was “very improper for a defendant to draw pictures of a jury while they are sitting in the box.” She confiscated the sketches and ordered Gagnon to refrain from any further drawing.

dissenting:

I agree that the district court erred in examining the juror without all defendants present. I also agree that we must reverse unless the government is able to prove beyond a reasonable doubt that this error did not contribute to the verdicts. I believe, however, that the government met its burden here.

Prior to examining the juror in-chambers in the presence of defense attorney Wolkin, the judge stated in open court her intention to conduct the examination. Despite being aware that the court recessed for the specific reason of examining the juror, none of appellants’ counsel objected to it being conducted in their absence. Their failure to object is to be considered when determining *679 whether the error was harmless. United States v. Ford, 632 F.2d 1354, 1379 (9th Cir.1980); United States v. Walls, 577 F.2d 690, 698 (9th Cir.), cert. denied, 439 U.S. 893 , 99 S.Ct. 251 , 58 L.Ed.2d 239 (1978).

Appellants’ attorneys not only failed to object to the examination, but attorney Wolkin was present to guard against any irregularities. Ford, 632 F.2d at 1379 ; United States v. Friedman, 593 F.2d 109, 121 (9th Cir.1979). Defendants charged with conspiracy have similar…