United States v. Darrell L. Harber

concurring.

I concur in the result only. I agree with the majority that, consistent with Hughes v. Borg, 898 F.2d 695, 700 (9th Cir.1990), reversal is warranted in this ease because Agent Pollard’s report contained material that was not duplicative of evidence properly admitted at trial and because the jury reported a hopeless deadlock prior to receiving an Allen charge. I do not agree, however, with much of the other language contained in the opinion.

Opinion by Judge ALARCON; Concurrence by Judge HALL.

Darrell Harber and six co-defendants were charged with conspiracy to launder money in violation of 18 U.S.C. §§ 371 and 1956(a)(3)(B). Harber was found guilty after a trial by jury. Following discharge of the jury, counsel for the parties learned that a copy of the case agent’s report was present in the jury room during deliberations. The 56-page case agent’s report was not admitted into evidence at trial.

Harber seeks reversal of the judgment of conviction on two grounds. First, Harber argues that the district court abused its discretion in denying his motion for a severance. Second, Harber contends that the presence of the case agent’s report in the jury room during deliberations had a prejudicial impact on its verdict.

We hold that the intrusion into the jury room of a case agent’s report containing a summary of his investigation and his opinion that the. suspects are guilty was inherently or presumptively prejudicial. We conclude that members of the jury read the case agent’s report. We reverse because the Government has not met its burden of persuading us beyond a reasonable doubt that the impact of the ease agent’s…

53 F.3d 236 UNITED STATES of America, Plaintiff-Appellee, v. Darrell L. HARBER, Defendant-Appellant. No. 93-10665. United States Court of Appeals, Ninth Circuit. Argued and Submitted Nov. 16, 1994. Decided April 13, 1995. Michael Morales, Phoenix, AZ, for defendant-appellant. Matthew F. Heffron (argued) and Joan G. Ruffennach (on the briefs) Asst. U.S. Attys., Phoenix, AZ, for plaintiff-appellee. Appeal from the United States District Court for the District of Arizona. Before: ALARCON, HALL, Circuit Judges and KING * , Senior District Judge. Opinion by Judge ALARCON; Concurrence by Judge HALL. ALARCON, Circuit Judge: 1 Darrell Harber and six co-defendants were charged with conspiracy to launder money in violation of 18 U.S.C. Secs. 371 and 1956(a)(3)(B). Harber was found guilty after a trial by jury. Following discharge of the jury, counsel for the parties learned that a copy of the case agent's report was present in the jury room during deliberations. The 56-page case agent's report was not admitted into evidence at trial. 2 Harber seeks reversal of the judgment of conviction on two grounds. First, Harber argues that the district court abused its discretion in denying his motion…