Appeal from the United States District Court for the Eastern District of California Oliver W. Wanger, District Judge, Presiding D.C. No. 1:06-cr-00342-RICARDO OWW D.C. No. 1:06-vt-00342- OWW-1
The opinion of the court was delivered by: Tallman, Circuit Judge:
August 31, 2010-San Francisco, California
Before: Betty B. Fletcher, Richard C. Tallman, and Johnnie B. Rawlinson, Circuit Judges.
Upon a post-verdict allegation of juror misconduct, a district court should ordinarily hold an evidentiary hearing to determine the nature of the misconduct and whether or not there was a reasonable possibility that it could have affected the jury's verdict. However, an evidentiary hearing is not mandated every time there is an allegation of juror misconduct. Because this is one of the cases where a district court could adequately make its determination without the benefit of an evidentiary hearing, we affirm the judgment of the district court.
In 2006, Defendants-Appellants Ricardo Montes and Luke Scarmazzo ("Appellants") were charged with conducting a continuing criminal enterprise, 21 U.S.C. § 848, manufacturing marijuana, 21 U.S.C. § 841(a)(1), aiding and abetting, 18 U.S.C. § 2, and possessing marijuana with intent to distribute, 21 U.S.C. § 841(a)(1). At trial, the prosecution presented overwhelming evidence that Appellants co-founded and openly ran a marijuana dispensary in Modesto, California, and that they made $9.2 million in sales over a two-year period. Overwhelming evidence also indicated that during those two years Appellants supervised and employed between eight and fourteen individuals specifically to manufacture, package, guard, and distribute marijuana. During the investigation, law enforcement officials made ten controlled buys and seized more than fifty pounds of marijuana and more than 1,100 marijuana plants. Many times during their two years in business, Appellants openly admitted to law enforcement officials that they ran a marijuana dispensary. At trial, Appellants repeated these admissions on the witness stand.
Not surprisingly, the jury found Appellants guilty of violating 21 U.S.C. § 848, which requires the commission of a continuing series of at least three federal felony narcotic offenses undertaken in concert with five or more other persons with respect to whom the defendant occupies a position of organizer, supervisor, or any other type of management, and from which the defendant obtains substantial income or resources.
The jury also found Appellants guilty of manufacturing marijuana, 21 U.S.C. § 841(a)(1), aiding and abetting, 18 U.S.C. § 2, and possessing marijuana with intent to distribute, 21 U.S.C. § 841(a)(1).
After the verdict, Appellants filed a motion for a new trial on the basis of juror misconduct. Appellants later amended their motion and submitted declarations from two jurors. Appellants alleged that Juror No. 3 had read an online "sum-mary" of an article in the May 12, 2008, edition of the San Francisco Chronicle entitled "Next President Might Be Gentler on Pot Clubs," published shortly before deliberations began. The juror declarations suggested that Juror No. 3 discussed the summary with Juror No. 5 during deliberations. It is clear that Juror No. 3 had not read the entire article, only the summary ...