The People, Respondent,v.Miguel Mejias, Appellant.BriefN.Y.Mar 19, 2013 1 INDICT. #2972/08 To be argued by: John R. Lewis, Esq. 15 minutes requested COURT OF APPEALS STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, -AGAINST- MIGUEL MEJIAS, DEFENDANT-APPELLANT. APPELLANT MIGUEL MEJIAS’S BRIEF ON APPEAL John R. Lewis, Esq. Attorney for Appellant 36 Hemlock Drive Sleepy Hollow, NY 10591 (914) 332-8629 2 TABLE OF CONTENTS Page Table of Authorities………………………………………………..4 Preliminary Statement……………………………………………...5 Questions Presented………………………………………………..5 Statement of Jurisdiction…………………………………………...6 Statement of Facts………………………………………………….6 A. Description of the Action………………………………..6 B. The Prosecution’s Use of “Maps” and Description of the World-Wide Drug Trade…………………………………….8 C. Juror #10 Delivers a Note to the Court Indicating that Some Jurors Had Already Begun Discussing the Case Prior to Closing Summations, and Had Prematurely Formed an Opinion, Indeed a Skepticism, as to the Credibility of the Defendants……………………………………………....10 D. Verdict and Sentence……………………………………16 ARGUMENT POINT I: THE COURT COMMITTED REVERSIBLE ERROR WHEN IT REFUSED TO QUESTION JUROR #10 INDIVIDUALLY (FOR POSSIBLE DISQUALIFICATION), AFTER SAID JUROR SENT A NOTE TO THE COURT, PRIOR TO CLOSING ARGUMENTS AND THE COURT’S JURY CHARGE, INDICATING THAT: 1) SHE HAD ALREADY BEGUN DISCUSSING THE EVIDENCE WITH OTHER JUURORS; AND 2) SHE HAD ALREADY COME TO CONCLUSIONS AGREEING WITH THE PROSECUTION THAT DEFENDANTS ROUTINELY USED DECEPTIVE LANGUAGE AS PART OF THEIR MODUS OPERANDI..........................................................................16 (cont.) 3 Page A. Buford and its Progeny……………………………………..17 B. The Trial Court’s Rationale for Not Questioning Juror #10 Individually, In Camera………………………………………..21 C. “Harmless Error” Analysis Is Inapplicable, and Prejudice Is Easily Shown in Any Case……………………………………..22 D. The First Department Decision…………………………….25 POINT II : THE TRIAL COURT’S ADMITTING INTO EVIDENCE EXTENSIVE TESTIMONY ABOUT THE INTERNATIONAL DRUG TRADE, WHICH INCLUDED A MAP OF SOUTH AMERICA, CONSTITUTED REVERSIBLE ERROR BECAUSE IT MADE THE PRESENT DEFENDANTS APPEAR TO BE PART OF A WORLDWIDE NETWORK, WHICH WAS BOTH WITHOUT BASIS IN THE RECORD AND UNNECESSARY TO THE JURY’S UNDERSTANDING OF THE SINGLE DRUG TRANSACTION AT ISSUE IN THIS CASE…….29 A. The Prejudicial Effect of this Evidence……………………29 B. The First Department Decision…………………………….33 Conclusion…………………………………………………………….35 4 TABLE OF AUTHORITIES Page People v. Brown, 97 N.Y. 2d 500 (2002)……………………………33 People v. Buford, 69 N.Y. 2d 290 (1987)………………………..17, 22 People v. Colon, 172 A.D. 2d 173 (1st Dept. 1991)………………….30 People v. Contreras, 28 A.D. 3d 393 (1st Dept. 2006)……………….33 People v. Gordon, 77 A.D. 3d 662 (2nd Dept. 1980)……………..20, 33 People v. Maldonado, 50 A.D. 2d 556 (1st Dept. 1975)……………...29 People v. McClenton, 213 A.D. 2d 1 (1st Dept. 1995)……………18, 23 People v. Negron, 136 A.D. 2d 523 (1st Dept. 1988)…………………29 People v. Ordenana, 20 A.D. 3d 39 (1st Dept. 2005)…………………19 People v. Ramirez, 33 A.D. 3d 460 (1st Dept. 2006)…………………33 People v. Saunders, 120 Misc. 2d 1087 (N.Y. Sup. 1983)……………23 People v. Shaw, 43 A.D. 3d 685 (1st Dept. 2007)……………………..22 People v. Soto, 172 A.D. 2d 355 (1st Dept. 1991)……………………..30 People v. Woods, 104 A.D. 2d 322 (1st Dept. 1984)…………………..24 5 PRELIMINARY STATEMENT Defendant-Appellant Miguel Mejias (“Appellant”), by the undersigned attorney, submits the within Brief in support of his appeal, contesting his convictions for criminal possession of controlled substance first degree and conspiracy second degree, and the resulting judgment dated September 24, 2009, in which Appellant was sentenced to concurrent terms of thirteen years imprisonment (with five years post-release supervision) on the possession charge, and 5-15 years on the conspiracy charge. QUESTIONS PRESENTED POINT I: DID THE TRIAL COURT COMMIT REVERSIBLE ERROR WHEN IT REFUSED TO QUESTION JUROR #10 INDIVIDUALLY (FOR POSSIBLE DISQUALIFICATION), AFTER SAID JUROR SENT A NOTE TO THE COURT, PRIOR TO CLOSING ARGUMENTS AND THE COURT’S JURY CHARGE, INDICATING THAT: 1) SHE HAD ALREADY BEGUN DISCUSSING THE EVIDENCE WITH OTHER JUURORS; AND 2) SHE HAD ALREADY COME TO CONCLUSIONS AGREEING WITH THE PROSECUTION THAT DEFENDANTS ROUTINELY USED DECEPTIVE LANGUAGE AS PART OF THEIR MODUS OPERANDI ? POINT II: DID THE TRIAL COURT COMMIT REVERSIBLE ERROR WHEN IT ADMITTED INTO EVIDENCE EXTENSIVE TESTIMONY ABOUT THE INTERNATIONAL DRUG TRADE, WHICH WAS WITHOUT ANY BASIS IN THE RECORD AND WAS UNNECESSARY TO THE JURY’S UNDERSTANDING OF THE SINGLE DRUG TRANSACTION AT ISSUE IN THIS CASE? 6 Appellant respectfully submits that both questions should be answered in the affirmative. STATEMENT OF JURISDICTION The Court of Appeals has jurisdiction to review the two points of law raised in this appeal, both adequately preserved, as reflected by the Corrected Order of the Court Granting Certification, dated April 24, 2012 (A 17). Point I was preserved for appeal by appropriate objections and arguments at trial, as reflected in the Appendix at pages A 216, 220 and 221. Point II was preserved for appeal by appropriate objections and arguments at trial, as reflect in the Appendix at pages A 54-65. STATEMENT OF FACTS A. Description of the Action This case involves an alleged conspiracy to ship a quantity of cocaine, on one occasion, from California to the Bronx, New York. The People alleged that the three defendants in this case, Antonio Rodriguez, Junior Lantigua and Appellant all participated in the scheme, along with one Arnando Magallan, who allegedly made the delivery (A 35-36, Tr. 13-14), 7 and one Carlos Loveras (A 37, Tr. 15). A truck was ultimately seized by Drug Enforcement Administration (“DEA”) agents on Leland Avenue in the Bronx on June 12, 2008, and found to contain a large quantity of cocaine. The present defendants were then arrested and accused of possessing and conspiring to import the contents of that truck (A 41, Tr. 19). As relates specifically to Appellant, the People claimed that Loveras dealt with a man “from afar” known only as “Cuna”; that Loveras spoke constantly with Appellant; and that Appellant was Loveras’s “go to guy” (A 48, Tr. 26). Among Appellant’s alleged activities were sending a wire transfer of money to Mexico, at Cuna’s request, and attempting to pick out a safe place for the truck carrying the cocaine to be unloaded in the New York area (A 48-49, Tr. 26-27). The evidence against the defendants was gathered by a DEA subsidiary called the New York Drug Enforcement Task Force (A 42, Tr. 21). In addition to surveillance, the NYDETF’s primary method of gathering evidence was to wiretap the cell phones used by Loveras; in all, over 1000 calls were intercepted (A 43, Tr. 22). Eighty-seven of these calls were presented to the jury. These telephone calls had to be “interpreted” in two different ways. First, because all of the calls were in Spanish, all were translated into 8 English by a Spanish interpreter (A 43, Tr. 22). However, the interpretation did not end there, because none of the telephone calls, translated literally into English, carried any particular meaning or relevance to the drug trade. Consequently, the People offered Special Agent Kevin Flaherty as an expert in “drug trade language”, who told the jury what he believed these seemingly-benign words actually meant, in the many telephone calls. (A 44, Tr. 23.). B. The Prosecution’s Use of “Maps” and Description of the World- Wide Drug Trade. Early in the trial, when the A.D.A. was questioning Special Agent Flaherty (arguably the prosecution’s main witness), Flaherty explained that cocaine is “derived from the cocoa plant that is ground in regions of Columbia, Bolivia and Peru”, i.e. “in hot and humid climates” (A 54, Tr. 78). Flaherty was then shown a map of North and South America, which the People offered into evidence. Immediately there was a defense objection on the grounds of relevance (A 55, Tr. 79). At sidebar, the following colloquy ensued: A.D.A. GANDY: In [Flaherty’s] experience cocaine from countries in South America [comes] up into the United States which is incredibly relevant to this case. THE COURT: Are there phone calls to Mexico here? 9 A.D.A. GANDY: Yes. MR. HERRMAN: Why do we need a map? I’m sure everybody knows Mexico is south of the border. (A 56, Tr. 80). . . . A.D.A. GANDY: Could you use the map to show the different routes you have seen in your experience? MR. PHILLIPS: In this case. THE COURT: The only thing that would be relevant is [where] the truck [in this case] traveled. A.D.A. GANDY: He [Flaherty] is qualified in the operation of high level narcotics. MR. PHILLIPS: Your Honor, we should only be concerned with what the People are alleging happened in this case, not what is happening in the 20 zillion other investigations he has been part of. THE COURT: He hasn’t done that many, only five. What is it you want to show, that drugs come from South America and Central America? A.D.A.GANDY: He knows drugs start – the drugs that relate in the investigation he has been involved in the three countries he mentioned, they come into the United States by way of either Central America or either Mexico also into New York [sic]. THE COURT: How did it get from the fields of Bolivia, Peru or Columbia, do you have any evidence? A.D.A.GANDY: Yes, the man in Mexico. THE COURT: How did it get from the fields of Bolivia Peru or Columbia, do you have any evidence? 10 MR. STEWART: It is not relevant. MR. PHILLIPS: It is just dressing up the witness. (A 56-57, T80-81). . . . THE COURT: I think it is innocuous. The placements of --- relationship of one state to another countries, to each other in South and North America. I could take judicial notice and draw a picture if I could. I think it is innocuous. I will allow it, but very briefly. I don’t want a lot about this. This is not a part of the case. (A 57-58, T 81-82) After more colloquy, the Court repeated “I understand it is not a part of this case”, but her next words, somewhat curiously, were “objection overruled” (A 58, Tr. 82). The map of South American was then published in evidence, and referred to as the Agent Flaherty proceeded to give lengthy testimony on the routes used to deliver cocaine from South America into the United States (A 58-64, Tr. 82-88). Using the map, Flaherty told the jury that drugs coming into New York originally come from Columbia, Bolivia and Peru (A 58-59, Tr. 82- 83). Eventually, Flaherty continued, the drugs need to move first to Central America and then to Mexico. Flaherty then complied with the A.D.A.’s request that he show the jury where Central America and Mexico were on the map (A 58-59, Tr. 82-83). Flaherty described the various modes of transportation, from private small aircraft or big ships, which were sometimes met at sea by speed boats 11 (A 60, Tr. 84). He explained that at each step there would be a “stash house” at which the drugs would be stored until the next leg of the journey (A 60- 61, Tr. 84-85). He described how money was passed along at each stop. (A 61-62, Tr. 85-86). Eventually, Flaherty was asked about the “organizational structure” he had seen in previous importations of drugs into New York. Mejias’s counsel promptly objected on relevance grounds, but was overruled by the court (A 62, Tr. 86). Flaherty went on to describe the various “levels” in the drug trade, such as “importation level”, “wholesale level” and “street level”, and the role each level played in the importation of drugs into the key “destination” cities, Los Angeles, Chicago, New York, and Atlanta (A 63, Tr. 87). Flaherty’s also discussed other aspects of the drug trade, such as how drugs are hidden in tractor-trailers, how drivers are compensated, and how drugs are packaged and distributed (A 64-72, Tr. 88-96). By the time he was finished with this portion of his testimony, the jury had been thoroughly, if unnecessarily, educated in the various aspects of major international drug trading. In her closing summation, the A.D.A. reiterated this testimony. She stated: 12 At the beginning of this trial you heard testimony from Special Agent Keith Flaherty about how cocaine makes it from South America to the streets of New York, and he told you that the majority of the cocaine that’s seized in New York originates in Columbia, and that from Columbia it moves through Central America and Mexico as it continues on into the United States. He told you that once it makes it into the northern part of Mexico, it’s smuggled over the border in cars, backpacks, across rivers, and ultimately makes it into the United States. Once there, the Mexican narcotics traffickers arrange for it to be transported from the West Coast, or its city of importation to its destination, which in many instances is New York City. And it makes that trip by tractor trailer. (A 227-A, Tr. 1410). Thus this information was presented to the jury for a second time, despite the Court’s having stated, at the opening of the trial, that this information “is not part of the case” (A 57-58, Tr. 81-82). C. Juror No. 10 1 Delivers a Note to the Court Indicating that Some Jurors Had Already Begun Discussing the Case Prior to Closing Summations, and Had Prematurely Formed an Opinion, Indeed a Skepticism, as to the Credibility of the Defendants. Before closing arguments, on a lunch break, Juror # 10 delivered a note to the Court, saying, verbatim: “We want to know how/when and under what pretext Junior met Miguel Mejias” (A 215, Tr. 1332). This indicated at least two potential problems. First, as Mejias’s counsel stated to the Court, 1 Late in the trial, the court placed on the record that it was in fact Juror #11, and not Juror #10, who wrote the note here at issue (A 225, T 1405 (c)). As the trial court noted, the number of the juror “doesn’t really matter” (Id). However, because all of the other transcript references are to “Juror #10”, Defendant Mejias will continue to refer to “Juror #10” in its discussion of the issue in this Brief. 13 the use of the word “we” indicated that juror number 10 had already begun discussing the evidence with at least one other juror, in direct disobedience to the court’s continued instructions (A 216, Tr. 1333). Second, the phrase “under what pretext” indicated that juror #10 had already made up her mind that he/she agreed with one of the central contentions of the prosecution in the case, namely that deception was a major part of the defendants’ modus operandi; more specifically, that words spoken by the various defendants never meant what they ostensibly said, but rather were “code” for something else entirely. The juror did not simply ask why Junior met Mejias or “for what reason”; instead the juror asked “on what pretext”, indicating that the use of deception on the part of the defendants was by now a “given”, and that a key jury issue had already been decided by one or more jurors. Mejias’s trial counsel immediately asked the Court to ask Juror #10 whether she had been discussing any of the evidence with any of her fellow jurors (A 216, T 1333). The Court indicated a desire to question the jury as a group, rather than question the juror individually: “I can say I received a note about evidence from the jury and I assume they have not discussed the case and move on from there” (A 219, T 1336). Mejias’s counsel responded that “Mr. Mejias is concerned about the fact that the note begins, ‘We want 14 to know’. ‘We’ indicates that she has been discussing … .” (A 219-220, Tr. 1336-37). But the Court interrupted counsel, stating “What I don’t want to do is isolate jurors” (A 220, Tr. 1337). The following colloquy ensued: MR. PHILLIPS (attorney for Mejias): She put herself in this situation. While we are in an open court session she passed a note to the sergeant to give to the Court. I would ask that you specifically ask her, if she has been talking about the case with other jurors. A.D.A. GANDY: Your Honor, I think the first suggestion is sufficient….To address them as a panel and state that they should not be deliberating, that deliberations will begin shortly, and they should not speculate, and they should not discuss the case, or form any opinions until the evidence is closed. MR. PHILLIPS: Again, we are very troubled that one, the juror took it upon herself to give a note to the sergeant to give to you while she’s in the jury box and court is in session; and two, in clear defiance of the Court’s first instructions that they are not to consider, or talk about the case amongst themselves until they are deliberating – THE COURT: That’s assuming all of these facts from the one note, which I don’t think we can jump to that conclusion. I don’t want what happened before, to isolate particular jurors, I think it would be best to say what happened and tell the jury just talk about it and say they cannot talk about the case, if anyone has, they should bring it to my attention. MR. PHILLIPS: Our position is that you should inquire of Juror Number 10. THE COURT: I don’t think I am going to do that. I will speak to the whole panel. MR. PHILLIPS: In that case, we will ask that Juror 10 be disqualified and the last alternate will be seated in Juror 10’s spot. 15 THE COURT: Nothing occurred. First, let’s speak to the jury as a whole. MR. PHILLIPS: You are not allowing any specific inquiry of Juror Number ten? Speaking to the jury as a whole doesn’t mean Juror Number 10 will respond to the inquiries THE COURT: I will have them raise their hands, if anyone has begun discussing the case. (A 220-21, Tr. 1337-38) At this point, the jury entered, and the Court addressed the jury. THE COURT: Right before the recess, court officers handed me a note from Juror Number 10. I assume, first let me say, I have told you throughout the case, jurors may not discuss the case amongst yourselves, or with any third-party until all the evidence and the law is given to you. So this juror handed me a note, but I assume, even though the first word is “We”, that everyone has been following my instructions and not discussing anything about the trial amongst yourselves, or with any third-party. If that’s not the case, and there is anyone who has started discussing the evidence, could you please raise your hand. (No response) THE COURT: All right. (A 222, T 1339). The Court then terminated that discussion, and went on to discuss other matters with the jury. Closing arguments began shortly thereafter (A 223-24, T 1340-41). 16 D. Verdict and Sentence The jury returned verdicts of guilty as to Appellant on both the conspiracy and drug possession charges (A 228-29, Tr. 1558-9). Co- defendant Rodriguez was convicted on the same charges, and co-defendant Lantigua was convicted on conspiracy, the only charge against him (A 229, Tr. 1559). Appellant was eventually sentenced to 13 years imprisonment on the first-degree narcotics possession charge, with 5 years post-release supervision, concurrent with a sentence of 5 to 15 years on the conspiracy charge (A 20). ARGUMENT POINT I: THE COURT COMMITTED REVERSIBLE ERROR WHEN IT REFUSED TO QUESTION JUROR #10 INDIVIDUALLY (FOR POSSIBLE DISQUALIFICATION), AFTER SAID JUROR SENT A NOTE TO THE COURT, PRIOR TO CLOSING ARGUMENTS AND THE COURT’S JURY CHARGE, INDICATING THAT: 1) SHE HAD ALREADY BEGUN DISCUSSING THE EVIDENCE WITH OTHER JUURORS; AND 2) SHE HAD ALREADY COME TO CONCLUSIONS AGREEING WITH THE PROSECUTION THAT DEFENDANTS ROUTINELY USED DECEPTIVE LANGUAGE AS PART OF THEIR MODUS OPERANDI. On a lunch break prior to closing arguments, Juror # 10 sent a note to the Court stating: “We want to know how/when and under what pretext Junior met Miguel Mejias” (A 215, Tr. 1332). Despite the clear indication 17 that the use of the word “we” reflected discussion of the evidence among jurors (rather than merely the thought process of a single juror), and that the word “pretext” indicated that one or more jurors had already accepted as true the prosecution’s contention that deception was a central part of the Defendant’s “modus operandi”, the Court not only refused to replace Juror #10, but refused even to question juror #10 individually in order to find out precisely what that juror meant in her note, and whether or not she had already begun discussing the case with other jurors. This was reversible error. A. Buford and Its Progeny In People v. Buford, 69 N.Y. 2d 290, 298 (1987), this Court stated: [I]f at any time after the trial jury has been sworn and before the rendition of its verdict, the Court finds…that a juror is grossly unqualified to serve in the case, the Court must discharge such juror.” Buford goes on to state: Each case must evaluated on its unique facts to determine whether a particular juror must be disqualified under CPL 270.35. In reaching its conclusion, the trial court must question each allegedly unqualified juror individually in camera in the presence of the attorneys and defendant. Counsel should be permitted to participate, if they desire. In a probing and tactful inquiry, the court should evaluated the nature of what the juror has seen, heard, or has acquired knowledge of, and assess its importance and its bearing on the case. 69 N.Y. 2d at 299 [emphasis added]. 18 In People v. McClenton, 213 A.D. 2d 1 (1st Dept. 1995), the First Department reversed defendant’s conviction due to the trial court’s refusal to conduct the “probing and tactful” inquiry mandated by Buford, following defendant’s timely request for such inquiry. A juror had stated in a note that, with regard to a possible “scheduling problem”, “It’s beyond a reasonable doubt that [the juror] will make it to work tonight”. The Court cited Buford as mandating that the trial court must questions each allegedly unqualified juror individually, 213 A.D. 2d at 4. In McClenton, the prosecution argued that the juror was merely being jocular, given the language of his note, and had not necessary already decided defendant’s guilt (as his imminent anticipated availability to work would imply). The First Department, however, while recognizing that possibility, replied that “without findings after an inquiry, such a characterization is no more based on established facts than alchemy”, Id at 5. The Court continued: …Neither the trial court, nor this, nor any court, can see into the hearts or minds of women and men. This, however, is precisely why, when faced with an ambiguous note, nisi prius should have acceded to defense counsel’s request to make inquiry. Neither the dissenter’s “sense” of the import of the juror’s note nor the trial court’s determination that the note “doesn’t make any sense” is an adequate substitute for an explanation of its meaning from the only person who could have “demystified” the situation, the note’s author. Indeed, on this record, whether the juror here came to the deliberating table predisposed on the issue of defendant’s guilt and/or with a self- 19 imposed deadline for reaching a verdict is a question that can only be answered by resorting to speculation.” … The trial court’s refusal to conduct an inquiry means that it will never be known whether this defendant was tried by a jury which did not engage in premature deliberations, did not commence deliberations with a predisposition toward a finding of guilt, or did not operate under a time constraint for reaching its verdict. Id at 5-6 [emphasis added]. Similarly, in People v. Ordenana, 20 A.D. 3d 39 (1st Dept. 2005), discharged alternate jurors informed the trial court that some of the sitting jurors had discussed the case prior to deliberating, in direct violation of the court’s instructions. The trial court refused to conduct an inquiry of the jurors despite defense counsel’s repeated requests. Citing McClenton, this Court reversed defendant’s conviction, noting that that “the issue here is not whether the jurors would or should have been discharged, but rather whether the trial court should have conducted an inquiry. Because the court here refused to conduct any inquiry, it will never be known whether some of the jurors engaged in “premature deliberations or commenced deliberations with a predisposition toward a guilty finding”, Id at 42.2 2 Compare with People v. Lewie, 67 A.D. 3d 1056 (3rd Dept. 2009), where a juror was allowed to continue serving after she had sent a note to the court asking for the name and phone number of the assistant Distract Attorney that the juror described as a “cutie”. The trial court reprimanded the juror and questioned her thoroughly, and the juror acknowledged the inappropriateness of her note, apologized, and assured the court that she had no predisposition towards any of the parties. Under these facts, which differed 20 The importance of having all jurors deliberating at the same time, as one, at the proper time, cannot be overstated . As stated in People v. Gordon, 77 A.D. 3d 662, 664 (2nd Dept. 1980): Further error was committed when the Trial Judge made no inquiry into the apparent failure of some of the jurors to heed the mandatory admonition that they “not converse among themselves upon any subject connected with the trial” (CPL 270.40)….[Prior to summations], a juror said to the Trial Judge: “We would like to know where grand larceny starts and petty larceny ends”….In light of the juror’s statements, the trial court’s denial of defendant’s motion [for mistrial] without any inquiry into what whether and to what extent the jurors had violated their duty not to discuss the case before it was submitted to them was error. This duty is an important one. It appears to derive not only from the statutory admonition, the salutary purposes of which are obvious, but also may perhaps be rooted in defendant’s right under our State Constitution to have his guilt or innocence determined by a jury of 12 persons, all of whose deliberations are to be carried on as one body of 12. (See People v. Ryan, 19 N.Y. 2d 100, 104-105). Moreover, when that duty is breached before the defendant’s summation, as may have occurred here, the possibility exists that some or all of the jurors will have formed conclusions about the case without their having been exposed to defendant’s summation, “a basic element of the adversary factfinding process in a criminal trial:. (Herring v. New York, 422 U.S. 853, 858 (1975). greatly from those in the present case in that the Lewie Court conducted a thorough and probing inquiry, the appellate Court found that mistrial was not warranted. 21 B. The Trial Court’s Rationale for Not Questioning Juror #10 Individually, In Camera. The trial court’s decision not to question the note-writing juror was apparently justified by a desire not to “isolate” the juror (A 220, Tr.1337). But the court never said, nor has any New York court, why it would be an unacceptably bad thing to “isolate” a juror3, and it is hard to fathom what great harm would result from doing so, especially compared with the harm that can occur, and did occur, from not doing so. Indeed, if any juror acted wrongly, that juror would have been much more likely to admit it when questioned outside the presence of the other jurors. With all jurors present, there was a “peer pressure” for the juror not to admit, in front of the other jurors, anything that would potentially compromise the trial. The other jurors had already sacrificed much time and effort to serving on the case; they would not have been happy to learn that one of their number had potentially rendered it all a nullity by causing a mistrial. It is no wonder that no juror raised his or her hand, when they were all questioned together. 3 A Westlaw search for cases with “isolate” and “juror” in the same sentence produced only three cases, all of which were referring to the isolation of the entire jury during deliberations, to protect against outside influences. Not a single case discusses the “isolation” of a single juror from other jurors for questioning by the Court as something to be avoided, or as somehow undesirable. 22 Ultimately, striking a rational balance between the crucial necessity of knowing if one or more jurors have been comprised on one hand, and the purported-but-unexplained “downside” of a court’s “isolating” a juror on the other hand, is a “no-brainer”. The importance of the former goes to the very heart of the integrity of the jury system and a defendant’s constitutional right to a jury trial, per Buford et al., while the “importance” of the latter remains unexplained. Stated another way, the protection of one juror’s personal sensibilities is easily trumped by the need to know whether the ability of a jury to render a fair decision has been compromised. C. “Harmless Error” Analysis Is Inapplicable, and Prejudice Is Easily Shown in Any Case. Finally, “harmless error” analysis is inapplicable here. In People v. Shaw, 43 A.D. 3d 685 (1st Dept. 2007), the Court held “When defense counsel advised the court that a juror had inappropriately approached him and made comments indicating a possible bias against the defense, the court should have granted counsel's request to make an inquiry of the juror with respect to her qualification (see CPL 270.35; People v. Buford, 69 N.Y. 2d 290, 299). Under the circumstances presented, that error is not subject to harmless error analysis”. 23 Similarly, the Court in McClenton, supra, held that the failure of the trial court to make the requested inquiry was error which affected defendant's “constitutional right to a jury trial and [he] is therefore entitled to a new trial”, without necessitating a showing of prejudice, 213 A.D. 2d at 7. Alternatively, harmless error analysis cannot be applied when the court’s own failure to make a record makes it impossible to demonstrate prejudice with certainty. As held in People v. Gordon, 77 A.D. 2d 663, 664 (2d Dept. 1980): [B]efore the trial resumed, the court should have made inquiry into the extent, if any, that the jury had engaged in premature discussions of the case, in violation of its duty. The People assert that the court’s failure to make such inquiry is not reversible error absent defendant’s showing that any premature discussions the jurors might have had prejudiced defendant. However, it is difficult to see how such a showing could have been made when there was no inquiry into the nature of such discussions, if any. [emphasis added]. As stated above, the same observation was made in People v. McClenton, supra, which, in reversing the conviction, found that the court’s failure to make adequate inquiry left the reviewing court in the unacceptable position of having to resort to “speculation”. Even if prejudice needed to be demonstrated, such is easily done under the circumstance of this case. As stated in People v. Saunders, 120 Misc. 2d 1087, 1090 (N.Y. Sup. 1983): 24 There also exists the likelihood that defendant was prejudiced by the jury’s premature discussions of the case. By ignoring the court’s admonition not to discuss the case prior to deliberation there exists the possibility some members of the jury had formed conclusions prior to defense counsel’s summation and the charge of the court on the law. In doing this, defendant’s right to have his guilty or innocence determined by a jury of twelve persons deliberating as one may have been violated [citing Gordon]. In the present case, the premature discussion of the case by Juror #10 is even more troubling, because the note stated “We want to know “under what pretext Junior met Miguel Mejias” (A 215, Tr. 1332). The negative implication of the word “pretext” was discussed in.).4 People v. Woods, 104 A.D. 2d 322, 332 (1st Dept. 1984): “Pretext is defined as ‘ostensible reason or motive assigned or assumed as a color or cover for the real reason or motive; false appearance, pretence’ ” (Black’s Law Dictionary, 4th Ed In a case such as the present case where the centerpiece of the prosecution’s evidence was a series of recorded telephone calls alleged to mean something very different from their ostensible meaning, the question of whether or not the relatively innocuous language used in these calls was in fact a “pretext” for narcotics dealing was one of the most important issues of fact that the jury had to decide. 4 Yet, in their Brief before the First Department, that People argued that the word “pretext” did not necessarily have the “nefarious meaning” urged by Defendants Br. 74). 25 In such context, the trial court’s failure even to conduct an inquiry of the juror(s) was, simply, inexcusable. If, prior to deliberations, one or more jurors had already decided that the prosecution was correct in its allegation that the use of “pretext” was a central part of the Defendants’ modus operandi, then Defendants were most certainly prejudiced by the court’s failure to investigate that possibility, and that failure clearly constitutes reversible error under the law of New York. D. The First Department Decision In affirming Defendants’ convictions, the Appellate Division, First Department addressed this issue in one short paragraph. After reciting the issue, the First Department wrote: The court did not abuse its discretion when it declined to conduct any individual inquiries, but instead addressed the problem by ways of inquiries directed to the jury as a group, along with careful instructions [citing Buford]. Given the circumstances, there is no reason to believe there were actually any premature deliberations, and the court’s actions were sufficient to avoid any prejudice. [A 21, emphasis added]. In two sentences, the First Department managed to make at least five erroneous statements of fact, law and/or logic: 1. First, one is struck by the court’s use of the plural in referring to the “inquiries” and “actions” taken by the trial court in addressing the issue 26 surrounding juror #10. In actual fact, the trial court made one inquiry, which comprised its only “action”. The single question it asked the entire jury panel as a group was So this juror handed me a note, but I assume, even though the first word is “We”, that everyone has been following my instructions and not discussing anything about the trial amongst yourselves, or with any third-party. If that’s not the case, and there is anyone who has started discussing the evidence, could you please raise your hand. (No response) This single question comprised all of the trial court’s “actions” with regard to the issue surrounding juror #10. (A 222, T 1339). There was no follow-up question, no inquiry as to why, if there had truly been no discussion among jurors, the note was worded “we want to know”. In some instances, an appellate court’s use of the plural where the singular is called for might merely be an innocuous grammatical error. In this instance, however, one suspects that the First Department recognized the paucity of “actions” by the trial court, and used the plural in an effort to camouflage the sheer inadequacy of the trial court’s response, and to make that response appear more substantial than it was. 2. The First Department was in error as to the state of the law when it wrote “the court did not abuse its discretion when it declined to conduct any individual inquiries”, and then cited Buford, as if in support of that 27 statement. But Buford states: “In reaching its conclusion, the trial court must question each allegedly unqualified juror individually in camera in the presence of the attorneys and defendant. Counsel should be permitted to participate”, 69 N.Y.2d at 299. In actual fact, “abuse its discretion” is precisely what the trial court did when it “declined to conduct any individual inquiries”. And Buford does not support the conclusion of the First Department in this case; rather, it refutes it. 3. The First Department cited the trial court’s “careful instructions” to the jury as sufficient to address the problem. One can only wonder: to what “careful instructions” was the First Department referring? All the trial court did was to tell the jurors she “assumed” that they were following her instruction that they should not discuss the case among themselves, to ask for jurors who had done so to raise their hands, and then to move onto other matters when no hands were raised. 4. The First Department stated “under the circumstances, there was no reason to believe there were any premature deliberations”. Given that a juror note said “we want to know”, with regard to a factual issue in the case, the First Department’s “no reason to believe” language is hard to fathom. 5. In stating that the trial courts’ “action” was sufficient to cure any prejudice”, the First Department managed to make two errors. The first was 28 one of logic; that action was scarcely adequate to address the very serious possibility that some jurors had already begun forming conclusions as to factual issues in the case (i.e. the Defendants’ alleged use of “pretext” as their modus operandi). The second error was to assert that any “prejudice” needed to be shown. For the reasons set out in sub-part D. of this argument, Defendants were not required to demonstrate prejudice, either because harmless error analysis does not apply, or because the trial court’s failure to make an adequate record is itself what made it impossible to demonstrate the prejudice with greater specificity. In short, the First Department’s decision on this point of law can and should be overturned for many reasons. 29 POINT II : THE TRIAL COURT’S ADMITTING INTO EVIDENCE EXTENSIVE TESTIMONY ABOUT THE INTERNATIONAL DRUG TRADE, WHICH INCLUDED A MAP OF SOUTH AMERICA, CONSTITUTED REVERSIBLE ERROR BECAUSE IT MADE THE PRESENT DEFENDANTS APPEAR TO BE PART OF A WORLDWIDE NETWORK, WHICH WAS BOTH WITHOUT BASIS IN THE RECORD AND UNNECESSARY TO THE JURY’S UNDERSTANDING OF THE SINGLE DRUG TRANSACTION AT ISSUE IN THIS CASE. A. The Prejudicial Effect of this Evidence In People v. Negron, 136 A.D. 2d 523 (1st Dept. 1988), this Court reversed defendant’s conviction because the People elicited testimony about organized drug operations at the location of the single transaction in the case, that was completely unnecessary to the jury’s understanding of that transaction. The Court wrote: Our examination of that testimony … indicates to us that its main objective was to convey to the jury an inference that defendant was part of an organized drug operation. However, our review of the record indicates there is no evidence to support any inference that defendant was part of any such operation. Accordingly, we find the purpose of this background testimony could only have been to focus on the narcotic trade in general, thereby prejudicing the jury against defendant. The evidence introduced should, rather, have focused more sharply on the defendant the single sale with which he was charged [citing People v. Maldonado, 50 A.D. 2d 556 (1st Dept. 1975)]. In view of our finding that the background testimony was too prejudicial we find it inadmissible. 136 A.D. 2d at 526 [emphasis added]. 30 Similarly, in People v. Colon, 172 A.D. 2d 173, 176 (1st Dept. 1991), citing Negron, defendant’s conviction was vacated when ”the prosecutor improperly created the impression that defendant was part of a large scale drug-selling operation in the building, thus shifting the focus from a single act of possession to an organized criminal sale enterprise.” This Court found that “there was no call for the introduction of extensive evidence concerning unrelated drug trafficking activity in the building in which defendant was arrested”, id. See also People v. Soto, 172 A.D. 2d 355 (1st Dept. 1991), which again found that prejudicial evidence had shifted the focus from the central issues in the case to the drug trade in general. The above-cited cases perfectly describe the prejudicial nature of much of the testimony of the main prosecution witness in this case, Agent Flaherty. The misguided portrayal of Appellant as part of a huge international operation began with the admission into evidence of a map of South America and Central America (see People v. Maldonado, supra). Counsel immediately protested, saying that this testimony was irrelevant, and served to “dress up” Flaherty’s testimony. Oddly enough, the trial court seemed to agree that a description of the international drug trade was irrelevant, yet admitted both the map and 31 Flaherty’s subsequent exhaustive description of how drugs generally reach New York. At one point the Court stated that the only relevant “geographical” evidence would be to show the route taken by the one truck involved in this case (A 56-57, Tr. 80-81). At another point the Court stated “I don’t want a lot of this. This is not part of the case” (A 57-58, Tr. 81-82). Yet, the Court nonetheless overruled defense counsels’ objection (A 58, Tr. 82), and the map of South and Central America was admitted into evidence, and served as the starting point for Agent Flaherty’s extended testimony on the different routes on which drugs are taken on their way to the United States (A 58-64, Tr. 82-88). This was then broadened into a lengthy primer on all aspects of the international drug trade, including, inter alia, the different “levels” of drug organizations, packaging techniques, the use of “stash houses”, etc. One can only ask, rhetorically, “What possible relevance could maps of Central and South America, and a discussion of drug routes not used by these Defendants, and other drug-organizational techniques not attributed to these Defendants, have had in the present case? The answer, of course, is no relevance whatsoever. As in Negron et al, the prosecution in this case was essentially using evidence about the international drug trade as a broad “paint brush” with which to smear the present defendants. 32 The irony, in the case of Appellant Miguel Mejias in particular, is that all the evidence relating to him suggested that, far from being a major player in a large drug cartel, Mejias was the classic blue-collar “working stiff”, i.e. a man with a low-paying full time job, and the only defendant among the three who could not afford to hire his own lawyer. When Agent Forget arrested the defendants on June 12, 2009, and seized whatever currency the defendants were then carrying, the amount seized from Mejias was all of $45 (A 60-61, Tr. 84-85). Ultimately, it was the prosecution’s burden to prove that the defendants were importing cocaine by reference to the evidence in this case, which involved one single transaction entirely within the United States, and not by “associating” these defendants with actions taken by others in the international drug trade. To do so was an appeal to the jurors to decide the case not on the evidence, but rather on an emotional appeal concerning their feelings about drugs, and the international drug trade, in general. Indeed, the trial court itself questioned the relevance of the testimony as to the international drug trade, yet inexplicably decided to allow the testimony nonetheless. The court should have followed its own instincts. Its failure to do so constituted reversible error. 33 B. The First Department’s Affirmance In discussing this point, the First Department concluded that “the court properly permitted an expert to give background testimony on large- scale narcotics operations and to explain coded language” (A 20). (In this regard, it should be pointed out that neither Mejias nor Rodriguez ever argued that the testimony on “coded language” was improper; only Lantigua so argued.) The remainder of the relevant paragraph supported the allowance of expert testimony as to the “coded language”, but supplied absolutely no support for the allowance of such testimony as to the international drug trade generally. The Court cited three decisions. The first, People v. Brown, 97 N.Y. 2d 500 (2002) was completely inapposite to this case, as that case involved street-level narcotics sales, and therefore properly allowed background evidence as to operating methods used in street-level sales, particularly to explain why the defendant had no money or drugs on him immediately after selling to an undercover officer. The other two decisions, People v. Ramirez, 33 A.D. 3d 460 (1st Dept. 2006) and People v. Contreras, 28 A.D. 3d 393 (1st Dept. 2006) dealt with the allowance of expert testimony on drug-coded language, which, again, was not contested by the Appellants now before this Court. 34 What was conspicuously lacking in the First Department opinion was citation to any precedents approving the admittance of expert testimony regarding the international drug trade, in a single-transaction case such as the present case. Nowhere did the court address, let alone distinguish, the relevant precedents Mejias had cited to the contrary, such as Negron, Colon and Soto. Instead, the court merely stated, in conclusory fashion with no further elaboration, that “given the type of case, use of a map of the Western Hemisphere Hemisphere to illustrate the international flow of drugs was also permissible and was not unduly prejudicial” (A 20-21). Nowhere did the court explain the relevance of such material to the present case. Instead, the court relied on bland generalities such as to say that such material was “beyond the knowledge of the average juror”. The simple response is that he jury had no need for any such “knowledge” in this case, particularly where the nearly-nonexistent “probative value” of such evidence was so clearly outweighed by the prejudicial effect. 35 CONCLUSION For all of the above-stated reasons, Appellant Miguel Mejias’s convictions for conspiracy and narcotics possession should be reversed and vacated. Respectfully submitted, __________________ John R. Lewis, Esq. Attorney for Appellant Miguel Mejias 36 Hemlock Drive Sleepy Hollow, NY 10591 (914) 332-8629 August 22, 2010 CERTIFICATE OF COMPLIANCE The foregoing memorandum was prepared on a computer. A monospaced typeface was used, namely Times Roman 14 point, with double line spacing. The total number of words in the memo, inclusive of point headings and footnotes and exclusive of pages containing table of contents, table of citations, proof of service, certificate of compliance or any authorized addendum containing statutes, rules, regulations, etc. is 7,332 words.