The People, Respondent,v.Antonio Rodriguez, Appellant.BriefN.Y.March 19, 2013To be Argued by: DAVID TOUGER (Time Requested: 30 Minutes) New York County Indictment No. 2972/08 Court of Appeals of the State of New York THE PEOPLE OF THE STATE OF NEW YORK, Respondent, – against – MIGUEL MEJIAS, Defendant-Appellant. –––––––––––––––––––––––––––––– THE PEOPLE OF THE STATE OF NEW YORK, Respondent, – against – ANTONIO RODRIGUEZ, Defendant-Appellant. BRIEF FOR DEFENDANT-APPELLANT ANTONIO RODRIGUEZ PELUSO & TOUGER, LLP Attorneys for Defendant-Appellant Antonio Rodriguez 70 Lafayette Street New York, New York 10013 Tel.: (212) 608-1234 Fax: (212) 513-1989 Date Completed: August 23, 2012 Indictment No. 2972/08 Indictment No. 2972/08 TABLE OF CONTENTS TABLE OF AUTHORITIES ................................................................................... iii QUESTIONS PRESENTED ..................................................................................... 1 PRELIMINARY STATEMENT ............................................................................... 2 STATEMENT OF FACTS ........................................................................................ 4 A. The Trial Court allowed the prosecution to use a map of North, Central and South America and to elicit testimony about the worldwide drug trade while twice stating the evidence is not part of this case ..................... 5 B. The Trial Court discharged a malodorous juror after conducting individual inquiries of five jurors ................................................................ 9 C. Agent Flaherty testified that defendants used seemingly legitimate conversations to conceal their alleged conspiracy ..................................... 14 D. Juror # 10 delivers a note to the Trial Court indicating that some jurors had already begun discussing the case prior to summations and had prematurely formed an opinion .................................................................. 16 E. Verdict and sentence .................................................................................. 20 F. Leave to appeal the decision of the Appellate Division granted ................ 21 ARGUMENT .......................................................................................................... 21 POINT I ................................................................................................................. ~.21 THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT REFUSED TO CONDUCT AN INDIVIDUAL, IN CAMERA INQUIRY OF A JUROR WHO SENT A NOTE TO THE COURT INDICATING THAT AT LEAST TWO JURORS HAD PREMATUREL Y DISCUSSED THE EVIDENCE AND FORMED CONCLUSIONS ..................................................... 21 A. The Trial Court should have conducted an inquiry ................................... 23 B. The Trial Court deliberately mischaracterized the note as a request for additional evidence to avoid isolating the note's author, and the Trial Court's "inquiry" in the form of one question to the jury as a panel in open court falls short of what Buford requires .......................................... 26 POINT II ............................................................................ ~ ..................................... 27 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 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 IN THIS CASE ............................................................................................................. 27 CONCLUSION ....................................................................................................... 31 11 TABLE OF AUTHORITIES New York Court of Appeals Cases People v. Buford, 69 N.Y.2d 290, 506 N.E.2d 901, 514 N.Y.S.2d 191 (1987) ...................................................... ...................... passim People v. Rodriguez, 71 N.Y.2d 214,524 N.Y.S.2d 411, 519 N.E.2d 333 (1988) ....................................................................................... 23 Appellate Division Cases People v. Colon, 568 N.Y.S.2d 358, 172 A.D.2d 173 (1 st Dep't 1991) .................. 28 People v. McClenton, 630 N.Y.S.2d 290,213 A.D.2d 1 (1 st Dep't 1995) ........ 24, 25 People v. Negron, 523 N.Y.S.2d 836,136 A.D.2d 523 (1 st Dep't 1988) .... 27, 28, 30 People v. Ordenana, 795 N.Y.S.2d 582, 20 A.D.3d 39 (1 st Dep't 2005) .......... 24, 25 People v. Soto, 568 N.Y.S.2d 746, 172 A.D.2d 355 (1 st Dep't 1991) ..................... 28 People v. Thomas, 601 N.Y.S.2d 608, 196 A.D.2d 462 (1 st Dep't 1993) ............... 27 Statutes Criminal Procedure Law Section 270.35 ................................................................. 23 111 QUESTIONS PRESENTED 1. Whether the Trial Court committed reversible error by refusing to conduct an individual, in camera inquiry, or at minimum, a "probing inquiry," to detennine whether a juror was grossly unqualified where the juror sent a note prior to summations and jury deliberations that showed at least two jurors had already discussed the evidence and agreed with the prosecution's theory of defendants- appellants' modus operandi? 2. Whether the Trial Court committed reversible error by admitting into evidence extensive testimony about the structure and scope of the international drug trade despite the single domestic drug transaction alleged, because it made the defendants-appellants appear to be part of a worldwide drug network, without any basis in the record or reason? 1 PRELIMINARY STATEMENT By permission of the Honorable Theodore T. Jones, Judge of the Court of Appeals of the State of New York, granted April 24, 2012, 1 defendant-appellant, Antonio Rodriguez, appeals from an order of the Appellate Division, First Department, entered July 7, 2011, which affirmed the judgment of the Supreme Court, New York County, rendered February 9, 2010, convicting defendant, after a jury trial before Honorable Bonnie G. Wittner, of criminal possession of a controlled substance in the first degree and conspiracy in the second degree, and sentencing him to concurrent terms of 12 years and 5 to 15 years. The issues raised in this appeal present questions of law that are preserved for this Court's reVIew. The Trial Court committed reversible error by refusing to follow the mandatory guidelines set forth by this Court in People v. Buford, 69 N.Y.2d 290, 506 N.E.2d 901, 514 N.Y.S.2d 191 (1987) to determine whether a juror was grossly unqualified. Buford mandates that if the conduct of a juror implicating partiality indicates that juror's discharge might be required, the Trial Court must conduct an individual, in camera inquiry of that juror that is "probing and tactful." Id. at 299. Here, a juror submitted a note that unambiguously suggested she had discussed the evidence before summations with at least one other juror, for the note 1 Numbers preceded by "A" refer to the Joint Appendix. The Order Granting Leave to Appeal is in the Appendix at A-16 and the First Department's Decision is at A-19. 2 began "We want to know how/when and under what pretext Junior met Miguel Mejias." The plain language of the note in the use of the term "we" indicates that at least two jurors discussed the evidence prior to summations. In addition, the juror who authored the note was not the same juror who submitted the note to the sergeant, which further implies that at least these two jurors had prematurely discussed the evidence. Also, at the time the note was submitted, the Trial Court had admonished the jurors not to engage in discussion in the jury box. Furthermore, the note showed that at least two jurors prematurely agreed with the prosecution's theory that defendants encoded and encrypted their cell phone conversations so that seemingly legitimate conversations about, for example, a real estate transaction, were pretexts for the drug transaction alleged, because the note read "We want to know how/when and under what pretext" one defendant met the other. Because the juror's note In this case unequivocally indicated premature deliberation and conclusion, the Trial Court should have at least isolated the author of the note by conducting an individual, in camera inquiry of him/her that was "probing and tactful." Instead, the Trial Court denied defendants-appellants' request to make such an inquiry because it did not want to isolate jurors, and asked the jury as a whole in open court if it had disregarded the Trial Court's repeated instructions not to discuss the evidence. Predictably, no juror admitted to 3 disobeying the Trial Court in open court, the Trial Court moved on without conducting an in camera inquiry or any further inquiry at all, and defendant- appellant was convicted by a jury, part of which had potentially discussed the evidence and reached conclusions before summations and deliberations, in violation of his federal and state constitutional rights to an impartial jury. Accordingly, defendant-appellant's conviction must be reversed. The Trial Court also improperly admitted into evidence, over defendant- appellant's objections, extensive testimony about the international drug trade, including testimony about the structure of drug organizations, methods of packaging, and stash houses, that had nothing to do with the single drug transaction alleged in this case. The Trial Court allowed a map of North, Central and South America into evidence, even though the route alleged here was from California to New York. The only objective of this evidence was to convey to the jury an inference that the defendant-appellant was part of an organized worldwide drug operation spanning from South America to New York, for which there was no basis in the record or reason. Admission of this evidence necessarily prejudiced the jury against the defendant and requires reversal. STATEMENT OF FACTS This case involves an alleged conspiracy to ship cocaine from California to the Bronx, New York. The prosecution alleged that defendant-appellant 4 Rodriguez, co-defendant-appellant Mejias, and Junior Lantigua all participated in the scheme, along with Amando Magallon, who allegedly made the delivery (A- 35-36), and one Carlos Loveras. (A-37). Specifically, the prosecution alleged that part of the modus operandi of the group was to use "coded and cryptic" language in conversations on cell phones to conceal their true criminal intent. (A-45-50). Ultimately, a truck was seized by Drug Enforcement Administration ("DEA") agents in the Bronx on June 12, 2008, and found to contain cocaine. (A-41-43). The above-named defendants were then arrested and accused of possessing and conspiring to import the contents of that truck. (A-41). The evidence was gathered by a DEA subsidiary called the New York Drug Enforcement Task Force ("NYDETF"). (A-43). In addition to surveillance, the NYDETF's primary method of gathering evidence here was to wiretap the cell phones used by Loveras. Over 1000 calls were intercepted, 87 of which were presented to the jury. (A-44). These telephone calls were "interpreted" in two ways. First, because the conversations were in Spanish, a Spanish interpreter translated them into English. Id. Second, because the conversations were allegedly intentionally "coded" and "cryptic" to conceal their true meaning, the prosecution qualified Special Agent Kevin Flaherty ("Agent Flaherty") as an expert in "the operation of high level narcotics trafficking and interpretation of language over cell phones." (A -45, 51). 5 A. The Trial Court allowed the prosecution to use a map of North, Central and South America and to elicit testimony about the worldwide drug trade while twice stating the evidence is not part of this case. On July 30, 2009, the first day of trial, the prosecution's expert on "the operation of high level narcotics trafficking," Agent Flaherty, explained that generally, 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). Agent Flaherty was then shown a map of North, Central and South America, which the People offered into evidence. Id. Immediately, trial counsel for defendant- appellant, co-defendant appellant Mejias, and Junior Lantigua objected on the ground of relevance. (A-55). At sidebar, the following colloquy ensued: ADA 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? ADA GANDY: Yes. MR. HERRMAN: Why do we need a map? I'm sure everybody knows Mexico is south of the border. (A-56). ADA 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 traveled. 6 ADA 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? ADA 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 N ew York [sic]. THE COURT: Does he have any evidence in this cases [ sic] where this came from? ADA 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? MR. STEWART: It is not relevant. MR. PHILLIPS: It is just dressing up the witness. (A- 56-57). 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. You are not charging him importing from south--- 7 ADA GANDY: We are Mexico. It is very relevant to the case at the end. THE COURT: It came from Mexico. ADA GANDY: Yes. The man was travelling-the man from Mexico. MR. PHILLIPS: For the reasons stated, it is not part of this case. THE COURT: I understand it is not part of this case. Objection overruled. (A-57-58)( emphasis added). The map was published in evidence, and Agent Flaherty referred to it while testifying on the routes used to deliver cocaine from South America into the United States, none of which were alleged to have been used in this case. (A-58-64). Using the map, Flaherty told the jury that drugs coming into New York originally come from Columbia, Bolivia and Peru. (A-58-59). Eventually, Flaherty continued, the drugs need to move first to Central America and then to Mexico. Agent Flaherty then complied with the prosecutor's request that he show the jury where Central America and Mexico were on the map. Id. Agent Flaherty also described the various modes of transportation, from private small aircraft to big ships, which were sometimes met at sea by speedboats. (A-60). 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). He also described how money was passed along at each stop. (A-61-62). 8 Eventually, Agent Flaherty was asked about the "organizational structure" he had seen in previous importations of drugs into New York. (A-62). Defense counsel promptly objected on relevance grounds, but was again overruled by the Trial Court. Id. Agent 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 of Los Angeles, Chicago, New York, and Atlanta. (A-63). Agent Flaherty 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). B. The Trial Court discharged a malodorous juror after conducting individual inquiries of five jurors. On August 3, 2012, the third day of trial, the Trial Court reported an off the record conversation that the foreman, Juror # 1, had with the Court Officer, who informed the Trial Court that jurors were complaining about the smell of Juror # 3. (A-77, 80). With the jury still in the jury room, the Trial Court summoned Juror # 12, who had asked to speak with the Trial Court, and inquired whether Juror # 12 could render a fair and impartial verdict on the evidence. (A-77-78). After the juror replied she could not, the Trial Court did not inquire further, asked her to wait outside the courtroom away from the jury room, and invited arguments from the parties as to what to do. (A-78-79). All parties seemed to agree that Juror # 12 9 should be discharged as grossly unqualified, the Trial Court discharged Juror # 12, and replaced her with an alternate juror. (A-79-80). After confirming with the Court Officer what Juror # 1 said about the bad odor of Juror # 3, the Trial Court admitted that it did not know what it was going to do to resolve the situation (A-80), and summoned Juror # 1 to the courtroom away from the rest of the jury to individually inquire. (A-81). Juror # 1 then told the Trial Court that several of the jurors came to him and complained that the bad smell of Juror # 3 was an enormous distraction to concentrating on the case, causing people to move away to avoid it. (A-82). The Trial Court asked Juror # 1 if he personally felt that way, and he said yes, and also that in the jury room jurors try to find seats at a distance from Juror # 3. Id. The Trial Court then sent Juror # 1 back into the jury room with instructions not to say anything about their conversation to anyone. (A-84). Defense counsel requested that the Trial Court ask Juror # 1 the "ultimate question" of whether he could still deliberate and render an impartial verdict without discharging Juror # 3, and the Trial Court said it was not going to because it was clear Juror # 3 "had become such a distraction they can't all concentrate and render a fair verdict based on the evidence ... The point is if someone doesn't have proper hygiene, stands out so much it is a distraction to the rest of the jury, it impairs the whole integrity of the jury process." (A-84-85). The Trial Court then 10 engaged the parties in an extended colloquy about what to do. Defense counsel suggested that the Trial Court talk to Juror # 3 directly in chambers alone. (A-90). The Trial Court responded that it could just call Juror # 3 directly to the courtroom, away from the other jurors. Id. The Trial Court also stated it was of the opinion that it could make a decision based solely on what Juror # 1 had told the Court. (A-90-91). ADA Gandy referred the Trial Court to a case that her office had found in the meantime, People v. Radtke, 219 AD2d 739, (2d Dep't 1995), summarized the holding as a reversal of the lower Court's discharge of a malodorous juror as grossly unqualified but as an affirmation of the discharge of the juror because the juror's distracting conduct of mumbling or slapping his leg, and recommended that the Trial Court talk to other jurors individually to see if more than one person felt the same way as Juror # 1, so that there would be a record of the substantial interference caused by the Juror # 3's bad odor. (A-92-93). The Trial Court stated that it was ready to make a ruling but asked if a better record needed to be made, to which ADA Gandy replied yes. (A-94). The Trial Court then called Juror # 2 into the courtroom away from the other jurors, asked Juror # 2 if anything was affecting his ability to concentrate, and Juror # 2 responded he could not concentrate because of the bad smell of Juror # 3. Id. The Trial Court inquired further, asking Juror # 2 if the smell had changed and if there was anything else about Juror # 3 that bothered him, to which he replied Juror # 3 was fidgety and he had to do an 11 extra load of laundry because the odor penetrated his clothing. (A-95). Juror # 2 was then sent back to the jury room, and the process was repeated with two more jurors. (A-95-96). The Trial Court then called Juror # 3 into the courtroom, away from the rest of the jury. (A-98-99). The following colloquy ensued, in relevant part: THE COURT: Some of the other jurors have mentioned something about that they feel you have an offensive odor. JUROR: I do? THE COURT: Yes. JUROR: I'm not aware of it. It is possible from the condition. I don't know. THE COURT: Well, what is the condition exactly? JUROR: The legs swell up like-maybe it is producing an odor. I'm not aware of it. I wash every day. THE COURT: You don't feel well enough to continue. JUROR: I don't know. It may get worse, but I was not aware I was a detriment to the jury process, but-1 could be excused if you want me. THE COURT: Other people had mentioned something to me. I don't want to- JUROR: --I really feel terribly embarrassed right now. I'd rather not continue. I don't know if it's something I can do, something about without some medication. I'm not aware of it. 12 THE COURT: But do you take care of yourself, bathe? JUROR: Yes, I do. I do. It is something probably which is inside. (A. 100-102). The Trial Court then asked Juror # 3 to return to the jury room. After consulting with the appellate bureau of her office, ADA Gandy asked the Trial Court to recall Juror # 3 so the Court could specifically inquire of Juror # 3 if knowing how other jurors felt would affect her ability to be a fair and impartial juror. (A-103). The Trial Court recalled Juror # 3, and the following colloquy ensued: TRIAL COURT: ... 1 in no way intended to embarrass you. I do apologize. But since it has come to my attention, I have to speak to you. Do you feel, based on the fact that this thing has occurred, that you feel so embarrassed you could not render a fair verdict based on the evidence, because you will have to deliberate? JUROR: Yes, I think I feel exactly that way. I don't think I can really go on with this. THE COURT: You don't think you could render a verdict based on the evidence and the law? JUROR: It is going to take so much time, and I'm constantly reminded I am a sour spot, so to speak, with the group of people I'm with. It's unfortunate, but I don't know if it's my fault, I don't know if- THE COURT: I'm sure it's not your fault, but since this has happened, do you feel you wouldn't be able to continue? 13 JUROR: No, I can't. I can't continue. (A-l 04-105). After Juror # 3 left the courtroom, the Trial Court explained its holding that Juror # 3 should be discharged because she was grossly unqualified, as follows: I think it's clear that I don't know what caused this, but I think given the way this has developed, the fact that I have spoken to four or five jurors, I had to speak to her now, she has become isolated and humiliated. She cannot render a fair verdict. She can't go on. She can't deliberate in good faith with her fellow jurors. The integrity of the judicial proceeding would be-there is no integrity anymore if she continued. Not only from her point of view, but from the other jurors' point of view. So I think at this point, she is grossly unqualified. (A-I06). The Trial Court discharged Juror # 3 and substituted an alternate juror. Id. c. Agent Flaherty testified that defendants used seemingly legitimate conversations to conceal their alleged conspiracy. After the Trial Court discharged Juror # 3, Agent Flaherty testified at great length as the prosecution's expert in "the interpretation of language over cell phones," and interpreted numerous intercepted cell phone conversations to show that the defendants used coded and cryptic language as their modus operandi. Thus, for example, Agent Flaherty testified that when co-defendant-appellant Mejias asked Carlos Loveras, "the lady did not call you?," what he is really asking him, again, do you know if the drugs made it there safely. But instead refers to it, the lady did not call, almost making it sound like a legitimate conversation. (A-Ill). 14 In another example, Agent Flaherty interpreted Carlos Loveras' statement to Mejias that "The guy we were going to show the piece of land of Panama to sell it to him, he called me but he has been lost and I called him back now, but it seems off now. I don't know," to mean ... the guy interprets the guy to be Armando Megallon, the truck driver, that we are going to show the piece of land of Panama. Piece of land, just another code for what I interpret to be a warehouse or open lot, they are going to show the truck driver, where he could park his truck, and to sell it to him, cryptic language, to try to make it sound like they are actually going to sell him land ... (A-I14-IlS). In yet another example, Agent Flaherty interpreted a conversation between Carlos Loveras and Armando Megallon as follows: ARMANDO MAGALLON TO CARLOS LOVERAS: I will call you when I'm close to the city. I finished yesterday. I spoke to El Cunado. He tells me to only see only to see the issue. (A-II7). CARLOS LOVERAS TO ARMANDO MAGALLON: Yes, he told me but I thought you were also bringing a lady so she could see. (A-lIS). ARMANDO MAGALLON TO CARLOS LOVERAS: Oh, no, no I'm coming naked? (A-I 19). AGENT FLAHERTY: Issue is a code that [Armando] has used to refer to the warehouse or outside lot. Again, referring to the piece of land referred to as ranch. Armando is telling Carlos that he is coming into town strictly to see the warehouse or outside lot ... 15 Line 26, also bring a lady so she could see. Lady, again, a common term that I interpret to mean drugs. The way Carlos states cryptic language, bring the lady, so she could see makes it sound like there is going to be a lady observing this warehouse or outside lot ... Naked I interpret as a code, Armando is telling Carlos he has nothing illegal in his truck on this trip. (A-117-119). D. Juror # 10 delivered a note to the Trial Court indicating that some jurors had already begun discussing the case prior to summations and had prematurely formed an opinion. On August 12, 2009, after both sides had rested but before summations, the jurors were speaking aloud to each other in the jury box, and the Trial Court told them not to talk amongst themselves. (A-214). The Trial Court also asked to get a note back from Juror # 10, and then allowed the jury to take its lunch break. Id. After the jury left, the Trial Court read the note actually authored by Juror # 11 but submitted to the Trial Court by Juror # 10 (A-225), which stated: "We want to know how/when and under what pretext Junior met Miguel Mejias." (A-215).2 The Trial Court then marked the note as a court exhibit, stating that it did not think it had to respond to the note at all because it's clear that I told them in the beginning of this trial that they can only base their verdict on evidence that's introduced, and the reasonable inferences from those, and there may be answers to questions-there may still be 2 ~A1though the discussion during trial assumed Juror # 10 was the author of the note, the Trial Court later corrected the record to reflect that while Juror # 10 submitted the note to the sergeant, Juror # 11 actually authored the note. (A-225). 16 questions they have at the end of the trial. So I don't think I need to do anything. Id. Defense counsel pointed out that the use of the word "we" indicated that the author of the note had been discussing the evidence with at least one other juror, "which is why it is written 'we,' " and requested that the Trial Court conduct an inquiry of the author of the note. (A-216). Despite Agent Flaherty's extensive testimony regarding the defendants' use of pretext in the form of "coded" and "cryptic" cell phone conversations concealing criminal intent under the cover of legitimate conversations, the Trial Court responded: Well, [the note is] also not very well written. "Under what pretext." So I would say it is her way of expressing herself. It does not necessarily mean "we." Id. Defense counsel again requested that the Trial Court conduct an inquiry of the author of the note, and trial counsel for defendant-appellant seconded the motion. Id. The Trial Court then deferred dealing with the situation until after lunch break. Id. After the lunch break, while the jury was still in the jury room, the Trial Court stated two possible approaches to dealing with the note: either the Trial Court could speak to the juror individually, or "speak to the whole panel and just say I received a note and tell them they can't deliberate, or they are not supposed to be talking about the case." (A-219). The Trial Court then asked: 17 Do the People have any position about this? I mean, is it necessary for me to speak to her alone? 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 here ... Id. Defense counsel again pointed out that the fact that the note began "we want to know" indicated the juror had already discussed the evidence, but the Trial Court interrupted defense counsel, stating "What I don't want to do is isolate jurors" (A- 220), even though the Trial Court had done just that to juror # 3 on a much more embarrassing issue. (A-1 04-1 05). Defense counsel responded: [The note' s author] 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-220). ADA Gandy, who had previously contacted her appellate bureau regarding the appropriate procedure for discharging the malodorous juror as grossly unqualified, and who recommended that the Trial Court recall the juror to individually and specifically inquire of her if knowing how other jurors felt would affect her ability to be a fair and impartial juror (A-92-93), here counseled against an individual inquiry and recommended addressing the jury as a panel: 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. (A-220). 18 Defense counsel again cited the problems the note posed, including the fact the juror gave the note while she was in the jury box and the Court was in session, and that the juror's note indicated premature deliberation in defiance of the Court's instructions. Id. The Trial Court replied that defense counsel was "assuming all of these facts from the one note, which I don't think we can jump to that conclusion." (A-221). Crucially, the Trial Court went on to say that it did not want what happened before with the malodorous juror, to happen again: 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. Id. The following colloquy ensued: 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. 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. 19 THE COURT: I will have them raise their hands, if anyone has begun discussing the case. (A-221). At this point, the jury entered, and the Trial Court addressed the jury: 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. (N 0 response) All right. (A-222). The Trial Court then stated it was "disregarding" the note, and summations were given. Id. E. Verdict and sentence. The jury returned a verdict of guilty as to appellant-defendant on both the conspiracy and drug possession charges (A-228-229), and on February 9, 2010, defendant-appellant was sentenced to concurrent terms of 12 years and 5 to 15 years. (A-20). 20 F. Leave to appeal the decision of the Appellate Division granted. On July 11, 2011, the Appellate Division of the Supreme Court of the State of New York affirmed defendant-appellant's conviction, holding, in relevant part, that the Trial Court properly allowed expert testimony about large-scale narcotics organizations and the map into evidence. (A-21). In addition, the Appellate Division held that the Trial Court did not abuse its discretion when it declined to conduct individual inquiries after the juror's note was submitted before summations, that there was no reason to believe there were actually premature deliberations, and the Trial Court's actions were sufficient to avoid any prejudice. Id. On April 24, 2012, Honorable Theodore T. Jones, Judge of the Court of Appeals of the State of New York, granted defendant-appellant permission to appeal from the Appellate Division's decision to this Court. (A-16). ARGUMENT POINT I THE COURT COMMITTED REVERSIBLE ERROR WHEN IT REFUSED TO CONDUCT AN INDIVIDUAL, IN CAMERA INQUIRY OF A JUROR WHO SENT A NOTE TO THE COURT INDICATING THAT AT LEAST TWO JURORS HAD PREMATURELY DISCUSSED THE EVIDENCE AND FORMED CONCLUSIONS. The Trial Court failed to conduct an individual, in camera, "probing and tactful" inquiry of author of the note in direct violation of the mandatory guidelines set forth by this Court in People v. Buford, 69 N.Y.2d 290,506 N.E.2d 901,514 21 N.Y.S.2d 191 (1987). Prior to summations certain jurors were seen conversing with each other in open court. (A-214). The Trial Court also instructed someone, presumably an officer of the Court, to get a note back from juror # 10. Id. At that point, juror # 10 delivered a note, which was actually written by juror # 11, which stated: "We want to know how/when and under what pretext Junior met Miguel Mejias." (A-215, 225). Thus, it is obvious that at least juror # 10 and # 11 had already begun discussing the facts of the case prior to summations which is violative of the juror's oath. The language of the note also clearly indicated premature discussion, for the plain meaning of "we" means more than one person. Furthermore, the note showed that these jurors had already adopted the prosecution's theory that the defendant's used pretext to communicate and conduct their transaction, as the note asked "under what pretext" did two defendants meet. Accordingly, because the note was authored prior to summations and jury deliberations, it was sufficient to indicate the discharge of the author of the note and the other juror might be required on the grounds of premature deliberations and conclusions, and thereby required the Trial Court to conduct an individual inquiry of at least the author and the juror who submitted the note. The Trial Court's failure to conduct this inquiry requires reversal. 22 A. The Trial Court should have conducted an inquiry. Criminal Procedure Law 270.35 provides, in relevant part, that, "[i]f at any time after the trial jury has been sworn and before the rendition of its verdict ... the court finds, from facts unknown at the time of the selection of the jury, that a juror is grossly unqualified to serve in the case or has engaged in misconduct of a substantial nature ... the court must discharge such juror." (Emphasis added). In determining whether a juror's discharge is required under the statute, each case must be evaluated on its unique facts. People v. Buford, 69 N.Y.2d at 299. The judge should conduct a "probing and tactful" inquiry, and the reasons for the court's ruling should be placed on the record. Id. "In reaching its conclusion, the trial court must question each allegedly unqualified juror individually in camera in the presence of the attorneys and defendant." Id.; see also People v. Rodriguez, 71 N.Y.2d 214, 219, 524 N.Y.S.2d 411, 519 N.E.2d 333 (1988). In a footnote in Buford, the Court of Appeals stated that an in camera hearing "may not be necessary in the unusual case involving an obviously trivial matter where the court, the attorneys, and defendant all agree that there is no possibility that the juror's impartiality could be affected and that there is no reason to question the juror." People v. Buford, 69 N.Y.2d at 299 n. 4. Finally, in determining whether a juror is grossly unqualified, "the court may not speculate as to possible partiality of the juror." Id. at 299. 23 The law is well-settled that when a juror has engaged in premature deliberations or formed conclusions, the Trial Court must conduct an individual, in camera inquiry of the juror that is "probing and tactful," and that failure to do so is reversible error. See People v. Ordenana, 795 N.Y.S.2d 582, 20 A.D.3d 39 (1 st Dep't 2005)( evidence of premature juror deliberations required the Trial Court to make an inquiry to determine if the offending jurors can continue to serve); People v. McClenton, 630 N.Y.S.2d 290, 213 A.D.2d 1 (1 st Dep't 1995)(evidence that juror formed premature conclusion required Trial Court to make individual, in camera inquiry of the juror). Here, the language of the note itself and the fact that it was submitted by a juror other than the juror who authored it made it clear that at least two jurors had discussed the evidence and drawn certain conclusions from those discussions. This matter was neither trivial nor vague nor innocuous and no one agreed that it did not affect the jurors' impartiality. The Trial Court was thus required to conduct an inquiry and its failure do so requires reversal. In McClenton, the Appellate Division reversed where the Trial Court failed to conduct an inquiry, and went so far as to hold that even when a Trial Court is faced with a note that ambiguously suggests a juror has prematurely formed a conclusion, the Trial Court should still conduct an individual inquiry of the juror if requested by defendant. People v. McClenton, 213 A.D.2d at 5. The reason is that a Trial Court's detennination that a note, for example, "doesn't make any sense" is 24 not an "adequate substitute for an explanation of its meaning from the only person who could have 'demystified' the situation, the note's author." Id. In addition, "justice is not served by a conviction obtained under questionable circumstances which could have been easily clarified had appropriate inquiry been timely made." Id. at 6. These rationales apply directly to the Trial Court's determination of what the note meant here. Instead of asking the author what the note meant, the Trial Court speculated that the note was not "very well written," that "under what pretext" was just a way of the juror expressing herself, and that "we" did not necessarily mean "we." (A- 216). Assuming arguendo that the note was ambiguous, the Trial Court should have still conducted an inquiry, because no Trial Court "can see into the hearts or minds of women and men" and the meaning of the note could have been easily clarified had the Trial Court acceded to defendant-appellant's request to conduct an individual inquiry of the author. See People v. McClenton, 213 A.D.2d at 5. Accordingly, defendant-appellant was convicted upon a verdict involving questionable circumstances the answers to which we will never know, and Buford, Ordenana, and McClenton require that his conviction be reversed. 25 B. The Trial Court deliberately mischaracterized the note as a request for additional evidence to avoid isolating the note's author, and the Trial Court's "inquiry" in the form of one question to the jury as a panel in open court falls short of what Buford requires. Instead of conducting this mandatory individual inquiry, the Trial Court bent over backwards to ignore the plain meaning of "we" in the note, and inappropriately self-define the author's use of the phrase "under what pretext" given Agent Flaherty's extensive testimony about defendants' use of pretexts. The Trial Court's only reason to avoid individual inquiry of the author of the note was to avoid the kind of prior individual inquiry caused by the malodorous juror # 3. The Trial Court's deliberate mischaracterization of the note as a note about additional evidence explicitly reflected its intent to avoid juror isolation: "I mean, is it necessary for me to speak to her alone? 1 can say 1 received a note about evidence from the jury, and 1 assume they have not discussed the case and move on from here ... What I don't want to do is isolate jurors" (A-219-220); "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." (A-221). But individual, in camera isolation of a juror whose discharge might be required is exactly what Buford mandates. See People v. Buford, 69 N.Y.2d at 299. A juror is significantly less likely to admit to misconduct in open court in 26 front of his fellow jurors and an audience, than in chambers. See People v. Thomas, 601 N.Y.S.2d 608, 610, 196 A.D.2d 462 (1 st Dep't 1993)(Buford guidelines designed to prevent uneasiness in admitting misconduct in open court). Moreover, as the Trial Court's individual inquiry into the causes of the malodorous juror's odor reveals, it would be impossible to conduct an inquiry that is both "probing and tactful" in front of other jurors and an audience. Here, the Trial Court sidestepped the Buford guidelines to avoid the juror isolation Buford requires and instead created the situation Buford was designed to prevent: one non-probing question posed to the jury as a panel in open court, prefaced by what the Trial Court instructed them to do and asking if anyone would raise their hand and admit in front of everyone that they disobeyed the Trial Court's instructions. (A-222). This "inquiry" was not an inquiry at all and clearly fell short of what Buford requires, thus necessitating reversal. 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 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 DOMESTIC DRUG TRANSACTION IN THIS CASE. In People v. Negron, 523 N.Y.S.2d 836, 136 A.D.2d 523 (1 st Dep't 1988), the Appellate Division reversed defendant's conviction because the People elicited 27 testimony about organized drug operations when the case was about a single transaction. The testimony was completely unnecessary to the jury's understanding of that single 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 (1 st Dept. 1975)]. In view of our finding that the background testimony was too prejudicial we find it inadmissible. Id. at 526. (Emphasis added). Similarly, in People v. Colon, 568 N.Y.S.2d 358, 172 A.D.2d 173, 176 (1 st Dep't 1991), 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." (Emphasis added). The 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, 568 N.Y.S.2d 746, 172 A.D.2d 355 (1 st Dep't 28 1991 )(prejudicial evidence shifted focus from the central issues in the case to the drug trade in general). The above-cited cases perfectly describe the prejudicial nature of Agent Flaherty's testimony. The misguided portrayal of defendant-appellant as part of a huge international operation began with the admission into evidence of a map of North, Central, and South America, even though no evidence was alleged, let alone adduced, that defendants had any connection to the narcotics trade in South America other than the allegation that they conspired to ship cocaine and that cocaine generally comes from South America. The Trial Court even agreed that a description of the international drug trade was irrelevant (A-56-57), yet admitted both the map and 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). At another point, the Court stated, "I don't want a lot of this. This is not part of the case" (A-57-58). The Trial Court nonetheless overruled defense counsels' objection (A-58), and the map of North, Central and South America was admitted into evidence, serving as the starting point for Agent Flaherty's extended testimony on the different routes over which drugs are taken on their way to the United States. (A- 58-64). The Trial Court then allowed his testimony to broaden into a lengthy 29 primer on all aspects of the international drug trade, including, inter alia, the different "levels" of drug organizations, packaging techniques, and the use of "stash houses." Id. It is indiscernible what possible relevance maps of Central and South America, including a discussion of the drug routes not used by the defendants, could have possibly had in the present case. The same is true with Agent Flaherty's testimony about high-level narcotics organizations, to which the defendants did not belong, and packaging techniques unattributed to defendants. As in Negron, the prosecution in this case was essentially using evidence about the international drug trade to enable the jury to infer that defendant-appellant was part of the a worldwide drug organization, even though no evidence was adduced to support that theory. 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 in general and drug cartels in particular. Allowing such irrelevant background testimony was too prejudicial and inadmissible. 30 The Trial Court itself stated that the testimony as to the international drug trade was irrelevant, yet inexplicably decided to allow the testimony nonetheless. The Trial Court should have followed its own instincts. Its failure to do so constituted reversible error. CONCLUSION For these reasons, defendant-appellant Antonio Rodriguez's convictions for conspiracy and narcotics possession should be reversed and vacated. Dated: New York, New York August 22, 2012 31 ouger, Esq. Pelu~o & Touger, LLP Attorneys for Defendant-Appellant 70 Lafayette St. New York, New York 10013 (212) 608-1234