Appeal from convictions by an eleven-person jury in the United States District Court for the Eastern District of New York (John R. Bartels, Judge) for conspiracy to distribute, and to possess with intent to distribute, heroin. Appellants challenge, inter alia, the removal pursuant to Fed. R. Crim. P. 23(b) of one juror on grounds of mental incompetence after four days of deliberations, when that juror was the only vote for acquittal. We reverse and remand. Quinones appeals from his sentence after a guilty plea to violations of 21 U.S.C. §§ 846 and 841(b)(1)(C) (Supp. IV 1986) on the grounds that the district court refused to consider probation as an appropriate sentence. We affirm. Docket Nos. 88-1017, 88-1041, 88-1042, 88-1051, 88-1052, 88-1126, 88-1142.
Winter and Miner, Circuit Judges, and Billings,*fn* District Judge.
This case had its origins in the spring of 1986, when Roberta Rivera, an undercover Special Agent with the Drug Enforcement Administration, made purchases of heroin in the Bushwick section of Brooklyn. Over the course of several months, Rivera bought many thousands of dollars' worth of heroin from a number of individuals. Her investigation ultimately resulted in the seizure of a large body of drugs, weapons, drug records and drug paraphernalia and the indictment of nineteen individuals. Of the nineteen, "Shorty" Gonzalez pleaded guilty before trial and testified for the government. Appellant Victor Quinones and eleven others either pleaded guilty or had their cases severed for trial.
Appellants Edgar Rodriguez, William Perez, Jean Pierre, Luis Garcia, Lillian Perez and Carlos Hernandez were tried before a jury and were convicted of conspiracy to distribute, and to possess with intent to distribute, heroin in violation of 21 U.S.C. § 846 (1982). Garcia was also convicted of three counts of distributing heroin in violation of 21 U.S.C. § 841(a)(1) (1982). The appellants were convicted by an eleven-person jury that rendered its verdict after one juror had been excused pursuant to Fed. R. Crim. P. 23(b) on grounds of mental incompetence. The juror was excused after four days of deliberations, at a point when the jury was deadlocked eleven to one in favor of conviction. The removed juror was the sole vote for acquittal. Because we believe the removal of the juror was error in the circumstances of this case and that the remaining members of the jury could not render a properly considered verdict, we reverse.
Quinones entered a guilty plea before trial and was sentenced under both 21 U.S.C. § 846 and 21 U.S.C. § 841(b)(1)(C). He claims that the district judge failed to consider probation as an appropriate sentence. We disagree and affirm.
1. The Removal of Juror No. Four
Even before the jury had been impaneled, concerns about Juror No. Four emerged. After the initial voir dire of No. Four, the prosecutor, whose peremptory challenges had been exhausted, informed the court that the juror had been observed speaking with a female spectator in the courtroom before being summoned to the jury box. The government moved to remove No. Four. Counsel for Lillian Perez objected and the court denied the motion. Before opening arguments, the prosecution again moved that No. Four be removed. The prosecutor reported that the woman spectator with whom No. Four had spoken was the girlfriend of Carlos Hernandez, one of the defendants, and that No. Four had later been observed winking, smiling and nodding his head at the defendants. Counsel for Rodriguez objected, and the court, after a voir dire of No. Four, denied the government's motion.
Juror No. Four remained a source of controversy. On the first day of trial, the court admonished him to pay attention to the proceedings. The next morning, before the jury was brought in, Judge Bartels expressed misgivings about the juror:
Gentleman, I am a little worried about juror number four. As you noted yesterday I had to tell him to pay attention. He was talking to juror number three. I understand he has kicked the chair of juror number three and juror number one had to reprimand him.
A juror was heard by my law clerk stating, as going back to the jury room, that he was a weirdo.
The government again moved for removal of Juror No. Four. Counsel for Lillian Perez again objected, and the court again denied the motion.
The jury began its deliberations about noon on November 16, 1987. Within an hour, Judge Bartels received a note signed by all the jurors except No. Four, stating:
We the jury in the case feel that Juror No. Four Frank Schwartz has a prejudice and lacks the rational common sense to deliberate in a logical way. The individual wants to start a case against the government in a conspiracy charge. Because of the first deliberation attempts are ...