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U.S. v. FEIJOO-TOMALA

September 26, 1990

UNITED STATES OF AMERICA
v.
ANA LENOR FEIJOO-TOMALA, DEFENDANT.



The opinion of the court was delivered by: Bartels, District Judge.

MEMORANDUM and ORDER

On June 8, 1990, the Court declared a mistrial following the jury's inability to reach a verdict on the indictment charging the Defendant Ana Feijoo-Tomala ("Feijoo-Tomala") with importing cocaine into the United States. Feijoo-Tomala followed with a motion for an order dismissing the indictment against her on the ground that the Double Jeopardy clause of the Fifth Amendment bars any further prosecution. For the reasons stated below, the motion is denied.

FACTUAL BACKGROUND

On October 26, 1989, Feijoo-Tomala, accompanied by her two young daughters, returned to the United States, via John F. Kennedy International Airport, after a several month sojourn in Ecuador. Among her possessions were three soft-sided suitcases and a hard-sided brown suitcase. During a routine baggage check Customs Agents discovered cocaine in cellophane pouches, taped to cardboard inserts and secreted in a specially created false bottom of the hard-sided suitcase. Feijoo-Tomala was arrested and subsequently charged in a one count superseding indictment with knowingly and intentionally importing in excess of 500 grams of a substance containing cocaine into the United States from a place outside thereof, in violation of 21 U.S.C. § 952(a), 960(a)(1) and 960(b)(2)(B)(ii).

The only issue in the case was whether or not Feijoo-Tomala knew there was cocaine in the suitcase. The Government presented its case in one day through four witnesses — two Drug Enforcement Agency ("DEA") agents and two United States Customs officials. The Defendant presented her case over a period of one and one half days. In addition to testifying on her own behalf, Feijoo-Tomala called her husband and eldest daughter as witnesses. A total of twenty-four (24) exhibits were offered into evidence.

The jury began deliberations at approximately 12:30 p.m. on Friday, June 8, 1990, the third day of the trial. Shortly after retiring to begin deliberations the jury sent their first note in which they requested to examine the cardboard inserts discovered in the hard-sided suitcase.*fn1 The jurors returned to the courtroom, where they were allowed to view the evidence.*fn2 At approximately 2:20 p.m. the jury resumed their deliberations.

In their second note, which the Court received at 3:25 p.m., the jury requested information regarding the soft-sided suitcases which Feijoo-Tomala had in her possession when she returned from Ecuador.*fn3 The Court responded to that inquiry and deliberations resumed again at 3:30 p.m.

At 4:05 p.m., three and one half hours after deliberations had begun, the jury sent a note stating "[they] could not reach a unanimous decision."*fn4 When the Court recalled the jury to the courtroom at 4:10 p.m. they presented another note requesting that a portion of one government witness' testimony be reread. Before responding to the last note the Court gave a modified Allen charge instructing the jury:

  "Now this case has been on trial, let me see, for
  three days, that's right, and the jury has been
  deliberating approximately about three and a half
  hours, is that right? [Foreman responded: Yes.] Now I
  do not believe that the case can be submitted to
  twelve men and women more intelligent and competent
  to decide it than you. In order to return a verdict
  in this case each juror must agree, as I previously
  told you. In other words, your verdict must be
  unanimous if there is to be a verdict. However, you
  only have to vote but you do not have to agree. In
  your deliberations jurors have a duty to consult one
  another, and to deliberate with a view to reaching an
  agreement if it can be done without violence to
  individual judgment. Although each juror must decide
  the case for himself, this should only be done after
  an impartial consideration of the evidence with his
  fellow jurors. In the course of

  your deliberations a juror should not hesitate to
  reexamine his own views and change his opinion if
  convinced it is erroneous. Each juror who finds
  himself to be in the minority should reconsider his
  views in the light of the opinion of the jurors of
  the majority. Conversely, each juror finding himself
  in the majority should give equal consideration to
  the views of the minority. No juror should surrender
  his honest conviction as to the weight or effect of
  the evidence for his fellow jurors or for the purpose
  of determining a verdict. But, remember, also, that
  after full deliberation and consideration of all the
  evidence, it is your duty to agree upon the verdict
  if you can do so, without violating your individual
  judgment and conscience. So I will ask you to retire
  and resume your deliberations for such time that in
  your conscientious judgment seems reasonable with the
  hope that you can conscientiously reach an
  agreement."*fn5

At 4:16 p.m. the jurors returned to their jury room while counsel reviewed the trial transcript highlighting the testimony that would be read back to them. During this period the jury sent yet another note inquiring, "[W]hat is taking so long to read the transcript?"*fn6 At approximately 4:45 p.m. the witness' testimony was reread and the jury resumed deliberations.

Shortly after 5:00 p.m. the jury sent yet another note indicating that they were at an impasse and could not reach a unanimous verdict.*fn7 The following exchange then took place in open court.

  The COURT: "Ladies and gentlemen, after I gave you
  this charge you only talked about ten or fifteen
  minutes and came back and gave me this note, which
  says, `[T]he jury doesn't think they will come to a
  unanimous decision.'
  Well, I don't think you have given it enough
  opportunity to look it over. Maybe come back Monday.
  How is that? Would you like that? Sure. In other
  words, you have got to think of this. This is a
  serious matter. Jury service is serious. Now, you
  have got to be free to reach your own opinion. If you
  can't, if it has to be that you cannot reach a
  unanimous verdict you can't do it. Certainly there is
  not going to be any pressure placed upon you to do
  so. But there is going to be a request that you
  seriously consider these issues involved because both
  parties are interested in that. As I said before, I
  don't believe that this case can be submitted to
  twelve men or women who are more intelligent or
  competent to decide upon it. Now, also I told you
  before that each juror who finds himself to be in the
  minority should reconsider his views in the light of
  the opinion of the jurors of the majority.
  Conversely, each juror finding himself in the
  majority should give equal consideration to the views
  of the minority. No ...

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