Argued: March 8, 2013.
After a jury trial in the United States District Court for the Northern District of New York ("NDNY"), the defendant, Tara Haynes, was convicted of one count of importation of 500 grams or more of a substance containing methamphetamine in violation of 21 U.S.C. §§ 952 and 963 and one count of possession with intent to distribute that substance in violation of 21 U.S.C. § 841(a)(1). The defendant was sentenced principally to 188 months imprisonment on each count to run concurrently. In this appeal from the judgment entered on January 30, 2012, the defendant alleges numerous errors. We find that the cumulative effect of the various errors—including the defendant's improper shackling, the failure to investigate potential jury misconduct, an improper Allen charge, and serious evidentiary errors— undermined the guarantee of fundamental fairness to which the defendant is entitled. Therefore, we vacate the defendant's conviction and remand for proceedings consistent with this opinion.
MARC FERNICH AND JONATHAN SAVELLA, Law Office of Marc Fernich, for Defendant-Appellant Tara Haynes.
JULIE S. PFLUGER AND PAUL D. SILVER, Assistant United States Attorneys, for Richard S. Hartunian, United States Attorney for the Northern District of New York, for Appellee United States of America.
Before: Sack and Lohier, Circuit Judges, and Koeltl, District Judge. [*]
JOHN G. KOELTL, District Judge:
After a jury trial in the United States District Court for the Northern District of New York ("NDNY"), the defendant, Tara Haynes, was convicted of one count of importation of 500 grams or more of a substance containing methamphetamine in violation of 21 U.S.C. §§ 952 and 963 and one count of possession with intent to distribute that substance in violation of 21 U.S.C. § 841(a)(1). The defendant was sentenced principally to 188 months imprisonment on each count to run concurrently. In this appeal from the judgment entered on January 30, 2012, the defendant alleges numerous errors. We find that the cumulative effect of the various errors—including the defendant's improper shackling, the failure to investigate potential jury misconduct, an improper Allen charge, and serious evidentiary errors— undermined the guarantee of fundamental fairness to which the defendant is entitled. Therefore, we VACATE the defendant's conviction and REMAND for proceedings consistent with this opinion.
On June 2, 2011, the defendant, Tara Haynes, was arrested at the border of the United States and Canada at the Champlain Port of Entry in New York. Customs and Border Patrol Officers recovered approximately 70, 000 pills wrapped in plastic from the gas tank of the rental car the defendant was driving. The pills contained methamphetamine.
On August 11, 2011, a grand jury in the NDNY returned a two-count superseding indictment against the defendant. Count I alleged that the defendant had knowingly and intentionally imported and attempted to import into the United States various controlled substances, including 500 grams or more of a mixture or substance containing a detectable amount of methamphetamine, in violation of 21 U.S.C. §§ 952 and 963. Count II alleged that the defendant knowingly and intentionally possessed with the intent to distribute those controlled substances in violation of 21 U.S.C. § 841(a)(1).
The defendant's trial began on August 16, 2011. The defendant was shackled throughout the trial. The trial transcript does not contain any findings as to why it was necessary to shackle the defendant during the trial. However, when the defendant took the stand to testify, the Court instructed the jury to leave the courtroom, and the defendant walked to the stand out of the presence of the jury. The only other mention of the shackles in the record occurred when defense counsel stated in summation as follows:
[The defendant is] locked here in shackles right now. She was sitting up in the [witness stand] and I don't want you to think it was disrespect that she didn't stand up but it's the rules of the court because they had taken awa[y] her liberty. It's not the judge's fault. This is what these agents did. No criminal record, no prior arrests, 34 years old, consistent job for four years, two kids and they have taken away her liberties on this.
(Trial Tr. 626)
The trial lasted only four days from the start of jury selection to the beginning of jury deliberations. The evidence was introduced in less than three days. The Government's theory at trial was that the defendant was a "drug courier, " which was why she acted nervously and gave inconsistent responses to law enforcement officers at the border. (Trial Tr. 25) The defendant's theory at trial was that she was simply a "blind mule" who had no knowledge that there were any narcotics in her rental car. (Trial Tr. 34).
At trial, law enforcement officers testified about the circumstances of the defendant's arrest at the border and the inconsistent statements that the defendant made during her arrest. The officers testified that they observed indications that drugs were present in the car, including the presence of masking agents used to hide the odor of drugs, namely a newly opened air freshener hanging from the car's windshield and an aerosol spray can described as "new car scent" recovered from the defendant's purse. (Trial Tr. 201, 227) The defendant asked if she could discard the aerosol can, but was told that she could not. There was also an overwhelming smell of gasoline in the car. A law enforcement agent also testified that the defendant had a history of border crossings into the United States and provided details about the circumstances of those prior crossings.
The officers recovered approximately 70, 000 pills weighing approximately 49.4 pounds wrapped in plastic and stuffed tightly in the rental car's gas tank. An expert witness estimated that the value of the pills, which contained methamphetamine, was between $500, 000 and $2, 100, 000.
Customs and Border Protection Officer Troy Rabideau testified in detail about the fuel light in the car, which indicated that the gas tank was empty although his search revealed that there were approximately four or five gallons of gas in the tank. The Government asked Officer Rabideau why the fuel light would be on when there was gas in the car, and defense counsel objected on the ground that the question called for expert testimony. The objection was overruled. Officer Rabideau answered as follows:
On the outside of this cylinder, there's a float and that's –- the float is what shows that the gas level, so as the float goes down, the gas level in the vehicle obviously goes down. So, when the drugs were placed and the float was pushed to the bottom, drugs holding that to the bottom would always read zero kilometers to empty. That would always be on empty.
(Trial Tr. 287-88) Officer Rabideau testified that the fuel indicator would remain on empty "[f]or as long as those drugs were in the vehicle." (Trial Tr. 288) Defense counsel objected on the basis of lack of foundation, and the Court overruled the objection. Officer Rabideau testified that he had not attended "mechanic school, " but that he had "looked in the gas tank prior to this" and that the fuel light had been on throughout his investigation. (Trial Tr. 309)
Before lunch on the third day of trial, the Government rested. The defense case consisted of the testimony of a friend of the defendant who explained that the defendant was a single mother of two children and that she had once taken a seemingly benign New Year's Eve trip with the defendant from Canada to New York in the defendant's car.
The defendant testified in her own defense. She testified that she rented the car on Tuesday, May 31, 2011 in anticipation of traveling to New York City for the weekend. On Wednesday, June 1, 2011, the defendant was driving with her former boyfriend who pointed out the aerosol can in the car's glove compartment. The defendant testified that at about 9:30p.m. on Thursday, June 2, 2011, just prior to leaving for New York, she stopped at a convenience store and purchased some food for her ride. She also bought a hanging air freshener because she thought it was cute. She testified that as she approached the Champlain Port of Entry she removed the aerosol can from the glove compartment to use it to mask her foot odor, but she found that it was empty.
The defendant testified that she noticed the fuel light turn on as she approached the border, and she decided that she would refuel after crossing the border. She denied knowing that there were any drugs in the car.
The defendant described her interactions with law enforcement officers at the border and the circumstances surrounding her arrest. The defendant admitted that she had lied to the officers about whether she took the rental car in for an oil change prior to reaching the border crossing. The defendant also testified that she was "very upset" and "shocked" when an agent told her that 70, 000 ecstasy pills had been recovered from the rental car. (Trial Tr. 542-43)
On cross-examination, the Government pointed out that although the defendant had testified that the agent had told her there were 70, 000 ecstasy pills recovered from the car, the pills had not been counted by the time the agent met with the defendant. The defendant also admitted on cross-examination that she had lied to the officers about why she was going to New York.
The defense called an expert witness to support its theory that the defendant was operating as a "blind mule" for drug distributors. The defense's expert witness, Richard Stratton, had been a marijuana distributor who had trafficked drugs across international borders and had studied and written articles about drug distribution. Over the Government's objection, the Court permitted the defense expert witness to testify regarding the modus operandi of drug distributors provided that neither party would attempt to "elicit the expert's opinions on the ultimate issue of defendant's knowledge." (Trial Tr. 499) Mr. Stratton testified that when he was a drug distributor he "used blind mules whenever [h]e had the opportunity, " and explained their advantages. (Trial Tr. 567)
In its rebuttal case, the Government re-called Special Agent Russell Linstad of the Department of Homeland Security who had testified as an expert witness in the Government's case-in-chief about the value of the drugs seized. The Government re-called Agent Linstad to "point out the flaws in a blind mule scenario" as explained by the defense and its expert witness. (Trial Tr. 589) Agent Linstad testified as follows:
With the blind mule . . . the person's going to be unwitting, not know that there's anything going on with the load. So in this case, after reviewing the case, in my opinion the defendant realized, especially with inconsistency in the [defendant's] statements, the strong odor of gasoline, the fuel light and also masking agents to keep it. Again, an organization wants it blind. They can't have people know that there is a load or that there [are] narcotics in the vehicle.
(Trial Tr. 589)
The defense rested at the end of the third day of trial. The following day, after summations, the Court charged the jury. The jury deliberated for approximately three and a half hours before sending a deadlock note, which the Court explained as follows:
I have received a note, timed 3:36, from the foreperson of the jury, and I have now given copies to both counsel. I have asked our clerk to mark the note for identification as Court's Exhibit No. 1. The note says, "Your Honor, we are hopelessly deadlocked. Help."
As both counsel know, the jury's been out since approximately 12 P.M., and at this point in time my plan is to bring them back in and informally ask them to go back in and continue their deliberations with an eye toward whether they can reach a verdict.
I'm not at the point right at this moment where I think that I have to give the Allen charge. . . . [M]y plan is to bring [the jury] in, acknowledge that they have been at it for a few hours, but to tell them that for both sides this is a very ...