Tarango v. McDaniel, 13-17071

837 F.3d 936

Manuel Tarango, Jr., Petitioner-Appellant,

v.E. K. McDaniel; Nevada Attorney General, Respondents-Appellees.

No. 13-17071

United States Court of Appeals, Ninth Circuit.

Argued and Submitted December 12, 2014, San Francisco, California

Filed March 3, 2016

Amended September 16, 2016

Ryan Norwood (argued), Assistant Federal Public Defender; Rene Valladares, Federal Public Defender; Office of the Federal Public Defender, Las Vegas, Nevada; for Petitioner-Appellant.

Victor-Hugo Schulze, II (argued), Senior Deputy Attorney General; Lawrence VanDyke, Solicitor General; Adam Paul Laxalt, Attorney General; Office of the Attorney General, Las Vegas, Nevada; for Respondents-Appellees.

Before: Raymond C. Fisher, Johnnie B. Rawlinson, and Mary H. Murguia, Circuit Judges.

ORDER

The opinion and accompanying dissent filed March 3, 2016 are hereby amended.

Judge Fisher and Judge Murguia vote to deny the petition for panel rehearing and petition for rehearing en banc. Judge Rawlinson votes to grant the petition for panel rehearing and petition for rehearing en banc.

The full court has been advised of the petition for rehearing en banc and no judge has requested a vote on whether to rehear the matter en banc. Fed. R. App. P. 35.

The petition for panel rehearing and the petition for rehearing en banc are DENIED (Doc. 36).

No further petitions for rehearing and/or rehearing en banc will be entertained.

Dissent by Judge Rawlinson

OPINION

MURGUIA, Circuit Judge:

Petitioner Manuel Tarango, Jr. appeals the district court's denial of his petition for a writ of habeas corpus. He claims violation of his due process right to a fair and impartial jury, where a police vehicle followed Juror No. 2, a known holdout against a guilty verdict, for approximately seven miles, on the second day of deliberations, in a highly publicized trial involving multiple police victims. Tarango argues that the Nevada Supreme Court's decision upholding his convictions “was contrary to, or involved an unreasonable application of, clearly established federal law,” see 28 U.S.C. § 2254(d)(1), because the court failed to consider whether the contact between the juror and the police vehicle prejudiced the jury's verdict.

We hold that the Nevada Supreme Court's decision was contrary to Mattox v. United States , 146 U.S. 140, 13 S.Ct. 50, 36 L.Ed. 917 (1892), because the court improperly limited its inquiry to whether the external contact amounted to a “communication” and did not investigate the prejudicial effect of the police tail. We therefore review de novo the question whether the extrinsic contact could have influenced the verdict and prejudiced Tarango. Because the trial court prevented Tarango from offering certain evidence to demonstrate prejudice, we remand for an evidentiary hearing and further fact finding.

BACKGROUND

On December 5, 1999, a rock band of off-duty Las Vegas police officers, Metro Mike's Pigs in a Blanket, was performing at a local bar called Mr. D's. The bar was filled with off-duty police officers. A group of masked men entered the bar announcing a robbery, and a shoot-out ensued. Several patrons were shot, one robber was shot and killed, and one police officer, Officer Dennis Devitte, was shot several times. The surviving robbers escaped the scene and, six years later, Tarango was brought to trial on seven felony counts. The 2005 trial received considerable local media attention, and numerous Las Vegas Metro police officers attended as both witnesses and spectators.

After the jury began its deliberations, on November 1, 2005, the foreperson sent a note to the trial judge indicating that the jury had “reached a stalemate” because of a “problem juror” who had “made it very clear he does not want to be part of [the] process [and] is refusing to discuss or interact with the other jurors.” The “problem juror” separately wrote to the judge indicating that he had “doubt of which [he] feel[s] is beyond the limit of reasonable doubt,” and that deliberations were “not curing [his] doubt.” In his note, the “problem” juror identified himself as Juror No. 2.

Over Tarango's objection,¹ the judge advised the jury to continue deliberating. The next day, November 2nd, the jury returned a verdict finding Tarango guilty of all seven felony counts as charged: burglary with the use of a deadly weapon, attempted robbery with the use of a deadly weapon, conspiracy to commit robbery with the use of a deadly weapon, three counts of battery with the use of a deadly weapon, and attempted murder with the use of a deadly weapon—all in violation of Nevada state law.

On November 3rd, the Las Vegas Review-Journal reported the guilty verdict in an article titled Man Convicted in 1999 Case . The article referenced “a juror who spoke to the Review-Journal .” Discussing the jury's deliberation process, the interviewed juror mentioned the hold-out juror: “the case was close to a hung jury because one juror seemed unwilling to convict following nearly two days of deliberations.”

On November 4th, prompted by the previous day's newspaper article, Juror No. 2 wrote a letter to the court referencing the article:

I am the one Juror mentioned in the article.... I am also the Juror that wrote you the note during deliberations. It read: “I have doubt beyond the limit of what I consider reasonable doubt.” I also stated, “I did not believe further deliberations would cure that doubt.”

Further deliberations in fact, did not cure my doubt.

However, when returning to re-deliberate Wednesday November 2nd from the Henderson area, a Metro squad car followed me northbound on I-95 and into the downtown area.

I found that action unnerving.

I realize the State has much time and money invested in this case. There were [sic ] no alternate Juror. I concluded Metro somehow knew who I was and knew of my unwillingness to convict. I have never been in trouble with the law. Therefore, I relinquished my vote under duress. I only ask, within the law, please show [Tarango] leniency.

One week later, on November 11th, Juror No. 2 emailed Tarango's trial attorney, Marc Saggese, and attached a copy of his “Letter to the Judge.” The juror told Saggese that he felt “compelled to notify” Saggese of the letter. Saggese promptly filed a motion to dismiss all charges with prejudice or, alternatively, to grant a new trial on the ground of juror misconduct, arguing that Juror No. 2's communication indicated that the deliberation process had been tampered with in violation of Tarango's right to due process. Under Nevada law, juror misconduct refers to two categories of conduct: (1) intrinsic misconduct, that is, “conduct by jurors contrary to their instructions or oaths;” and (2) extrinsic misconduct, or “attempts by third parties to influence the jury process.”² Meyer v. State , 119 Nev. 554, 80 P.3d 447, 453 (2003). Tarango alleged both forms of misconduct, arguing that (1) Juror No. 2 changed his vote under pressure, rather than based on admissible evidence of Tarango's guilt, because of (2) an improper third party influence.

In support of the motion, Saggese submitted a declaration indicating that, after the trial court read the juror notes into the record and while deliberations were ongoing, Saggese overheard Deputy District Attorney Marc DiGiacomo report to Detective James Vacarro over the phone that one juror, Juror No. 2, was holding out. Saggese thus indirectly corroborated Juror No. 2's stated belief that he was being targeted as a hold-out juror by introducing evidence that members of the Las Vegas police department both knew that Juror No. 2 favored acquittal and had knowledge of Juror No. 2's identity.³

The trial court held a full hearing on Tarango's motion the following month. Juror No. 2, Defense Attorney Saggese, Detective Vacarro, and Deputy D.A. DiGiacomo were all called to testify regarding their knowledge of the alleged events and communications in question. At the hearing, the court limited the questioning of Juror No. 2 pursuant to a provision of the Nevada Code of Evidence, Nev. Rev. Stat. § 50.065, which prohibits the admission for any purpose of testimony, affidavits, or evidence of any statement by a juror indicating an effect on the jury's deliberative process. The court also relied on the Nevada Supreme Court case of Meyer v. State, which provides that “[u]pon an inquiry into the validity of a verdict ..., a juror may not testify as to any matter or statement occurring during the course of the jury's deliberations, or to the effect of anything upon that or any other juror's mind.”⁴ 80 P.3d at 454 (quoting Fed. R. Evid. 606(b) ). The trial court ultimately conducted all questioning of Juror No. 2 itself. Juror No. 2 testified as follows:

[Right after getting on the freeway,] I was in the center lane [of US-95]. I noticed a Metro squad car behind me; fairly close behind me.... He was close enough I couldn't see his front wheels or bumper. And I looked down and I was not exceeding the speed limit.

...

I signaled and got over to the far right lane anticipating being pulled over and he stayed tight behind me.

...

I maintained under the speed limit anticipating being pulled over. A couple minutes and he never lit up, he never indicated that he was ... going to pull me over. So I just maintained right lane position under the speed limit. This continued on.

...

[At Eastern Avenue] there was a lot of traffic entering the freeway.... [T]here was so many cars trying to merge into the freeway that the Metropolitan squad car actually pulled up closer to prevent anyone from pulling in between our vehicles.

...

And as soon as the ... exit to Las Vegas Boulevard came, I even slowed down under 50, and that's a long exit there. It's, um, a quarter mile, half a mile, and even at that, he maintained position.

And he's not pulling me over. He's not ... giving me a citation for nothing. He followed me down the hill, and at the stoplight for Las Vegas Boulevard.... He followed me, still tight. And there's several stop lights,

...