Appeal from the United States District Court for the Central District of California. D.C. No. CR-92-00366-DT-1. Dickran M. Tevrizian, District Judge, Presiding
Before: Browning, Beezer, and Trott, Circuit Judges
We decide de novo whether a particular courtroom procedure denied defendant a fair trial. United States v. Milner, 962 F.2d 908, 911 (9th Cir. 1992); Norris v. Risley, 918 F.2d 828, 830 (9th Cir. 1990). Security measures violate a defendant's right to a fair trial if they are inherently prejudicial or cause actual prejudice. Holbrook v. Flynn, 475 U.S. 560, 572, 89 L. Ed. 2d 525, 106 S. Ct. 1340 (1986); United States v. Halliburton, 870 F.2d 557, 560 (9th Cir. 1989). Walden does not argue the security measures caused actual prejudice. Accordingly, this court must inquire whether those measures were "so inherently prejudicial as to pose an unacceptable threat to [the] right to a fair trial." Holbrook, 475 U.S. at 572; Milner, 962 F.2d at 911.
Walden was not denied a fair trial when the district court ordered U.S. Marshals to escort jurors from the jury room to their cars. Unlike inherently prejudicial practices, a jury escort is open to "a wide range of inferences." Holbrook, 475 U.S. at 569. The jurors would likely infer the U.S. Marshals escorted them to their cars to protect them from street crime, not from the defendant. Since the jury had "no reason . . . to infer that [Walden] specifically was the reason for [the jury escort]," the escort was not inherently prejudicial. Morgan v. Aispuro, 946 F.2d 1462, 1465 (9th Cir. 1991).
Even if slightly prejudicial, the jury escort was a justifiable response to evidence of witness intimidation. The government presented evidence that witnesses were being followed from the courthouse. The district court could reasonably conclude that jurors would not be immune from such tactics. Holbrook, 475 U.S. at 571 ("slight degree of prejudice" is justified by need for security).
The district court adopted adequate curative measures. The marshals were admonished not to discuss the reasons for providing the escort, See Halliburton, 870 F.2d at 561-62 (curative measures included instructing the U.S. Marshals to be discreet), and the Clerk of the Court was instructed to "inform the jurors when they have asked that [the escort] is because of the area in which the Court is located and the length of time that we are going in the evenings." See United States v. Paccione, 949 F.2d 1183, 1192 (2nd Cir. 1991) (prejudice caused by juror anonymity was ameliorated by instruction that anonymity was necessary to protect the jury from the media).
Walden suggests the escort was particularly prejudicial because it was initiated on the fourth day of trial. The Supreme Court's comment in Holbrook is applicable here: "Even had the jurors been aware that the deployment of troopers was not common practice . . ., we cannot believe that the use of the the [sic] four troopers tended to brand respondent in their eyes 'with an unmistakable mark of guilt.'" Holbrook, 475 U.S. at 571 (citation omitted); see also Morgan, 946 F.2d at 1465 (proceedings moved to high security courtroom in middle of trial).
The cases cited by Walden in support of his contention that the district court was required to instruct the jury regarding the presumption of innocence when it provided the jury escort are distinguishable -- each involved security measures or events that were inherently prejudicial. See Castillo v. Stainer, 983 F.2d 145, 147 (9th Cir. 1992), amended, 997 F.2d 669 (1993); Milner, 962 F.2d at 911-12; Jones v. Meyer, 899 F.2d 883 (9th Cir. 1990).
Other security measures taken by the court -- the use of a metal detector outside the courtroom, taking photographs of spectators who entered the courtroom, and providing escorts to witnesses -- did not deprive Walden of a fair trial whether considered singly or together. Like the jury escort, these measures did not suggest Walden might be dangerous. See Morgan, 946 F.2d at 1465 (high security courtroom is not prejudicial). Walden presented no evidence the jurors were aware of the security measures, and security measures not known to the jury do not deprive the defendant of the presumption of innocence. See United States v. Ferguson, 758 F.2d 843, 854 (2nd Cir. 1985) (holding that "effect on the jurors of the unusual precautions taken here were . . . ameliorated because . . . the metal-detector was out of the juror's view"); United States v. Jackson, 549 F.2d 517, 527 (8th Cir. 1977) (noting that "it is clear that the jury was carefully shielded from contact with or awareness of the security measures"); United States v. Estremera, 531 F.2d 1103, 1113 (2nd Cir. 1976) (noting that "it is mere surmise that the metal detectors were visible or caused any prejudice to defendant").
The district court's decisions regarding relevance of evidence and the balance between the probative value and prejudicial effect are reviewed for abuse of discretion. United States v. Daly, 974 F.2d 1215, 1216-17 (9th Cir. 1992); ...