Mexican restaurant owners get new trial because of juror’s ‘wetback’ statement

Posted Aug. 20, 2013, at 6:20 p.m.

PORTLAND, Maine — A federal judge Monday granted a new trial to the owners of three Mexican restaurants after it was discovered a juror discussed the case and made ethnic slurs against the defendants during the trial in March.

Hector Fuentes, 38, of Waterville and Guillermo Fuentes, 36, of Westbrook were convicted on charges of conspiracy to harbor undocumented aliens for profit, harboring undocumented aliens for profit, and aiding and abetting document fraud after a seven-day trial.

The Fuentes brothers, who are lawful permanent residents of the United States, own the Fajita Grill Mexican Restaurant in Westbrook, the Cancun Mexican Restaurant in Waterville and the Cancun Mexican Restaurant II in Biddeford. The restaurants remain open.

Both men have remained free on bail while awaiting their sentencings.

“The defendants are entitled to have twelve — not eleven, but twelve — jurors make [a] decision impartially based upon all the evidence and based upon deliberations among them,” U.S. District Judge D. Brock Hornby wrote in his 23-page decision. “I conclude that these defendants were denied that right, no matter how much this juror believes that he has no discriminatory feelings toward Mexicans.”

A new trial has been scheduled for October.

Testimony in the original trial was presented to jurors March 7-15, according to court documents. Closing arguments were made and the jury’s decision was announced March 18.

Statements made by the juror came to Hornby’s attention on April 16 through an officer with U.S. Probation and Pretrial Services in Portland, who sent him a written memorandum, his decision said. A man who had pleaded guilty to a federal crime and was on bail awaiting sentencing told his probation officer that he’d had a conversation with a juror in the Fuentes case on Saturday, March 9, at the Eagles Club in South Portland.

The juror said of the defendants: “They are all guilty wetbacks anyway,” according to the judge’s decision.

The juror’s attitude toward Mexicans was not uncovered during the jury selection process, Hornby wrote.

When the juror was identified and interviewed by Hornby and Fuentes’ attorneys, he at first denied knowing the man who reported the incident to his probation officer. When shown a picture of the man, the juror admitted he had spoken with him at the Eagles Club but denied making the statement, Hornby’s decision said.

The juror “ultimately admitted to using it in connection with the trial,” the judge wrote. “But then he said that he did not make the ‘weback’ comment until after the trial ended and only in speaking to the bartender at the Eagles Club who, he said, was Puerto Rican and was offended by it.”

Hornby said that he found the report of the probation officer and the individual who reported the conversation more credible than the juror, but said it was unfortunate he hadn’t received the information sooner.

“Certainly I share the government’s frustration that we did not learn of the incident immediately and before the alternates had been discharged, because the trial could have been salvaged with the juror’s replacement by alternate juror,” the judge wrote.

Leonard Sharon, the Auburn attorney who represents Hector Fuentes said Tuesday that has never before seen a motion for a new trial granted based on a similar set of circumstances.

“Cases that involve juror misconduct are few and far between,” he said. “We know these kinds of things happen, we just don’t usually discover it.”

Assistant U.S. Attorney James Chapman said Tuesday that his office has not decided whether to appeal Hornby’s order to the U.S. 1st Circuit Court of Appeals in Boston but would be ready for a new trial in October.

SEE COMMENTS →

ADVERTISEMENT | Grow your business
ADVERTISEMENT | Grow your business