U.S. v. Thomas
| Citation | 116 F.3d 606 |
| Decision Date | 20 May 1997 |
| Docket Number | 122,20,109,22,299,D,Nos. 23,27,25,72,s. 23 |
| Parties | UNITED STATES of America, Appellee, v. Grady THOMAS, a/k/a Gates Thomas; Loray Thomas; Ramse Thomas, a/k/a Rock Thomas; Tracey Thomas; Jason Thomas, a/k/a J Thomas; Lamont R. Joseph, a/k/a Kool-Aid Joseph; Ceasare Thomas, a/k/a Chet Thomas; Santo Bolden; Myron Thomas, Defendants-Appellants, Carrie Thomas; Terrence Thomas, a/k/a Ski Thomas; Shawne Thomas; Douglas Stover; Stephon Russell, a/k/a Swanee Russell; Augustin Reyes, a/k/a Gus Reyes; Lamont Pouncie; Chester Perkins, a/k/a Kazar Perkins; Roy Pearson; Abdullah McKnight, a/k/a Sha-Wise McKnight; Monique McAdoo; Robert Gibson, a/k/a Gary Childs; Raymond Eaddy, a/k/a Ramel Eaddy; Michael Armstead; Andre Nunn, Defendants. ockets 95-1337, 95-1338, 95-1339, 95-1347, 95-1387, 95-1406, 95-1407, 95-1416, 95-1417. |
| Court | United States Courts of Appeals. United States Court of Appeals (2nd Circuit) |
Sara M. Lord, Assistant United States Attorney for the Northern District of New York, Albany, NY (Thomas J. Maroney, United States Attorney for the Northern District of New York, Albany, NY, Michael S. Turner, law student intern, of counsel), for appellees.
Renje N. Doyle, Albany, NY, for defendant-appellant Grady Thomas.
Thomas J. O'Hern, Gerstenzang, O'Hern, Hickey & Gerstenzang, Albany, NY, for defendant-appellant Loray Thomas.
J. John Van Norden, Van Norden & Paul, Schenectady, NY, for defendant-appellant Ramse Thomas.
Kathleen M. Resnick, Albany, NY, for defendant-appellant Tracey Thomas.
Joseph M. McCoy, Roche, Corrigan, McCoy & Bush, Albany, NY, for defendant-appellant Jason Thomas.
Cynthia Feathers, Saratoga Springs, NY, for defendant-appellant Lamont R. Joseph.
Paul Pelagalli, Hermann, Pelagalli & Weiner, Clifton Park, NY, for defendant-appellant Ceasare Thomas.
David Brickman, Albany, NY, for defendant-appellant Santo Bolden.
Barry D. Leiwant, Legal Aid Society, Federal Defender Division Appeals Bureau, New York, NY, for defendant-appellant Myron Thomas.
Before: LUMBARD, Mc LAUGHLIN and CABRANES, Circuit Judges.
We consider here the propriety of the district court's dismissal of a juror allegedly engaged in "nullification"--the intentional disregard of the law as stated by the presiding judge--during the course of deliberations. We address, in turn, (1) whether such alleged misconduct constitutes "just cause" for dismissal of a deliberating juror under Rule 23(b) of the Federal Rules of Criminal Procedure ("Rule 23(b)"), 1 so that a jury of only eleven persons may continue to deliberate and return a verdict, and (2) what evidentiary standard must be met to support a dismissal on this ground.
The appellants are two sets of defendants convicted of violations of federal narcotics laws after two separate trials in the United States District Court for the Northern District of New York (Thomas J. McAvoy, Chief Judge ). We have decided the appeals of defendants convicted at the first of these trials in a summary order of this date. We write here to consider only the appeals of Grady Thomas, Ramse Thomas, Jason Thomas, Tracey Thomas, and Loray Thomas, all of whom were convicted in the second trial. On appeal, they argue, chiefly, that the district court abused its discretion when it ordered the dismissal of one of the jurors pursuant to Rule 23(b) during the course of jury deliberations. The court based its decision to remove the juror, in large part, on a finding that the juror was purposefully disregarding the court's instructions on the law--in effect, that the juror intended to acquit the defendants regardless of the evidence of their guilt.
We consider below whether a juror's intent to convict or acquit regardless of the evidence constitutes a basis for the juror's removal during the course of deliberations under Rule 23(b). We also consider what constitutes sufficient evidence of that intent in light of the limitations on a presiding judge's authority to investigate allegations of nullification required by the need to safeguard the secrecy of jury deliberations. We conclude, inter alia, that--as an obvious violation of a juror's oath and duty--a refusal to apply the law as set forth by the court constitutes grounds for dismissal under Rule 23(b). We also conclude that the importance of safeguarding the secrecy of the jury deliberation room, coupled with the need to protect against the dismissal of a juror based on his doubts about the guilt of a criminal defendant, require that a juror be dismissed for a refusal to apply the law as instructed only where the record is clear beyond doubt that the juror is not, in fact, simply unpersuaded by the prosecution's case. We hold that the district court erred in dismissing a juror, based largely on its finding that the juror was purposefully disregarding the court's instructions on the law, where the record evidence raised the possibility that the juror's view on the merits of the case was motivated by doubts about the defendants' guilt, rather than by an intent to nullify the law. Accordingly, we vacate the judgments of the district court and remand for a new trial.
We have before us the consolidated appeals of ten criminal defendants convicted of related conduct in two trials held in the Northern District of New York. The named defendants in this case, including those whose appeals we consider here, were arrested on May 5, 1994. In an indictment returned on May 13, 1994, they were charged with conspiracy to possess and distribute cocaine and crack cocaine and actual possession and distribution of these substances. A 30-count, superseding indictment was returned on October 14, 1994, which added a series of forfeiture counts against the defendants.
Ceasare Thomas, Myron Thomas, Lamont Joseph, Santo Bolden, and Raymond Eaddy were tried on charges set forth in the superseding indictment beginning on November 22, 1994. After a Government witness apparently made certain prejudicial statements on the stand, a mistrial was declared on November 28, 1994. A second trial of the same defendants began two days later, on November 30, 1994, and the jury returned verdicts of guilty for all defendants but Raymond Eaddy on December 14, 1994. We affirm these convictions in a summary order filed today. See United States v. Thomas et al., Nos. 95-1337 et al. (2d Cir. May 20, 1997).
The remaining appellants, Grady Thomas, Ramse Thomas, Jason Thomas, Tracey Thomas, and Loray Thomas, along with Terrence Thomas, Shawne Thomas, Carrie Thomas, Stephon Russell, and Robert Gibson, were the subject of a separate trial, which began on January 18, 1995. 2 Grady Thomas, Ramse Thomas, Jason Thomas, Tracey Thomas, and Loray Thomas appeal from judgments of conviction entered against them following this trial, and we consider their appeals here. 3 We confine our factual discussion of this trial to the events leading up to and including the ultimate dismissal of one of the jurors. These events provide the basis for the appellants' primary challenge to the proceedings below.
* * *
During jury selection, the Government attempted to exercise a peremptory challenge to a juror who would later be empaneled as "Juror No. 5." Because the juror was black--indeed, the only black person remaining as a potential juror in a case in which, as the record indicates, all of the defendants are black--defense counsel objected to the peremptory challenge under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), as racially motivated. The Government responded that it wished to exclude the juror based not on his race, but on the fact that he failed to make eye contact with the Government's counsel during the voir dire. Although the district court explicitly found that the Government's peremptory challenge was not motivated by race, the court, in a misapplication of Batson, 4 nevertheless denied the challenge on the ground that the juror's failure to make eye contact was an insufficient basis for his removal. The court would later explain that Juror No. 5's status as the only black juror in a case involving black defendants had motivated its decision to deny the Government's challenge.
Problems regarding Juror No. 5 did not end with his selection for the jury, however. During the course of defense summations on Friday, February 17, 1995, following several weeks of trial, a group of six jurors approached the courtroom clerk to express their concerns about the juror. The six jurors complained that Juror No. 5 was distracting them in court by squeaking his shoe against the floor, rustling cough drop wrappers in his pocket, and showing agreement with points made by defense counsel by slapping his leg and, occasionally during the defense summations, saying "[y]eah, yes."
Chief Judge McAvoy met with counsel in chambers to discuss the complaints about Juror No. 5. The judge raised the possibility of conducting interviews with each member of the jury to determine the extent to which Juror No. 5 was distracting them from their duties. Alternatively, he considered dismissing Juror No. 5 in favor of an alternate juror pursuant to FED.R.CRIM.P. 24(c). 5 While the Government approved of the idea of interviewing the jurors, and dismissing Juror No. 5 if the interviews revealed that his behavior was disturbing other members of the jury, defense counsel generally opposed both options, preferring that the court permit summations to continue with only a general instruction to the jurors that they were not to form any opinions before starting their deliberations. In the face of conflicting recommendations from counsel on how to proceed, the judge dismissed the jurors for the day, requesting that counsel submit memoranda of law over the three-day weekend on an appropriate course of action. The court did, however, instruct the jurors before dismissing them that they should not yet "form any opinions or conclusions about the case."
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