U.S. v. Evans
| Decision Date | 10 December 2003 |
| Docket Number | Docket No. 02-1270(CON).,Docket No. 02-1293(XAP).,Docket No. 02-1260(L).,Docket No. 02-1291(XAP). |
| Citation | 352 F.3d 65 |
| Parties | UNITED STATES of America, Appellee-Cross-Appellant, v. Jeffrey EVANS, Ronald Wilson, also known as Big Ron, Edward Ingenito, also known as Buster, Joseph Scicchitano, also known as J.D., Carlos Wiggins, also known as Los, Jeff Bellamy, John Bryant, also known as J.B., Sherry Marie Boula, Omar T. Ferguson, Jamie Friel, James V. Hamilton, also known as Black, Gary Hanson, also known as Butch, Thomas Johnson, also known as T, Amos Keith, Kim Kohl, David Sharp, Earl Thomas, also known as Slim, Lorraine Benjamin, Scott Crandall, Susan Fisher, Jeff Gayton, Jimmy Leon, also known as Jimmy Dale, Kevin Martinelli, Lamont Parks, also known as Otis, Terri Pearman, Michael Rhodes, also known as Micah, Demetrious Sayles, also known as Meechie, Defendants, Donald Benjamin, Jr., also known as Ducky, Neal Benjamin, Defendants-Appellants-Cross-Appellees. |
| Court | U.S. Court of Appeals — Second Circuit |
Vincent E. Doyle III, Connors & Vilardo, Buffalo, NY, for Defendant-Appellant-Cross-Appellee Donald Benjamin, Jr.
John J. Lavin, Lavin & Kleiman, P.C., Buffalo, NY, for Defendant-Appellant-Cross-Appellee Neal Benjamin.
Thomas S. Duszkiewicz, Assistant United States Attorney, for Michael A. Battle, United States Attorney for the Western District of New York, Buffalo, NY, for Appellee-Cross-Appellant.
Before: McLAUGHLIN, CABRANES, SACK, Circuit Judges.
Defendants, Donald Benjamin, Jr. ("Donald") and Neal Benjamin ("Neal"), appeal from convictions and sentences for various drug-related offenses entered in the United States District Court for the Western District of New York (Elfvin, J.).
In a summary order also filed today, we address most of defendants' arguments and find them without merit. In this opinion, we consider: (1) defendants' claim that the district court violated their right to be present at all stages of the trial under Federal Rule of Criminal Procedure 43 by communicating with, and dismissing, a juror without consulting them or their counsel; and (2) the Government's contention that the district court erred by departing downwardly in sentencing Donald and Neal.
Although we ultimately reject defendants' challenge regarding the discharged juror and affirm their convictions, we find the district court's conduct to be problematic. Because the Government correctly objects to the defendants' sentencing, we vacate their sentences and remand to the district court for resentencing.
The evidence established that between 1994 and 1997 brothers Donald and Neal Benjamin ran a drug distribution ring in and around Olean, New York. The ring dealt in marijuana, cocaine, and crack and employed numerous individuals, including several youngsters under age eighteen.
On April 28, 1998, Donald and Neal and twenty-seven other conspirators were charged with various counts of drug possession, distribution, and conspiracy to possess and to distribute.
On December 17, 1999, after a month-long jury trial, Donald was convicted of: (1) one count of conspiracy to possess with intent to distribute and conspiracy to distribute controlled substances, in violation of 21 U.S.C. § 846 as it relates to 21 U.S.C. § 841(a)(1); (2) five substantive distribution counts, in violation of 21 U.S.C. § 841(a)(1); and (3) one count of using a minor to distribute controlled substances, in violation of 21 U.S.C. § 861(a)(1), (2). Neal, in turn, was convicted of: (1) one count of the same conspiracy offense; and (2) one count of possession with intent to distribute and distribution of cocaine base, in violation of 21 U.S.C. § 841(a)(1).
On April 12, 2002, Judge Elfvin sentenced Donald principally to thirty years' and Neal to twenty years' imprisonment.
This appeal followed. As already noted, we dispose of the majority of defendants' claims in a summary order. We address here defendants' remaining juror-related claim and the Government's cross-appeal.
On the sixteenth day of trial, Juror # 3 suffered an asthma attack in the courthouse. This prompted Judge Elfvin to adjourn the proceedings early. Before the judge could speak to Juror # 3, however, the juror left the courthouse. The judge telephoned the juror at home and finally spoke to him at around 10 p.m. that evening. The judge learned that the attack was more serious than usual and that, after leaving the courthouse, Juror # 3 had gone to an emergency room and had been advised by his doctor to remain home the next day. While on the telephone, the judge excused Juror # 3 from the remainder of the trial. Nothing was said to counsel.
The next day, one of the defense attorneys noticed that Juror # 3 was gone and an alternate had taken Juror # 3's seat. In response to defendants' inquiry, Judge Elfvin described the conversation he had with the juror the previous evening. Donald's attorney objected to the procedure followed by the court.
We review a district court's dismissal of a juror for an abuse of discretion. See United States v. Millar, 79 F.3d 338, 342 (2d Cir.1996). A dismissal should not be overturned without a showing of bias or prejudice to the defendant. See id. (citing United States v. Gambino, 951 F.2d 498, 503 (2d Cir.1991)).
Federal Rule of Criminal Procedure 43 provides that a defendant "shall be present ... at every stage of the trial." Fed.R.Crim.P. 43(a) (amended 2002). As such, "private communications between the judge and jury violate[ ] the unequivocal mandate of Rule 43." United States v. Glick, 463 F.2d 491, 493 (2d Cir.1972). There is a violation regardless of whether the communication concerns issues that are "personal" in nature and "unrelated to the trial," or issues that bear on the substance of the proceedings. United States v. Taylor, 562 F.2d 1345, 1366 (2d Cir.1977).
Rule 43 violations are analyzed under the traditional harmless error rule provided by Federal Rule of Criminal Procedure 52(a). See Rogers v. United States, 422 U.S. 35, 40, 95 S.Ct. 2091, 45 L.Ed.2d 1 (1975); see also Glick, 463 F.2d at 493. The Supreme Court has counseled that "the nature of the information conveyed to the jury, in addition to the manner in which it [is] conveyed," bear on whether a Rule 43 violation is harmless. Rogers, 422 U.S. at 40, 95 S.Ct. 2091.
In the context of a judge's ex parte communication with the jury, this Court has yet to determine whether the proper standard for harmless error is harmless beyond a reasonable doubt, Chapman v. California, 386 U.S. 18, 26, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), or a fair assurance that the verdict was not affected, Kotteakos v. United States, 328 U.S. 750, 764-65, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946). See Glick, 463 F.2d at 494 n. 12; cf. United States v. Ronder, 639 F.2d 931, 935 (2d Cir.1981). However, we need not decide this question, because the district court's error here was harmless under both standards.
Defendants argue that the district court violated their rights by communicating with Juror # 3 outside their presence and by deciding to dismiss the juror without first consulting them. According to Donald's brief (which Neal incorporates into his appeal by reference), "[t]he district court should have given more deference to [their] right to a trial before the jury [they] selected." Specifically, defendants contend that the district court "acted without the benefit of an `informed discussion' with counsel on the proper course" to follow. They also claim that dismissal was inappropriate because "[t]he juror's condition necessitated only a one day postponement of the trial," not outright dismissal.
Although we find no prejudice warranting reversal, we take this occasion to caution courts about the risks of ex parte conduct.
In United States v. Houlihan, 332 F.2d 8 (2d Cir.1964), we affirmed a district court judge's unilateral discharge of a juror, who was a nurse, because her patient had suffered a heart attack the previous day. Id. at 12-13. We held that the private communication and subsequent dismissal were proper, given the emergency, and found neither error nor prejudice. Id. In so doing, we acknowledged that:
Situations may sometimes arise when a respect for the rights of jurors will require the judge to take immediate action without consulting counsel — e.g., if a juror is taken so ill that he cannot come to court or has a family emergency requiring him to leave during the night or over a weekend.
Id. at 13. Although we did not expressly focus on the effect of changing the jury's composition, it was implicit that no prejudice resulted from the substitution of an alternate juror. Id.; see also United States v. Rodriguez, 573 F.2d 330, 333 (5th Cir.1978) ( ).
Defendants seek to distinguish Houlihan by arguing that Juror # 3's asthma attack did not rise to the level of an "emergency." The distinction, however, is one of degree only, and the decision to discharge a juror remains within the sound discretion of the district court. See Millar, 79 F.3d at 342. Judge Elfvin acted within the ambit of that discretion: the dismissed juror had had an asthma attack that was more severe than usual and his doctor had advised him to stay home the following day.
Defendants' efforts to differentiate Houlihan on legal grounds are unpersuasive. Each case they cite to support their claim of abuse of discretion implicated a far more egregious error than occurred here. See, e.g., Rogers, 422 U.S. at 40, 95 S.Ct. 2091 (); Glick, 463...
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