United States v. Sams
| Decision Date | 19 December 1972 |
| Docket Number | No. 72-1781.,72-1781. |
| Citation | 470 F.2d 751 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. John Newton SAMS a/k/a Adolphus John Sams, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Donald W. Matthews, Jacksonville, Fla. (court appointed), for defendant-appellant.
John L. Briggs, U. S. Atty., Peter L. Dearing, Asst. U. S. Atty., Jacksonville, Fla., for plaintiff-appellee.
Before JOHN R. BROWN, Chief Judge, and TUTTLE and INGRAHAM, Circuit Judges.
The principal, and only serious, contention made by Sams on his appeal from a conviction and sentence for falsely forging a United States Government check in violation of Title 18 U.S.C.A. § 495, deals with the manner in which the trial court permitted the accused to exercise his peremptory challenges during the empanelling of the jury.
The issue arose in the following manner: The trial judge was a visiting judge designated to sit in the Tampa Division of the Middle District of Florida. Without prior announcement to counsel the trial judge utilized a method of selecting a jury that varied from the local custom, although we are not told precisely on this record what the local custom was. The method utilized was as follows: The first twelve prospective jurors were summoned to the jury box and then examined by the court for qualification. Then, both sides were allowed to inquire of the jurors touching on certain specified questions. Thereafter, the following transpired:
It will readily appear from this proceeding that Sams's counsel actually ended up by being permitted to exercise only two peremptory challenges. He contends, therefore, that this was a direct violation of Rule 24 of the Federal Rules of Criminal Procedure, which provides in Section (b) . . . "If the offense charged is punishable by imprisonment for more than one year, the government is entitled to 6 peremptory challenges and the defendant or defendants jointly to 10 peremptory challenges . . . ."
He also contends that the curtailment of his privilege to exercise his challenges amounts to a violation of the guarantees of the Sixth Amendment providing for trial by jury.
The government replies, first, that the Supreme Court has held that the number of, and the manner of exercising, peremptory challenges does not go to the constitutional guaranty of a right to trial by jury, and, second, that the courts have held that there is no specific method which is recognized by the courts as being required to exercise the admitted right to have ten challenges in a felony case; that, in other words, this is another one of those procedural rights in the vindication of which the trial court has "broad discretion." Finally, the government says that Sams did not take the necessary curative action to protect any error committed by the trial court for the purpose of appeal.
We recognize that the Supreme Court has said, "There is nothing in the Constitution of the United States which requires the Congress to grant peremptory challenges to defendants in criminal cases; trial by an impartial jury is all that is secured." Stilson v. United States, 250 U.S. 583, 586, 40 S.Ct. 28, 30, 63 L.Ed. 1154. It seems clear, therefore, that unless, since the Court's decision in Stilson some intervening decision has emerged, the granting and exercise of the right to peremptory challenges must be tested by the rules, which of course, have the effect of statutory law. We find no such case.
The United States points to the case of St. Clair v. United States, 154 U.S. 134, 14 S.Ct. 1002, 38 L.Ed. 936, which it contends controls this case since in St. Clair the Supreme Court expressly held that there was no error in the conduct of a trial in which the procedure was similar to that followed by the trial court here. In St. Clair, however, the local district court rule had expressly adopted the state's statute with respect to the method of exercising peremptory challenges. The rule was on the books for all to see. We would not attempt, of course, to say that were there a similar situation presented in the present case St. Clair would not be applicable because of the long lapse of time, even though during the years between 1894 and 1972 the Court has devoted a great deal of judicial time resulting in making trial by jury a much more meaningful part of our judicial system.
The difference between this case and St. Clair, however, is apparent for two reasons. The first is that the trial court here did not follow a standing rule of the district, by which all counsel practicing there were bound, and presumably on actual notice; the second is that counsel for Sams was predictably misled at the time he refrained from making additional challenges by the question put to him by the clerk.
First, we must note that counsel for Sams was taken by surprise when he was told by the trial court that he was not to be permitted to strike one of the original twelve jurors after he had answered the clerk's question as to whether he had any other strikes after excluding Mr. Davies. The reason for his surprise is obvious because after striking Mr. Davies — No. 14 — the clerk said, "Do you have any others at this time, Mr. Matthews?" Thereupon counsel replied, "Not at this moment, no." Far from indicating that counsel meant to waive any right he may have had to exercise his remaining nine peremptory challenges, the indications are precisely the opposite. The clerk's inquiry clearly indicated that he might have an opportunity at another time to exercise these challenges — and in no way limiting such challenges to persons who subsequently took the place of the single challenged juror. Counsel showed his surprise when, after venireman Hoffman had taken the place of Mr. Davies and the court asked the defendant if he had any peremptory challenges, counsel stated that he would like to excuse No. 19, a member of the original twelve veniremen who had not previously been challenged. Thereupon, the court said, Of course, that is not precisely what counsel had been asked previously by the clerk. As we have indicated, the clerk said, "Do you have any others at this time?" So, in answering the court Mr. Matthews said, This, it seems to us, was clearly an effort by counsel to correct the court's statement, "You were asked if you had any other challenges." Counsel undertook to tell the court that the total statement included the words, "At that time." Nevertheless, the court brought the discussion to an end by saying, "At that time the clerk asked you whether you wanted to exercise any others as we have pointed out this is not a complete statement and the ones that you have passed you can't go back to." Thereupon counsel challenged Mr. Hoffman, the only one of the twelve then qualified as to whom he had the right to exercise a challenge under the court's ruling. Mr. Hoffman was excused and Louise G. White was called...
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State v. Williams
...90 L.Ed.2d 69, 84 (1986); Stilson v. United States, 250 U.S. 583, 586, 40 S.Ct. 28, 30, 63 L.Ed. 1154, 1156 (1919); United States v. Sams, 470 F.2d 751, 753 (5th Cir.1972). See generally United States v. Allsup, supra, 566 F.2d at 73-77 (Foley, D.J., concurring) (discussing the derivation o......
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State v. Ramseur
...a peremptory challenge. See Swain v. Alabama, supra, 380 U.S. at 217-18, 85 S.Ct. at 834, 13 L.Ed.2d at 771; United States v. Sams, 470 F.2d 751, 754 (5th Cir.1972). In no case, however, has such a system been mandated. Indeed, in United States v. Blouin, 666 F.2d 796 (2d Cir.1981), the cou......
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U.S. v. Ricks
...courts and commentators have repeatedly remarked on this absence of settled patterns for final jury selection. United States v. Sams, 470 F.2d 751, 755 n. 1 (5th Cir.1972); United States v. Turner, 558 F.2d 535, 537 (9th Cir.1977); 2 C. Wright, Federal Practice and Procedure: Criminal Sec. ......
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U.S. v. Ricks
...1046 (4th Cir.1977). Nor do they argue that the district court violated the prior commitment of any local rule. Cf. United States v. Sams, 470 F.2d 751, 752 (5th Cir.1972). ...