U.S. v. Murphy
| Decision Date | 18 April 2007 |
| Docket Number | No. 05-50608.,05-50608. |
| Citation | 483 F.3d 639 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Michael Joseph MURPHY, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Jason Dickstein (argued), Washington Aviation Group, PC and the Law Offices of Jason A. Dickstein, Washington, D.C., for the defendant-appellant.
Debra W. Yang, United States Attorney, Wayne R. Gross, Assistant United States Attorney, and Thomas S. McConville (argued), Assistant United States Attorney, Santa Ana, CA, for the plaintiff-appellee.
Appeal from the United States District Court for the Central District of California; Alicemarie H. Stotler, District Judge, Presiding. D.C. No. CR-04-00141-AHS.
Before JOHN R. GIBSON,* RYMER, and CLIFTON, Circuit Judges.
This case presents the question of whether a stipulation to proceed with a jury of fewer than twelve members, permitted under Federal Rule of Criminal Procedure 23(b)(2)(A), constitutes a violation of the requirement that a verdict be unanimous, under Federal Rule of Criminal Procedure 31, in circumstances where there is some indication of a holdout juror. We conclude that under the circumstances here, where the defendant knowingly and intelligently stipulated to dismissing a juror and received a unanimous verdict by the remaining eleven jurors, the district court did not abuse its discretion in denying a new trial.
Appellant Michael Joseph Murphy was charged with violations of 18 U.S.C. § 287 and 18 U.S.C. § 1001 for making false claims and statements in connection with a government contract. After three days of trial, the jury began its deliberations on Friday, February 18, 2005.
On Tuesday, February 22, the court received a note signed by the jury foreperson that stated: "We have a dissenting point of view with one juror that will have no possible position change and requests no evidence or willing to participate." The parties agreed to the court's proposed response, which stated Later that same day the court received a second jury note requesting the testimony of two witnesses. The court reporter began to read back the testimony of those witnesses to the jury. The court adjourned that afternoon before the testimony had been completely reread.
The following morning, before the rereading of the testimony resumed, the jury indicated to the clerk that it wanted to confer further. At 9:27 a.m. the court received a third jury note, which read, in the less than perfect form common in such notes: After receiving this note, the parties agreed to stipulate to the removal from the jury of the one member described as not deliberating, pursuant to Federal Rule of Criminal Procedure 23(b)(2)(A),1 and to proceed with the remaining eleven jurors. The court asked Murphy directly whether the stipulation was his wish after conferring with counsel about the matter, and Murphy responded that it was. The court accepted the stipulation, finding that "there is reason, certainly to do so in light of the compunctions, which is essentially more than once without a refusal to deliberate," and charged the clerk to enter the jury room and dismiss the juror in question. The court then stood in recess.
At 10:16 a.m., the court resumed session, and updated the parties as to what had occurred since the recess:
After the last session of the court, the clerk scurried out to discharge the juror who hasn't deliberated. The juror insisted on handing a note to a clerk. The juror who was discharged wrote on something which is a note which I have not read. And then I received . . . a note from the jury that they have come to a verdict. And then I have . . . a handwritten stipulation that counsel put together . . . [stipulating] "to the removal of the one juror who is not deliberating as noted in jury notes one and three, pursuant to federal criminal procedure [Rule] 23B. . . ."2
So I have a verdict. I have a stipulation . . . and I have the juror's note which I have not read and I will read to you now.
The court read the excused juror note, which was timed at 9:52 a.m., as stating:
That is the best [the court] can make of[the juror's] note to us.
The court then invited the parties to comment. Realizing that the juror previously described as refusing to deliberate was a holdout juror refusing to vote for conviction, defense counsel moved for a mistrial based, as the court put it, "upon what is essentially being characterized as inaccurate information in jury notes one and three," the notes that had described that juror as refusing to deliberate.
The court denied Murphy's motion for a mistrial. It explained that "there is no doubt [that] had the juror who was discharged pursuant to the stipulation not essentially insisted on giving the note to the clerk, none of us would know, really, what she, juror number five, had to say about the point." The court then summoned the jury panel, reduced in size at that point to eleven members, and received the jury's verdict, which held Murphy guilty on both counts by votes of eleven to zero.
Murphy later filed a timely motion for a new trial under Federal Rule of Criminal Procedure 33,3 arguing that the "interest of justice" required that the court vacate the judgment. Attached to the motion was a declaration from the dismissed juror denying that she had refused to deliberate. The court denied the motion and subsequently sentenced Murphy to imprisonment for twenty-four months. Murphy appealed.
The district court's denial of a motion for new trial based on juror misconduct is reviewed for abuse of discretion, as is the court's decision to excuse a juror during deliberations. United States v. Saya, 247 F.3d 929, 935 (9th Cir.2001); United States v. Egbuniwe, 969 F.2d 757, 760-61 (9th Cir.1992).
Whether the dismissal of the juror in this case was error, such that Murphy should be entitled to a new trial, is a question framed primarily by two Rules of Criminal Procedure: Rule 23(b)(2)(A), which provides that at any time before the verdict, the parties may, with the court's approval, stipulate in writing that the jury may consist of fewer than twelve persons; and Rule 31, which states without qualification that the jury verdict must be unanimous. Unlike jury size under Rule 23, Rule 31's requirement for unanimity in the verdict may not be waived. United States v. Lopez, 581 F.2d 1338, 1340-41 (9th Cir. 1978).
This court has not previously addressed a scenario exactly like the one at issue here, but this and other courts have dealt with similar situations and have interpreted Rule 23(b) to allow the parties to stipulate to removing a juror and gamble on the effect that removal will have on the verdict, as long as that verdict is unanimous on the part of the remaining jurors. In United States v. Vega, 447 F.2d 698, 699-701 (2nd Cir.1971), for example, the Second Circuit evaluated jury deliberations that followed a course very similar to that in the present case. During the first few days of deliberations, the court received two notes from the jury indicating that they could not come to an agreement or final decision, to which the court responded by urging the jury to try to reach a decision. Id. at 699-700. A third note was received, reading Id. at 700. After reading the message to counsel, the court said, Id. Defense counsel conferred with the defendant and his wife, and then reported to the court, Id. When asked in open court for confirmation, defense counsel advised his client as follows: Id. After the defense confirmed its assent, Mr. Hoag was excused, and the jury continued deliberations and thereafter returned a guilty verdict. Id. at 700-01.
On appeal, the defendant argued that he had a statutory and constitutional right to a unanimous verdict which could not be waived. Id. at 701. The Vega court concluded "beyond peradventure" that the "defendant was represented by competent counsel" who
during the selection of the jury and during the trial had an opportunity to select and appraise the jurors selected as best qualified to react favorably to the cause of his client. When the "holdout" crisis arose, the Court gave counsel every opportunity to exercise his courtroom judgment as to further proceedings. Counsel conferred with defendant . . . . Counsel was unwilling to accept less than a unanimous verdict but definitely was willing to accept a jury of 11. And as measured against some other jury on a second trial, it was obviously his considered judgment that in courtroom parlance the jury "looked good" to him.
. . .
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...statute, and points out that under Rule 23 both parties must stipulate to proceeding with a jury of fewer than 12. See United States v. Murphy, 483 F.3d 639 (9th Cir.2007) (at any time prior to verdict, that prosecution and the defendant may, with approval of the court, agree that the jury ......
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