U.S. v. Pachay

• Decision Date: 27 June 1983
• Docket Number: D,No. 1027,1027
• Citation: 711 F.2d 488
• Parties: UNITED STATES of America, Appellee, v. Freddy PACHAY, Defendant-Appellant. ocket 82-1365.
• Court: U.S. Court of Appeals — Second Circuit

Page 488

711 F.2d 488

UNITED STATES of America, Appellee, v. Freddy PACHAY, Defendant-Appellant.

No. 1027, Docket 82-1365.

United States Court of Appeals Second Circuit.

Argued March 17, 1983.

Decided June 27, 1983.

Daniel H. Murphy, II, Pelham Manor, N.Y., for defendant-appellant.

Warren Neil Eggleston, Asst. U.S. Atty., New York City (John S. Martin, Jr., U.S. Atty., Andrew J. Levander, Walter P. Loughlin, Asst. U.S. Attys., New York City, on the brief), for appellee.

Before MANSFIELD, MESKILL and NEWMAN, Circuit Judges.

NEWMAN, Circuit Judge:

The issue on this appeal is whether a defendant in a federal criminal trial can waive his right to a unanimous jury verdict. Appellant contends that his narcotics conviction entered on September 24, 1982, in the District Court for the Southern District of New York (John E. Sprizzo, Judge) should be reversed because the District Court accepted a jury verdict of guilty by a vote of 11 to 1 after the defendant and the prosecution had agreed to a non-unanimous verdict. Because this procedure violated Rule 31(a) of the Federal Rules of Criminal Procedure, we are obliged to reverse and order a new trial.

I.

Freddy Pachay was one of two defendants named in a three-count indictment charging distribution of cocaine and conspiracy to distribute cocaine in violation of 21 U.S.C. §§ 841, 846 (1976). On August 2, 1982, after his co-defendant pled guilty to one count, Pachay went to trial alone. The jury began deliberations at 12:30 p.m. on August 4. Over the next two days, the jury sent Judge Sprizzo two notes indicating that they were deadlocked. Judge Sprizzo responded to both notes by encouraging the jury to continue their efforts and to try to reach a unanimous verdict. At 5:25 p.m. on Friday, August 6, the jury sent the following note:

A difference of opinion of a single juror now keeps one jury only a hair's breadth away from a decision. Glaring tempers, however, threaten to make the achievement of unanimity impossible if we continue deliberation in today's overheated condition. Unless we wish to capitulate to a mistrial, the majority of the jury would appreciate the chance to disband for today and reassemble tomorrow morning [Saturday]. In addition, if you decide to allow a resumption of deliberation on Monday, would you please instruct all members of the jury of the penalties for failing to appear for deliberations.

The Court, defense counsel (Mr. Joy), and the prosecutor (Mr. Eggleston) then had the following exchange:

The Court: The jury is impatient to leave one way or the other.

Mr. Joy, is he a gambling man? Are you a gambler?

Mr. Joy: This is about the toughest decision I have made since I have been here.

The Court: It depends upon whether Mr. Pachay is a gambling man. The jury has indicated that they are not going to deliberate any more tonight regardless of what they do. Unless we are willing to go on an 11 to 1 basis, I have to make a choice as to whether to declare a mistrial--and that's a hard choice because, as somebody said, the jury is deliberating now and they have it down to one holdout and they don't know if the situation on Monday will improve because some of the people may not show up.

I will come back in five minutes. I am not going far away.

(Pause.)

Mr. Joy: Your Honor, the defendant is willing to go with 11.

The Court: And the government?

Mr. Eggleston: The government's position is if the defendant is fully advised of his rights the government will go with 11.

The Court: I want you to understand that you are entitled to a unanimous verdict of the jury, but like any right you can waive it, so long as your waiver is intentional and knowing.

Have you discussed it with Mr. Joy?

The Defendant: Yes.

The Court: You understand that whatever the jury verdict is you have waived your right to have a unanimous verdict of 12 jurors?

The Defendant: Yes.

The Court: I think that's sufficient for my purposes.

Does the government want to ask him anything else?

Mr. Eggleston: No, your Honor.

The Court: Tell the foreman that the parties have agreed to take a verdict of 11 on whatever it is.

Judge Sprizzo then recalled the jury and informed them that the parties had agreed to accept "a verdict of 11 jurors." The foreman reported that the jury had found Pachay guilty on all counts, and a subsequent poll revealed that of the 12 jurors all except Juror No. 10 agreed with the verdicts. On September 24, 1982, the District Court sentenced Pachay to a two-year term on one of the counts, to be followed by five years of probation on the remaining two counts.

Pachay now challenges the District Court's judgment on the ground that the jury failed to reach a unanimous verdict. Pachay argues that a defendant's right to a unanimous jury is not waivable in a federal court. Pachay grounds this argument on the Sixth and Seventh Amendments and on Rule 31(a) of the Federal Rules of Criminal Procedure. We consider it necessary to decide only whether Rule 31(a) should be understood to prohibit waiver of the unanimity requirement and, if so, whether a violation of the Rule requires reversal in this case.

II.

There can be no doubt that Rule 31(a) establishes unanimity as a mandatory requirement in federal criminal trials. The Rule provides: "The verdict shall be unanimous." Though the text does not explicitly forbid waiver of unanimity, there are two strong reasons for giving the Rule that construction. First, the general practice of the drafters of the Criminal Rules was to authorize waiver in express terms whenever waiver of a mandatory requirement concerning the jury was to be permitted. Thus, Rule 23(a) permits waiver of trial by jury (with the consent of the Court and the Government), and Rule 23(b) permits waiver of the requirement that a jury comprise 12 persons (with the consent of the Court and all parties). See also Rule 5(c) (permitting waiver of preliminary examination); Rule 7(b) (permitting waiver of indictment); cf. Rule 12(f) (imputing waiver of defenses and objections required to be made before trial and not timely made).

Second, the intent of the drafters of Rule 31(a) not to permit waiver of unanimity is evident from the history of the Rule. The Advisory Committee's sixth draft, dated Winter 1942-1943, expressly permitted the parties to agree that a verdict may be returned by "a stated majority of the jurors," see 5 L. Orfield, Criminal Procedure under the Federal Rules § 31:2, at 117 (1967), and this provision was contained in the Committee's First Preliminary Draft (seventh Committee draft), dated May 1943. Id. at 118. The Committee received numerous comments opposing this provision and a similar provision permitting the parties to agree to a jury of less than twelve. One of the most telling criticisms came from Judge Merrill Otis of the Western District of Missouri. Judge Otis argued that permitting non-unanimous verdicts by agreement would undermine the integrity of the jury process. Moreover, he contended, such a rule would be unfair to a criminal defendant, who might feel coerced into agreeing to a suggestion of a non-unanimous verdict by the risk of prejudicial consequences if he refused to consent. ¹ Presumably Judge Otis had in mind the risk that, in the event of conviction by a unanimous jury, the trial judge would impose a harsher sentence on a non-consenting defendant, or at least that a defendant would fear such a consequence and agree to the suggested waiver to avoid incurring the judge's displeasure. In response to the criticisms of Judge Otis and others, the Committee deleted the provision for waiver of unanimity in its Second Preliminary Draft (eighth Committee draft), dated February 1944, though it retained the provision permitting agreement to a jury of less than 12. Id. at 120. The final version of Rule 31(a) reflects the Committee's deliberate decision to omit a provision for waiver of unanimity.

From a comparison of the text of Rule 31(a) with other Criminal Rules containing express waiver provisions and from consideration of the Rule's history, we conclude that the Rule does not permit waiver of the unanimity requirement, a conclusion reached by the three other circuits that have confronted the issue. See United States v. Lopez, 581 F.2d 1338, 1341-42 (9th Cir.1978); United States v. Scalzitti, 578 F.2d 507, 510-12 (3d Cir.1978); Hibdon v. United States, 204 F.2d 834 (6th Cir.1953); see also United States v. Morris, 612 F.2d 483, 488-89 (10th Cir.1979); United States v. Gipson, 553 F.2d 453, 456 n. 4 (5th Cir.1977). Leading commentators are in agreement. See 8A Moore's Federal Practice p 31.02, at 31-3 (2d ed. 1982); 3 C. Wright, Federal Practice and Procedure § 511, at 3-5 (2d ed. 1982).

The Government suggests that our prior decision in United States v. Vega, 447 F.2d 698 (2d Cir.1971), has already committed us to a contrary ruling. In Vega, a juror sent a note to the District Court during jury deliberations identifying himself and stating that he was the "primary hold-out," a characterization the District Judge took to mean that the other 11 jurors might not then be in agreement, id. at 700. With the consent of the defendant and the prosecution the District Court excused the juror and instructed the remaining 11 jurors to continue deliberations. Ultimately the remaining 11 found the defendant guilty, and we affirmed the conviction.

There is an undeniable similarity between Vega and the instant case. In both, 11 jurors found the defendant guilty, and, in both, one of the original 12 jurors thought him not guilty. But there are factual differences that have legal significance. The disagreeing juror in Vega identified himself, thereby permitting the parties to join in a request to excuse him and to avail themselves of the opportunity, explicitly accorded by Rule 23(b), to accept, at any time before the verdict, a jury of less than 12. In addition, and of great significance, after the one juror was excused the...