U.S. v. Josefik

• Decision Date: 22 January 1985
• Docket Number: Nos. 83-2600,83-2607,s. 83-2600
• Citation: 753 F.2d 585
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. John JOSEFIK and Charles Soteras, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 585

753 F.2d 585

UNITED STATES of America, Plaintiff-Appellee, v. John JOSEFIK and Charles Soteras, Defendants-Appellants.

Nos. 83-2600, 83-2607.

United States Court of Appeals,

Seventh Circuit.

Argued Sept. 28, 1984.

Decided Jan. 22, 1985.

Maureen DeMaio, Asst. U.S. Atty., Dan K. Webb, U.S. Atty., Chicago, Ill., for plaintiff-appellee.

Robert J. Weber, Chicago, Ill., for defendants-appellants.

Before CUDAHY and POSNER, Circuit Judges, and FAIRCHILD, Senior Circuit Judge.

POSNER, Circuit Judge.

Josefik and Soteras were convicted by a jury of conspiracy to possess, and possession of, more than 1,000 cases of Chivas Regal scotch stolen from an interstate shipment (18 U.S.C. Secs. 371, 659), and each was sentenced to eight years in prison and fined $7,000. They appeal on several grounds, the first being that the judge violated Rule 24(c) of the Federal Rules of Criminal Procedure by recalling an alternate juror.

At the end of the trial, the remaining alternate was excused and the jury retired to deliberate. This was at 5:45 p.m. but the jury had dinner before its deliberations, which did not begin till 7:30. At 7:39 one of the jurors sent a note to the judge asking to be excused. The jury stopped deliberating when this happened. Upon receiving the note the judge telephoned the alternate and told her not to discuss the case with anyone and instructed the jury to come back into the courtroom. After questioning the juror who had asked to be excused and discovering that she had had trouble hearing during the trial, the judge excused her and sent the jury home with instructions to come back at 10:00 a.m. The next morning, in the presence of the defendants and their counsel, the judge questioned the recalled alternate, who said she had not discussed the case with anyone. Counsel for both defendants consented to have the alternate juror added to the jury--though we shall see that there is a shadow over Josefik's consent. The recalled alternate then rejoined the jury, which returned a verdict of guilty that afternoon.

Rule 24(c) provides that "alternate jurors in the order in which they are called shall replace jurors who, prior to the time the jury retires to consider its verdict, become or are found to be unable or disqualified to perform their duties" (emphasis added) and that "an alternate juror who does not replace a regular juror shall be discharged after the jury retires to consider its verdict." There is no provision for recalling an alternate after he is discharged and we think policy as well as the language we have quoted from the rule (especially the part we have italicized) forbid the practice. An alternate who joins the jury's deliberations after they have begun, even if he has not discussed the case with other people or forgotten the judge's (other) instructions in the interim, will be at a disadvantage in holding his own with the other jurors, and as a result the defendant may not really be getting the jury of 12 to which he is entitled. See Note of Advisory Comm. to 1983 Amendment to Fed.R.Crim.P. 23(b); 8A Moore's Federal Practice p 23.04 (2d ed. 1984). But it is not always reversible error to recall an alternate who has been discharged. Suppose the alternate in this case had been recalled as she was leaving the courtroom 30 seconds after having been discharged. It would violate Rule 24(c) to put her back on the jury but there would be no prejudice to the defendants that would warrant reversal of their convictions; and only prejudicial violations of the rule are reversible errors. See, e.g., United States v. Barker, 735 F.2d 1280, 1282 (11th Cir.1984); United States v. Foster, 711 F.2d 871, 886 (9th Cir.1983); United States v. Kaminski, 692 F.2d 505, 518 (8th Cir.1982); United States v. Kopituk, 690 F.2d 1289, 1309 (11th Cir.1982).

There was no prejudice here even though the lapse of time between discharge and recall was much longer than in our hypothetical case. The alternate was called less than two hours after she had been discharged, and told not to discuss the case with anyone; and she testified the next morning that she had not discussed the case either before or after the call. As the jury when she rejoined it was only nine minutes into its deliberations (and started over, at the trial judge's direction, when she rejoined it), she didn't miss anything important and could deliberate on a par with the original jurors. The deliberations continued for several hours until the jury reached its verdict; it seems most unlikely that the nine-minute deliberation the evening before could have been critical to that verdict.

Even if Josefik and Soteras were prejudiced by the violation of Rule 24(c), they waived any challenge by consenting to the alternate's recall. Although United States v. Lamb, 529 F.2d 1153, 1156-57 (9th Cir.1975) (en banc), states in dictum that a violation of Rule 24(c) cannot be waived, we cannot understand why not. No other circuit has followed the dictum. See, e.g., United States v. Barker, supra, 735 F.2d at 1283; United States v. Davis, 608 F.2d 698, 699 (6th Cir.1979) (per curiam). Even panels of the Ninth Circuit have repeatedly rejected it. See United States v. Lopez, 581 F.2d 1338, 1342 (9th Cir.1978); United States v. Foster, supra, 711 F.2d at 886; United States v. Crisco, 725 F.2d 1228, 1233 (9th Cir.1984); United States v. Rubio, 727 F.2d 786, 799 n. 7 (9th Cir.1984) (per curiam). If the defendant would prefer to take his chances with the jury in its reconstituted form rather than undergo the expense and uncertainty of a new trial, why should he not be allowed to? Rule 23(b) allows the parties to stipulate to trial by a jury "of any number less than 12"; and of course the defendant can if he wants waive all right to a jury trial, see Rule 23(a). No doubt there are limits to waiver; if the parties stipulated to trial by 12 orangutans the defendant's conviction would be invalid notwithstanding his consent, because some minimum of civilized procedure is required by community feeling regardless of what the defendant wants or is willing to accept. But nothing in the procedure used in this case shocks our consciences.

Josefik complains that his right to effective assistance of counsel was denied both when his lawyer failed to object to the recall of the alternate and at the time of sentencing (and also when Josefik moved for, and was denied, bond pending appeal--but this issue is not before us, because Josefik has not asked us to review the district court's denial of bond pending appeal or to grant him such bond). The district judge made clear to the defendants and their lawyers that she would have declared a mistrial if the defendants, and perhaps if just one defendant, had asked her to do so in lieu of recalling the alternate; so we must consider whether the failure of Josefik's lawyer to make such a request was a manifestation of ineffective assistance of counsel, entitling Josefik to a new trial.

Josefik had failed to pay any part of his lawyer's...