U.S. v. McClendon

• Decision Date: 10 February 1986
• Docket Number: 84-1304,Nos. 84-1278,s. 84-1278
• Citation: 782 F.2d 785
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Rupert Earl McCLENDON, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Bernest COLLINS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 785

782 F.2d 785

UNITED STATES of America, Plaintiff-Appellee, v. Rupert Earl McCLENDON, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Bernest COLLINS, Defendant-Appellant.

Nos. 84-1278, 84-1304.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Oct. 11, 1985.

Decided Feb. 10, 1986.

Sanford Svetcov, Asst. U.S. Atty., San Francisco, Cal., for plaintiff-appellee.

Barbara A. Brenner, Remcho, Johansen & Purcell, Joyce B. Ladar, Jerrold M. Ladar, San Francisco, Cal., for defendant-appellant.

Appeals from the United States District Court for the Northern District of California.

Before DUNIWAY, TANG, and PREGERSON, Circuit Judges.

DUNIWAY, Circuit Judge:

McClendon and Collins appeal from their convictions of conspiracy and multiple acts of armed bank robbery. We affirm.

FACTS

On March 2, 1984, appellants were indicted on multiple counts of armed bank robbery and one count of conspiracy to commit bank robbery. Eleven of the thirteen counts concerned a string of bank robberies committed in the fall of 1983. One of the remaining counts, Count Two, charged McClendon and a third defendant, Higgins, with assisting in an unrelated bank robbery in July of that same year. Higgins was not indicted on any other charge.

On the first day of trial, appointed counsel for McClendon told the court that his client wanted him to withdraw and had retained a lawyer to replace him. Counsel, who had been working on the case for more than two months, said that there were "irreconcilable" differences between him and his client. After some discussion, McClendon volunteered that counsel stuttered and "wasn't that thorough" in his investigation of the case. The judge responded that he had known counsel for nine years and that he did not stutter. He then refused to allow the substitution unless McClendon produced his new attorney for the scheduled start of trial that afternoon and agreed to waive any future claim of ineffective assistance of counsel. When McClendon's new attorney did not appear that afternoon, the court denied the motion. McClendon did not renew his motion to substitute and his retained counsel did not appear at any point during the trial.

On the same day, the court granted each side the minimum number of peremptory challenges required by the Federal Rules of Criminal Procedure plus a proportionate number of additional challenges. After the first jury panel was discharged because of problems not relevant here, the court sua sponte reversed its decision to award additional challenges and limited the parties to the minimum of 10 to the defense and six to the government, provided for in Fed.R.Crim.P. 24(b). The court reasoned that it was an unnecessary exercise of judicial discretion to extend the number and that adherence to the standard would favor the "expeditious and efficient prosecution" of the case. Defendants unsuccessfully objected, claiming that significant differences in the codefendant's cases required the grant of additional challenges. Defendants later renewed their argument when they could not agree on how to exercise their last two peremptory challenges. Again, their motion for additional challenges was denied.

Through out voir dire, many jurors were examined individually in chambers concerning their claims of hardship. Counsel and the court reporter were present, but defendants were not. Defendants did not object to their exclusion.

Near the end of voir dire, the government concluded examination of juror Kemp by passing its sixth and final peremptory challenge. Under both the local rules and the court's statement at the time, the pass was the equivalent of exercising the challenge. The government thus exhausted its allotment of peremptory challenges.

The defense then asked to reopen voir dire of juror Kemp. The government and court agreed, after defendants stipulated that the government could reconsider its waiver of challenge against Kemp. The court concluded the agreement by stating that the proceedings were back where they had been before the government passed its last peremptory.

Before juror Kemp could be reexamined, the court received a note stating that a previously selected juror had been overheard making biased statements to some of the other jurors. After questioning, that juror was excused by stipulation. Juror Brown took the discharged juror's place in the box and both she and juror Kemp were examined. At the close of the examination, the government sought to exercise its peremptory challenge against juror Brown. The defense objected, arguing that the stipulation to restore the government's final challenge only applied to its use against juror Kemp. The court allowed the government to excuse Brown.

After a six-week trial, appellants were convicted of conspiracy and multiple instances of armed bank robbery. McClendon was found guilty on Count Two while his alleged accomplice, codefendant Higgins, was acquitted.

I. REFUSAL TO GRANT ADDITIONAL PEREMPTORY CHALLENGES.

Both appellants claim that the court abused its discretion in (1) reversing its initial decision to grant defendants additional peremptory challenges, and (2) refusing to grant defendants additional challenges when defense counsel could not agree on the joint exercise of their final two challenges. Citing the rule that any impairment of the right to peremptory challenges mandates reversal without a showing of prejudice, Swain v. Alabama, 1965, 380 U.S. 202, 219, 85 S.Ct. 824, 835, 13 L.Ed.2d 759; United States v. Brooklier, 9 Cir., 1982, 685 F.2d 1208, 1223, appellants conclude that reversal is automatically required.

However, there is no "right" to additional peremptory challenges in multiple defendant cases. The award of additional challenges is permissive, not mandatory, Fed.R.Crim.P. 24(b), and rests in the trial court's sound discretion. United States v. Hueftle, 10 Cir., 1982, 687 F.2d 1305, 1309; United States v. Haldeman, D.C.Cir., 1976, 559 F.2d 31, 79; see United States v. Turner, 9 Cir., 1977, 558 F.2d 535, 538. Cf. United States v. Hooper, 5 Cir., 1978, 575 F.2d 496, 498.

At oral argument appellants agreed that the district court could properly have denied their initial motion for additional challenges. Absent a showing of prejudice to defendants, it follows that it was also within the court's discretion to review and reverse its decision. See United States v. Tucker, 5 Cir., 1976, 526 F.2d 279, 283. It was proper for the court to consider the need for expeditious proceedings in so doing. United States v. Johnson, 6 Cir., 1978, 584 F.2d 148, 155. The district court did not abuse its discretion in denying appellants additional peremptory challenges.

Appellants also err in their claim that the deadlock over the use of their final challenges required the grant of additional challenges. Disagreement between codefendants on the exercise of joint peremptory challenges does not mandate a grant of additional challenges unless defendants demonstrate that the jury ultimately selected is not impartial or representative of the community. Hueftle, 687 F.2d at 1309; see Stilson v. United States, 1919, 250 U.S. 583, 586, 40 S.Ct. 28, 29, 63 L.Ed. 1154. Cf. Hooper, 575 F.2d at 498. Appellants have not made the necessary showing.

II. RESTORATION OF GOVERNMENT'S PASSED PEREMPTORY CHALLENGE.

McClendon and Collins also claim that the district court abused its discretion when it allowed the government to exercise its restored peremptory challenge against juror Brown. They correctly note that Local Rule 326-1 requires that a passed challenge be treated as waived and argue that their stipulation to the contrary was limited to the challenge's use against juror Kemp. Because the passed challenge represented the government's last peremptory, appellants contend that the court's action effectively granted the government an additional peremptory challenge without defendant's consent, and thus violated Federal Rule of Criminal Procedure 24(b).

It is true that the district court may not grant the government more than the minimum number of peremptory challenges without the consent of the defendants. Fed.R.Crim.P. 24(b); see, e.g., United States v. Tucker, 526 F.2d at 283. In this case, however, the court did not grant the government an extra challenge. Instead, it restored a passed challenge, and did so with appellants' consent. Although discussion of the stipulation to restore the passed challenge centered on juror Kemp's reexamination, the stipulation was not limited to that reexamination. In fact, in summing up the discussion, the trial judge stated that the proceedings had returned to the point just before the government was asked to exercise its last peremptory challenge. If a new juror had unexpectedly been brought into the box at this point originally, the government could certainly have used its last challenge against the new juror instead of juror Kemp. The fact that the unanticipated discharge of a previously examined juror occurred just before the government's restored opportunity to exercise the same challenge does not require a different result.

III. EXCLUSION FROM IN-CHAMBERS VOIR DIRE.

McClendon and Collins argue that their exclusion from in-chambers voir dire of prospective jurors violated Rule 43(a) of the Federal Rules of Criminal Procedure. The Rule provides:

The defendant shall be present at the arraignment, at the time of the plea, at every stage of the trial including the impaneling of the jury and the return of the verdict, and at the imposition of sentence, except as otherwise provided by this rule.

Appellants did not object to their exclusion from in-chambers conferences at any time in the proceeding.

In United States v. Gagnon, 1985, --- U.S. ----, 105 S.Ct. 1482, 84 L.Ed.2d 486, the Supreme Court considered just this situation. Assuming for the purposes of the case that an in camera conference with a juror was a "stage of...