U.S. v. Gay

• Decision Date: 16 June 1992
• Docket Number: Nos. 90-10345,90-10366,s. 90-10345
• Citation: 967 F.2d 322
• Parties: 35 Fed. R. Evid. Serv. 1410 UNITED STATES of America, Plaintiff-Appellee, v. Benjamin F. GAY III, Roy M. Porter, Defendants-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 322

967 F.2d 322

35 Fed. R. Evid. Serv. 1410

UNITED STATES of America, Plaintiff-Appellee, v. Benjamin F. GAY III, Roy M. Porter, Defendants-Appellants.

Nos. 90-10345, 90-10366.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 16, 1992.

Decided June 16, 1992.

Michael Levine, Asst. Federal Public Defender, Portland, Or., for defendants-appellants.

R. Steven Lapham, Asst. U.S. Atty., Sacramento, Cal., for plaintiff-appellee.

Appeal from the United States District Court for the Eastern District of California.

Before HUG, TANG, and NELSON, Circuit Judges.

TANG, Circuit Judge:

Benjamin Gay III and Roy Porter were officers of National Toll Free Marketing ("NTFM"), a company engaged in direct marketing of products and services. In January 1988, the government charged Gay, Porter, and others with using NTFM to defraud investors through false and misleading representations. In April 1990, a jury convicted Gay of mail fraud, interstate transportation of fraudulently obtained property, and failure to file income tax returns. The same jury found Porter guilty of mail fraud and interstate transportation of fraudulently obtained property. Gay and Porter appeal, alleging various errors in the district court's conduct of the trial. We affirm. ¹

DISCUSSION

I. Dismissal of Juror

Gay and Porter argue that the district court abused its discretion when it replaced with an alternate a juror who failed to appear for trial. Juror Fry was absent when trial resumed on January 31, 1990, after a two month recess. Contacted at home, juror Fry explained that she thought the trial was to reconvene on Friday, February 2nd. Juror Fry lived approximately three hours away from the courthouse.

The district court polled the attorneys and the jurors about the possibility of delaying or rescheduling the start of the trial. The inquiry disclosed numerous hardships and barriers to altering the trial time. After a side bar conference, the court decided to excuse juror Fry:

The Court recalls that Miss Fry, juror number seven, previously mixed up a date when she was supposed to be here, and the Court is upset about the fact that she feels that she was supposed to be here on February [2nd]. There is no basis for this at all. We have never been in trial on Friday. No one has ever used the date February 2nd.

So, I am wondering about the clarity of her thinking and her ability to relate to our problems and to the issues in this case.

In any event, at the suggestion of the U.S. Attorney, and because of our terrible scheduling problems with the case, I am going to excuse Miss Fry, juror number seven, over the objection of defendant Gay, who would prefer she not be excused.

We review the district court's decision to replace a juror with an alternate for an abuse of discretion. United States v. Hohman, 825 F.2d 1363, 1364 (9th Cir.1987); United States v. Perez, 658 F.2d 654, 663 (9th Cir.1981).

Gay and Porter argue first that the substitution unconstitutionally deprived them of their " 'valued right to have [their] trial completed by a particular tribunal.' " United States v. Jorn, 400 U.S. 470, 480, 91 S.Ct. 547, 554, 27 L.Ed.2d 543 (1971) (quoting Wade v. Hunter, 336 U.S. 684, 689, 69 S.Ct. 834, 837, 93 L.Ed. 974 (1949)).

We reject this contention. While the Constitution recognizes a defendant's right to be tried by the jury originally selected, the Supreme Court has cautioned that this is a limited right that must, in some instances, "be subordinated to the public's interest in fair trials designed to end in just judgments." Wade, 336 U.S. at 689, 69 S.Ct. at 837; see also Jorn, 400 U.S. at 480, 91 S.Ct. at 554 (same). In Jorn, the Supreme Court specifically cited the trial court's need to manage juries, witnesses, parties, and attorneys, and to set schedules as factors that can outweigh a defendant's right to a particular jury. 400 U.S. at 479-80, 91 S.Ct. at 554-55.

In this case, the decision to replace juror Fry reflected the district court's legitimate concern with supervising the progress of the trial and ensuring that a verdict issued in a manner consonant with the defendants' rights to due process and to a speedy adjudication of the charges against them. Juror Fry was stricken not because of a single isolated incident of tardiness. Rather, the court noted that the failure to appear was only the most recent manifestation of juror Fry's confusion. The scheduling and management tasks confronting the district court in this lengthy criminal trial involving six defendants were monumental. A juror with a proclivity for tardiness or confusing trial dates could wreak havoc on the trial schedule and seriously impede both the prosecution's and defense's presentations of their cases. ²

Gay and Porter also argue that the switch in jurors transgressed Fed.R.Crim.P. 24(c). Rule 24(c) instructs that "[a]lternate 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." Gay and Porter argue that the district court abused its discretion in concluding that Fry was "unable or disqualified to perform" as a juror.

We affirm the district court's exercise of discretion. The district court has the responsibility "affirmatively to detect potentially contaminating influences on juror deliberations and implement appropriate measures to remedy juror misconduct." Perez, 658 F.2d at 663. Due deference must be accorded the trial judge's firsthand exposure to the jurors and to the impact of their conduct on the trial. See id. In complex cases like the present, involving numerous parties, voluminous evidence, and lengthy trial proceedings, the district court must be given an especially wide berth.

Other courts have sustained the replacement of jurors under similar circumstances. In United States v. Rodriguez, 573 F.2d 330 (5th Cir.1978), the Fifth Circuit affirmed the substitution of an alternate for a juror who had "called the clerk to say that he had chosen to go to work that day rather than to come to court." Id. at 332. The Fifth Circuit observed A juror's absence is an observable fact. His absence manifestly interferes with the prompt trial of a case. Hence when a juror is absent from court for a period sufficiently long to interfere with the reasonable dispatch of business there may be a sound basis for his dismissal.

Id. (quotation omitted).

In United States v. Peters, 617 F.2d 503 (7th Cir.1980), the Seventh Circuit affirmed a juror substitution where the juror was ten minutes late for court. The court observed that the trial judge acted out of a concern for maintaining the trial schedule and to avoid an additional day of courtroom proceedings. Id. at 505. The Seventh Circuit found no abuse of discretion, noting that "it is difficult to imagine a more complete disqualification than a failure to appear." Id.; see also United States v. Domenech, 476 F.2d 1229, 1232 (2d Cir.) (replacement of juror who was ten minutes late not an abuse of discretion given court's scheduling concerns and possible desire to avert a night sitting), cert. denied, 414 U.S. 840, 94 S.Ct. 95, 38 L.Ed.2d 77 (1973), cited in United States v. Lustig, 555 F.2d 737, 745 (9th Cir.), cert. denied, 434 U.S. 926, 98 S.Ct. 408, 54 L.Ed.2d 285 (1977).

Whether a juror's absence is sufficiently disruptive to warrant removal is thus a function of the managerial complexity of the case, the flexibility of the court's and parties' schedules, and the availability of witnesses and other evidence. In this case, each of those considerations weighed in favor of replacing juror Fry. The district court also took into account the juror's prior confusion about dates. Considering all the circumstances, the decision to strike juror Fry did not amount to an abuse of discretion. See United States v. Echavarria-Olarte, 904 F.2d 1391, 1395 (9th Cir.1990) (decision to substitute juror "is, indeed, a close question, but it is the kind of question peculiarly suited to the exercise of discretion by the trial judge").

II. Failure to Voir Dire after Recess

Gay and Porter contend that the district court committed reversible error by failing to re-voir dire the jury following a sixty-one day recess in the trial. The district court, with the agreement of the parties, interrupted Gay's and Porter's criminal trial at the end of November 1989, to preside over another trial. The Gay and Porter trial did not reconvene until January 31, 1990. Gay and Porter argue that the district court had an independent obligation to voir dire the jury when the trial recommenced to ensure that intervening events had not disqualified any of the jurors from service.

Because Gay and Porter did not request supplemental voir dire in the district court, we review for plain error. See United States v. Hernandez, 876 F.2d 774, 777 (9th Cir.), cert. denied, 493 U.S. 863, 110 S.Ct. 179, 107 L.Ed.2d 135 (1989). The question therefore is not whether supplemental voir dire would have been advisable or the preferred course of conduct, but rather whether the failure to re-voir dire constituted a "highly prejudicial error affecting substantial rights." United States v. Bustillo, 789 F.2d 1364, 1367 (9th Cir.1986) (quotation omitted).

This circuit has yet to address the district court's obligation to conduct voir dire following a lengthy delay in a criminal trial. Both the Fifth and the Tenth Circuits have held that a district court's failure to conduct supplemental voir dire following a significant delay between the selection of the jury and the commencement of the trial constitutes reversible error. United States v. Franklin, 700 F.2d 1241, 1242 (10th Cir.1983); United States v. Price, 573 F.2d 356, 363-64 (5th Cir.1978). In both Franklin and Price, jurors had served on different juries during the time between selection for the defendant's case and the actual start of the...