U.S. v. Ullah

• Decision Date: 30 September 1992
• Docket Number: Nos. 90-10370,GOSHO-KI,D,90-10390,s. 90-10370
• Citation: 976 F.2d 509
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Sakhawat ULLAH, Jr., Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Mary Katherineefendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 509

976 F.2d 509

UNITED STATES of America, Plaintiff-Appellee, v. Sakhawat ULLAH, Jr., Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Mary Katherine GOSHO-KIM, Defendant-Appellant.

Nos. 90-10370, 90-10390.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Feb. 10, 1992.

Decided Sept. 30, 1992.

William H. Callaway, Neis & Callaway, Tucson, Ariz., for defendant-appellant Sakhawat Ullah, Jr.

Peter Schey, Los Angeles, Cal., for defendant-appellant Mary Katherine Gosho-Kim.

Robert M. Miskell, Asst. U.S. Atty., Tucson, Ariz., for plaintiff-appellee.

Appeals from the United States District Court for the District of Arizona.

Before: SCHROEDER, REINHARDT, and KLEINFELD, Circuit Judges.

REINHARDT, Circuit Judge:

Sakhawat Ullah and Mary Katherine Gosho-Kim appeal their convictions on counts of transporting illegal aliens within the United States in violation of 8 U.S.C. § 1324(a)(1)(B) and 18 U.S.C. § 2. Among other things, Ullah and Gosho-Kim contend that the district court improperly empaneled a fourteen-person jury and permitted it to deliver a nonunanimous guilty verdict. They are correct. ¹

During jury selection, the district court chose fourteen people--twelve jurors and two alternates--to serve as Ullah and Gosho-Kim's jury. In the course of the two-week trial, the attention of one of the alternate jurors began to flag, and she asked to be excused. The district court believed, perhaps correctly, that the problem with the alternate juror was caused by her realization that she would be unable to deliberate with the regular jurors and otherwise participate in the outcome of the trial. See United States v. Olano, 934 F.2d 1425, 1437-39 (9th Cir.1991), cert. granted, --- U.S. ----, 112 S.Ct. 1935, 118 L.Ed.2d 542 (1992) (holding that alternate jurors cannot be present during or participate in jury deliberations).

The district court, sua sponte, proposed to remedy the alternate juror problem by permitting the two alternates to deliberate and vote with the regular jurors--in effect, creating a fourteen-person jury. The district court also suggested that the reconstituted fourteen-person jury be permitted to deliver a nonunanimous verdict as long as twelve of the fourteen jurors agreed on conviction or acquittal. The transcript reveals the following dialogue between the district court, the prosecutor, and the attorneys for Ullah and Gosho-Kim:

The Court: I have discussed this earlier with you, about all the alternates. I cannot make you stipulate to this, but if [an alternate juror] asks the question, that she legitimately should ask: "Am I going to have to listen to this, and pay attention, and then go home without participating?"

....

My question to you is--and what I would recommend to you, in any case, is that we allow all of the jurors to deliberate, and--the way I would do it is to let them deliberate and to vote and the minute there are twelve votes for conviction, or acquittal, the jury can return a verdict. So one of those votes might be the alternate.

....

Do you object to that?

Mr. Albert [AUSA]: I will do whatever the defense wants to do on this one.

The Court: Okay. Mr. Callaway [attorney for Ullah]?

Mr. Minker [attorney for Gosho-Kim]:

Excuse me. I have no objection to the one juror being excused. We can take care of that.

The Court: Okay. The next problem--

Mr. Minker: I don't know about [Mr. Callaway].

Mr. Callaway: I have no objection.

Mr. Minker: So now we're down to 13.

The Court: We're down to 13.

Mr. Minker: Can we consult with our client, Judge?

The Court: For a split second.

....

Mr. Minker: I don't have any problem with that, Judge. I've talked it over with my client--

The Court: Okay.

Mr. Callaway: We have no objection.

The Court: All right.

Mr. Minker: I think the record ought to show that we have consulted with our clients, and our clients have no objection.

The Court: All right.

....

Mr. Albert: I don't think I want to have 14 jurors arguing on this case, Judge.

The Court: Why?

Mr. Albert: I don't know.

The Court: Well, then, you stand up and tell the two that they're excused.

Mr. Albert: I'll go along if the defense wants to go along with this one.

The Court: All right. How about 14?

....

It's whatever you all want to do.

Mr. Callaway: That's fine. I don't have any problem with it.

Mr. Minker: I don't have any problem.

The Court: All right. Get the jury.

After the jury instructions were delivered, all fourteen jurors (the twelve regular jurors and the two alternates) retired to deliberate and determine Ullah and Gosho-Kim's fate. Several hours later, the jury returned with a verdict. Ten of the regular jurors and both of the alternate jurors voted to convict both defendants on six counts of transporting illegal aliens in the United States. Two of the regular jurors voted to acquit Ullah and Gosho-Kim on these charges. The vote thus was either 12-2 or 10-2 in favor of conviction, depending upon whether one includes the votes of the alternate jurors in the tally. Based upon that vote, the district court entered judgments of conviction against Ullah and Gosho-Kim on the six counts. Both defendants timely appealed.

The district court's failure to excuse the alternate jurors prior to the beginning of deliberations and its concomitant decision to include them in that process may run afoul of a number of rules governing the conduct of federal criminal proceedings. First, we could conclude that the district court's action permitting the alternate jurors to participate in the jury's deliberations violated Fed.R.Crim.P. 24(c), which states that "[a]n alternate juror who does not replace a regular juror shall be discharged after the jury retires to consider its verdict." See Olano, 934 F.2d at 1436-39. Even if Ullah and Gosho-Kim were allowed to waive that prohibition, ² any such waiver must be made personally by the defendant (not his counsel), see id. at 1437. Ullah and Gosho-Kim made no such explicit waiver here. ³

The district court's decision to create, in effect, a fourteen-person jury also may have violated Fed.R.Crim.P. 23(b), which states that "[j]uries shall be of 12" persons and which permits waivers of that requirement solely if "in writing" and, even then, permits the creation of juries only with "less than 12" members. Fed.R.Crim.P. 23(b) (emphases added). The plain language of that rule is mandatory in nature and does not appear to allow even the consensual creation of a fourteen-person jury: that plain language generally is determinative. See Price v. Commissioner, 887 F.2d 959, 963 (9th Cir.1989); see also United States v. Lopez, 581 F.2d 1338, 1340-41 (9th Cir.1978) (noting that the drafters of the Federal Rules were well-aware of the possibility of waiver and chose to provide for it explicitly when they felt that it should be permitted). But see United States v. Reed, 790 F.2d 208, 210-11 (2nd Cir.), cert. denied, 479 U.S. 954, 107 S.Ct. 445, 93 L.Ed.2d 393 (1986) (upholding conviction by thirteen-person jury agreed to by defendant as harmless error); United States v. Stewart, 700 F.2d 702, 704-05 (11th Cir.1983) (permitting defendant to stipulate to a thirteen-person jury).

We need not base our holding on a determination that the district court's actions violated Rule 24(c) or Rule 23(b), however, because we conclude that the decision to permit a nonunanimous verdict by the jury (regardless of how many members it contains) indisputably constitutes reversible error. Fed.R.Crim.P. 31(a) explicitly requires that "[t]he verdict shall be unanimous": that requirement cannot be waived. See United States v. Lopez, 581 F.2d 1338, 1340-42 (9th Cir.1978). We reversed the conviction in Lopez despite the fact that the defendant thrice stated that she wished to accept the nonunanimous verdict of the jury, holding that the language, legislative history, and purposes of Rule 31 demonstrate that its requirements cannot be waived. See id. Then-Judge Kennedy, writing for the court in Lopez, proclaimed that "the requirement of a unanimous verdict is firmly established in the federal system". Id. at 1341. Our decision is in accord with those of almost every other circuit that has addressed that issue. See, e.g., United States v. Pachay, 711 F.2d 488, 490-93 (2nd Cir.1983) (holding that the requirement of Rule 31(a) that the jury verdict be unanimous cannot be waived after extensively reviewing the text, history, and purpose of that rule and noting that "[l]eading commentators are in agreement"); United States v. Smedes, 760 F.2d 109, 113 (6th Cir.1985) (holding that "the right to a unanimous verdict is so important that it is one of the few rights of a criminal defendant that cannot, under any circumstances, be waived" and quoting at length from Lopez ); United States v. Morris, 612 F.2d 483, 488-89 (10th Cir.1979) (noting that the requirement under Rule 31(a) that the verdict be unanimous cannot be waived); United States v. Scalzitti, 578 F.2d 507, 511-12 (3rd Cir.1978) (holding, based upon the text, history, and purpose of the rule, that the "unequivocal command" of Rule 31(a) cannot be waived); see also United States v. Essex, 734 F.2d 832, 841 (D.C.Cir.1984) (quoting approvingly from Lopez ); see generally Wayne F. Foster, Annotation, Validity and Efficacy of Accused's Waiver of Unanimous Verdict, 97 A.L.R.3d 1253 (1980 & 1991 Supp.). ⁴

Despite the overwhelming and irrefutable authority to the contrary, the government urges us to adopt the singular view of the Eleventh Circuit, which permits the unanimity requirement of Rule 31(a) to be waived by a defendant "in exceptional circumstances". See Sanchez v. United States, 782 F.2d 928, 932-34 (11th Cir.1986). We reject that invitation. The text, history, and purposes of Rule 31(a) clearly demonstrate that a criminal defendant cannot waive the requirement of jury unanimity under any circumstances. ⁵ The requirement that a jury in a federal prosecution determine, without dissent, that...