Ryan v. United States

• Decision Date: 26 July 1951
• Docket Number: No. 10652,10653.,10652
• Citation: 191 F.2d 779,89 US App. DC 328
• Parties: RYAN v. UNITED STATES. DUNCAN v. UNITED STATES.
• Court: U.S. Court of Appeals — District of Columbia Circuit

89 US App. DC 328, 191 F.2d 779 (1951)

RYAN v. UNITED STATES.

DUNCAN v. UNITED STATES.

Nos. 10652, 10653.

United States Court of Appeals District of Columbia Circuit.

Argued June 13, 1951.

Decided July 26, 1951.

Mr. William E. Owen, Washington, D. C., with whom Mr. John M. Webster, Washington, D. C., was on the brief, for appellants.

Mr. Charles B. Murray, Asst. U. S. Atty., with whom Messrs. George Morris Fay, U. S. Atty., and Joseph M. Howard and Harold H. Bacon, Asst. U. S. Attys., were on the brief, for appellee.

Before CLARK, BAZELON and FAHY, Circuit Judges.

FAHY, Circuit Judge.

The appellants George A. Duncan and Edward Ryan, Jr., in a joint trial by jury were found guilty of robbery. They moved for a new trial because of conversations of the prosecuting attorney with several members of the jury during recesses in the trial. They asserted they were thus prejudiced and the jury was prevented from rendering an impartial verdict.¹ The trial judge held a hearing on the motions. Several jurors and other witnesses were examined and cross-examined. The evidence shows that such conversations did occur between the prosecuting attorney and some members of the jury. This raised a presumption of prejudice. We so conclude from the discussion in Mattox v. United States, 1892, 146 U.S. 140, 147-150, 13 S.Ct. 50, 53, 36 L.Ed. 97, where it is said:

"Private communications, possibly prejudicial, between jurors and third persons, or witnesses, or the officer in charge, are absolutely forbidden, and invalidate the verdict, at least unless their harmlessness is made to appear."

See, to similar effect, Sunderland v. United States, 8 Cir., 1927, 19 F.2d 202, 212, involving conversations between a juror and a witness; United States v. Sorcey, 7 Cir., 1945, 151 F.2d 899, where there were communications between the jury and the bailiff having them in charge; and Wheaton v. United States, 8 Cir., 1943, 133 F.2d 522, 527.

I. The above cases deal with communications concerning the jury's consideration of a case on trial before them, while in the case at bar, as it developed, the conversations initially assailed consisted of bantering exchanges regarding an unrelated case being handled by the prosecuting attorney in the Court of Appeals. But the reasons for the presumption of prejudice apply to such communications because they too bring the impartiality of the jurors into question. So we think the presumption itself applies notwithstanding the conversations did not relate to the case on trial. The presumption, however, is rebuttable. Mattox v. United States, supra, 146 U.S. at page 150, 13 S.Ct. 50. See, also, Higgins v. United States, 1946, 81 U.S.App.D. C. 371, 160 F.2d 222, certiorari denied, 1947, 331 U.S. 822, 67 S.Ct. 1304, 91 L.Ed. 1839; United States v. Compagna, 2 Cir., 1944, 146 F.2d 524, certiorari denied, 1945, 324 U.S. 867, 65 S.Ct. 912, 89 L.Ed. 1422, rehearing denied, 1945, 325 U.S. 892, 65 S.Ct. 1084, 89 L.Ed. 2004.

The trial court adopted the appropriate procedure of probing the matter by an extensive hearing. At this hearing jurors who participated in the interchanges testified they were not biased thereby. Appellants urge that it was error to receive this testimony. We disagree. The general rule which forbids jurors to testify "relating to their motives and reasons influencing their verdict" Hyde v. United States, 1910, 35 App.D.C. 451, 488, citing Mattox v. United States, supra, 146 U.S. at pages 140-148, 13 S.Ct. 50-52; Economon v. Barry-Pate Motor Co., 1925, 55 App.D. C. 143, 3 F.2d 84, 86; Orenberg v. Thecker, 1944, 79 U.S.App.D.C. 149, 143 F.2d 375, does not necessarily preclude a juror from disclaiming bias when its existence is asserted because of private conversations or communications. Higgins v. United States, supra. In the Mattox case, supra, 146 U.S. at page 148, 13 S.Ct. 50, Chief Justice Taney's opinion in United States v. Reid, 1851, 12 How. 361, 366, 13 L.Ed. 1023, to this effect is referred to with apparent approval. See, also, McDonald v. Pless, 1915, 238 U.S. 264, 269, 35 S.Ct. 783, 785, 59 L.Ed. 1300, where the general rule is stated to be "that the losing party cannot, in order to secure a new trial, use the testimony of jurors to impeach their verdict." In Clark v. United States, 1933, 289 U.S. 1, 18, 53 S.Ct. 465, 470, 77 L.Ed. 993, it is said this rule "is not without exceptions (Mattox v. United States, 146 U. S. 140, 148 13 S.Ct. 50, 36 L.Ed. 917; cf. Wigmore, Evidence, vol. 5, §§ 2353, 2354; Woodward v. Leavitt, 107 Mass. 453; Hyman v. Eames 8 Cir. 41 F. 676; Fuller v. Fletcher C.C., 44 F. 34, 39) * * *." Though a verdict, therefore, may or may not be impeached by testimony of a juror, depending upon the circumstances, it may in such a case as this be defended, and this may be done with the aid of a juror's own evidence that his impartiality had not been affected. The judge's conclusion to that effect, however, may not rest entirely upon the testimony of the jurors, United States v. Rakes, D.C.E.D.Va.1947, 74 F. Supp. 645, because that alone is too uncertain a basis for resolving the issue of prejudice.

If the use of affidavits be thought a doubtful method for getting at the facts United States v. Reid, supra; Wheaton v. United States, 8 Cir., 1943, 133 F.2d 522, 527, hearing witnesses on examination and cross-examination is free of such doubt. Wheaton v. United States, supra. Since, therefore, the proper procedure was followed and no error in its conduct appears the ultimate question for our decision on review is whether or not the conclusion of the trial judge as to the absence of bias should be disturbed. The standard to guide us, used by the Supreme Court in Mattox v. United States, supra, is whether there was an abuse of discretion in denial of a new trial. We note, also, that where a new trial is sought on the basis of private communications between counsel and jurors, abuse might be more readily found than ordinarily, for such conduct must be "closely scrutinized." United States v. Compagna, supra. It imperils the fairness of the trial and tends to undermine the confidence of the community and of the parties in the trial process. As we have seen, it raises a presumption of prejudice. A trial judge should not hesitate to grant a new trial where there is any significant doubt whether the presumption of prejudice has been overcome.

Judge Pine approached the problem with great care both in permitting the development of the evidence and in considering it in the context of the trial over which he had presided. He did not rely entirely upon the conclusions of the jurors as to their own impartiality. He pointed out that one of the attorneys who represented the accused at the trial witnessed the conduct complained of, that the other defense counsel was advised of it, and yet neither took action.² He said,

"Here the jurors involved testified, with the right of cross-examination accorded to the defendant which was zealously exercised, that they were not prejudiced by what the District Attorney did, and on the record, I find no basis, tangible or intangible, that they were prejudiced in the slightest degree by his conduct."

He properly condemned what occurred, but in the light of all the evidence we cannot say he abused his discretion in refusing a new trial because of it. The question of prejudice is one about which he was especially competent to render a sound opinion. No adequate basis appears for reversal of his position.

II. During the hearing on the motions there was disclosed, for the first time, a brief conversation between a juror and the prosecuting attorney about the case itself. This appears from the following portion of the examination of the juror:

"Q. Did you at any time during the trial have any...