Sanchez v. U.S.
| Decision Date | 19 February 1986 |
| Docket Number | 84-5655,Nos. 84-5632,84-5708 and 84-5734,84-5659,84-5686,84-5640,84-5706,84-5697,84-5672,84-5656,s. 84-5632 |
| Citation | 782 F.2d 928 |
| Parties | Antonio SANCHEZ, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee. Manuel SANCHEZ, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee. Sergio GALVAN, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee. Jose Monzon GARCIA, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee. Ralph Jesus VALDEZ, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee. Domingo GALVAN, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee. Francisco HERNANDEZ, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee. Richard Allen SHANK, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee. Nelson JAMARDO, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee. Angel CRUZ, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee. Nestor FERNANDEZ, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Nestor Castillo, Jr., Tampa, Fla., for Antonio Sanchez and Manuel sanchez.
Thomas H. Connors, Miami, Fla., for Sergio Galvan, Garcia, Valdez, Domingo Galvan, Hernandez, Shank, Cruz and Fernandez.
Carlton & Carlton, Philip Carlton, Jr., Miami, Fla., for Jamardo.
Stanley Marcus, U.S. Atty., Nancy Worthington, Thomas Sclatani, Linda Collins Hertz, James G. McAdams, III, William Norris, Asst. U.S. Attys., Miami, Fla., for U.S.
Appeals from the United States District Court for the Southern District of Florida.
Before JOHNSON, Circuit Judge, HENDERSON *, Senior Circuit Judge, and ALLGOOD **, Senior District Judge.
The appellants here were 11 of 29 people arrested on Big Pine Key, Florida in November, 1980, and charged with conspiracy and possession with intent to distribute approximately 31,000 pounds of marijuana. After a four week trial 22 of the 29 were found guilty on both counts of a two-count indictment. Those convictions were affirmed by this court. United States v. Blasco, 702 F.2d 1315 (11th Cir.1983) cert. denied, 464 U.S. 914, 104 S.Ct. 275, 78 L.Ed.2d 256 (1983). The defendants then petitioned the court for relief pursuant to 28 U.S.C. Sec. 2255. Those petitions were denied and this appeal followed.
The critical issue on appeal is whether the right to a unanimous jury verdict in a federal criminal case may be waived when the defendant himself initiates the request for such a waiver. The situation which brought about this request was very unusual. The facts leading to the arrest were set out in detail in Blasco and do not need to be repeated here. In this appeal we are concerned only with the events at trial. During the first couple of weeks of the trial there were numerous allegations of prosecutorial misconduct. At one point the trial judge intimated that the cumulative effect of the various discovery violations were dangerously close to requiring a mistrial. Because of the prosecutor's conduct, she was removed from the case and another Assistant United States Attorney took over the prosecution. From that point, the case was tried virtually error free.
After deliberating for almost two days, the jury informed the court that it was unable to reach a decision. The defense attorneys were understandably concerned for a number of reasons: they had carefully protected a record replete with errors; Judge King had indicated he would retry the case almost immediately in Miami; and they were aware that the second prosecutor would likely retry the case flawlessly. Judge King had also indicated that he would be willing to grant appeal bonds because there were significant appellate issues. Since the appellate process could take eighteen months to two years, the defendants would be free for that much longer. If the indictments were not dismissed, with that much time before a second trial they could hope that memories would fade or witnesses be unable to testify. The defense attorneys testified at the evidentiary hearing on the 2255 motion, that they really believed that they had a good chance of a successful appeal with the record as it stood then. If the case were retried immediately, with the real possibility of an error free trial, an appeal bond would surely be denied and the defendants would go to jail immediately.
As the defense attorneys testified at the evidentiary hearing, they weighed the various possibilities and told the court that the defendants might be willing to stipulate to less than a unanimous verdict. The court was hesitant to even consider such action, but agreed to give the attorneys time to talk to their clients. The attorneys were told that the Government would have to agree also.
The nine attorneys and 29 defendants met as a group in what has been described as a small crowded room. Several of the defendants spoke no English and most of the attorneys spoke little or no Spanish. In spite of these difficulties, the various options were explained to the defendants. Following this meeting the court was informed that all of the defendants were in agreement regarding the waiver of their right to a unanimous verdict. After some discussion with the United States Attorney, the prosecutor informed the court that the Government would not object to a verdict of 9-3, 10-2 or 11-1. At that time no one knew how the jury stood numerically. In open court the judge, through an interpreter, explained to the defendants in detail that they had the right to a unanimous jury verdict and questioned each one individually as to the voluntariness of his waiver. The jury then returned an eleven to one verdict in favor of conviction. The defendants were adjudicated guilty and sentenced, but allowed to remain free on bond pending the appeal.
The direct appellate process took 26 months. After the case was affirmed by the Eleventh Circuit, 16 of the defendants retained new attorneys and petitioned the court for relief pursuant to 28 U.S.C. Sec. 2255, contending that their right to a unanimous verdict is a constitutional right which cannot be waived, but if it can be, the waiver was not knowingly and intelligently given. They also contended that they were denied the effective assistance of counsel at both the trial and appellate levels. The district judge conducted an evidentiary hearing which lasted more than a week. During the hearing, testimony was taken from the defendants, several attorneys who had participated in the initial trial, the Assistant United States Attorney in charge of the case at trial and several independent witnesses. Following this extensive inquiry, Judge King entered an order and well reasoned memorandum opinion denying the petitions.
On appeal the defendants argue that the court erred in not finding that the Sixth Amendment to the Constitution and Fed.R. of Crim.Proc. 31 mandate that the jury verdict be unanimous, and prohibit the waiver of a non-unanimous verdict.
While the Constitution does not set out the specific requirements of a jury trial, 1 the Supreme Court has said that the phrase "trial by jury" embraces three elements:
(1) that the jury should consist of twelve men, neither more nor less; (2) that the trial should be in the presence and under the superintendence of a judge having power to instruct them as to the law and advise them in respect of the facts; and (3) that the verdict should be unanimous.
Patton v. United States, 281 U.S. 276 at 288, 50 S.Ct. 253 at 254, 74 L.Ed. 854 (1938).
In a line of cases following Patton, the Court has reaffirmed the determination that in federal criminal cases a defendant has the right to a unanimous verdict. See Johnson v. Louisiana, 406 U.S. 356, 92 S.Ct. 1620, 32 L.Ed.2d 152 (1972); Apodaca v. Oregon, 406 U.S. 404, 92 S.Ct. 1628, 32 L.Ed.2d 184 (1972); Andres v. United States, 333 U.S. 740, 68 S.Ct. 880, 92 L.Ed. 1055 (1948).
The question remains though--may a defendant waive that right? The Supreme Court has never directly addressed this question. However, in the case of the first two elements of a jury trial, the Court has held that they may be waived if the waiver is knowingly and intelligently made. In discussing the accused's right to waive a trial by jury the Patton court said, "[i]f it be assumed that the constitutional provisions for trial by jury should be construed as guaranteeing a right, there is no valid reason why their benefit should not be waivable." 281 U.S. at 281, 50 S.Ct. at 276. Applying the same reasoning here it would seem that under very limited circumstances, the right to a unanimous verdict is also waivable.
The petitioners argue that Fed.R.Crim.Proc. 31 also forbids the waiver of a unanimous verdict. Rule 31 is not as strongly worded as the petitioner would contend. 2 As the petitioners and other courts have noted, the preliminary draft of Rule 31 originally contained a provision for waiver of the unanimity requirement. That provision was so strongly criticized as not giving sufficient protection to a defendant, that it was deleted from the final version. See United States v. Pachay, 711 F.2d 488 (2d Cir.1983); United States v. Scalzitti, 578 F.2d 507 (3d Cir.1978); Hibdon v. United States, 204 F.2d 834 (6th Cir.1953). We do not agree with other circuits that have interpreted that action to mean that waiver is forbidden by the rule. Had that been the intention of the legislature it could certainly have included language to that effect. We would agree with Judge Meskill of the Second Circuit who wrote a specially concurring opinion in the Pachay case and reads Rule 31a to merely "restate a defendant's right to a unanimous verdict and protect that right from interference by the trial judge."
The principal concern of opponents of a waiver provision is the potential for coercion by judges and prosecutors who...
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