U.S. v. Ailsworth, No. 97-3002

• Court: U.S. Court of Appeals — Tenth Circuit
• Writing for the Court: Before BRISCOE, McKAY, and LUCERO; McKAY
• Citation: 138 F.3d 843
• Decision Date: 10 March 1998
• Docket Number: No. 97-3002
• Parties: 98 CJ C.A.R. 1222 UNITED STATES of America, Plaintiff-Appellee, v. Jessie AILSWORTH, Jr., Defendant-Appellant.

Page 843

138 F.3d 843 98 CJ C.A.R. 1222 UNITED STATES of America, Plaintiff-Appellee,
v.
Jessie AILSWORTH, Jr., Defendant-Appellant. No. 97-3002. United States Court of Appeals,
Tenth Circuit. March 10, 1998.

Page 845

Joseph D. Johnson (Melanie S. Morgan with him on the brief), Law Office of Joseph D. Johnson, Chtd., Topeka, Kansas, for Defendant-Appellant.

Gregory G. Hough, Assistant United States Attorney (Jackie N. Williams, United States Attorney, with him on the brief), United States Attorney's Office, Topeka, Kansas, for Plaintiff-Appellee.

Before BRISCOE, McKAY, and LUCERO, Circuit Judges.

McKAY, Circuit Judge.

Defendant Mr. Ailsworth was indicted in a second superseding indictment on forty-two counts relating to the possession and distribution of cocaine base or crack cocaine, the possession of food stamps, and the use of a firearm. Prior to trial, five counts pertaining to Defendant were dismissed and Defendant's six codefendants entered guilty pleas. A jury found Defendant guilty on seven counts, Counts 1, 6, 7, 9, 26, 27, and 28. The jury failed to reach a verdict for Counts 3 and 12, and acquitted Defendant on all other counts. Defendant appeals his conviction on Count 1.

The indictment on Count 1 alleged that Defendant conspired with six coconspirators "to possess, with the intent to distribute or dispense, 50 grams or more of a mixture or substance which contained cocaine base or crack cocaine, to wit: approximately 1947.58 grams of cocaine base or crack cocaine." R., Vol. I, Doc. 287 at 1-2. On the verdict form, the jury checked the "guilty" box for Count 1 and added a notation stating that Defendant was guilty of Count 1 "[a]s related to Counts # 26, 27 and 28 on 11/19/93 only." R., Vol. II, Doc. 720 at 1. Counts 26, 27, and 28 consist of the following substantive offenses, all occurring on November 19, 1993: Count 26 alleged that Defendant knowingly and intentionally used a communication facility in causing or facilitating the possession, with intent to distribute or dispense, a mixture or substance which contained cocaine base or crack cocaine, see R., Vol. I, Doc. 287 at 19; Count 27 alleged that Defendant possessed with intent to distribute or dispense "approximately 33.81 grams of cocaine base or crack cocaine," id. at 19-20; and Count 28 alleged that Defendant acquired and possessed food stamp coupons "in a manner not authorized by the United States Department

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of Agriculture's Food Stamp Program," id. at 20. Defendant contends that the district court erred in denying his motion for Judgment of Acquittal. He rests his argument on several points: The court should have inquired about the notation on the jury verdict form because the verdict was ambiguous; the evidence was insufficient to support Defendant's conviction on Count 1; there was a fatal variance between the indictment, which alleged a single conspiracy, and the government's proof at trial, which Defendant characterizes as attempting to establish the existence of multiple narrower conspiracies; and the court's use of an Allen instruction coerced the jury's verdict. We address each argument in turn. We review the denial of a motion for judgment of acquittal de novo, viewing the evidence in the light most favorable to the government to determine if the jury could have found Defendant guilty of the essential elements of the crime beyond a reasonable doubt. See United States v. Williams, 923 F.2d 1397 (10th Cir.1990), cert. denied, 500 U.S. 925, 111 S.Ct. 2033, 114 L.Ed.2d 118 (1991). We review the denial of a motion for new trial ¹ under an abuse of discretion standard. See United States v. Sinclair, 109 F.3d 1527, 1531 (10th Cir.1997). When the court's decision on a new trial motion turns on an issue of law, we review that determination de novo. Weese v. Schukman, 98 F.3d 542, 549 (10th Cir.1996).

I.

Defendant argues that the notation on the jury verdict form reduced the verdict to an unquestionably ambiguous decision. He contends that because the verdict was qualified by the jury's notation, the district court erred in failing to inquire into the meaning of that notation. The government asserts that the notation is surplusage and, although the jury's notation may have narrowed the scope of the conspiracy, the conspiracy on which Defendant was convicted fell within the parameters of the conspiracy charged in Count 1.

In a federal criminal trial, a verdict is valid if "it ... 'was certain, unqualified and unambiguous considering the circumstances of the receipt of the verdict and poll of the jurors relative to their verdict.' " United States v. Morris, 612 F.2d 483, 490 (10th Cir.1979) (quoting Cook v. United States, 379 F.2d 966, 968 (5th Cir.1967)); see United States v. Lee, 532 F.2d 911, 913 (3rd Cir.), cert. denied, 429 U.S. 838, 97 S.Ct. 109, 50 L.Ed.2d 105 (1976); see also Fed.R.Crim.P. 31(a), (d). Generally, unnecessary or irrelevant statements in a verdict form may be disregarded as surplusage. See Statler v. United States, 157 U.S. 277, 279-80, 15 S.Ct. 616, 39 L.Ed. 700 (1895); Jones v. Jones, 938 F.2d 838, 845 (8th Cir.1991); Lee, 532 F.2d at 914; Cook, 379 F.2d at 970. ² An exception to this general rule arises where the circumstances of the jury's recommendation cast doubt upon the unqualified nature of the verdict. See United States v. McCoy, 429 F.2d 739, 742 (D.C.Cir.1970); Cook, 379 F.2d at 970. We have held that "upon the appearance of any uncertainty or contingency in a jury's verdict, it is the duty of the trial judge to resolve that doubt." Morris, 612 F.2d at 489. The circumstances of the jury's verdict or poll, a notation on the verdict form, or what preceded the verdict at trial or during deliberations may highlight the uncertainty or ambiguity in a verdict. See id. at 491; McCoy, 429 F.2d at 741-42; Cook, 379 F.2d at 970. If doubt is cast upon the unqualified nature of the verdict, the court must take the remedial action necessary "to remove the cloud and protect [Defendant's] right[ ] to [a] valid verdict." Morris, 612 F.2d at 491; see United States v. Hernandez-Garcia, 901 F.2d 875, 877-78 (10th Cir.), cert. denied, 498 U.S. 844, 111 S.Ct. 125, 112 L.Ed.2d 94 (1990); Cook, 379 F.2d at 970-71 (holding

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that trial court erred by refusing to re-poll jury when verdict was uncertain).

In this case, the manner in which the jury returned its verdict causes us to take a closer look at the nature of the verdict. After deliberating for four days and asking questions to the court regarding Count 1, the jury returned a partial verdict on August 13, 1996. It found Defendant guilty on four counts, Counts 6, 7, 9, and 28, and not guilty on twenty-two counts. Although the jury indicated that further deliberations would not be useful in reaching a unanimous decision, and over Defendant's objection, the district court gave the jury an instruction pursuant to Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896). The court also allowed the jury to have a copy of the Allen instruction with them during their continued deliberations. On August 15, 1996, the jury found Defendant guilty on Counts 1, 26, and 27 and not guilty on six of the remaining eight counts. ³ The court then polled the jury by reading the notation back to them as part of Count 1. See R., Vol. XXII at 1645-48.

Because the court included the notation in its poll of the jury, the court did not ascertain the precise meaning of the notation. Consequently, we also are unable to know definitively what the jurors meant by the notation. However, we can ascertain the reasonable meaning of the jury's notation from its face. The notation is specific and refers in detail to additional counts on which Defendant was convicted. The notation is not mere surplusage, and it is unreasonable to classify it as simply a plea for leniency. One reasonable interpretation of the notation is that the jury believed only that Defendant conspired with Mr. Terence Douglas to commit the underlying substantive offenses, Counts 26, 27, and 28, on November 19, 1993. We also can reasonably infer the inverse, that the jury did not believe Defendant conspired with the other five alleged coconspirators throughout an entire year to commit the multiple offenses charged in the indictment. The notation could reflect a belief that Defendant conspired with one or more alleged coconspirators prior to November 19, 1993, to commit the offense charged on that date. Another reasonable interpretation might be that Defendant could not be the leader of the year-long conspiracy alleged in the indictment because he only participated in a narrower conspiracy on a particular date. These interpretations are supported not only by the words of the notation itself but also by the questions the jury asked regarding the conspiracy charge and the court's answers to those questions. The jurors essentially wanted to know if Defendant could be guilty of the conspiracy in Count 1 if he participated in a subset of transactions on a particular date with one other person. See R., Vol. III, Doc. 726, Jury Exhs. 7-20. The court answered affirmatively.

Although there are several different ways to state what the notation could reasonably mean, the variations in language or phraseology do not change the core meaning of the jury's notation. The only reasonable interpretation of the jury's notation is that the jury was not convinced beyond a reasonable doubt that Defendant participated in the single broad conspiracy alleged in the indictment. ⁴ When read in light of the jury questions to the court, the court's answers and instructions, and our reasonable interpretation of the notation, we conclude that the jury's notation qualified its verdict. The district court should have made some inquiry into the meaning of the notation to resolve this qualification. Because the district court did not inquire, we must determine whether that failure constituted reversible error.

The...