U.S. v. Bradshaw, 84-2504

• Decision Date: 27 March 1986
• Docket Number: No. 84-2504,84-2504
• Citation: 787 F.2d 1385
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Lloyd Ray BRADSHAW, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1385

787 F.2d 1385

UNITED STATES of America, Plaintiff-Appellee, v. Lloyd Ray BRADSHAW, Defendant-Appellant.

No. 84-2504.

United States Court of Appeals Tenth Circuit.

March 27, 1986.

Kenneth R. Brown, Salt Lake City, Utah, for defendant-appellant.

Richard N.W. Lambert, Asst. U.S. Atty. (Brent D. Ward, U.S. Atty., with him on brief), Dist. of Utah, Salt Lake City, Utah, for plaintiff-appellee.

Before McKAY, SETH and LOGAN, Circuit Judges.

McKAY, Circuit Judge.

Lloyd Ray Bradshaw appeals his conviction of three counts of interstate transportation of stolen property, in violation of 18 U.S.C. Sec. 2314 (1982), and one count of conspiracy, in violation of 18 U.S.C. Sec. 371 (1982).

Appellant first contends that the trial court erred by not conducting a more extensive inquiry into allegations of juror bias. The misadventure that gave rise to this issue began when defense counsel, armed with the names of the government's witnesses, failed to request any voir dire questions concerning juror acquaintance with those witnesses. On the second day of trial, one of the government's witnesses approached the prosecutor and informed him that he and another government witness were acquainted with juror number eight. The prosecutor promptly relayed this information to defense counsel who, in turn, informed the court:

[DEFENSE COUNSEL]: It's come to my attention that one of the jurors who is seated has a relationship with at least the witness that is presently testifying. And [the prosecutor] indicates that that same relationship exists for another witness.... It's my understanding from talking to [the prosecutor] that that relationship is a friendly relationship, and I have some grave concerns about the propriety of continuing the case with that particular juror.

Record, vol. 4, at 106. The court responded by saying:

THE COURT: Well, I haven't yet talked to that juror. Ordinarily if I feel like if it's a problem that would bear upon fairness and objectivity, I would make some effort to make inquiry. But I think what I'll do here is to let the matter ride for a while and see what kind of a record we have.

Id. At the conclusion of the government's case-in-chief, defense counsel reminded the court about juror number eight's acquaintanceship with the two government witnesses and requested that juror number eight be dismissed on grounds of bias. Defense counsel said at this time: "It's my understanding that juror number eight has reported both to the court as well as [the government witness], having reported to the government who reported it to us that [the government witness] and juror number eight have in fact had business dealings." Record, vol. 6, at 794. The court did not confirm or deny that juror number eight had contacted the court but stated in response:

Well you've called my attention to the fact that there may be some acquaintanceship, and as yet we haven't formally explored the consequence of that. The court intends to let the matter go forward and at an appropriate time the court will talk with the juror involved. Fortunately we do have a spare, and we'll be in a position to make a value judgment as to whether we need to use the spare or not. I don't know that you need to formally do anything because you've formally done it before and it was called to the court's attention and I haven't forgotten about it.

Id.

Later in the trial, juror number four wished to be excused from the trial because of a family emergency. The court convened a conference in chambers and informed defense counsel that it intended to use the alternate juror to replace juror number four unless defense counsel produced an affidavit or something more specific concerning juror number eight's relationship with the two government witnesses. Although one of the defense attorneys said that he "would just as soon have [juror number eight] replaced," record, vol. 6, at 981, none of the attorneys responded to the court's invitation to come forward with an affidavit. When the prosecutor suggested that the court should conduct an in camera hearing, the court responded with obvious irritation:

Well, you, sir, bring to my attention in written form and affidavit form the material that you're suggesting here, I'll be glad to look at it. I'm getting tired of people making essentially suggestions and admonitions and observations that are generally couched, that have nothing whatsoever to do with specific instances. If you have something specific to call to my attention, not just your evaluation, but something specific, by all means call it to my attention. All we've done in this lawsuit is talk around and around and around and around. I'm tired of that. If you've got something specific, state it. State it in writing. Bring it to my attention, any of you. If you've got something specific, state it. State it in writing. State it in a form that I can rely upon. I want to get this lawsuit tried and I want to get it tried and finished, and I want you to sit down and think through your questions.

Record, vol. 6, at 983.

Before excusing juror number four, the court stated its understanding that none of the attorneys objected to juror number four being excused and replaced with the alternate juror. When asked if the court's understanding was correct, the three defense attorneys and the prosecutor replied:

[DEFENSE COUNSEL]: On my part, that's correct, yes.

[DEFENSE COUNSEL FOR MR. BRADSHAW]: Reluctantly so, yes, your Honor.

[DEFENSE COUNSEL]: As much as we'd like to have her, we certainly would not object.

* * *

* * *

[PROSECUTOR]: If defense counsel has no objection, then the government has none.

Record, vol. 6, at 1035-36.

There is no further reference to juror number eight in the record; nor has appellant made any reference to juror number eight in his post-trial motions.

Against the backdrop of this record, appellant urges us to adopt a rule requiring automatic reversal if the trial court fails to conduct an evidentiary hearing whenever there is a suggestion of possible juror bias arising after the commencement of the trial. Appellant relies primarily on a Fifth Circuit case involving juror misconduct. United States v. McKinney, 429 F.2d 1019 (5th Cir.), modified and reversed on rehearing, 434 F.2d 831 (5th Cir.1970), cert. denied, 401 U.S. 922, 91 S.Ct. 910, 27 L.Ed.2d 825 (1971). The Fifth Circuit, in the first McKinney decision, adopted a per se rule requiring the trial court to conduct an evidentiary hearing in response to allegations of juror misconduct:

[W]hen jury misconduct is alleged in the defendant's motion for new trial, the trial judge has a duty to take the following actions: he must conduct a full investigation to ascertain whether the alleged jury misconduct actually occurred; if it occurred, he must determine whether or not it was prejudicial; unless he concludes that it was clearly not prejudicial, he must grant the motion for new trial; if he concludes that it did not occur or that it was clearly not prejudicial, he must spell out his findings with adequate specificity for meaningful appellate review.

Id. at 1026.

In urging this court to follow McKinney, appellant overlooks the fact that McKinney was modified and reversed on rehearing. ¹ United States v. McKinney, 434 F.2d 831 (5th Cir.1970). In United States v. Martinez, 604 F.2d 361 (5th Cir.1979), cert. denied, 444 U.S. 1034 (1980), the court observed that the per se rule announced in McKinney had never been adopted in the Fifth Circuit and that subsequent Fifth Circuit decisions have consistently emphasized the trial court's discretion in deciding how to respond to allegations of juror misconduct or bias. Id. at 364. E.g., United States v. Herring, 568 F.2d 1099, 1104-06, 1105 n. 16 (5th Cir.1978); United States v. Chiantese, 546 F.2d 135, 138 (5th Cir.), modified and remanded, 560 F.2d 1244 (5th Cir.1977) (en banc), modified, 582 F.2d 974, 980 (5th Cir.1978), cert. denied, sub nom. Cerrella v. United States, 441 U.S. 922, 99 S.Ct. 2030, 60 L.Ed.2d 395 (1979); United States v. Khoury, 539 F.2d 441, 443 (5th Cir.1976), cert. denied, 429 U.S. 1040, 97 S.Ct. 739, 50 L.Ed.2d 752 (1977). But see United States v. Brown, 548 F.2d 1194, 1219 n. 15 (5th Cir.1977) (Gee, J., dissenting); United States v. Betner, 489 F.2d 116, 119 (5th Cir.1974) (written by Judge Rives, author of the second McKinney opinion, with no mention that McKinney was reversed on rehearing).

The Ninth Circuit has also declined to adopt the McKinney "full investigation" rule. In United States v. Hendrix, 549 F.2d 1225, 1227-28 (9th Cir.), cert. denied, 434 U.S. 818, 98 S.Ct. 493, 54 L.Ed.2d 321 (1977), the court said:

An important part of the district judge's broad discretion centers on his response to allegations of juror bias or misconduct. For example, it is within the trial court's discretion to determine whether and when to hold an evidentiary hearing on such allegations. If the judge orders an investigative hearing, it is within his discretion to determine its extent and nature. See United States v. Doe, supra 13 F.2d at 712; Tillman v,. United States, supra, 406 F.2d at 938. [Footnote omitted.] As a matter of common sense, a trial judge in making these decisions will necessarily be directed by the content of the allegations, including the seriousness of the alleged misconduct or bias, and the credibility of the source. See United States v. McKinney, 429 F.2d 1019, 1031 (5th Cir.1970) (Godbold, J., dissenting), cert. denied, 401 U.S. 922, 91 S.Ct. 910, 27 L.Ed.2d 825 (1971). [Footnote omitted.]

We cited Hendrix with approval in United States v. Jones, 707 F.2d 1169 (10th Cir.), cert. denied, 464 U.S. 859, 104 S.Ct. 184, 78 L.Ed.2d 163 (1983):

A trial court has a great responsibility and wide discretion in dealing with a motion for a new trial based on allegations of juror misconduct. United States v. Hendrix, 549 F.2d 1225, 1227 (9th Cir.), cert. denied, 434 U.S. 818, 98 S.Ct. 58, 54 L.Ed.2d...