U.S. v. Dean

Decision Date17 April 1981
Docket NumberNo. 79-1919,79-1919
Citation647 F.2d 779
Parties8 Fed. R. Evid. Serv. 26 UNITED STATES of America, Appellee, v. Frank DEAN, Appellant.
CourtU.S. Court of Appeals — Eighth Circuit

Steven H. Goldberg, UALR School of Law, Little Rock, Ark., Fred M. Pickens, Jr., Newport, Ark. (argued), and Timothy F. Watson, Newport, Ark., for appellant.

George W. Proctor, U. S. Atty., Kenneth F. Stoll (argued), Sherry P. Bartley, Robert J. Govar, Asst. U. S. Attys., Little Rock, Ark., for appellee.

Before LAY, Chief Judge, and BRIGHT and McMILLIAN, Circuit Judges.

McMILLIAN, Circuit Judge.

Appellant Frank Dean appeals from a judgment of the District Court for the Eastern District of Arkansas sentencing him to three years imprisonment and a term of probation, after appellant was convicted by a jury of two counts of violating the Racketeer Influenced and Corrupt Organizations Act (hereinafter RICO), 18 U.S.C. §§ 1962(c), 1963, and with thirty-six counts of violating the Travel Act, 18 U.S.C. §§ 1952, 2. After the jury verdict, appellant brought to the attention of the court evidence that one of the jurors had not been impartial. The district court ordered a new trial. United States v. Dean, Nos. J-CR-79-1 and J-CR-79-10 (E.D.Ark. Sept. 26, 1979) (Dean I ). Subsequently, however, the government obtained evidence that during the trial appellant had heard of rumors that the juror was not impartial. The district court, finding that appellant in the exercise of due diligence should have brought the matter to the attention of the court before the jury retired, vacated its order for a new trial and reinstated the verdict. United States v. Dean, Nos. J-CR-79-1 and J-CR-79-10 (E.D.Ark. Oct. 11, 1979). 1 Sentence was then imposed. Appellant contends that the conviction violated his right to trial by an impartial jury. 2 We reverse and remand for a new trial.

This prosecution arose out of bribes allegedly received by appellant in violation of Arkansas law during the years 1971 through 1978, 3 while he was county judge of Poinsett County, Arkansas. (The office of county judge held by appellant was not judicial but rather an executive position similar to that of a county supervisor or manager.) The alleged bribery, which was part of appellant's dealings through the mail with out-of-state vendors, involved both the taking of "kickbacks" on supplies actually delivered to the county and the filing of "bogus invoices" for supplies never delivered, and allegedly cost the county more than $150,000. A grand jury returned two indictments against appellant. One indictment No. J-CR-79-1, involved appellant's transactions with Paul A. Baldwin, doing business as the Lisco Company. It charged appellant with twenty-nine counts of violating the Travel Act, 18 U.S.C. § 1952, 4 by involvement in use of interstate commerce (the mails) for an unlawful activity (bribery), and one count of violation of RICO, 18 U.S.C. §§ 1962(c), 1963. 5 RICO makes it a federal crime to conduct the affairs of an enterprise 6 affecting commerce (here the county judge's office) through a pattern of racketeering activity 7 (here the alleged bribery 8 and Travel Act violations). The other indictment, No. J-CR-79-10, involved appellant's transactions with Irvin R. Pratt, who represented both Prattco Products Company, Inc., and Bi-Search Industries. It charged seven Travel Act violations based on alleged bribes and one count of RICO based on conduct of the county judge's office through the alleged bribes from Pratt as a pattern of racketeering activity. (Pratt and Baldwin both testified against appellant after they were granted immunity from prosecution.)

Biased Juror

The district court found that one of the jurors who reached the verdict convicting appellant had "a settled disposition to convict (appellant) regardless of the evidence." Dean I, supra, slip op. at 6. This finding is not challenged on appeal, and there was evidence that the juror in question had made numerous statements demonstrating bias, for example, proclaiming on the first day of trial, "Well, I don't know whether he's guilty or not, but he's not going to get out." Id., slip op. at 1.

Appellant first brought the misconduct to the attention of the district court after his conviction, and the court ordered a new trial. "Bias of this kind in any trier of fact, judge or jury, is inconsistent with the constitutional guarantee of a fair trial. 'Clear bias of a juror is ground for a new trial ' " Dean I, supra, slip op. at 3, citing 6A Moore, Federal Practice P 59.08(4), at 59-124 (2d ed. 1979).

The government then investigated the matter further and learned that an anonymous note had been given to defendant's attorney during the trial. The note related "rumors" that the juror in question had expressed a biased view of the case to a third party. On the government's motion for reconsideration of the new trial motion, the district court found that appellant's attorney had received the note during the trial and had shown the note to appellant. Dean II, supra, slip op. app. at 4-5. The district court also found that appellant's attorney "in the exercise of reasonable diligence, should have brought the allegation of misconduct on the part of this juror to the (c) ourt's attention," id., slip op. app. at 5, at the time the allegation became known to him. 9 Accordingly, concluded the court, principles of equity would preclude appellant from raising the juror's bias as grounds for a new trial. Id. In a later proceeding the court expressed the view that in light of the information received by appellant and counsel during the trial, appellant received a fair trial under the totality of the circumstances. 10

Although we recognize the importance of the factors leading the district court to vacate its order for a new trial, we think that in the extraordinary circumstances of this case the order for a new trial must be reinstated as an exercise of our supervisory power over the administration of justice in this circuit. Even a serious potential for juror bias has caused the Supreme Court to order a new trial as a matter of the administration of justice. Marshall v. United States, 360 U.S. 310, 79 S.Ct. 1171, 3 L.Ed.2d 1250 (1959) (per curiam) (exposure of jurors to prejudicial publicity). In this case we are confronted with actual, not potential, juror bias. We cannot permit actual, proven bias which prevents a juror from impartially deciding the case, without doing incalculable harm to the jury system as an institution. "The truth pronounced by Justinian more than a thousand years ago that, 'Impartiality is the life of justice,' is just as valid today as it was then." United States v. Brown, 539 F.2d 467, 469 (5th Cir. 1976). See also Groppi v. Wisconsin, 400 U.S. 505, 91 S.Ct. 490, 27 L.Ed.2d 571 (1971). The actual bias in this case goes to the heart of the integrity of the judicial proceeding.

We have no disagreement whatsoever with the district court's view that the failure of appellant's attorney to bring the matter earlier to the court's attention resulted from an unjustified lack of diligence. But the remedy cannot be to overlook the fact that this trial did not occur before an impartial jury. The way to address counsel's unjustified delay in raising the question of juror bias is to proceed against counsel in an appropriate forum. 11

Our belief that considerations of judicial administration are paramount in this case is reinforced by the paucity of reported cases on actual juror partiality in the federal court system. This lack of precedent in the appellate courts reflects the high value traditionally placed upon preserving the integrity of the trial process consistent with the unqualified sixth amendment guarantee of an impartial jury. The vast majority of cases where a juror was actually biased against the defendant have surely been resolved by an order for a new trial, which cannot ordinarily be appealed. The government cites decisions of appellate courts upholding denial of a new trial in cases of juror misconduct with a potential for affecting impartiality, but not cases in which a juror was actually biased. See United States v. Sorenson, 611 F.2d 701 (8th Cir. 1979) (per curiam) (allegations that juror slept during part of the trial); United States v. Nance, 502 F.2d 615 (8th Cir. 1974), cert. denied, 420 U.S. 926, 95 S.Ct. 1123, 43 L.Ed.2d 396 (1975) (allegations that jurors discussed case during trial); United States v. Hester, 489 F.2d 48 (8th Cir. 1973) (per curiam) (sleeping juror); Wangrow v. United States, 399 F.2d 106 (8th Cir.), cert denied, 393 U.S. 933, 89 S.Ct. 292, 21 L.Ed.2d 270 (1968) (juror seen reading newspaper during trial); United States v. Kansas City, 157 F.2d 459 (8th Cir. 1946) (improper jury view of property involved in civil case); Langer v. United States, 76 F.2d 817 (8th Cir. 1935) (jurors reading newspapers during trial); see also United States v. Brumbaugh, 471 F.2d 1128, 1130-31 (6th Cir.) (McCree, J., concurring), cert. denied, 412 U.S. 918, 93 S.Ct. 2732, 37 L.Ed. 144 (1973) (improper remarks to jury by bailiff); United States v. Carter, 433 F.2d 874 (10th Cir. 1970) (sleeping juror); Mares v. United States, 383 F.2d 805 (10th Cir. 1967) (pretrial publicity); United States v. Coduto, 284 F.2d 464 (7th Cir. 1960), cert. denied, 365 U.S. 881, 81 S.Ct. 1027, 6 L.Ed.2d 192 (1961) (simil ). See generally 5 L. Orfield, Criminal Procedure Under the Federal Rules § 33.10 (1967); Orfield, Trial Jurors in Federal Criminal Cases, 29 F.R.D. 43 (1963). Cf. Remmer v. United States, 347 U.S. 227, 74 S.Ct. 450, 98 L.Ed. 654 (1954), after remand, 350 U.S. 377, 76 S.Ct. 425, 100 L.Ed. 435 (1956) (jury tampering efforts are always presumptively prejudicial).

We have found two precedents in the federal system that reinforce the conclusion that a new trial is required in this case. 12 In United States v. Rattenni, 480 F.2d 195 (2d Cir. 1973), the...

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