U.S. v. Dorsey

• Decision Date: 24 January 1989
• Docket Number: No. 88-3002,88-3002
• Citation: 865 F.2d 1275
• Parties: UNITED STATES of America v. Thomas E. DORSEY, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1275

865 F.2d 1275

275 U.S.App.D.C. 176

UNITED STATES of America v. Thomas E. DORSEY, Appellant.

No. 88-3002.

United States Court of Appeals, District of Columbia Circuit.

Argued Dec. 8, 1988.

Decided Jan. 24, 1989.

As Amended Jan. 24, 1989.

Appeal from the United States District Court for the District of Columbia (C.R. No. 87-00033-01).

Bruce Zagaris, Washington, D.C. (appointed by the court), for appellant.

Roberto Iraola, Asst. U.S. Atty., with whom Michael W. Farrell, Helen M. Bollwerk, Washington, D.C., and John P. Dominguez, Asst. U.S. Attys., were on the brief, for appellee.

Before RUTH BADER GINSBURG and SILBERMAN, Circuit Judges, and GIBSON, ^* Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge RUTH BADER GINSBURG.

RUTH BADER GINSBURG, Circuit Judge:

Defendant-appellant Thomas E. Dorsey, tried in the district court along with two co-defendants, was convicted of unlawful manufacture of phencyclidine (PCP) (21 U.S.C. Sec. 841(a)(1) (1982)) and of conspiracy to manufacture PCP (id. Sec. 846). He received concurrent sentences: on the conspiracy count, fifteen to forty-five years; on the manufacturing count, forty-five years plus ten years of special supervision to commence upon his release from prison.

Among several errors alleged in this appeal, Dorsey claims that the trial court improperly coerced the jury and thereby denied him the right to an impartial verdict. He asserts the invalidity of the conspiracy

conviction on the ground that the district judge erroneously admitted against him certain statements and acts of a co-defendant. We reject Dorsey's jury coercion claim for the reasons stated in this opinion. Under the doctrine announced in United States v. Hooper, 432 F.2d 604 (D.C.Cir.1970), in view of the concurrency of the sentences, we vacate the conspiracy conviction without determining the merits of Dorsey's evidentiary objection. We affirm in all respects Dorsey's conviction for manufacturing PCP.

I. JURY COERCION CLAIM

A. Background

In an indictment filed February 26, 1987, Dorsey and two co-defendants, Tyler Haynes and Thomas McDuffie, were each charged with conspiracy to manufacture PCP, 21 U.S.C. Sec. 846, manufacture of more than 100 grams of PCP, id. Sec. 841(a)(1), and possession with intent to distribute more than 100 grams of PCP, id. Trial before a jury commenced on October 13, 1987, and on November 5 at 11:50 a.m., the jury retired to its deliberations.

The next day, Friday, November 6 at 3:56 p.m., the jury notified the court that it had reached a verdict. Upon the jury's return to the courtroom, the foreman reported that the jury had found Haynes and Dorsey guilty, but McDuffie not guilty, on all three counts. On request of counsel for Haynes and Dorsey, the court directed the clerk to poll the jurors. The first three jurors affirmed the guilty verdicts, but the following colloquy occurred with Juror No. 4:

THE DEPUTY CLERK: Juror No. 4, is your verdict as to Thomas E. Dorsey guilty of Count 1, guilty of Count 2, guilty of Count 3, and as to the defendant Tyler Haynes guilty of Count 1, guilty of Count 2, and guilty of Count 3?

JUROR NO. 4: No.

THE DEPUTY CLERK: Your verdict is--

JUROR NO. 4: Guilty of conspiracy, not guilty on the 2 and 3.

The court immediately stopped the polling; after conferring with counsel at the bench, the judge denied mistrial motions by Haynes and Dorsey and instructed the jury:

Ladies and gentlemen of the jury, in polling the jury, it has become apparent that you may not yet have reached a unanimous verdict with respect to the defendants Haynes and Dorsey. For this reason, I am asking you to return to the juryroom for further consideration of your verdict. Whenever you have reached a unanimous verdict, you may return it in court. If you are not unanimous, then you should continue your deliberations.

After you return to the juryroom, any member is free to change his or her vote on any issue submitted to you. Each juror is free to change his or her vote until the jury is discharged.

Ladies and gentlemen of the jury, if you would return to the juryroom to continue your deliberations in this case.

Upon receiving this instruction, at 4:42 p.m., the jury retired to resume deliberations.

Approximately an hour and a half later, the court advised counsel that the jury, by note, had requested to be excused for the weekend if a decision had not been reached by 6:30 p.m. The court brought the jury back to the courtroom, and informed the jurors that they could break and resume on Monday; alternatively, they could stay to continue deliberations, in which event arrangements would be made so they could move their cars and have dinner. Minutes after the jurors retired to confer among themselves, the foreman sent two notes to the court. One announced that the jury wanted to return on Monday. The other was from Juror No. 4; it read:

My name is Karen L. Kelly, Juror No. 4. I would like to know if I could be exchanged with one of the alternates. Because I cannot make an impartial decision without becoming emotionally involved. I feel that the government did not have a strong case with the evidence that was presented. I would like to (Emphasis in original.)

please be excused because I do not want to be a part of the defendants livelyhood [sic] well being, (Going to Prison ). Please try to understand how I feel and I cannot take the arguing with the other decisions of the other jurors. I feel that I would be lying to myself to change my verdict just to have an unanimous decision. Thank you. Karen Kelly, Juror No. 4.

Defense counsel renewed their mistrial motions, with Dorsey's attorney insisting that the jury was "hopelessly hung." The court excused the jury until 10:00 a.m. Monday, November 9, and reserved decision on the motions. On the morning of the 9th, defense counsel, arguing in favor of a mistrial, urged that "to require the jurors to continue deliberation has an increasingly coercive effect on Juror No. 4, Ms. Kelly."

The district judge denied the mistrial motions and comprehensively explained his reasons for opting to ask the jury to continue deliberations. First, he observed:

[A]ny time there is a poll of a jury, and a jur[or] at some point indicates that the juror's vote is different than the vote announced by the panel, that juror is somehow singled out. And yet, as we know, that is not necessarily grounds for a mistrial in the case.

Second, he referred to his specific instruction that "any member is free to change his or her vote on any issue" up to the time the jury is discharged. He additionally mentioned the length of the trial, the day and a half of deliberations prior to the weekend break, and the time the jurors had just had "to step away from the case." Furthermore, he commented, one couldn't be sure all jurors save one had come to rest concerning the weight of the evidence on each count "because we did not complete the poll." All things considered, he concluded, "if the jurors continue their discussions, and they discuss whatever questions any of them may have, they may reach a verdict."

At that point, the judge invited proposals from counsel on a jury instruction. Both sides submitted suggestions. Eventually, all parties agreed on the following note, which was sent to the jury at 2:43 p.m.:

The jury is now deliberating its verdict and no juror can be exchanged at this point in the proceedings. Please continue your deliberations in this case.

At 5:18 p.m. the jury notified the court that a verdict had been reached. After the jury assembled in the courtroom, the foreman announced that Haynes and Dorsey had been found guilty on the conspiracy and manufacturing counts, and not guilty on the possession with intent to distribute count. A jury poll confirmed this verdict.

B. Discussion

We start with the basic precepts. "Any criminal defendant ... being tried by a jury is entitled to the uncoerced verdict of that body." Lowenfield v. Phelps, 484 U.S. 231, 108 S.Ct. 546, 552, 98 L.Ed.2d 568 (1988). This court has elaborated: "Every defendant in a federal criminal case has the right to have his guilt found, if at all, only by the unanimous verdict of a jury of his peers. Any undue intrusion by the trial judge into this exclusive province of the jury is error of the first magnitude." United States v. Thomas, 449 F.2d 1177, 1181 (D.C.Cir.1971) (en banc) (footnote omitted).

Whether a trial court's statement to the jury should be regarded as coercing the surrender of views conscientiously held is an issue appellate judges should evaluate "in its context and under all the circumstances." Jenkins v. United States, 380 U.S. 445, 446, 85 S.Ct. 1059, 1060, 13 L.Ed.2d 957 (1965). Two types of trial court intervention have caused particular concern: the so-called Allen charge, and inquiry into the jury's numerical division for or against conviction.

The charge that received Supreme Court approbation close to a century ago in Allen v. United States, 164 U.S. 492, 501, 17 S.Ct. 154, 157, 41 L.Ed. 528 (1896), included the statement that "if much the larger number [of jurors] were for conviction, a dissenting juror should consider whether his doubt was a reasonable one which made no impression upon the minds of so many The verdict must represent the considered judgment of each juror. In order to return a verdict, it is necessary that each juror agree thereto. Your verdict must be unanimous.

                men, equally honest, equally intelligent with himself."    The Allen charge), has been questioned or resisted in recent decades.  See, e.g., United States v. Rey, 811 F.2d 1453, 1458 (11th Cir.)  ("modern judicial trend" disfavors Allen charge) cert. denied, --- U.S. ----, 108 S.Ct. 103, 98 L.Ed.2d 63 (1987).  In Thomas, 449 F.2d 1177, this court exercised its supervisory power over the administration of the law in this circuit to require trial judges to use in place of the problematic Allen charge, a milder form of supplemental

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