U.S. v. Essex
| Decision Date | 11 May 1984 |
| Docket Number | No. 83-1169,83-1169 |
| Citation | 734 F.2d 832,236 U.S. App. D.C. 166 |
| Parties | UNITED STATES of America v. Daphne W. ESSEX, Appellant. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Appeal from the United States District Court for the District of Columbia.
Wilkey and Wald, Circuit Judges, and MacKinnon, Senior Circuit Judge. Opinion for the court filed by Senior Circuit Judge MacKinnon. Dissenting opinion filed by Circuit Judge Wilkey. Wilkey, Circuit Judge, dissenting.
Appellant Daphne Essex appeals her conviction for possession of heroin with intent to distribute. 21 U.S.C. 841(a). At the start of the trial, the defense stipulated to proceeding with a jury of 11 if it became necessary to do so. But a full jury heard all the evidence, began deliberations, and adjourned over the weekend. One juror failed to appear on Monday morning and the court -- without finding that there was any reason for excusing him, and over defense objection -- permitted the 11 remaining jurors to continue deliberations and to return a verdict.
The government admits the defendant objected that it was "not proven necessary" to continue without the juror and that the court overruled said objection. Since there was no finding of any reason that it was "necessary" to proceed with less than a full jury, the denial of the defendant's right to a unanimous verdict of the 12 jurors constituted (1) an obvious violation of the terms of the stipulation, and (2) a violation of Fed. R. Crim. P. 23(b) and 31(a). Even assuming the error was not properly raised before the district court, we would find this procedure to be a defect affecting appellant's substantial right and reviewable under the so-called "plain error" rule, Fed. R. Crim. P. 52(b). We accordingly reverse.1
Shortly after the jury was selected, a juror who had been stricken peremptorily by the defense was accidentally seated among the 12 jurors. Only one alternate had been selected; the rest of those examined on voir dire had been dismissed. The improper seating was discovered before the trial started, and the following exchange then occurred:
THE COURT: Mr. Goodbread, I understand that the Government is willing to accept alternate No. One in place of No. 12, and that's agreeable to you, is it?
MR. GOODBREAD [Appellant's Counsel]: It is, your Honor.
MR. O'MALLEY [Government Counsel]: It is agreeable to the Government, your Honor, but this is an issue which, as the court well knows, has been litigated many times.
If we could have a formal waiver from Miss Essex, that is, to indicate that she has been advised that she has an absolute right to have 12 jurors and that if she waives it she waives any right to appeal that issue, and she must be satisfied with a verdict of 11.
THE COURT: Do you understand, Miss Essex, that you are entitled to a jury of 12 and you wouldn't [sic] certainly have it if we had it. At the moment you are going to have 12.
I am just saying that in the event something should happen to one of them, we don't have any alternates.
(Tr. 42-43) (emphasis added). Thereupon, the previously stricken juror was dismissed and replaced by the sole alternate.
The case proceeded to trial. None of the jurors was excused during the trial phase. The parties rested on a Friday and the jury retired to deliberate. The jurors deliberated until about 6:00 p.m., when they were given the option to continue deliberations during the evening or to return Monday morning. They voted to return on Monday. In excusing them, to return at 9:30 on Monday morning, the Court said to counsel: (Tr. 394) (emphasis added).
On Monday, only 11 of the 12 jurors appeared at 9:30. Appellant's counsel, notified of the situation by telephone, immediately objected to allowing the jury to proceed. No record was made of the objection that counsel was called upon to make -- by telephone -- first to the court's secretary, and then to the judge personally. The trial judge, over such defense objection, construed appellant's oral stipulation as sufficient to cover the situation and directed the jury to resume its deliberations with only 11 jurors. So far as the record indicates, the court made no investigation regarding the missing juror and did not determine the reason for the juror's failure to appear.
A. The Government's Concession
We are not completely handicapped by a silent record, however, because appellant's contemporaneous objections are explained in her brief, and the Government in its brief concedes their correctness:
As explained in her brief, appellant's counsel, who was at an administrative hearing, communicated his objections to accepting a verdict from eleven jurors in a telephone conversation with the trial judge. Brief for Appellant at 7-8. The contents of that call are not a part of the record on appeal, but for the purposes of this appeal we credit appellant's representations that her counsel objected to accepting a verdict of less than twelve jurors. Just before the verdict was returned, appellant's counsel noted for the record his objection to accepting a verdict from eleven rather than twelve jurors (Tr. 397).
Brief for Government at 7 n.3 (emphasis added).
The contemporaneous objections "communicated [to] the trial judge," id., as "explained in [appellant's] brief" that the government "credits" are set forth in the margin.2 The specific admission by the Government in its brief is important. It concedes that appellant contemporaneously objected " as explained in her brief." This concession thus admits that counsel objected to the Court's ruling on the ground that it would deprive appellant of her right that her "conviction [be achieved] by unanimity of those jurors who actually heard and deliberated the case." The Government's concession also admits that counsel objected to the court proceeding with only 11 jurors on the ground that the stipulation only agreed to 11 jurors " if necessary," and "that turned out not to be necessary " (emphasis added). Appellant also asserted that such procedure was not "proven necessary." Despite these timely objections, the court ruled that the 11 remaining jurors could continue their deliberations on the ground that there was "no difference" in whether the juror's absence was proven necessary or not proven necessary. The dissent essentially takes the same position. The 11 jurors returned a unanimous verdict of guilty, and defense counsel again objected to the jury procedure.3 He alluded to the issue again in his motion for new trial.4 It does not appear from the record that either appellant or the Government requested the court to try and locate the missing juror--or that the court ever attempted to locate him or determine the reason for his absence. The parties stated at oral argument that, so far as they knew, the reason for the missing juror's absence was never determined. The transcript does not indicate that the court ever ruled on the objection it took under advisement (Tr. 400-01).
At the time of trial, Fed.R.Crim.P. 23(b) provided:
Juries shall be of 12 but at any time before verdict the parties may stipulate in writing with the approval of the court that the jury shall consist of any number less than 12 or that a valid verdict may be returned by a jury of less than 12 should the court find it necessary to excuse one or more jurors for any just cause after trial commences.
(Emphasis added.)5 The stipulation here was conditional, and comes under the second clause, which contrary to the dissent's assertions, see Dissent at 853, requires a finding of some just cause that makes it necessary to excuse a juror.
The Rule also expressly required a written waiver, but this was not done. The court and the parties should have complied with the Rule and executed a written waiver. Had they done so, much of our difficulty might have been avoided. But we do not rest our reversal on the erroneous failure to execute a written waiver. The requirement of a writing is "procedural," and in situations where the defendant makes an oral waiver in open court with advice of counsel, and where it is clear that the subsequent action taken by the court followed the terms of the waiver, the failure to comply with Rule 23(b) is harmless. United States v. Ricks, 475 F.2d 1326, 1328 (D.C.Cir.1973) (per curiam); United States v. Smith, 523 F.2d 788, 791-92 (5th Cir.1975), cert. denied, 424 U.S. 973, 96 S.Ct. 1475, 47 L.Ed.2d 742 (1976); United States v. Lane, 479 F.2d 1134, 1136 (6th Cir.), cert. denied, 414 U.S. 861, 94 S.Ct. 78, 38 L.Ed.2d 112 (1973). We accordingly rule that the failure to reduce the waiver to writing was harmless error.6
Since a spontaneous oral waiver customarily lacks the clarity, specificity, and assurance of adequate consideration of a written waiver, the circumstances must be examined closely, and must plainly evidence the express and knowledgeable consent of the defendant 7 to accepting a verdict of less than 12 jurors.
An examination of the cases in which oral waivers have been held valid is illustrative. In Ricks, the oral...
To continue reading
Request your trial
-
Hinton v. U.S., No. 01-CF-1145.
...R. 31(a), and by the Sixth Amendment, see Shotikare v. United States, 779 A.2d 335, 344 (D.C.2001); United States v. Essex, 236 U.S.App. D.C. 166, 175, 734 F.2d 832, 841 (1984). 76. Shotikare, 779 A.2d at 344. "The juror in the minority must be afforded a full opportunity to persuade the ma......
-
US v. Williams-Davis
...Wilson, 894 F.2d 1245, 1250-51 (11th Cir.), cert. denied, 497 U.S. 1029, 110 S.Ct. 3284, 111 L.Ed.2d 792 (1990); cf. United States v. Essex, 734 F.2d 832, 839 (D.C.Cir.1984) (citing the Advisory Committee Notes that invocation of the Rule requires a finding that excusal is necessary for jus......
-
U.S. v. Harris, s. 89-3205
...under which a criminal defendant cannot be convicted in federal court absent a unanimous verdict. See, e.g., United States v. Essex, 734 F.2d 832, 840-41 (D.C.Cir.1984). The government responds that because neither the CCE statute nor the Sixth Amendment requires such particularized agreeme......
-
Ochoa v. Workman
...of Atkins ... about who is to decide what procedures are to be used to determine mental retardation”). FN12. United States v. Essex, 734 F.2d 832, 844 (D.C.Cir.1984). 13. In support of his assertion that the revelation to the jury of the fact of his conviction is at odds with Oklahoma law, ......