U.S. v. Ginyard

• Decision Date: 07 April 2006
• Docket Number: No. 05-3035.,No. 05-3004.,No. 05-3003.,No. 05-3025.,05-3003.,05-3004.,05-3025.,05-3035.
• Citation: 444 F.3d 648
• Parties: UNITED STATES of America, Appellee v. Sean GINYARD, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

444 F.3d 648

UNITED STATES of America, Appellee v. Sean GINYARD, Appellant.

No. 05-3003.

No. 05-3004.

No. 05-3025.

No. 05-3035.

United States Court of Appeals, District of Columbia Circuit.

Argued February 27, 2006.

Decided April 7, 2006.

Appeals from the United States District Court for the District of Columbia (No. 03cr00473-01) (No. 03cr00473-02).

Richard K. Gilbert, appointed by the court, argued the cause and filed the briefs for appellant.

David M. Menichetti argued the cause and filed the briefs for appellant Kevin Jefferson. Peter M. Brody entered an appearance.

John P. Gidez, Assistant U.S. Attorney, argued the cause for appellee. With him on the brief were Kenneth L. Wainstein, U.S. Attorney, and Roy W. McLeese, III and Elizabeth Trosman, Assistant U.S. Attorneys.

Before: GINSBURG, Chief Judge, and ROGERS and BROWN, Circuit Judges.

Opinion for the Court filed by Circuit Judge ROGERS.

ROGERS, Circuit Judge.

An eleven-member jury found Sean Ginyard and Kevin L. Jefferson guilty of possession with intent to distribute more than 50 grams of cocaine base and distribution of a detectable amount of cocaine base. The principal issue on appeal is whether the district court abused its discretion in dismissing, pursuant to Federal Rule of Criminal Procedure 23(b), the twelfth juror, who was a holdout. Although the United States has conceded error, the court is not bound by that concession on a question of law. Orloff v. Willoughby, 345 U.S. 83, 87, 73 S.Ct. 534, 97 L.Ed. 842 (1953). We vacate the judgments of conviction and remand the case for a new trial because the district court failed to conduct an adequate inquiry regarding the holdout juror's continuing availability.

I.

In a superseding indictment, Ginyard and Jefferson were charged with the unlawful distribution of "a detectable amount" of cocaine base, 21 U.S.C. §§ 841(a)(1) and (b)(1)(C), and possession with intent to distribute more than 50 grams of cocaine base, id. §§ 841(a)(1) and (b)(1)(A)(iii). Following the district court's denial of motions by Ginyard and Jefferson for a mistrial, an eleven-member jury returned guilty verdicts, and the district court sentenced Ginyard to 179 months' imprisonment and Jefferson to 120 months' imprisonment. They appeal, presenting multiple claims of error. We need address only two of their contentions. Only the first, a challenge to the dismissal of the twelfth juror, requires extended discussion.

The circumstances leading to the dismissal of the twelfth juror ("Juror 429") are as follows. Jury deliberations began Friday morning, September 10, 2004. The following Monday, and again on Tuesday, the district court learned that the jury's deliberations were "heated" and that the jury may have become "deadlocked" on one charge.¹ On Wednesday, September 15, the jury sent a note asking "How does the jury deal with a juror who has stated that they do not believe the testimony of several witnesses and does not offer reasons based on evidence as to why that testimony is not credible and can be ignored?" (Emphasis added.) At the bottom of the note was written "I was left out of this decision. Jury Number 429." The district court responded by instructing the jury that "[m]embers of the jury must fully discuss in a respectful manner the disputed issues with all jurors and try, if possible, to reach a unanimous view." On the same day, Juror 429 sent a note to the judge, stating "Hardship after Friday 9-17-04."

On Thursday, the district court received three notes from the jury about scheduling problems. Two of the notes involved jurors who said they could not deliberate on Friday, and the district court accommodated them by deciding no deliberations would occur on Friday. The third note was from Juror 429. The district court judge stated Juror 429's note was "harder to decipher," but indicated that "he's not able to continue after Friday because of a job opportunity related to some kind of a rehab program that he is involved in." Although the prosecutor understood Juror 429 to state he was unavailable after Friday, defense counsel read the note to invite the district court to contact his counselor if need be.

The district court inquired whether any counsel would oppose proceeding on Monday with eleven jurors, pursuant to Rule 23(b), noting the time and effort already expended by the jury. Defense counsel objected, and suggested Juror 429 be questioned about his availability and the possibility of working around his schedule. The district court advised counsel that she did not want to speak to the juror's counselor — "[i]t brings too many others in, it complicates matters unduly, it raises a question of tainting because his counselor might say something to him." Shortly thereafter another note from Juror 429 arrived, requesting a response to his earlier note. The district court ordered that Juror 429 be brought to the courtroom in order to determine whether he would be available the following week.

Juror 429 told the district court judge that he was hoping to get a job through a program in which he was enrolled and if he remained in jury deliberations the program might give the job to someone else. The juror advised that he had spoken to his counselor the day before (Wednesday) to inform him about his jury duty, but stated "that do[es]n't mean they're going to hold the position for me." The juror told the judge that a specific position was being held for him and proceeded to describe it. The judge asked the juror, "[d]o you have any reason to think that if you told your counselor that we were going to deliberate on Monday, that he could manage to hold the job open for you for a couple of days, or do you think that is not a realistic possibility?" The juror's answers included the following statements: "Well, I think if I gave him something concrete to look for, like you said, a couple days, maybe yes . . .", "a couple of days, yes, but anything after that . . .", and finally "I just want to let you know, Judge, I think that they will give me a couple of days, maybe Monday, Tuesday, but I can't expect them to hold it all week or as long as the trial might go." The judge then commented, "I do understand that. I very much know how much people need jobs."

The district court decided to dismiss Juror 429 for "good cause shown" at the end of the day (Thursday). Defense counsel had argued that the juror's responses indicated that he could be available until Monday or Tuesday and that a letter from the district court to the juror's counselor might help the situation. The prosecutor urged, however, that the juror be released rather than pushed in one direction or the other and that the trial should proceed with eleven jurors on Monday. The district court found: first, "there are just too many uncertainties about next week"; second, the juror had said his "cutoff was actually yesterday [Wednesday]," and "that today was pushing it" and he thought that the trial would be over today; third, "[t]here are no guarantees that they would hold the job until Monday and/or Tuesday"; and fourth, that even if the juror were available Monday and Tuesday, allowing him to continue deliberation would "impose[] an artificial deadline and an artificial pressure that is inappropriate."

Early Thursday evening, after the district court told Juror 429 he would be excused at the end of the day, the deputy marshal informed the court that just before 5 p.m. he overheard Juror 429 "screaming that he wanted a note sent out to the judge stating that the jury was hopelessly deadlocked." Just before 5 p.m., there was a knock at the door and Juror 429 handed the marshal a note that stated "We, the jury, are hopelessly deadlocked. The foreman refused to submit. The decision was made at 4:30." The note was signed "429." The district court stated that "we know probably that [Juror 429] is the person who wasn't believing certain police officers." Thereafter, the district court implemented its decision to dismiss the juror. The following Monday, the first day the jury reconvened with only eleven members, it returned guilty verdicts against appellants. The district court subsequently denied defense counsel's renewed motions for a mistrial and motions for a new trial.

II.

Appellants challenge the dismissal of the twelfth juror on the grounds that it violated their Sixth Amendment right to conviction by a unanimous jury and that the district court abused its discretion in dismissing Juror 429 for "good cause" under Federal Rule of Criminal Procedure 23(b). On appeal, the United States has conceded both propositions and agrees that appellants are entitled to a new trial. "This Court, of course, is not bound to accept the Government's concession that the courts below erred on a question of law." Orloff, 345 U.S. at 87, 73 S.Ct. 534; see Young v. United States, 315 U.S. 257, 258-59, 62 S.Ct. 510, 86 L.Ed. 832 (1942). Our review of the dismissal of the twelfth juror is for abuse of discretion. See United States v. Essex, 734 F.2d 832, 845 (D.C.Cir.1984); United States v. Gibson, 135 F.3d 257, 259 (2d Cir.1998).

The Sixth Amendment to the United States Constitution guarantees the right to a unanimous jury verdict in federal criminal cases, Essex, 734 F.2d at 841 (citing Apodaca v. Oregon, 406 U.S. 404, 92 S.Ct. 1628, 32 L.Ed.2d 184 (1972), and Johnson v. Louisiana, 406 U.S. 356, 92 S.Ct. 1620, 32 L.Ed.2d 152 (1972)), and restricts the exercise of Rule 23(b) dismissals. In United States v. Brown, 823 F.2d 591 (D.C.Cir.1987), the court held Rule 23(b) may not be used to dismiss a juror if there is evidence that the request for dismissal stems from the juror's view that the government's evidence is insufficient to support a verdict. See id. at 597; United States v. Hernandez, 862 F.2d 17, 23 (2d Cir.1988). To allow invocation of Rule 23(b) in such a circumstance would violate the defendant's constitutional right to a unanimous verdict because it would permit the...