U.S. v. Hanno

• Decision Date: 28 March 1994
• Docket Number: No. 92-5776,92-5776
• Citation: 21 F.3d 42
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Michael John HANNO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 42

21 F.3d 42

UNITED STATES of America, Plaintiff-Appellee, v. Michael John HANNO, Defendant-Appellant.

No. 92-5776.

United States Court of Appeals, Fourth Circuit.

Argued July 29, 1993.

Decided March 28, 1994.

ARGUED: William Lee Davis, III, Lumberton, NC, for appellant. Thomas Michael Gannon, U.S. Dept. of J., Washington, DC, for appellee. ON BRIEF: James R. Dedrick, U.S. Atty., Jane H. Jolly, Asst. U.S. Atty., Washington, DC, for appellee.

Before RUSSELL, WIDENER, and HALL, Circuit Judges.

OPINION

WIDENER, Circuit Judge:

Michael John Hanno appeals from a jury verdict of guilty on eight counts involving drug conspiracy, importation, distribution, possession, and smuggling, and one count of illegally transporting monetary instruments. The defendant claims that the district court erred in dismissing six seated but unsworn petit jurors, instructing the jury, and its excessively intervening in the trial by questioning of witnesses. We vacate the convictions and remand for a new trial because the district court erred in dismissing six of the petit jurors already selected by the prosecution and defense, without notice, in the absence of the defendant and his counsel, and without making a record of the proceedings.

On July 20, 1992, jury selection began. Prior to that time, the district court knew that it had two consecutive criminal trials scheduled and two juries to pick. Immediately prior to jury selection on July 20th, the district court stated to counsel that "I may not go with you first but I want to get things lined up." At this time, counsel for the defense informed the court that he had already been told that their trial would be second, scheduled to start the following week, and that the defendant's witnesses and parents were accordingly absent. Stating that that "put him in a box," the district court commenced jury selection. Twelve petit jurors and one alternate juror were selected. The district court acknowledged that the jury was complete, but did not excuse the jurors. The district court informed them that "[i]n all likelihood we will try this case next week and so you will probably be excused, although I can't do it right now but later in the day and will not have to return until next week." Later that same day, the court started jury selection for its next criminal case, United States v. Wittek, No. 92-8-01-CR-4-H (E.D.N.C.), which was to be tried first. The Wittek trial commenced that same day, July 20, 1992.

The defendant's attorney attended to affairs not mentioned in the record for the next week, but upon his return to the district court a week later, on July 27th, to commence Hanno's trial, he found that six of the jurors he had previously selected had been removed from his jury and, presumably, used in Wittek's case. The docket in the Wittek case shows that that jury was selected the same day, July 20th, that the Hanno jury initially was. This removal of the Hanno jurors was done in the absence of the defendant and his attorney and without notice to them. The only explanation for the removal of the jurors in Hanno's case appears in the next recorded proceeding ¹ in that case on July 27th when the district court said We were involved in a term of criminal court last week, and we selected half of the jury and then ran out of jurors. So those of you are seated, six of you, will be joining a group that has already been selected so that we will have a full jury of 12 persons in order to try this case.

The district court then proceeded to recommence jury selection to add six more jurors to the six jurors and one alternate remaining in Hanno's case from July 20th. The alternate that was picked on July 20th remained as an alternate on July 27th. The defendant made no objection to the proceedings on July 27th.

A review of the record of this case, as well as the record in United States v. Wittek, so far as it has been transcribed, does not indicate which of the twelve original jurors were replaced on July 27, how the six who were removed from the Hanno jury were chosen, why the clerk did not simply draw more jurors from the jury wheel pursuant to the Jury Selection Plan, or the exact procedure by which, or order in which, the particular six jurors were removed. It is undisputed that the district court removed the six jurors without notice to, and in the absence of, the defendant and his attorney.

I.

As a threshold determination, we should decide whether the district court's removal of the six jurors is reviewable on appeal, since the defendant failed to raise objection at trial. ² Fed.R.Crim.P. 52(b) provides that "[p]lain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court."

In United States v. Olano, --- U.S. ----, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993), the Court specified four conditions to be met to notice error under Rule 52(b). First, there must be an error, meaning a deviation from a legal rule. Olano, --- U.S. at ----, 113 S.Ct. at 1775. Second, the error must be plain, meaning clear under current law. Olano, --- U.S. at ----, 113 S.Ct. at 1777. Third, the plain error must affect substantial rights, which generally means that the defendant is prejudiced by the error in that it "affected the outcome of the District Court proceedings." Olano, --- U.S. at ----, 113 S.Ct. at 1777.

The fourth and last requirement is a determination that the error "seriously affects the fairness, integrity or public reputation of judicial proceedings." Olano, --- U.S. at ----, 113 S.Ct. at 1777, quoting United States v. Atkinson, 297 U.S. 157, 160, 56 S.Ct. 391, 392, 80 L.Ed. 555 (1936).

II.

The district court committed several errors that meet the first two prongs of Olano. First, the trial court erred when it dismembered the selected jury for the reason that it needed jurors for another trial. Neither the Federal Rules of Criminal Procedure ³ nor the Jury Selection Plan for the Eastern District of North Carolina ⁴ authorize the removal of selected petit jurors merely in order to supplement another jury in which there was a shortage of jurors. Reasonable fidelity to ordinary jury selection procedures is one of the basic protections required to ensure that criminal trials are fair and juries are randomly selected and impartial.

The government contends, however, that the district court's action was justified since the "jurors were removed as a matter of practical necessity," Brief at 13, and cites United States v. Jorn, 400 U.S. 470, 480, 91 S.Ct. 547, 554, 27 L.Ed.2d 543 (1971), in support. Jorn held that a court could not discharge a jury after the defendant had been placed in jeopardy without a showing of a manifest necessity for the discharge. Manifest necessity is equated with so great a need to discharge the jury that "the ends of public justice would otherwise be defeated." Jorn at 482, 91 S.Ct. at 555, quoting United States v. Perez, 9 Wheat. 579, 580, 6 L.Ed. 165 (1824). Jorn was a case in which the district court had discharged the jury, sua sponte, declared a mistrial which was held to be an abuse of discretion, and dismissed the indictment because of double jeopardy. The Court stated that a trial court has a myriad of potential scheduling concerns, including case overloads; the health of jurors, witnesses, and counsel; and the speedy trial requirement, so that the rule against double jeopardy must not be too rigid, but mechanically invoking the rule against double jeopardy would mean that the defendant cannot be brought to justice at all. In Hanno's case, the worst effect that we can suppose, the record being silent, was a minor delay in Wittek's trial while the clerk drew more jurors from the jury wheel, according to the jury plan, to increase the number required for that trial. We cannot agree with the government that this delay rises to the level of Jorn's requirement that such a delay defeat the ends of justice. The conclusion that there is a manifest necessity to discharge a jury must come after a "scrupulous exercise of judicial discretion leads to the conclusion that the ends of public justice would not be served by a continuation of the proceedings." Jorn, 400 U.S. at 485, 91 S.Ct. at 557. "The crucial inquiry is whether less drastic alternatives were available." United States v. Shafer, 987 F.2d 1054, 1057 (4th Cir.1993). That standard was not met in the case before us in which the district court removed selected jurors from one panel to increase those available for another trial for the purpose of avoiding the minor inconvenience that would have been caused by following available procedures.

A second error is that Hanno's jury was dismembered without giving notice to and in the absence of the defendant. This is a violation of the defendant's due process right to be present under the constitution and Fed.R.Crim.P. 43(a). ⁵ "[A]n accused 'has a [constitutional] right to be present at all stages of the trial where his absence might frustrate the fairness of the proceedings.' " Faretta v. California, 422 U.S. 806, 819, 95 S.Ct. 2525, 2533, 45 L.Ed.2d 562 (1975). In our circuit authority most nearly on point here, we concluded in United States v. Camacho, 955 F.2d 950, 952 (4th Cir.1992), that a defendant has such a right under the constitution and Rule 43(a) to be present during the impaneling of a jury and we see no reason to distinguish the dismemberment of this jury in this case. "Convening a criminal tribunal without the presence of the defendant treads precariously close to the concept of trial in absentia, which our system has long disdained." Camacho, 955 F.2d at 953, quoting United States v. Alikpo, 944 F.2d 206, 209 (5th Cir.1991).

The third error that occurred on July 20th, was the dismemberment of the jury in the absence of the defendant's attorney. As the Court noted in United States v. Cronic, 466 U.S. 648, 659, 104 S.Ct. 2039, 2047, 80 L.Ed.2d 657 (1984), "The presumption that counsel...