U.S.A. v. Harbin

• Decision Date: 08 May 2001
• Docket Number: Nos. 99-3255,99-3295,s. 99-3255
• Citation: 250 F.3d 532
• Parties: (7th Cir. 2001) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. DRIEFUS HARBIN, a/k/a OMAR, HERMAN HICKS, a/k/a HERM, and RADAR TYLER, a/k/a BIG DAR, Defendants-Appellants. & 99-3492
• Court: U.S. Court of Appeals — Seventh Circuit

Page 532

250 F.3d 532 (7th Cir. 2001)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. DRIEFUS HARBIN, a/k/a OMAR, HERMAN HICKS, a/k/a HERM, and RADAR TYLER, a/k/a BIG DAR, Defendants-Appellants.

Nos. 99-3255, 99-3295 & 99-3492.

In the United States Court of Appeals For the Seventh Circuit

Argued Nov. 2, 2000

DECIDED MAY 8, 2001

Appeals from the United States District Court for the Northern District of Indiana, Hammond Division. No. 98 CR 78--Rudy Lozano, Judge. [Copyrighted Material Omitted]

[Copyrighted Material Omitted]

[Copyrighted Material Omitted]

[Copyrighted Material Omitted] Before HARLINGTON WOOD, JR., RIPPLE, and ROVNER, Circuit Judges.

ROVNER, Circuit Judge.

This Court has addressed many appeals related to the use of peremptory challenges, but this one appears unprecedented. Here, the prosecutor was allowed to use a peremptory challenge "saved" from the jury selection phase to eliminate a juror on the sixth day of an eight-day trial. The defendants seek a new trial, arguing that the prosecution's mid-trial use of a peremptory challenge violated their Fifth Amendment due process right to a fair trial as well as their Fifth Amendment right to the intelligent exercise of their peremptory challenges. We agree.

I.

The defendants were charged along with a number of others in a multi-count indictment with conspiracy to possess with intent to distribute and to distribute 50 grams or more of crack cocaine in violation of 21 U.S.C. sec. 846, use of a minor in the conspiracy in violation of 21 U.S.C. sec. 861(a) & 18 U.S.C. sec. 924(j), possession with intent to distribute in excess of five grams of crack, in violation of 21 U.S.C. sec. 841 (a)(1), and carrying a firearm during a drug trafficking offense, in violation of 18 U.S.C. sec. 924(c)(1). They proceeded to trial on the charges and the jury ultimately convicted all three of the conspiracy charge and one possession charge, convicted Hicks and Tyler of an additional possession charge, and acquitted them of the use of a minor and firearms charges. They now argue that the jury selection process was constitutionally deficient.

The process for exercising peremptory challenges began routinely enough, with the court declaring that after challenges for cause, each side could submit peremptory challenges for the potential jurors following questioning by the court. The court cautioned that "[t]hose jurors remaining in the jury box after challenges are exercised may not again be challenged except for cause." Tr. at Vol. 1, pp. 88-89. Following the challenges, the vacated seats would be filled with additional prospective jurors, and the process would be repeated. However, that process as set forth by the court was not followed on two occasions. The first occurred during pre-trial jury selection and is not before us on appeal. During pre-trial jury selection, two potential jurors who had survived the peremptory and cause challenges subsequently informed the court of conflicts regarding their ability to serve. One had a vacation scheduled to begin in nine days, and the other had day care problems. The court allowed the government to use peremptory challenges to strike both of those potential jurors, stating "you can use your peremptories because this is new information." Tr. at Vol. 1, p. 193. Defendant Tyler objected to that use of peremptory challenges, arguing that the late dismissal of those jurors put him at a disadvantage in the use of his own peremptory challenges, but he does not pursue that on appeal.

During that voir dire process, the district court allowed both parties to submit questions that the court wouldpresent to potential jurors, and the court clarified repeatedly that the failure to submit questions would constitute a waiver. Although the government later commented that it thought the court's typical voir dire asks about narcotics use, the government never submitted any such question and the potential jurors were never queried on the subject.

Ultimately, the defendants exhausted all of their peremptory challenges with two jury seats remaining to be filled. The government had not used all of its available peremptory challenges at the time that the jury selection process was completed. At the close of the jury selection process, both sides accepted the jury.

On the sixth day of the eight-day trial, the court brought to the attention of the attorneys a note it had received from one of the jurors which read:

I, [Juror M]¹, felt it was my duty to let the Court know that one of the State's witnesses, I know his mom. I felt that I should make the Court aware of this. As my civic duty, I plan to carry on, with no intentions of being swayed because of this plight. Thanks, [Juror M].

With the approval of all attorneys, the judge decided to question Juror M in open court out of the presence of the other jurors. Juror M related that he knew the mother of government witness John King. He said her name was Plemeer, and that he worked with her at Benton Harbor and was in a Narcotics Anonymous program with her. He learned of her relationship with witness King when Plemeer heard that he was on jury duty and told him that John King was her son. Juror M then told Plemeer that he could not say anything else and ended the conversation. He told the court that she was "completely okay with everything" and was not trying to sway him. In response to the court's questions, Juror M affirmed that the information would not cause him any problems or reservations in the case either for or against the government or defendants, that he could put aside that knowledge as a juror, and that he could be a good, fair and impartial juror.

The court consulted with the attorneys, at which time the government requested that the court question Juror M further about his participation in Narcotics Anonymous. The court then asked Juror M why he did not reveal his Narcotics Anonymous participation when queried about any organizations to which he belonged. Juror M replied that he considered it a program, with meetings that are attended anonymously as needed, rather than an organization of which one was a member. In response to questions by the court, he declared that his history as a narcotics user would not cause him any bias or prejudice in the case. In light of those responses, the court declined to dismiss him for cause. Over the defendants' objections, the court nevertheless allowed the government to exercise one of its peremptory challenges "left over" from jury selection, based on the newly discovered information. Because Juror M was one of two African-Americans on the jury and the sole African-American male, the challenge impacted the racial composition of the jury, but the defendants did not raise a Batson challenge to the government's use of the peremptory.

This is a direct appeal and thus governed by Federal Rule of Criminal Procedure 52(a) ("Rule 52(a)"), which allows reversal only for errors that affect substantial rights. Neder v. United States, 527 U.S. 1, 7 (1999). Therefore, we must determine whether there was error here and, if so, whether that error affected the defendants' substantial rights.

II.

The government does not even concede that it was error for the court to allow it unilateral use of peremptory challenges mid-trial, much less error that affects substantial rights. Not surprisingly, the rule which delineates the federal right to peremptory challenges, Fed. R. Crim. P. 24, does not explicitly address the use of peremptory challenges mid-trial. But peremptory challenges by their very nature are a jury selection tool, and have historically and uniformly been limited to the pre-trial jury selection process. Moreover, the district court set forth the rules by which peremptory challenges could be used in this case, and those rules precluded the use of peremptory challenges once a potential juror passed the first round of challenges. Those procedures were not followed, with the result that only the prosecution had the opportunity to subsequently exercise peremptory challenges. Because peremptory challenges are a tool used in jury selection that had never before been extended to the trial itself, the defendant had no reason to "save" peremp tory challenges for use during trial. In fact, the ability to remove jurors with peremptory challenges mid-trial is a significant weapon. At that time, the parties have had the opportunity to observe the demeanor of the jurors and to employ that knowledge in their decision. It would fundamentally alter the peremptory challenge to allow its use in this manner.

Moreover, the alternate juror provisions indicate that peremptory challenges do not survive the jury selection process. First, Rule 24(c) allows the court to empanel no more than six alternate jurors. If the parties were allowed to "save" their peremptory challenges for use during the trial, however, that number of alternates would be woefully inadequate to ensure that a jury remained once the challenges were used. Rule 24(c) also provides that alternate jurors shall replace regular jurors who are "unable" or "disqualified" to perform their duties. In the present case, Juror M was neither unable to perform his duties, nor was he disqualified from performing them. He was instead a qualified, presumptively-impartial juror who was removed at the discretion of the prosecution without cause. Such a discretionary removal runs counter to the limitations set forth in Rule 24(c) for replacement of regular jurors with alternates. The court's decision to allow the prosecutor to remove an impartial juror mid-trial was therefore error.

The government's argument that the district court limited the mid-trial use of peremptory challenges to situations involving new information does not alter that conclusion. If that new information impacted the juror's impartiality, the juror could be removed for cause. Absent that, however, the prosecutor does not have the discretion to...