U.S. v. Jefferson, 00-60464

• Citation: 258 F.3d 405
• Decision Date: 16 July 2001
• Docket Number: No. 00-60464,00-60464
• Parties: (5th Cir. 2001) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. MICHAEL JEFFERSON, Defendant-Appellant
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 405

258 F.3d 405 (5th Cir. 2001)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. MICHAEL JEFFERSON, Defendant-Appellant.

No. 00-60464

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

July 16, 2001

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Appeal from the United States District Court For the Southern District of Mississippi

Before EMILIO M. GARZA and PARKER, Circuit Judges, and HINOJOSA, District Judge.^*

ROBERT M. PARKER, Circuit Judge:

Michael Jefferson was tried and convicted by a jury in the United States District Court for the Southern District of Mississippi for committing the offense of aiding and abetting and carjacking in violation of 18 U.S.C. §§ 2 and 2119. Jefferson received a sentence of 168 months imprisonment, a three year term of supervised release, restitution of $2,865 and a $100 special assessment. He now appeals that conviction and sentence. For the reasons below, we AFFIRM Jefferson's conviction and sentence.

FACTS AND PROCEDURAL HISTORY

On February 27, 1999, Jefferson and Cornell Campbell approached Leonard Miller, a security guard at the DeVille Apartments where Jefferson and Campbell lived, about purchasing for $300 Miller's .357 revolver, which was then in the possession of Miller's brother at another apartment complex. Jefferson and Miller did not come to an agreement on the purchase. Nevertheless, Miller requested Jefferson to take Miller's car and go retrieve the handgun from his brother as Miller could not leave his guard booth to go get the handgun.

After retrieving the handgun, Jefferson and Campbell drove to the Metrocenter Mall in Jackson, Mississippi, where Dorothy Touchberry sat alone in a rented green 1998 Subaru car parked in front of Dillards department store. While Touchberry waited on her granddaughter to return from inside the mall, a single individual jerked open the car door, grabbed Touchberry by the hair and put a gun in her face. Touchberry wrestled with the assailant and managed to get out of the car for a moment, only to be subsequently struck on the back of the head and forced back into the vehicle. Touchberry then feigned being knocked out while she quietly tried to locate the door handle. Upon finding the handle, Touchberry proceeded to open the door and jumped out of the moving vehicle as the assailant, followed by Miller's car, fled in the green Subaru containing Touchberry's purse and other personal effects.

While making their get away, the driver of Miller's car lost control on a wet road as he approached a stop light and collided into the back of the green 1998 Subaru causing extensive damage to the rear of the Subaru and the front of Miller's car. The driver then abandoned Miller's car at the intersection where police later recovered it. In the days following the carjacking, someone used Touchberry's credit cards to purchase two video cameras, other electronic equipment, and miscellaneous items.

On March 3, 1999, police arrested Jefferson inside the Union Planter's Bank as he attempted to obtain money from Touchberry's account. At the time of arrest, Jefferson possessed one of Touchberry's checks made payable to Michael Jefferson in the amount of $700. Additionally, police arrested Campbell as he sat in the passenger seat of a damaged green 1998 Subaru parked outside the bank in the drive through lane. Inside the Subaru police found two video cameras, a credit card receipt on Touchberry's account for the video cameras, Miller's .357 revolver, and other items.

Campbell testified that Jefferson actually committed the carjacking offense and that he, Campbell, only watched and drove Miller's car from the mall. Touchberry testified that she did not recognize Jefferson as being her attacker but did identify Campbell, from a video tape made by Jefferson and Campbell and left in one of the video cameras in the Subaru.

While delivering the verdict, the jury foreperson stated that the jury had reached a unanimous decision. The jury foreperson then passed the verdict form to the court security officer at which time the Clerk read aloud the form of the verdict finding Jefferson guilty as charged by a unanimous decision. The court then proceeded to poll each juror, "whether this is your verdict", whereupon all twelve jurors answered affirmatively. Then, the following exchange took place:

UNIDENTIFIED JUROR: I said guilty, but I do I have reservations.

THE COURT: Is this your verdict?

UNIDENTIFIED JUROR: (Juror nods head in affirmative response.)

THE COURT: It is unanimous. The jury has found the defendant guilty as charged.

Jefferson argues on appeal that 1) the verdict of the jury was not unanimous, 2) the sentence was erroneously enhanced by a finding that the victim was abducted, 3) the government was erroneously allowed to make a Golden Rule argument during closing, 4) that he, Jefferson, was entitled to an adjustment in sentencing for acceptance of responsibility, 5)that the sentence was erroneously enhanced by a finding that a gun was "otherwise used" as defined in U.S.S.G. § 2B3.1(b)(2)(B), 6)that the sentence was erroneously enhanced by a finding that the victim received bodily injury as defined in U.S.S.G. § 2B3.1(b)(3)(A), 7) the government was erroneously allowed to argue that its evidence was undisputed and to otherwise comment on the fact that he, Jefferson, did not testify, and 8)the conviction was not adequately and sufficiently supported by the weight of the evidence.

UNANIMITY OF THE VERDICT

Jefferson argues that a juror's expression of reservations concerning her verdict during the polling of the jury indicated a lack of unanimity and the subsequent questioning employed by the trial judge was in violation of Fed.R.Crim.P. 31. Furthermore, Jefferson argues that the court erred in denying his motion for new trial on the grounds that the jury's verdict was not unanimous. We review these claims for abuse of discretion. United States v. Asibor, 109 F.3d 1023 (5th Cir. 1997); United States v. McWain, 243 F.3d 871 (5th Cir. 2001).

In pertinent part, Fed.R.Crim.P. 31 states:

(a) Return. The verdict shall be unanimous. It shall be returned by the jury to the judge in open court.

(d) Poll of Jury. After a verdict is returned but before the jury is discharged, the court shall, on a party's request, or may on its own motion, poll the jurors individually. If the poll reveals a lack of unanimity, the court may direct the jury to deliberate further or may declare a mistrial and discharge the jury.

The purpose of a jury poll

"is to give each juror an opportunity, before theverdict [sic] is recorded, to declare in open court his assent to the verdict which the foreman has returned and thus to enable the court and the parties to ascertain with certainty that a unanimous verdict has in fact been reached and that no juror has been coerced or induced to agree to a verdict to which he had not fully assented."

United States v. Sexton, 456 F.2d 961, 966 (5th Cir. 1972) (citations omitted).

In the instant case, the jury deliberated for more than three hours before the jury foreperson announced that they had reached a unanimous decision. The form of the verdict, signed by all twelve members of the jury was read aloud in open court. "We the jury find the defendant, Michael Jefferson, guilty as charged. So say we all . . . ." Upon its own motion, the court then polled all twelve members of the jury individually, "whether this is your verdict" to which all twelve jurors answered affirmatively. Only after this did a juror indicate that she had voted guilty but had reservations. Upon hearing the juror express that she had reservations, the court inquired of the juror, "[i]s this your verdict?" whereupon the juror nodded her head affirmatively. The court then received, announced and recorded the verdict.

Jefferson argues that the trial judge's questioning of a juror subsequent to the polling was an abuse of discretion in violation of Fed.R.Crim.P. 31(d) as the expression of reservations by the juror indicated a lack of unanimity and therefore, the trial judge's only options were to direct the jury to deliberate further or declare a mistrial and discharge the jury. In support of this contention, Jefferson cites a litany of cases where a verdict has been found to lack unanimity due to inconsistencies between verdicts rendered by individual jurors and statements made during a jury polling. Cook v. United States, 379 F.2d 966 (5th Cir. 1967); United States v. Deerman, 837 F.2d 684 (5th Cir. 1988); United States v. Sexton, 456 F.2d 961 (5th Cir. 1972); United States v. Edwards, 469 F.2d 1362 (5th Cir. 1972).

The instant case is distinguishable from the cases cited by Jefferson because a juror stated that she had reservations only after twice delivering a guilty verdict and then subsequently affirmed her verdict of guilty. Upon hearing the juror express reservations, the trial judge inquired as to whether the juror's verdict was truly one of guilty. The juror did not dissent, fail to vote in the deliberations, express doubt, withdraw her verdict, or do anything else that revealed a lack of unanimity. Rather, she affirmed the guilty verdict.

Prior to deliberations, the jury was given instructions concerning the standard of beyond a reasonable doubt. While a juror's expression of reservations may indicate the need for further inquiry to ascertain with certainty that the juror assents to the verdict as rendered, simply expressing reservations in conjunction with a guilty verdict, in and of itself, is not sufficient to indicate a lack of unanimity. The standard of beyond a reasonable doubt does not require a juror to find with absolutely certainty that a defendant is guilty. A juror may have reservations and still find the evidence presented to be sufficient to meet the burden established by the standard of beyond a reasonable doubt. United States v. Antwine, 873 F.2d 1144, 1148 (8th Cir. 1989).

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