U.S. v. Lamb, 74--2406

• Decision Date: 29 December 1975
• Docket Number: No. 74--2406,74--2406
• Citation: 529 F.2d 1153
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Joseph Corre LAMB, Jr., Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1153

529 F.2d 1153

UNITED STATES of America, Plaintiff-Appellee, v. Joseph Corre LAMB, Jr., Defendant-Appellant.

No. 74--2406.

United States Court of Appeals, Ninth Circuit.

Dec. 29, 1975.

Nicholas R. Allis (argued), Deputy Federal Public Defender, Los Angeles, Cal., for defendant-appellant.

W. Michael Mayock, Asst. U.S. Atty. (argued), Los Angeles, Cal., for plaintiff-appellee.

OPINION

Before CHAMBERS, KOELSCH, BROWNING, DUNIWAY, ELY, HUFSTEDLER, WRIGHT, TRASK, CHOY, GOODWIN, WALLACE, SNEED and KENNEDY, Circuit Judges.

ELY, Circuit Judge:

The appellant, in his third trial, was convicted of the offense of bank robbery. 18 U.S.C. § 2113(a), (d). In urging reversal, the appellant presents several contentions, only one of which need now be reached. This is the contention, with which we agree, that reversal is required because of the failure of the District Court to comply with the plain requirements of Fed.R.Crim.P. 24(c). The circumstances giving validity to this contention are briefly and accurately summarized as follows:

After instructing the jury, the district judge told an alternate juror that she was excused and would be permitted to go home, but asked her to 'stand by' in case it was 'necessary for (her) to come in.' After almost four hours of deliberation spread over two days, the jury returned a verdict of guilty. The judge refused to accept the verdict because of his belief that the verdict was inconsistent with the instructions.

The district judge then announced that when he returned from a luncheon recess he found a note from one of the jurors, which stated:

'Your Honor, due to the sudden accidental death of one of my close co-workers during the course of this trial, I feel emotionally unable to come to a decision.'

Fed.R.Crim.P. 24(c) states in pertinent part:

'Alternate jurors in the order in which they are called shall replace jurors who, prior to the time the jury retires to consider its verdict, become or are found to be unable or disqualified to perform their duties. . . . An alternate juror who does not replace a regular juror shall be discharged after the jury retires to consider its verdict. . . .' (Emphasis added.)

Two other Courts of Appeals that have considered the question have held that the requirement that the alternate shall be discharged after the jury retires is a 'mandatory' requirement that should be followed because '. . . any benefit to be derived from deviating from the Rule is unclear and the possibility of prejudice so great.' United States v. Allison, 481 F.2d 468, 472 (5th Cir. 1973), subsequent appeal, 487 F.2d 339 (5th Cir. 1973), cert. denied, 416 U.S. 982, 94 S.Ct. 2383, 40 L.Ed.2d 759 (1974); ¹ United States v. Hayutin, 398 F.2d 944 (2d Cir.), cert. denied, 393 U.S. 961, 89 S.Ct. 400, 21 L.Ed.2d 374 (1968), ² subsequent appeal sub nom., United States v. Nash, 414 F.2d 234 (2d Cir.), cert. denied, 396 U.S. 940, 90 S.Ct. 375, 24 L.Ed.2d 242 (1969). The unambiguous language of the Rule and the cases interpreting it ³ have impelled one of the Nation's most prestigious legal commentators to conclude that '. . . it is reversible error, even though defendant may have consented, to permit an alternate to stay with the jury after they have retired to deliberate or to substitute an alternate after deliberations have begun.' C. Wright, Federal Practice and Procedure § 388, Vol. 2 at p. 52 (1969). ⁴ In his discussion, Professor Wright criticizes our court's Leser decision, discussed infra.

The Rule is phrased in mandatory terms for what many have thought to be sound reasons. ⁵ Among such reasons are: The inherent coercive effect upon an alternate juror who joins a jury that has, as in this case, already agreed that the accused is guilty is substantial. Moreover, such a procedure significantly limits the accused's right to a mistrial if the original jury cannot reach agreement. A lone juror who could not in good conscience vote for conviction could be under great pressure to feign illness or other incapacity so as to place the burden of decision on an alternate juror. ⁶

That impermissible coercion upon the alternate juror in this case was manifestly inherent, and that there was not the conscientious, careful reconsideration by the twelve of the newly constituted jury would seem apparent from the fact that, despite the district judge's instruction to the jury to 'begin at the beginning,' a jury that had required almost four hours to reach its initial verdict needed, after being reconstituted, only twenty-nine minutes to find the appellant guilty a second time. ⁷ The prosecution argues that we should infer from the record that there had been a stipulation in this case of the type found in Leser v. United States, 358 F.2d 313 (9th Cir. 1966), petition for cert. dismissed,385 U.S. 802, 87 S.Ct. 10, 17 L.Ed.2d 49 (1966), wherein we held that, because of the previously expressed stipulation, an alternate juror could be substituted despite Rule 24(c). There is absolutely no basis in the present record for the conclusion that there was such an agreement. The record clearly reveals the defense attorney's vigorous objection to substitution of the alternate juror under conditions that the attorney properly characterized as 'a very unusual circumstance and very unforeseeable.' We cannot agree with the prosecution, on the authority of a case involving an express stipulation in explicit detail, that defense counsel's failure to object to a routine admonition to an alternate to 'stand by' rises to the level of an express agreement to a procedure clearly infringing the unambiguous, mandatory prohibition of Fed.R.Crim.P. 24(c).

Moreover, even had there been such a stipulation before the jury retired, we could not hold that such a stipulation would remain effective after dramatic changes of circumstances, including the original jury's arrival at a guilty verdict and the court's telephone call to the alternate juror to advise her that her services would no longer be required because the original jury had reached a verdict. Indeed, it is doubtful, after the court informed the alternate juror she would no longer be needed, that this juror remained as a qualified alternate. In realistic effect her release by the court, even though it developed to be only temporary, relieved her of all obligations of the usual juror, including the obligation of confidentiality. There is no way by which one could ascertain, from the record before us, whether the alternate juror discussed the case with others after she was told not to return because the original jury had reached a verdict, and if so, the scope and extent of any such discussion.

Reversed and remanded.

EUGENE A. WRIGHT, Circuit Judge, with whom TRASK, Circuit Judge, concurs (dissenting):

With due respect to the views of the majority, I must dissent.

I.

Some additional facts may be helpful in understanding the situation with which the trial court was confronted. In this prosecution for armed bank robbery, the government's case consisted of three eyewitnesses who identified Lamb as the robber and a confession by him to the commission of the offense. The defense consisted of an attempt to raise doubts as to the reliability of the eyewitnesses' identification and the authenticity of the confession. Lamb did not testify.

The jury was duly instructed and the alternate juror was directed to stand ready to be summoned and was charged not to discuss the case meanwhile with any person. The court asked both counsel: 'Is the charge satisfactory, gentlemen?' Both responded affirmatively. ¹ Thereafter, at 4:09 P.M., the jury retired to deliberate.

The jury recessed at 5:00 P.M. of the same day, and reconvened at 9:30 A.M. the following morning. Between 11:04 A.M. and 11:25 A.M. the trial judge, at the jury's request, reread his instructions. The jury recessed at 11:50 A.M. for the noon meal.

During noon recess the judge received the note from one of the original jurors, as described by the majority. He then telephoned the alternate juror and instructed her to return to court. Shortly thereafter, however, the judge learned that the jury had reached its verdict. He therefore called the alternate again.

After determining that the verdict was improper, and acceding to defense counsel's suggestion that the original juror with the emotional difficulties not be allowed to continue, the judge concluded:

Well, in view of that I guess we should call Mrs. Del Toro again and tell her to come.

The elapsed time between the notification of the alternate juror not to come back to court, and the subsequent notification to the contrary, was no more than two hours.

The court reread the instructions and admonished the newly constituted jury to begin its deliberations anew. In addition, the court, at the prompting of government counsel, made appropriate and significant inquiries after the final verdict was returned. It asked whether the jury had begun deliberations and discussed all points of evidence. The foreman and Mrs. Del Toro both responded affirmatively. The defendant does not argue that this was incorrect or that the jury did not duly follow the court's instructions and admonitions.

II.

The majority recites a number of factors supporting its decision to reverse. It is unclear to me which, if any, of those factors actually bear on the majority's disposition.

The majority asserts that 'impermissible coercion . . . would seem apparent' in that the new jury deliberated only 29 minutes, while the old jury needed nearly four hours. The very language employed demonstrates the majority's lack of conviction. Indeed, by its footnote 7 the majority recognizes the speculativeness of this contention, stating that the 'twenty-nine minutes . . . is not a factor contributing to our conclusion.' This is understandable.

The original jury asked that the instructions be reread and did not deliberate anew until approximately 11:30 A.M., and deliberated again from...