U.S. v. Love

• Decision Date: 25 April 1979
• Docket Number: No. 78-5288,78-5288
• Citation: 597 F.2d 81
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. James L. LOVE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 81

597 F.2d 81

UNITED STATES of America, Plaintiff-Appellee, v. James L. LOVE, Defendant-Appellant.

No. 78-5288.

United States Court of Appeals, Sixth Circuit.

Argued Feb. 20, 1979.

Decided April 25, 1979.

Stanley Fink, Cassell & Fink, Memphis, Tenn., for defendant-appellant.

W. J. Michael Cody, U. S. Atty., Maurice E. Franklin, Memphis, Tenn., for plaintiff-appellee.

Before CELEBREZZE and LIVELY, Circuit Judges, and PHILLIPS, Senior Circuit Judge.

LIVELY, Circuit Judge.

This appeal presents a double jeopardy claim in an unusual factual setting. After granting a motion for acquittal on one count (Count 2) of an indictment, the district court submitted to the jury the remaining charge (Count 3) of receipt and possession of a firearm by one previously convicted of a felony. 18 U.S.C. § 922(h)(1). Count 1 had previously been severed and continued on motion of the defendant. After approximately three hours of deliberation the jury announced that they were unable to agree. The district court then gave a modified "Allen charge." See Devitt & Blackmar, Federal Jury Practice and Instructions § 18.14 (3d ed. 1977). Though the defendant contends that the district court's supplemental charge was too strong, that is not the basis of this appeal.

Somewhat later the jury returned to the courtroom and the foreman announced, ". . . we have reached a verdict of not guilty." The court then proceeded to poll the jury on its own motion, telling the jurors, "Now, we expect your answer to be yes, but if for any reason it is no we expect you to speak up." Each juror was then asked if the verdict announced by the foreman was his verdict. The question to the eighth juror polled produced the following colloquy THE COURT: Mr. Anderson, was that your verdict?

JUROR ANDERSON: No, sir.

THE COURT: Uh-oh, you didn't vote for not guilty?

JUROR ANDERSON: I voted, but I still don't believe it. What it is, the reason I voted not guilty, the majority took over, see, and they say so, and I went on and agreed with them. But I still don't believe it.

THE COURT: I didn't hear what you said.

JUROR ANDERSON: What the person was charged with, I believe they are guilty, but they most of them said not guilty, and they said I had to go along, so I voted not guilty.

After completing the poll of the remaining jurors, the district court again addressed juror Anderson with the following result:

THE COURT: All right, now, Mr. Anderson, did you hear the instructions I gave?

JUROR ANDERSON: I did.

THE COURT: To all the jury saying you must not give up your honest conviction, but if you are persuaded that you are wrong you may change?

JUROR ANDERSON: I was persuaded to vote not guilty, but wasn't persuaded I was wrong about my original verdict.

MR. MCTIGHE: (Prosecutor) Your Honor please, I don't think that's a unanimous verdict.

THE COURT: I agree, I don't think it is a unanimous verdict, and I will declare a mistrial in this case. We will have to try it again.

MR. FINK: (Defense counsel) Your Honor please, I will address myself outside of the presence of the jury.

THE COURT: All right, I'm going to excuse the jury. Sometimes this happens, and Mr. Anderson has very frankly indicated that he didn't agree with that verdict, and I don't think we ought to receive that verdict in view of his statement. So I am going to declare a mistrial and the case will have to be tried over.

The defendant then moved the court to set aside the order of mistrial and reinstate the not guilty verdict. After this motion was denied, the government elected to retry the defendant on the same charge (Count 3) which had been the subject of the mistrial rather than the remaining charge (Count 1) which had been severed from the original indictment. The defendant then made a motion to dismiss Count 3 on grounds of double jeopardy. When this motion was denied the defendant perfected the present appeal.

I

It was suggested at oral argument that the appeal was premature since the defendant's case had not been called for trial a second time, and might never be. However, the parties had been notified by the clerk of court that the case was set for retrial and the motion to dismiss was filed at that time. This was the proper way to raise the double jeopardy defense and the order denying the motion was appealable. Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977); cf. United States v. Jorn, 400 U.S. 470, 477-78, 91 S.Ct. 547, 27 L.Ed.2d 543 (1971). Also, contrary to the government's claim, the notice of appeal was filed within the time prescribed by Rule 4(b), Federal Rules of Appellate Procedure, and this court has jurisdiction of the appeal.

II

The first question for decision is whether it was error for the district court to poll the jury under the circumstances of this case. We have found no case in which a trial court polled a jury which had announced a not guilty verdict and then declared a mistrial upon determining that the verdict was not unanimous. Rule 31, Federal Rules of Criminal Procedure ¹ seems to permit the procedure followed in this case since it makes no distinction between guilty and not guilty verdicts. The defendant has not challenged the propriety of the district court's action in polling the jury on its own motion after a not guilty verdict had been announced. Nevertheless, since substantial rights were affected by the district court's action, we explore this question under the plain error provisions of Rule 52(b), Federal Rules of Criminal Procedure. ²

A.

This court has held that the requirement of a unanimous verdict in criminal cases is for the benefit of the defendant. In an eloquent opinion holding that a defendant in a criminal case may not waive the requirement that a verdict be unanimous, Chief Judge Charles C. Simons wrote that it is a basic tenet of due process that the presumption of innocence not be overturned except by a unanimous verdict. Hibdon v. United States, 204 F.2d 834 (6th Cir. 1953). Further, in discussing the fact that a trial judge may direct an acquittal but may never direct a verdict of guilty no matter how overwhelming the evidence may be, the Supreme Court stated in United States v. Martin Linen Supply Co., 430 U.S. 564, 572-73, 97 S.Ct. 1349, 1355, 51 L.Ed.2d 642 (1977):

The trial judge is thereby barred from attempting to override or interfere with the jurors' independent judgment in a manner contrary to the interests of the accused.

In the same opinion Justice Brennan quoted from United States v. Ball, 163 U.S. 662, 671, 16 S.Ct. 1192, 41 L.Ed. 300 (1896), as follows:

Perhaps the most fundamental rule in the history of double jeopardy jurisprudence has been that "(a) verdict of acquittal . . . could not be reviewed, on error or otherwise, without putting (a defendant) twice in jeopardy and thereby violating the Constitution." 430 U.S. at 571, 97 S.Ct. at 1354.

Thus if the announcement of the verdict by the foreman was the final verdict of the jury it would be a violation of the Constitution to require the defendant to endure another trial on Count 3.

However, the very existence of Rule 31(d) which provides for polling a jury after its verdict has been returned but before it is recorded compels the conclusion that a verdict is not final when announced. This conclusion is also implicit in opinions which have explained the purpose of permitting juries to be polled. See e. g., United States v. Edwards, 469 F.2d 1362, 1366 (5th Cir. 1972):

The object of a poll is to give each juror an opportunity, before the verdict is recorded, to declare in open court his assent to the verdict which the foreman has returned and thus to enable the court and parties "to ascertain for a certainty that each of the jurors approves of the verdict as returned." Humphries v. District of Columbia, 174 U.S. 190, 194, 19 S.Ct. 637, 638-639, 43 L.Ed.2d 944 (1899);

and Miranda v. United States, 255 F.2d 9, 18 (1st Cir. 1958):

For the right to poll the jury is the right to require each juror individually to state publicly his assent to or dissent from the returned verdict which has been announced in open court in his presence.

It thus appears that the purpose of the jury poll is to make certain that one of the prerequisites of a valid verdict unanimity has been achieved. The Fifth Circuit has held that "a jury has not reached a valid verdict until deliberations are over, the result is announced in open court, and no dissent by a juror is registered." A footnote states, "Even at this point, where the verdict is announced to the court and no dissent is voiced, the verdict may not be accepted by the court if a poll taken before the verdict is recorded indicates lack of unanimity." United States v. Taylor, 507 F.2d 166, 168 (5th Cir. 1975) (citations omitted). This holding reflects a generally accepted position with respect to finality of verdicts. See 5A J. Moore, Fed. Prac. § 49.07 at 2237 n. 1 (2d ed. 1977) (civil verdicts not final until announced, received by court and recorded by clerk). Since the verdict as announced was not final we conclude that the district court did not deprive the defendant of the benefit of a valid not guilty verdict in polling the jury.

B.

The defendant does question the propriety of the act of polling the jury for a different reason, contending that the poll conducted by the district court resulted in an impeachment of the verdict. However, there is a difference between impeaching a valid verdict and correcting an announced verdict which does not reflect the true action of the jury. See Young v. United States, 163 F.2d 187, 189 (6th Cir.), Cert. denied, 332 U.S. 770, 68 S.Ct. 83, 92 L.Ed. 355 (1947) and 334 U.S. 859, 68 S.Ct. 1533, 92 L.Ed. 1779 (1948). Numerous cases have approved the practice of permitting a jury to correct a mistake in its announced verdict before it has been accepted and the jury discharged. See United States v. Henson, 365 F.2d 282, 284 (6th Cir.), Cert. denied, 385 U.S. 974, ...