U.S. v. Nelson, 82-1163
| Decision Date | 09 November 1982 |
| Docket Number | No. 82-1163,82-1163 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Clarence Christian NELSON, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Frank A. Peters, Tacoma, Wash., for defendant-appellant.
James Moore, Asst. U.S. Atty., Tacoma, Wash., for plaintiff-appellee.
Appeal from the United States District Court for the Western District of Washington.
Before WRIGHT, HUG, and SCHROEDER, Circuit Judges.
Nelson appeals his conviction on 13 counts including conspiracy and misapplication of bank funds. He argues that the district judge erred in entering judgment against him because the jury's verdicts were not unanimous. We reverse.
Nelson was the president of a small bank in Longview, Washington, when a grand jury returned a 13-count indictment against him in January, 1982. Count I charged him with conspiring with several unindicted persons to defraud the bank through false statements and misapplication of bank funds; the remaining counts charged him with engaging in various specific instances of misconduct with each of these persons, primarily in violation of 18 U.S.C. Secs. 656 and 1005.
At the conclusion of the jury's deliberations, the foreman passed to the court clerk a form indicating the jury had found Nelson guilty on all 13 counts. After the clerk announced the verdict, the judge ordered him to poll the jurors. When polled, each of the first ten jurors acknowledged the recorded verdicts as their verdicts and the verdicts of the jury. The eleventh juror, however, declared that she did not agree entirely with the verdict previously announced. The colloquy with the juror was as follows:
After the last juror had been polled, the judge ordered the jurors to return to the jury room. Once the jurors had left, Nelson's attorney moved for a mistrial. He argued that "there is obviously a flaw in the verdict, and if there is a flaw in a part there must be a flaw as to all counts." The judge indicated he did not believe this was the idea the juror had meant to convey. The prosecutor, opposing the mistrial motion, agreed with the judge. Although he conceded that no verdict had been reached yet on the first three counts, he also noted that "certainly there is no question on Counts 4 through 13." Without ruling on the mistrial motion, the judge ordered the jury to return to the courtroom.
Upon the jurors' return, the judge immediately sought to confirm juror Peterson's uncertainty as to the first three counts:
Notwithstanding her expression of doubt, the judge accepted the guilty verdict on all 13 counts and excused the jury.
Nelson's attorney filed a timely motion for a new trial, alleging (among other things) that the judge erred in denying his motion for a mistrial. The judge subsequently denied the motion for a new trial, entered a judgment against Nelson on all 13 counts of the indictment, and imposed 13 concurrent five-year sentences. Nelson's attorney filed a notice of appeal that same day.
Nelson argues that the district judge, in accepting the jury's verdict when its decision was not unanimous on all counts, acted contrary to Rule 31(d) of the Federal Rules of Criminal Procedure and, therefore, erred in denying both the motion for mistrial and the motion for a new trial. The Government acknowledges that the judge acted improperly as to the first three counts against Nelson and admits the judgment should be reversed on those counts. Our inquiry thus focuses on whether the district judge erred in entering judgment on the remaining ten counts.
Rule 31(d) grants the judge or any party the absolute...
To continue reading
Request your trial
-
U.S. v. Rastelli
...and no dissent by a juror is registered." United States v. Taylor, 507 F.2d 166, 168 (5th Cir.1975). See also United States v. Nelson, 692 F.2d 83, 84-85 (9th Cir.1982); United States v. Chinchic, 655 F.2d 547, 550 (4th Cir.1981), cert. denied, 471 U.S. 1135, 105 S.Ct. 2674, 86 L.Ed.2d 693 ......
-
U.S. v. Boone
...43(a). A verdict is returned when it is given by the jury to the judge in open court. Fed.R.Crim.P. 31(a). See also United States v. Nelson, 692 F.2d 83, 85 (9th Cir.1982) (in order for a verdict to be accepted, the jury must reach a unanimous verdict and "announce[ ] the verdict in open co......
-
Caldwell v. State
...of Darian Nelson and the attempted shooting of Davon Jackson, in a single incident. The charges were tried together to a jury. In the Nelson case, the jury returned verdicts of not guilty of attempted first-degree murder and guilty of first-degree assault, reckless endangerment, use of a ha......
-
Harrison v. Gillespie
...would not have required the members of the jury to reveal their reasons for reaching a particular conclusion, see United States v. Nelson, 692 F.2d 83, 85 (9th Cir.1982), or any other protected aspect of the deliberative process. Rather, it would have elicited clearly permissible informatio......
-
Trial of sexual harassment case
...assented in the jury room is a concomitant part of testing the “uncoerced unanimity of the verdict.” See United States v. Nelson , 692 F.2d 83, 84 (9th Cir.1982) (“[a]lthough their jury room votes form the basis of the announced verdict, the jurors remain free to dissent from the announced ......