U.S. v. Reed

• Decision Date: 05 May 1986
• Docket Number: D,No. 655,655
• Citation: 790 F.2d 208
• Parties: UNITED STATES of America, Appellee, v. John REED, Defendant-Appellant. ocket 85-1245.
• Court: U.S. Court of Appeals — Second Circuit

Page 208

790 F.2d 208

UNITED STATES of America, Appellee, v. John REED, Defendant-Appellant.

No. 655, Docket 85-1245.

United States Court of Appeals Second Circuit.

Argued Jan. 7, 1986.

Decided May 5, 1986.

Henriette D. Hoffman, The Legal Aid Society, New York City, for defendant-appellant.

Louis M. Fischer, Dept. of Justice, Washington, D.C. (Stanley A. Twardy, Jr., U.S. Atty., and William I. Shockley, Ass't U.S. Atty., Bridgeport, Conn., on brief), for appellee.

Before FEINBERG, Chief Judge, and VAN GRAAFEILAND and WINTER, Circuit Judges.

VAN GRAAFEILAND, Circuit Judge:

John Reed appeals from a judgment of the United States District Court for the District of Connecticut convicting appellant after a jury trial before Judge Eginton on one count of wire fraud, 18 U.S.C. Sec. 1343, and one count of conspiracy to export articles on the United States Munitions List without a license from the Department of State and with the use of false export documents, 18 U.S.C. Sec. 371, 22 U.S.C. Sec. 2778(b)(2) and (c). We affirm.

Appellant's conviction stems from his role as a middleman who brought together prospective buyers and a seller in a scheme to export 400,000 chemical warfare protective suits to Iran. Because the suits are classified as defense articles on the United States Munitions List, see 22 C.F.R. Sec. 121.1, their export is permitted only with prior approval from the Department of State. Since 1980, the United States has refused to grant export licenses for the shipment of defense articles to Iran. See Arms Export and Import Control Act, 22 U.S.C. Sec. 2751 et seq.; International Traffic in Arms Regulations, 22 C.F.R. Secs. 121-30. Appellant and his coconspirators planned to procure a falsified "end use certificate" listing Italy as the final destination for the suits, and then to transfer the suits from Italy to Iran. The plan was frustrated, however, when the prospective seller of the suits became suspicious of the purchasers' requirement that the suits not be made by persons of the Jewish faith. Deducing from this that Italy might not be the actual destination for the suits, the seller alerted the United States Customs Service. A Customs Agent, posing as the seller's export manager, insinuated himself into the scheme and gathered the evidence that formed the basis for Reed's indictment and subsequent conviction.

Appellant contended at trial that he did not know the suits ultimately were destined for Iran. Two witnesses testified, however, that they had told Reed while negotiations for the sale were in progress that the deal was not legitimate. In addition, the Government introduced evidence that appellant had made several prior offers to procure various defense items in violation of import-export laws, both to the participants in the Iranian deal and to others. In his charge to the jury, the trial judge gave a conscious avoidance instruction ¹ as well as an instruction on the specific intent element of the crime of conspiracy.

Prior to charging the jury, the trial judge proposed to counsel for both sides that the single alternate juror be permitted to deliberate and participate in the verdict since he had "stuck through" the six-week proceeding. Both sides agreed to the judge's proposal, under which all thirteen jurors would have to return a unanimous verdict. After three days of deliberation, the thirteen-man jury returned a unanimous verdict of guilty on both counts.

Appellant's principal contention on appeal is that, in submitting his case to a thirteen-man jury, the district court violated Fed.R.Crim.P. 24(c), which requires a trial court to discharge unneeded alternate jurors prior to the time the jury commences its deliberations. Appellant contends that Rule 24 gave him the absolute right to be tried by a jury of no more than twelve and that this right could not be waived. We disagree.

In support of his contention, appellant cites decisions premised on the former widespread assumption that the Constitution required trial by a jury of twelve. See, e.g., United States v. Hayutin, 398 F.2d 944, 950 (2d Cir.), cert. denied, 393 U.S. 961, 89 S.Ct. 400, 21 L.Ed.2d 374 (1968). However, in Williams v. Florida, 399 U.S. 78, 90 S.Ct. 1893, 26 L.Ed.2d 446 (1970), the Supreme Court held that "the fact that the jury at common law was composed of precisely 12 is a historical accident" and refused to interpret the Sixth Amendment in such a manner as to dictate the precise number that can constitute a jury. Id. at 102-03, 90 S.Ct. at 1907. It follows that a violation of Rule 24(c) does not require reversal per se absent a showing of prejudice. United States v. Jones, 763 F.2d 518, 523 (2d Cir.), cert. denied, --- U.S. ----, 106 S.Ct. 386, 88 L.Ed.2d 339 (1985); United States v. Hillard, 701 F.2d 1052, 1058 (2d Cir.), cert. denied, 461 U.S. 958, 103 S.Ct. 2431, 77 L.Ed.2d 1318 (1983). There has been no such showing in the instant case. Moreover, we agree with the observation of the Supreme Court of Washington that "[i]t would be difficult to see how [appellant] would be prejudiced by the use of a jury of thirteen instead of twelve." State v. Cuzick, 85 Wash.2d 146, 148, 530 P.2d 288 (1975).

We are strengthened in this belief by several comments in United States Supreme Court opinions that followed Williams v. Florida, supra. In Johnson v. Louisiana, 406 U.S. 356, 362, 92 S.Ct. 1620, 1624, 32 L.Ed.2d 152 (1972), in which the Court upheld the defendant's conviction of robbery by a nine-man majority vote of the jury, Justice White said:

Of course, the State's proof could perhaps be regarded as more certain if it had convinced all 12 jurors instead of only nine; it would have been even more compelling if it had been required to convince and had, in fact, convinced 24 or 36 jurors.

In Ballew v. Georgia, 435 U.S. 223, 234, 98 S.Ct. 1029, 1036, 55 L.Ed.2d 234 (1978) Justice Blackmun said:

Statistical studies suggest that the risk of convicting an innocent person ... rises as the size of the jury diminishes.

Justice Brennan, writing in Brown v. Louisiana, 447 U.S. 323, 332, 100 S.Ct. 2214, 2221, 65 L.Ed.2d 159 (1980), said that "a decline in jury size leads to less accurate factfinding and a greater risk of convicting an innocent person."

Although the risk of conviction by a twelve-man jury might not be appreciably greater than by a thirteen-man jury, we are satisfied that there is no likelihood whatever that a thirteen-man jury would convict more readily than would a twelve-man jury. Apparently, appellant and his trial counsel felt the same way. When the district judge suggested the possibility of using a thirteen-man jury, he directed defense counsel to discuss the matter with his client; the court stated that the procedure had to be agreed upon by both the Government and the defense or else he would not allow it. Thereafter, when defense counsel informed the judge that an agreement had been reached, the judge told the jury that the parties and counsel had consented to the alternate sitting as a juror. He instructed the jury that "your verdict of all 13 must be unanimous". When the jury returned to report its verdict, the court inquired whether "the jury of 13 had reached a unanimous verdict".

Appellant never has contended, either in the district court or in this Court, that he personally did not consent to the thirteen-man panel. The sole contention of his appellate counsel is that "Reed did not agree on the record to a 13-person jury." This contention must be viewed in the light of the generally accepted proposition that the lawyer is the agent of his client and his statements and representations in open court may be accepted by the court absent a showing of bad faith or gross negligence. See United States v. McKeon, 738 F.2d 26, 30 (2d Cir.1984); Brown v. Wainwright, 665 F.2d 607, 612 (5th Cir.1982) (en banc). There are numerous cases which hold that personal colloquy need not take place between the court and the defendant before there can be an effective waiver of a twelve-man jury. See, e.g., United States...