U.S. v. Rodriguez, 76-4055
| Decision Date | 22 December 1977 |
| Docket Number | No. 76-4055,76-4055 |
| Citation | 564 F.2d 1189 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Mary Rangel RODRIGUEZ, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Philip S. Greene, Gerald M. Birnberg, Houston, Tex., for defendant-appellant.
J. A. Canales, U. S. Atty., Mary L. Sinderson, Asst. U. S. Atty., George A. Kelt, Jr., Asst. U. S. Atty., Houston, Tex., for plaintiff-appellee.
Appeal from the United States District Court For the Southern District of Texas.
Before GOLDBERG and MORGAN, Circuit Judges, and WYZANSKI, Senior District Judge. *
Mary Rangel Rodriguez appeals from her convictions on both counts of a two-count indictment. In count one she was charged with conspiracy to distribute heroin, in violation of United States Code 21 § 846, and in count two with possession of heroin with intent to distribute, in violation of United States Code 21 § 841(a)(1). The only point which we need to consider is appellant's contention that the trial court erred in replacing an original juror with an alternate juror over the objection of defense counsel without ascertaining the reason for the original juror's absence.
With respect to this contention these are the facts. The trial of Rodriguez began on Thursday, September 16, 1976. At approximately five p. m. on Friday afternoon, September 17, 1976 the judge excused the jury for the weekend and directed it to return to the courtroom at two p. m. Monday afternoon, September 20, 1976. Monday morning, one of the jurors, a Mr. Maxey, called the clerk to say that he had chosen to go to work that day rather than to come to court. The court without making any further inquiry proposed to replace Maxey with an alternate. Defense counsel strenuously objected to this procedure and insisted that the court issue a bench warrant for Maxey or that the court at least allow defense counsel to develop for the record the facts surrounding the juror's absence. Defense counsel was particularly concerned because the absent juror was a black man whom the Latin American defendant thought might be more sympathetic to her than a replacement.
The court overruled the objection. It refused to make any effort whatsoever to reach either by telephone or by bench warrant or otherwise the absent juror. It did not even go through the process of formally discharging the absent juror, but substituted for Maxey an alternate who turned out to be a white, Anglo-Saxon Protestant.
We begin our discussion by noting that Fed.R.Crim.P. Rule 24(c) provides that "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."
It is transparent that by being a truant a juror does not automatically "become . . . unable or disqualified to perform . . . duties." It is unlike a dead or hospitalized juror; he is just unwilling, not unable to perform his duties.
Nor in this case can it be held as it was in United States v. Smith, 5th Cir., 550 F.2d 277, 285-286 (1977) that the trial judge "found " that the original juror who was replaced was "unable or disqualified to perform . . . duties." In Smith the trial judge had observed that two of the excused jurors "napped regularly throughout the trial," and had information that the names of two other jurors were circled in red on defense counsel's list, and that of those two jurors one was blatantly smiling and eyeing the defendant's ex-wife. On those grounds the trial judge found that the four jurors were "disqualified." Here no parallel finding was or, so far as the record indicates, could have been made.
We are not unaware that it was held in United States v. Domenech, 2nd Cir., 476 F.2d 1229, 1232 (1973) that a trial court had a...
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U.S. v. Makres
...the objection, a motion for mistrial was made and denied. Defendant relies principally upon the first opinion in United States v. Rodriguez, 564 F.2d 1189 (5th Cir. 1977), which held that the trial judge had erred in discharging a juror for tardiness and proceeding without the juror. On reh......
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U.S. v. Dominguez
...United States v. Spiegel, 604 F.2d 961 (5th Cir. 1979); United States v. Rodriguez, 573 F.2d 330 (5th Cir. 1978), vacating, 564 F.2d 1189 (5th Cir. 1977); United States v. Smith, 550 F.2d 277, 285 (5th Cir.), cert. denied sub. nom. Wallace v. United States, 434 U.S. 841, 98 S.Ct. 138, 54 L.......
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U.S. v. Rodriguez
...Circuit Judge, dissenting: With deference to Judge WYZANSKI's change of heart, I continue to find his original opinion, reported at 564 F.2d 1189, persuasive on the substitution of juror issue. I agree that the decision to remove and replace a juror unable to perform his duty is one committ......
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