U.S. v. Scisum, 93-4180
| Decision Date | 23 August 1994 |
| Docket Number | No. 93-4180,93-4180 |
| Citation | 32 F.3d 1479 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Timothy Vernell SCISUM, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Robert H. Copier, Salt Lake City, UT, for defendant-appellant.
Wayne T. Dance, Asst. U.S. Atty. (Scott M. Matheson, Jr., U.S. Atty., Paul M. Warner, Asst. U.S. Atty. and Kevin L. Sundwall, Sp. Asst. U.S. Atty., on the brief), Salt Lake City, UT, for plaintiff-appellee.
Before TACHA, Circuit Judge and McKAY, Senior Circuit Judge and SHADUR, Senior District Judge. *
Timothy Scisum ("Scisum") appeals his conviction on Count Three of a three-count indictment, on which the jury had initially found him not guilty on Count Two and then--after having sent word earlier that it was deadlocked on Counts One and Three--ultimately found him not guilty on Count One as well, but guilty on Count Three. Scisum claims two types of reversible error, stemming from:
1. the trial judge's ex parte meeting with an individual juror in chambers without apprising counsel of that meeting until the following day--the day after the verdict had been returned and the jury had been polled and then discharged; and
2. the trial judge's refusal to give jury instructions that had been tendered by Scisum's counsel.
We find the second contention to be without merit, but the first contention requires reversal and a new trial.
All three charges against Scisum arose out of an automobile trip that he took from the State of Washington to Utah with a pimp and two prostitutes, one of the latter being an adult and the other a minor (indeed, a 13-year-old):
1. Count One charged Scisum with having knowingly transported the adult prostitute in interstate commerce with the intention of having her engage in prostitution (a charge brought under 18 U.S.C. Sec. 2421).
2. Count Two charged Scisum with having knowingly persuaded, induced, enticed and coerced the minor to travel in interstate commerce for the purpose of engaging in prostitution (a charge brought under 18 U.S.C. Sec. 2422).
3. Count Three charged Scisum with having knowingly transported the minor in interstate commerce, intending that she engage in prostitution (a charge brought under 18 U.S.C. Sec. 2423).
Each count also charged Scisum with having aided and abetted the described offenses in violation of 18 U.S.C. Sec. 2.
After a two-day trial, including closing arguments and jury instructions, the jury retired to deliberate. After about four hours of deliberations the jury sent several notes to the court, including one stating that the jury had reached a verdict on Count Two but was unable to reach agreement on the other two counts We are at an impasse on Counts One and Three. It does not look as if we'll come to any decision on these two counts.
After the trial judge responded in a manner that he had discussed with and had found was acceptable to both counsel, the jury resumed its deliberations and, later in the afternoon of the same day, sent word that it had reached a verdict. At that point the parties' counsel (who were not waiting in the courtroom) were notified to come to the courthouse for the return of the verdict.
Meanwhile one of the jurors approached the marshal in charge of the jury and asked whether she would have to be present in the courtroom when the verdict was announced. 1 Because the juror was visibly upset and crying, the marshal reported the matter to the judge as the latter was robed and ready to go into the courtroom to receive the verdict. At the marshal's suggestion the judge proceeded to meet with the juror--but he did so alone. Nothing was said to the lawyers about the matter, so they had no opportunity to provide any input as to what procedure ought to be followed. Instead the judge met with the juror while counsel were kept waiting, until they were told that the jury was being brought into the courtroom for the return of its verdict.
As we have already stated, the verdict on Count Three, the one that is now on appeal, found Scisum guilty. Each juror was then polled by the judge's clerk, and each--including the juror who had been visibly and audibly troubled by the prospect of joining in the other jurors' verdict in open court--confirmed that the verdict was the juror's own true verdict. At that point the judge thanked and discharged the jury, still having said nothing to counsel about his earlier conference with the individual juror. It was not until the next morning that the judge had counsel come into chambers, where he recounted his own recollection of the events. We have attached the entire relevant portion of the transcript of that conference to this opinion, in order that none of the nuances of the encounter might be lost inadvertently through a summary description.
After having considered the judge's disclosure of the occurrence, Scisum's counsel filed a timely motion for a new trial, accompanied by this affidavit from the juror in question:
[A.C.], being first duly sworn, deposes and says as follows:
1. I served as Juror No. 2 in this case and met privately with the Judge and one of his clerks immediately prior to the time that the jury returned to the court room, announced the verdict, and was polled.
2. It is, and always has been, my view that the Defendant is not guilty of all three counts. But for my private meeting with the Judge and his clerk, I would have dissented from the guilty verdict when I was polled as to Count III of the indictment.
3. During my private meeting with the Judge referred to above, I told the Judge that I could not return to the court room and publicly state that I agreed with the verdict.
4. The Judge responded by indicating that he understood how I felt.
After that motion for a new trial was fully briefed, the trial judge denied the motion in a brief written opinion that, after quoting Fed.R.Evid. ("Rule") 606(b) and citing our opinion in United States v. Greer, 620 F.2d 1383, 1385 (10th Cir.1980), said in part:
Accordingly, the Affidavit of [A.C.] and the arguments made relative thereto regarding the effect the conference with the judge had on her decision to convict are inadmissible and inappropriate for the court's consideration. 2
2]
And after stating his findings that the ex parte communication "was, at most, harmless error and would not have had a prejudicial effect on the decision-making process of the ordinary reasonable juror," the trial judge concluded his brief opinion by stating:
The court is, of course, intimately familiar with the nature and content of the ex parte contact and concludes it would not have lead [sic] a typical juror to change his or her mind as to the merits of the case.
As for the jury instruction issues that Scisum has placed before us, he complains about the trial court's having failed to give several of the instructions that Scisum had tendered. Scisum argues that the instructions that were actually given rather than the instructions that his counsel had requested changed the outcome of the case. That argument is predicated in substantial part on the jury's original note, in which it stated that it was at an impasse, and the jury's later arrival at a verdict following its further deliberations. We will deal with the nature of the requested and the actual instructions during the course of our later substantive discussion of those issues.
Fully four decades ago Remmer v. United States, 347 U.S. 227, 229, 74 S.Ct. 450, 451, 98 L.Ed. 654 (1954) () reconfirmed the principle that applies to every non-public non-record communication with a juror at any point in the course of a criminal case:
In a criminal case, any private communication, contact, or tampering, directly or indirectly, with a juror during a trial about the matter pending before the jury is, for obvious reasons, deemed presumptively prejudicial, if not made in pursuance of known rules of the court and the instructions and directions of the court made during the trial, with full knowledge of the parties. The presumption is not conclusive, but the burden rests heavily upon the Government to establish, after notice to and hearing of the defendant, that such contact with the juror was harmless to the defendant.
And judges are not of course exempt from that proposition--indeed, Code of Judicial Conduct Canon 3 A(4) says that federal judges may "neither initiate nor consider ex-parte or other communications on the merits or procedures affecting the merits of a pending or impending proceeding."
In light of the special sensitivity that attaches to this area from both perspectives, then, the most sensible reaction of any judge who is presented with any problem that appears likely to call for a communication with a juror is a Pavlovian response: Notify counsel for both parties promptly, both to identify the problem and to discuss the appropriate procedure to follow--almost invariably that calls for a meeting on the record with the juror, with all counsel present and participating. As Remmer, 347 U.S. at 229-30, 74 S.Ct. at 451-52, teaches even when a judge learns of a third party's contact with a juror:
The trial court should not decide and take final action ex parte on information such as was received in this case, but should determine the circumstances, the impact thereof upon the juror, and whether or not it was prejudicial, in a hearing with all interested parties permitted to participate.
Accord, United States v. McDonald, 933 F.2d 1519, 1524-25 (10th Cir.1991).
We say that procedure should "almost invariably" be followed because there may of course be rare exceptions--a juror's sudden illness or other truly emergent situations come to mind. Even though in this instance it was no doubt the trial judge's commendable humanitarian instincts...
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