U.S. v. Smedes, 84-1247

• Decision Date: 25 April 1985
• Docket Number: No. 84-1247,84-1247
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Eric SMEDES, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 109

760 F.2d 109

UNITED STATES of America, Plaintiff-Appellee, v. Eric SMEDES, Defendant-Appellant.

No. 84-1247.

United States Court of Appeals, Sixth Circuit.

Argued Jan. 22, 1985.

Decided April 25, 1985.

George G. Newman, Patricia McKanna (argued), Detroit, Mich., for defendant-appellant.

Leonard R. Gilman, U.S. Atty., F. William Soisson, Asst. U.S. Atty. (argued), Detroit, Mich., for plaintiff-appellee.

Before WELLFORD and MILBURN, Circuit Judges, and HILLMAN, District Judge. ^*

HILLMAN, District Judge.

Appellant Eric Smedes was indicted on 46 counts of mail fraud. The scheme described in the indictment involved the defendant's participation in submitting to Blue Cross-Blue Shield of Michigan fraudulent duplicate billings for medical laboratory services through the use of computer generated information. A verdict of guilty was returned on all counts. Appellant on appeal claims that judgment and sentence were rendered upon a non-unanimous verdict of 12 jurors in violation of Fed.R.Crim.P. 31(a) and the sixth amendment. We agree and reverse.

On November 22, 1983, a 12-member jury was impanelled, trial commenced, and continued to December 5. Following closing arguments and instructions from the court the 12 jurors began deliberating. On December 6, 1983, at 3:50 p.m., the jury foreman transmitted the following note to the court:

"We have a hung jury. The vote is 11-1. We have gone over and over but no results. Please explain what we are supposed to do or try. Thanks."

(Tr., p. 5). After reading the note in open court, the trial judge gave an instruction commonly referred to as an "Allen charge." Thereafter, the jury was excused for the day and instructed to return at 9:00 a.m. on December 7, 1983, to continue deliberations.

On December 7, 1983, at 11:53 a.m., the district judge received the following message from the jury:

"Closemindedness will not enhance a jury's duty of reaching a unanimous decision. We are sorry; but because of this closemindedness, we cannot reach a decision. There has been no movement and have been informed that no movement should be expected."

(Tr., p. 9).

Immediately thereafter, the following colloquy took place:

"THE COURT: I think we have reached a point where we will have to declare a mistrial in this case unless one of two things happens. We learned, unfortunately, we shouldn't have, but we did learn yesterday that their vote was 11-1. If everyone stipulates, I am perfectly willing to take a verdict from 11 if there is a stipulation by all parties. If not, then I see no choice but to declare a mistrial and set it for a new trial.

Are you interested in stipulation to a verdict of 11?

MR. SOISSON: Certainly.

THE COURT: Are you, Mr. Newman?

MR. NEWMAN: May I confer?

THE COURT: You may. Talk with Mr. Smedes.

* * *

* * *

MR. NEWMAN: May it please this Honorable Court, I have conferred--may the record reflect that I have conferred briefly with Mr. Smedes. I have made it entirely clear to him that it is within his hands, whether this matter be decided by the 11 or not, to which the Government is prepared to stipulate. Being informed of his rights in this matter, he is prepared to agree to join the Government in its stipulation to go with the 11.

THE COURT: Mr. Smedes, let me be sure you understand. You understand that if you don't agree what will happen now is I will declare a mistrial and this case will be tried over; do you understand that?

MR. SMEDES: That I understand, sir.

THE COURT: And that you are under no compulsion whatsoever to agree to a verdict of 11, it must be your voluntary agreement?

MR. SMEDES: That I understand.

THE COURT: And you do agree to a verdict of 11 people?

MR. SMEDES: Yes, I do.

THE COURT: Then I think what I should do is bring the jury in. They will have to fill out the verdict roll. I will ask them to fill it out with 11 and we will go from there."

(Tr., pp. 9-11).

After both counsel agreed with trial court's suggestion of accepting the verdict of 11, a lengthy discussion ensued as to the appropriate procedure for doing so. The prosecutor wanted "to make sure we are in full compliance with Rule 23 before we proceed." Ultimately, the trial court and both counsel agreed upon a procedure and the following sequence of events took place. The stipulation was reduced to writing as required by the rule. The court, at the urging of the Government, then agreed to advise the jury of the stipulation.

At 12:03 p.m. on December 7, 1983, the trial judge instructed the jury as follows:

"THE COURT: Members of the Jury, there is one thing I want to say to you now. I have your latest message. It has been agreed that if 11 of you agree upon a verdict that verdict may be your verdict. If 11 of you agree. So I am going to ask you now to return, I am going to send you to lunch now, and ask you to return at 1:30. At that time, if 11 of you agree, you may fill out the verdict roll and let us know. You may be excused now. All of you please report back to the juryroom at 1:30....

As I say, if 11 of you have agreed upon a verdict, you may complete the verdict roll. (The jury was excused.)"

(Tr., pp. 15-16).

At 1:50 p.m., in the absence of the jury, the trial judge read the following stipulation signed by the prosecutor, the defendant, and the defendant's attorney:

"It is hereby stipulated and agreed by the undersigned parties in this cause pursuant to Rule 23(b) of the Federal Rules of Criminal Procedure, that the Court may accept and the jury may return a valid verdict with regard to the charges contained in the Indictment if eleven (11) of the jurors unanimously agree upon a verdict and that the Court may excuse the twelfth or nonconcurring juror."

(Tr., p. 17).

At 1:55 p.m. on December 7, 1983, the jury (still composed of 12) returned to the courtroom whereupon the following colloquy took place:

"THE COURT: Would the foreperson stand, please.

Mr. Foreman, it is my understanding that 11 of the jurors have agreed upon a verdict, is that correct?

JUROR NO. 9: That is correct.

THE COURT: Would the one juror who disagrees, please stand. (Juror No. 10 stood.)

THE COURT: All right, sir, you may step down.

Mr. Foreman at this point, it having been agreed by all the parties that a verdict may be taken by 11 of the jurors, I am going to excuse you, sir, with our thanks for your attendance and careful attention to this case. Do not feel badly that you disagree, that is your prerogative, but you are now excused and you may be on your way. (Juror No. 10 was excused.)

THE COURT: All right, Mr. Foreman, will you please rise.

I have been handed a verdict roll on 46 counts which has been marked and purportedly signed by you. I will read it and then I will ask the Clerk to ask you and the rest of the jury if this is your verdict.

According to the verdict roll, on all 46 counts of the Indictment the jury finds that the Defendant is guilty."

(Tr., pp. 21-22).

Fed.R.Crim.P. 23(b) provides for 12 person juries in federal criminal cases unless both parties agree, with the approval of the court, to some lesser number. ¹ It is undisputed, however, that in federal criminal trials, verdicts (whether of 12 or 11 jurors) must be unanimous. ² As stated by Justice Powell in Johnson v. Louisiana, 406 U.S. 356, 92 S.Ct. 1620, 32 L.Ed.2d 152 (1972):

"In an unbroken line of cases reaching back into the late 1880's, the Justices of this Court have recognized, virtually without dissent, that unanimity is one of the indispensable features of federal jury trial. Andres v. United States, 333 U.S. 740, 748-749 [68 S.Ct. 880, 884-885, 92 L.Ed. 1055] (1948); Patton v. United States, 281 U.S. 276, 288-290 [50 S.Ct. 253, 254-255, 74 L.Ed. 854] (1930); Hawaii v. Mankichi, 190 U.S. 197, 211-212 [23 S.Ct. 787, 788-789, 47 L.Ed. 1016] (1903) (see also Mr. Justice Harlan's dissenting opinion); Maxwell v. Dow, 176 U.S. 581, 586 [20 S.Ct. 448, 450, 44 L.Ed 597] (1900) (see also Mr. Justice Harlan's dissenting opinion); Thompson v. Utah, 170 U.S. 343, 355 [18 S.Ct. 620, 624, 42 L.Ed. 1061] (1989). In these cases, the Court has presumed that unanimous verdicts are essential in federal jury trials, not because unanimity is necessarily fundamental to the function performed by the jury, but because that result is mandated by history. The reasoning that runs throughout this Court's Sixth Amendment precedents is that, in amending the Constitution to guarantee the right to jury trial, the framers desired to preserve the jury safeguard as it was known to them at common law. At the time the Bill of Rights was adopted, unanimity had long been established as one of the attributes of a jury conviction at common law. It therefore seems to me, in accord both with history and precedent, that the Sixth Amendment requires a unanimous jury verdict to convict in a federal criminal trial."

406 U.S. at 369, 92 S.Ct. at 1637 (Powell, J., concurring) (footnotes omitted; emphasis in original). See also Andres v. United States, 333 U.S. 740, 68 S.Ct. 880, 92 L.Ed. 1055 (1948); Apodaca v. Oregon, 406 U.S. 404, 369, 92 S.Ct. 1628, 1637, 32 L.Ed.2d 184 (1972) (Powell, J., concurring).

The Government argues that all parties, including the defendant himself, agreed to reduce the jury from 12 to 11 persons prior to verdict in accordance with Rule 23. The Government claims that by identifying and eliminating the sole dissenter, the 11 jurors remaining in the box then announced their "unanimous" verdict of guilty.

We must first decide whether the verdict below was the unanimous verdict of an 11 person jury or the non-unanimous verdict of a 12 person jury. In United States v. Vega, 447 F.2d 698 (2d Cir.1971), during jury deliberations it became apparent the jury could not reach agreement. One of the jurors sent the court a note stating:

"Your Honor. I am the primary hold-out. I cannot change by opinion in good conscience and feel that to do so under pressure would violate my oath as a juror. I respectfully request that the jury...