U.S. v. Smith
| Decision Date | 17 November 1975 |
| Docket Number | No. 75-1218,75-1218 |
| Citation | 523 F.2d 788 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Harold SMITH, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Fifth Circuit |
James A. Hayes, Lafayette, La. (Court-appointed), for defendant-appellant.
Donald E. Walter, U. S. Atty., J. Ransdell Keene, David R. Lestage, Asst. U. S Attys., Shreveport, La., for plaintiff-appellee.
Appeal from the United States District Court for the Western District of Louisiana.
Before BELL, COLEMAN and GEE, Circuit Judges.
This appellant, Harold Smith, has been convicted of the interstate transportation of a stolen motor vehicle, 18 U.S.C. § 2312.
It is first contended that the District Court should have dismissed the indictment against Smith for failure to prosecute him without unnecessary delay, Rule 48(b) of the Federal Rules of Criminal Procedure. It is also argued that the District Court erroneously responded to questions of fact propounded by the trial jury during the course of its deliberations. We find no merit in these contentions.
The point, however, which does require careful consideration is that Smith was tried by an eleven person jury and he now seeks to say that he did not in compliance with Rule 23(a) and (b) of the Federal Rules of Criminal Procedure waive trial by a jury of twelve.
Granting the importance of the question presented, and the novel posture in which it comes to us on appeal, we nevertheless affirm the conviction.
Smith's trial began at Lafayette, Louisiana, on December 9, 1974. Represented by counsel, he was seated at the counsel table and heard the District Judge impanel the juries for that week of court. He then witnessed the interrogation and the selection of the jurors who were to try his case. These proceedings are set forth in 46 pages of the typewritten record, indicating the thoroughness with which it was done, all in the presence of the defendant. In the actual selection of Smith's jury, the defense exercised seven peremptory challenges.
After twelve jurors had been accepted by both sides, the following occurred:
CONFERENCE BETWEEN MR. HAYES AND MR. SMITH.
It is not to be doubted that Smith heard the inquiry addressed to counsel, in which it was specifically stated that "Mr. Smith will have to sign a stipulation, if you can agree to that". Undoubtedly, counsel conferred with Mr. Smith. It is equally certain that Smith heard his counsel inform the Court, "Mr. Smith will sign the stipulation".
Thereafter, the trial proceeded for about a day, and numerous witnesses had testified, consuming approximately 200 pages of the typewritten transcript, when Juror Boudreaux made it known to the Court that he could not read and write, which rendered him unqualified to serve as a juror. Boudreaux also informed the Court that his memory was so bad that when he went to the doctor he had to take his wife with him to remember what the doctor told him; otherwise, he would forget it before he got home. The Trial Court concluded that Mr. Boudreaux should be excused from further service on the case. This quickly brought to the surface an unexpected and theretofore unsuspected snag.
The Rule 23(b) waiver could not be found.
The Assistant United States Attorney said that he knew he had signed it. Defense counsel stated that he signed it, and that he later gave it to the defendant, Smith. Defense counsel then made the startling announcement,
Whereupon, the Assistant United States Attorney, obviously laboring under considerable surprise, asked, "He didn't sign it?" Defense counsel responded, After considerable colloquy, the Assistant United States Attorney said, "We will just have to have another one typed and signed."
Whereupon defense counsel responded, After considerable more talk, defense counsel said, "As to the signature of the defendant, I cannot say whether it was ever executed, or what became of the document."
Finally, the Court addressed the defendant, Smith:
Smith responded,
The defendant examined the paper and then said, "I don't recall having one of these in my presence, Your Honor."
Hence, we find the defendant saying one day after counsel had explained the matter to him and had announced in his presence that the waiver would be signed that he could not remember whether he signed the waiver. Significantly, he did not deny signing it.
COURT:
Whereupon, the defense made a motion for a mistrial on the ground that Rule 23 required "a written motion (sic); that such is not in the presence of the court or filed with the clerk". The motion for a mistrial was denied.
The defense then moved for a mistrial on the additional ground that Rule 23 contemplates a stipulation for future incapacity; it is not intended to cure defects in the jury selection which may have occurred prior to the execution of the stipulation, if one was executed.
This, too, was denied.
The trial proceeded and Smith was convicted.
Rule 23 of the Federal Rules of Criminal Procedure reads as follows:
Rule 23. Trial by Jury or by the Court
(a) Trial by Jury. Cases required to be tried by jury shall be so tried unless the defendant waives a jury trial in writing with the approval of the court and the consent of the government.
(b) Jury of Less Than Twelve. Juries shall be of 12 but at any time before verdict the parties may stipulate in writing with the approval of the court that the jury shall consist of any number less than 12.
(c) Trial Without a Jury. In a case tried without a jury the court shall make a general finding and shall in addition on request find the facts specially. If an opinion or memorandum of decision is filed, it will be sufficient if the findings of fact appear therein.
The defendant did not waive trial by jury, so we are here concerned only with 23(b), Jury of Less Than Twelve.
The rarity of the occurrence herein described is matched by the rarity of judicial precedent.
The Supreme Court has said that before a waiver for trial to a jury of less than twelve can become effective there must be "express and intelligent consent of the defendant", Patton v. United States, 1930, 281 U.S. 276, 312, 50 S.Ct. 253, 263, 74 L.Ed. 854. This decision antedates the Federal Rules of Criminal Procedure and thus was laid down as required by the Constitution itself. Notably, however, the decision does not mention that the express and intelligent consent must be given in writing.
In United States v. Guerrero-Peralta, 9 Cir. 1971, 446 F.2d 876, it was held that Rule 23(b) is a "mandatory requirement", but the decision went on to say that "an oral...
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