U.S. v. Symington

• Decision Date: 22 June 1999
• Docket Number: 98-10143,Nos. 98-10070,98-10071,DEFENDANT-APPELLANT-CROSS-APPELLEE,PLAINTIFF-APPELLEE-CROSS-APPELLANT,s. 98-10070
• Citation: 195 F.3d 1080
• Parties: (9th Cir. 1999) UNITED STATES OF AMERICA,, v. JOHN FIFE SYMINGTON, III,
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1080

195 F.3d 1080 (9th Cir. 1999)

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE-CROSS-APPELLANT, v. JOHN FIFE SYMINGTON, III, DEFENDANT-APPELLANT-CROSS-APPELLEE.

Nos. 98-10070, 98-10071, 98-10143

U.S. Court of Appeals, Ninth Circuit

Argued and Submitted November 4, 1998

June 22, 1999

[Copyrighted Material Omitted] Terence J. Lynam, Akin, Gump, Strauss, Hauer & Feld, Washington, D.C., for the defendant-appellant-cross-appellee.

George S. Cardona and David J. Schindler, Assistant United States Attorneys, Los Angeles, California, for the plaintiff-appellee-cross-appellant.

Appeal from the United States District Court for the District of Arizona; Roger G. Strand, District Judge, Presiding. D.C. No. CR-96-00250-RGS

Before: Betty B. Fletcher and A. Wallace Tashima, Circuit Judges, and James M. Fitzgerald,^* District Judge.

Opinion by Judge B. Fletcher; Partial Concurrence and Partial Dissent by Judge Fitzgerald

B. Fletcher, Circuit Judge

John Fife Symington, III appeals from his conviction and 30-month prison sentence on five counts of making false statements to financial institutions in violation of 18 U.S.C. S 1014 and one count of wire fraud in violation of 18 U.S.C. S 3231. Principal among the issues on appeal is Symington's claim that his Sixth Amendment right to an impartial jury was violated when the district court dismissed a juror on the eighth day of deliberations. Symington also appeals from the district court's denial of his post-verdict motion for judgment of acquittal on three of the S 1014 counts. The government cross-appeals, challenging the district court's post-verdict dismissal of one S 1014 count for insufficient evidence, and its dismissal, several months after trial, of 11 unresolved counts for violation of the Speedy Trial Act. We have jurisdiction under 28 U.S.C. S 1291 and 18 U.S.C. SS 3731 & 3742. We reverse Symington's conviction, but affirm the district court's treatment of the evidentiary sufficiency and Speedy Trial Act issues.

I.

Prior to being elected Governor of Arizona in 1991, Symington was a commercial real estate developer in Phoenix. Between 1986 and 1992, Symington and his wholly-owned company obtained several construction and permanent loans from various lenders to support his real estate projects. In order to obtain many of these loans, Symington agreed to guarantee full or partial repayment of the loans himself. In support of those guarantees, Symington was required to submit personal financial statements detailing his financial position. Symington prepared those statements himself. The indictment charged that many of the statements were materially false in that they overstated the value of Symington's assets, understated or failed to disclose his liabilities, and overstated the value of his interest in the real estate projects he was developing. Symington was also alleged to have submitted contradictory versions of statements bearing the same "as of" date.

A 23-count superseding indictment was returned against Symington on January 9, 1997. Prior to trial, the district court granted Symington's motion to dismiss one count as unconstitutionally vague. Trial by jury on the remaining 22 counts began on May 13, 1997, and lasted through the first week of August, 1997. At the end of the trial, the district court granted Symington's motion for judgment of acquittal on one count, but denied the motion as to all other counts. The remaining 21 counts were submitted to the jury on August 8, 1997.

On August 15, 1997, the jury sent a note to the district court Judge stating, "Your Honor, we respectfully request direction. One juror has stated their final opinion prior to review of all counts." The Judge discussed the matter with counsel for both sides and then wrote back to the jurors reminding them of their duty to participate in deliberations with each other, but emphasizing also that each juror should make up his or her own mind on the charges. On August 19, the jury sent the Judge another, more detailed note. The note read, in pertinent part:

"We have earnestly attempted to follow your last directive to continue with our deliberations. However, the majority of the jurors sincerely feel that the juror in question cannot properly participate in the Discussion with us."

"Reasons:"

"Inability to maintain a focus on the subject of Discussion."

"Inability to recall topics under Discussion."

"Refusal to discuss views with other jurors."

"All information must be repeated two to three times to be understood, discussed, or voted on. Immediately following a vote, the juror cannot tell us what was voted."

"We question the ability to comprehend and focus on the information discussed."

"This is the same juror of concern in our last communication."

The juror in question was Juror Cotey, a woman apparently in her mid-70s.

After discussing the matter with counsel for both sides, the Judge separately questioned each member of the jury to determine the nature of the problem. Counsel participated in the questioning. During the questioning, each of the jurors (other than Cotey) agreed that the note accurately described their concerns. The jurors suggested that the best solution would be for the Judge to dismiss Juror Cotey. They all stated that Cotey appeared confused and unfocused during deliberations. Presiding Juror Carlson, for example, stated that

"[a]t first we almost felt it was someone that had their mind made up, which we were trying to work with and around. Everyone is certainly entitled to their opinion. That's what this is about. But as it progressed and we tried to press for that opinion, because maybe it would affect ours and we wanted that input to add to ours and share, we got such rambling answers that we were all looking at each other around the circle like, my gosh, this answer's so off the wall it is not connected to the Discussion in any way."

At other times, the jurors seemed less concerned about Cotey's ability to deliberate than about her apparent unwillingness to explain her thinking about the case. Although Juror Witter described Cotey as "very intelligent," Juror Seaman stated that Cotey "refuse[s] to discuss her views.... She just seems to have her mind set. She says she doesn't have to explain herself to anybody."

The statements of some jurors indicated that their frustration with Cotey may have derived more from their disagreement with her on the merits of the case, or at least from their dissatisfaction with her defense of her views. Juror Witter stated that "[t]here's one element that [Cotey] felt strongly about," and that Cotey "would stick on two of the elements every time, because she didn't -- she just kept getting stuck on two elements because that's how she felt and she wouldn't really explain to us her rationale of her way she wanted to vote." Juror Bamond saw Cotey as an obstacle to reaching a verdict: "[W]e are blocked and blocked and blocked. And I don't want to be blocked any more.... It's a long trial, it's frustrating, you know."

When the Judge questioned Cotey, she stated that she was prepared to continue deliberating. She noted that the other jurors' frustration with her might be because "I can't agree with the majority all the time, at least temporarily. And I'm still researching and looking for more in the case. " Cotey also complained of pressure from the other jurors: "I found myself backed up against the wall for a vote every time, an objection to my vote on a specific count or an element of the count." Cotey stated, however, that she was prepared to stand by her position even though she was clearly in the minority: "I realized that I was the one isolated. But I also realized I told [another juror] I was a separate juror and had a right and I didn't like being bullied down on a point." Cotey claimed that she was willing to discuss elements of the case with the other jurors, but that she became intimidated when everyone talked at once and demanded that she justify her views as soon as she stated them.

The Judge decided to dismiss Cotey because she was "either unwilling or unable to deliberate with her colleagues." The Judge acknowledged that "no juror should yield a thoughtfully-held position simply to arrive at a verdict," but found that "there has been nothing stated by any of the jurors that would indicate that that is the situation here. " Accordingly, the Judge excused Cotey "for just cause for being either unwilling or unable to participate in the deliberative process in accordance with the instructions of the Court. " On August 20, at Symington's request, the Judge seated one of the alternate jurors in Cotey's place and instructed the jury to begin its deliberations anew. The next day, Symington moved for a mistrial. He argued that the disagreement between Cotey and the other jurors was rooted in the merits of the case, and that dismissing Cotey prejudiced her view of the case. The district court denied the motion. Symington renewed the claim in a post-trial motion for a new trial, and the district court again denied it.

On September 3, 1997, the jury returned verdicts convicting Symington on seven counts (counts 10 and 11 and 13 to 16, involving submitting false statements to financial institutions, and count 21 involving wire fraud) and acquitting him on three counts. The jury was unable to reach a verdict on the remaining 11 counts, and the district court declared a mistrial as to those counts. On January 20, 1998, the district court granted Symington's motion for acquittal on count 11 but denied the motion in all other respects. On February 2, 1998, the district court sentenced Symington to a prison term of 30 months. On March 10, 1998, the district court dismissed the 11 mistried counts without prejudice, for violation of the Speedy Trial Act.

Symington timely appealed from his conviction and sentence, and the government timely cross-appealed.

II.

Symington argues that the district court committed...