U.S. v. Wecht
| Decision Date | 05 September 2008 |
| Docket Number | No. 08-2258.,08-2258. |
| Citation | 541 F.3d 493 |
| Parties | UNITED STATES of America v. Cyril H. WECHT, Appellant. |
| Court | U.S. Court of Appeals — Third Circuit |
David R. Fine (Argued), K & L Gates, Harrisburg, PA, Jerry S. McDevitt, Mark A. Rush, K & L Gates, Pittsburgh, PA, Richard L. Thornburgh, K & L Gates, Washington, DC, for Appellant.
Mary Beth Buchanan, Robert L. Eberhardt, Rebecca R. Haywood (Argued), Office of United States Attorney, Pittsburgh, PA, for Appellee.
Before: SMITH, FISHER and VAN ANTWERPEN, Circuit Judges.
This appeal presents questions of both factual and legal significance. Factually, we write yet another chapter in the ongoing appellate saga surrounding the criminal prosecution of Dr. Cyril H. Wecht, a renowned former county coroner whose name and face have appeared in the media over the past several decades. Legally, we decide issues surrounding one of the most rooted and basic of our Constitution's guarantees of individual liberties: the right not "to be twice put in jeopardy of life or limb" for the same offense. U.S. CONST. amend. V.
The facts of Wecht's celebrated past and more recent criminal charges are amply described in our previous opinions deciding interlocutory appeals in this matter. See United States v. Wecht, 484 F.3d 194, 197-98 (3d Cir.2007) (Wecht I); United States v. Wecht, 537 F.3d 222, 224 (3d Cir.2008) (Wecht II). We therefore need not dwell on those facts here.
We pick up the story on January 28, 2008, when trial began after a week of jury voir dire proceedings. At issue were forty-one counts of theft from an organization receiving federal funds, and wire and mail fraud. After twenty-three trial days, on March 17, 2008, counsel delivered closing arguments, and the District Court instructed the jury. Among its many instructions was the following:
"The number of offenses charged is not evidence of guilt and should not influence your decision in any way. You must separately consider the evidence that relates to each charge, and you must return a separate verdict for each offense.
For each offense charged you must decide whether the government has proven beyond a reasonable doubt that the defendant is guilty of that particular offense.
Your decision on one offense, whether guilty or not guilty, should not influence your decision on any of the other offenses charged. Each offense should be considered separately."
The jury began its deliberations on March 18, 2008.
The following week, on March 27, 2008, the jury sent the District Court a note that read: "Out of the 41 counts if any one or more count the jury cannot come to unanimous agreement on, does that constitute a hung jury?" The District Court consulted with counsel and, with their consent, sent the following written response to the jury:
Another week later, on Thursday, April 3, 2008, the jury sent a note to the District Court, which included the following language:
The District Court read and showed this note to counsel and told them that it was inclined to poll the jurors individually to ask whether they were "hopelessly deadlocked" and whether further deliberations would lead to a unanimous verdict, and then to read to the jury Instruction 9.05 of the Third Circuit's model criminal jury instructions (Instruction 9.05).
After informing counsel of its intentions, the District Court allowed them time to consider the issue. After counsel deliberated, the Government suggested to the District Court that it send to the jury a note asking if it could reach a unanimous verdict on any of the counts because "the Government is not convinced that the jury understands or perhaps is apprised that a partial verdict is a possibility." The Government then suggested that, if the jury responded that it could not reach a partial verdict, the District Court should then give Instruction 9.05, but not conduct individual polling.
Defense counsel objected to the Government's proposed course of action. He suggested instead that the District Court bring the jurors into the courtroom and poll them individually, but if each expressed that additional deliberations would not break the deadlock, that the Court declare a mistrial and discharge the jury.
The District Court decided to do what it had originally suggested. Accordingly, it had the jurors return to the courtroom. It polled them individually, asking the following two questions: (1) "Do you agree that the jury is hopelessly deadlocked?"; and (2) "Do you believe that further deliberations would not lead to a unanimous verdict?" Each responded to both questions affirmatively, i.e., that he or she believed the jury to be hopelessly deadlocked and that additional deliberations would not be helpful. The District Court then read Instruction 9.05 to them:
"Members of the jury, I am going to ask you to return to the jury room and deliberate further. I realize that you are having some difficulty reaching unanimous agreement, but that is not unusual. And often after further discussion, jurors are able to work out their differences and agree.
It is your duty, as jurors, to consult with one another, and to deliberate with a view to reaching an agreement if you can do so without violence to individual judgment. Each of you must decide the case for yourself, but do so only after an impartial consideration of the evidence in the case with your fellow jurors. In the course of your deliberations, do not hesitate to re-examine your own views, and change your opinion, if convinced it is erroneous. But do not surrender your honest conviction as to the weight or effect of evidence solely because of the opinion of your fellow jurors, or for the mere purpose of returning a verdict. Listen carefully to what the other jurors have to say, and then decide for yourself if the government has proved the defendant guilty beyond a reasonable doubt.
What I have just said is not meant to rush or pressure you into agreeing on a verdict. Take as much time as you need to discuss things. There is no hurry.
With that instruction, I will return you to the jury room. Thank you."1
The District Court then sent the jurors back to deliberate, which they did for an additional twenty minutes that day.
After the jurors left the courtroom, the Government renewed its request that the District Court ask the jurors collectively if they could reach a partial verdict. The District Court denied the request. After formal proceedings recessed, the Government filed a motion requesting for the third time that the District Court give the jury a partial verdict instruction. In a written filing on April 4, 2008, Wecht's counsel objected to the proposed instruction and cross-moved for a mistrial. He gave the following reason for mistrial:
Later that day, the District Court denied the Government's partial verdict instruction request, but did not at that time address the defense motion for a mistrial.
On Monday, April 7, 2008, after the jury resumed its deliberations for the first time since the prior Thursday, the District Court entered an order denying Wecht's written motion for a mistrial. The jury deliberated for four hours on that day.
Shortly before 9:00 the next morning, April 8, 2008, the District Court clerk telephoned counsel and entered the following on its docket: "Counsel for the Government and Defense and all parties are hereby ORDERED to appear today, 04/08/08 at 9:15 AM." Neither the telephone call nor the electronic notice described the purpose for which counsel were summoned.
At 9:20 a.m. on April 8, 2008, with the jury present, the District Court opened the proceeding as follows:
"THE COURT: Good morning. Thank you all for gathering pursuant to the notice on the Electronic Case Filing system.
For your and the jury's safety and the preserved good order, I would ask that you follow the following instructions this morning:
Everyone should remain in their seats throughout this proceeding from now until when the jury and I exit the courtroom.
No one will be permitted to be running in and out of the courtroom as happened last week.
Secondly, I expect everyone to be quiet, and if anyone wants to make motions or objections to this proceeding or whatever, they may do so in writing on ECF, as we have done throughout the trial.
If anyone is unwilling to abide by these instructions, I will give you time now to exit.
Thank you for your assistance and...
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