United States v. Turrietta

• Decision Date: 29 August 2012
• Docket Number: No. 11–2033.,11–2033.
• Citation: 696 F.3d 972
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Gilbert J. TURRIETTA, Defendant–Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

696 F.3d 972

UNITED STATES of America, Plaintiff–Appellee,

v.Gilbert J. TURRIETTA, Defendant–Appellant.

No. 11–2033.

United States Court of Appeals, Tenth Circuit.

Aug. 29, 2012.

David N. Williams, Assistant United States Attorney, (Kenneth J. Gonzales, United States Attorney, with him on the brief), Office of the United States Attorney, Albuquerque, NM, for Plaintiff–Appellee.

Charles E. Knoblauch, Albuquerque, NM, for Defendant–Appellant.

Before KELLY, O'BRIEN, and GORSUCH, Circuit Judges.

O'BRIEN, Circuit Judge.

Introduction

A federal jury convicted Gilbert Turrietta of assaulting a law enforcement officer. The jury reached its verdict despite having never been sworn. The problem would have gone unnoticed were it not for a belated objection from Turrietta's attorney, Charles Knoblauch. He knew from the outset of the trial that the jury had not been sworn, yet strategically reserved any objection until a guilty verdict was returned and the jury had dispersed.¹

A verdict delivered by an unsworn jury may present an issue of constitutional dimension, as Turrietta contends. But a compelling threshold issue prevents us from resolving that issue. By lying behind the log, Knoblauch failed to preserve the issue he wants us to decide. Quietly harboring an objection until it cannot be addressed effectively is the functional equivalent of making no objection—at the very least, a forfeiture. ² Accordingly,our review is quite limited. Under the plain error doctrine, we cannot correct a forfeited error unless failing to do so would cement a clearly unjust result. We will not disturb the district court's refusal to declare the jury's verdict a nullity.

Background

A team of U.S. Marshals needed to execute a warrant for Turrietta's arrest. Acting on a tip, they converged on his brother's residence in south Albuquerque. Moments after arriving, they found their fugitive, Turrietta, holed up in a backyard tool shed. Crouched behind a bookshelf, he showed no signs of budging, so officers tried flushing him out with pepper spray. When the spray proved ineffective, Deputy U.S. Marshall Vincent Gambone and a second officer entered the shed to remove him by force. Turrietta resisted, grabbing Gambone by the shirt and pulling him into the shed. A struggle ensued during which Turrietta bit Gambone's forearm.

Turrietta was tried to a jury on one count of assaulting a federal officer. See18 U.S.C. § 111(a)(1) & (b). Two juries (unrelated cases) were picked from the same venire, one after the other. Prior to voir dire in Turrietta's case, the courtroom clerk administered an oath to the venire. All members of the venire swore to “truthfully answer all questions that shall be asked of you touching on your qualifications as jurors.” (Appellee's Br. at 8.) Turrietta's jurors were seated in the jury box and then told to report back in two days.³ When the transcript picks up two days later, the jury is seated and the judge is introducing the attorneys and reading preliminary instructions. The transcript contains no indication that the jury was sworn. ⁴

The trial lasted seven hours over a period of two days. Deputy Gambone recounted the investigation and the events leading up to his confrontation with Turrietta, right down to the offending bite. Several officers present during the arrest corroborated Gambone's testimony. One testifying officer saw Turrietta bite Gambone; another, whose view was obstructed, said she witnessed the two men struggling before hearing Gambone cry out in pain. The jury saw a photograph of the bite wound and heard testimony from the nurse practitioner who treated it.

Against this rather compelling evidence, the defense presented only the testimony of David Turrietta, the defendant's brother and the owner of the residence where the arrest took place. Although David was present during the arrest and could hear his brother struggling with the officers, he could not see inside the shed and did not say whether his brother bit Gambone. To the extent his testimony conflicted with that of the officers, it was over matters collateral to the assault charges—the color of David's shirt, for instance, or his precise location in the house when the officers arrived. Gilbert Turrietta did not testify.

After less than two hours of deliberation, the jury returned a guilty verdict. It was polled at the request of the defense; each juror confirmed the verdict announced by the presiding juror. The trial judge accepted the verdict, thanked the jurors for their service, and extended an invitation for them to tour his chambers. The court was ready to adjourn when Knoblauch cut in: “Your honor?” he asked, “I have a couple of small matters I'd like the court to hear.” The court asked Knoblauch whether he wanted the jury in or out. “The jury can be out,” he replied. (Tr. at 366.)

Once the jury was released, Knoblauch promptly moved to set aside the verdict. As it turned out, the “small matter” he wanted to discuss with the court wasn't small at all. “My recollection might be false or incorrect in some manner,” he said, “but I don't recall the jury ever being sworn in. When we selected the juries, the other jury was sworn in, but I don't recall this particular jury being sworn in.” (Tr. at 366–67.) The judge was not persuaded: “I think the jury was,” he said. “I don't remember, either, but I always do it. They know they're under oath anyway.” ⁵ (Tr. at 367.) Knoblauch later filed an affidavit swearing that at no point was an oath administered to the jury. It was accompanied by a motion claiming the verdict was a nullity. For the purposes of this appeal, the government concedes the jury was not sworn to try this case.

Discussion

Turrietta, still represented by Knoblauch, now contends the court's failure to administer the oath deprived him of his Sixth Amendment right to trial by jury. He maintains it was error to allow the verdict to stand once the oversight had been brought to the judge's attention.⁶ At oral argument Knoblauch candidly admitted he was aware of the problem and could have objected prior to trial; he claimed he owed a duty to his client to exploit the opportunity fortuitously presented. Rather than object when the error could have been corrected, he decided to wait and see if the outcome was favorable.

Federal courts have limited authority to correct errors forfeited at trial because they were not timely raised. Fed.R.Crim.P. 52; see Olano, 507 U.S. at 731, 113 S.Ct. 1770. (“ ‘No procedural principle is more familiar to this Court than that a constitutional right,’ or right of any sort, ‘may be forfeited ... by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it.’ ”) (quoting Yakus v. United States, 321 U.S. 414, 444, 64 S.Ct. 660, 88 L.Ed. 834 (1944)). This limitation promotes the timely raising of objections, so claimed errors can be resolved by the district court before they affect the outcome of the trial. See Puckett v. United States, 556 U.S. 129, 134, 129 S.Ct. 1423, 173 L.Ed.2d 266 (2009). It also prevents a litigant from “ ‘sandbagging’ the court—remaining silent about his objection and belatedly raising the error only if the case does not conclude in his favor.” Id.

Knoblauch's considered and measured silence demonstrates the need for a contemporaneous-objection rule. He did not invite error, but he compounded it. The law takes a dim view of such tactics.⁷See Puckett, 556 U.S. at 134, 129 S.Ct. 1423. Overlooking the forfeiture would be contrary to the contemporaneous-objection rule. Accordingly, we review only for plain error.⁸

Plain error review ⁹ involves four steps. Turrietta must demonstrate the district court (1) committed error, (2) the error was plain, and (3) the plain error affected his substantial rights. If he can make these showings, we may exercise discretion to correct the error if it (4) “seriously affects the fairness, integrity, or public reputation of judicial proceedings.” United States v. Cordery, 656 F.3d 1103, 1105 (10th Cir.2011).

Turrietta cannot satisfy the plain error test. Even assuming the failure to administer the oath was constitutional error,the error was neither so clear that the district judge can be faulted for refusing to act when it was belatedly called to his attention, nor so grave that failure to correct it on appeal would threaten the integrity of judicial proceedings or result in a miscarriage of justice. We need not decide whether the right to trial by jury necessarily encompasses a right to a sworn jury, but we must discuss the issue because it bears directly on step two of our plain error analysis and at least tangentially on steps three and four.

A. Whether the district court committed error

The right to trial by jury in criminal cases is secured by two constitutional provisions. Article III, sec. 2 provides, “The Trial of Crimes, except in Cases of Impeachment, shall be by Jury ...” U.S. Const. art. III, § 2, cl. 3. The Sixth Amendment adds flesh to the guarantee, providing, in relevant part, “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed ...” U.S. Const. amend. VI.

Turrietta contends a sworn jury is a critical ingredient of the right to trial by jury. In his view, when the Constitution refers to “jury,” it refers to one so constituted at common law, where the oath was an accepted feature of a duly impaneled jury. His unstated premise is that the Constitution preserved the common law requirements of the jury, with the institution's history setting the boundaries of its constitutional scope. He relies on the Supreme Court's decision in Patton v. United States, 281 U.S. 276, 288, 50 S.Ct. 253, 74 L.Ed. 854 (1930), where it was held that “[trial by jury] means a trial by jury as understood and applied at common law, and includes all the essential elements as they were...