United States v. Virginia Erection Corporation

• Decision Date: 05 August 1964
• Docket Number: No. 9187.,9187.
• Citation: 335 F.2d 868
• Parties: UNITED STATES of America, Appellee, v. VIRGINIA ERECTION CORPORATION and John P. Shields, Appellants.
• Court: U.S. Court of Appeals — Fourth Circuit

335 F.2d 868 (1964)

UNITED STATES of America, Appellee, v. VIRGINIA ERECTION CORPORATION and John P. Shields, Appellants.

No. 9187.

United States Court of Appeals Fourth Circuit.

Argued January 15, 1964.

Decided August 5, 1964.

James E. McLaughlin, Pittsburgh, Pa. (James P. McArdle, McArdle, Harrington & McLaughlin, Pittsburgh, Pa., and Fred B. Gentry, Roanoke, Va., on brief), for appellants.

Thomas B. Mason, U. S. Atty., and Lawrence C. Musgrove, Asst. U. S. Atty., for appellee.

Before HAYNSWORTH, BOREMAN and BRYAN, Circuit Judges.

BOREMAN, Circuit Judge.

Virginia Erection Corporation (hereinafter Virginia) and its president, John P. Shields, were indicted under 18 U.S. C.A. § 1001 for making false statements under oath to an agency of the United States Government. Additionally, Shields and two employees of Virginia, Arthur Hayston and Blaine E. McGinity, were charged in an indictment under 18 U.S.C.A. § 371 with conspiring to defraud the United States Government.

These indictments grew out of the performance by Virginia of a contract between it and Hercules Powder Company (hereinafter Hercules) involving certain work at the Radford Arsenal, Radford, Virginia. The Radford Arsenal, a facility for the manufacture of military explosives, is wholly owned by the United States, under control of the Department of the Army, and operated by Hercules under a cost-plus-fixed-fee contract. By the contract between Hercules and Virginia, the latter agreed to clean, repair and paint ten water storage tanks at the Radford Arsenal for a fixed fee. Work was begun on July 13, 1959. Approximately five weeks later, on August 18, 1959, Hercules charged Virginia with breaching the contract and terminated it.

By its contract with Hercules, Virginia was required to submit each week correct copies of its payroll supported by sworn statements as to employees' classifications and wage rates paid. The indictment against Shields and Virginia under 18 U.S.C.A. § 1001, in two counts, charged the submission to Hercules of two affidavits, false as to classification of employees and hours worked.

The conspiracy indictment under 18 U.S.C.A. § 371 charged that Shields and two foremen of the corporation, Hayston and McGinity, conspired to defraud the United States.¹

The two indictments were consolidated for trial and the four defendants were tried together before court and jury. All were convicted. Shields and Virginia have appealed, asserting procedural errors and challenging the sufficiency of the evidence. We think, in the interests of justice and for the reasons hereinafter stated, that a new trial should be awarded.

The defendants contend that reversible error was committed when the court permitted an alternate juror to retire to the jury room and remain there during jury deliberations. The circumstances may be briefly stated. During final arguments of counsel, Miss Furr, one of the twelve regular jurors, gave evidence of being ill. Although she was apparently well enough to continue as a juror, the court was understandably concerned about the possibility of a mistrial at such a late stage in the trial which had been in progress for several days.² The court permitted the alternate juror, Mr. Sublett, to retire with the jury. The record seems to indicate that counsel for both the Government and the defendants agreed to this procedure.³ The alternate juror was admonished by the court not to participate in the deliberations of the jury and to say nothing unless one of the regular jurors should become ill or "disqualified." Sublett remained with the twelve regular jurors throughout their deliberations.

Defendants assert that they were deprived of their constitutional right to trial by a properly constituted jury and that this procedure violated the applicable Federal Rules of Criminal Procedure.

The inviolable right to trial by jury in criminal cases stems from two provisions of the Constitution of the United States. Article III, Section 2, Clause 3, provides that "the Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; * * *." The Sixth Amendment states that "in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury * * *." It is well established that "trial by jury" contemplated by Article III, Section 2, and the Sixth Amendment is a trial by a jury of twelve persons, neither more nor less. Patton v. United States, 281 U.S. 276, 288, 50 S.Ct. 253, 74 L.Ed. 854 (1930); Thompson v. Utah, 170 U.S. 343, 18 S.Ct. 620, 42 L.Ed. 1061 (1898).

The Government contends that the defendants waived their right to object to any possible violation of constitutional rights and waived objection to noncompliance with the Federal Rules of Criminal Procedure. It relies principally upon the landmark decision in Patton v. United States, supra. In that case one of the jurors became disabled during trial but before the case was submitted to the jury. Thereupon counsel for the defendants and the Government stipulated in open court that the case should proceed with the remaining eleven jurors. The defendants personally assented and the trial court approved the stipulation. The Supreme Court held that the defendants had waived their right to a constitutional jury of twelve but made it clear that "before any waiver can become effective, the consent of government counsel and the sanction of the court must be had, in addition to the express and intelligent consent of the defendant." (Emphasis supplied.) 281 U.S. 276, 312, 50 S.Ct. 253, 263.⁴

Since the decision in Patton, the Federal Rules of Criminal Procedure were formulated after prolonged, careful and scholarly research and were adopted and promulgated by the Supreme Court of the United States. These rules have the force and effect of law and are binding on District Judges conducting criminal trials in the United States Courts.

Rule 23(b) provides as follows:

"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."

Should a situation similar to that in the Patton case now arise the procedure would be governed by Rule 23(b). That Rule makes it unmistakably clear that a jury shall be of twelve except that the number may be less in the event the parties so stipulate in writing. But no rule makes provision for a jury of more than twelve.

The Federal Rules of Criminal Procedure make further provision for preserving the constitutional jury of twelve to which a defendant is entitled. In pertinent part, Rule 24(c) provides:

"The court may direct that not more than 4 jurors in addition to the regular jury be called and impaneled to sit as alternate jurors. Alternate jurors in the order in which they are called shall replace jurors who, prior to the time the jury retires to consider its verdict, become unable or disqualified to perform their duties. Alternate jurors shall be drawn in the same manner, shall have the same qualifications, shall be subject to the same examination and challenges, shall take the same oath and shall have the same functions, powers, facilities and privileges as the regular jurors. An alternate juror who does not replace a regular juror shall be discharged after the jury retires to consider its verdict."

It is obvious that Rule 23(b) was intended to follow the teaching of Patton. Twelve is the magic number. If the number is to be reduced, a written stipulation of the parties provides the best record evidence of the express consent of a defendant. The obvious purpose of Rule 24(c) is to make adequate advance provision for meeting a situation where a regular juror becomes incapacitated or disqualified and the defendant relies upon his constitutional right to a jury of twelve. The delay and expense necessarily arising as consequences of a mistrial and starting afresh with a new jury are thus avoided.

Rule 24(c) is explicit in defining the function of an alternate juror and the time when his replacement of a disqualified regular juror begins, that is, prior to the time when the jury retires to consider its verdict. It further provides that an alternate juror who does not so replace a regular juror shall be discharged after the jury retires to consider its verdict.

The Committee history leading to the formulation and adoption of Rule 24 discloses that the United States Supreme Court Advisory Committee on Rules of Criminal Procedure seriously considered the possibility of permitting an alternate juror to replace a regular juror who becomes disabled during the jury's deliberations but rejected it after the desirability and constitutionality of such a procedure had been questioned by the Supreme Court.⁵ Rule 24(c) patently makes no provision for the replacement of a juror who becomes disabled after the jury retires to deliberate. The rule makers were concerned with establishing procedures whereby the courts could avoid mistrials in protracted cases. The procedure followed in the case at bar, one which had been considered and rejected, was not only contrary to the letter but also to the spirit of Rule 24(c).

The Government contends that the case was heard and decided by a constitutional jury of twelve and that the presence of the alternate during jury deliberations was not prejudicial to the defendants. The defendants contend that the jury was either composed of thirteen or the deliberations of the twelve regulars were conducted in the presence of one who was legally a stranger.

It is certain that the alternate, Mr. Sublett, had no legal standing as a juror. Rule 24(c) required that he be discharged. Notwithstanding the fact that the court instructed him to say nothing and not to participate unless one of the regular jurors should become ill or disqualified, certain questions naturally arise. Who was to decide whether a regular juror was actually incapacitated or merely feigning illness or...