*1 note, We Presumably statutory require- hearing. finally, that the state has not hearing is not exacting less for a fair ment the part from of the appealed judgment one, so whatever the constitutional than relating give to its failure to adequate no- in compliance the defendants remedy puts whose people tice to benefits are delayed 303(a)(3) should equally or with section (notice 602 B section as to why under they certainly put compliance them in with more getting benefits are and notice that the clause. But process point due we do out charges have criminal against resolved court’s suggestion that the the district them, when that happens) and awarding proviso violates a abeyance “pre- held in to certain benefits named members of the of innocence” found in sumption the due Nothing we say today is class. meant to is clearly wrong, clause see Bell v. process unappealed portion of the judg- disturb 520,532-33, Wolfish, U.S. S.Ct. Subject to this qualification ment. (1979), proper- and was L.Ed.2d district judgment of the court is vacated plaintiffs in their ly ap- abandoned case remanded further proceed- and the to this court. peal opinion. ings par- consistent opinion no on the district express We also their own costs in ties shall bear this court. bearing discussion self- court’s So Ordered. clause of the Fifth Amend- incrimination ment, applied through the states as clause, on question process of how
due proceedings in administrative prove unemployment applicant insurance felony committed work-related
has forbade the state
theft. silence as evidence that to use a claimant’s Clay MARTIN, Appellant, Favis crime, and to guilty postpone he was accordingly. The propriety his benefits guilt from an inference silence to using America, Appellee. STATES of UNITED (on is a difficult issue a benefit which deny FCC, 115 U.S.App.D.C. cf. Blumenthal No. 81-1908. (1963); F.2d 276 Clifford Appeals, Court Shoultz, 1969)) Eighth Circuit. yet not decide but that we need consider in the first should instance in state 12, 1982. April Submitted procedures comply designing 4, 1982. Aug. Decided district court will judgment enter En Rehearing on remand. Banc Rehearing 10, 1982. Sept. Denied iye express any do view on the Neither abeyance inclusion held in quaint 22, 1983. Certiorari Denied Feb. justice” from “fugitive[s] along proviso See 103 S.Ct. in legal are people custody who or on plaintiff the members of the bail. None of justice. from It fugitive would be
class is fugitive who asked to receive
an audacious compensation
unemployment fugi while a more audacious one who
tive and an even hearing to decide whether he
demanded the crime for which he had
had committed event, jurisdiction. his case
fled express us no opinion
is not before rights, if
concerning any, under section
303(a). *2 Muchnick, Lewis, Rice, Tucker, A.
Steven Chubb, Louis, Mo., appel- & St. Allen lant. Dittmeier, U. Atty., E. S. Ka-
Thomas Louis, Knaup, Atty., Asst. U. S. thianne St. Mo., appellee. BRIGHT, HENLEY R. and JOHN
Before GIBSON, Judges. Circuit GIBSON, Judge. Circuit R. judge, JOHN upon receiving these messages, immediately sent the clerk to di- appeals Clay Martin his conviction Favis begin rect the deliberating and sending threatening let- on two counts doing (18 up anything hold on mail until through U.S.C. further § ters given. urges erred in word was The clerk was instructed *3 a mistrial when failing grant to one of the juror Burst bring to the to courtroom. The unfit to serve was found and re- jurors juror alternate either had not left the alternate, in denying with an a mo- placed or was in the hallway courtroom a few statements suppress when tion to Martin steps from the door he was asked to sign to the had refused Miranda waiver to the courtroom return and be seated. At form, overruling motions acquittal in p. m. in chambers the 4:55 district judge was ambiguous the evidence as because to with counsel and conferred defendant and were the letters threatening, whether following the made statements: instructions, certain and in giving denying jury has not The deliberated . .. the jury and discharge for continuance motions they could not deliberate and have not We affirm. counsel. this time.... deliberated 1970 was convicted of murder- the opinion is of Court that there has ing custody wife as a result of a dispute ... been no deliberations so no delibera- life sentence. A and received sister place. taken tions have and her adopted wife husband the deceased marriage, and alleged child of the Martin’s mistrial A motion for was made by defend- threatening letters were directed to the at- and denied. The court discharged juror ant the torney representing family, Mark I. ground on the Burst he was mentally Judge, Bronson, Gary and the M. Gaertner. incapable physically of serving and sub- to 5-year was sentenced term on alternate juror. the jury stituted was The sentences are to each count. run con- begin to then ordered their deliberations. each other currently with and consecutively argues that the substitution of the Martin is serving the term in the Tex- juror violated alternate Federal Rule of of Corrections for Department the mur- as 24(c), provides Procedure which Criminal as der. follows:
I.
jurors
.. .
in the
Alternate
order
they are called shall replace jurors
which'
jury
instructed,
the
was
After
the
who,
excused
to the time
juror
prior
jury
was
and the
the
jury
alternate
retires to
p.
verdict,
m.
at 4:38
Moments
retired
thereafter
its
become
consider
are
or
found
judge1 received
word of bizarre
disqualified
unable or
perform
to be
part
on the
of one of
jurors,
behavior
duties....
An
juror
their
alternate
who
clerk
Burst. A law
of one
judges
Mr.
replace
regular juror
does
shall be
agent reported
an
judge
FBI
after
discharged
the jury retires to con-
juror had told several people
its verdict....
(Emphasis added.)
sider
an assistant bailiff
he was
marshal
is whether in
The issue
this case the jury
number of
stopped a
asking
had
individuals
to consider
retired
its
had
verdict.
their identification and the
nature of
particular
Under
circumstances
in the area. The
agent
their business
FBI
case,
that,
juror
presented
had
conclude
attempted
reported
go
although
jury
of one
had left
courtroom,
the chambers
into
other
stating that he
judges, again
was an assist
the deliberations had
because
not com-
or marshal.
ant bailiff
jury
had not retired
menced2
to con-
Cahill, Jr.,
Clyde
findings
S.
2. The
1. The Honorable
judge
jury
of the district
that the
Judge for the Eastern
States District
District of
questioned.
are not
had not deliberated
He
Missouri.
verdict,
improvident
and the
substitution of the
sider
if substitution of an alternate
juror
proper.
was
alternate
juror
permit
proceed
would
trial
to a
just
Whitfield v. Warden of
verdict.”
were
circumstances
involved in
Similar
Maryland
Corrections,
House of
Cohen,
1973),
cert. denied 419 U.S.
1976),
“sleeping juror”
where a
139, 42
(1973).
L.Ed.2d 116
jury
alternate.
95 S.Ct.
replaced
had
kept waiting
hallway outside
a number
disapprov-
cites
of cases
The court
courtroom.
ruled:
a juror,
but these deci-
substitution
interpretation is too formalis-
Appellant’s
distinguishable
sions are
on their facts.
jury had
been ordered
Although
tic.
Lamb,
retire,
yet
so
it had
done
because
(9th Cir.
reached a ver-
begun
never
their
jurors had
delibera-
dict,
rejected,’
the court
.which
no violation
We find
of the rule.
tions.
*4
juror
joined the deliberations.
alternate
Paving
Metropolitan
Co.
Interna-
v.
impermissible
found
coercion on
The court
Operating Engineers,
Union of
439
tional
juror. United
v. Alli-
the alternate
States
300,
(10th
1971),
304
Cir.
an
F.2d
alternate
son,
(5th
468
1973), appeal
F.2d
Cir.
481
“just as the jury
substituted
prepared
was
F.2d
(5th
1973);
487
339
after remand
Cir.
a bailiff
jur-
when
one
deliberate”
heard
to
Hayutin,
(2d
v.
1239 2, Fed.R.Crim.P., of Rule Klingler provisions States, v. United 409 F.2d intended provide are the rules 1969); (8th Ellis, United Cir. States v. every pro- criminal just determination (8th 1972); F.2d Cir. shall construed to ceeding and secure Hart, and the fairness elimination simplicity, 1977); Johnson, and United States v. expense and delay. unjustifiable 1976). The court’s motion suppress denial was not Ex relies on Parte Shirley, 39 clearly erroneous. 634, 106 (1958), So.2d 671 Ala.App. in which phrase concluded “the the court III. means
jury retires” deliberate “retire[d] reach a verdict.” This definition is in argues that the motion for wording 24(c), Rule accord acquittal should have been sustained be its verdict” gives “retires to consider evidence ambiguous cause the as to weight to our conclusion that retir further the letters in whether issue were threaten simply than leaving means more ambiguous, ing. An letter cannot violate 18 courtroom, requires but retirement to delib States v. Barcley, § U.S.C. the verdict. erate or consider (8th Cir. F.2d 930 letter to the fa,ced Bronson, contained lawyer, the following court was with a diffi- language: case, in this cult decision but its action in removing juror questionable promptly I don’t know if the Abuchon’s you told the substitution of the stability and alter- not, but the reason their are sister is in *5 24(c). violate Rule nate did not prison, I am in is grave, her because the presented that action no claim a makes we had over arguments the custo- question. constitutional dy of this child. sentence asked him to the bureau’s June tional the erred statement Martin made himself, warden’s there rights. denying aloud to was no waiver and said that he understood read office at “advice FBI to Hartung, claims the district a statement the Hartung gave it. Martin agent II. motion to Huntsville, rights” Hartung, urging of his constitu the to Hartung read the suppress remainder defendant form and Texas on court first his it, about rest vor. old, then possible. it. adoption, I’m I don’t need will all burn s{: But, prefer [*] and I’ll I’ll They it. Their sister trying to do the Aubuchon’s a my go I when When there is no remedy [*] [*] best natural not be locked in broke, realize that. you any Court to vacate [*] in hell together. [*] to seek life. stop should that happen, did’t!!! [*] [*] Judicial relief if and think about They I’m 42 [*] [*] [sic] prison best years think sf! [*] left, the the fa- Martin, (the having killed his wife sign the sister rights waiver of but refused Aubuchons), in making then the the state- proceeded The interview form. Bronson, letter directed to freely and ments in the talking without hesita- the above paragraphs He cannot claim writing reluctance. admitted tion or any way ambiguous. letter are Hartung the type- and showed letters the Gaertner, Judge the following letter to was introduced The statement writer. appears: language procedure was similar held not to trial. A guaranteed rights by Miranda in sir, child, my just violate I see without don’t You Butler, 369, 376, 441 U.S. [expletive North Carolina really give a about deleted] 1755, 1759, 60 (1979), therefore, L.Ed.2d 286 life, 99 S.Ct. necessary, if it be I will court concluded that where the waiver can adoption without the aid of vacate the from clearly inferred the actions Court, be in so I doing got scrup- no also, person interrogated. words See ples. legally vacate the officials calling
I have tried attention to improper con- reason for that adoption, language may is because used duct and vehement, vituperative or not want abusive without only I do more god knows the law. court refused to add violating sir, bitch, son of you a I’ll But trouble. proposed person two sentences that a has permit I you in hell before to do you see public removal right to seek official my me son. this to seek and that a threat removal or dam- about the You best think seriousness of is not reputation a violation of the age his its to late. telling matter I’m support was no evidence to law. There I every mean this because word of it. you court, language refused proposed atall care about you anything If the child demonstrates no error of the and Martin you best do somthing. and others involved in so refusing. forever, in Texas keep me They can’t Fuel, 1978). Dean or the You and I Mister two hold instructed responsible. personally burden to government establish happens I what to me so don’t care doubt that beyond a reasonable the commu didn’t long you enjoy your as I know conveyed a injury threat of nication want! immunity. you And [sic] jury so found it must unless the find the cannot Again, seriously claim guilty, but refused a pro defendant statements. ambiguity these The letters if posed language sentence injure determination intent to contain susceptible of two interpretations, one future. or in the presently threatening and other non-threatening, Metzdorf, (D.Mont.1918). 252 F. had the government burden to remove whether the question of con ambiguity. Barcley, States v. an issue of is threat fact for stitutes ambiguity finding defeated submissi supra, Lincoln, jury. United bility, require such an instruction does If reasonable we have in a in which concluded the case recipient, familiar context of the ambiguous. are not The instruction letters communication, would interpret it as a given treating and other instructions threat, go should adequately the issue the jury. proof burden of covered the sub *6 Maisonet, request. 484 United v. stance of the States v. United States F.2d 1356 Fuel, 1973). supra. (4th Cir. Barcley, supra, court capabili
In found that The instruction that actual equivocal successfully language ty accomplish was and that nei- threat is of the proper offense was recipient experienced of the letter not an element ther fear defendant’s incarceration. because of reading the letter. In upon this case the of instruction evidence Martin’s of the letter was clear and in the could be earlier offense considered for no of Martin’s conviction context for the mur- than to purpose and other establish intent wife, expressed of his concern of the der meaning of properly letters was letter, Bronson recipients Judge and jury’s limit the given to consideration of Gaertner, was understandable. The district this evidence. denying in not err motion for court did instructions, We con- acquittal. conclude whole, properly as a instructed the sidered cannot conclude that jury, we IV. any prejudicial error in has demonstrated objects to a number of instruc- the instructions. by district court given and to the tions language proposed of certain on his refusal V. behalf. the district court Martin claims that every per The court instructed grant refusing a continuance so erred in right to communicate with public son has discharge appointed his as to him allow
1241 lawyer of his own right and obtain had no counsel under the Constitu- 12, on June 1981 filed a choosing. Martin that his trial to insist be held abey- tion in him to dismiss his appoint- to allow replaced motion he a competent ance while attor- July 8 filed mo- and on another another, ed counsel particularly with ney where the issues, among other raising, his diffi- tion obtaining possibility of another was uncer- communicating appointed in culties Bragan, v. tain. United States 499 F.2d jail Belleville, was he because counsel 1376, (4th 1974). Cir. He right has no Illinois, asking that the stay pro- appointed counsel4 without to refuse show- 20, for July 1981. A ceedings scheduled counsel, another that he had without by was also filed for continuance motion counsel, or without giving valid waiver counsel, although the date Martin’s reason for dismissal adequate of counsel. is uncertain. motion Jones, 217, v. 369 F.2d United States 1966). Here there (7th was no showing Cir. morning of commencement of On the had made effort obtain judge considered the mo- the district trial lawyer four months another that the discharge of coun- for continuance tions pending ease segments3 found that sel in three adequate reason for the no dismissal found the case had been pend- months several appointed counsel. of his not made efforts to obtain ing Martin lawyer, lav/yer appointed another in any no error of the respects We find Anzalone, him, Frank was an to defend urged, judgment affirm attorney the finest experienced repu- court. tation, Martin had not and that established funds had sufficient available to that he HENLEY, Senior Circuit Judge, concur- the case. lawyer try hire a motions ring. denied. were decision, concur in the court’s I but am that the court did not err in We find to write on the matter impelled proof Martin’s motion for overruling continuance a threat. discharge counsel. This court and to indispensable ingredient prosecu- in a An Sturgeon, 501 F.2d proof under 18 U.S.C. 876 is tion that a § 1974), and (8th United Cir. States by. the written accused conveys letter Leach, (8th Cir. injury. Lincoln, United threat of held: 1979); of motions for granting continuance Barcley, trial is during discretionary determining whether the requi- court, and in with the trial absence of exists this court and site threat other courts discretion the action abuse of clear tended to frame appeal have the inquiry court will sustained. trial of the defendant’s intent in terms and have Martin, The cases cited *7 language States to the principally looked Mardian, F.2d 973 (D.C.Cir.1976), 546 immediately v. the facts letter and surround- States, (9th v. United 288 298 Releford F.2d particular that ing the use of language 1961), involved the both unavailability Cir. totality rather than circumstances. counsel because of of retained illness. Lee Lincoln, v. E.g., supra; United States Unit- States, (D.C.Cir. 235 F.2d Chatman, v. 219 v. 584 F.2d ed States 1358 1956), unavailability involved of counsel be approach, however, This does cause of withdrawal conflict of interest. squarely question address what is a not any 4. in Martin refused to make 3. One which ruled that Martin could court, recess, at all to the one after attorney statements serve as his own and ordered Mr. participated substantially, legal in which Martin and advise on mat- Anzalone to remain recess, yet ters, understanding another session after another that the two request questions which the court considered Martin’s be allowed to ask not both would of five weeks to two months jury. a continuance The record reflects that after before the discharge opportunity to counsel. ruling trial was conducted Mr. An- zalone. 1242 language deciding focus in whether the used in the totality of circum-
threat. stances, necessary implications including its con the impossibility or un- performance, particularly should be the effect on an as threat likelihood stitute recipient recipient. who is famil were known reasonable the facts ordinary, total context in which the iar hand, I am case at satisfied that As to the See United States v. written. letter as a whole jury adequately instructions 1356, F.2d 1358 Maisonet, 484 principles. Although the essential covered denied, 933, 415 U.S. 94 cert. S.Ct. objected to certain instructions the defense (1974); 491 L.Ed.2d 39 trial, object not to the it did instruction at (Aldrich, J., F.2d at 934 Barcley, 452 v. as “a defining express- a threat statement Prochaska, v. dissenting); United bodily injury to inflict intention an denied, (7th Cir.), cert. F.2d Moreover, defense counsel upon someone.” 73, 100 (1955). L.Ed.2d 746 S.Ct. U.S. request or an specifically submit did not ... the circumstances Certainly, “[a]I1 expanding on this definition. instruction be con recipient known to [should] although appellant Mar- Finally, I note at (dissenting opin sidered.” sentence, life serving apparent- he tin was added). ion) Under this stan (emphasis eligible parole become would have ly contained in a dard, communi a statement summer, 1981. This cir- consideration criminal if only be it instilled would cation clearly minimized or rendered cumstance recipient and informed reasonable might have sug- issue moot impending bodily harm. apprehension concerning Martin’s ability carry gested Maisonet, 484 F.2d at United States See length of a reasonable time the out within 1358; Prochaska, United States Thus, in his letters. I threats contained at 2. difficulty in concurring in the re- have no by the court. reached sult must government establish the While threatening nature communication in prove it need the accused
question, carrying capability successfully has the Lincoln, United States the threat. out 381; Chatman, United States v. F.2d at Nevertheless, I at 1361. am not ability the accused’s or ina- convinced STATES DEPARTMENT OF UNITED accomplish threatened action is bility to AGRICULTURE, Petitioner, in prosecutions always irrelevant under sec- of carrying out the Capability 876. tion LABOR FEDERAL RELATIONS instances, part be may, threat AUTHORITY, Respondent, jury of circumstances that aggregate to consider in determin- required should language used amounted ing whether Federation of Government American Indeed, excluding this matter a threat. AFL-CIO, Employees, consideration, especially in situa- from Intervenor/Respondent. appears it the threat- in which tions No. 81-1948. inherently impossible is either ened action Appeals, Court of being accomplished capable or is Eighth Circuit. future, of the distant may short any time resolution of the nature proper foreclose March Submitted *8 by allowing Aug. Decided whether accurately recipient who gauge En Rehearing Rehearing Banc only a remote possibil- that there knew 14, 1982. Sept. Denied reasonably feared bodily injury. harm ity of defendant, view, my is entitled to whether a threat jury determine have the reading considering
was made