Lead Opinion
Opinion for the Court filed PER CURIAM.
Concurring opinion filed by Circuit Judge TATEL.
Convicted by a jury of committing and conspiring to commit fraud and theft from the Superior Court of the District of Columbia, appellant argues that the district court improperly allowed counsel to offer supplemental arguments in response to factual questions that the jury asked after
I.
Appellant Shola Ayeni, an attorney, served as appointed counsel for criminal defendants in the Superior Court of the District of Columbia. In 2002, a grand jury indicted him and one of his investigators, Troy Robinson, on charges of committing and conspiring to commit fraud and theft from programs receiving federal funds. According to the indictment, Ayeni and Robinson ran a scheme whereby Ayeni obtained nearly 2,000 of the vouchers that attorneys representing poor criminal defendants in the Superior Court provide to people required to testify in their clients’ cases. Ayeni then gave the vouchers, each worth $40, to Robinson, who had friends and family members' — not one of whom was a witness — redeem them and give the money (minus a commission) to him. He in turn gave the money to Ayeni. Robinson received nothing during these transactions; Ayeni allegedly promised to give him thousands of dollars worth of other vouchers later.
Ayeni’s first trial ended in a hung jury. Before the re-trial, the government secured Robinson’s testimony detailing his scheme with Ayeni, testimony it presented along with that of six people who cashed vouchers for Ayeni and Robinson, several Superior Court employees who issued vouchers to Ayeni, and a handwriting expert who compared signatures on the vouchers with Robinson’s and Ayeni’s signatures. The government also introduced evidence indicating that Ayeni experienced financial problems at the time he allegedly ran his scheme. Ayeni adduced no evidence.
A few hours after the jury began deliberating, it sent a note to the court stating that it was “hopelessly deadlocked.” Denying Ayeni’s motion for a mistrial, the court invited, but did not require, the jurors to identify areas of disagreement, stating that perhaps it or counsel could help thеm resolve those disagreements. The jury retired and soon sent in three questions: “What is the lesser count Mr. Ayeni is charged with; why was the handwriting expert called to testify; do[] the defense and prosecution agree that Mr. Ayeni’s signatures in the witness voucher record books are authentic?” Tr. 12/13/02 at 10, reprinted in J.A. at 158. With the two sides’ consent, the court responded to the first question by informing the jurors that there were no lesser included offenses. That response is not at issue in this appeal.
As to the second and third questions, the court told counsel that it was inclined to give each side time to present supplemental arguments, partly because it felt it could not provide the jury with a fair and adequate response. Ayeni objected to the arguments and again moved for a mistrial, but after giving each side a day to resеarch the issue and submit a memorandum, the court stood by its initial plan and permitted each lawyer up to ten minutes to argue, with defense counsel going first. Both before and after the attorneys argued, the district court instructed the jury not to “place undue emphasis on these supplemental arguments,” Tr. 12/16/02 at 7, 18, reprinted in J.A. at 181, 192, but to consider them together with the evidence, instructions, and other arguments they had heard.
On appeal, Ayeni contends that the district court erred both in allowing the supplemental arguments and in refusing to grant a mistrial based on Robinson’s contact with the juror. Because we agree with the first contention, we do not address thе second.
II.
In asserting that the district court improperly allowed supplemental arguments, Ayeni makes two alternative arguments. First, he contends that supplemental arguments in response to deliberating juries’ factual questions are never permitted because they “subvert[ ] the principle ... that the jury’s deliberations must remain inviolate,” Appellant’s Br. at 11, and “intrude[] upon the jury’s exclusive role as the factfinder,” Appellant’s Reply Br. at 3. Second, he claims that even if such supplemental arguments are sometimes permissible, in this case the district court abused its discretion by allowing them. Although the government acknowledges that the second, narrower argument is properly before us, it insists that Ayeni forfeited the first, broader argument by failing to make it in the district court.
We need not resolve the government’s forfeiture argument because we agree with Ayeni that the district court abused its discretion by allowing supplemental arguments in this case. Ayeni makes several points in advancing his narrower argument, but we begin and end with the one we deem most important: that the jury’s questions necessitated no additional argument. In his opinion denying Ayeni’s motion for a new trial, the district judge explained his decision to allow the supplemental arguments:
I could have attempted to fashion an answer that characterized the government’s position concerning the importance of the handwriting expert’s testimony, and the parties’ positions about the questioned signatures. The risk was that such an instruction from the Court, worded so as to avoid lapsing into advocacy, might not sufficiently or fairly capture the parties’ nuanced positions and would be unresponsive. Alternatively, I could have simply instructed the jurors that they had to rely upon their recollection of the evidence and arguments. That would have been of no help. Helpful and responsive answers required advocacy.
Ayeni
We agree with Ayeni that supplemental arguments were an inappropriate response to the jury’s questions. The question about whether the parties agreed on the signatures’ authenticity was straightforward, and the one-word answer that both sides suggest here would have provided a direct and complete response. The other question, which sought information about the government’s trial strategy, similarly called for no supplemental arguments, for the district court could have fashioned a response along the lines Ayeni suggests, or it could havе told the jurors that the question was not one it could answer because trial strategy was not a proper concern of theirs. In fact, the court took just such an approach when it answered the jury’s question about lesser-included offenses, telling the jurors that if they were asking which of the charges involved a shorter sentence, the court could not respond substantively because “[t]he question of possible punishment of the defendant in the event of conviction is ... no concern of yours and should not enter or influence your deliberations in any way.” Tr. 12/16/02 at 6, reprinted in J.A. at 180. Given these other options, it was an abuse of discretion for the district court to adopt an approach that, in effect, allowed the lawyers to hear the jury’s concerns and then, as if they were sitting in the jury room themselves, fashion responses targeted precisely to those concerns. Indeed, in his supplemental argument the prosecutor made one argument to the jury that he had not made in his closing: that there was a reason why the handwriting expert had been unable to say for certain that any of the signatures on the vouchers or in the voucher sign-out book were Aye-ni’s, namely that the signatures were sometimes made in an automobile. The prosecutor offered this reason even though the expert herself never gave it as an explanation for her inability to match any signatures.
It is true, as the government says, that a “district court enjoys broad discretion in controlling the jury during deliberations,” Appellee’s Br. at 23, and that “[t]his discretion includes the authority to decide what to do when the jury encounters stumbling blocks in its deliberations,” id. at 24. Yet this discretion has limits. For example, district courts may not ask a deliberating jury how it is numerically divided, see Brasfield v. United States,
As mentioned, Ayeni argues not only that the supplemental arguments were an abuse of discretion in this case, but also that such arguments are never permissible because they invade the jury’s deliberations and intrude into its role as the sole trier of fact. Though we need not
Of course, the district court’s error in allowing supplemental arguments would not require us to vacate Ayeni’s conviction had that error been harmless. See Fed. R.Crim.P. 52(a) (“Any error, defect, irregularity, or variance that does not affect substantial rights must be disregarded.”). But the government bears the burden of proving harmless error, see, e.g., United States v. Whitmore,
So ordered.
Concurrence Opinion
concurring:
“It goes without saying that few institutions are as venerable as that of trial by jury, enshrined at the Founding in the Bill of Rights and hallowed by an enormous body of English and American law that commands judges ... not to invade the province of judgment by the people.” Stacey v. Allied Stores Corp.,
I.
At the outset, I disagree with the government that Ayeni’s broader argument— that supplemental arguments in response to juries’ factual questions are never permissible — is not properly before us. To support its position, the government picks out and focuses on individual statements in the memorandum that Ayeni submitted to the district judge after the judge proposed allowing supplemental arguments. But the judge had Ayeni’s entire memo, not just the sentences the government selects, so in determining whethеr the memorandum alerted him to Ayeni’s objection and thus gave him an “opportunity to correct any mistake before an appeal is taken,” United States v. Edelin,
Once Ayeni’s memo is read in its entirety, it becomes clear that he made the argument that the government says he forfeited. The memo is replete with general attacks on the propriety of allowing supplemental arguments in response to juries’ factual questions. For example, noting that “the last two questions posed by the jury ask the Court and both counsel to make factual conclusions for the jurors,” Ayeni stated flatly that “[t]his is clearly improper.” Def.’s Resp. to the Gov’t’s Mem. of Law Concerning (I) Propriety of Providing Supplemental Jury Instruction for Second Degree Fraud and (II) Propriety of Providing Supplemental Closing Argument in Resp. to Specific Jury Request at 2, United States v. Ayeni (No. 02-009-01) [hereinafter Def.’s Memo]. Expanding on this point, Ayeni asserted that “[t]o impose upon counsel ... the requirement that we explain the meaning of the expert’s testimony to the jury is in essence telling the jurors how to deliberate. It is their duty to weigh the evidence and give each piece of evidence the weight they think it deserves.” Id. And still later, Ayeni added that “[t]he Court, via supplemental arguments after closing, is now specifically delegating this [fact-finding] task to counsel ... The Court’s attempts to force counsel to ‘do the juror[s’] thinking for them’ and tell them what the facts are after they are unable to agree on the facts after careful deliberations is clearly inappropriate.” Id. at 3. Demonstrating that Ayeni was advancing a generic objection to the use of supplemental arguments in response to juries’ factual questions, these statements broadly condemn such arguments in terms (and for reasons) that would apply in almost any case.
The language that the government’s forfeiture argument relies on — all of which appears in the memo’s first paragraph — does nothing to alter this overall message. True, the memo “concedes that the Court has broad discretion to рermit supplemental closing argument in response to notes from the jury.” Defs Memo at 1. Read in light of the sentences that follow, however, that “concession” merely acknowledges that appellate courts have sanctioned (or even required) supplemental arguments when a jury note leads the judge to give supplemental instructions. See, e.g., United States v. Fontenot,
To be sure, other language in Ayeni’s memorandum (not cited by the government) does make a case-specific argument. But viewed together with the more general statements quoted above, this means only that Ayeni made two alternative arguments: the broader claim that supplemental arguments are never permitted in response to juries’ factual questions, and the narrower assertion — which the court addresses — that such arguments, even if per
More generally, our job is not, as the government seems to think, to see how creatively we can read pleadings in order to avoid deciding an issue. Rather, particularly when reviewing a criminal conviction where a person’s freedom is at stake, we must address every fairly raised issue. For that reason, this circuit has made clear that “where the record is ambiguous we would rather err on the side of recognizing an objection that was not made with the desired specificity than rejecting one that was so made.” United States v. Purvis,
II.
Two bedrock characteristics of our system of trial by jury, a system the Supreme Court has labeled “fundamental to the American scheme of justice,” Duncan v. Louisiana,
No lеss fundamental than jury seclusion is the principle that the jury — not the trial judge and not the attorneys — serves as the trier of fact. As the Supreme Court has said:
Of course, ... in a jury trial the primary finders of fact are the jurors. Their overriding responsibility is to stand between the accused and a potentially arbitrary or abusive Government that is in command of the criminal sanction. For this reason, a trial judge is prohilSted from entering a judgment of conviction or directing the jury to come forward with such a verdict, regardless of how overwhelmingly the evidence may point in that direction. The trial judge is thereby barred from attempting to override or interfere with the jurors’ independent judgment in a manner contrary to the interests of the accused.
United States v. Martin Linen Supply Co.,
In my view, supplemental arguments in response to juries’ factual questions conflict with these hallmarks of the jury system. Such arguments give attorneys who, in effect, have “peeked” into the jury’s deliberations — by listening to its questions and hearing its concerns — an opportunity to provide tailored responses to those questions, questions that concern faсtual matters and that the jurors formulated as part of their deliberative process. The arguments thus permit the lawyers to effectively participate in the jury’s deliberations, almost as if they were in the jury room itself. Indeed, had the supplemental arguments in this case been permissible, then nothing would have prevented the jury from submitting additional factual questions to the court, or the court from permitting additional rounds of such arguments, thus launching an ongoing dialogue between jury and lawyers. Though no extended dialogue was needed to produce a verdict in this case, the fact remains that the jury convicted Ayeni only after the attorneys contributed to its deliberations, intruding on its role as sole fact-finder. Of course, no one told the jury which facts to find, but the jury’s role as factfinder can be invaded without being completely usurped. Juries find facts via a deliberative process that takes place in seclusion, and when counsel offer arguments tailored to address the factual concerns that arise during that deliberative process, the process — and thus the jury’s role as sole fact-finder — has been invaded.
Contrary to the government’s suggestion, the fact that courts permit or even require supplemental arguments when a trial judge provides supplemental legal instructions does not justify the use of such arguments in response to factual questions. Juries’ legal questions, which are what usually prompt supplemental instructions, differ fundamentally from their factual questions for an obvious reason: juries do not serve as the “triers of law.” They are not expected to divine the law for themselves the way they are expected to find the facts. Rather, the trial judge, aided by counsel, provides the jury with the proper legal standard. See, e.g., Kelly v. South Carolina,
By contrast, where a jury’s questions relate to a factual matter, a substantive reply (whether by the judge or the attorneys) risks interfering with the jury’s exclusive responsibility for resolving factual questions. For this reason, several circuits have upheld district courts that refused to answer juries’ factual questions. In one case, for example, the district court told jurors who submitted factual questions, “[m]embers of the jury: The Court cannot answer your questions. It is for you as fact finders to interpret the evi
Of course, where a jury’s legal question leads the judge to give supplemental instructions, supplemental arguments may be appropriate if the instructions introduce legal theories or concepts about which the parties never had a chance to argue. See, e.g., Loveless v. United States,
This case shows exactly how supplemental arguments in response to juries’ factual questions permit attorneys to focus on factual issues, indeed on the very factual issues that are dividing the jury and preventing a verdict (since juries are unlikely to ask questions about issues on which they agree). Recall that in seeking to prove that Ayeni defrauded the D.C. Superior Court by obtaining almost 2,000 witness-fee vouchers and having them re
Having heard the jury’s concerns, and thus been alerted to the precise weakness in his presentation of the cаse, the prosecutor took full advantage of the opportunity provided by the supplemental arguments to correct his earlier mistake' — -he gave the jury a response to defense counsel’s argument unlike anything he had said in his closing. The expert, he said to the jury:
told you ... that she could not be absolutely certain. Well, why is that? You know these voucher sign-out logs are signed at a counter, and they are signed in a hurry frequently. You know that the vouchers ... were often signed by Mr. Ayeni in his automobile. Of course she can’t be absolutely certain. That’s not a shock or a surprise.
Tr. 12/16/02 at 13, reprinted in J.A. at 187. So whereas in his closing the prosecutor had given the jury absolutely no explanation for the expert’s inability to match any signatures, in his supplemental argument made after the jury voiced its concerns about thе expert — concerns relating to a factual matter that were developed via the deliberative process — the prosecutor not only provided a reason (that the vouchers were often signed hurriedly, sometimes at a counter and sometimes in a car), but also made it sound as if the reason was obvious.
In case this new explanation for the expert’s concession failed to convince the jurors, the prosecutor offered a second argument targeted precisely at the key factual issue causing the deadlock. This argument — which, though not completely new, was significantly more focused than what the prosecutor had said in his closing — consisted of telling the jurors that if the expert’s testimony bothered them, they could simply forget it. “Think with me for a moment, if you will,” he said. “If we had never called the handwriting expert in this case at all, if you had never heard her name, if you had never heard that she had done any analysis on this, ... you would still have many roads by which
To be sure, neither of these arguments, nor anything else the prosecutor or Aye-ni’s counsel said during the supplemental arguments, was inherently inappropriate. Both of the prosecutor’s points, and everything else the two lawyers told the jury, could properly have been included in their closings. In that circumstance, however, each lawyer would have been speaking purely as an advocate presenting his case to jurors whose factual concerns he knew nothing about, rather than as a “quasi-juror” offering targeted responses to questions about factual matters that other jurors had formulated during their deliberations. It is not simply the content of what lawyers say during supplemental arguments that matters, in other words, but the context in which they say it. The context of the arguments here, i.e., in response to a jury’s factual questions, rendered them improper.
It is true, as the government points out, that the district court gave both sides equal time to argue, but that in no way mitigates the problems with having the attorneys participate in the jury’s deliberations. Our system does not permit trial by a jury equally divided between advocates for the prosecution and advocates for the defense. We require trial by an impartial jury, something that cannot be created by balancing jurors partial to one side against jurors partial to the other. Defendants have a right to panels composed entirely of impartial jurors. See Parker v. Gladden,
The problems that flow from allowing supplemental arguments in response to factual questions — intrusion into the jury’s deliberations and invasion of its fact-finding role — may explain why such arguments have almost never been used in this country. The parties cite no criminal case in which they were employed, and just one civil case, Withers v. Ringlein,
In departing from this consensus, the district judge here was driven partly by his concern that offering his own response to the jury’s questions would either be unfair to one side or else unhelpful. See Op. at 1315-16. The concern about crafting an unbalanced answer had merit, but the concern about an unhelpful answer much less so. Put simply, not every jury question requires a substantive answer. See supra pages 1316-17; see also Ellis,
More generally, a mistrial' — -the result the district court here sought to prevent— plays an important and healthy role in our criminal justice system. “A mistrial from a hung jury is a safeguard to liberty. In many areas it is the sole means by which one or a few may stand out against an overwhelming contemporary public sentiment. Nothing should interfere with its exercise.” Green v. United States,
Particularly in these days of burgeoning litigation, we share the trial judge’s sensitivity to the need for adjustment of judicial processes to the point of highest efficiency. But while there is need to expedite the work of the courts, this cannot be at the expense of the call of conscience. Indeed, it may well be that a hung jury might lead the prosecutor to reconsider whether the case, particularly a close or weak case, should be presented again to a jury — so that a mistrial need not necessarily “require” a retrial, as the trial judge told the jurors.
Thomas,
In saying this, I do not mean to suggest that supplemental arguments in response to factual questions necessarily infringe “vital constitutional protections.” Although doubting their validity, I am unprepared to foreclose the possibility that such arguments actually represent a worthwhile innovation. But given the extent to which they intrude into the jury’s role as exclusive fact-finder, and given that the nation’s judicial system has a two-hundred-plus-year history of conducting trials without them, I believe they should be adopted, if at all, not by individual judges in the middle of trials, but through some formal procedure, such as legislation or amendments to the rules of criminal procedure, the route Arizona took. See Pan Am. World Airways v. United States Dist. Court,