UNITED STATES of America, Plaintiff-Appellee, v. Clarence D. ROSS, Defendant-Appellant.
No. 87-3018.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted Aug. 10, 1989. Decided Sept. 26, 1989.
886 F.2d 264
Unlike the regulations in First Evangelical and Martino, the conditional variance at issue here affected only a small portion of Moore‘s property. Moore does not allege that his ongoing carpet contracting business was in any way adversely affected by the conditional variance. Thus, he does not allege he was deprived of substantially all reasonable use of his property. While the California courts determined that the conditional variance invaded Moorе‘s property rights, this was not an “invasion” of sufficient magnitude to have denied Moore the “justice and fairness” guaranteed by the fifth and fourteenth amendments. See Martino, 703 F.2d at 1146.
The Supreme Court‘s decision in Nollan v. California Coastal Comm‘n, 483 U.S. 825, 107 S.Ct. 3141, 97 L.Ed.2d 677 (1987), also does not support Moore‘s position. As Moore сoncedes, in Nollan the Court did not decide whether damages could be recovered for the time a conditional coastal development permit was in effect. The Court merely declared invalid the conditionаl permit, which required a public easement across a beach before a new house could be constructed. 107 S.Ct. at 3148-50.
Consequently, even taking all Moore‘s allegations as true, construing them in the light most favorable to him, and viewing the dismissal with skepticism, it appears beyond doubt that Moore can prove no set of facts in support of his claim which would entitle him to relief. His allegations are insufficient to state a claim for unconstitutional regulatory taking for which compensation is due, and there is no case law that supports his position. The district court‘s dismissal under
AFFIRMED.
David Skeen, Port Townsend, Wash., for defendant-appellant.
Jerald E. Olson, Asst. U.S. Atty., Seattle, Wash., for plaintiff-appellee.
Before WRIGHT, NORRIS and BEEZER, Circuit Judges.
EUGENE A. WRIGHT, Circuit Judge:
I. BACKGROUND
Ross and his wife were charged with conspiracy to defraud the United States.
After the jury was instructed on the fifth day of trial, it deliberated for one hour before being excused for the day. During the morning of the following day, the foreperson passed a note to the judge inquiring if the jury could return a verdict on some counts as it was deadlocked on others. The court ordered further deliberations. At 1:45 p.m. the foreperson passed a second note informing the judge that one juror was ill and wished to be excused.
The court convened, and that juror was brought into open court. There followed this colloquy:
COURT: Ms. Peters are you Juror No. One?
JUROR NO. ONE: Yes.
COURT: I have a note, “one of the jurors has become ill and has expressed a desire to be excused.” Is thаt you?
JUROR NO. ONE: Yes.
COURT: Were you sick this morning?
JUROR NO. ONE: I was running a fever last night and this morning, but I just thought it was stress. I didn‘t know what was wrong with me.
COURT: Are you under a doctor‘s care?
JUROR NO. ONE: No.
COURT: You don‘t feel that you can continue?
JUROR NO. ONE: At this point I don‘t think it would be fair to the defendant because I‘m not—all I want to do is go home. I don‘t want to argue anymore. I just want to agree with anybody just so I can go homе. COURT: Please go back to the jury room.
R.T. at 179-80 (emphasis added).
After the juror left the courtroom, the judge noted that “[s]he does appear that she‘s in distress. How serious, I don‘t know.” He then brought the whole jury into the courtroom to determine the status of the deliberations. The foreperson stated that they had reached a verdict on some counts. When asked if further deliberations would be fruitful, the foreperson said “I‘m concerned about the one juror who is ill and whether she can continue.” The judge had the jury rеtire for further deliberations.
After the jury left the courtroom, the judge stated:
What I intend to do is wait a few minutes. We‘ll see what happens. If she sends out another note, then I‘m going to have to do something. But the next time I think under the rules I‘ll ask them the same thing and then accept whatever verdict they have. Then we‘ll go from there.
Id. at 182. The jury returned a guilty verdict on all charges at 3:45 p.m. that afternoon. Ross was sentenced to concurrent three year sentences on each count.
II. DISCUSSION
A. Defendant‘s Right to an Impartial Jury
Becausе defense counsel made no objection and moved neither for the juror‘s removal nor for a mistrial, we review the district court‘s treatment of the juror under the plain error standard.
This court generally defers to the district сourt in the management of juries. See, e.g., United States v. Madrid, 842 F.2d 1090, 1092 (9th Cir.) (“substantial weight” is accorded to the trial judge‘s conclusion regarding juror misconduct), cert. denied, — U.S. —, 109 S.Ct. 269, 102 L.Ed.2d 256 (1988); United States v. Cawley, 630 F.2d 1345, 1348 (9th Cir.1980) (according “great deference” to the trial judge‘s decision whether to deсlare a mistrial due to a deadlocked jury “because the trial judge is in the best position to assess the relevant facts“).
In the context of ill jurors, we found no error when a district court refused to remove a sick juror aftеr it “apprised itself of [her] condition and was convinced, and she agreed, that she could continue for the short additional time it would take to finish the case.” United States v. Armstrong, 654 F.2d 1328, 1333 (9th Cir.1981), cert. denied, 454 U.S. 1157, 102 S.Ct. 1032, 71 L.Ed.2d 315 (1982). Our decision in Armstrong does not control the outcome in this case. This juror did not agree verbally to continue deliberating, nor did the judge make a finding that a verdict on all counts was imminent.
Ross argues that the judge should have exercised his discretion by declaring a mistrial or by dismissing the juror under
if the court finds it necessary to excuse a juror for just cause after the jury has retired to consider its verdict, in the discretion of the court a valid verdict may be returned by the remaining 11 jurors.
The judge‘s decision not to discharge the juror or to declare a mistrial in this case is not plain error. Having observed the juror‘s testimony, demeanor and appearance, he was in the best position to determine whether the juror was actually too ill to serve. He could tell from his experience how to evaluate the jury‘s ability to deliberate further. Finally, he was in the best position to determine whether the failure by defense counsel, an experienced federal public defender, to request a mistrial or application of
Ross argues that the jury‘s verdict was inconsistent, and that this inconsistency demonstrates that there was coercion in the jury deliberations. The verdiсt was not inconsistent. The jury convicted him of one count of conspiracy with his wife, and six additional counts against him alone. The argument lacks merit.
B. Fed.R.Evid. 404(b) Determination
Ross argues that the admission of evidence of a prior similar act was imрroper. He challenges the admission of evidence that he improperly used his wife‘s social security number in 1968, 13 years before the acts in this case. We review for an abuse of discretion. United States v. Spillone, 879 F.2d 514, 518 (9th Cir.1989).
Evidence is admissible under
The court did not abuse its discretion. The evidence of the prior similar act was admitted to negate a claim of mistake by Ross and to show intent. Given the similarity of the offenses, the prior act was not so remote as to require exclusion.
Even if it was remote, the reсord reveals that any possible error was more likely than not harmless error.
Ross argues that he must admit the earlier act before it can be admitted as evidence. This argument is without merit.
AFFIRMED.
BEEZER, Circuit Judge, concurring in part and dissenting in рart.
I concur in parts I and IIB of the court‘s opinion. I respectfully dissent from part IIA.
Ross was denied his right to be tried by an impartial jury. Ms. Peters plainly, clearly, and unequivocally stated that she was no longer a disinterested and impartial juror able to argue and cajole, stand firm or retreat as her conscience, the evidence, and the dеliberative process demanded. She admitted that her only concern was “to agree with anybody just so I can go home.” We have no way of knowing what effect, if
There is no case law which I have found which is remotely analogous to the issue raised in this appeal. The reason is clear—no juror so plainly admitting a lack of impartiality would be permitted to continue deliberating. The lack of impartiality was so patent that I see no room, in this case, for a district court to evaluate the juror‘s “testimony, demeanor and appearance” tо determine whether the juror could continue to deliberate.
I have no doubt that the juror was not physically endangered by the further deliberations. Physical fitness to serve is not, however, the measure of impartiality. A jury‘s criticаl faculties are what breathes life into the term “deliberating jury.” The juror‘s own statement indicates that her illness suspended her critical faculties, and, hence, her impartiality.
I cast no aspersion on the juror‘s conduct. She was at all times forthright with the court and merely did as she was told after she alerted the court to the effect of her illness on her ability to deliberate. Her conduct was honorable and to be commended.
The right to an impartial jury is at the very core of our criminal justice system. I believe that Ross was denied that right. It was the duty of the district court to assure that the defendant‘s conduct was measured by a totally impartial jury and the failure to discharge the ill juror was plain error. I would reverse and grant a new trial.
PAUL, JOHNSON, ALSTON & HUNT, Special Counsel to Plaintiff Reynaldo Graulty, Appellant, v. Reynaldo D. GRAULTY, Trustee, Trustee in Reorganization for WPMK Corporation, and Paradise Palms Vacation Club; James Lombardi, Appellees.
No. 88-15364.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted June 27, 1989. Decided Sept. 27, 1989. As Amended Dec. 14, 1989.