*2 WALD, Bеfore WILKEY and Circuit MacKINNON, Judges, and Senior Circuit Judge.
Opinion filed Court Senior *3 Judge Circuit MacKINNON. Dissenting opinion Judge filed Circuit WILKEY. *
MacKINNON, Judge: Senior Circuit Appellant Daphne appeals Essex her con- possession viction for of heroin intent with § 841(a). to distribute. 21 U.S.C. At the trial, start of the stipulated defense proceeding with a of 11 if it became necessary to do so. But a full heard evidence, deliberations, began all the and adjourned over juror the weekend. One appear Monday morning failed to and court —without that there was him, any excusing reason and over for objection permitted re- defense — maining jurors to continue deliberations and to return a verdict. government admits the defendant
objected proven it was “not neces- sary” to continue without the and objection. the court overruled said any there no finding Since was reason “necessary” proceed was with jury, less than a full the denial of the right defendant’s to a unanimous verdict of (1) 12 constituted an obvious Goodbread, Washington, Ronald A. D.C. stipulation, violation of the terms of the Court), (appointed by appellant. this (2) and a violation of Fed.R.Crim.P. Facciola, Atty., 31(a). John assuming M. Asst. U.S. Wash- and Even the error was D.C., Harris, ington, Stanley properly with whom S. raised before the district (at court, Atty., Washington, procedure U.S. D.C. the time we would find this to be a filed), Farrell, affecting appellant’s brief was Michael W. substantial defect Jr., O’Malley, John R. Fisher and William J. and reviewable under the so-called D.C., rule, 52(b). Attys., Washington, “plain Asst. error” were Fed.R.Crim.P. brief, appellee. accordingly reverse.1 We (2) transcript; thing happening juror, *The "Tr." refers to the to a the fact abbreviation “R.,” file; complete any “finding" Court’s record and there was a absence of Appendix. court, Joint (3) 52(b) (the part by the of Rule rule) affecting plain so-called error that "defects dissent, Contrary to the assertion of the our rights may although they substantial be noticed holding case cannot considered brought to thе attention of the were court.” change opinion explains, in the law. As this (1) infra, consistently ignores the dissent provision waiver 12-person jury was conditional on some- something THE COURT: So should I. Facts one, proceed happen to we selected, a Shortly after understanding you your 11. Is that peremptorily stricken who had been agree to that? accidentally seated defense was by the Yes, Ma’am, I THE DEFENDANT: Only one alternate jurors. among the do. selected; exam- rest of those had been Very well. THE COURT: been dismissed. dire had ined on voir 42-43) added). seating (Tr. Thereupon, discovered before improper (emphasis exchange started, following previously stricken dismissed trial replaced by the sole alternate. then occurred: Goodbread, I under- Mr. THE COURT: None of the proceeded case to trial. willing to phase. that the Government during stand jurors was excused place of No. No. One *4 accept Friday alternate parties The rested on a it? you, to agreeable jurors that’s and to The deliberat- retired deliberate. they were p.m., when ed until about 6:00 [Appellant’s Coun- MR. GOODBREAD deliberations option to continue given is, your Honor. sel]: Monday return evening or to during the proceed we That means THE COURT: Monday. on They to return morning. voted and it is understood an alternate without them, return at 9:30 on excusing any- have in the event we should that said to counsel: morning, the Court Monday them, they are thing happen to one of necessary you to for be here “It will not be come, not less than one if it is unable to Monday. The clerk will check at 9:30 11? willing proceed with you are they they here and in when are all them correct, That’s MR. GOODBREAD: (Tr. with their deliberations” will continue your Honor. 394) added). (emphasis agreeable to That’s THE COURT: jurors Monday, only 11 of the On your client? counsel, no- Appellant’s appeared at 9:30. DEFENDANT: Yes. THE by telephone, immedi- tified of the situation agree- Very well. Is it THE COURT: allowing pro- ately objected to the Government? able objection made of the was No record ceed. Coun- MR. O’MALLEY [Government upon to was called counsel that make— Government, agreeable to the It is sel]: secretary, the court’s telephone —first which, Honor, as this is an issue your but judge personally. The trial to the then knows, litigated has been the court well objection, con- such defense judge, over many times. stipulation as suffi- oral appellant’s strued waiver If we could have a formal and directed the cover the situation cient to Essex, is, she indicate that Miss that only with resume its deliberations jury to an abso- that she has has been advised indicates, record far as the jurors. So that jurors and right lute to have 12 investigation regarding made no right to any waives she waives it she missing juror and did not determine satis- issue, must be and she appeal that appear. juror’s failure to reason of 11. fied with a verdict Concession A. The Government’s understand, you Do THE COURT: ato Essex, entitled you are Miss that handicapped by a completely are not We certain- you wouldn’t jury of however, [sic] record, appellant’s because silent moment At the ly it if had it. have we explained objections are contemporaneous you going are to have brief, in its and the Government in her event their correctness: in the concedes just saying I am that brief happen to something should brief, appellant’s explained in her As them, we don’t alternates. counsel, an administrative who was at objections to his hearing, communicated Yes, Ma’am. THE DEFENDANT: objected jurors accepting ruling a verdict from eleven Court’s on the telephone conversation with the ground deprive appellant of judge. Appellant Brief for 7-8. her her “conviction [be achieved] part call not a contents of that are by unanimity jurors of those actually who purposes appeal, but record on heard deliberated the case.” repre- appeal appellant’s credit we Government’s concession also admits that objected to her counsel sentations objected counsel to the court’s proceeding accepting less than twelve a verdict of jurors only ground on the jurors. verdict re- Just before agreed jurors to 11 “if turned, noted for the appellant’s counsel ” necessary, turned out not “[t]hat accepting a his necessary” (emphasis added). Appel jurors from eleven rather than twelve lant also procedure asserted that such (Tr. 397). “proven necessary.” Despite these Brief Government at 7 n. 3 (emphasis timely objections, the court ruled that added). remaining could continue their ground deliberations there was objections contemporaneous “com- “no difference” whether ab id., judge,” the trial “ex- municated [to] proven necessary sence or proven plained [appellant’s] brief” necessary. essentially The dissent takes government forth “credits” set in the position. the same returned specific margin.2 admission *5 guilty, a unanimous verdict of and defense important. Government in its brief It again objected jury proced counsel contemporaneously appellant concedes that explained in her objected ure.3 alluded to the again issue his He “[a]s brief.” This concession thus admits trial.4 that counsel motion for new secretary 2. The Court’s stated [to defense coun- gun. separate objection [This was based on telephone] sel on the that she was informed stipulation.] counsel’s construction by the Court that it was understood that the objection proceeding no Defendant had to subsequent In counsel's [continuation of the only jurors. with eleven telephone] judge], conversation with [the he Counsel then [for defendant] informed repeated foregoing contentions and ex- Chambers such was not the under- pressed opposition proceed- to the case further Rather, standing agreement. or the what the ing juror present. without twelfth [The agreed proceed Defendant had to was to to judge] position point, took how- trial, necessary, jurors. with eleven That ever, that Counsel and Defendant had earlier necessary, turned out not to be since the case agreed proceed only on the record to with by days jurors, had heard for two twelve jurors. description eleven [This abbreviated nearly all whom had retired and invested stipulation ignored pre-conditions of the two hours of deliberation in case. Coun- jury for a of 11.] When of Coun- informed expressed opposition sel proceeding to with sel’s distinction between an earlier stated jurors changed eleven under these and differ- agreement proceed (if proven to to trial neces- circumstances, stating opinion ent that the sary) jurors subsequent with eleven and a required Government should be to convince requested agreement only to allow eleven of jurors attempted of the persuade all it had to the twelve who had to heard case then (however many may have been—twelve (not proven necessary), judge] decide it expressed [the case, usual) in this and that to allow opinion no that there was panel away exigencies differ- to be whittled ence Stating in the fact situations. that she geometrically lighten circumstances any way proceed, not know other to [the the Government's burden to achieve convic- judge] then informed Counsel that she would by unanimity jurors tion of those who actual- jurors proceed allow the eleven to with delib- ly heard and case. deliberated the is a [This erating position case. Counsel restated his plain unanimity.] to lack Counsel phone requested judge’s] on the expressed opinion agree- [the further (R. 19-6). understanding. concerning ment and the matter of the аlter- added). Appellant (emphasis Brief for at 6-8 nate was academic and moot at that point, since the alternate would have jury ready 3. When the to return a verdict at been excused before the had retired to Monday morning, 11:22a.m. on counsel defense begin anyway, its deliberations and would following objection: entered the part play had have appear failed to may bring jury. THE You resume deliberations. COURT: On those grounds, objected proceeding Counsel with only jurors eleven after deliberations had be- II. Federal Rules of appear from the record does not Criminal Procedure re- appellant the Government either Requiring Jury Twelve. A. The Rule locate try and the court quested trial, the time of Fed.R.Crim.P. At at- ever the court missing juror —or provided: him or determine to locate tempted any of 12 time Juries shall be but parties stated his reason for absence. may stipulate parties before writing approval with the of the court knew, that, argument they at oral so far as any shall consist of number missing juror’s the reason for the absence may 12 or that a valid verdict less than was never determined. transcript returned of less than be not indicate that the court ever ruled does necessary should find objection it on the took under advisement any jurors excuse one or more 400-01). (Tr. commences. after trial Honor, just waiting Your we MR. GOODBREAD: THE COURT: I was before bring jury, in the I enter into the record respond. Government to my understanding 11-juror Honor, situation? MR. O’MALLEY: Your there was Surely. THE COURT: clearly inquiry by this as to whether inquired MR. I GOODBREAD: haven't or not the defendant would waive the position the Government what his is. present jurors. with 12 Record, understanding For the the Defense any qualification There was never on that agreement proceed waiver, request any inquiry by for a never trial, was, day on the first when we only court whether that waiver was limited alternate, up used if the full 12 did not trial, jurors during never indication day, proceed return the nеxt we would the defense that that waiver limited to jurors. through trial with 11 jurors during than —less up, all 12 The record shows all did show proceedings themselves. did hear the case. made, clearly That was a waiver that was My understanding dutifully is the court in- stated, counsel, openly with the advice of me, by morning only telephone, formed put on the record. *6 up 11 showed for the resumed deliberations. being That waiver heard and the luck of the understanding It was not defense’s that jury having gone draw will of the agree go only we would 11 forward with defendant, against improper I it’s think at jurors during the deliberations. time for this motion and I record, think this just I wanted to enter if that motion should be denied. please. the court Very THE COURT: The Court take it will under THE COURT: well. advisement. (Tr. 397, 400-01) added). (emphasis [The then returned with a verdict of guilty.] Appellant’s complained court, motion for new please MR. GOODBREAD: it If the haste with about which deliberations were we would have two motions. resumed, stating: delay day ground We would ask for a mistrial on the "The of another for (or panel present, missing juror was 12 a bench warrant search insufficient after for retired, jurors placed ill) had as we on record recuperate, for time to allow him to if ... earlier. preferable sponte to the sua only jurors present The record will show 11 ascription prior agreement of waiver in the clearly improper judicial proceed- and that’s proceed jurors, necessary, to trial with eleven ings in a situation of this nature. and the order of the Court that the immedi- excusing position It’s our ately renew their deliberations with eleven place taken alternate would have before jurors present.” Defendant’s Memorandum in retired, rate, any and that 12 would Trial, (R. Support of Motion for New at 6 n. 4 have—or whatever number would have—been added). 19) (emphasis argument presum- This present occasion would have been ably would have evoked a contradiction if the required. court ascertained the reasons occasion, and, as the On that 12 retired absence. shows, only 11 returned with the ver- dict and we would ask a mistrial based on insufficiency. plain is a [This unanimity.] lack of Does the court wish me— 838 1475, (1976); United States added.)5 stipulation here L.Ed.2d 742
(Emphasis Lane, 1134, (6th Cir.), v. cert. 479 F.2d conditional, comes under the sec- was denied, 861, 78, U.S. S.Ct. contrary to the dissent’s clause, ond which (1973). accordingly L.Ed.2d 112 We rule 853, requires a assertions, see Dissent the failure to reduce the waiver it makes of some writing harmless error.6 juror. necessary to excuse expressly required spontaneous also Since a oral waiver Rule customarily specificity, waiver, clarity, not done. lacks the this was a written but adequate and assurance of consideration of com parties should have The court and waiver, a written must circumstances executed a written Rule and plied with the closely, plainly examined and must evi so, much of our they done Had waiver. express knowledgeable dence the con been avoided. But might have difficulty accepting sent the defendant7 to a ver on the errone reversal not rest our we do jurors. dict of less than 12 a written waiver. to execute ous failure writing “procedur requirement of An examination of the cases which al,” where the defendant and in situations oral waivers have been held valid is illus open court with an oral waiver makes Ricks, trative. the oral at issue waiver counsel, and where it is clear that advice appear; made did not it after action taken the court subsequent is clear that the waiver extended to con waiver, the fail the terms of the followed tinuing original stipulation the trial. The Rule is harmless. comply ure to in Rogers v. agreed the defendant Ricks, 1326, 1328 States, United States v. 475 F.2d 5, (7th Cir.1963), 319 F.2d denied, curiam); United States (D.C.Cir.1973) (per cert. 84 S.Ct. Cir.1975), Smith, (1964), 791-92 unambiguous, 523 F.2d L.Ed.2d 475 denied, ap- rt. 96 S.Ct. was renewed failed to after ce subsequently promul- put writing. pri- Supreme the waiver in While the rule 5. The Court has rule, defendant, gated marily protects protects a new which became effective Au- it also gust public. "only proce- 1983: the dural," Ricks, Even rules which are supra, 475 F.2d at are not any Juries shall be of 12 but at time before ignored. meant to be The reluctance of an writing parties may stipulate appellate to overturn a conviction on approval of the court that the with the procedural some violations should not be mis- number less than 12 or shall consist of disregard by jury taken for a license to the Federal that a valid verdict be returned of less 12 should the court find it neces- Rules of Criminal Procedure. than any just sary to excuse one or more commences. Even absent cause after trial Since the waiver in this case was made oral necessary stipulation, such counsel, finds the defendant and her it is not neces *7 if just a the to excuse sary stipula question after furor for to address the whether a verdict, consider its in the discre- has retired to counsel, by tion made without the defendant’s may court a verdict be re- tion the valid consent, of express would be sufficient. The issue remaining jurors. by turned the 11 Compare divided other circuits. has 3, 4507, 1983). (U.S. May 4509 The 51 U.S.L.W. 876, Guerrero-Peralta, (9th 446 F.2d 877 States language. the new Rule adds the italicized Both Cir.1971) (agreement by counsel in defendant's require prior Rule and the amended Rule a ineffective; express by presence statement de finding by the court. required), Spiegel, with United States v. fendant denied, Cir.1979), cert. 604 F.2d 965 point ruling not indicate our 6. Our on this does 100 S.Ct. 64 L.Ed.2d 787 prosecutor approval procedure. this The in of (1980) (the "parties,” rule term not "defend uses litigation this case well aware of the was ant,” may right). waive The and thus counsel 23(b). sought He a "for- has surrounded Rule clearly "compe was made waiver in this case because, said, appellant he mal" waiver from intelligently, understanding^” by ap tently, litigated many the waiver issue “ha[d] understanding impli pellant, “with a full (Tr. 42). obviously prosecutor times” The thereof," upon condition which cations 23(b), requirements aware of since he States, premised. Davis v. United 123 it was Cf. construing was aware it. But neither of cases (D.Minn.1954), aff’d, F.Supp. 226 F.2d 414 he, counsel, any defense court made nor the denied, (8th Cir.1955), cert. waiver, attempt get as the rule a written (1956). S.Ct. 100 L.Ed. explicitly requires. not to There was no reason he juror and he is excused because be- waiver was Similarly, in Lane pear. “ill,” i.e., This is comes or he is “unable to excused. juror made come”— after stipulation contingent upon the waiver only an oral this imply that not to —is after valid,8 finding in the existence of the occur- but each of excused is juror is specified upon that the defense rence of the condition and clear it was these eases “necessary” that it knowledgeably con- the court’s is intelligently and had jurors juror. continuing the trial with excuse sented to that necessitated conditions under the Advisory The Committee Notes procedure. prescribed departure origi accompanied Rule in its which just case is stipulation types form made clear situations nal by appellant is claim asserted One clear. excused: jurors should be which improper is because she verdict in case becomes neces Rule is “useful stipulation would agreed that the juror trial to excuse a sary during the This during deliberations. apply or for some other cause.” owing to illness Appellant merit. claim is without broad added). (emphasis After the 1977 Id. accept agreed to a unquestionably amendment, explain the Notes necessary to ex- if it jurors became parties Rule “makes it clear that the ... juror during deliberations. one cuse agreement to have the enter into an distinguish did not between stipulation jurors less than 12 case decided trial, did it nor phases of different disqualified more are unable or expira- its specify any time for purport added). (emphasis The terms to continue” prоperly excused at If tion. “disqualified” define what is “unable” or verdict, neces- the verdict time before any “just intended the term cause.” and such jurors, that of 11 sarily would be (1) than 12 if permits Rule verdicts of less permissible un- would have been a verdict just necessary to excuse a it is stipulation the terms of der cause, (2) stipulation. there is Rules. recognized stipulation itself terms of the agreement stipulation was not an But the this fact. 11 under accept possible jury 23(b) stipulations thus are contin- Rule real issue circumstances. The and all prece- satisfying this condition gent upon whether, stipulation under this case that formed judge’s statements dent. The Rules, contin- properly stipulation provided that basis jury’s deliberations without ued the proceed with “willing to appellant would be missing juror.9 should have “in the event we 11” them, they are unable happen to anything Stipulation
B. The 43). Thereafter, (Tr. Effect to come” waiver the condition repeated the sec- stipulation, A under conditional hap- something “if should operate 23(b), Rule that a valid ver- would ond clause of jurors. stipula- Id. to one pen” less than dict can be returned operative un- not become tion thus requires finding by the court that it due to some absence was less necessary to excuse the him happening that rendered ascertainable A the trial will cause. *8 “disqualified” participate. to or “unable” something happen” to a continue “should 162, (1977). position That is the L.Ed.2d 119 involving permitting 54 8. In cases written waivers Advisory accompanying jurors, pretrial Notes in the eleven has been held that a taken 23(b). stipulation need not be at the time the to Rule renewed Amendment 1977 excused, juror juror excused is even if the is during v. Pa deliberations. See United States nothing transcript to indicate in the There denied, cente, 543, (7th Cir.), F.2d cert. 503 552 juror. The court ever "excused” the 1048, 623, 642 U.S. 95 S.Ct. 42 L.Ed.2d 419 proceed just permitted jury to of 11 488, Stolarz, (1974); United States v. F.2d 550 its deliberations. 851, (9th Cir.), denied, cert. S.Ct. 434 U.S. 98 493 840 10cannot jurоr
A
who takes “French leave”
necessary to
found
excuse
juror, that
anything “happen” to
said to have had
be
waiver
not be
could
construed as a waiver
terms,
waiver, by
did not
unanimity.
him. The
its
of
There is a
recognized
well
duty
abrogate
to
either the trial court’s
distinction between the
jury
waiver of a
of
juror
of a
investigate
non-appearance
12,
waiver
and the
of unanimity. United
cause, or
finding
make
as to the
488,
(2d
Pachay,
States v.
711 F.2d
492
of deter-
appellant’s right,
1983);
in the absence
Cir.
United
Vega,
States v.
447 F.2d
cause,
ver-
good
698,
to the unanimous
(2d Cir.1971) (counsel
mined
willing
701
jurors
dict of all the
heard the
11,
who
evi-
jury
accept
accept
to
of
but would not
excused),
dence,
Court,
were instructed
verdict;
juror
non-unanimous
hold-out
denied,
retired
deliberate on the
1038,
verdict.11 Be-
rt.
404
S.Ct.
92
ce
finding
just
made,
712,
cause no
of
(1972).
cause was
federal (6th Cir.1953) (“there unanimous. Amendment by the Sixth supported by proof cannot be a verdict counsel, jury re Appellant’s before beyond if one or a reasonable doubt more verdict, objected times its several turned reasonably remain in doubt as to as a waiver of construing stipulation her guilt”). requirement unanimity 19-7). In (Tr. 397; unanimity R. 19-5 if, great deal of its force would lose a fact, expressly pointed out that the ver he implies, jurors may opt out at the dissent (R. 19-6, “unanimity” Brief lack dict would Permitting this erosion would lessen will. 6-8). That is sufficient Appellant for convincing prosecution’s burden objection This support her claim of error. membership jury. The record entire repeated appeal. in her Brief is also ap- support a conclusion that here cannot 6-8, 10-18, 20-30.12 Appellant at right her to a pellant waived unanimous explained, has As the Ninth Circuit accordingly right rule that her verdict. We dynamics jury process to a unanimous verdict was violated. only one or two members such that often D. The 11 Jurors Verdict of by a express as to a view held doubt necessary to excuse one ... Was “it majority at the outset deliberations. cause,” in accordance unanimity juror[] any just fur- A rule which insists stipulation or process by requir- with the condition the deliberative thers counsel, contrary to the Rule? While ing minority view to be examined dissent, object and, accepted rejected by statement possible, telephone continuing delib- requirement promptly jury. the entire CONSEQUENTLY THE RETURN OF A following brief IV. 12. The points appellant’s construing FEWER THAN THE VERDICT BY indicate her her GUILTY clearly WHO NUMBER OF JURORS HEARD as waiver of TOTAL unanimity: CASE UNDERTOOK TO DECIDE THE AND I. APPELLANT WAS DENIED HER FIFTH OF DEFENDANT DUE PROCESS DEPRIVED DUE AND SIXTH AMENDMENT RIGHTS TO LAW AND FAIR TRIAL[.] OF A AND A FAIR TRIAL BY THE TRI- PROCESS added). (emphasis at ii Brief for Appellant AL COURT’S THAT FEWER THAN RULING 23(b), relies Rule and the Con- brief also upon THE TWELVE ORIGINAL JURORS WHO rights was denied her clusion asserts she THE CASE A VER- HEARD COULD RETURN the 5th and 6th Amendments: under DICTf.] TO of her II. THE DEFENDANT AGREED The Defendant has ONLY deprived TO TRIAL WITH FEWER THAN States Constitution PROCEED under the United THAT JURORS, TWELVE IF NECESSARY. a fair trial, of law and to due pursu- process NEVER AND THE CONTINGENCY AROSE Sixth Amendments there- ant to the Fifth and IS THEREFORE WAIVER judgment MOOT[.] Court of the District of, a new trial ordered. be reversed and should *10 only jurors, in position erations with eleven there is no The court considered was telephone immediately, in indication that his call he re- to rule and it overruled de- missing quested inquiry objections by permitting jury fendant’s a search proceed he was informed that of 11 to even that with its deliberations. —or inquiry permitting jury made. But it thus proceed such had not been of 11 to verdict, duty to determine the and return a was the court’s clear the court treated the missing juror stipulation jury and make to waive a whereabouts of neces- if as just sary, cause for sufficient to waive a finding there was appel- even explanation necessary. objec- Defendant’s excusing him. timely, tion Government, positive, specific, and and lant’s brief credited the error was clear and prosecu- obvious. Both the statements of the Government objections again were open raised in tor, emptiness and the record cannot (Tr. 397), before the returned and in that the for support a statement reason haec verba in defendant’s motions for a —and absence was ever determined (R. ¶¶ 19-5b, 16-17). mistrial or new trial support sug- there is no whatsoever for the nothing There is to the dissent’s assertion gestion finding that the court ever made a objection that the substance of the was not just cause existed to excuse the miss- 847, 848, trial. Dissent at raised at ing juror. good A cause necessi- finding objections by appellant made were required a violation of Rule ty was to avoid enough broad to raise the issue that the finding was ever made. and no such by failing “just court errеd to find cause.” not, required Counsel did and he was not
to,
precise
(1)
use those
words. The
silent,
(2)
Since
the record is
and
was to the substantial variance from nor-
just
the court must “find”
cause on the
record,
procedure
(3)
mal
in criminal trials that
and
the case must be affirmed
proposed
record,
(4)
court indicated it
to follow or reversed on the
there is
finding
ruling
nothing
without
that such
support
the record to
the court’s
“necessary.”
magic
action,
No
words are re-
the case must be reversed. The
quired
objection. By
to constitute an
stipulation
only possible
was the
basis
evidence,
analogy
objections
objec- proceeding
jurors,
nothing
without 12
procedure,
specific
tion
ground
supports
finding
the record
objection being apparent
from the con-
stipulation
complied
terms of the
were
text,
“(1)
Contrary
sufficient:
a substantial
implication
with.
to the
affected,
(2)
dissent,
the nature of
nothing
there is
novel about decid
[was]
the error
ing
was called to the attention of the
cases on the record or the absence
judge, so as to alert
proper
thereof.13 The record in a criminal case
[her]
103(a),
course of action.”
support
judgment,
Fed.R.Evid.
must
and the court
(a).
of Advisory
*11
added.)
rulings.
(Emphasis
In
supports
record
its
At
United States v.
that
kinson,
157, 160,
391, 392,
56
297 U.S.
S.Ct.
required
in the
absence
(1936),
L.Ed.
the Supreme
80
555
Court
argu-
is a substantial error.
“plain errors” as
described
follows:
ordinarily
is not
re-
ment
exceptional circumstances,
In
especial-
establish the cause for the
quired to
42,
eases,
courts,
ly
appellate
n.
flies
in criminal
at 854
in
absence,
Dissent
see
public interest,
23(b).
may,
of their own
directly in the
Rule
face of
motion,
excep-
notice errors to which no
jury
We cannot condone
loose
taken,
tion has been
if the errors are
finds
in which
dissent
no er
practices
obvious,
they
seriously
or if
otherwise
and highly
The dissent
on loose
ror.
rests
fairness,
affect
integrity
public
or
possibilities
assumptions
and
speculative
reputation
judicial
proceedings.
record.14
support
have no
We
Thus,
Rule,
appellate
under the
an
find that the court denied defendant her may ground its decision on
affect-
defects
12 jurors
verdict of
right to the unanimous
ing
rights
plain
substantial
errors—
—or
any finding
anything
“hap
without
though
even
the defect or error was not
them so
he was
pen”
fact,
at
frequently
raised
all.
the rule is
That is
participate.
violating
“unable”
applied when the error or
is not
defect
stipulation,
relying upon it.
Such brought
the attention of
the trial court.
23(b)
conduct also
Rules
and
trial
violated
See, e.g.,
States,
v. United
370 U.S.
Silber
31(a).15
717, 718,
1287, 1288,
82 S.Ct.
ings
obvious error.”
L.Ed. 289
or which
Brown,
United States
previously,
As noted
federal defendants
Cir.1977).
We
it in simi
defined
(1)
juries
are entitled to
they
unless
McCord,
United States v.
lar
terms
properly
waived in accordance with
(en
cert. de
(D.C.Cir.1974)
banc),
F.2d 334
23(b),
(2)
Rule
unanimous
verdicts
nied,
S.Ct.
deliberated,
who
unless a
*12
(1975):
L.Ed.2d 87
properly
excused in accordance with
encompasses
plain
of
error
doctrine
23(b).16
23(b)
[T]he
Rule
finding
requires
Rule
obvious,
which are
affect
those errors
just
operable.
of
cause before it is
rights
of the
and
substantial
accused
uncorrected would be an affront
Right
A. Affected
pro-
integrity
reputation
judicial
of
and
The obvious
right
and substantial
ceedings.
appellant
right
of
that was denied is her
Id. at 341
v. United
(citing
Silber
10
n.
unanimous verdict
12
of
States,
717, 718,
1287,
82
370 U.S.
S.Ct.
began
her
who heard
case and
their deliber
1288,
(1962);
Johnson v.
798
8 L.Ed.2d
nothing
There is
in
ations.
this
trial
States, 318
189, 199-201,
United
U.S.
63 record, or in the contentions of the Govern
549, 554-55,
(1943);
87
S.Ct.
L.Ed. 704
ment, that
juror
indicates
in
this case
Atkinson,
United
v.
157,
States
U.S.
297
anything happen
gave
had
to him that
him
160,
391, 392,
(1936)).
56 S.Ct.
In our as outlined The majority in this grant case would appellant’s above, sub- mistrial because in this case defects affected indulges many However, Rules, 17. The dissent al misstatements Rule. the Federal law, prophecy, of fact and extreme particular, overstate- Rule in pure have more status than a ments, extravagant exaggeration. statute, It re- originated since this Rule with the Su- peatedly objections understates the extent of the preme "approved" by Court Congress. and was that were raised defense counsel. It com- See 91 Stat. 320. Rule 23 also has constitutional pletely ignores plain implication both the underpinnings; it "is formulation of the con- timely objections issues raised guarantee by jury.” stitutional of trial Fed.R. 52(b). authority court’s under Rule These er- Advisory Crim.P. (a). Notes of Committee subd. generally rors are answered statements above, of fact and law set forth but a few suggests The dissent that there is no need deserve additional comment. ruling. the court to make a record for its Dis that, It should be noted since the 23(b) requires sent at But Rule 855-856. *14 started the trial of case when the another Essex stipulation where the "the conditional that deliberate, jury taking retired to a short time to necessary ....” That is no idle find by have the checked absence the marshal requirement by that is satisfied a silent record. delayed subsequent would not Meanwhile, have trial. indulge For the dissent to in the shorthand jury as the Essex was in the deliber- "preferred statement that Essex a verdict of less ating phase, easily could have sus- mistrial,” delay than 12 to Dissent n. at 857 pended jury deliberations to await the marshal's added), (emphasis ignore it must the control report juror holding up on the absent without ling fact that her consent was limited to situa the other trial. "something happened” tions where to a It is also a to misstatement assert that we are and “necessary” it was to be shown to excuse granting merely the mistrial because of an 11- gross him. a "Preferred” is overstatement and reversing verdict. We are because the recognize fails to the narrow conditions under verdict complying of 11 was returned without willing accept which Essex was to a verdict stipulation, only with the which was the basis jurors. justify that would a verdict of 11 Under recognizes The present dissent that under the such circumstances the verdict also violated the Rule, supra, "justify see note court should 31(a). unanimity requirement of Rule The dis- stipulation the choice made”—but and waiver, sent asserts a there was deliberate but prior court, placed requirement Rule the same requirement there was never a waiver for similarly "justify and it must the choice.” jurors a "unanimous" that heard objection Some should also be taken to the case, objection clearly and that raised. appel- essence of the dissent’s contentions: that objection To state that the was not raised and counsel, penalized lant should be because her perception understood is to underestimate the notice, prior with no objections did not set forth all his experienced judge. of the learned and precise immediately formal terms stipulation fact that the was not limited to upon being telephone jur- that open informed contrary to the defendant’s con- trial — missing. recognize or was dissent fails to justification applying tention —is no the for not it to nothing appel- that record indicates that in the deliberations as the Government con- any advised at time tended. lant’s counsel was that objections: (1) The defense made two something stipulation “happened” that trial, that the court had not found limited open to the (2) missing juror "necessary" that made it any to the to that event the terms of the stipulation complied "object” Counsel were сontinue without him. did im- with. The fact relying stipulation against on the point mediately we ruled the first to the court’s does not justify apply permit a 11 to refusal to our continue decision deliberations stipulation apply given to the that were factual under the limited facts by to him situation yet covered point. telephone. have not second We reached the tried, denigrates requirement stage dissent cases where criminal are and de- of a jurors rights away by unanimous verdict whom are frittered fendants’ substantial telephone, any case was being submitted for decision as a Feder- without made. jury. MR. The defense by an eleven-member GOODBREAD: reached that, result de- would Your My reach this have no colleagues would appel- court the spite open that in Honor. the fact advisedly her waived deliberately and lant Very THE COURT: well.3 despite right jury, a twelve-member government initially objected attorney appellant’s never fact that court, solution. After a colloquy con- the issue now trial court raised to the however, government agreed by majority sua dispositive here sidered proposal. defendant’s waiver a deliberate
sponte. With MR. O’MALLEY [GOVERNMENT relied, trial court on which the is agreeable to the COUNSEL]: prejudice, opportunity no visible government, your honor, but this is on the issue now discovered to court to act which, knows, issue as the has court well any justification I fail to see important, litigated many times. reversing the conviction.1 whatsoever If we could have formal waiver from is, Essex, Miss indicate that she I. Facts has been advised she has an abso- appellant’s trial had been lute right to have twelve and that appellant’s sworn when counsel seated and if she it she any waives waives panel he had strick- observed issue, appeal satis- she must be drew this fact to Appellant’s counsel en.2 fied with verdict eleven. time, attention. At this how- the court’s .understand, you THE Do COURT: ever, only one alternate been chosen Essex, you Miss are entitled to remaining of the venire members you certainly of twelve released. The court and counsel had been you had it. At moment it if we sides discussed the dilemma: for both going to have twelve. MR. GOODBREAD [DEFENSE saying I am in the event honor, may Your we be COUNSEL]: them, happen one of something should jury? on the matter of the ... heard we don’t have alternates. juror in the *15 is one the defense One box Yes, THE DEFENDANT: Ma’am. has stricken. if something should THE COURT: So enough strongly feel about that We one, happen proceed we with to would removed strike to ask that he be eleven. way in panel whatever you understanding and do your Is that proceed in with deems fit order to agree that? to May suggest replacing we him trial. Ma’am, Yes, I THE DEFENDANT: with the alternate? do.4 THE leave us with no COURT: That After proceeded trial. you Let this. The then to alternates. me ask Is it case introduced, the had been agreeable you to should a all the we have evidence —if them becoming jurors and excused problem judge charged with some ill or reach jurors failed to being proceed to unable have less for deliberation. —to deliberations, day first jury? their than twelve-member verdict on however, majority, all involve in- hope precedent as 1. I that this is confined to fered i.e., precise stipulation candidly dissent acknowl- its facts: here, entered into stances where Essex, lawyer a defendant named named edges unclear. Goodbread, possession, heroin the offense of etc. Essex, 83-1169, Supple- United States 3. No. [hereinafter, Transcript] at Trial mental Record majority this dissent claims that "rests on 2. 39-40. possibilities highly speculative loose and support assumptions that have no in the Id. at 42-43. quotations prof- Maj.Op. at record.” only to Friday. They jurors were instructed return with eleven after delibera- begun.5 had tions Monday. following attorney enough Essex’s in forceful Monday jurors one of the failed to On objections his to judge cause the to be secretary judge’s appear. contacted away summoned from proceedings then un- attorney and him informed Essex’s open derway in court. Essex’s brief also judge He also was told that the situation. in detail attorney's recounts her discussion proceed jurors, only to with eleven intended judge: with the stipulation. in with the Accord- accordance subsequent In counsel’s conversation brief, ing attorney objected to Essex’s her judge], he repeated forego- with [the vehemently jur- proceeding to eleven with ing expressed contentions and further ors, nothing showing “just but said about to opposition the case proceeding without juror: excusing cause” for the absent juror present. judge] the twelfth [The counsel defendant what [Essex’s said] position however, point, took the at that agreed trial, proceed had was to that Counsel defendant earlier had necessary, jurors. with eleven That agreed on the proceed record to with necessary, turned out not to since be only jurors. eleven When informed days had case been heard for two Counsel’s distinction between earlier jurors, had twelve all of whom retired agreement (if proceed stated nearly and invested two hours deliber- proven necessary) jurors with eleven expressed in the op- ation case. Counsel subsequent requested agreement to al- position to proceeding eleven low eleven of the twelve had who jurors changed under these different (not then heard the case to then it decide circumstances, opinion stating proven necessary), judge] expressed [The required opinion the Government should that there be was no difference fact jurors Stating convince all of the situations. that she attempt- (however way proceed, did not know other persuade many ed judge] then informed counsel that case, usual) [the been—twеlve pro- she would allow the eleven panel and that to allow the to whittled deliberating ceed with the case.6 away by exigencies and circumstances geometrically lighten Govern- guilty.7 returned a verdict of ment's burden to achieve conviction Essex’s counsel moved for a and a mistrial unanimity actually of those who He essentially new trial. advanced heard and deliberated the case. Counsel same arguments as those he had earlier; expressed again, further once opinion both his state- agreement ments before court and in concerning the subse- and the matter of quent in support memorandum filed alternate was academic and *16 motion, nothing “just was said about moot point, at that the since alternate cause.”8 juror would have been excused before
the begin had retired to its delibera- judge took the motions under advise- anyway, tions and would have had no ment, ultimately denied both.9 Essex part play appear had a failed period to a was sentenced of incarceration to resume years.10 On those appeal deliberations. three not to exceed This grounds, objected proceeding Counsel followed. Appellant
5. appeal. Support Brief for Defendant’s at 6-7. Memorandum in for a New of Motion Trial 5-6. at 6. Id. 7-8. Transcript, Part 9. Trial at 2. Transcript 7. Trial at 398. 83-1169,
8. No. Appeal United States v. Essex at Record 25. 10. [hereinafter, Record] 19. attorney essentially Essex’s the advance argument same footnote later used on as was Analysis record the does not even indicate whether
II.
judge
inquired
as to why
ever
the
Waiver
A. Duration of
shows,
was absent. From all the record
the lower
before
proceedings
In the
dead,
juror might
absent
have been
argument in
single
court,
advanced a
Essex
asleep,
incarcerated,
hospitalized,
coerced
mistrial: that the
for a
her motion
favor of
by
employer,
аn
or bored
the trial.
operative when the
ceased
be
waiver
possible
Some
these
make
reasons would
the trial ended.11
evidence-taking phase of
juror’s
unavoidable;
absence
others
disposed
correctly
of this
majority has
would not.
us
claim,12
not detain
here.
and it need
good practice,
As a
judge
matter of
why
should establish
was absent.
“Just Cause”
B. Dismissal
Juror
for
simple,
help
A
check would
the court ensure
argu-
a second
has advanced
Essex
by
absence was
caused
intimi-
appeal. Es-
the first time—on
ment—for
by
parties,
employ-
dation
one of the
an
merely hinted at this rationale in her
sex
jurors.
inquiry
er or
other
an
Such
brief,13
advanced more
but it was
appellate
protect
would
the court’s
interest
own
very
late
directly
argument.
at oral
preserving
sanctity
proceed-
totally
different ration-
ings.
introduction
The record before us does not tell
hampered
ability
obviously
ale
inquiry
an
made.
whether such
ever was
factually
analyt-
government to refute it
The silence of the record should not be
argument holds that
waiv-
ically. This
overstated,
mis-
however.14 would be a
judge
found that a
applied
er
juror simply
that the
chose
take
assume
by just
juror’s absence was warranted
appear; similarly,
not to
be an
it would
argues
a mistrial
Essex
should
cause.
judge
error to assume that
did not
(never
judge
since the trial
be declared
establish to her own satisfaction that she
raised) made no
having the issue
formal
just
dismissing
juror.
just
finding
major-
on the
cause issue.
Since all we know that
the record
holding
its entire
on this after-
ity rests
silent,
de-
inquiry
our
should
limited to
thought,
argument.
footnote
ciding
find-
whether the absence of record
ings
agree
no
as to the cause
absence
parties
All
made
error.
as to
cause. The
constitutes reversible
argument
any
Appellant
such con-
at 10-14.
not aware at oral
11. Brief for
government
cession
counsel.
I
was made
Majority Opinion
argument
at 12. The same
government
squarely
heard
state
counsel
rejected by
one other
has been
at least
court.
made,
inquiry
no
to be
but I never
needed
Pacente,
States v.
very
heard him make the
different statement
denied,
banc)
Cir.) (en
cert.
tape re-
been made. Since no
none had
(1974) (“[D]efendant
fairly defense drawn from counsel’s own ac- telephone dict from eleven in a conver- telephone count of his off-the-record conversa- judge. Appel- sation with the trial Brief for judge). tion with the trial lant at 7-8. The contents of that call are not a disregard This the record—and the corre- part appeal, the record but for the sponding speculations which are reliance on purposes appellant's appeal we credit jurisprudential serious treated as facts—has im- representations objected system, judges that her counsel plications. supposed our are role; accepting jurors. they play required verdict of less than twelve to rule a limited returned, appel- cоntroversy Just before the verdict on the facts of the case before objec- lant's counsel for the record his them. noted limiting judges accepting tion to preserved a verdict from eleven rather The interests 397). (Tr. obviously particular case are un- than twelve the facts of a *18 longer objection an alternate could no used. that this Be- majority The asserts “just expired cause” issue. stipulation inapplica- court the cause the raised to the objection that reasons this majority during deliberations, attorney ble Essex’s enough to raise the issue that was “broad claimed, proceeding only vio- failing ‘just find by to the court erred jury to a 12. lated Essex’s ”20 claims, majority “The ob cause.’ argument That this was the the —and variance to the substantial jection was only argument actually made the de- — jury in criminal procedure from normal readily fense can be demonstrated. On the proposed indicated it to trials that returned, record, jury the before Essex’s majority proceeds then follow....”21 because, not attorney objected “It was the judge’s read into the trial action re to understanding that we would defense’s “just sponse the cause” issue. “In to go agree to forward with [overruling objections] the the defendant’s during the deliberations.”24 the stipulation court treated to waive 12, necessary, as sufficient to waive a attorney’s recounting In own Essex’s if if necessary.” of 12 even judge’s the his conversation with trial sec- the majority government that also finds retary, states, he “Counsel further ex- away the when “just cause” issue conceded pressed opinion agreement the that the objec that had been an it conceded there concerning and the matter of the alternate continuing jurors.23 tion to trial with eleven point, that juror was academic and moot at I fail find in evidence to juror since the alternate would cause” “just trial counsel raised excused had retired be- before objection issue in its trial court. To gin anyway, and its deliberations contrary, all available evidence—in- part play have had no had a failed trial, cluding the record from factual appear to resume deliberations.”25 brief, assertions in own defendant’s Again, argument stipulation arguments advanced in the de- simply apply after deliberations be- clearly rather brief—indicate fendant’s gan. presented very trial that Essex’s counsel emerges argu- hint Another argument judge. the trial Nor different does attorney by Essex’s on ments advanced simple government’s concession majority suggests, appeal. as the If, objected “accepting counsel Essex’s the cause objection thrust of his jurors” carry in a verdict from eleven its proved, was not absence “just concerning wake a concession he very is at least curious failed analysis majority. cause” advanced directly appeal. in his that issue address actually Essex’s raised was whether he did address The issue pursued appeal counsel—and be—can expired at end of simply put: objected stipula- he he had issue testimony identical applied only tion was dismissed —the telephone conversation with his raised in (which during taking testimony he his later formal mo- “trial”) erroneously described framing his court. tion the trial during not if a was excused delibera- Essex’s counsel asked presented, the issue argued, essence, tions. He that the sti- “trial court whether to decide use of pulation was substitute waiver of twelve alternate, a limited expired accept its so own transform during trial and ... having person jury been needed—when terms —never added). (emphasis Transcript 20. Maj.Op. at 842. 24. Trial 21. Id. 7. Appellant’s 25. Brief at Id. at 842. Maj.Op. at 836. *19 person argument it as a waiver a twelve apply actually expressed and at trial
jury during deliberations....”
appeal
and on
by Essex’s counsel is clear:
stipulation
the
inapplicablе
was
because it
brief, appellant argued
I of his
Section
expired altogether when the jury retired to
“conceptual
the
difference between
that
argues
was,
deliberate.31 Essex
she
that
in
‘jury
per
deliberations’ has been
‘trial’
effect,
in
established,”
position
stipula
same
suasively
and that the
as someone
by
apply
Essex did
never
stipulation
tion entered into
not
at
had entered
who
into a
at
during jury
In Section
all
deliberations.27
all:
deviation from the
require-
standard
brief, it is argued
II
same
that
of the
unanimous,
“[t]he
of a
12 person
ment
jury could
underlying premise of the ‘waiver’was that
taken
without
new waiver.32 The ma-
given
compre
it was
within
context
jority
rejected
has
this argument,33 and I
by
portion
that
of the
in
hended
trial which certainly agree.
(i.e.,
alternates
used
prior
could be
Although
by
Essex’s counsel stood
retired.)
time the
was not a waiver
interpretation of the waiver in his briefs
in a
set
different
of circumstances in which
at oral argument,
majority
(i.e.,
alternates would not be allowed
dur
totally
credit him with
objec-
different
deliberations). Indeed,
ing
the trial court’s
that the stipulation
apply,
tion:
that it
inquiry
entire
and instruction was couched
in
did continue
force after the
retired
unavailability
terms of the
alter
deliberate,
that
judge
but
failed to
III,
nates.”
In Section
Essex’s counsel
satisfy
stipulation.
the terms of
argues that
inapplicable
the waiver was
majority
interpretation
While the
finds its
began
after deliberations
because an alter
objection,
to be
“substance” of Essex’s
nate
not
could
added to the
arguments
not only radically
IV,
jury.29 In
Section
defendant’s brief
dif-
but also inconsistent.
Essex’s
again
given
asserted that Essex had never
ferent
argued
permission
stipulation
counsel
“express
stipulation
by
of a
to be
return
fewer
ceased
well
than the total
miss-
effective
before
ing juror
appear;
number
who retired to delibera
majority
failed
te....”30
argues
stipulation
that the
still
was
effеc-
(emphasis
original).
at vii
objection
26.
Id.
proceeding
jur-
ed Essex’s
with 11
ground”
"on
ors
that there was no difference
at
27.
Id.
12-13.
proven
in whether the
absence was
nec-
essary
proven necessary. Maj.Op.
or not
at
at
28.
Id.
16.
assumptions,
If one must
836.
make
it certain-
ly seems more reasonable to assume that
at
29.
Id.
18-20.
trial
saw "no difference" in the two situa-
by
attorney
tions contrasted
Essex's
in his
30.
Id.
20-21.
throughout
record statement below and
his
appeal: application
stipulation
brief
of the
actually
31. This review of what Essex’s counsel
juror during
taking
phase
loss
the evidence
helps place
phrases
said
back in context certain
trial,
application
stipulation
carelessly
majority.
example
used
An
during
loss of a
deliberations.
"necessary.”
majority
involves the word
Finally,
places
govern-
it
back into
context
implies
this word
used
Essex’s coun-
government
ment’s
concession.
does con-
sel
same sense it uses the word:
that the
attorney
cede that Essex’s
raised an
excusing
impermissible
because
jurors. But,
proceeding with 11
con-
necessary. Maj.Op.
it
shown to be
far
ceding
“just
government
cause" issue the
fails
to indicate that
it had
notice whatsoever
reading
A careful
suggests
of Essex’s brief
"just
cause” issue would blossom into a
meaning
a different
was intended. The mean-
disposition
basis
the case.
ing apparently
intended was that since no
testimony,
was excused before
end
it was
32. Essex’s claim
new waiver would be
"necessary”
invoke
before
required explains her counsel’s reference to the
expired. Appellant’s
Brief at 6-7.
subsequent,
requested
need for “a
waiver.” De-
example
judge’s reported
Another
fendant’s Brief at 8.
conclusion
she saw "no difference” in the
posited attorney.
situations
Essex’s
The ma-
Maj.Op.
jority
at 839.
phrase
reject-
concludes from this
that she
*20
Inquiry
a.
Cause
Under
The Just
adequately
but not
tive
satisfied.
Essex,
by
estab-
argument advanced
the
First,
altogеther
it is not
clear that the
“just
was excused for
lishing
juror
that the
judge
by
error
would
sim-
committed
avert
since
not
a mistrial
cause”
ply finding
juror’s
just
the
absence alone
stipulation; under the
no valid
there was
cause for dismissal. The court is handi-
establishing “just
interpretation,
majority’s
capped
determining
in
what would have
discharging
record for
the
cause”
just
juror’s
cause for the
constituted
dis-
satisfy the implicit condition
juror would
missal
this issue was neither
since
briefed
stipu-
to continue
the
under
and allow trial
argument.
nor
The govern-
raised at oral
argument
by
the
advanced
Under
lation.
argue
ment
a
never had chance to
whether
Essex,
proper
the
course of action would
present
the
is
to support
record sufficient
a
why
juror
the
require consideration of
not
fact,
did,
just
cause
exist to
absent,
regardless
the
because
support
juror’s
the absent
dismissal.
a mistrial was re-
of his absence
cause
stipulation;
a new
under the
quired absent
argu
failure of the court to hear
by
majority,
the
estab-
argument advanced
ment on this issue matters because
is at
it
lishing the
juror’s
absence
least
arguable
present
the
record
case.
crux of the
just
jur
for
shows that
cause existed
requested
courses of
the two
action
Since
governing
or’s dismissal. Under the rule
fundamentally
judge
inconsist-
stipulations
proceed
with less than
say
ent,
raising
argu-
it
not fair
jurors36 contrary
sugges
twelve
to some
—
also raises the other.34 Once
ment
majority’s opinion
judge
tions
as
—a
stipulation
had
judge
decided
sessing just cause is not a truant officer
objec-
applicable, she had answered
still
determining
juror
good
has
whether the
regard to the
by
tion raised
Essex. With
can,
appearing.
excuse
A
judges
by majority,
objection raised
course,
absence,
required
justify
his
objection
if no
on notice than
were more
judge
impose
can
sanctions on
raised.
at all
discharge
.those
who fail to
their
But,
duties
this case does not
prоperly.37
2. Plain Error
judge
present
the issue
whether
objection
an
Essex’s failure
make
missing
punished
juror.
should have
if
judge’s
action
could be overcome
faced
the trial
cause issue
Although the
plain
constituted
error.35
ma-
judge
quite
in this case
different
raises
judge
commit-
jority asserts that
trial
question
what circumstances the
error,
plain
support
it fails
its conclu-
ted
—under
rely on that
analysis.
parties to a
can
with reasoned
sion
observes,
error,
majority correctly
United
v.
the test
obvious and substantial
States
As
34.
1291,
Gerald,
(5th Cir.1980),
cert.
624 F.2d
1299
is sufficient
em-
for whether
920,
1369,
denied,
67
U.S.
101 S.Ct.
L.Ed.2d
450
issues which are related but
men-
brace
(1981).
only plain
error
be not
requested
348
must
action
tioned
terms is whether the
signif
type
and obvious but also of a
that would
is the same. Fed.R.Crim.Proc.
icantly prejudice the
v.
defendant. Reisman
Nor
Essex achieve the sort of "three in
States,
789,
(9th Cir.1969).
United
F.2d
409
791
majority.
objection credited
While
one”
Wright,
generally,
See
C.
Federal
Practice
stressing
phrases
majority,
isolated
(1982).
Criminal 2d
856
§
Procedure:
words,
array
suggests a full
even individual
2, a more
Maj.Op. at 836 n.
bal-
objections,
23(b).
36. Fed.R.Crim.Proc.
reading of the
and briefs shows
anced
tenaciously pursued a sin-
that Essex’s counsel
court,
officers of the
Clark v. Unit-
30,
37. Jurors are
gle point.
supra.
See note
States,
ed
53 S.Ct.
L.Ed. 993
(1933),
subject
plain
those
doctrine cau
and are
to restraints like
Courts invoke
error
circumstances,
attorneys, including
tiously
exceptional
applied to
con-
United
that can be
and in
addition,
Adams,
tempt
under some
Cir.
of court.
Id.
States
1981);
Diez,
preventing
those
States v.
515 F.2d
circumstances
performing
den.,
charged
(5th Cir.1975),
duties can be
with ob-
96 S.Ct.
his
cert.
(1976),
justice.
to correct
struction of
in order
L.Ed.2d
stipulation,
parties
and continue trial without
after a
—continues
“unjustifiably”
appear,
original
appel-
fails to
jury panel.
member of the
late court must set
aside
verdict. Sec-
majority
asserts that
absence
ondly,
flies in the face of the case law.
which,
“justifiable,”38 an issue
must be
Judgеs have excused
un-
such
above,
government
shown
never had
justifiable
sleeping through
reasons as
opportunity
majority’s
to meet. The
trial,40
part of the
simply
disappearing
reasoning
consequence
leads
after
break in the proceedings.41
*21
cause,
juror’s
a
was for a
absence
“bad”
majority’s approach
The
would undercut
the
the rule
court
to excuse the
forbids
purpose
by stipulations
the
served
—allow-
juror.
be
Trial must
continued
the
ing parties to know
trial
can continue
juror,
pur-
all.
practical
or not at
For all
despite the absence of a member
the
of
poses,
stipulations
this means
are use-
original
jury panel.
ap-
A more sensible
less nullities.39
proach would
judges
par-
be to allow
and
majority’s
approach
The
just
cause
rely
stipulations
on
ties to
a
dismiss
First,
two
contains at least
critical flaws.
juror whenever
the needs of
promises
it
to transform a rule that was
be
by proceeding
would
served
a
under
designed
mistrials
a
to avoid
into
fertile
stipulation.42 Stipulations are
intended
source
treacherous
of mistrials.
If the
controversy,
avoid
reduce the neces-
unwitting
court —with
acquiescence
sary
the
labors of court and counsel.
Maj.Op.
at
discharge
where alternates
be
are to
necessary
asks
used
whether the
court finds it
majority
open
possibility
39. The
the
leaves
sense,
juror.
approach
a
excuse
This
makes
parties
just
require;
the
can waive the
cause
punish
parties simply
because it does not
the
raising
Maj.Op.
840 n. 11.
the
ment.
possibility
In
juror
wrongfully.
because a
has acted
just
requirement
cause
that the
could
judge
sponte
must
Nor
sua
the
establish
majority
daring
never
be waived
makes
juror’s
ordinary
cause
absence in the
imagining
leap
intellectual
a situation where
cases,
exceptional
judge
In some
case.
juror, failing
appear
a recalcitrant
for no
affirmatively
juror's
should
ensure that the
ab
cause,
good
could frustrate the
of all
desire
did
sence
not
occur for
reason that would
parties and the court to continue trial. This line
example,
judge
violate
For
Constitution.
reasoning
give
juror
to a
an
arguably
always
should
pen
establish in a death
right
inalienable
to create a mistrial.
alty
juror
case that a
did not excuse himself
just
requirement
Even if
could be
penalty
because he believed
death
waived, problems would still ensue. The
applied
not
particu
should
be
on
facts of a
present
suggests
category
case at least
Zant,
(11th
lar case. Green v.
Given “just excusing the ab- tion cause” before jority’s opinion presumption: a establishes judge juror.52 sent when the trial fails to establish sua appeal requirement to the ity’s logic, argued that that the courts be limited it can be on a facts of case. the should be set aside because might a news account con- have read seen majority absence of a 51. The observes that the trial, any proof cerning the even absent gives search bеnch evidence that no warrant Apparently, published. was news account ever ultimately attempted. Even if this is true it was allegation majority the mere "funda- nothing, not at- proves since the reason for procedures" might have been violat- mental might tempting been that the a search well have prejudice. ed suffices substitute why judge the and knew where was the was absent. there was a is not to concede that condi- This was a precedent only that if there condi- tion fundamentally different from the — 52. This case is precedent, there record evidence es- tion is no newly ver- possible under the enacted situation tablishing was that it not fulfilled. judge can under which the sion of Rule accept the of less than twelve without a verdict but, Here, dispute pro- thus do not the on defendant consent. I defendant’s well-settled— record, proposition preferred that courts spectively this made her own choice: she irrelevant — respond plainly apparent delay to errors on or a mis- can than twelve to a verdict of less rule, judge make when those errors effect substantial can record trial. Under the new point rights. The re- the new See Fed.R.Crim.Proc. 52. for the defendant. Under that choice rule, chooses, however, mains, judge though plain er- who even because it is carefully proposed al- exception judge all represents consider rule a limited should ror and, upon proceeding adversary system normally with less than relied in Amer- ternatives to trials, disregard challenged, justify choice support made. it does of the ican not logical majority’s legerdemain impressive array
The in an of “facts” that it finds pure conjuring error from all the lurking silence in the record. because the of the more remarkable silence The overreaching double-barrelled com- easily explained. can record be Trial pounds dangers majori- inherent judges the course of a trial must make approach. ty’s majority Because the has many rulings, of which are im- countless legal argu- strained conform both the plicit and need not stated on record. ments the factual to its record own ruling. judge The This was such conception case, neither facts nor apparently parties all assumed—as this parties’ arguments can serve as a apparently case assumed —that legal check: because the issues were never absence not at issue. raised, previously might facts which pointless would have been futile they apt have shown whether were never justify exercise for the to make and surfaced; unclear, because the record is ruling point on a one contested.
cannot be with certainty stated whether the legal arguments point. are on III. Conclusion Having performed these Herculean ef- dispute real in this case The is not about case, forts to majority restructure the ought proceed. how trial courts draws some apro- conclusions that —if not appellate dispute ought is about how courts pos nonetheless in them- inoffensive —are proceed. appellant raised one issue Judges selves. why jurors should know to the trial court. The trial correctly court reappear. fail to stipulations The terms of issue, disposed of that issue. That should be require honored. law does issue, pursued appeal. on unanimous verdicts. majority, court, like the trial has ruled that issue to be meritorious. My dispute is not principles. with these process. It is with the deciding issues Despite its resolution of the actual- issue really raised, relying were raised, on ly majority upon has rested really clear, facts that are not this another issue: whether lack of a record decision-making as to the cause for the abandons structured juror’s dis- requirement process missal violated the which our I simply courts rest. “just trials be unаnimous. cause” not, cannot, argue that this does pro- branch of argument essentially justice justice, mote basic long as as —so argument, raised from the bench oral urged, Cardozo is construed to include fair- elaborating throwaway on a footnote in ness accuser well as to the ac- brief; appellant’s “unanimity” branch cused. argument was nowhere be- debated reasons, the foregoing For respectfully I *25 fore the court retired to chambers with this dissent. case. The court thus raised to itself the issue it finds determinative. majority’s
Because of the choice to de-
cide the case on an issue that
argued or briefed this case has taken on a majority
somewhat bizarre cast. The has mightily
labored unsuccessfully de- —if —to by exegesis arguments rive appellant’s
counsel never similarly made. has con-
jured from a silent record—a record silent
presumably parties because saw no supplement
need to the record so that the
“just
argument
cause”
could be reached—
Notes
Verdict
Advisory
(a).
Committee
When
subd.
31(a) of the
of Crimi-
Rule
Federal Rules
has been excused on a
requires:
Procedure
“The verdict shall
nal
just
defendant has consent-
above, 12
unanimous.” As indicated
ed,
dangers
pro-
are minimized and the
began
jurors
deliberations and
permitted by
cedure
Rule
does not
by only
jurors.
returned
11
There is
31(a).
when,
here,
violate Rule
But
nothing
transcript
between the re-
finding by
there is no
it is
court that
p.m.
cess of the
of 12 at 6:05
on
“necessary
... for
cause” to excuse a
19,
395),
Friday,
(Tr.
November
deliberations,
juror during
defendant
return of
at 11:22
the verdict of 11
a.m.
right
denied the
to a
unanimous
ver-
(Tr. 397)—
Monday,
22,
November
protected by
31(a). Signif-
dict that is
Rule
any finding
less
justifiable
much
of a
rea-
Third,
icantly,
Second,
circuits—the
four
accepting
jurors.
of 11
son
the verdict
Sixth, and Ninth—have held that the intent
And,
above,
as noted
ad-
Government
31(a)
of the drafters of Rule
permit
not to
objected
mits
defense counsel
unanimity,
waiver of
even with the consent
permitting
pre-
continue its
defendant,
court’s
is evident from the
jurors
deliberations with
history
paratory
of the Rule. See United
(2d
“the
ground
Government should be re-
Pachay,
v.
711 F.2d
States
490-91
quired
Cir.1983)
to convince all
it had
(citing
Lopez,
United States v.
attempted
persuade
(9th Cir.1978);
twelve in this
...
581 F.2d
1341-42
(R. 19-5).
appellant’s objec-
Scalzitti,
case”
Whilе
States
F.2d
articulated,
(3d Cir.1978);
precisely
tions were not
510-12
Hibdon v. United
States,
(6th
it clear
Cir.1953);
substance
her
made
F.2d 834
8A
¶
she did not waive her
to a unan-
31.02[1],
Federal Practice
Moore’s
(2d
1982);
Wright,
imous verdict. The
went to the
waiver
31-3
ed.
C.
Federal
§
(2d
jurors,
requirement
number
not to the
Procedure
Practice and
at 3-5
unanimity.
1982)).
stipulated
She had
to the waiv-
The dissent completely ignores
ed.
er
since it had not
this feature of the Rule.
—but
“French,
house,
Hunter,
Leaving
party,
Fowler v.
leave.
ever be waived.
Cf.
neighborhood
one;
any-
Cir.1947),
denied,
bidding good-bye
without
cert.
Brewer,
slip away
(waiver
(1948)
unnoticed." E.
Notes
Notes Committee just responsible subd. as seeing counsel for supporting 13. With no claim the Govern- tion because it did not so act. The record does ment, record, support and with no in the required inquiry not reflect that the made, was ever speculation by judge might also, the dissent that the its silence reflects that the just dismissing juror,” have "had cause for required finding was never made. Nothing is bootless. in the Dissent at says say The dissent we "cannot what record indicates that the court ever dismissed judge here did.” Dissent at 857. That is incor- juror, much less excused him. So far as the rect. The record indicates that the court direct- concerned, just permitted record is continuing ed deliberations with jury of 11 to its continue deliberations without jurors, in a criminal case submitted to 12 with- making any the twelfth and without find- complying out with the terms of the ing. upon required ground which the court was its Describing "incomplete,” the record as Dissent case, action. To assume in a criminal when the is a misstatement. The record is com- silent, properly applied record is that the court plete something that nev- does not show —it specific finding required rule when a happened. support er It does not none, justified. record discloses cannot be compliance stipula- the court acted in with the