United States of America, Plaintiff-Appellee, v. Francisco Curbelo, a/k/a Murando, Defendant-Appellant.
Nos. 02-4194, 02-4247.
United States Court of Appeals, Fourth Circuit.
Argued: April 3, 2003. Decided: Sept. 11, 2003.
273
The district court granted summary judgment to U.S. Cellular on its claim that the Board‘s actions were arbitrary and unreasonable under Virginia law. The court reasoned that because the Board‘s decision was based on aesthetic considerations only, in violation of Board of Supervisors of James City County v. Rowe, 216 Va. 128, 216 S.E.2d 199 (1975), it acted unreasonably. Because we have determined that the Board‘s decision did not run afoul of Rowe, we reverse the judgment granted in favor of U.S. Cellular on its claim under Virginia law.
IV.
For the foregoing reasons, we reverse the judgment of the district court on the subsection (B)(iii) and Virginia law claims and order summary judgment in favor of the Board. We affirm the judgment of the district court in favor of the Board on the subsection (B)(i)(II) claim.
REVERSED IN PART AND AFFIRMED IN PART.
UNITED STATES of America, Plaintiff-Appellee,
v.
Francisco CURBELO, a/k/a Murando, Defendant-Appellant.
nor have we ever held, that public opinion mandated that the city council reject the application.
Before WILKINS, Chief Judge, and MOTZ and KING, Circuit Judges.
Vacated and remanded by published opinion. Judge KING wrote the majority opinion, in which Judge DIANA GRIBBON MOTZ joined. Chief Judge WILKINS wrote a dissenting opinion.
OPINION
KING, Circuit Judge:
On July 13, 2001, an eleven-person jury convicted Francisco Curbelo of multiple counts related to a drug distribution ring
I.
On July 13, 1999, a grand jury in the Western District of North Carolina returned its initial indictment against Curbelo, charging him with multiple drug and firearms violations. A superseding indictment was returned on February 6, 2001, and it serves as the basis for his convictions. The superseding indictment alleges that Curbelo and others engaged in a drug conspiracy between January 1996 and June 1999. Count One of the superseding indictment charged Curbelo with a controlled substances conspiracy, in violation of
On July 9, 2001, a jury of twelve was impaneled for Curbelo‘s trial.1 The jurors were sworn shortly after 4 o‘clock that afternoon, and counsel for both sides then presented their opening statements. The Government then called its first and principal witness, an alleged co-conspirator, Thurnell Williams. At approximately 5:00 p.m., the trial was adjourned for the day, resuming the next morning around 9:30. At about 5 o‘clock on the afternoon of July 10—after Williams had completed his direct testimony, but not his cross-examination—court was adjourned early because of an air conditioning problem in the courthouse.
On the morning of July 11, 2001, before the start of the third day of what would be a five-day trial, the court informed the parties that “[o]ne of our jurors has called in sick and will have to be excused.” In response, the prosecution suggested that the parties stipulate to proceeding with only eleven jurors. Although Curbelo declined to so stipulate, the court nevertheless announced:
It appears that the Court finds it necessary to excuse one juror for just case [sic] after the trial commences. [The juror‘s] father having called in and reported she‘s suffering from irritable bowel syndrome and is totally unable to function. She has been instructed to report to court with a doctor‘s certificate after she recovers from whatever this is. But I believe the Court has discretion to proceed with 11 absent the stipulation, and we will proceed.
Thus, the court ruled, over Curbelo‘s objection, that his trial should proceed with eleven jurors, even though the trial was still in its infant stages—with the first witness still on the stand.
That witness, Thurnell Williams, provided a good deal of the evidence against Curbelo. Williams, who supported himself by selling crack, testified that on several occasions, from late 1996 through June
Williams acknowledged that during the 1990s he was convicted and imprisoned in Florida for assault, trafficking in cocaine and possession of a firearm during the commission of a felony, and that in July 1999 (after he had begun work for law enforcement) he was convicted of theft and possession of a firearm. On cross-examination, defense counsel asked Williams about (1) his failure to mention Curbelo‘s possession of guns in his initial reports to police; (2) a confidential informant‘s statement that contradicted a portion of Williams‘s testimony; and (3) an allegation that Williams had purchased a cellular phone from Curbelo‘s store and that Williams‘s unpaid debt was actually owed in connection with that purchase, rather than for illegal drugs.
Regarding his interactions with Curbelo, Williams admitted that on multiple occasions Curbelo explicitly refused to provide him with any cocaine, stating that he only had access to marijuana. Williams also acknowledged that Jose actually “handed” him “the drugs” every time he purchased them while working with law enforcement officers. On the first such occasion, June 15, 1999, Jose told him that Curbelo would not be there and to “talk to him [Jose].” The next day when Williams called, Curbelo again was away from the store, and Williams asked Jose for cocaine; in paying for the cocaine, Williams attempted to hand the money to Curbelo (as instructed by the agents), but Jose took the money and counted it himself. Williams also agreed that the “other times that [he had] s[aid][he] saw Mr. Curbelo cooking cocaine or the other times that [he] [said] [he] dealt with Mr. Curbelo, none of that is actually documented on tape or a transcript or audiotape or anything like that.” And, “[t]here is no physical evidence of any of those transactions at all.”
Six other alleged drug dealers or co-conspirators testified more briefly; most were imprisoned and testified under plea agreements. On direct examination, they corroborated various aspects of Williams‘s testimony; on cross-examination they contradicted themselves and each other on some issues. For example, one of the other witnesses testified in detail that, with Williams‘s knowledge and encouragement, he had robbed Curbelo‘s store and kidnaped Curbelo‘s girlfriend, Wendy. However, when Williams testified, he had denied knowing anything about the robbery or kidnaping.
In addition, two Government agents tes-
Curbelo took the stand in his own defense and testified through an interpreter. According to Curbelo, in January 1999, Williams started coming to Curbelo‘s recently opened store to look at some of the phones. Williams was “very insistent about drugs,” “always telling [Curbelo] that he knew people in New York [who] had drug sources.” Curbelo, however, denied ever selling drugs to Williams. Curbelo‘s lawyer asked Curbelo about one of the tapes on which it appeared that Curbelo was saying “kilo.” Curbelo explained that the police did not respond after the robbery of his store, that he suspected Williams, and that he used the word “kilo” in an effort to set a trap for Williams to come back to the store and try to rob it again. He said that he later found out that Jose did give Williams drugs, but that he and Jose had only talked about “a pretend simulated drug business to try to trap” Williams and obtain evidence on him. Curbelo also testified that it was “impossible” that Williams saw him cooking crack cocaine in a microwave oven in the back of the store, because “Wendy was scared to death” of Williams and he and Wendy “would never have him go past the counter.”
Curbelo acknowledged that he knew many of the witnesses who testified but denied that he dealt drugs with any of them. He testified that one of his alleged co-conspirators told him in the holding cell that his testimony against Curbelo “was nothing personal against [Curbelo], but he just wanted to get free,” and that “they were going to give him his freedom for coming here and lying in his testimony.” Curbelo also maintained that the tapes played to the jury were not accurate and had been edited and “tampered with.”
The eleven-person jury returned its verdict on July 13, 2001, convicting Curbelo of the conspiracy count and of the six counts of possession with intent to distribute cocaine base. He was acquitted of all five firearms charges. On March 20, 2002, the court conducted a sentencing hearing. At the hearing, the district judge found that Curbelo had lied under oath at trial, but the judge also stated that he was “highly skeptical of some of the truthfulness of Mr. Williams, in particular in his inability to admit the truth that he had anything to do with the robbery.” The court sentenced Curbelo to seven concurrent sentences of 360 months, plus seven concurrent terms of five-years of supervised release. Cur-
II.
Curbelo contends that he is entitled to a new trial because the district court, in the midst of his trial and without his consent, dismissed one of his jurors and permitted eleven jurors to hear the evidence and decide his fate. In response, the Government concedes that the court did err in proceeding with an eleven-person jury, but it contends that the error was harmless and that Curbelo‘s convictions and sentence should be affirmed.
The Supreme Court has established various standards for determining when an error requires that a criminal defendant‘s conviction be vacated. For most constitutional errors, the Government must demonstrate that the error was harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). And for most nonconstitutional errors, the Government must demonstrate that the error did not have a “substantial and injurious effect or influence in determining the jury‘s verdict.” Kotteakos v. United States, 328 U.S. 750, 776, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946). Finally, some errors, involving “structural defects in the constitution of the trial mechanism... defy analysis by ‘harmless-error’ standards,” because they are “necessarily unquantifiable and indeterminate.” Sullivan v. Louisiana, 508 U.S. 275, 281-82, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993) (quoting Arizona v. Fulminante, 499 U.S. 279, 309, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991)). Such errors always require invalidation of a judgment. Id. at 279, 113 S.Ct. 2078. Determining the character of the error at issue in this case presents some difficulties.
Clearly this error violated
Juries shall be made of 12 but at any time before verdict the parties may stipulate in writing with the approval of the court that the jury shall consist of any number less than 12 or that a valid verdict may be returned by a jury of less than 12 should the court find it necessary to excuse one or more jurors for any just cause after trial commences. Even absent such stipulation, 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.
In addition, the jury right embodied in
Moreover, the right to trial by jury has a long and venerable history. See generally Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968). Indeed, “by the time our Constitution was written, jury trial in criminal cases had been in existence in England for several centuries and carried impressive credentials traced by many to [the] Magna Carta.” Id. at 151, 88 S.Ct. 1444. Thus, the right to a jury trial was one of the most important protections placed in the Constitution. See id. at 149, 88 S.Ct. 1444 (“[T]rial by jury in criminal cases is fundamental to the American scheme of justice.“); Patton v. United States, 281 U.S. 276, 312, 50 S.Ct. 253, 74 L.Ed. 854 (1930) (“[T]he right of the accused to a trial by a constitutional jury [must] be jealously preserved.“). Although the Supreme Court initially interpreted the Constitution to preserve the twelve-person jury safeguard as it was known at common law in all courts in the United States, see Thompson v. Utah, 170 U.S. 343, 350-51, 18 S.Ct. 620, 42 L.Ed. 1061 (1898); see also United States v. Va. Erection Corp., 335 F.2d 868, 871 (4th Cir.1964) (“Twelve is the magic number.“), more recently it has held that the Sixth Amendment, as applied to the states through the Fourteenth, does not entitle a defendant tried in state court to a twelve-person jury. See Williams v. Florida, 399 U.S. 78, 89-90, 90 S.Ct. 1893, 26 L.Ed.2d 446 (1970). In view of this holding and the fact that our court and other courts have upheld the constitutionality of
Significantly, however, neither the Supreme Court nor any federal appellate court has resolved whether the Due Process Clause permits the arbitrary deprivation of a defendant‘s right, guaranteed by
Fortunately, we need not resolve the knotty question of whether the error here is of constitutional dimension. This is so because, even if it is not, we must, for two independent reasons, vacate Curbelo‘s sentence. We discuss each in turn.
III.
First, whether violative of the Constitution or not, the error here is structural, and such errors “invalidate the conviction” without any showing of prejudice. Sullivan, 508 U.S. at 279, 113 S.Ct. 2078.6
Like other structural errors, the error here has repercussions that are “necessarily unquantifiable and indeterminate.” Sullivan, 508 U.S. at 282, 113 S.Ct. 2078. This is particularly true given the rules of evidence and the restrictions that they quite legitimately place on any inquiry into jury deliberations. See generally Tanner v. United States, 483 U.S. 107, 107 S.Ct. 2739, 97 L.Ed.2d 90 (1987). We simply cannot know what affect a twelfth juror might have had on jury deliberations. Attempting to determine this would involve pure speculation.
To be sure, we could review the trial transcript, weigh the relative credibility of witnesses ourselves, and make an independent assessment of Curbelo‘s guilt. However, the Supreme Court has repeatedly instructed that such determinations are exclusively reserved in our system of justice for the jury, and are not to be undertaken by an appellate court. See Sullivan, 508 U.S. at 281, 113 S.Ct. 2078 (“[Where a] reviewing court can only engage in pure speculation—its view of what a reasonable jury would have done..., ‘the wrong enti-
The Court has recognized that when an error “involves a violation of a statutory provision that ‘embodies a strong policy concerning the proper administration of judicial business,‘” courts may vacate the judgment without assessing prejudice. Nguyen, 123 S.Ct. at 2137-38 (quoting Glidden Co. v. Zdanok, 370 U.S. 530, 536, 82 S.Ct. 1459, 8 L.Ed.2d 671 (1962) (plurality decision)). Thus, while there is a “strong presumption that” when counseled defendants have had their case resolved by an impartial adjudicator, “other errors that may have occurred are subject to harmless-error analysis,” Rose, 478 U.S. at 579, 106 S.Ct. 3101, the adjudicators themselves must be properly authorized and constituted. When they are not, even if impartiality is not at issue, the judgment must be vacated. See id. (observing that harmless error review does not apply where “the wrong entity judged the defendant guilty“); see also Nguyen, 123 S.Ct. at 2138; Gomez v. United States, 490 U.S. 858, 876, 109 S.Ct. 2237, 104 L.Ed.2d 923 (1989); United States v. American-Foreign S.S. Corp., 363 U.S. 685, 691, 80 S.Ct. 1336, 4 L.Ed.2d 1491 (1960).
In Nguyen, for example, the Court vacated a decision by the Ninth Circuit that had been rendered by a panel consisting of two Article III judges and the Chief Judge of an Article IV territorial court. Nguyen, 123 S.Ct. at 2132-34. The Court held that Congress had not authorized Article IV judges to serve on the courts of appeals, and that the Chief Judge of the District for Northern Mariana Islands should not have been permitted to serve on the Ninth Circuit panel. Id. at 2135. Though urged by the Government to assess the prejudicial impact of the error, the Court explicitly declined to do so, noting that when an “error... involves a violation of a statutory provision that ‘embodies a strong policy concerning the proper administration of judicial business,‘” id. at 2137-38 (quoting Glidden, 370 U.S. at 536, 82 S.Ct. 1459), courts need not “assess trial errors for their prejudicial effect.” Id. at 2137.
In Gomez, the Court also declined to apply a harmless-error analysis to a violation of congressional policy regarding the proper adjudicator in federal court. 490 U.S. at 876, 109 S.Ct. 2237. There, the district court had, without the defendant‘s consent, allowed a magistrate judge to preside over jury selection in a felony criminal trial. Id. at 860-61, 109 S.Ct. 2237. The Court decided that the Federal Magistrates Act did not authorize such a delegation. Importantly for our purposes here, the “defendants made no special claim of prejudice. They contended... that the Magistrate had no power to conduct the voir dire examination and jury selection.” Id. at 861, 109 S.Ct. 2237. Although the Government urged the Court to apply harmless error review, the Court refused, observing that “[a]mong those basic fair trial rights that ‘can never be treated as harmless’ is... a defendant‘s right to have all critical stages of a criminal trial conducted by a person with jurisdiction to preside.” Id. at 876, 109 S.Ct. 2237 (quoting Chapman, 386 U.S. at 23, 87 S.Ct. 824).
Similarly, in American-Foreign, the Court refused to review for prejudice a decision rendered by an improperly constituted en banc court. 363 U.S. at 691, 80 S.Ct. 1336. In that case, a retired circuit judge had participated in an en banc decision of a circuit court. The Supreme Court held that the relevant federal statute did not authorize retired judges to participate in such a proceeding. Id. at 686, 691, 80 S.Ct. 1336. Thus, the Court held that “under existing legislation a retired circuit judge is without power to participate in an en banc Court of Appeals determination, and accordingly that the judgment must be set aside.” Id. at 691, 80 S.Ct. 1336. Despite the Government‘s argument that the error was harmless, see Brief for Respondents in American-Foreign at 37-47, the Court declined to consider “the merits of the underlying litigation” in determining whether the judgment should be vacated. American-Foreign, 363 U.S. at 691, 80 S.Ct. 1336.
Just as the judgments rendered in those cases required vacatur without regard to prejudice because the adjudicators lacked congressional authorization, the judgment by the eleven-person jury in this case must be set aside.
Not surprisingly, all of our sister circuits, in considering violations of
In doing so, the Essex court specifically held that the harmless error analysis does not apply to violations of
In cases involving secret jury deliberations it is virtually impossible for a defendant to demonstrate actual prejudice. Courts therefore have determined that the potential for serious harm and the interest of the defendant—and the public—in fair, unbiased and secret deliberations are so great that no evidentiary showing of actual prejudice, or of defense counsel‘s objection to the internal functioning of the jury of which he could not possibly be informed, is required.
Id. The D.C. Circuit reaffirmed this holding in United States v. Patterson, 26 F.3d 1127 (D.C.Cir.1994). There, as in Essex, the trial court had excused a juror without making the requisite finding “that it is ‘necessary’ to excuse the juror for ‘just cause.‘” Id. at 1129. Relying on Essex, the court held that such an error is per se reversible, without regard to whether the error prejudiced the defendant. Id.
Similarly, in United States v. Taylor, 498 F.2d 390 (6th Cir.1974) (per curiam), the Sixth Circuit rejected the proposition that harmless error review applies to a violation of
By the same token, the Seventh Circuit in United States v. Araujo, 62 F.3d 930 (7th Cir.1995), recently decided that a violation of
Finally, the Ninth Circuit has also decided that a violation of
In light of the fundamental importance of the jury in our criminal justice system, Curbelo‘s right to due process, and the express provision in the Federal Rules of Criminal Procedure governing the dismissal of a juror, we must follow our sister circuits and conclude that the court‘s decision to excuse the twelfth juror prior to deliberations and absent the defendant‘s consent falls into the special category of errors that “defy analysis by harmless-error standards” and require automatic reversal because they are “necessarily unquantifiable and indeterminate.” Sullivan, 508 U.S. at 281-82, 113 S.Ct. 2078 (internal quotation marks and citation omitted); see United States v. Neal, 101 F.3d 993, 999 (4th Cir.1996) (“Errors that are not susceptible to harmless error review... necessarily affect substantial rights.” (internal quotation marks and citation omitted)).
The
Even if we were to conclude that the district court‘s violation of
If the defendant fails to raise an objection to an error at trial, we review the error under the plain error standard of
In its landmark decision in Kotteakos, the Supreme Court explained that when reviewing a nonconstitutional error under
[t]he inquiry cannot be merely whether there was enough [evidence] to support the result, apart from the phase affected by the error. It is rather, even so, whether the error itself had substantial influence. If so, or if one is left in grave doubt, the conviction cannot stand.
Id. The Court later explained that “grave doubt” meant “that, in the judge‘s mind, the matter is so evenly balanced that he feels himself in virtual equipoise as to the harmlessness of the error.” O‘Neal v. McAninch, 513 U.S. 432, 435, 115 S.Ct. 992, 130 L.Ed.2d 947 (1995).
The Government maintains that the conceded
court failed to establish sufficient ‘just cause’ for excusing a juror,” while in this case Curbelo does not assert a failure to establish “just cause.” Post at 293. Even if just cause is established, however,
There is no reason to believe that the verdict of a twelve-member jury would have been any different than the verdict of the eleven-member jury. Evidence of Defendant‘s involvement in the drug conspiracy and evidence of Defendant‘s participation in a series of drug deals was quite simply overwhelming. Because Defendant‘s substantial rights were not impaired, the verdict should be affirmed.
Brief of Appellee at 7. The Government does not in any way detail the assertedly “simply overwhelming” evidence.
This is, perhaps, for good reason. Although our careful review of the record indicates that the Government presented substantial evidence against Curbelo, the Government‘s case was not “simply overwhelming.” Indeed, we cannot say with any assurance, let alone “fair assurance” that the absence of a twelfth juror did “not substantially sway[ ]” the judgment. Kotteakos, 328 U.S. at 765, 66 S.Ct. 1239. Accordingly, we cannot conclude that the Government has met its burden of demonstrating that the jury‘s decision was unaffected by the absence of the twelfth juror.
As an initial matter, we note that the Government charged Curbelo with twelve crimes and that the eleven-person jury acquitted him of five of them. The same witnesses testified as to all of the counts, i.e., both those on which the jury acquitted, as well as those on which it convicted. This certainly indicates that a reasonable twelfth juror could have found the Government‘s evidence lacking (as the remaining eleven did for some counts).
Indeed, the district court itself found Williams, the principal Government witness, less than truthful; surely, a reasonable juror could have as well. A juror could have concluded that Williams lied not only about his role in Wendy‘s kidnaping and the robbery but also about his drug deals with Curbelo. Certainly when Williams became the target of a federal investigation, he had every reason to lie about his dealings with Curbelo.
Furthermore, Williams himself admitted that there was “no physical evidence of any of th[e] transactions” in which he purportedly engaged with Curbelo. Law enforcement officers also acknowledged this and the limitations of the tapes that purportedly recorded the transactions. Except for the agents, who could only testify about what Williams and others told them and what the arguably-inconclusive tapes revealed, all of the witnesses against Curbelo were co-conspirators or drug dealers. Many of them had cooperation agreements with the Government, and hence, a motive to lie.
Perhaps most significantly, a juror could conclude that Jose, rather than Curbelo, had sold drugs to Williams. After all, Curbelo rarely spoke directly to Williams. Indeed, for many of the transactions, Williams spoke only to Jose, gave money only to Jose, and took drugs only from Jose. Thus, the jury was provided with a possible answer to the critical question that arises in almost every criminal case: If the defendant did not commit the crime, who did? It is undisputed that Curbelo had little grasp of English. This gives some credence to Curbelo‘s testimony that, because of the language barrier, he had no idea that Williams and Jose were dealing drugs.
Finally, Curbelo took the stand in his own defense and maintained his innocence with detailed explanations of his non-drug-related relationships with the various witnesses. In light of the questionable credibility of many Government witnesses, the concessions of the law enforcement officers
For all of these reasons, even if the
V.
For the foregoing reasons, we vacate Curbelo‘s convictions and remand for a new trial.
VACATED AND REMANDED
WILKINS, Chief Judge, dissenting:
The majority concludes that the decision by the district court to proceed with 11 jurors without Curbelo‘s consent is a structural error that mandates reversal without any inquiry into whether the error actually prejudiced Curbelo. Alternatively, the majority concludes that the error was not harmless because the evidence was sufficiently close that the absence of a twelfth juror may have affected the verdict. Because I disagree with both of these conclusions, I respectfully dissent.
I.
Most errors that are preserved at trial—including most constitutional errors—must be reviewed for harmlessness. See
The majority‘s determination that the error here is structural—and thus not subject to harmless error review—is incorrect for two reasons. First, this error cannot be structural because it is not of constitutional magnitude. Second, even if the er-
A.
The Supreme Court and this court have repeatedly made clear that structural errors necessarily must affect a defendant‘s constitutional rights. See, e.g., Neder, 527 U.S. at 7, 119 S.Ct. 1827 (“Although [the harmless error rule] by its terms applies to all errors where a proper objection is made at trial, we have recognized a limited class of fundamental constitutional errors that defy analysis by harmless error standards.” (second emphasis added) (internal quotation marks omitted)); Rose v. Clark, 478 U.S. 570, 577, 106 S.Ct. 3101, 92 L.Ed.2d 460 (1986) (“[T]he Court in Chapman recognized that some constitutional errors require reversal without regard to the evidence in the particular case.” (emphasis added)); Arnold v. Evatt, 113 F.3d 1352, 1360 (4th Cir.1997) (“In examining the effect of constitutional errors on criminal convictions, the Supreme Court has established a distinction between structural errors, which require automatic reversal, and all other errors, which are subject to harmless-error analysis.” (emphasis added)). As other circuits have recognized, “[t]here is no separate category of structural error apart from constitutional error. The only question is whether any constitutional errors... rise to the level of structural error.” United States v. Sanchez, 269 F.3d 1250, 1272 n. 41 (11th Cir. 2001) (en banc), cert. denied, 535 U.S. 942, 122 S.Ct. 1327, 152 L.Ed.2d 234 (2002); see also Ross v. United States, 289 F.3d 677, 681 (11th Cir.2002) (per curiam) (“Structural error, to which harmless error analysis does not apply, occurs only with extreme deprivations of constitutional rights....” (emphasis added) (internal quotation marks omitted)), cert. denied, 537 U.S. 1113, 123 S.Ct. 944, 154 L.Ed.2d 787 (2003); Bentley v. Scully, 41 F.3d 818, 823 n. 1 (2d Cir.1994) (“A ‘structural error’ requires automatic reversal and is not subject to harmless error analysis because it involves a deprivation of a [basic] constitutional protection....” (emphasis added)); United States v. Pavelko, 992 F.2d 32, 35 (3d Cir.1993) (“‘Structural defects’ deprive the criminal trial of constitutional protections....” (emphasis added)).
Yet the error that the majority classifies as structural—the decision by the district court to proceed with 11 jurors absent Curbelo‘s consent—does not implicate Curbelo‘s constitutional rights. In Williams v. Florida, 399 U.S. 78, 90, 90 S.Ct. 1893, 26 L.Ed.2d 446 (1970), the Supreme Court held that criminal defendants have no Sixth Amendment right to a 12-person jury. See Williams, 399 U.S. at 98-103, 90 S.Ct. 1893. The majority suggests that the holding of Williams may be limited to state court prosecutions and that there may be a due process right to a 12-member jury. However, in another case involving
The Supreme Court decisions cited by the majority do not support the proposition that “structural errors need not be of constitutional dimension.” Ante, at 280 n. 6. Most of those cases involve jurisdictional errors, not structural ones. See, e.g., Nguyen, 123 S.Ct. at 2130, 2132 (vacating judgments of court of appeals because panel consisting of two Article III judges and one Article IV judge did not “ha[ve] the authority to decide petitioners’ appeals“). In contrast to structural errors, which involve inherent prejudice to a particular defendant, see Neder, 527 U.S. at 7-9, 119 S.Ct. 1827, the cases cited by the majority deal with errors primarily affecting the structure and function of the judicial system. See Nguyen, 123 S.Ct. at 2137 (“[O]ur enforcement of [the designation statute‘s] outer bounds is not driven so much by concern for the validity of petitioners’ convictions at trial but for the validity of the composition of the Court of Appeals.“); id. (“Even if the parties had expressly stipulated to the participation of a non-Article III judge in the consideration of their appeals... such a stipulation would not have cured the plain defect in the composition of the panel.” (emphasis omitted)); United States v. American-Foreign S.S. Corp., 363 U.S. 685, 691, 80 S.Ct. 1336, 4 L.Ed.2d 1491 (1960) (vacating en banc court of appeals decision because retired circuit judge was “without power to participate” in that decision, and “inti-mat[ing] no view as to the merits of the underlying litigation“).1 In each of these cases, the Supreme Court invalidated judicial proceedings involving judges who lacked the power to participate in those proceedings. These decisions are inapplicable to this case involving a violation of a procedural rule during trial by a district judge who unquestionably had jurisdiction
The majority claims that the error here, like the error in Nguyen, “involves a violation of a statutory provision that ‘embodies a strong policy concerning the proper administration of judicial business‘” and therefore should not be reviewed for harmlessness. Nguyen, 123 S.Ct. at 2137-38 (quoting Glidden, 370 U.S. at 536, 82 S.Ct. 1459). But again, both Nguyen and Glidden involved jurisdictional issues concerning whether particular judges were empowered to preside over certain proceedings. Thus, it is clear that the language regarding “administration of judicial business,” as used by the Supreme Court, applies only to errors that primarily affect the court system. See American-Foreign, 363 U.S. at 687, 80 S.Ct. 1336 (describing issue regarding power of retired circuit judge to participate in en banc decision as “a question of importance to the Court of Appeals in the administration of their judicial business“).
B.
Even if the error here were of constitutional magnitude, it would not amount to structural error. The Supreme Court has recognized that “most constitutional errors can be harmless.” Neder, 527 U.S. at 8, 119 S.Ct. 1827 (internal quotation marks omitted). “If the defendant had counsel and was tried by an impartial adjudicator, there is a strong presumption that any other constitutional errors that may have occurred are subject to harmless-error analysis.” Id. (internal quotation marks and alterations omitted). As explained above, the Supreme Court has “found an error to be structural, and thus subject to automatic reversal, only in a very limited class of cases,” such as those involving the complete deprivation of counsel, a biased trial judge, racial discrimination in the selection of a grand jury, or a defective reasonable doubt instruction. Id. (internal quotation marks omitted). These errors require reversal without any specific showing of prejudice to the defendant because they “necessarily render a criminal trial fundamentally unfair or an unreliable vehicle for determining guilt or innocence.” Id. at 9, 119 S.Ct. 1827.
But unlike the errors listed above—which, by their very nature, create a powerful presumption that the defendant was prejudiced—an error by a district court in proceeding with 11 jurors absent a defendant‘s consent does not automatically render the trial unreliable or unfair.
It is undisputed that the decision by the district court to proceed with 11 jurors violated the terms of
The majority does not address the reliability and fairness concerns that the Supreme Court has made clear are at the heart of structural error analysis. Instead, my colleagues emphasize that the error here affected the entire trial and therefore its prejudicial effect cannot be quantified. But this approach overlooks the critical point that the error of proceeding with trial before 11 jurors without the defendant‘s consent “does not necessarily render a criminal trial fundamentally unfair or an unreliable vehicle for determining guilt or innocence.” Neder, 527 U.S. at 9, 119 S.Ct. 1827. Indeed, under the majority‘s analysis, any error that arguably had some connection to the trial as a whole—regardless of whether it affected the reliability or fairness of the trial—might be deemed structural. Cf. United States v. Lane, 474 U.S. 438, 446-49, 106 S.Ct. 725, 88 L.Ed.2d 814 (1986) (holding that misjoinder of defendants for trial, in violation of
And, while the majority claims that the error here is not sufficiently quantifiable to be analyzed for harmlessness, other courts have reviewed similar errors to determine their prejudicial impact on the defendant. See United States v. Ahmad, 974 F.2d 1163, 1165-66 (9th Cir.1992) (holding that any error in conducting
Also, the cases that the majority cites for the proposition that violations of
In sum, because the majority‘s approach to structural error analysis vitiates the strong presumption in favor of harmless error review, I must dissent from the holding that the error here is structural. See Neder, 527 U.S. at 18, 119 S.Ct. 1827 (“Reversal for error, regardless of its effect on the judgment, encourages litigants to abuse the judicial process and bestirs the public to ridicule it.” (internal quotation marks omitted)); see also Sherman v. Smith, 89 F.3d 1134, 1138 (4th Cir.1996) (en banc) (emphasizing that “judges should be wary of prescribing new errors requiring automatic reversal” and that “before a court adds a new error to the list of structural errors (and thereby requires the reversal of every criminal conviction in which the error occurs), the court must be certain that the error‘s presence would render every such trial unfair“).
II.
Having concluded that the error by the district court in proceeding with 11 jurors was not structural, I would further hold that this error was harmless. The narcotics trafficking evidence against Curbelo was “quite simply overwhelming.” Br. of Appellee at 7. Though the majority highlights what it perceives as weaknesses in the Government‘s evidence, the overall case against Curbelo on the narcotics charges was extremely strong. This evidence included a number of tape-recorded conversations among Curbelo and his associates discussing narcotics transactions; controlled purchases of narcotics from Curbelo‘s place of business; testimony from several individuals describing Curbelo‘s involvement in drug trafficking; warranted searches of Curbelo‘s real property and vehicle that yielded narcotics, paraphernalia, and incriminating documents; and testimony from an ATF agent describing an interview during which Curbelo—with his attorney present—confessed in detail to drug trafficking.
In response to this compelling evidence, Curbelo “den[ied] that [he] was ever involved in drug transactions,” J.A. 403; asserted that all the Government‘s witnesses were “lying,” id. at 381; and claimed that the surveillance tapes containing his voice had been “manipulated,” “edited,” and “tampered with,” id. at 408, 410. Curbelo also testified that his conversations about
In short, the Government presented a mountain of proof that Curbelo was guilty of narcotics trafficking. And, Curbelo‘s complete denial of guilt—relying on far-fetched explanations for the Government‘s evidence—does not create a reasonable doubt regarding whether the twelfth juror‘s absence affected the verdict. See, e.g., United States v. Blevins, 960 F.2d 1252, 1263-64 (4th Cir.1992) (holding that despite defendants’ testimony asserting their innocence, admission of improper evidence was harmless error in light of overwhelming evidence of defendants’ guilt). Also, while the record is not entirely clear, it appears that the jury reached its verdict in a matter of hours. Under these circumstances, I can say with more than “fair assurance... that the judgment was not substantially swayed by the error” of proceeding with 11 jurors. Kotteakos v. United States, 328 U.S. 750, 765, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946).4
III.
Despite the error by the district court in proceeding with 11 jurors, Curbelo received what the Constitution entitles him to: “a fair trial, not a perfect one.” Rose, 478 U.S. at 579, 106 S.Ct. 3101 (internal quotation marks omitted). “[T]he commonsense judgment of a group of laymen... large enough to promote group deliberation, free from outside attempts at intimidation, and to provide a fair possibility for obtaining a representative cross-section of the community” was interposed between [Curbelo] and his government accusers.” Fisher, 912 F.2d at 733 (quoting Williams, 399 U.S. at 100, 90 S.Ct. 1893) (first and second alterations in original). And, Curbelo was convicted based on overwhelming evidence, with no indication that the absence of a twelfth juror had any effect on the verdict. I therefore dissent from the majority‘s decision to overturn the jury‘s verdict based on a nonconstitutional error that did not prejudice Curbelo. Because I believe that the other points raised by Curbelo are also meritless, I would affirm his convictions and sentences.