*2 FEINBERG, and FRIENDLY Before LASKER, District and Judges, Circuit Judge.* LASKER, Judge. District Jacqueline Dozier appeals from convic- on a tion after trial one-count indictment aiding abetting possession distribute, cocaine with intent 841(a)(1), in the § U.S.C. District Court for the Eastern District of York, Judd, New Orrin G. J. Dozier was sentenced under the Youth Correction Act, 5010(e) to a 90-day peri- U.S.C.'§ study od of and observation. Although challenge does the suffi- her, ciency against of the evidence she contends that trial erred in portions of his conviction must be reversed be- cause verdict was rendered less competent than twelve jurors, in viola- 23(b) of Rule tion Federal Rules of Crim- inal Procedure.
* York, sitting by Of des- New District of Southern District Court for the ignation. scious knowledge. avoidance of He A friend uncomplicated. stat- are facts ed: Dantzler,1 Mary Lou ar appellant’s, knowingly, “I refer to the word knowl- sell cocaine to ranged to two New York edge proved by can be a defendant’s policemen. undercover City According conduct and all the facts and cir- the officers drove to Dantzler’s plan, cumstances surrounding the case. No night December home person intentionally can avoid knowl- *3 and Dozier met them on the Dantzler by edge closing eyes his to facts which Dantzler told police one of the street. prompt him investigate; to should and package she had the that but men that so, knowledge can be established place would “deal” take the elsewhere. circumstantial just direct or evidence get cocaine, Dantzler went to the While any case, other facts in the you as and at appellant, request, Dantzler’s entered the peculiarity you can consider if con- car and officers’ directed the them to a such going as of a sider to theater theater. When they movie reached the couple of strange with a men without theater, the three went inside and wait who you the one introduced him to at approximately fifteen ed minutes for night, 10:00 o’clock at in the middle of to arrive. While they Dantzler were second the show and see whether that waiting, assured her compan implies is a circumstance that knowl- that Dantzler “straight did ions busi edge that there was a cocaine transac- arrived, When Dantzler ness.” she and place to take in tion an area where the of officers one entered the men’s Dozier, Miss said cocaine Sr. was all while Dozier and restroom the other offi neighborhood, over the or whether it guard stood cer outside the door. Short just an girl was adventurous who afterward, ly Dantzler and Dozier were thought out, here a go was chance to According appellant’s arrested. to ver had an older she friend and she would sion, her, Dantzler had asked without an interesting you have time. If find explanation, further whether she would beyond all the evidence from a reason- the men to the escort movie theater. doubt either that the able defendant denied overhearing any Dozier conversa helping knew that she was in a cocaine house, tion outside Dantzler’s and testi transaction, or that she had a con- that she fied did not ask Dantzler where purpose to avoid finding scious out the going or why, was she the time identity the of substance so as to close pick went to up Dantzler the cocaine. facts, eyes you her could find maintained that She wait for Dantz evidence to find her guilty sufficient ler at theater did not arouse her beyond a reasonable doubt. But it’s not want that she did and suspicions you up to whether there is a reasona- for the rendezvous in the reason know ble doubt.” men’s restroom. nothing objectionable We or find charge in the nor in the
erroneous
in the
Appellant
supplemental
first
claims
error
on
instructions
court’s
charge
question
subject.2
appeals
on the
of con-
In one
of two
decided
and
I don’t
crimes,
ties
for different
so
think
indicted with appellant
was
1. Dantzler
aiding
abetting
something
in
less
guilty
to trial.
and
than
immediately
prior
pleaded
justify
drugs
a conviction
here,
could
but
asking:
jury sent a note
on the
Later
category.
in
and heroin are
the same
cocaine
thinking
theater
drugs
to the
went
defendant
wasn’t
If the
believed it was
sure
If she
illegal
guilt
but had no
transaction
was an
her
kind,
there
that would affect
of
what
a
this make
differ-
aiding
abetting
cocaine, does
No
it
and
.
.
.
can
person
idea
knowledge
closing
intentionally
ence?
oppose
Judge
to the
Judd reiterated
In
to facts that should
her to
response,
her eyes
prompt
knowledge
investigate.
his initial
of
So in order
to convict you have
portions
knowledge
and added:
of
avoidance
that she knew that some kind
find either
conscious
a differ-
does make
drug
say
would
.1
was involved
...
or
“.
.
.it
narcotic
of
are different
knowledge
penal-
extent
there
ence
of sufficient
facts
had
she
instruc-
point
similar
approved
Dozier’s final
on a note
which
based
year
last
tions,
given
stated:
the trial
after the
this court
“
deliberating
day.
had been
for a
may, un
a fact
ignorance’ of
‘studied
note stated:
Supreme
Court
decisions
der
court, constitute an aware
this
juror
way
“One
feels there is no
high
probability of the
a
so
any person
ness of
to make
regard-
a decision
justify the
of the fact as to
ing any person’s guilt.
existence
This decision is
knowledge
it.” United
juror
inference
reserved to God. The
will not
Joly,
case,
facts,
discuss
anything
or
1974).3
Maybe you
about
it.
can re-direct
what we must do. That we cannot
also,
Olivarez-Vega,
It
avoid a decision.
is not a matter of
Moreover,
trying to convince anyone,
but mat-
held,
rejecting
Joly specifically
con-
(Emphasis
ter
no discussion.”
here,
to that made
similar
tention
*4
original.)
knowledge
of
that the sub-
an inference
is narcotics “does
ject of the transaction
receipt
On
of the note the
recalled
automatically disappear because oth-
jurors
the
and instructed them as fol-
the
arguably points
other
er evidence
lows:
supra,
Joly,
v.
way.” United States
493
“.
.
.1 think .
.
it
.
is nec-
See, also,
v.
at 676.
United States
F.2d
essary to reach a decision.
I can’t
supra,
twelve so indicated in court polled. In the when cir- LISK, Jr., Fredrick Gerard cumstances, therefore, the incident is not Defendant-Appellee. juror’s incompetence evidence of a “clear to understand issues and to deliber- No. 75-1033. time of ate at his service” which Appeals, Court of justifies setting aside the verdict. Unit- Circuit. Seventh 70, v. Dioguardi, ed F.2d 18, Argued April 1975. 2, July Decided 1975. Appellant that at contends 16, Rehearing Sept. Denied 1975. very least the case should be remanded hearing to determine the hesitant Denied Jan. 1976. Certiorari juror’s competence to serve. We would S.Ct.
have been inclined remand for hear
ing had trial counsel such an after the verdict had been examination
rendered, object moved for a mistrial or supplemental the trial court’s
ed to in Indeed, hearing had a struction. been *5 time, it would have improper not to hold one.
been Gerth, 463 — 164 However, objec no such requests were or made and in view
tions passage trial, five
of the months since the recollection of
we believe
jurors would be so dimmed as to render hearing fruitless. judgment is affirmed. PETITION
ON FOR REHEARING
PER CURIAM: petition rehearing based this court’s decision in Bright, 1975) F.2d 584 While the trial Bright
denied. counsel in objections “acute”
made to the claimed por
lack balance fairness in the subject
tion of the on the of con knowledge,
scious avoidance of counsel present objection case made no jury charge certainly there was
nothing plainly erroneous
instructions.