UNITED STATES of America, Plaintiff-Appellee, v. James Bedford FISHER, Defendant-Appellant.
No. 89-5724.
United States Court of Appeals, Fourth Circuit.
Argued July 17, 1990. Decided Aug. 30, 1990. As Amended Sept. 19, 1990.
912 F.2d 728
The dangerousness of this dry nitrocellulose was further explained by Thomas Ewing, who was a chemical engineer for Hercules. He testified that when the nitrocellulose reaches a certain dryness, approximately 10 percent, it will become an electrostatic hazard. The friction caused by the processing of the dry material will cause electrostatic charges to build up, and the material cannot readily siphon off those charges due to its dryness. When this built-up charge is finally released, a spark will form and an explosion will occur, as it did in this instance. In addition to this electrostatic energy problem, dry nitrocellulose is much more susceptible to ignition due to impact or heat.
Thus, the government established that if the nitrocellulose had been sufficiently wetted, then this accident would not have occurred. The plaintiffs’ allegations glossed over this point. They argue that nonconductive tubs would have siphoned off the static charge in the dry nitrocellulose, preventing an accident. Yet, the cause of the accident was the failure of the system to apply sufficient alcohol, and not the use of nonconductive tubs. Since wetted nitrocellulose does not fit within the category of explosives covered by Section 20.4, there was no violation of any safety regulatiоn.
The plaintiffs also argued that the regulations required a faster sprinkler system than the one that was installed in the processing building. The flash fire caused by the spark enveloped the plaintiffs in less than a second after ignition. The sprinkler system that was installed had a reaction time of 150 to 200 milliseconds (hereafter referred to as “150 msec sprinklers“). Testimony at trial established that this speed was the fastest that technology had produced at the time of the accident. Nonetheless, the appellants point to a regulatory provision which stated that the building “should” be equipped with sprinklers “capable of supplying water on the hazard within 50 milliseconds” (“50 msec sprinklers“). At trial, the government established that this standard was unreasonable, and that it could not have been achieved with the technology available at the time. We agree with the district court‘s holding that the government could not have been negligent in failing to require that 50 msec sprinklers be installed if these sprinklers were not technologically available.
Thus, we affirm the decision of the district court to dismiss the plaintiffs’ case. There was no basis for government liability, for the tub regulation was inapplicable and the sprinkler regulation was unattainable. There being no basis for liability under the FTCA, there is no need to consider the DFE in this appeal.
AFFIRMED.
Thomas Jack Bondurant, Jr., Asst. U.S. Atty., argued (John P. Alderman, U.S. Atty., Roanoke, Va., on brief), for plaintiff-appellee.
Before ERVIN, Chief Judge, and PHILLIPS and MURNAGHAN, Circuit Judges.
PHILLIPS, Circuit Judge:
James Bedford Fisher was convicted on three felony narcotics and weapons counts following a jury trial. The guilty verdict was rendered by an eleven member jury, the twelfth juror having been excused for cause by the district court after the jury had been empaneled and the trial begun. On appeal, Fisher contends that his oral consent to have his case heard by eleven jurors was an ineffective waiver of his right to a trial by twelve jurors. He also claims that the evidence was insufficient for conviction on the count charging possession with intent to distribute narcotics. We find Fisher‘s contentions without merit and therefore affirm.
On June 16, 1988, Roanoke, Virginia, police executed a search warrant on a house owned by Neva Muse. Muse rented the basement of the house to Fisher. The police observed Fisher in the basement with a handgun in his possession. Upon searching the basement bedroom area, police seized 1.52 grams of cocaine, which was packaged in four small “baggie corners,”1 found inside a black leather pouch. The leather pouch containing the cocaine was found underneath a pair of Fisher‘s jeans. In the pockets of the jeans the police found $1655.42 in cash. The police also sеized numerous plastic baggies and baggie corners, $150 in cash found near the waterbed in the room, a marijuana cigarette, and another handgun. Officer Cindy Matney testified that 1.52 grams of cocaine was not a very large amount but that packaging in baggie corners was commonly associated with street sales.
Fisher was charged in a three count indictment with using or carrying a firearm
THE COURT: All right, is my understanding that with-(The record will show that Mr. Fisher is in here.) that Mr. Fisher is willing to go forward with eleven jurors. Is that correct, Mr. Fisher?
MR. FISHER: Uh-huh.
THE COURT: So we will proceed with the eleven jurors. And the government is willing to go forward?
MR. BONDURANT [prosecutor]: Yes, sir.
THE COURT: All right. I‘m glad we caught it at this stage of the game anyway. Anything else we need to get on the record?
MR. TURK [defense attorney]: No, sir.
Id. at 53-54.
The court reconvened the jury and explаined that one of the jurors had been disqualified for her misstatement during voir dire. The court added that “[b]ut for the agreement of counsel that we could proceed with eleven jurors, we would have had to-everything that we‘ve done today would have gone for nought.” Id. at 54. The trial then proceeded without further comment from the court, counsel, or the defendant.
The jury convicted Fisher on all three counts. The court sentenced Fisher to ninety months imprisonment. Fisher timely noted his appeal and raises two principal issues for review. First, he contends that the government failed to present sufficient evidence of any “intent to distribute” on his part, mandating reversal of his conviction for possession of cocaine with intent to distribute. Fisher‘s primary argument, however, is that a new trial is warranted because his oral, in-chambers consent was not an effective waiver of his right to a trial by twelve jurors. We address first the fundamental sufficiency of the evidence challenge, and then the waiver issue.
When a defendant challenges the sufficiency of the evidence used to convict him, “the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in original). Conviction under
Viewed in the light most favorable to the government, there was sufficient evidence from which the jury could infer
Our conclusion that the evidence was sufficient to support Fisher‘s conviction for possession with intent to distribute cocaine undercuts the related argument that his conviction under
A federal criminal defendant‘s right to a trial by jury is secured by the Constitution and the Federal Rules of Criminal Procedure. See
Juries shall be of 12 but at any time before verdict the parties may stipulate in writing with the apрroval 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.
We have not found any case with facts on all fours with this one. No court, as far as we have been able to determine, has held that a defendant‘s oral consent given in chambers is sufficient under Rule 23(b) to waive the right to a twelve member jury. But no court has held that Rule 23(b) is not satisfied if a defendant gives knowing and intelligent consent in chambers and the agreement reached is announced in the presence of the defendant and his counsel in open court. On the facts of this case, we hold that Fisher validly waived his right under Rule 23(b) to a twelve member jury.
We note first that the court did address Fisher individually, and he expressly affirmed his willingness to proceed with eleven jurors. His response, though brief, satisfies the requirement that the defendant‘s consent be personal and express. See Ricks, 475 F.2d at 1327. We therefore need not stretch Rule 23(b) as far as those courts that have held that a defendant may be bound by his counsel‘s oral consent. Further, Fisher has never claimed that his consent was involuntary, and he presents no facts that would support any inference that the waiver was not knowing, voluntary, and intelligent. The district court, which was in the best position to judge the character of Fisher‘s actions, gave no indication of any concern that Fisher‘s cоnsent was anything but knowing, voluntary, and intelligent.
As Fisher points out, however, his oral consent was not given in open court. Rule 23(b) by its terms requires written consent, but the courts willing to accept a defendant‘s oral waiver have added the further judicial gloss that such consent should be given in open court. Though the rationale for this judicially imposed requirement is not spelled out in the cases, we assume that it is thought to guarantee the defendant‘s awareness of the seriousness of his decision, see Reyes, 603 F.2d at 71, and to prevent the reality or even the appearance of coercive, “back room” proceedings.
We are not persuaded that the validity of Fisher‘s waiver is undermined in this case by his failure to give his consent in open court. Fisher was present during the court‘s session with the offending juror and knew that she was to be dismissed. The court reporter was present, evidencing the solemnity of the session and guaranteeing that no star-chamber coercion took place. The district court‘s treatment of the juror‘s disqualification as a serious matter is express in the recоrd; Fisher knew that an important matter was at issue and when the court addressed him that an important personal right was affected. Following the in-chambers session, the court announced in open court that an agreement had been reached to proceed with eleven jurors. At no time did Fisher or his counsel raise any objection to the proceedings. The opportunity for sandbagging that would be created by a rule that permitted such objections to be first raised after verdict must be considered.6
We think it is also critical that Rule 23(b) itself countenances a defendant‘s out-of-court consent to a jury of less than twelve. The rule states that the defendant‘s stipulation to a jury of less than twelve must be written; the circumstances surrounding the giving of such consent are not addressed. Obviously, such a written stipulation may be negotiated and signed out of court. Considering all the facts in this
Finally, we observe that acceptance of Fisher‘s consent to a trial by eleven jurors does not offend the underlying constitutional right to jury trial, which does not include the right to a jury of twelve. See Williams v. Florida, 399 U.S. 78, 98-103, 90 S.Ct. 1893, 1904-07, 26 L.Ed.2d 446 (1970). As the Advisory Committee to the Federal Rules stated in explaining the amendment to Rule 23(b), not applicable here, that permits a district court to proceed with eleven jurors should it be necessary to excuse a juror for cause after the jury has retired to consider its verdict, “quite clearly the occasional use of a jury of slightly less thаn 12... is constitutional.”
We hold that the government presented sufficient evidence to convict appellant Fisher of possession of cocaine with intent to distribute. We also hold that, on the facts of this case, Fisher‘s consent to a jury of eleven members was a valid waiver of his right to a twelve member jury under
AFFIRMED.
MURNAGHAN, Circuit Judge, dissenting:
In dissenting, I concede extreme dexterity in the use of judicial tools to Judge Phillips. It is the choice of the place to apply them to which I object. The majority has converted the fact that something has never been done into a justification for doing it.1 Of course, there must always be a first time, but this is not the case in which such an uncertain manner of proceeding should be invoked. When one‘s liberty is at stаke is not the occasion for fudging the rules and especially their questionable application by the trial judge only to avoid the inconvenience that would follow upon making the rules, drafted in large measure to ensure fair trial, applicable.
Rule 23(b) of the Federal Rules of Criminal Procedure reads:
Juries shall be 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 neсessary 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.
The rule calls for the approval by the court of a written stipulation of the parties. Clearly, court approval is present here, but the required writing is not. It is true that
In chambers, without the jury‘s presence, is a more informal environment than that of open court. Fisher‘s “uh-huh“, his only resort to the glory of our civilization, the English tongue, is evidence of just such informality. The requirement of a writing signed by the defendant as mandated by the rule or by what has been deemed its equivalent, questioning of the defendant in open court, serves more than just to provide evidence of consent. It serves to “underscore the significant decision faced by the parties.” United States v. Reyes, 603 F.2d 69, 71 (9th Cir.1979).
An understanding of that significance is precisely why evidence of express, voluntary, and knowing consent has been held to be so important. See United States v. Taylor, 498 F.2d 390, 392 (6th Cir.1974) (In finding that oral stipulation by counsel was not enough the court stated: “[W]aiver of a jury trial, even the waiver of one juror, is the waiver of a basic and important right which cannot be accomplished upon ‘a silent record.’ “) (citation omitted). The procedure has been compared to that required by
Though the majority concludes that Fisher‘s consent, arguably express and voluntary, was also knowing,2 I cannot agree. Finding no evidence that the consent was “not knowing” is hardly finding evidence that Fisher knew to what he was consenting. It is a fundamental truth that it is difficult to prove a negative.3 By no stretch of the imagination can Fisher‘s “uh-huh” in response to the judge‘s assumption that the procedure was all right with him be found to be a knowing, much less an intelligent, waiver.
The district judge was obviously annoyed at the juror. He stated to her that “I‘m somewhat disappointed. I asked you to pay attention to the questions and to listen to them, and this is causing a great deal of problems for us, because we have let the other jurors go.” Joint Appendix at 53. There is no evidence that Fisher knew what those problems were or knew that he personally had a say in the matter. Given the judge‘s demonstrated impatience with the juror, it would nоt be unreasonable to conclude that Fisher‘s “uh-huh” was uttered to avoid disappointing the judge further. Nothing adds up to star chamber tactics but it does point out why the requirement of a brief colloquy between judge and defendant in open court should remain the minimum requirement. Without it, we are left to glean inferences that the consent was knowingly and expressly given from less than direct language in the more informal atmosphere of chambers. Stretching
Furthermore, Fisher was entitled to informed legal advice when the question of whether to proceed with an eleven member jury came up. The question was an involved technical one for those learned in the law, not for a presumably uninformed layman like Fisher. His counsel, with becoming candor, freely admits that he was unaware of the requirements of Rule 23(b) and so was in no position to take a stand or to advise on the question. An interruption should have taken place to permit defendant‘s cоunsel to inform first himself, then Fisher. The atmosphere of a meeting in chambers to discuss the matter while most, but not all of, the jury is out in court, waiting to begin the trial, is hardly conducive to a defendant‘s insisting on delay to inform himself. The majority relies on the fact that a written stipulation waiving a juror “may be negotiated and signed out of court.” (Emphasis supplied.)4 Ironically, the adequate assistance of counsel required by Fisher here would probably come outside the hearing of the court. With the resulting opportunity to inform himself, counsel could hardly have аllowed a simple “uh-huh“, uttered immediately and without reflection, to stand as a knowing and intelligent consent by someone unaware of the intricacies of Rule 23(b) and the safeguards it is intended to create. Certainly Fisher‘s utterance in the presence of court and prosecuting counsel precluded the giving of confidential advice out of their hearing, advice to which Fisher was entitled. At the very least, interruption for a brief colloquy in open court between the judge and Fisher would ensure that Fisher was fully apprised of his rights and the significance of his decision to relinquish them.
The majority also finds the requisite express, intelligent, and knowing consent in the failure of counsel and Fisher to object when the agreement to proceed with eleven jurors was announced in open court.5 As I have stated, Fisher‘s “uh-huh” in chambers possibly can be found to be express, in the sense of uttered out loud. Such express consent, however, cannot properly be found through Fisher‘s silence when the judge, in open court, announced that counsel had agreed to proceed with eleven jurors and Fisher did not leap up in protest. The majority concedes that Fed.R.Crim.P. 23(b) need not be stretched in the present case to hold that “a defendant may be bound by his counsel‘s oral consent.” Op. at 732. Neither, however, by the same token, should a defendant be bound by counsel‘s or his own complete silence under the circumstances here. The complete muteness of Fisher and of his counsel, too, is of concern. It simply did not constitute express consent. To call “silence” evidence of exprеss consent turns language on its head. Certainly a rule permitting objections after verdict presents an opportunity for sandbagging. There was, however, no sign of such skullduggery here. The holding here permitting an “uh-huh” in chambers followed by no objection in open court to qualify as express, knowing and intelligent consent places us at the top of a very slippery slope.
As for the other contentions asserted by Fisher, I agree with the majority opinion. The majority stretches Rule 23(b), however, to the point where the objective is to ensure only the mock appearance of a fair and unbiased trial. Such a stretch is a distorted one, and I respectfully dissent.