United States v. Joseph Corre Lamb, Jr.
529 F.2d 1153
9th Cir.
1975
Check Treatment

*4 substitution of the alternate un A. WRIGHT, EUGENE Circuit Judge, der that the attorney conditions properly TRASK, with whom Circuit Judge, con- characterized as “a unusual circum curs (dissenting): and very stance unforeseeable.” We With respect due to the views of the agree cannot prosecution, on majority, I must dissent. the authority of a case involving an ex

press stipulation detail, in explicit defense counsel’s object failure to to a I. *5 routine to admonition an alternate to Some additional facts be helpful by” “stand to rises the level of an ex in understanding the situation with press agreement to a procedure clearly which trial the court was confronted. infringing the unambiguous, mandatory this prosecution for armed bank robbery, prohibition of 24(c). Fed.R.Crim.P. government’s the case consisted of three eyewitnesses Moreover, even identified had Lamb as there been the robber and a a stipulation confession him to before the jury the retired, we commission of the offense. could not The hold that such a consisted of an attempt to raise remain doubts effective after as to the dramatic changes reliability eyewitnesses’ of circumstances, in identification cluding and the the original authenticity arrival the at a confession. Lamb verdict did not testify. and the court’s telephone call to the alternate to advise her The jury duly was instructed and the that her services would no longer be re was directed to stand quired the jury had ready to be and summoned was charged Indeed, reached a verdict. it is doubtful, not to discuss the case meanwhile with after the court informed the any person. The court asked both coun- juror she would longer needed, sel: “Is the charge satisfactory, gentle- qualified remained as a men?” Both responded affirmatively.1 1. The district court jury the instructed and re- right. “THE COURT:, please All But re- courtroom, tained it in the and then conversed member the ously given. previ- admonition that I have with the alternate follows: Toro, “Mrs. “ALTERNATE going Del I’m JUROR you NO. 2: to Yes. excuse permit you “THE you now going COURT: go That are home but I’m dis- you cuss the case anybody by. ask to stand at all. “ALTERNATE “THE (MRS. “ALTERNATE JUROR JUROR NO. 2: NO. Yes. DEL TORO): And COURT: keep you And morning? come we will tomorrow in- you formed if “THE we need you you. COURT: No. We will do not call need Is morning. that satisfactory? the you The Clerk will call morning if it “ALTERNATE necessary you JUROR NO. 2: to come in. Fine. agreeable? “THE right. Is that COURT: you All Thank kindly. “ALTERNATE JUROR 2: NO. That agreeable. the instructions and P.M., reread Thereafter, The court jury at 4:09 retired newly jury constituted admonished

to deliberate. anew. In addi- begin to tion, its deliberations at 5:00 P.M. of the jury The recessed ' prompting of at at 9:30 A.M. day, same and reconvened counsel, appropriate made government morning. Between 11:04 following after the final significant inquiries judge, trial A.M. the A.M. and 11:25 whether was returned. It asked verdict his instruc- jury’s request, reread begun deliberations and dis- jury at 11:50 jury The recessed A.M. tions. of evidence. The fore- points cussed all for the noon meal. responded Del Toro both man and Mrs. During judge noon recess the received affirmatively. The defendant does not original jurors, the note from one of the argue that this was incorrect or that the majority. He as described then in- duly did not follow court’s in- telephoned the alternate and admonitions. structions Shortly structed her to return court. thereafter, however, judge learned II. had reached its verdict. The recites a number of fac- again. He therefore called supporting tors its decision to reverse. which, It is unclear to me if any, of determining that the verdict After actually major- those factors bear on the improper, acceding to defense ity’s disposition. suggestion counsel’s asserts that “impermissi- the emotional difficulties not

juror with ble coercion . ap- would seem continue, con- be allowed parent” that the new deliberated cluded: minutes, while the old need- Well, guess in view I we nearly four The very ed hours. lan- again and should call Mrs. Del Toro guage employed major- demonstrates tell her to come. Indeed, ity’s lack of conviction. majority recognizes footnote 7 the elapsed time between the notifica- contention, speculativeness of this stat- juror not to come tion of the alternate *6 ing “twenty-nine notifi- that the minutes subsequent back to contributing is not a factor contrary, to the was no more than to our con- cation clusion.” hours. This is understandable. two only judge proceeded Mrs. Del Toro. NO. 2: The to substitute “ALTERNATE JUROR get following colloquy thing, The then occurred: me to here. it will take time for Well, agreeable “THE COURT: is it “THE COURT: Of course. You live appear, have Mrs. Del Toro Mr. Allis? where? going Monterey “MR. ALLIS: I am JUROR NO. 2: to at this time “ALTERNATE mistrial, your Honor, move for a as to the Park. presentation Oh, problem jur- you. of law on the of a “THE of course. Thank COURT: stepping you employed? in at this late I date. can’t do it Are every attempt now but I will make to find “ALTERNATE JUROR NO. 2: I’m home. something nights out about it. I sometimes so I’m excused for work right. “THE All The motion for COURT: this week. denied, mind, you keeping right. very a mistrial will be All Thank “THE COURT: Allis, kindly. Mr. that at the conclusion of agreement (Whereupon, instructions there was an the Alternate Juror was ex- Court’s cused.) and a that this satisfactory you your charge satisfactory, to counsel. But made Is “THE COURT: your motion for a gentlemen? motion mistrial Yes, is, your denied. it Honor. “MR. ALLIS: Well, I, course, Yes, your “MR. ALLIS: Honor. MAYOCK: “MR. Corcoran, object anything appropriate. right, never that All Miss if “THE COURT: very Bailiffs, please.” you This is a unusual circumstance will swear the 452-53], unforeseeable. retired to Thereafter [R.T. Acuna, right. “THE All COURT: Mrs. deliberate. then, you origi- are excused.” one of the clear that When it became 465], Acuna, jurors, [R.T. not continue the Mrs. could nal longer required that the in- jury asked The jury had reached a verdict. and did not deliber- reread structions be I suggest that 11:30 “realistic effect” approximately until ate anew upon the 1:10 these confus- A.M., again from and deliberated ing telephone calls was absolutely It “would seem nil. I until 2:13 P.M. P.M. agree cannot any of these then, deliberation events that serious apparent,” Toro, served to 83 min- relieve Mrs. Del approximately al- comprised time juror, ternate of her obligations, between 83 and 29 utes. The difference including confidentiality. that of finding “impermissi- De- compels a hardly fendant makes no contention that she ble coercion.” outsiders, discussed the case with disre- authority sup- cites no The garded court’s admonitions or that the shortness suggestion port brought any outside influence into the prej- indicates reaching a verdict time in jury room. There is not one scintilla of contrary. are all to The cases udice. evidence suggesting that she did annotation, 91 A.L.R.2d generally facts, things. these On these we might suggests, (1963). The Circuit Sixth just as well assume that one or more of example: the original eleven disregarded judicial during admonitions the pre- opinions their from formulate Jurors vious evening, as that Mrs. Del Toro did hear in the court they the evidence so the period question. trial indi- room. The record simple were that the issues cates remaining bearing factor It is strong. guilt evidence of majority’s disposition is the fact that quickly could that the surprising the original jury returned a ver- at a verdict. arrive dict before the alternate was seated. concededly While suggests fact Young, influence, United States it enough is not (6th Cir. standing justify alone to a rule of rever- per sal se. unusual in certainly nothing There is 29 min- reach a verdict in having III. clearly presented are utes when the facts Even if one concludes that Rule overwhelming the evidence is as (see by stipulation was not here waived pure speculation was the case here. It is the effect discussion below to suggest impermissible coercion was), necessary to determine it is still Del was exercised over Mrs. Toro. preju the rule was whether violation of as a reason also asserts In each of the dicial to the defendant. rule the likelihood a recalci- for its upon by majority, cases two relied “feign illness or other *7 trant error, appellate finding courts after the burden of incapacity place so as to findings possibili called for below of the juror.” Yet in decision on an alternate case, ty prejudice. of In each the dis withdrawing had al- this case the prejudice found no trict court on remand guilty, ready decided defendant was affirmed on subse decision to be relieved. only thereafter asked Allison, quent appeal. United States v. ill- hardly feigning coerced into She was 468, 1973), (5th 472 Cir. subse 481 F.2d ness. (5th quent appeal, 487 F.2d 339 Cir. as a presents sup- also 982, 1973), denied, 94 cert. 416 U.S. S.Ct. factor the portive (1974); 759 United 2383, 40 L.Ed.2d 944, circumstances, F.2d 950-51 Hayutin, in- v. 398 changes States dramatic (2d Cir.), denied, arrival at a cluding 961, cert. 393 U.S. 89 400, and the court’s tele- verdict S.Ct. 21 L.Ed.2d 374 subse juror phone quent appeal nom., call to the alternate sub United States v. Nash, 414 Cir.), her services would denied, her that cert. advise 1160 Therefore, ambiguity despite 940, 375,

396 U.S. 90 S.Ct. 24 L.Ed.2d 242 likely most opinion,3 holds (1969).2 before it re- facts particular that on the required. Such hold- per versal se the majority In its footnote 3 seeks to course, presumes juror miscon- ing, of Hayutin with the distinguish Allison and in this case. duct suggestion that “defendants in both Rather presume than to misconduct, as cases received careful deliberation would the majority, our role appro more juries, free twelve-member priately is presume that the jury has by the alternates.” participation complied with the court’s instructions However, presence admonitions, absent evidence to the room, as in in the contrary. Co., Gray v. Oil 469 F.2d Shell sanctity “destroys jury.” 742, (9th 1972), 752 citing, Cir. Vitello v. 468, Beasley, v. 464 F.2d United States States, 416, (9th United 425 F.2d 422-23 (10th 1972). presence 470 Cir. The mere 1970); Cir. States, Silverthorne v. United of the alternate well have an effect 627, (9th 400 F.2d 641 1968), Cir. subse on the deliberations of the twelve. quent appeal, (9th 430 F.2d 675 Cir. Corp., United v. Erection Virginia States denied, cert. 1022, 400 U.S. 91 868, (4th 1964). 335 F.2d Cir. 585, S.Ct. 27 L.Ed.2d (1971); When an alternate is Baca, 424, States (10th F.2d room, violating thereby privacy 1974). Cir. deliberations, of jury problem of con Moreover, the trial court specifically stitutional dimension arises. There is inquired of newly constituted jury as thus greater justification for a rule of to the possibility misconduct, and was per reversal se where an alternate is satisfied that there was none. We present during (see Beas should be loath to overturn this determi- ley, supra; Erection, Virginia supra) See, nation. g., e. United States v. Man- than where an alternate is substituted ning, 509 F.2d after deliberations have commenced. The majority here overturns sub silentio See Leser United the trial finding. court’s (9th Cir.), petition cert. If the majority opinion is read as re- dismissed, S.Ct. quiring per reversal se each time Rule L.Ed.2d 49 violated, regardless of circum- Significantly, proposed stances, yet problem another arises. (footnote ) expressly prohibits infra at- Leser, we express held that an waiver of tendance alternates during delibera- is “effective and binding upon tion, but would nevertheless allow sub- appellants.” 358 F.2d at 317. The ma- stitution as the need arose. jority herein does not Leser, overrule The majority upon relies the “dramatic merely distinguishes it. Future litigants changes justifying of circumstances” as reading together this case and Leser its rule per suggest of reversal se. I if must conclude that without an express same, the facts except were the that the prejudice waiver conclusively pre- minutes, original jury deliberated 29 and sumed, but with such a waiver there is a hours, the new jury per four se rule presumption conclusive of lack preju- would be applicability. of doubtful dice.4 950-51, upon Hayutin, textual reliance the “dramatic 398 F.2d at the Second changes instant case. Circuit found of circumstances” insufficient on the *8 conviction, record and affirmed the but al- stipu- was no there found 4.Since lowed, subsequent fact-finding on the issue. stipula- lation, subsequent that a assertion its 481 F.2d at the Fifth Circuit point of substitu- the actual made before tion specifically fact-finding. remanded But even is dictum. ineffective tion would if that holding, regarded as assertion problem presumption opposite conclusive majority’s 3. While the last sentence of the where instances in those still remain suggests per footnote 3 a rule se of reversal express at presence of an the point regardless of the circumstances of the Rule disputed. is violation, of substitution 24(c) that sentence is at odds with to admoni referred regularly involving opposite con- has court approach This Del Toro to Mrs. given at best. as that is awkward presumptions tions clusive g.,E. Silverthorne is wheth- in these cases as “instructions.” issue The central 643; at States, supra, prejudi- is of Rule er the violation 908, 909 Arizona, 362 F.2d and Hilliard See Allison cial to the defendant. Project ABA Compare 1966). myriad (9th of the supra. Because Hayutin, Jus for Criminal Standards in a on Minimum tice, possibilities factual which by Jury Trial Relating to most to may arise it is difficult violation Standards word p. at 4.6(d) case ac- case to whether determine from § “charge” normally equated course is of tual, is apparent, or even Black’s “instruction.” word majority disposition with the if the present. Yet com (1957). One Dictionary per of reversal se re- Law is a rule read as charge stock to “the circumstances, refers our exclusive mentator gardless of the case discuss to are not speci- be on the the future will focus in Moore, 8 J. . .” waiver, regard anyone to without with ficity of the p. 30-3 ¶ 30.02 lack Practice prejudice or Federal apparent actual or de added). That (emphasis 1975) of this inappropriateness ed. thereof. The of the admoni approved by comparing counsel approach made clear fense is indicated is charge further with the tion Part IV of this dissent statement later the court’s to (text following response footnote opinion above): (see note approach of adopt I would calling Hayutin, courts in Allison right. The mo- All COURT: THE hearing evidentiary an on a remand for denied, keep- will be for a mistrial tion However, in prejudice. Allis, at the con- mind, ing in Mr. us a would be the case before fruitless, remand Court’s instructions clusion of al- the district court has since stipula- a was an agreement there necessary in the ready engaged factfind- juror] proce- this tion [alternate possible prejudice. issue of ing on the satisfactory to counsel. dure IV. counsel]: ALLIS: [defense MR. has held court Appellant concedes this object course, would never Well, I of in some be waived that Rule can This appropriate. anything to Leser, we held that circumstances. circumstance unusual to substitute error was not reversible very unforeseeable. ill had become alternate for counsel defense importance, equal Of deliberations, where counsel to charge given object to to failed pres- stipulated to 30 states: Toro. Fed.R.Crim.P. Mrs. Del implied consent of ence por- as error assign may party No asserts that Appellant the defendant. there- or omission charge tion Leser, con- case, was no there this unlike before thereto objects he from unless nor acquies- counsel sent verdict, to consider jury retires the substitution cence defendant which distinctly the matter stating juror. ob- of his grounds objects and the he accept- explicitly counsel had Yet both jection. ed the earlier admonition court’s only to in- may apply (While Rule object failed to juror, and had law, on the structions keeping action in her to the court’s effect the same approximately 51 has charge “Is the satis- question call. The 8 J. raised at trial. See matters to other above) (see note 1 factory, gentlemen?” Moore, 51.02.) ¶ supra, the admonition referred must have exception to this significant be- immediately Del given to Mrs. Toro Fed.R. error” doctrine. “plain rule This counsel.5 inquiry fore the court’s given referring to the admonition direct reference have also court While the negate instructions, Del Toro. does Mrs. to the *9 1162 improperly re- by its its inclinations v. United 52(b). Singer See Crim.P. States, Leser, held in As we verdict. turned 24, 38, 13 85 380 U.S. S.Ct. does not of itself de- process substitution 24(c) can (1965). 630 Since L.Ed.2d right his to a full prive a defendant Leser, coun- waived, supra, defense impartial his case consideration enforcement failure to demand sel’s at 317—18. jury panel. the court’s objecting to provisions by

its hardly “plain is error.” admonitions Moore, ¶ 30.04 at supra, 8 J.

generally V. 30-11; ¶ 51.02. 8A id. pp. 30-9 to me, authorities on To defense It unrealistic to assume that is as the not as one-sided 24(c) issue are admonition, and approved the counsel Ad- to be. The them majority believes agreed to by strong implication therefore of Practice Rules on visory Committee scheme, standby but did Conference the Judicial and Procedure “mandatory” thereby not waive proposed to has the United States 24(c), which re- prong of Rule second jur- allow alternate 24(c) to amend Rule jurors discharge of all alternate quires similar in situations or substitution jury time the retires. at the installed in the case trial facing conclude, as me to great leap It is for no Fed- Committee Compare before us.7 court, that coun- defense did the district Judicial Procedure of Civil eral Rules the sub- contemplated the court sel and Circuit, 37 F.R.D. Conference—-Ninth if, as was even- of the alternate stitution (1965). neces- case, later became tually the sary.6 disagreeing commentators Respected

Consequently, even if there was no ex- Wright 8 J. with include Professor the substi- counsel to plicit stipulation Moore, ¶ 24.05 ed. Federal Practice stipula- (nowhere plan tution The Federal Rule on Paisley, record), acceptance Jurors, tion indicated A.B.A.J. Alternate (1965). ac- constituted standby procedure A statute similar California substitu- trial court’s quiescence in the Judicial Confer- proposed rule of the sufficient has sus- plan avoiding tion mistrial ence of the United States court broad discre- on the trial constitutional attack. confer tained against upheld in fair determining tion conditions Cal.Pen.Code § Green, Cal.App.3d plan People in effect. putting this (1971). People But cf. Cal.Rptr. 84 obligated The trial court was not 100, 278 N.Y.S.2d Ryan, N.Y.2d objection to the to the defendant’s defer N.E.2d substitution, especially when actual above, I forth after For the set objection was not raised until reasons court. indicated would affirm district originally constituted discharged while Indeed, invited shall be retained and not counsel who it was deliberating. regular juror by requesting the becomes or is found to be unable or If a disquali- to continue. not be allowed perform replaced, an fied to his duties and is part, proposed draft rule 7. In relevant as then needed chosen lot reads as follows: replace regular may then shall “(C) participate vote. Alternate Jurors. in the deliberations and 12-person jury de- verdict] If waiver Before commences [of liberations, executed, may direct that entire the court the court shall advise the form impaneled. dis- all facts be reviewed more than 18 shall not Immediately erate, previously has retires to delib- cussed before the juror. lot an alternate shall be chosen served as remaining jurors jury, Rules of Practice & Committee on Procedure constitute jur- jurors. of the United Conference become alternate Alternate Judicial shall Proposed Preliminary Draft of Amend- not be at the deliberations ors shall of the jury, Rules Proce- such number as the court ments to the Federal of Criminal dure, Jan., 1973). shall, discretion, necessary (U.S.G.P.O., at 8 decide to be