UNITED STATES of America, Plaintiff-Appellee, v. Norvell MOORE, Defendant-Appellant.
No. 13-2905.
United States Court of Appeals, Seventh Circuit.
Decided Aug. 19, 2014.
Argued April 3, 2014.
900 F.3d 900
III. CONCLUSION
Graber failed to establish a causal connection between his constitutionally protected speech and an adverse employment action. The decision of the district court is AFFIRMED.
Gregory T. Mitchell, Attorney, Homewood, IL, for Defendant-Appellant.
Before POSNER, FLAUM, and ROVNER, Circuit Judges.
ROVNER, Circuit Judge.
A jury convicted Norvell Moore of using or carrying a firearm during and in relation to a crime of violence, see
I.
Moore left his home on the morning of July 14, 2010, armed with a loaded, nine-millimeter Taurus semiautomatic pistol, in search of a car to steal. An acquaintance had offered him $5,000 for a high-end automobile. Moore took public transit to Chicago‘s northwest side and walked about for an extended period of time—at one point entertaining second thoughts and nearly
Moore approached the open driver‘s side window of the BMW, and, according to Heliotis, pressed his gun to her temple and instructed her to get out of the car. Panicked, Heliotis remained where she was in the front seat, begging Moore not to take the car. Moore repeated several times his demand that Heliotis step out of the car, and (again, according to Heliotis) threatened to shoot and kill her if she did not. Ultimately, when Moore reached into the vehicle and opened the door, Heliotis bolted from the car and ran, screaming for help, back to the store where she had just been shopping for pet supplies.
Moore sped off in the BMW. Heliotis was able to flag down a police officer, and a radio alert for the stolen car was issued. Other officers in the area soon spotted the car and gave chase. After colliding with two other vehicles, Moore abandoned the car and attempted to escape on foot. He was unsuccessful. Moore was apprehended in a parking lot and taken back to the scene of the carjacking, where Heliotis identified him. On the driver‘s seat of the abandoned BMW, police found a bag containing Moore‘s gun, along with photocopies of his birth certificate and Social Security card. They also discovered a shirt that Heliotis had seen Moore wearing when he took the car from her.
After being advised of his rights, Moore agreed to speak with Chicago Police Detective John Broderick and subsequently to Assistant State‘s Attorney Suzanne Sanders. The latter interview was memorialized in a written statement that Moore signed. Moore disclosed that he had been searching for a foreign, high-end automobile to steal in order to claim the $5,000 his acquaintance had offered him for such a car. He admitted having stolen Heliotis‘s BMW toward that end, and he admitted that he was armed when he did so. Moore insisted, however, that he never pointed the gun at Heliotis, and he denied that he had any intent to shoot or harm her. According to Moore, when he approached Heliotis, he admonished her not to scream, asked her politely to exit the vehicle, and displayed the gun to her when she did not immediately comply.
A grand jury returned a three-count indictment against Moore. Count One charged Moore with the federal offense of carjacking, i.e., taking a motor vehicle by force or intimidation, with the intent to cause death or serious bodily harm, in violation of
The central and only material dispute at trial, as the parties agree, was whether Moore committed the carjacking with an intent to cause death or serious bodily harm to Heliotis if she did not cooperate. See Holloway v. United States, 526 U.S. 1, 119 S.Ct. 966, 143 L.Ed.2d 1 (1999). There was no real dispute that Moore was armed, that he approached Heliotis and showed her his gun, that he instructed her
In its final instructions, the court advised the jury with respect to the carjacking charge set forth in Count One of the indictment, that “[i]ntent to cause death or serious bodily harm includes an intent to cause the victim death or serious bodily harm if he or she does not comply with the defendant‘s demand.” R. 163 at 41; R. 92 at 9 (Government‘s Proposed Instruction No. 8). The court had rejected an alternative instruction proposed by the defense, which conveyed the same substantive point about intent using different language: “In other words, ‘the government [must] prove beyond a reasonable that the defendant would have at least attempted to seriously harm or kill the driver if that action had been necessary to complete taking of the car.’ ” R. 94 at 2 (Defendant‘s Proposed Instruction No. 2) (quoting Holloway, 526 U.S. at 12, 119 S.Ct. at 972).
The jury began its deliberations shortly after 11:00 a.m. on the third day of trial, immediately after counsel made their closing arguments and the court gave the jury its final instructions. At around 6:00 p.m., after seven hours of deliberations, the court summoned the jury into the courtroom to inquire whether jurors preferred to keep deliberating or break for the evening and return the following morning. The foreperson advised the court that the jury preferred to continue its deliberations. At 8:22 p.m., the judge received a note indicating that the jury now wished to cease its deliberations for the day and return late the following morning. Signed by the jury foreman, the note read in full:
We would like to end for the day. Everyone is tired and we are not making progress.
If possible we would like to begin deliberations [at] 11:30 a.m. Friday. Some people will not get home tonight until after midnight.
R. 107; R. 167 at 56.
The district judge advised the parties that he intended to ask the jury whether it had reached unanimous agreement as to any count of the indictment; if it had, the judge planned to take a partial verdict on that counts. The judge indicated that he would also inquire whether, as to any counts on which the jury remained undecided, whether further deliberations would be useful. Both parties expressed concern about the judge‘s declared course of action. The government‘s counsel objected to the court‘s plan altogether, noting that the jury had indicated its wish to continue deliberations on the following day and arguing that the jury should be permitted to do so without interruption. Defense counsel was more concerned with the court‘s
In response to the court‘s inquiry, the jury foreperson indicated that jurors had reached agreement as to some counts of the indictment. The court advised the jury that it should complete the verdict form as to the counts upon which it had reached unanimous agreement. The court also inquired of the jurors whether they believed that further deliberations would be useful on any count or counts as to which they remained divided. It received a mixed response to that question. The foreperson viewed the prospect of reaching unanimity as unlikely: “My best judgment is no.” R. 167 at 59. But when the court asked whether anyone else on the jury disagreed with that assessment, another juror raised his hand and said that he “wouldn‘t exclude the possibility altogether” of reaching a unanimous verdict. R. 167 at 60. In view of the latter response, the court indicated that deliberations on the outstanding count or counts would be allowed to continue. The court instructed the jury to return to the jury room and fill out the verdict form as to any counts on which it had agreed. Before the jury retired for that purpose, the foreperson posed a question to the court:
THE FOREPERSON: Question?
THE COURT: Yes.
THE FOREPERSON: One of the counts was multifaceted. There was four elements to Count One. In the event that we reached unanimity on one, two or even three of those, should we indicate that or does—
THE COURT: No.
THE FOREPERSON:—just don‘t indicate that anyway.
THE COURT: You have to reach unanimous verdict on all elements of a count.
THE FOREPERSON: Okay.
THE COURT: Three out of four is no good.
THE FOREPERSON: Okay.
THE COURT: Okay?
All right. Go ahead and return to the jury room.
R. 167 at 60-61.
The jury shortly thereafter returned a verdict form indicating that it had reached unanimous verdicts of guilt on Counts Two and Three of the indictment, but had not arrived at a verdict on Count One. Because a finding that Moore had committed the carjacking offense charged in Count One was an element of the weapons offense charged in Count Two, it was immediately apparent to the court and to the parties that there was a potential problem with the jury‘s decision to convict Moore on Count Two when it had not yet reached a verdict on Count One. The following discussion ensued between the court and counsel (Mr. Mitchell for the defense and Mr. Jonas for the prosecution):
THE COURT: It strikes me that the guilty verdict on Count Two is premature. What do counsel think about that?
So it is unclear from my understanding that they had to also find all four elements in Count Two for the carjacking as they did in Count One. And I think because those four elements were not mentioned as part of Count Two, they didn‘t think it applied.
THE COURT: Well, there was no objection to the clarity of the instruction, and it didn‘t occur to me that there was any lack of clarity. My own view is that one of the elements of Count Two is a finding of guilty on Count One.
Mr. Jonas, what do you think?
MR. JONAS: Judge, I think we‘d like to research it, frankly. I mean, our understanding is you can have inconsistent verdicts that don‘t require or—that are not reversible.
THE COURT: Oh, I‘m not talking about reversible or—
MR. JONAS: Understood.
THE COURT: What I am thinking about is sending the jury back for further deliberations on Count Two. And I think your idea of research is a good one.
Let‘s find out about this, and be ready at 11:30 tomorrow morning to decide what to do.
MR. MITCHELL: But again, Judge, I think for clarification, and again if you look at the instruction you gave for Count Two, it says a guilty finding of carjacking as alleged—that he actually did the carjacking as alleged in Count One, but it doesn‘t say that those four elements are the same.
And so if they are hung on Count One, they should have also been hung on Count Two. It makes no sense.
THE COURT: Well, I think I agree with you.
MR. MITCHELL: Okay. So I was just asking if you want to clarify or [give] a clarifying instruction to make sure that they understand that that was the basis for which they would have had to find Count Two.
THE COURT: That‘s what I am thinking I should do.
MR. MITCHELL: Yes, Judge.
R. 167 at 62-64. Defense counsel urged the court to give the jury a clarifying instruction on the interrelationship between Counts One and Two that evening, before the jury was released for the day, but the court demurred, indicating that it wished to research and contemplate the situation before taking action. The jury was therefore released for the evening without further instruction.
On the following morning, the court announced to the parties that, after further consideration and research, it had tentatively concluded that no further deliberations and no supplemental instructions were warranted with respect to Count Two. The court observed that the evidence was sufficient to support the guilty verdict on that count, and any inconsistency between the jury‘s ongoing inability to reach a verdict as to Count One and its finding of guilt on Count Two did not call into question the validity of the verdict on the latter count.
Initially, neither party agreed with the court‘s announced intent to accept the verdict on Count Two. The government
Having said that, what we propose, because of...the taking of the partial verdict, which is not usual, I guess, to make everything clean, and so we don‘t have to try this case again, we propose sending the jury back to deliberate all over again on all three counts, and just say, you know, putting aside last night, we want you to deliberate on Counts One through Three, and then when you‘re done, return a verdict without any further instruction.
R. 168 at 5-6. The court rejected outright the idea of sending both Counts Two and Three back to the jury for deliberation, although it remained open to the possibility of ordering further deliberations on Count Two. With its proposal to have the jury continue deliberations on all three counts rejected, counsel for the government, recognizing that the reasons for the jury‘s partial verdict could not be known, now conceded that “we just have to accept and live with the jury‘s verdict.” R. 168 at 9.
For his part, defense counsel again argued that the jury‘s decision to convict Moore on Count Two, without having agreed that he had committed the predicate crime of violence in Count One, presented the possibility that jurors had misunderstood the court‘s instructions on these counts. That was why, defense counsel explained, he believed the court should have given the jury a clarifying instruction the night before, and why he believed that the court should deliver such an instruction before the jury‘s deliberations on Count One resumed. Defense counsel also felt himself compelled at this juncture to move for a mistrial based on how the court‘s inquiry into the status of the jury deliberations had unfolded the prior evening.
[M]y concern, and as I mentioned to my client, is that I think because of the way it transpired, I have to move for a mistrial because in this case the fore-man in open court, prior to any verdict being announced on any of the counts, indicated that they were hung.
I think by having them do a piecemeal verdict, the Court pierced totally unintentionally into the deliberation process to see where they were, whether we thought it was just on Count Two and Three, not just Two, but I think it was inappropriate, Judge. And then to ask the jurors to determine, after the foreman said that they were hung or could not reach, and one person to raise their hand, again it began to show where the deliberations were. And I think that that, Judge, was improper, especially now given what we know about what the deliberations and the problems that they are having, given the verdict forms that they signed.
R. 168 at 8.
Having heard the parties out, the district court denied Moore‘s motion for a mistrial, declared its intent to accept the partial verdict on Counts Two and Three, and allowed the jury to resume deliberations on Count One without any supplemental instruction.
After several hours of additional deliberations, the jury foreman advised the court by way of a note that the jury was divided 11 to 1 in favor of conviction on Count One and would be unable to arrive at a unanimous verdict. The court summoned the jury into the courtroom and inquired
Moore subsequently filed a motion for a new trial pursuant to
At sentencing, the court ordered Moore to serve consecutive terms of 120 months on each of Counts Two and Three, for a total sentence of 240 months, a term substantially below the lower limit of the 360 months-to-life range advised by the Sentencing Guidelines.
II.
Moore pursues three issues on appeal: (1) whether, in light of the jury‘s inability to reach a verdict on the carjacking charge, the evidence is sufficient to support the jury‘s guilty verdict on Count Two, given that the commission of a crime of violence—here, carjacking—is an essential element of the section 924(c) charge; (2) whether the district court abused its discretion in refusing Moore‘s proposed jury instruction regarding the intent element of the carjacking offense; and (3) whether the district court abused its discretion in denying Moore‘s motion for a new trial.
Our focus will be on the third of these issues: the denial of the Rule 33 request for a new trial on Counts Two and Three of the indictment. Whether the interest of justice warrants a new trial is a discretionary decision that we review with an appropriate degree of deference. See, e.g., United States v. Berg, 714 F.3d 490, 501 (7th Cir. 2013). Here, because we find that the court erred in inviting a partial verdict before the jury indicated that further deliberations would be fruitless as to any unresolved counts, we vacate the verdict on Count Two and remand for a new trial.
The close relationship between Counts One and Two sets the backdrop for our analysis. In order for a defendant to be guilty of using or carrying a firearm during and in relation to a crime of violence as proscribed by
In this regard, we are not so concerned with the fact that the jury instruction as to Count Two did not repeat the individual elements of the Count One carjacking offense,1 as we are with the evident possibility that the jury, for whatever reason, overlooked the fact that its inability to render a verdict as to Count One indicated that it was not prepared to render a (partial) verdict on Count Two either. The district court itself recognized the problem when it described the jury‘s verdict on Count Two as “premature.” R. 168 at 62. And, in particular, we are concerned with the possibility that the court‘s decision to solicit a partial verdict contributed to the problem.
But before we proceed further, we must address the government‘s contention that Moore waived any objection to the district court‘s decision to ask the jury for a partial verdict, which is based on Moore‘s acquiescence to the court‘s declared intent to ask the jury about the status of its deliberations and to ask for a verdict on any count or counts that it had thus far resolved. Gov. Br. 27 n. 2. Although Moore‘s counsel did raise a concern about the court‘s plan, it was focused on the prospect of exposing any division among the jurors while deliberations were ongoing; there was no objection to asking the jury whether it had reached agreement on any count and, if so, to render a verdict on that count. By contrast, the government‘s counsel did object, unequivocally, to this aspect of the court‘s proposed course of action, indicating its preference that deliberations be allowed to continue undisturbed; to that extent, the court was given an opportunity to reconsider before it asked the jury to return a partial verdict. Moreover, once the partial verdict had been returned, both the defense and the prosecution urged the court to have the jury resume deliberations on Count Two, and Moore‘s counsel unequivocally, if belatedly, voiced concern about the court‘s intrusion into the jury‘s deliberative process. At that juncture, the court had the opportunity to have the jury resume deliberations on Count Two (if not Count Three, as the government also suggested) with or without a supplemental instruction reminding the jury of the relationship between Counts One and Two, as Moore requested—rather than accepting the verdict on Count Two as final. The court chose the latter course. Under these circumstances, we believe that Moore preserved his right to challenge the partial verdict on appeal, and we move on to the merits of the argument.
We may assume that had the jury, in its own time, exhausted its ability to reach a verdict on all counts, and an-
What happened here, and what is the source of our concern, is that the court invited a partial verdict while deliberations remained ongoing and before the jury indicated that it was truly deadlocked as to any count. Recall that when the jury first asked to be released for the evening because the hour was growing late, “[e]veryone is tired and we are not making progress,” R. 107; R. 167, the jury did not declare that it was at an impasse as to any charge; on the contrary, it is clear from the jury‘s note that it wished to resume its deliberations late the following morning. As long as all counts of the indictment remained on the deliberating table, the jury might have realized that its disagreement as to Count One logically foreclosed a verdict on Count Two. However, once it was asked by the court whether it had reached agreement as to any count, and its verdict as to Counts Two and Three were solicited and accepted by the court, the jury lacked the ability to revisit Count Two. We acknowledge, of course, that when the foreman was questioned by the court, he indicated that the jury had reached agreement as to certain counts, and the jurors confirmed their unanimity when they completed the verdict form and rendered verdicts as to Counts Two and Three. Again, however, we cannot be sure either that the jury appreciated the inconsistency at the time it rendered a verdict on Count Two, or that the jury might not have realized the inconsistency and acted differently had a partial verdict not been invited by the court.
Of course,
When a jury indicates that it has reached a verdict as to some counts of an indictment (or defendants, in a multiple-defendant case), but has deadlocked as to others, a responsive instruction that, in a neutral fashion, lays out the options available to the jury—including the option of returning a partial verdict, if it so chooses—is appropriate. See United States v. DiLapi, 651 F.2d 140, 146 (2d Cir. 1981); see also Patterson, 472 F.3d at 780; United States v. LaVallee, 439 F.3d 670, 691 (10th Cir. 2006); United States v. Black, 843 F.2d 1456, 1463 (D.C. Cir. 1988); see also United States v. D‘Antonio, 801 F.2d 979, 983 (7th Cir. 1986) (emphasizing importance of content-neutrality in judge‘s response to jury‘s first indication of possible deadlock) (citing United States v. Thibodeaux, 758 F.2d 199, 203 (7th Cir. 1985) (per curiam)). A judge is not required to inform the jury in every case that it may return a partial verdict, nor does he become obliged to do so at the first sign of disagreement among the jurors. See United States v. Dakins, 872 F.2d 1061, 1064 (D.C. Cir. 1989). But when deliberations have grown long relative to the length of the trial and the number and complexity of the charges, and the judge is advised and convinced that there is a genuine impasse among the jurors as to one or more charges, certainly it is within his discretion to advise the jury that a partial verdict is among its options. E.g., DiLapi, 651 F.2d at 146-47; cf. United States v. Vaiseta, 333 F.3d 815, 818-19 (7th Cir. 2003) (district court did not abuse its discretion in taking partial verdict on six of seven counts after confirming that jury was genuinely deadlocked on remaining count).
This is, however, delicate ground on which the judge must tread very carefully. See Heriot, 496 F.3d at 608; United States v. Wheeler, 802 F.2d 778, 781 (5th Cir. 1986). A premature inquiry into whether the jury has reached a verdict as to at least some charges, or an unprompted, mid-deliberations instruction informing the jury that it has the option to return a partial verdict, may impermissibly intrude upon the jury‘s deliberative process. See Benedict, 95 F.3d at 19; DiLapi, 651 F.2d at 146-47. The jury should be permitted to structure its deliberations as it wishes; and whether to return a partial verdict, and if so at what point during its deliberations, are questions that in the first instance are for the jury itself to answer. Patterson, 472 F.3d at 780-81; DiLapi, 651 F.2d at 146. Absent the jury‘s declaration that it is deadlocked as to one or more charges, asking the jury whether it has reached agreement as to any charge or giving the jury a supplemental instruction that it can return a partial verdict, might be construed by the jury as a hint from the court that it is taking too long to render a verdict. See Patterson, 472 F.3d at 780-81. And where, as here, the jury indicates (whether on its own initiative or in response to the court‘s inquiry) that it has reached agreement as to some but not all charges, an invitation to deliver a partial verdict poses the risk that the jury will “premature[ly] conver[t]...a tentative jury vote into an irrevocable one.” Benedict, 95 F.3d at 19; see also Heriot, 496 F.3d at 608; DiLapi, 651 F.2d at 147; Wheeler, 802 F.2d at 781. Jurors may not realize that in delivering a partial verdict, they are foreclosing to themselves any further consideration of the charges included in that verdict. Locking in a partial verdict may thus deprive the jury
We have said that it is “probably inadvisable” for a court, on its own initiative and without any indication that the jury is deadlocked as to one or more counts, to inform the jury that it may render a partial verdict. United States v. Peak, 856 F.2d 825, 828 (7th Cir. 1988). This case illustrates why that is so. The partial verdict solicited by the court included a guilty finding on the
In Benedict, 95 F.3d 17, our colleagues in the Eighth Circuit, voicing the same concerns that we have here, concluded on comparable facts that reversal of a defendant‘s conviction was required. The defendant in Benedict had been charged with both conspiring to steal post office property and with the substantive offense of aiding and abetting the theft of post office property, among other crimes. During deliberations, the jury advised the court that it had reached a verdict as to three of the four charges but was divided on the remaining charge. Over defense objection, the court instructed the jury to render a verdict on the three counts it had resolved; its partial verdict included a guilty finding on the substantive charge of aiding and abetting the theft of post office property but no verdict on the conspiracy charge. Deliberations continued on the conspiracy charge (with the court rejecting a defense request that the jury be instructed to continue deliberations on the aiding and abetting charge as well) but culminated in a deadlock and a declaration of a mistrial on that count. On appeal, the Eighth Circuit held that it was error for the court to instruct the jury to render a partial verdict while deliberations were ongoing as to the
[I]t is particularly troubling that the outstanding charge of conspiracy to commit post office theft was so closely related to the substantive theft offense for which the jury announced a guilty verdict and to which the jury was not permitted to return during the remaining deliberations. It is difficult to imagine that the jury could continue to deliberate on the conspiracy charge without reweighing the evidence with respect to the substantive offense where, as here, the government‘s evidence on both counts was virtually the same....
Id. The court therefore concluded that the district court had abused its discretion in instructing the jury to return a partial verdict before it had completed its deliberations on a closely related count; the guilty verdict on the substantive charge of theft therefore could not stand. Id.
We need not address whether the problem would have been corrected had the court, as it was initially inclined, asked the jury to continue deliberations on Count Two, with or without a supplemental instruction reminding the jurors that Moore‘s guilt as to the carjacking charge in Count One was an element of the
Because the actual rationale underlying the jury‘s verdicts (and lack thereof) are typically not the proper subject of judicial inquiry, see
For these reasons, we believe that the district court abused its discretion when it instructed the jury to return a partial verdict while deliberations were ongoing and in denying Moore‘s request for a new trial.
III.
Because the district court erred in soliciting a partial verdict from the jury before it had indicated that it was deadlocked as to one or more counts of the indictment, we conclude that the court abused its discretion in denying Moore‘s subsequent motion for a new trial as to Count Two. We therefore VACATE Moore‘s conviction on Count Two, AFFIRM his conviction on Count Three, and REMAND for further proceedings consistent with this opinion. Circuit Rule 36 shall not apply on remand.