United States v. Robert Evans, Jr.

WINTER, Before MURNAGHAN and ERVIN, Circuit Judges.

MURNAGHAN, Judge: Evans was found of bank guilty robbery. personally § U.S.C. He was identi- perpetrator eyewitnesses. fied as the two money robbery Bait taken in the was found premises in which he resided. Evans gone on a spending spree, had substantial beginning subsequent at a time to the date robbery. assigns per- Evans as error refusal to girlfriend co-worker, mit former Evans’ Dawkins, testify about Denise a conver- him. sation she held with She would quoted have him as his explaining sudden consequence wealth as his concealing premises a bank robbery on his residential fugitive, from whom he claimed to have $10,000. received theory Evans’ that he was ad mitting that he had committed the crime of harboring fugitive, 18 U.S.C. or of § funds, receiving stolen bank U.S.C. making and so declaration interest, against under Fed.R. which in, 804(b)(3), although Evid. could come hearsay. penalties harboring for are for markedly robbery. less than those bank year for There is maximum bank rob where, here, aggrava as is the bery there dangerous weapon. tion of assault with a for year receiving There is maximum funds, a maximum stolen bank sen accessory equal being an to one- tence for prescribed punish maximum half of the principal. ment of testimony placed would have in the defend- whether a state- doubted may well be It inter- against Consequently, testimony the declaration ant’s hands. ment satisfies where, hearsay rule sufficiently trustworthy to warrant exception est was not context, technically it in narrow err in viewed The trial did not its admission. and so is of crime a confession constitutes excluding it. actuality, interest,” “against the defend contention of The second only function of the perhaps principal, and jury. of the concerns the constitution ant against support a defense is to statement been committed Shortly after the case had reality, In crime. charge of a more serious it had retired to commence is totality, the statement in its looked at deliberations, grew member concerned one interest, not penal declarant’s one for the during a break in the hearing, his about against. of defendant proceedings, a discussion ques- However, not resolve that we need He in or about the courtroom. persons 804(b)(3), tion,1 Evid. estab- for Fed.R. of § his concern to the the fact of communicated admis- denying requirement lishes a further judge ques which the judge, following against interest to a declaration sibility to him, that he should and determined tioned corroborating “unless exculpate the accused participation from further be excused trustwor- clearly indicate the circumstances does not assert case. The defendant gener- The more the statement.” thiness of juror constituted error. discharge of that 804(b)(5)similarly re- al Fed.R. of Evid. § but not com- had commenced guaran- “equivalent circumstantial quires that the defendant pleted explanation his trustworthiness.” tees of insisting on a mistrial the alternative of had spending It was established eleven electing proceed with the or of defendant, Evans, began on spree of 23(b). jurors. Fed.R.Crim.P. remaining 3, 1979, robbery and day after the May pre- clear that he The defendant had made 7,May days his contact on several before permit which would ferred an alternative robber whom supposed bank 1979 with continue, he did not the case to and that The amount he claimed to have secreted. mistrial, consequent begin- and the want period, critical Evans within the traced to jury.2 a different ning again all over before comprising the computed expenditures juror, point, At this the first $11,814 in cash spending spree plus discharged when the greatly who had been by the F.B.I. found in his residence to reach a ver- $10,000 proffered person jury twelve retired which the exceeded the Thomas, 285, (5th Similarly explore whether de- United States 1. we need not Bennett, fendant, against 1978), invoking privilege through with United States v. Cir. self-incrimination, pur- 45, denied, 1976), for the was unavailable cert. “ poses 327, (1976). ‘Unavailabili- of Fed.R. of Evid. § U.S. 97 S.Ct. 50 L.Ed.2d ty’ in which the situations purposes as a witness includes for the of this We shall assume by ruling exempted of the court on declarant is expressly deciding, but without testifying ground privilege concern- of from “unavailable,” quali- and that he defendant statement”, subject ing Fed.R. his matter of fied as the declarant. However, 804(a) 804(a)(1). of Evid. provides is not una- further that a “declarant Through mix-up preserved no record refusal, exemption, if his vailable as a witness colloquies point concerning the al- memory, inability, or absence claim of lack of open ternatives to the defendant. The failure wrongdoing procurement is due to the or evidently regrettable, inadvertent. most but purpose proponent statement his ap- stipulated purposes for the Counsel attending preventing testi- from or the witness peal gone as to had so far defendant fying.” mistrial, pre- say that he did want a complicated situation is further stipulation and is no ferred to continue. There question the words “declarant” of whether nothing the defend- to establish whether hence 804(b)(3) Evid. § as used in Fed.R. of “accused” against opted an ant for an eleven man or mutually whether exclusive or must be deemed or, probable, jury, appears most man as could own statement on occasion an accused’s against expressed for or an no conclusion grounds that the same be introduced on the jury. eleven man Cf. both declarant and accused. individual was (Fed.R.Crim.P. 24(c)), happened diet back the language of the rule inasmuch as she questioned into the courtroom. She was as did, fact, regular juror. anything might to what if have occurred in Baccari, States v. way of discussion of the case with oth- denied, cert. 94 S.Ct. ers, destroy impartiality her or otherwise (1974) 41 L.Ed.2d 218 concerned the to render her juror. unable to function as a very situation. “At the close of argument replied She that she had not discussed the before the begin retired to anyone. case with possibility deliberations, the alternate was dis eleven man seems to have received no charged required by as 24(c). Fed.R.Crim.P. further consideration. During and near the outset of the delibera expressed The defendant himself un- regular jurors tions one of the became inca equivocally proceeding in favor of with a pacitated hospitalized and had to be .... twelve member jury comprised of the origi- After discussing alternatives, various it was eleven, nal with the first alternate added.3 agreed by all parties that the alternate While nothing further was said about the juror should be recalled and the delibera alternative, eleven man jury certainly the tions continued.” 489 F.2d at 275. The possibility, defendant knew of it as a and no Court concluded consenting “that in one denied him or tried to dissuade him substitution the defendants knowingly from that alternative. We conclude that any objections waived that could have been twelve jury member as ultimately con- interposed. The criteria for effective waiv intelligent, preferred stituted was er of constitutional jury rights set forth in himself, choice of the defendant and that States, Patton v. implicitly the defendant had made clear his 253, 74 (1930), S.Ct. L.Ed. 854 are well preference to it jury up over a made of only satisfied under the original circumstances.” eleven members still Id. remain- ing.4 We therefore must ques turn to the question thus boils down to tion of fundamental fairness or unfairness whether jury, as ultimately composed, place. of what took point On we are by reason 24(c) of violation of Rule jury satisfied that the in the end was made Federal Rules of Criminal Procedure or on up of people twelve who properly could grounds constitutional was so fundamental dispose of the case. There would be no ly unfair that even knowing attempt a question had juror the first alternate been waiver would be unavailing. Fed.R.Crim.P. jury added to the During before it retired. juror states that an “alternate who the time she was discharged, no contamina regular juror does not a shall be tion of her place. state of mind took If a discharged jury after the retires to consider prefers defendant go ahead with essen its verdict.” purport, The rule does not tially the jury respect to which he had however, deny power to the trial court to placed jeopardy, been he should not be

reconstitute someone as a previ who accept trial, forced to a ously has been whole new discharged. Furthermore with the discharge consequence being of Alternate Juror placed No. was not in jeopardy a actually present by time, mandated case second if his decision to move ahead contrary 3. He did so in the making face of advice from In Government. a conscious choice his counsel that he take a mistrial. proceed Defend- juror, with the substituted alternate pointed possible ant’s counsel out adverse gained speculative advantage Evans whatever anything discharged juror might effect of accepted whatever theoretical detriment colleagues jury, origi- have told his nally after the as might inherently exist in the situation. constituted, first retired to deliberate on its verdict. abstraction, generally supposed 4. As an it is possible consequences having of there larger jurors, that the the number of the less prior been some twelve unanimity the likelihood of the absolute re- person jury conjectures, are but as fa- quired guilty for verdict. vorable or unfavorable to the defendant as to here, intelligent.5 In is, knowing and Defendant further contends that the as short, knowing prefer- with the defendant’s only to continue its was told delibera with the alternate going ence for ahead tions, begin specifically and not them remaining jurors, the eleven added to objection entirely anew. Yet no was raised a mistrial had necessity manifest to declare point. Nothing precluded as to the There was no fundamen- dissipated.6 been starting very beginning from from the all Lane, Henderson v. tal unfairness. Cf. again. speculative over assertion of appropriate It was F.2d 175 prejudice unexceptional from the instruc was in a to conclude that the defendant tion, raised, objection to which no in the circum- superior position to decide justify insufficient reversal. him, rather than stances what was best judge. AFFIRMED. have his decision overridden out; event, were hopes In the his not borne guilty. him But the defend- found ERVIN, Judge, dissenting. Circuit judge than the trial ant as well or better Believing procedure employed by could ascertain whether he would have had replacing the trial good chance with

any better chance or as with an jury. other Erection, arguably bearing following Virginia 5. Two Fourth cases or counsel. In distinguishable they carefully holdings since con- matter are Court restricted itself to the involving group of thirteen namely: cerned situations of the case cases, jurors. United States (1) defendant, The earlier of personal no consent of the (4th Virginia Corp., v. Erection 335 F.2d 868 (2) presence juror the of the thirteenth was a 1964) presence Cir. noted that the of the thir- flat violation of the maximum of 12 called for person jury teenth palpable in room amounted to a the Procedure, in the Federal Rules of Criminal 23(b): violation of Fed.R.Crim.P. (3) presence juror per- the of the thirteenth parties may “Juries shall 12 but . .. the be of possibility, subject mitted a to correction stipulate jury any . .. that the shall consist of elimination, or of an unwarranted influence language number less than 12.” In the Judge 12, proper on the deliberations of the if even Erection, Virginia Boreman in “twelve is mute, presence the thirteenth remained the magic the number.” Either the defendants in violating of the thirteenth in event the 13, Virginia jury Erection had a or had the privacy secrecy jury. and impermissible non-juror interference of a objections applies None of those in the instant present while deliberations were conducted. case, consented, clearly for the defendant and out, point As the court was careful to consent at no time were there ever more than twelve juror only to inclusion of an alternate came jurors. States, Cf. Leser United 358 F.2d counsel, not, from in unlike the situation (9th 1966), Cir. cert. dismissed 385 case, present the from the defendants them- (1966): U.S. “In S.Ct. L.Ed.2d 49 selves. nothing the instant case there is in the record language Virginia There is Erection suggest jurors to present during that more than were twelve opinion juror which casts doubts on whether a jury.” the deliberations of the discharged once can be reactivated. But that pertinence Of no little is the consideration by presented issue was not the actual fact situ- that the Tenth Circuit in United States v. Beas ley, so, inevitably ation and were the statements (10th 1972) 464 F.2d 468 Cir. had an inad may dicta. The same be said of the assertion juror vertent thirteenth situation and followed Virginia opinion in the proposition: the Erection related Virginia Erection. Yet when the of United case 24(c) patently “Rule makes no Baccari, arose, supra, presenting States v. the provision replacement for the of a who very Tenth Circuit with the situation with jury becomes disabled after the retires to delib- confronted, which we are the Tenth Circuit may erate.” While the statement in itself well distinguished Virginia Beasley Erection and to true, upon be the Court was not called to con- uphold the convictions. It did so the by sider the effect of a conscious waiver grounds present, that a thirteenth was replacement defendant himself if occurs after personal that jury the defendants’ consent had retires to deliberate. Even less did obtained, very Virginia knowing not been considerations to Erection concern whether have, footnote, objection. which we earlier in this alluded. waiver suffice to moot the would case, In the second Fourth United consent, the circum- Chatman, 6. Absent the defendant’s (1978) States v. 584 F.2d 1358 course, are, fundamentally other- alternate, stances juror, inclusion of an thirteenth Lamb, E.g. States v. purely wise. United began when an deliberations was inad- (9th by Cir. vertence. There was no consent defendants

H29 deliberating for of time length been some II. was, under the circumstances of this my It is procedure contention that error,

plain respectfully I dissent. error; here employed plain constituted that by

contention buttressed the rationale of the thirteen cases. I. 24(c) provides Rule alternate “[a]n quarrel Although I have no ma- juror who does not replace regular juror facts, jority’s I characterization of the think discharged jury shall be after the retires to presentation a more extensive of them is (emphasis consider verdict.” added). merited here. pursuant Absent a written agreement m., p. Before retired at 1:22 23(b) may proceed Stiles, Nancy juror, twelve, was ex- with a less than the man- m., p. cused. At date of Rule is clear judge 2:10 the trial as it retires is the given jury that is to Bamberger, a note return the written Brian verdict. There is provision anywhere no jurors. upon one of the Based the Rules jur- substitution of alternate communication, re- had the process ors once deliberative begun. has called to the thereaft- Shortly courtroom. procedure adopted below, by the court er, m., jurors again at 2:14 p. were approved by majority here, is con- questioned excused while the court Bamber- law, trary was, letter of the ger. regular jurors were other fact, specifically considered and directed not continue their deliberations. when the Rules study.1 were under responses As result of his questions rationale of the thirteen cases court, Bamberger from the excused. Circuit, from this v. Virginia States time, At about the previously dis- Corp., Erection 1978), alternate, charged Stiles, Nancy returned Chatman, and United States v. the courtroom and was noticed supports argument judge. He Miss deter- examined Stiles to jurors that substitution of after delibera- mine by any whether she had been tainted begun plain tions have is In Virginia error. courtroom, contacts the outside and satis- Erection, the trial court had allowed an fied himself she had not been. juror jury alternate to retire the to room judge The then recalled the re- eleven and remain there during deliberations. m., jurors maining regular p. 2:58 added procedure Finding impermissible, this panel, m., p. Miss Stiles to the and at 3:00 pointed 24(c) court out that patently “Rule jury the reconstituted retired. The provision replacement makes no for the of a jury begin did not the to delib- juror instruct who becomes after jury disabled the anew, erations nor was such an instruction retires to deliberate.” 335 F.2d at 871. requested by ver- guilty Judge defense counsel. A Boreman’s of construction the rule is p. dict was at 3:35 persuasive: reached m. history leading

1. The formu Committee rule makers were concerned establish- adoption ing procedures whereby lation and of Rule 24 discloses the courts could Supreme Advisory protracted pro- the United States avoid mistrials in cases. Court bar, Rules Committee on of Criminal Procedure cedure followed in the one which case'at permit rejected, seriously possibility the had considered of been considered and was not ting juror regular only contrary spirit a also to to the letter but the juror jury’s 24(c). during who becomes disabled of Rule rejected Virginia Corp., it the desira United States v. Erection deliberations bility constitutionality proce a and of such Supreme Project questioned by Bar dure had The American Association been Orfield, Standards Justice also Court. Trial in Federal Minimum for Criminal Jurors [See Cases, Project proposal. ABA a similar Criminal 29 F.R.D. 46.] 24(c) patently provision Justice Rule for on Minimum Standards for Criminal makes no Relating Jury juror replacement to Trial Standards of a who becomes dis- 2.7 at Draft, 1974). jury (Approved abled after retires to deliberate. Stiles, 24(c) Bamberger replaced to ter Miss of Rule is purpose The obvious provision regular jurors advance for and Miss adequate make the eleven Stiles juror regular where a meeting situation up group fact finders. This delib- made disqualified and incapacitated or becomes thirty-five additional minutes. erated upon his constitu- relies the defendant in which an alternate was the cases Unlike of twelve. right tional re- in the room under instructions to arising as necessarily delay expense and mute, main it must be assumed both starting a mistrial and consequences of Stiles, Bamberger and Miss as well as the avoided. new are thus afresh with a jurors, regular eleven discussed other defining the 24(c) explicit is in Rule participated jury’s and in the de- evidence an alternate and function of gainsaid It cannot be that thir- liberations. disquali- replacement time when his ponder different individuals did teen is, juror begins, prior fied the verdict fate of Evans and contribute to jury retires to consider the time when the him. against its verdict. also, my opinion, not desirable to It with the allow a who is unfamiliar It is certain that the alternate [here] join prior suddenly juror. legal standing as a Rule had no voting group participate without discharged. 24(c) required that he be prior group the benefit of the discussion. appeals, the New York court of strik- As place the We deem it most unwise to ing allowing down a statute such a substitu- judicial stamp approval upon this at- tion, pointed out: tempt court and counsel to circumvent “the alternate entered the un- the established rule and to substitute jurors original room after the eleven 335 F.2d at 871- procedures. authorized evidence, probability, and in all sifted preliminary po- their already formulated object, ap- Defense counsel’s failure to all, important sitions. Most each of consent, parent procedure did not jurors was aware of the out- insulate it from attack. Chatman involved positions of the others on the looks and when an inadvertent violation of questions presented by the and suf- mistakenly remained an alternate elapsed surely so that ficient time had part of its jury during with the the first among be- interplay of influences Virginia Erection was held deliberations. jurors operation had come into tween require ruling presence progressed ... to a If deliberations had error; again, objec- no plain alternate was stage where the eleven were in required. tion or motion for mistrial agreement, they were in a substantial Virginia Erec- distinguish In an effort to position present to a formidable obstacle case, the instant tion and Chatman from juror’s attempts per- to to the alternate that there were majority emphasizes remaining the eleven suade and convince jurors in fact thirteen never jurors.” People Ryan, v. 19 agree that this is time.2 I room at the same 199, 224 N.E.2d N.Y.2d 278 N.Y.S.2d so, that this persuaded am nonetheless but I (1966). 710 jury of thir- reality by tried case was in addition, jurors In the eleven in- initial deliberations teen members. The the views of the had the benefit of have other elev- Bamberger and the volved Brian views were juror, which original excused together remained regular jurors. They en Then, to the alternate. af- not available fifty minutes. approximately for approv- judicial stamp unwilling put Virgin- of to “the readily unlike I concede that this 2. contrary any procedure that progeny, al” on not involve does ia Erection and its specifically language that was the law and privacy, in the same at least issues of by however, am, writers. the Rule and considered I do. sense that those cases III. to an eleven member jury, and Baccari, v. (10th States majority suggests Evans that here 1973) (emphasis added), Cir. opinion to procedure consented and thus “[ajfter states that discussing right various alter- any might waived he otherwise have natives, agreed it object. parties had to At least one eminent all that author- ity suggests that such a consent in situation should be recalled and the will day. Wright not save the Professor deliberations continued.”4 error, “it states that is reversible even I am to accept theory unable that consented, though may defendant have to there is a Patton waiver when criminal permit stay an alternate to with the jury presented defendant is never an oppor- have they retired to deliberate or to tunity among to choose all of the available an substitute alternate after deliberations options. all, First Evans was called begun.” Wright, have Federal Practice upon to elect between a mistrial and a Rule Procedure, (1969) (emphasis 388 at 52 23(b) Instead, trial. he was (footnotes omitted).3 added) told that he would either suffer a mistrial Even consent if could cure error here or allow the alternate replace to Bamber- waiver, give to an rise effective I am ger. short, In he was forced to choose to unwilling effectively find that Evans between impermissible a mistrial and an rights meaning waived his within the procedure being given opportu- without an States, Patton v. United nity to expressly consider avenue made 253, 74 (1930), S.Ct. L.Ed. 854 which sets available by the Rules. This me to is nei- forth the criteria for such a waiver of con- ther an informed consent nor knowing jury rights. stitutional It is true that Ev- waiver. waiver, Without such consent and preferred ans he personally did state that the conviction cannot stand. United States add the alternate to the rather than to Lamb, However, 23(b) have a mistrial. Rule pro- Federal Rules Criminal Procedure however, I re-emphasize, I that find the explicit procedure avoiding vides an a procedure employed error, plain here to be potential regular juror mistrial when a is uncurable by consent. Patton was decided unable to continue. The record does not before adoption of the Federal Rules of any 23(b). mention discussion of Rule As Criminal Procedure and it clear seems out, majority points parties stip- did Rules 23 and 24 control the case hand. during argument subject ulate oral Virginia Corp., Erection supra, at 870- 23(b) up, brought they 71. probable it appears conceded that most “expressed Evans no conclusion for or IV.

against an eleven man jury.” superficial This, my mind, There is a distinguishes appeal almost cases brethren, upon my relied for in scheme that would trial judge Hender- enable a Lane, son v. prevent protracted a second trial in a specifically stipulate defendant refused to incapacitated lawsuit when a becomes Elsewhere, Wright opinion Professors Miller note in Baccari reveals trial permits concerning rule an alternate “[t]he made an affidavit a confer- regular juror only prior part ence to the time which was not a of the record. A pro- retires to verdict. review of this consider It affidavit obtained from the Tenth vides, asserted, mandatory language, part that an shows that in alternate “[ajfter discussion, replaced has a brief who both defend- ants, personally, discharged’ ‘shall both defense counsel stat- be when the retires.” Miller, they Wright ed that did not want a mistrial declared & Federal Practice and Proce- jur- dure, (1971) (emphasis and did not want to added) continue with § 2484 added). (emphasis (footnote ors." omitted). This demonstrates considered defendants 23(b) option. begun.5 How- have ever, unwilling uphold proce- I am this case. If we enforce employed

dure written, judges have clear trial

the rules as permit follow. If we explicit guides Rules, where do we

deviations from the jurors can be

stop? many How what circum- panel? Under

added to a stage in the delibera-

stances and at what the substitutions cease?

tions must

Therefore, although I concur in the ma- evidentiary ques-

jority’s handling of the

tions, agree I cannot with its affirmance issue.

based on the constitution reasons, I dissent and would

For these a new trial.

award COMMISSION,

FEDERAL ELECTION

Plaintiff-Appellee, LANCE,

T. Bertram

Defendant-Appellant.

No. 78-1859. Appeals, States Court

Fifth Circuit.

Jan. judicial economy have It this was not a where considerations should be noted here trial, only protracted substantial relevance. that lasted for one but one Hence, days. and one-half this is not a case

Case Details

Case Name: United States v. Robert Evans, Jr.

Court Name: Court of Appeals for the Fourth Circuit

Date Published: Dec 18, 1980

Citation: 635 F.2d 1124

Docket Number: 79-5290

Court Abbreviation: 4th Cir.