*1 from present distinguishable case are tive because it lacked adequate warnings instructions, those in Jordan. counsel for Plaintiff has advised the undersigned that he Following applicable prece does not intend for this claim to be consumer-expecta law of dent and Ohio jury. submitted to the 2307.75(A), tion, § the district Perhaps greater significance is the in refusing abused its discretion to instruct parties fact that the had an agreed-upon consumer-expectation on the test where statement read to the during voir dire unexpected performance evidence of was which made no mention of a failure-to- at trial. presented consumer-expecta The theory. effect, warn parties, The in stipu- tion test is one of two distinct tests for lated to drop the failure-to-warn claim. defect, product in which evidence of unex majority references fact that the pected performance is sufficient to infer plaintiff complaint; did not amend his product defect. Because the court abused however, done, all, only that is if at if a its discretion in failing give request being claim is drop added. To a claim instruction, ed we REVERSE the there is no formally need to amend the district judgment denying court’s the con complaint in writing. proceed- sumer-expectation RE instruction and ed during trial on the basis of the failure- MAND for a new trial. longer to-warn claim no being the case. It entirely appropriate was for the defen- V. dants to do so. It is hard to conceive of a reasons, foregoing For RE- we presented clearer case of waiver than is plain- the district VERSE court’s denial of appeal.1 the record before onus requested tiffs instructions the failure- consumer-expectation to-warn and test defect,
product and REMAND for a new opinion.
trial accordance with this GUY, JR.,
RALPH B. Circuit Judge, part concurring dissenting part. America, UNITED STATES I concur in all of the court’s opinion Plaintiff-Appellee, except part III-A. I plain- would hold that tiff waived his failure-to-wam' claim and (98-3475); Travis COLLINS William that on retrial this not issue be sub- (98-3479), J. Ward Defendants- jury. mitted to the Appellants. Shortly plaintiffs before trial in- counsel 98-3479, Nos. 98-3475. plaintiff formed defense counsel that was abandoning his failure-to-warn claim. Appeals, United States Court of plain- This is attested to the fact that Sixth Circuit. tiffs trial brief did not forth set failure to warn as one of his theories. That such is Argued: Jan. the case further demonstrated defen- Aug. Decided and Filed: dants’ trial brief stated:
Although pled Plaintiff has a claim un-
der Section asserting [O.R.C. 2307.76]
that the 1993 Volvo 850 GLT was defec- dissent, response my specific 1. In footnote four has rather the additional actions taken majority opinion. my been added to the plaintiff’s unequivocally waiving counsel non-responsive. view the footnote is The is- failure-to-wam claim. order, pretrial sue is what was but *3 briefed), Rapp (argued
William J. and Cincinnati, Ohio, Defendant-Appellant for Collins. Johnson, Kelly
W. Assistant Federal briefed), (argued Public Defender and Cin- cinnati, Ohio, Defendant-Appellant for Ward.
Christopher (argued K. Barnes and briefed), (briefed), Terry Lehmann Timo- (briefed), thy Oakley D. Office of the Unit- Cincinnati, Ohio, Attorney, ed States Plaintiff-Appellee. JONES, NORRIS, SILER,
Before: and Judges. Circuit J., NORRIS, ALAN E. delivered the court, SILER, J., opinion in JONES, joined. (pp. NATHANIEL R. J. 466-67), separate concurring delivered a opinion.
OPINION NORRIS, Judge. ALAN E. Circuit Defendants Travis Collins and William charged conspiracy Ward were with robbery, and robbery, commit bank bank during guidelines govern asking a crime of violence some use of a firearm § § of 18 U.S.C. questions. any ques- violation Please withhold (d). 2113(a), 924(c), § § was Ward completed until after a has tions witness being posses- a felon in charged also testimony. interrupt his or her Do not a firearm violation 18 U.S.C. sion of examination of witness order 924(a)(2). 922(g) and question. ask a When a witness has following á trial. were convicted testimony, finished his or then if her erred in allow- They argue that the court question there is some substantial ing jurors denying to ask mind, your you may inquiry address an motions for a new trial based on their by writing to the witness newly discovered evidence. also as- Ward it piece paper, passing to the permitting serts that the court erred *4 deputy. your question courtroom If is prejudicial-testimony by government a wit- one, appropriate an I will ask it of the ness, allowing government the to ask witness, I will then permit and counsel actions, witness about certain Ward’s alibi parties any appropriate for the to ask theory jury and a defense refusing give follow-up questions. Finally, maintain instruction. defendants improperly that the court calculated then- trial, During appears the the court to have sentences. jurors if they asked the had for Because resolution of defendants’ issues each An witness about to leave the stand. jurors’ concerning questioning of witnesses example what the court asked is: “La- un- challenge Collins’ his sentence gentlemen jury, dies and is there application der the second note to U.S. anyone question who has a substantial in Sentencing § Manual 2K2.4 Guidelines you his or her mind that put would like value, precedential those have issues before he leaves the [the witness] witness remaining will be below. The addressed occasions, stand?” in- On some the court issues raised defendants are addressed question dicated that it would not ask a unpublished in ah appendix opinion. to this inappropriate, because it was often ex- plaining question that a appropri- was not I. ate for “technical/legal pre- reasons.” The 15, 1996, On November Ward went into liminary and final instructions also bank, a. pointed shotgun at sawed-off jurors informed the judge when the Demarest, Melody teller and demanded objection question, sustained an to a the money. respond, could Before Demarest jurors ignore had to the and not off, shotgun causing the went her exten- guess at the answer. injuries. sive fled the without Ward bank April Collins was any money escaped in a car sentenced 1998. driven sentence, Testimony Collins. at trial indicated that calculating grouped his the court shotgun robbery the used in the bank had together robbery conspiracy the bank through burglary been obtained the began counts and with a base offense level Disque’s Paul home. robbery guideline. of 20 under the See Sentencing U.S. trial, At judge Guidelines Manual the allowed 2B3.1(a) (1997). § adjusted The court the propose questions to be asked of wit- level, base offense it increasing two nesses. The record does not reveal wheth- er levels because the offense involved the prior counsel knew to the trial that the judge property juror questioning. intended to allow of a bank and six levels because The court that: permanent informed the Demarest sustained and life- injuries. threatening id.
This not have a Court' does rule 2B3.1(b)(l), (b)(3)(C). § against point,' At asking by ju- of does, however, rors. impose adjusted The Court Collins’ base offense level was 28. Next, guideline the court looked to resulted in a sentencing range of 97 to 121 2K2.4, § penalty which addresses the for a Adding months. mandatory defendant convicted under 18 U.S.C. months’ consecutive sentence of 18 U.S.C. 924(c). Application 924(c), § guide- § note to that the resulting sentencing range line states: was 157 to 181 months. After comparing ranges with and without the 18 U.S.C. under
Where sentence this section is 924(c) § conviction, the court determined imposed conjunction with a sentence upward that an departure of two levels offense, specific for an underlying was warranted order to bring Collins’ for possession, offense characteristic up sentence contemplated to the level use, explosive an discharge of or fire- guidelines absence of convic- 2B3.1(b)(2)(A)-(F) (Rob- § arm {e.g., 924(c). tion under 18 U.S.C. bery)) applied not to respect be guideline underlying for the offense. Finally, departed upward the court two cases, 5K2.0, guideline In a few levels under upon the offense level for the based burglary Disque’s'home. Therefore, underlying offense determined under preceding paragraph may Collins’ total result offense level was 32. He was that, guideline sentenced to 60 months for range conspiracy when combined count; mandatory consecutive sen- months the bank robbery *5 count, 844(h), § tence to run concurrently under 18 U.S.C. with the con- 924(c), 929(a), sentence; § § produces spiracy or a total 60 months for the 924(c) count, § maximum 18 U.S.C. penalty is less than the to run consecu- tively maximum of guideline range robbery the bank count.
would have resulted had there not been
a count of conviction under 18 U.S.C. II. 844(h), 929(a) 924(c), (ie., § § §or Questions A. by Jurors guideline range that would have resulted allege Defendants error in the dis use, if possession, the enhancements for trict jurors court’s decision to allow or discharge of a firearm ap- had been during witnesses the trial. While plied). case, upward In such a an de- addressed, this court not previously has parture may be warranted so that the issue, this we agree with other United 844(h), § conviction under 18 U.S.C. that, Appeals States of 929(a) Courts while allow 924(c), § §or does not result in a jurors ing to ask during criminal punishment. decrease in the total An permissible trials is and best left to the upward departure paragraph under this judge, discretion of the trial the routine shall not exceed the maximum of the practice juror questioning of should be dis guideline range that would have resulted Nonetheless, couraged. we discern no had not there been a count of conviction abuse of discretion in this case. 844(h), 924(c), § § under 18 U.S.C. or 929(a). § There are a dangers number of inherent The court determined that if in allowing juror questions: jurors Collins had can find not been convicted under 18 U.S.C. themselves removed from their appropri- 924(c), § fact-finders; his base offense level under ate jurors may role as neutral guideline 2B3.1 would prematurely have been 33. An evaluate the evidence and offense level of adopt 33 and a criminal history particular position to the weight as III category of would have resulted a of that evidence considering before all the sentencing range facts; of 168 to 210 pace may months. of trial delayed; be The court then looked at Collins’ sentenc- lawyers there is certain awkwardness for 924(c) ing range with the object 18 U.S.C. con- wishing juror-inspired ques- which, tions; viction with an offense level of 28 undermining and there' is a risk of III, and a litigation strategies. See United v. history category criminal of States (2d Cir.1995) allowing (citing sion that trial did not err Ajmal, 67 F.3d cases). jurors’ Ajmal found an abuse light questioning). lack knowl evidence, juror ques rules of of discretion in a district court’s decision to edge improper prejudicial. or See may juror questioning ques- be invite when such tion Rubber Goodyear Tire & tioning by DeBenedetto was “not necessitated the factu- (4th Cir.1985) (dis Co., F.2d drug conspira- al intricacies of banal th[e] juror questions a case cussing prompted cy” urging and was not ,hearing of other posed within jurors themselves. Id. at 14-15. The court declines to ask a jurors). aWhen swayed by court was not the fact that the juror may feel question, questioning procedures previ- district court followed has been thwart pursuit of truth her ously out set Second Circuit .for does not understand. See ed rules she juror questioning because “such measures expressed also been over id. Concern has purge alone cannot the harm caused among that a sense of camaraderie risk juror questioning extensive in the case at sig them to attach more jurors may lead (“To hand.” at 15 Id. hold otherwise by fel questions propounded nificance to juror questioning would sanction of wit- posed by low than those counsel. circumstance, long nesses in so as id. at 516-17. appropriate prophylactic measures are adopted. accept propo- We cannot such a hand, On the other there benefits to are sition.”). present in the case by jurors: only may allowing questions point government’s out that the evidence questions result in more attentive such recollection, only eyewitness involved testi- jurors, but advance mony concerning conversations defen- by alleviating truth uncer the search for dants, simple forensic defen- reports; minds, jurors’ clearing up tainties simply presented dants an alibi defense. confusion, attorneys points alerting *6 that further elaboration. See United bear government suggested The has not Sutton, 1001, States v. 970 F.2d 1005 n. 3 Instead, complex. case was govern . (1st Cir.1992) appears argue important ment to that the questioning preju is whether the maintain that Defendants court party way diced a in a that affected the juror by allowing abused its discretion litigation. outcome of the See United questions because the facts of this case (8th 1428, Gray, v. States 897 F.2d 1429 sufficiently complex warrant to Cir.1990); see also United States v. Ba and, if questioning ques- even such (8th scope-Zurita, 68 F.3d Cir. court tioning appropriate, was did not 1995) (focusing argument by on absence of properly implement prophylactic mea- prejudiced that by ques defendant he was argument in sures. We will address each tioning; not or raising addressing question turn. complexity of involving of case cocaine con Complexity spiracy). 1. Case of juror (cid:127)Although
Defendants
first contend that
this
has not addressed
questioning
propriety
juror
should be reserved for com-
of
questioning, we have
cases,
plex
maintain that
their
practice
questioning by
and
case
evaluated the
of
context,
sufficiently complex.
judges.
was not
In that
United
we have indicated
Appeals
judge may
States Court of
for the Second that a trial
be warranted in
present
Circuit has held that a
in a
asking questions
case should
trial for three rea-
(1)
sufficiently extraordinary or
for
compelling
lengthy,
sons:
clarification
a
(2)
trial;
complex
if
justify questioning
circumstances to
of wit-
for clarification
14;
Ajmal,
attorneys
unprepared
obstreperous,
nesses. See
67 F.3d at
see also
are
or
Sutton,
if
(relying
becoming
were admonished when the court sus- discretion, In exercising ranted. their tri objection question, they tained an to a judges potential al must weigh benefits ignore guess were to and not juror questioning against possible Therefore, at its answer. the court did and, if juror ques risks the balance favors substantially address the concerns raised tions, employ measures to minimize the by defendants. risks. aWhen court decides to allow questions, promptly counsel should be in defendants, the court According trial, At beginning formed. of the questions did not mention final jurors should be that they instructed will no instructions. Yet there is indica questions, be allowed to submit limited request tion the record that defendants important points, and informed of the an In light ed such instruction. they may manner do so. The jurors court’s final instructions that that, if explain jurors should do ignore objections questions for which questions, proposed submit some questions had been sustained and evidence con may they prohib not be asked because are exhibits, only testimony, sists of sworn evidence, ited rules of be stipulations, say any we are unable to lack rephrased comply with the rules. The of an specifically addressing ju instruction jurors should question be informed that a plain ror amounted error. ing juror should not draw conclusions from the of or Finally, rephrasing maintain that failure to ask a defendants proposed question. Jurors should improperly the court submit solicited questions writing their jurors without disclos by asking from if the had ing jurors. the content to other *8 The court questions every for each and about witness attorneys and the should then review the to leave the stand. While the court’s con questions away jurors’ hearing, from the duct in regard this did not amount attorneys time the should be case, allowed reversible error in this routine soli an opportunity present any objections. citing of questions could risk reversal un The court may modify question a if neces United der other circumstances. Cf. sary. When the court determines that a v. Thompson, (2d States 442, 76 F.3d 449 asked, juror Cir.1996) question should be it is the (disapproving of the invit court’s judge pose who question should to the ing juror questions as each witness was witness. stand). about to leave the
We note that implement the court did a think it We also would be wise for screening process by a having jurors write district court to consider several addi-
465
reason,
argues
tional issues. The court should consider
he
that
the court could
op- depart upward only
it wishes to allow counsel an
one level.
whether
portunity
re-question
a witness after a
essence,
argument
Collins’
focuses
juror question
posed.
has been
See De- what
application
is meant when the
note
Benedetto,
1 (noting
B. Sentence under Guideline 2K24 Edmond, 95-10322, United States v. Nos. 95-10342, 95-10365, 95-10400, argues upward Collins 1996 WL (9th 490188, 1996) departure imposed Aug.27, (unpublished), the district court *4 Cir. denied, upon reliance paragraph the second t. 525 U.S. cer (1999) 1069, 143 note 2 to 2K2.4 guideline (focusing is excessive. S.Ct. L.Ed.2d up He range maintains the maximum on the number of months excess of the depart to which the court could was 168 to maximum to which defendants were sen tenced; By adding bring 210 months. two levels to that court could have indicating up him to a adding departed upward only level and then a certain number *9 924(c) defendant). 60 months for the 18 U.S.C. con months for each Collins does viction, placed actual range argue the court Collins not that his sentence exceed points range, any of 181 to 211 months. He out that ed the maximum nor do seewe range higher support this than record that would extends one month indication the Therefore, we find that the maximum allowed note 2. For this such an assertion. 466 in departing practice prejudiced right not err the his to a fair
the district court did DeBenedetto, 2 guide- under note trial. 754 at upward two levels See F.2d 517. process challenges In the context of due line 2K2.4. trial, prejudice .analysis the fairness of a III. generally requires a defendant to demon n purported that strate the constitutional vi reasons, rulings foregoing For the olation affected the outcome. trial’s respect to allowing the district court with 466, Rogers, v. F.3d United States 118 475 calculating from Col (6th Presser, Cir.1997); United States v. lins’ are AFFIRMED. sentence (6th Cir.1988). 1275, 1281 844 F.2d JONES, NATHANIEL R. Circuit the defendants in this While case have Judge, concurring. that not demonstrated the allowance of juror generally questioning prejudiced right While I concur Court’s their trial, analysis, thought apparent I it neces- a fair it well-reasoned nevertheless is that juror sary questioning that court erred in permitting underscore district permissible only practice is the most rare and at all. forewarning Without Moreover, parties, of circumstances. compelling district court announced on the extraordinary juror even on opening day questioning those occasions of trial that allowable, practice when the is it must be would be allowed. Neither in this initial ju- announcement, narrowly legitimate tailored to achieve point nor at other trial, objectives way in a that specifically ridical does not did the district court prejudice right justified juror the defendant’s to a fair that ques- state the reasons Bush, tioning. trial. See United v. 47 F.3d The facts any- States involved here are 511, (2d Cir.1995) (providing juror 515 thing complex. government’s but case “strongly should be discour- questioning entirely testimony consisted of witness Cassiere, age[d]”); evidence, v. 4 simple United States F.3d forensics and the defen- (1st (“[Juror 1006, Cir.1993) question- 1018 simply they dants’ alibis were ing] exceptional should be reserved for somewhere else at the time of the crime. situations, and should not become the rou- Perhaps implicitly conceding point, tine, cases.”); complex government even United does not allege compel- even (8th Lewin, 145, rather, v. F.2d 147 ling juror States 900 reason for questioning; Cir.1990) (“[The argues does not condone it employed court] the district court practice inviting juror questions.”); safeguards protect sufficient the defen- Goodyear DeBenedetto DeBenedetto v. prejudice dants from and that the actual Co., (4th Tire & Rubber 754 F.2d questions asked were innocuous.1 See Cir.1985) However, (holding prac- that because “the Br. at approach U.S. 15. this fraught tice of questioning necessity predicate justi- obscures the of a dangers orderly can undermine the practice fication for the it to render consti- trial,” progress tutionally permissible. of the it should be used See United States circumstances”). (2d Cir.1995) only in “compelling Ajmal, Even 67 F.3d if a defendant (“Regardless procedures adopted shows that district court improperly juror questioning, allowed how- the district court to questions, vet ever, the also show that ample justification must there must be defendant Benedetto, government, ("One majority, 1. The simply like the also at- F.2d can- tempts unavailing comparison to make the compare questioning by the trial that the district court itself has wide discre- tion to judge is trained in the law and instruct- —who U.S. Br. at witnesses. See 17. justice ques- ed to ‘see that is done’—with the However, surely compare ques- one cannot tioning by members of the are un- —who tioning by uniquely empow- a court officer law, tutored in the and instructed to sit as a ered to discern and declare the' law with fact-finding body.”). neutral questioning by jury laypersons. See De-
467 Despite practice improvident disfavored the district court’s adopting the juror questioning, would allowance of the defen- instance. To hold otherwise first inability prejudice of in dants’ to demonstrate juror questioning witnesses sanction circumstance, requires that we affirm their convictions. any long appropriate so as witnesses, Wurster, variety A of adopted.”). including measures are prophylactic Reidmiller, Hembree, and practice may ju- Schweinzger, find favor with at- That the justification for al- tested to Ward’s and Collins’ involvement rors is an insufficient robbery. Reidmiller and lowing it. Schweinz- ger testified that Ward confessed that he articulate, failing In addition bank, had robbed the Cardinal State record, sufficiently compelling ratio- other witnesses attested to Ward’s allowing juror questioning, nale for preparation Collins’ activities in for the prophylactic measures did district court’s short, robbery. notwithstanding the integrity of the adequately protect permission ju- district court’s erroneous process. At the close fact-finding of each questioning, ror the defendants have not testimony, spe- witness’ the district demonstrated that this error changed the cifically it had asked the whether Rogers, outcome of their trial. See 118 respective for the witness. On 475; Presser, F.3d at 844 at F.2d 1281. It juror ques- occasions when those unusual majori- this basis that I concur in is on courts tioning appropriate, is district ty’s judgment that the defendants have not inviting encourag- refrain from should pro- demonstrated violation of their due ing jurors questions. to ask Such solicita- a fair trial. right cess promote juror questions apt tion of of the areas of disagree- Outside above appropriate questioning beyond legally ment, aspects majori- I concur in all thereby compromise and to bounds ty opinion. right process. to due defendant’s 324, Douglas, v. F.3d at United States 81 (2d Cir.1996) (“[Inviting ques- question- risks an undue extent of
tions] jurors
ing might even cause some fulfilling
feel that are not their re- they
sponsibilities they questions.”); ask unless at 14-15
Ajmal, (rejecting F.3d practice establishing at the outset of Kathy STUPAK-THRALL, et juror questions trial would be al- al., Plaintiffs-Appellees, practice inviting lowed and the at end of each wit- to ask Further, testimony). ness’s while the al., GLICKMAN, Defendants, Daniel et court did that it should instruct Proposed Society, al., The Wilderness et ignore questions by lawyers asked ppellants. Inte rvenors—A sustained, objections see J.A. No. 99-1353. 807, specifically emphasize it did not implications should not be drawn Appeals, United States Court of juror questions. from unasked In these Sixth Circuit. ways,
various the district court failed to Argued: sufficiently rigorous prophylactic use mea- Dec. process protect
sures to the due interests Sept. Decided and Filed: However, I under- defendants. juror question-
score that the allowance of instance,
ing, legally the first was not
appropriate in this case.