Lead Opinion
Introduction
A federal jury convicted Gilbert Turrietta of assaulting a law enforcement officer. The jury reached its verdict despite having never been sworn. The problem would have gone unnoticed were it not for a belated objection from Turrietta’s attorney, Charles Knoblauch. He knew from the outset of the trial that the jury had not been sworn, yet strategically reserved any objection until a guilty verdict was returned and the jury had dispersed.
A verdict delivered by an unsworn jury may present an issue of constitutional dimension, as Turrietta contends. But a compelling threshold issue prevents us from resolving that issue. By lying behind the log, Knoblauch failed to preserve the issue he wants us to decide. Quietly harboring an objection until it cannot be addressed effectively is the functional equivalent of making no objection— at the very least, a forfeiture.
Background
A team of U.S. Marshals needed to execute a warrant for Turrietta’s arrest. Acting on a tip, they converged on his brother’s residence in south Albuquerque. Moments after arriving, they found their fugitive, Turrietta, holed up in a backyard tool shed. Crouched behind a bookshelf, he showed no signs of budging, so officers tried flushing him out with pepper spray. When the spray proved ineffective, Deputy U.S. Marshall Vincent Gambone and a second officer entered the shed to remove him by force. Turrietta resisted, grabbing Gambone by the shirt and pulling him into the shed. A struggle ensued during which Turrietta bit Gambone’s forearm.
Turrietta was tried -to a jury on one count of assaulting a federal officer. See 18 U.S.C. § 111(a)(1) & (b). Two juries (unrelated cases) were picked from the same venire, one after the other. Prior to voir dire in Turrietta’s case, the courtroom clerk administered an oath to the venire. All members of the venire swore to “truthfully answer all questions that shall be asked of you touching on your qualifications as jurors.” (Appellee’s Br. at 8.) Turrietta’s jurors were seated in the jury box and then told to report back in two days.
Against this rather compelling evidence, the defense presented only the testimony of David Turrietta, the defendant’s brother and the owner of the residence where the arrest took place. Although David was present during the arrest and could hear his brother struggling with the officers, he could not see inside the shed and did not say whether his brother bit Gambone. To the extent his testimony conflicted with that of the officers, it was over matters collateral to the assault charges — the color of David’s shirt, for instance, or his precise location in the house when the officers arrived. Gilbert Turrietta did not testify.
After less than two hours of deliberation, the jury returned a guilty verdict. It was polled at the request of the defense; each juror confirmed the verdict announced by the presiding juror. The trial judge accepted the verdict, thanked the jurors for their service, and extended an invitation for them to tour his chambers. The court was ready to adjourn when Knoblauch cut in: ‘Tour honor?” he asked, “I have a couple of small matters I’d like the court to hear.” The court asked Knoblauch whether he wanted the jury in or out. “The jury can be out,” he replied. (Tr. at 366.)
Once the jury was released, Knoblauch promptly moved to set aside the verdict. As it turned out, the “small matter” he wanted to discuss with the court wasn’t small at all. “My recollection might be false or incorrect in some manner,” he said, “but I don’t recall the jury ever being sworn in. When we selected the juries, the other jury was sworn in, but I don’t recall this particular jury being sworn in.” (Tr. at 366-67.) The judge was not persuaded: “I think the jury was,” he said. “I don’t remember, either, but I always do it. They know they’re under oath anyway.”
Discussion
Turrietta, still represented by Knoblauch, now contends the court’s failure to administer the oath deprived him of his Sixth Amendment right to trial by jury. He maintains it was error to allow the verdict to stand once the oversight had been brought to the judge’s attention.
Federal courts have limited authority to correct errors forfeited at trial because they were not timely raised. Fed. R.Crim.P. 52; see Olano,
Knoblauch’s considered and measured silence demonstrates the need for a contemporaneous-objection rule. He did not invite error, but he compounded it. The law takes a dim view of such tactics.
Plain error review
Turrietta cannot satisfy the plain error test. Even assuming the failure to administer the oath was constitutional er
A. Whether the district court committed error
The right to trial by jury in criminal cases is secured by two constitutional provisions. Article III, sec. 2 provides, “The Trial of Crimes, except in Cases of Impeachment, shall be by Jury ...” U.S. Const, art. Ill, § 2, cl. 3. The Sixth Amendment adds flesh to the guarantee, providing, in relevant part, “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed ...” U.S. Const, amend. VI.
Turrietta contends a sworn jury is a critical ingredient of the right to trial by jury. In his view, when the Constitution refers to “jury,” it refers to one so constituted at common law, where the oath was an accepted feature of a duly impaneled jury. His unstated premise is that the Constitution preserved the common law requirements of the jury, with the institution’s history setting the boundaries of its constitutional scope. He relies on the Supreme Court’s decision in Patton v. United States,
But Patton has been obsolete since 1970, the year the Supreme Court revisited its approach to the Sixth Amendment and changed course. See Williams v. Florida,
Viewed in this light, Turrietta’s emphasis on the common-law history of the oath is misplaced. No longer can we assume that features once implicit in , the very concept of the jury have constitutional stature. The appropriate question, rather, is whether the oath is essential to the purpose served by the jury. That purpose “is to prevent oppression by the government,” with the central function of the jury lying “in the interposition between the accused and his accuser of the commonsense judgment of a group of laymen, and in the community participation and shared responsibility that results from that group’s determination of guilt or innocence.” Id. at 100,
Although we do not resolve the issue here, we can readily perceive a difference, in terms of this central function, between a sworn and an unsworn jury. Sworn jurors stand before a judge with uplifted hands and recite an oath designed to impress a duty on their conscience. They promise to carry out their charge — to render a verdict in accordance with the evidence — conscientiously and impartially, based on the court’s instructions on the law. Whether swearing an oath makes jurors more reliable factfinders is a question we are unequipped to answer, but the principle behind the exercise is sound: A juror impressed with the seriousness of his charge is more likely to be attentive at trial and, in turn, more likely to carry out his duty faithfully, with due respect for the ideals underlying the criminal process. See United States v. Martin,
Warranted or not, the presumption that jurors will honor the oath has been long at work in the federal courts. See, e.g., United States v. Marchant,
The gravity of jury duty is first impressed upon the jurors prior to voir dire examination, when the venire swears to answer questions truthfully. These affirmations provide certain assurances to the parties: the case will be tried impartially, free from prejudice and predisposition; jurors will honor the presumption of innocence; and jurors will hold the government to its burden of proof. See Beckman,
Trust in the oath continues during jury selection, where a pledge of impartiality can counteract beliefs or experiences otherwise suggestive of bias. See United States v. Bedonie,
And while we are no longer constrained by common-law principles in determining the extent of the right to trial by jury, an examination of the oath and its constitutional role would be incomplete if it failed to account for historical understanding and practice. The oath has been integral to the factfinding process since ancient times, and there is no disputing Turrietta’s assertion that it was an accepted feature of a properly constituted jury at common law. See United States v. Cox,
Given that the oath predated the development of the modern jury system, it is difficult to imagine the jury gaining legitimacy as a factfinding body without a swearing requirement.
But even as a factfinding body, the legitimacy of the jury still hinged on the reliability of the oath, and the reliability of the oath, in turn, on the individual juror’s reputation in the community. The jury consisted of locals whose oaths were most trusted, whether by virtue of their credibility, their expertise, or their personal knowledge of the facts.- Id.; Jane E. Findlater, Retrial After a Hung Jury: The Double Jeopardy Problem, 129 U. Pa. L.Rev. 701, 705-06 (1981). So even as the oath lost favor as a mode of proof, it remained integral to the jury’s truth-seeking function and its legitimacy as a “symbol of authoritative knowledge.” Kadoch, supra at 12 (“At the time and place, the basis of the trust placed in the jury’s voice had rational validity because jurors were selected from those most likely to know and for those whose oaths were believed to be beyond reproach.”). It is a testament to the trust the English placed in the oath that they would commonly exclude atheists from serving on juries for fear they would have no motivation to honor their oaths, a practice carried over in the American system, where it was widely used until the end of the 19th Century. See Belcher, at 292-93; see also State v. Washington, 22
In short, the oath is bound up with some of the great principles giving rise to the very concept of a jury trial. With its appeal to divine judgment and its enduring impression on the conscience of the juror, the oath has “moved seamlessly” from medieval modes of decisionmaking into the modern courtroom. See Kadoeh, supra at 7. Its history, together with certain common sense assumptions about the way it works in practice, reveals a strong relationship to the jury’s reliability as a fact finder. Whether the relationship is strong enough to afford the oath constitutional stature is a question we leave unanswered, for even assuming Turrietta could demonstrate a constitutional violation, he cannot satisfy the second and fourth prongs of the plain error test.
B. Whether the error was plain
It is not enough, under Rule 52, that there is “error”; there must be “plain” error — that is, a “clear” or “obvious” error that should have been readily apparent to the district judge, such that failure to object would not deprive the court of a reasonable opportunity to correct it. Olano,
While we respect Turrietta’s constitutional claim, his argument sounds in history rather than law. We cannot say it is obvious, under the formulation set forth in Williams, that failure to administer the oath was constitutional error. First, the issue is one of first impression in the federal courts, and we are aware of no binding authority, whether in the form of a constitutional provision, statute, rule, or judicial decision, addressing whether the Sixth Amendment right to trial by jury necessarily requires the jury be sworn. Moreover, the absence of a statute or rule is especially telling, not only because swearing requirements regularly appear in less weighty contexts, see, e.g., 5 U.S.C. § 303 (Executive Department investigations); 8 U.S.C. § 1357(b) (immigration enforcement); 11 U.S.C. § 727(a)(4)(A) (discharge in bankruptcy); 12 U.S.C. § 73 (national bank directors), but also because it would be farfetched to infer from the volumes of statutes and rules relating to criminal procedure generally and jury trials specifically — laws codifying principles as fundamental as the right to a jury in
Turrietta draws a different conclusion from the absence of a federal law addressing the swearing requirement. In keeping with his position that the right to a sworn jury is so universally accepted as to be taken for granted, he contends the requirement was left out on the assumption it was preserved by the Constitution. Its absence, in other words, is proof of its significance. Since this assertion can be neither disproven nor verified, the best that can be said for it is that it ends in a wash. Congressional silence is open to the explanation that the swearing requirement was thought to be incorporated by the Constitution. But it is equally plausible that the requirement was never meant to have the force of law. Tumetta’s theory would have more appeal if its converse were true — that is, if federal criminal procedures were designed to be exclusive of rules of constitutional law, so that the existence of one meant the absence of the other. But there are numberless federal rules with constitutional analogs, many of them orders of magnitude more established than the one asserted here. See, e.g., Rule 4 (warrant requirement); Rule 6 (grand jury indictment); Rule 11 (knowing and voluntary plea); Rule 18 (venue of trial), Rule 23(a) (trial by jury). Turrietta would have us believe, implausibly, that above all the constitutional guarantees embodied in the rules of criminal procedure, it was the right to a sworn jury that was too obvious to bear repeating.
Judicial decisions provide little in the way of clarity. At least one leading treatise has concluded the question whether the oath is required in federal courts is up in the air. See Romualdo P. Eclavea, et ah, 47 Am.Jur.2d JURY § 192 (2011); see also United States v. Pinero,
We recognize that error not necessarily contrary to settled law can be “plain” if it relates to a “well-established” constitutional principle, Laureys,
“At a minimum, court of appeals cannot correct an error pursuant to Rule 52(b) unless the error is clear under current law.” Olano, 507 U.S at 734,
C. Whether the error affected Turrietta’s substantial rights
A plain error is not redressable on appeal unless the defendant can show it affected his “substantial rights.” This is simply another way of saying the error must have been prejudicial. Olano,
Whether failure to swear in the jury should be considered structural error is a more difficult question. On the one hand, the consequences of failing to swear in the jury are difficult to ascertain, and errors that defy measurement are strong candidates for the “structural” label. See Waller v. Georgia,
On the other hand, not all unquantifiable errors are structural; the Supreme Court has stressed that errors which do not contribute to the verdict should not be reversed unless their effect is fundamentally unfair, with fundamental fairness being a question of whether the defendant has been provided an impartial adjudicator and an attorney to help him defend the charges. See Rose v. Clark,
We can postpone resolution of this question. Even if we were to credit Turrietta arguments about structural error, we have already determined the error was not “plain” under current law such that we may overlook the absence of an objection. And, as it will soon become clear, even if Turrietta could satisfy the first three steps, we would not exercise discretion in his favor because the error did not “seriously affect the fairness, integrity, or public reputation of the judicial proceedings,” as required under the fourth prong of the plain error test. Gonzalez Edeza,
D. Whether the error seriously affected the fairness, integrity, or public reputation of the judicial proceedings.
The fourth prong of the plain error test is discretionary. If the defendant can show an error is plain and affects substantial rights, a court must exercise considered judgment in deciding whether the error must be corrected. A court should do so where it “seriously affected the fairness, integrity, or public reputation of the judicial proceedings.” Id. Although a showing (or presumption) of prejudice is necessary to meet this prong, it is not sufficient because not every prejudicial error threatens the fairness and integrity of the proceedings. United States v. Rausch,
Turrietta starts from behind on this step because he does not even assert in his appeal brief that, had the jury been duly sworn, the outcome of trial would have been different. Harm flowing from jury error often defies measurement and we recognize that the integrity of the system may suffer, even if only in theory, each time a defendant is convicted by an unsworn jury; but it is not enough at this stage to simply identify an error that is categorically serious. The Supreme Court has rejected a “per se approach” to the fourth prong, stressing that if the inquiry is to be of any use, it must be applied “on a case-specific and fact-intensive basis,” and must account for “countervailing factors” that may arise in a particular case. Puckett,
Surely there are cases where the benefit of the sworn jury will be heightened by the
Quite apart from the evidence of Turrietta’s guilt, any threat to the integrity of the proceedings was mitigated by an otherwise fair and procedurally rigorous trial. The jury was fairly selected and clearly instructed, and the trial was open to the public and administered by an unbiased judge. Turrietta availed himself of his right to counsel and received an unfettered opportunity to put on evidence and make arguments in defense of his innocence.
Moreover, the record supports the government’s contention that the jury understood the thrust of what the oath was designed to impart. The jurors were all sworn to tell the truth during voir dire and were on several occasions reminded by the court of their “sworn duty” to try the case truly and in accordance with the law. The admonition was reinforced over the course of the trial by a steady drumbeat of instructions stressing the importance of rendering a verdict in light of the burden of proof and based solely on the evidence presented. Between the instructions, the oath at voir dire, and the repeated references to the oath at trial, the jurors had plenty to remind them of the importance of their task. If, owing to some overpowering prejudice or belief in jury nullification, a juror was still unwilling to decide the case based on the law and evidence, it is doubtful the oath would have made a difference.
If anything would imperil the integrity of the judicial proceedings, it would be a decision rewarding Knoblauch for holding his objection in his back pocket hoping it might ultimately work in his client’s favor. See Johnson v. United States,
AFFIRMED.
Notes
. To his everlasting credit, Knoblauch has admitted his knowledge and strategy.
. "Waiver is different from forfeiture. Whereas forfeiture is the failure to make the timely assertion of a right, waiver is the 'intentional relinquishment or abandonment of a known right.’ ” United States v. Olano,
In United States v. Oakes, we outlined waiver parameters:
[S]ome rights can be waived only if the defendant personally consents. See Taylor v. Illinois,484 U.S. 400 , 417-18, 108 S.Ct.646, 98 L.Ed.2d 798 (1988).... "A defendant ... has the ultimate authority to determine whether to plead guilty, waive a jury, testify in his or her own behalf, or take an appeal.” Florida v. Nixon,543 U.S. 175 , 187,125 S.Ct. 551 ,160 L.Ed.2d 565 (2004).... "These four decisions naturally reside with the defendant because they implicate the two most basic tenets of our legal system — the opportunity to have a day in court and the opportunity to have a jury of peers.” United States v. Washington,198 F.3d 721 , 724 (8th Cir.1999) (internal citations and quotations omitted).
The Supreme Court has not identified any additional decisions as the exclusive right of the defendant. Although it has not explicitly stated that it will go no further, we need not determine the precise outer boundaries ....
United States v. Oakes,
Like Oakes, this is not a case where it is necessary to explore boundaries. Waiver of trial by jury is subject to procedural limitations; a defendant must not only participate personally in the waiver, but must do so in writing, with the consent of the government and the approval of the court. See Fed. R.Crim.P. 23(a). This is not to equate the right to trial by jury with the right to trial by sworn jury, but only to suggest that if the latter is, in fact, a right, its waiver may be subject to the same limitations as the former. See Gonzalez v. United States,
In any event, the government failed to raise waiver in its appeal briefs. Waiver can be waived. See United States v. Heckenliable,
. Turrietta’s trial was postponed so the other case could proceed to trial immediately after both juries were selected.
. The courtroom clerk’s minutes, contained in the docket sheets, reflect that the venire was sworn for voir dire and the jury in the other case was sworn to try that case. No mention is made of Turrietta's jury having been sworn.
. The judge mentioned the oath three times while instructing the jury: "[I]n reaching your decision as to the facts, it is your sworn duty to follow all the rules of law as I explain them to you.” (Tr. at 321.); "It is also your duty to base your verdict solely upon the evidence, without prejudice or sympathy. That was the promise you made and the oath you took.” (Tr. at 322.); "Remember, you are the judges of the facts, but you are bound by your oath to follow the law stated in these instructions." (Tr. at 359.); The prosecution also made a passing reference to the oath, admonishing the jury that "that's not the oath ... you took. The oath you took was: Apply the law the judge just read to you ...” (Tr. at 352.)
. The problem may have been called to the attention of the judge, but no pertinent legal analysis was ever presented.
. We do not know whether Turrietta was consulted about the strategy, but it is no defense to say it was done in the client’s interest. Seldom will violating a procedural rule work in favor of the client; this case is no exception.
. This case is similar to Olano. Plain error analysis is the correct analytical approach here, as it was there. ”[T]he operation of Rule 52(b) does not permit a party to withhold an objection to the presence of alternate jurors during jury deliberations and then to demand automatic reversal.” Olano,
. Turrietta's claim of "structural” error has little bearing on the application of the plain error test. Rule 52(b) does not permit exceptions based on the gravity of the asserted error. See Puckett,
. Central to the Court's conclusion was the history of the Sixth Amendment, beginning with an early version introduced in the House of Representatives by James Madison, which provided for trial "by an impartial jury of freeholders of the vicinage, with the requisite of unanimity for conviction, of the right of challenge, and other accustomed requisites ...” Williams,
. See also United States v. Padilla,
. Along with the oath’s time-honored role in the factfinding process, there is the decidedly American tradition of treating the jury oath as the point during trial when a defendant is deemed to have been put in jeopardy. This is in keeping with the principle, rooted in due process, that a defendant has the right to have the jury first impaneled to try him reach a verdict: "Throughout [Anglo-American] history there ran a strong tradition that once banded together a jury should not be discharged until it had completed its solemn task of announcing a verdict.” Crist v. Bretz,
. Religious objectors and nonbelievers eventually persuaded courts and legislatures to put an end to this practice. Courts began allowing atheists to testify as witnesses and serve on juries in the early 1900s, and by the 1940s, most states had enacted statutes granting all persons the right to testify. Jonathan Belcher, Religion-Plus Speech: The Constitutionality of Juror Oaths and Affirmations Under the First Amendment, 34 Wm. & Mary L.Rev. 287, 293-94 (Fall 1992), "The history of oaths and affirmations indicates that the affirmation was devised to rectify many of the complaints of religious objectors.” Id. at 294. Congress incorporated the affirmation in the modern rules of evidence with the same principles in mind. Today, witnesses must declare that they "will testify truthfully, by oath or affirmation administered in a form calculated to awaken the witness’ conscience and impress the witness' mind with the duty to do so.” Fed.R.Evid. 603.
. The limited holding in Apodaca was the result of a three-way division among the justices. A four-justice plurality concluded the Sixth Amendment does not require unanimous jury verdicts in either federal or state trials, a separate four-justice plurality con-eluded the Sixth Amendment requires unanimous verdicts in state and federal trials, and Justice Powell concluded the Sixth Amendment requires unanimity in federal but not state trials. Apodaca,
. While the Court has reserved judgment on whether a structural error can automatically satisfy Olano’s third, substantial-rights, prong, see Cotton,
. And the converse is also true. If the government sought to retry a defendant acquitted by an unsworn jury, it would be hard-put to argue that jeopardy had not attached, particularly if it knowingly failed to timely notify the court of the problem.
. The strength of the government’s case may not, alone, preclude relief at step four, but we describe other compelling preclusive factors. At the forefront is Turrietta's strategic silence. The judicial system succeeded in avoiding manipulation; it did not fail to deliver justice in this case. There was no systemic failure.
Concurrence Opinion
concurring.
I concur in the result but would hold that Mr. Turrietta waived the error of an unsworn jury by failing to object before the jury was discharged. I appreciate the court’s rich and careful discussion of this aspect of trial by jury, but for me the crucial fact is that the defense admitted that the court’s error was fully appreciated but held any objection in reserve in order to attack a guilty verdict. Under these circumstances, the failure to make a contemporaneous objection was a matter of strategy, not neglect, and constituted consent to proceed with an unsworn jury. See Puckett v. United States,
I doubt the mistake here falls into that narrow category of error deemed structural error. See Johnson v. United States,
On appeal, Mr. Turrietta does not argue that his participation in this strategy was necessary, let alone lacking. See United States v. Oakes,
We have discretion under Rule 52(b) to correct plain error, the category of “forfeited-but-reversible error,” United States v. Olano,
My purpose is not to diminish the oath’s significance but to honor it. All parties to a criminal proceeding are summoned to help secure the proper administration of justice. Reserving objections until correction is impossible is to be discouraged.
. The Court has never decided whether a structural error would automatically satisfy the third element of the plain error test; whether the error affects substantial rights. See Puckett v. United States,