This appeal presents a narrow issue of trial procedure concerning the handling of a jury request made during the course of deliberations. The precise issue is whether the District Court may accept a jury verdict,
Though receipt of the verdict without a response or further inquiry by the District Judge warrants no relief in this ease, we suggest below some considerations that trial judges might appropriately bear in mind should similar circumstances arise. On the second point, we reconfirm the authority of sentencing judges to notice defects in the PSR even though such defects are raised by the Government after the period for objections. Accordingly, we affirm both the conviction and the sentence.
Background
On three occasions between May 1995 and August 1995, Young sold bottles of PCP to undercover DEA Agent Dave Joseph. Although Agent Joseph made the initial contact, Young called him on various occasions to propose sales or inquire into the status of stalled negotiations. Agent Joseph purchased a total of approximately 2.1 kilograms of PCP from Young.
At trial, the Government’s ease consisted primarily of Agent Joseph’s testimony and recordings of his conversations with Young. The defense presented no witnesses, but argued to the jury that Young had been entrapped by the DEA. At Young’s request, the Court instructed the jury on the law of entrapment.
The jury’s note. Approximately 35 minutes into its deliberations, the jury sent a note to the Court requesting that it “provide the jury with the jury instructions discussing the elements of entrapment.” Judge Koeltl properly shared the note with the parties, and heard argument on whether he should respond by giving the jury a typed copy of the relevant instruction, or instead have the instruction read back to them. See United States v. Ronder,
However, an hour after the jury had sent out its first note and before the court reporter or the reporter’s notes could be located, the jury sent out a second note, announcing that it had reached a verdict. The Court notified the parties, offered counsel the opportunity to inspect the second note, and stated, “I would now call the jury in for their verdict.” Defense counsel’s only response was “Very well, your Honor.” The jury proceeded to announce a guilty verdict.
The presentence report. On September -6, 1996, the Probation Department sent the parties copies of the PSR, which stated that Young had sold a total of 300 grams of PCP to Agent Joseph and, based on this figure, calculated a base offense level of 26 and a corresponding sentencing range of 63 to 78 months. On November 29, 1996, four days before the sentencing hearing, the Government notified the Court that the PSR had erroneously underreported the amount of PCP by approximately a factor of seven. Using the corrected amount of PCP, the Government calculated that Young’s base offense level should be 32, corresponding to a sentencing range of 121 to 151 months.
At the December 3, 1996, sentencing hearing, Young objected to the Government’s belated objection to the PSR, and noted that Fed.R.Crim.P. 32(b)(6)(B) requires all objee
Discussion
1. The Jury’s Request
Young contends that the District Court’s failure to honor the jury’s request for a readback before taking the verdict amounted to prejudicial error requiring reversal. We disagree.
A readback of portions of the trial record is a matter committed to the sound exercise of a trial court’s discretion, see, e.g., United States v. Escotto,
These considerations will normally favor complying with a jury’s request for a readback of portions of the instructions. It is obviously important to dispel any uncertainty in the jurors’ minds concerning the content of the instructions, and absent a request for a readback of a substantial portion of a lengthy charge,
In this case, an hour passed before the reporter’s notes could be located, and the jury informed the Court that it had reached a verdict. It is possible, as the Government suggests, that the jurors changed their minds and decided that they no longer needed to rehear the entrapment instruction. However, it is also possible that the jurors, not having been informed that the District Judge was going to read back the entrapment instruction as soon as the reporter’s notes were located, concluded that the Judge had decided not to honor their request. The latter possibility is disquieting, and it would have been better practice for the trial court, upon receipt of the first note, to have told the jury (in open court or through a reply note) that its request would be honored but that some delay might ensue. Had that been done, we could safely assume that the jurors decided that the readback was no longer desired.
Nevertheless, the failure to convey such information to the jury and the receipt of the verdict without further reference to the read-back request are not grounds for reversal. Once the jury announced its readiness to return a verdict, it was up to defense counsel to decide whether to accede to having the
In the absence of either an objection to receipt of the verdict or a request for further inquiry of the jury concerning a readback, the trial court’s procedure cannot warrant reversal unless it constitutes plain error. See Fed.R.Crim.P. 52(b); cf. United States v. Delano,
2. Government’s Late Objection to the PSR
Young contends that the Government’s objection to the PSR was untimely and should not have been considered by the District Court. He relies on Fed.R.Crim.P. 32(b)(6)(B), which gives the parties 14 days after receipt of the PSR to raise objections.
Though a court could, in its discretion, deem a party to have forfeited any objection to the PSR by its failure to file a timely objection or to show good cause for a late filing, see United States v. Jones,
Conclusion
The judgment of the District Court is affirmed.
Notes
. Where the trial court is unwilling to meet the jury’s request for extensive readbacks of the charge, the court could provide the jury with a written transcript of the charge. See United States v. Russo,
. Young’s reliance on cases in which convictions were reversed because of a trial court’s total or partial failure to respond to jury inquiries, see United States v. Bolden,
