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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 27, 2006 Decided April 7, 2006
No. 05-3003
UNITED STATES OF AMERICA,
APPELLEE
v.
SEAN GINYARD,
APPELLANT
Consolidated with Nos.
05-3004, 05-3025, 05-3035
Appeals from the United States District Court
for the District of Columbia
(No. 03cr00473-01)
(No. 03cr00473-02)
Richard K. Gilbert, appointed by the court, argued the cause
and filed the briefs for appellant.
David M. Menichetti argued the cause and filed the briefs
2
for appellant Kevin Jefferson. Peter M. Brody entered an
appearance.
John P. Gidez, Assistant U.S. Attorney, argued the cause for
appellee. With him on the brief were Kenneth L. Wainstein,
U.S. Attorney, and Roy W. McLeese, III and Elizabeth Trosman,
Assistant U.S. Attorneys.
Before: GINSBURG, Chief Judge, and ROGERS and BROWN,
Circuit Judges.
Opinion for the Court filed by Circuit Judge ROGERS.
ROGERS, Circuit Judge: An eleven-member jury found
Sean Ginyard and Kevin L. Jefferson guilty of possession with
intent to distribute more than 50 grams of cocaine base and
distribution of a detectable amount of cocaine base. The
principal issue on appeal is whether the district court abused its
discretion in dismissing, pursuant to Federal Rule of Criminal
Procedure 23(b), the twelfth juror, who was a holdout. Although
the United States has conceded error, the court is not bound by
that concession on a question of law. Orloff v. Willoughby, 345
U.S. 83, 87 (1953). We vacate the judgments of conviction and
remand the case for a new trial because the district court failed
to conduct an adequate inquiry regarding the holdout juror’s
continuing availability.
I.
In a superseding indictment, Ginyard and Jefferson were
charged with the unlawful distribution of “a detectable amount”
of cocaine base, 21 U.S.C. §§ 841(a)(1) and (b)(1)(C), and
possession with intent to distribute more than 50 grams of
cocaine base, id. §§ 841(a)(1) and (b)(1)(A)(iii). Following the
district court’s denial of motions by Ginyard and Jefferson for
3
a mistrial, an eleven-member jury returned guilty verdicts, and
the district court sentenced Ginyard to 179 months’
imprisonment and Jefferson to 120 months’ imprisonment.
They appeal, presenting multiple claims of error. We need
address only two of their contentions. Only the first, a challenge
to the dismissal of the twelfth juror, requires extended
discussion.
The circumstances leading to the dismissal of the twelfth
juror (“Juror 429”) are as follows. Jury deliberations began
Friday morning, September 10, 2004. The following Monday,
and again on Tuesday, the district court learned that the jury’s
deliberations were “heated” and that the jury may have become
“deadlocked” on one charge.1 On Wednesday, September 15,
the jury sent a note asking “How does the jury deal with a juror
who has stated that they do not believe the testimony of several
witnesses and does not offer reasons based on evidence as to
why that testimony is not credible and can be ignored?”
(Emphasis added.) At the bottom of the note was written “I was
left out of this decision. Jury Number 429.” The district court
responded by instructing the jury that “[m]embers of the jury
must fully discuss in a respectful manner the disputed issues
with all jurors and try, if possible, to reach a unanimous view.”
On the same day, Juror 429 sent a note to the judge, stating
1
On Monday, September 13, Juror 2 was dismissed for
reasons not relevant to this appeal and replaced the following day with
one of two available alternates. When questioned by the district court
about her “feelings about deliberating,” Juror 2 remarked that “[i]t is
getting heated. And we’re not getting anywhere.” On Tuesday
afternoon, the jury sent its first note to the district court, asking: “If we
are deadlocked with fundamental differences on one charge, how
should we proceed? Should we discuss other charges?” The district
court responded with a note stating “You should proceed, and discuss
the other charge. You are free to return a verdict on either charge
when you reach a unanimous decision.”
4
“Hardship after Friday 9-17-04.”
On Thursday, the district court received three notes from
the jury about scheduling problems. Two of the notes involved
jurors who said they could not deliberate on Friday, and the
district court accommodated them by deciding no deliberations
would occur on Friday. The third note was from Juror 429. The
district court judge stated Juror 429’s note was “harder to
decipher,” but indicated that “he’s not able to continue after
Friday because of a job opportunity related to some kind of a
rehab program that he is involved in.” Although the prosecutor
understood Juror 429 to state he was unavailable after Friday,
defense counsel read the note to invite the district court to
contact his counselor if need be.
The district court inquired whether any counsel would
oppose proceeding on Monday with eleven jurors, pursuant to
Rule 23(b), noting the time and effort already expended by the
jury. Defense counsel objected, and suggested Juror 429 be
questioned about his availability and the possibility of working
around his schedule. The district court advised counsel that she
did not want to speak to the juror’s counselor—“[i]t brings too
many others in, it complicates matters unduly, it raises a
question of tainting because his counselor might say something
to him.” Shortly thereafter another note from Juror 429 arrived,
requesting a response to his earlier note. The district court
ordered that Juror 429 be brought to the courtroom in order to
determine whether he would be available the following week.
Juror 429 told the district court judge that he was hoping to
get a job through a program in which he was enrolled and if he
remained in jury deliberations the program might give the job to
someone else. The juror advised that he had spoken to his
counselor the day before (Wednesday) to inform him about his
jury duty, but stated “that do[es]n’t mean they’re going to hold
5
the position for me.” The juror told the judge that a specific
position was being held for him and proceeded to describe it.
The judge asked the juror, “[d]o you have any reason to think
that if you told your counselor that we were going to deliberate
on Monday, that he could manage to hold the job open for you
for a couple of days, or do you think that is not a realistic
possibility?” The juror’s answers included the following
statements: “Well, I think if I gave him something concrete to
look for, like you said, a couple days, maybe yes . . .”, “a couple
of days, yes, but anything after that . . .”, and finally “I just want
to let you know, Judge, I think that they will give me a couple
of days, maybe Monday, Tuesday, but I can’t expect them to
hold it all week or as long as the trial might go.” The judge then
commented, “I do understand that. I very much know how
much people need jobs.”
The district court decided to dismiss Juror 429 for “good
cause shown” at the end of the day (Thursday). Defense counsel
had argued that the juror’s responses indicated that he could be
available until Monday or Tuesday and that a letter from the
district court to the juror’s counselor might help the situation.
The prosecutor urged, however, that the juror be released rather
than pushed in one direction or the other and that the trial should
proceed with eleven jurors on Monday. The district court found:
first, “there are just too many uncertainties about next week”;
second, the juror had said his “cutoff was actually yesterday
[Wednesday],” and “that today was pushing it” and he thought
that the trial would be over today; third, “[t]here are no
guarantees that they would hold the job until Monday and/or
Tuesday”; and fourth, that even if the juror were available
Monday and Tuesday, allowing him to continue deliberation
would “impose[] an artificial deadline and an artificial pressure
that is inappropriate.”
Early Thursday evening, after the district court told Juror
6
429 he would be excused at the end of the day, the deputy
marshal informed the court that just before 5 p.m. he overheard
Juror 429 “screaming that he wanted a note sent out to the judge
stating that the jury was hopelessly deadlocked.” Just before 5
p.m., there was a knock at the door and Juror 429 handed the
marshal a note that stated “We, the jury, are hopelessly
deadlocked. The foreman refused to submit. The decision was
made at 4:30.” The note was signed “429.” The district court
stated that “we know probably that [Juror 429] is the person who
wasn’t believing certain police officers.” Thereafter, the district
court implemented its decision to dismiss the juror. The
following Monday, the first day the jury reconvened with only
eleven members, it returned guilty verdicts against appellants.
The district court subsequently denied defense counsel’s
renewed motions for a mistrial and motions for a new trial.
II.
Appellants challenge the dismissal of the twelfth juror on
the grounds that it violated their Sixth Amendment right to
conviction by a unanimous jury and that the district court abused
its discretion in dismissing Juror 429 for “good cause” under
Federal Rule of Criminal Procedure 23(b). On appeal, the
United States has conceded both propositions and agrees that
appellants are entitled to a new trial. “This Court, of course, is
not bound to accept the Government’s concession that the courts
below erred on a question of law.” Orloff, 345 U.S. at 87; see
Young v. United States, 315 U.S. 257, 258-59 (1942). Our
review of the dismissal of the twelfth juror is for abuse of
discretion. See United States v. Essex, 734 F.2d 832, 845 (D.C.
Cir. 1984); United States v. Gibson, 135 F.3d 257, 259 (2d Cir.
1998).
The Sixth Amendment to the United States Constitution
guarantees the right to a unanimous jury verdict in federal
7
criminal cases, Essex, 734 F.2d at 841 (citing Apodaca v.
Oregon, 406 U.S. 404 (1972), and Johnson v. Louisiana, 406
U.S. 356 (1972)), and restricts the exercise of Rule 23(b)
dismissals. In United States v. Brown, 823 F.2d 591 (D.C. Cir.
1987), the court held Rule 23(b) may not be used to dismiss a
juror if there is evidence that the request for dismissal stems
from the juror’s view that the government’s evidence is
insufficient to support a verdict. See id. at 597; United States v.
Hernandez, 862 F.2d 17, 23 (2d Cir. 1988). To allow invocation
of Rule 23(b) in such a circumstance would violate the
defendant’s constitutional right to a unanimous verdict because
it would permit the government to obtain a conviction without
having first persuaded the entire jury of the defendant’s guilt.
Brown, 823 F.2d at 595-96; United States v. Thomas, 116 F.3d
606, 620 (2d Cir. 1997).
Contrary to the views of the parties, Brown, 823 F.2d 591,
does not control the outcome of this appeal. It is true that by the
time of his actual dismissal on Thursday evening, “the record
evidence disclose[d] a possibility that” Juror 429 believed that
“the government [had] failed to present sufficient evidence to
support a conviction.” Id. at 597. But the animating principle
expressed throughout Brown is that a defendant’s Sixth
Amendment right is infringed when there is some causal link
between a juror’s holdout status and the juror’s dismissal. See
id. The juror in Brown “requested to be discharged because he
believed that the evidence offered at trial was inadequate to
support a conviction.” Id. at 596. Brown, then, does not control
all situations where evidence of holdout status exists, only those
situations where the “request for discharge stems from doubts
the juror harbors about the sufficiency of the government’s
evidence.” Id.; see United States v. Barone, 114 F.3d 1284,
1309 (1st Cir. 1997). Were a holdout juror to request dismissal
because he was experiencing a heart attack, Brown would not
prevent a district court from excusing that juror under Rule
8
23(b) for good cause, even if the record suggested that juror
independently had doubts about the sufficiency of the evidence.
Similarly, Brown is not implicated here because there is no
evidence that Juror 429 sought dismissal, or was dismissed,
because of his doubts about the government’s evidence. On the
contrary, the record indicates that his request stemmed entirely
from an employment-related need.
Federal Rule of Criminal Procedure 23(b) provides that
(1) In General. A jury consists of 12 persons unless
this rule provides otherwise. (2) Stipulation for a
Smaller Jury. At any time before the verdict, the
parties may, with the court’s approval, stipulate in
writing that: (A) the jury may consist of fewer than 12
persons; or (B) a jury of fewer than 12 persons may
return a verdict if the court finds it necessary to excuse
a juror for good cause after the trial begins. (3) Court
Order for a Jury of 11. After the jury has retired to
deliberate, the court may permit a jury of 11 persons to
return a verdict, even without a stipulation by the
parties, if the court finds good cause to excuse a juror.
Rule 23 incorporates the “venerable common law tradition” of
a twelve-member jury, United States v. Araujo, 62 F.3d 930, 933
(7th Cir. 1995), while allowing the district court to reduce that
number upon a finding of good cause. A prior version of Rule
23(b) provided that “if the court finds it necessary to excuse a
juror for just cause after the jury has retired to consider its
verdict, in the discretion of the court a valid verdict may be
returned by the remaining 11 jurors.” The Advisory
Committee’s Notes for the 2002 amendments state the changes
in language were not intended to reflect a change in substance.
Under Rule 23(b), “when a district court decides, without
9
the agreement of the parties, to permit an eleven-member jury to
deliberate to a verdict, two distinct questions are presented: first,
whether the court had [good] cause to excuse the twelfth juror,
and second, whether the district court was correct in allowing
the bobtailed jury to continue rather than declaring a mistrial.”
Araujo, 62 F.3d at 933. We need address only the first question.
Although courts have tended to read the rule broadly to
encompass a variety of temporary problems arising during jury
deliberations, see, e.g., United States v. Stratton, 779 F.2d 820,
831-32 (2d Cir. 1985); see also Brown, 823 F.3d at 597,2 the
2
The Advisory Committee’s Notes explain that in amending
the rule in 1983 to provide discretion for the district court to dismiss
a deliberating juror, the amendment
addresses a situation which does not occur with great
frequency but which, when it does occur, may present a
most difficult issue concerning the fair and efficient
administration of justice. This situation is that in which,
after the jury has retired to consider its verdict and any
alternative jurors have been discharged, one of the jurors
is seriously incapacitated or otherwise found to be unable
to continue service upon the jury. The problem is acute
when the trial has been a lengthy one and consequently the
remedy of mistrial would necessitate a second expenditure
of substantial . . . resources. See, e.g., United States v.
Meinster, 484 F.Supp. 442 (S.D. Fla.1980), aff'd sub nom.
United States v. Phillips, 664 F.2d 971 (5th Cir. 1981)
(juror had heart attack during deliberations after “well over
four months of trial”); United States v. Barone, 83 F.R.D.
565 (S.D. Fla. 1979) (juror removed upon recommendation
of psychiatrist during deliberations after “approximately six
months of trial”).
It is the judgment of the Committee that when a
juror is lost during deliberations, especially in
circumstances like those in Barone and Meinster, it is
10
resolution of this appeal does not require examination of the
district court’s determination that the loss of a job constituted
“good cause” to dismiss a holdout juror. Instead, assuming job
loss would constitute good cause for dismissing a holdout juror,
we conclude that the district court abused its discretion in
dismissing the holdout juror because the record does not support
the finding he would lose his job opportunity.
Both the command of the Sixth Amendment and this court’s
precedent on Rule 23(b) require a searching inquiry in order to
determine a juror’s continuing availability. Even when a juror
is not a holdout, the district court’s duty of inquiry extends
beyond what might otherwise appear to be reasonable inferences
from known facts when uncertainties about the juror’s
continuing availability persist. In Essex, 734 F.2d at 842, where
the district court had made no finding that it was necessary to
dismiss the juror, this court concluded it was not enough that the
district court knew the juror had failed to show up on Monday
as ordered the previous Friday; the court held that the district
court had a “clear duty to determine the whereabouts of the
missing juror and make a finding that there was [good cause] for
excusing him.” Id. at 842. More pertinent, in United States v.
Patterson, 26 F.3d 1127, 1129 (D.C. Cir. 1994), the court held
the district court had abused its discretion by failing to conduct
an inquiry into the availability of a 68-year-old juror before
excusing her even though the district court knew the juror had
suffered severe chest pains overnight and had excused her three
hours earlier because her doctor wanted to see her immediately.
Id. at 1128. The court observed that the district court had made
essential that there be available a course of action other
than mistrial . . . .
Fed. R. Crim. P. 23 Advisory Committee’s Notes to 1993
amendments.
11
no attempt to learn “the precise circumstances or likely duration
of the twelfth juror’s absence.” Id. at 1129; see Araujo, 62 F.3d
at 935-36.
The presence of a holdout lends heightened significance to
the district court’s duty of inquiry. Our holding in Brown, 823
F.2d 591, may not control the outcome here, but it does inform
the nature of the district court’s inquiry. Where a juror’s request
to be excused does not stem from his view of the evidence, the
district court, upon having reason to believe the juror is a
holdout, has an enhanced duty to determine the precise
circumstances of the juror’s availability lest the action of the
court interfere with a defendant’s Sixth Amendment right to a
unanimous verdict. The district court retains discretion
regarding how to resolve uncertainty about a juror’s availability
and may not be obliged in every instance to explore all options
suggested by the parties or to provide an explanation for each
option it chooses not to explore. See Essex, 734 F.2d at 845.
The district court may not rely on an unexamined state of
uncertainty to draw the inference that a juror is no longer
available to serve, and a district court faced with a holdout juror
must apply even greater effort to resolve uncertainty about the
juror’s continuing availability because of the Sixth Amendment
interests that are implicated by its decision. An inadequate
inquiry into the precise nature of the uncertainty about a holdout
juror’s continuing availability cannot fulfill the duty imposed by
Rule 23(b). We note that courts upholding a district court’s
Rule 23(b) dismissal frequently stress that no evidence indicated
the twelfth juror was a holdout. See, e.g., Barone, 114 F.3d at
1309; Stratton, 779 F.2d at 832; United States v. Huntress, 956
F.2d 1309, 1313 (5th Cir. 1992); cf. United States v. Samet, 207
F. Supp. 2d 269, 280 (S.D.N.Y. 2002). But see Perez v.
Marshall, 119 F.3d 1422, 1427 (9th Cir. 1997).
A review of the record indicates that “the precise
12
circumstances” of Juror 429’s unavailability were never
determined by the district court. Although “ma[king] [some]
attempt to learn the precise circumstances” of the juror’s
hardship, Patterson, 26 F.3d at 1129, the district court’s reasons
for dismissing Juror 429 rested on unexamined uncertainties
about the extent of the juror’s continuing availability. It was
unclear whether Juror 429 could be available the following week
at all, for only a couple of days, or for a longer period of time.
This uncertainty depended on whether the juror’s job
opportunity was at risk if he continued to serve. The district
court found that the juror had indicated his deadline was
Wednesday. Yet the juror was still deliberating on Thursday
and had indicated that he might be able to serve several
additional days without losing the job opportunity. The district
court found that there were no guarantees that the job would be
held. Yet the district court made no attempt to ascertain whether
or not this was true. The district court neither continued
questioning the juror about the nature of his conversation with
the counselor nor requested the juror to get more information on
how long his job could be held, despite the fact that the juror’s
responses appeared to invite the district court to provide him
with a tentative deadline so he could confer further with his
counselor.
The district court’s explanation that it did not wish to
involve additional persons reflected an understandable
reluctance to complicate the circumstances but it does not
address why the juror could not contact the counselor in order to
obtain a better understanding of how long his job could be held.
Even assuming this explanation would be sufficient where the
juror is not a holdout, in light of the juror’s holdout status, the
district court could not reasonably ignore the fact that the
counselor appeared to be the best source for resolving the
uncertainty about the juror’s continuing availability without
jeopardizing his opportunity for a job. Likewise, the district
13
court could not reasonably fail to explore other options.
Defense counsel had suggested that the district court send a
letter to the counselor; the district court did not reject this
suggestion as an option, but, for reasons not explained, did not
pursue it either. Defense counsel also suggested the option of
working around the juror’s schedule. The district court did not
pursue this idea with the juror or explain why it did not.
Finally, the district court’s finding that it would not matter
if the juror would be available one or two days of the following
week because it would be inappropriate to impose an “artificial”
deadline on the twelve-member jury did not eliminate the need
for further inquiry regarding the holdout juror’s job situation.
Although a reasonable concern stemming from avoiding
inappropriate interference with jury deliberations, as the events
of Thursday evening illustrated, this concern did not prevent the
district court from deciding to discharge the holdout juror after
Thursday’s deliberations. The record contains no indication that
the remaining jurors believed that Juror 429 would remain after
Thursday’s deliberations were completed; the district court did
not instruct the juror to conceal this information. Yet the district
court did not explain how a later deadline would be different or
less “artificial” than the more imminent Thursday deadline.
In light of the reasonable options presented to the district
court by the juror and defense counsel, and others it might have
devised, the district court was obliged to make some further
effort to resolve the uncertainty about the risk of loss of the
holdout juror’s job in order to find “good cause” necessitated the
juror’s dismissal. Such efforts might involve additional
conversations with the juror, see, e.g., Samet, 207 F. Supp. 2d at
271-76, in order to clarify the time constraints on the job being
held for him or specific inquiries of the juror’s counselor by the
juror or the district court or its staff in order to determine
whether the juror’s job could be held for him and whether a letter
14
from the court or scheduling adjustments would make a
difference. Settling upon the nature of such efforts remains
within the discretion of the district court. But the district court
ended its inquiry too soon to be able to find that the twelfth juror,
who was a holdout, would lose the job being held for him if he
continued to serve on the jury. Because the record does not
support the finding of good cause necessitating dismissal, the
district court abused its discretion in dismissing the holdout
juror.
Accordingly, we vacate the judgments of conviction and
remand the case to the district court for a new trial. In light of
the remand, we do not address appellants’ other challenges to
their convictions, except to note, given the likelihood of a new
trial, that any error in admitting prior crimes evidence under
Federal Rule of Evidence 404(b) was harmless in light of the
overwhelming nature of the government’s evidence, which
included repeated drug purchases by undercover police officers
and expert chemical analyses of the drugs purchased. See United
States v. Crowder, 141 F.3d 1202, 1209 (D.C. Cir. 1998) (en
banc).