NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT NOV 18 2009
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 08-10524
Plaintiff - Appellee, D.C. No. 2:07-CR-01217-ROS-1
v.
MEMORANDUM *
GREGORY THOMAS YOUNG, Jr.,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Arizona
Roslyn O. Silver, District Judge, Presiding
Argued and Submitted November 5, 2009
San Francisco, California
Before: GOODWIN and W. FLETCHER, Circuit Judges, and MILLS, ** District
Judge.
Gregory Thomas Young appeals his conviction. He assigns error to the
district court’s denial of his motion for a mistrial following a jury trial that resulted
in a hung verdict on Count 1, Assault with a Dangerous Weapon, and a guilty
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Richard Mills, District Judge for the Central District of
Illinois, sitting by designation.
verdict on Count 2, Assault Resulting in Serious Bodily Injury. Young argues that
the verdict is necessarily logically inconsistent because the evidence cannot
simultaneously be insufficient on Count 1 and sufficient on Count 2; that
prosecutorial misconduct and the court’s erroneous response to a jury question
contributed to the inconsistent verdict; and that the court erred in failing to
investigate alleged juror misconduct. We review a district court’s denial of a
motion for a mistrial and its response to alleged juror misconduct for abuse of
discretion. United States v. Banks, 514 F.3d 959, 973 (9th Cir. 2008); United
States v. Shyrock, 342 F.3d 948, 973 (9th Cir. 2003). Where a defendant raises an
issue on appeal that was not raised at trial, we review for plain error. United States
v. Olano, 507 U.S. 725, 730-36 (1993). We affirm.
The verdict is not necessarily logically inconsistent. A hung count “is
evidence of nothing–other than, of course, that [the jury] has failed to decide
anything,” Yeager v. United States, 129 S. Ct. 2360, 2370 (2009), and does not
necessarily mean that the evidence was insufficient to sustain a guilty verdict on
that count. Further, “mere inconsistency of verdicts does not require reversal
unless there is insufficient evidence to sustain the guilty verdict,” United States v.
Van Brandy, 726 F.2d 548, 552 (9th Cir. 1984), and here there is sufficient
evidence to sustain the guilty verdict on Count 2.
Nor is there reversible error in the prosecutor’s statement, which Young
argues suggested a theory about how the victim was injured that was not supported
by the evidence, or in the court’s response to the jury’s first question. Young did
not object to either at trial, and we find no plain error. The prosecutor clarified to
the jury that the government had no alternative theory and the court instructed the
jury that arguments of counsel are not evidence, an instruction that “tends to draw
the sting from improper arguments.” Leavitt v. Arave, 383 F.3d 809, 834 (9th Cir.
2004). Because only Count 1 requires the use of a weapon, there is no plain error
in the court’s assumption that the jury’s question, “Does the weapon have to be a
knife,” pertained only to Count 1. Moreover, even if there is error, there is no
evidence that it affected the outcome of the district court proceedings, because the
verdict is not inconsistent and is supported by the evidence.
Finally, the district court did not err in its response to the jury’s second note,
which read, in part, “One of the jurors has made comments of personal sympathy
and opinions toward the family. The jury feels this person is violating . . . our
instructions.” District courts have discretion to determine whether to hold a
hearing to investigate allegations of juror misconduct. See United States v. Angulo,
4 F.3d 843, 847 (9th Cir. 1993). The note suggests only vague allegations of
bias–the defendant, the victim, and several witnesses were family members, so it is
unclear toward whom the juror felt sympathy–and does not indicate that the juror’s
“personal sympathy and opinions” had influenced the other jurors. The district
court therefore did not abuse its discretion in concluding that the note did not
necessitate an investigative hearing or warrant a mistrial.
AFFIRMED.