United States v. Ricks

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WILKINSON, Circuit Judge,

dissenting:

The majority suggests that ,:it was not unreasonable for defense counsel to have enough certainty in their interpretation of the court’s remarks to negate any duty on their part to make a further inquiry or to request clarification.” Ante at 460. I disagree. Given the ambiguities in the court’s statement, the lack of federal or local rules to justify deductive assumptions about jury selection, and the importance of exercising peremptory challenges intelligently, it was unreasonable at trial for defense counsel to gamble without a clarifying inquiry on the accuracy of their impression that the jury would be chosen from the first thirty names on the venire list. And it is now unreasonable on appeal for this court to excuse that gamble and to redeem an attorney error by liquidating the large economic and personal investment in a complicated five-week trial. Because I believe that the defendants received a fair trial, in the selection of the jury and in all other respects, I dissent from the reversal of these convictions.

I

Proper analysis of this case begins with an examination of the trial court’s response *467to the prosecutor’s inquiry about the then imminent jury selection. The majority’s contrary assertion that it need not determine if “the district court did or did not positively tell counsel that it would select active jurors from the top of the list,” ante at 460, begs the question. The exhange between court and counsel is crucial because it helps to resolve the decisive issue on appeal: whether a reasonable attorney would have requested clarification before basing all peremptory challenges on the principle that informed the strikes of these defendants.

In eschewing an examination of how positively the trial court spoke and in pointing to the undisputed good faith of defense counsel, the majority addresses this appeal in part by asking whether, or in what sense, the lawyers actually understood the proposed method of jury selection. Such a “subjective” approach to the dispute suffers in a heightened degree from the problems that are often associated with the similar interpretation of contracts — the difficulty of ascertaining a party’s innermost thoughts and the disingenuousness of characterizing law as a realization of consent rather than as an imposition of forms and obligations. See A. Corbin, Corbin on Contracts § 106. These disadvantages of the subjective approach are further magnified by the failure here of the usual objections to the rival “objective” method. In a courtroom, perhaps more than any other place, words may be held to precise meanings, parties may be charged with a common knowledge of those definitions, and the authorization for legal enforcement may be traced most fairly to a formal course of rulemaking rather than to an effectuation of any personal intentions. For all of these reasons, the most valuable perspective in this case is the familiar construct of the reasonable attorney and the most valuable evidence is the set of external manifestations on which that attorney would rely in exercising her peremptory challenges.

Looking through this perspective at this evidence, I believe that reasonable attorneys here would have sought amplification of the trial court’s remarks before launching off on an interpretation of their own. The trial court’s statement, quoted ante at 459, was definite only in declining to describe any specific method that the court intended to use to choose the jury. Asked if it would proceed from the top of the venire list, the court began its response with “Well, I can’t tell at this point, as far as strikes and so forth____” This declaration of uncertainty was not withdrawn, nor was it transformed into a commitment by the court’s qualifying note about previous jury selections. No particular pattern was identified or precise expectation created by the observation that “[I can’t tell at this point ...] but ordinarily I start from the top, not any rigid number, counting from the top ...” (emphasis added). Finally, the court’s concluding remarks were tentative, elliptical, and ambiguous, venturing only that “it would be reasonably fair to say, if you want to exercise your strikes mostly at the top, and if you’re satisfied with the top, don’t strike there.” Far from saying what the defense counsel say they heard, this last clause suggested that counsel might want to make their challenges someplace other than at the top of the list and thereby implied an intention to choose the jury in part from someplace other than the top.

The court also conveyed the same impression by distributing to the attorneys a list of fifty-seven names on which to make their strikes. If the court had intended to confine itself to the first thirty names, it need only have given counsel a part of the full venire list. While the distribution of a longer list is not dispositive as to the court’s intentions, it was an additional factor suggesting the appropriateness of a clarifying inquiry.

The court’s words and actions thus provided several different signals that warned against any exclusive concentration of peremptory strikes. First, the trial court never promised to use any specific method of jury selection. Second, and conversely, the trial court expressly explained that it was uncertain about the course that it intended to take. Third, the trial court in different *468ways indicated that it might follow a system other than picking solely from the top of the list. A reasonable attorney would accordingly have found no predicate in the court’s remarks for an effective contraction of the venire, and defense counsel acted improperly to the extent that they relied upon the ambiguous statement in making such a contraction.1

Nor would a reasonable attorney have reached the defense counsel’s interpretation by application of any laws governing the selection of jurors from a fully qualified venire. Few such rules exist, and none of them required the trial court to choose from a minimum fraction of the eligible candidates. Although the majority today endorses such a practice, ante at p. 459, n. 4, the law since at least 1894 has been that the mode of designating and empanelling jurors lies within the control of trial courts, subject only to Congressional restriction and to “such limitations as are recognized by the settled principles of criminal law to be essential in securing impartial juries for the trial of offenses.” Pointer v. United States, 151 U.S. 396, 407-08, 14 S.Ct. 410, 414, 38 L.Ed. 208 (1894).2 The latter concern, the constitutional requirement of an impartial jury, is not relevant here. The trial court excused eight venire members for cause, all of them at the request of the defendants. On appeal the defendants allege no cognizable prejudice among the active jurors. This case does not involve a biased jury, or even an unfair transfer to the defendants of the burden of avoiding a biased jury. Cf. United States v. Allsup, 566 F.2d 68 (9th Cir.1977). The principle that a trial court must empanel an impartial jury therefore could not have suggested to counsel any particular understanding of the court’s intended method of selection.

The other limitation that Pointer v. United States places on trial court discretion, that of deference to legislation and to authorized rulemaking, also would not lead a reasonable attorney to believe that the trial court intended to draw only from the first thirty names on the fifty-seven name venire list. Fed.R.Crim.P. 24(b) provides only that defendants in a felony trial may strike ten candidates from the venire.3 The rule does not prescribe a procedure for paring the venire or define an extent to which the ten peremptory challenges must influence the eventual composition of the jury. To the contrary, jurists since Joseph Story have observed that “the right of peremptory challenge is not, of itself, a right to select, but a right to reject jurors,” United States v. Marchant and Colson, 25 U.S. (12 Wheat.) 480, 482, 6 L.Ed. 700 (1827), and cases since Marchant and Col-son have upheld a wide variety of methods for the exercise of strikes, methods that range not only in format but also in the substantive force that they create for peremptory challenges. See, e.g., United States v. Marchant and Colson (conflicting strikes by co-defendants); Hanson v. United States, 271 F.2d 791 (9th Cir.1959) (simultaneous exercise of challenges by prosecution and defense); United States v. Anderson, 562 F.2d 394 (6th Cir.1977) (local rule precluding challenges to previously passed jurors); United States v. Blouin, 666 F.2d 796 (2d Cir.1981) (“jury box” system requiring defendant to exercise challenge without knowing entire present com*469position of jury); Rosales-Lopez v. United States, 451 U.S. 182, 101 S.Ct. 1629, 68 L.Ed.2d 22 (1981) (limitations on access of counsel to voir dire inquiries that would guide exercise of challenges). Not surprisingly, courts and commentators have repeatedly remarked on this absence of settled patterns for final jury selection. United States v. Sams, 470 F.2d 751, 755 n. 1 (5th Cir.1972); United States v. Turner, 558 F.2d 535, 537 (9th Cir.1977); 2 C. Wright, Federal Practice and Procedure: Criminal § 387. In the context of such notorious silence in the rules and variety in the courts, no reasonable attorney would presume to extract a certain meaning from a trial court’s uncertain statement about the jury selection procedure.

And a fortiori, as law students say, no reasonable attorney would dare extract the most favorable meaning from the trial court’s non-committal statement. The Federal Rules of Criminal Procedure obviously do not require that the exercise of peremptory challenges be administered in a fashion that allows defendants the greatest possible influence over the final jury composition. In the absence of any such rule, the proper interpretative attitude of counsel should be one of caution. The reasonable attorney practices in partnership with the prudent attorney. Furthermore, the usual duty of circumspection applies with special force to matters of special significance, and as the Supreme Court has noted, the entitlement to peremptory challenges is “one of the most important of the rights secured to the accused.” Swain v. Alabama, 380 U.S. 202, 219, 85 S.Ct. 824, 835, 13 L.Ed.2d 759 (1965), quoting Pointer v. United States, 151 U.S. 396, 408, 14 S.Ct. 410, 414, 38 L.Ed. 208 (1894). This often-quoted characterization corresponds with the belief of many trial lawyers that cases can be won or lost on the basis of effective voir dire and peremptory challenge. See generally H. Zeisel & S. Diamond, The Effect of Peremptory Challenges on Jury and Verdict: An Experiment in a Federal District Court, 30 Stanford L.Rev. 491 (1978). The strategic potential attributed to peremptory strikes has inspired much ingenuity in the theory of determining the best use of the challenges, and the same potential should also inspire equal care in the practice of ensuring the actual preservation of the challenges. Such care would not reasonably include risking part of the value of the challenges on even a slight chance of erroneously interpreting a trial court’s comment.4

II

The importance of peremptory challenges explains from the viewpoint of the bar why a hint of ambiguity should alert counsel to seek further clarification before risking a particular course of selection. From the viewpoint of the bench, the same rule follows from the importance to the judicial system of prompt resolution of procedural controversies. This concern is most familiar in the context of the duty of contemporaneous objection. If a reasonable attorney cannot be sure whether the trial court is acting properly, the lawyer must usually object at that moment of court action or else forfeit the uncertain point. See, e.g., F.R.E. 103(a); Fed.R.Crim.P. 30; Wainwright v. Sykes, 433 U.S. 72, 88-90, 97 S.Ct. 2497, 5507-08, 53 L.Ed.2d 594 (1977). Similarly, if a reasonable attorney cannot be sure how the trial court is acting, the lawyer should inquire at that moment or else forfeit the uncertain point.

Here the interests served by a contemporaneous inquiry are similar to those served by the duty of contemporaneous objection. See Wainwright, 433 U.S. at 88-90, 97 S.Ct. at 2507-08; Henry v. Mississippi, 379 *470U.S. 443, 463, 85 S.Ct. 564, 575, 13 L.Ed.2d 408 (1965) (Harlan, J., dissenting). The trial judge can clarify the selection procedures at the outset before the time and effort of trial participants have been expended. The finality of criminal judgments would be encouraged. Sandbagging, whereby counsel forego inquiry of the court, exercise their peremptory challenges on the most favorable interpretation of an ambiguity, and then take exception when that interpretation is not followed, would be discouraged.

It would be ideal, of course, for the trial court to explain to counsel the procedure for jury selection with perfect clarity. It would be preferable if there were “local rules of court spelling out the procedure for exercising peremptory challenges in criminal cases,” See United States v. Turner, 558 F.2d at 537. But desirability of reform does not relieve courts from dealing with the world that confronts us. Iam not convinced that trial judges are so sensitive, trial lawyers so bashful, or relations between the two so brittle and uncommunicative that we cannot require of counsel a respectful inquiry without risking the ire or annoyance of the bench. Nor, in my judgment, are the normal obligations on government to give adequate notice of rights to criminal defendants shifted by encouraging an inquiry in the event that notice itself is, for understandable reasons, not clear.

The instant case well illustrates the interests that are served by a requirement of contemporaneous inquiry. The trial of these defendants lasted for five weeks and filled a transcript of more than four thousand pages, statistics that barely hint at the time, effort, and money that the public has invested in this case. Today the process begins again, probably at an even greater cost. Inevitably, other litigants will now be delayed or denied the use of finite judicial resources. The heavy burden thus placed on all litigants by a simple failure to communicate must be distributed through an equally heavy burden on each litigant to avoid confusion and misunderstanding. If a trial court statement admits of different meanings, and particularly as in this case of sharp ambiguity, counsel should ask the court for clarification rather than asking society to insure the risks of uncertain reliance. In holding the conduct of these defense attorneys to have been reasonable, the majority adopts a standard of behavior that does not adequately respect the important values of fairness through judicial efficiency, concerns that in our legal system must often be advanced by influencing the conduct of counsel.

I would affirm these convictions.

. It is worth note that at least one reasonable attorney did not share the defense counsel’s interpretation of the court’s statement. The prosecutor apparently first assumed that the court would select the jury from the top of the venire list. He properly sought confirmation of this assumption, and when the court responded to his inquiry he interpreted the statement to mean that the court would choose from the entire venire.

. A trial court might also control its own discretion by promulgating a local rule. The appellants do not argue that any such local rule existed or was violated in this case. The situation is therefore different from United States v. Sams, 470 F.2d 751, 752 (5th Cir.1972) (peremptory challenges impermissibly compromised when "without prior announcement to counsel the trial judge utilized a method of selecting a jury that varied from the local custom”).

. The trial court in this case granted the defendants two additional challenges, which made a total of twelve.

. These defendants did enjoy part of the value of their challenges despite the confusion that resulted in this appeal, for the final jury included none of the venire members whom the defense counsel struck. The majority assumes that the district court never considered these candidates; an equally fair assumption is that the district court might have chosen the candidates but for the fact that they were rejected by defense counsel. The court’s own statement supports the latter assumption; it noted that it might have “picked one of those people that you struck as the foreman.”