United States v. Robert Evans, Jr.

ERVIN, Circuit Judge,

dissenting.

Believing that the procedure employed by the trial judge in replacing a regular juror with an alternate juror after the jury had *1129been deliberating for some length of time was, under the circumstances of this case, plain error, I respectfully dissent.

I.

Although I have no quarrel with the majority’s characterization of the facts, I think a more extensive presentation of them is merited here.

Before the jury retired at 1:22 p. m., Nancy Stiles, an alternate juror, was excused. At 2:10 p. m., the trial judge was given a note written by Brian Bamberger, one of the regular jurors. Based upon this communication, the judge had the jury recalled to the courtroom. Shortly thereafter, at 2:14 p. m., the jurors were again excused while the court questioned Bamber-ger. The other eleven regular jurors were directed not to continue their deliberations.

As a result of his responses to questions from the court, Bamberger was excused. At about that time, the previously discharged alternate, Nancy Stiles, returned to the courtroom and was noticed by the judge. He examined Miss Stiles to determine whether she had been tainted by any contacts outside the courtroom, and satisfied himself that she had not been.

The judge then recalled the eleven remaining regular jurors at 2:58 p. m., added Miss Stiles to the panel, and at 3:00 p. m., the reconstituted jury retired. The judge did not instruct the jury to begin its deliberations anew, nor was such an instruction requested by defense counsel. A guilty verdict was reached at 3:35 p. m.

II.

It is my contention that the procedure employed here constituted plain error; that contention is buttressed by the rationale of the thirteen juror cases.

Rule 24(c) provides that “[a]n alternate juror who does not replace a regular juror shall be discharged after the jury retires to consider its verdict.” (emphasis added). Absent a written agreement pursuant to Rule 23(b) that deliberations may proceed with a jury of less than twelve, the mandate of Rule 24(c) is clear that the jury as it retires is the jury that is to return the verdict. There is no provision anywhere in the Rules for substitution of alternate jurors once the deliberative process has begun. The procedure adopted by the court below, and approved by the majority here, is contrary to the letter of the law, and was, in fact, specifically considered and rejected when the Rules were under study.1

The rationale of the thirteen juror cases from this Circuit, United States v. Virginia Erection Corp., 335 F.2d 868 (4th Cir. 1978), and United States v. Chatman, 584 F.2d 1358 (4th Cir. 1978), supports the argument that substitution of jurors after deliberations have begun is plain error. In Virginia Erection, the trial court had allowed an alternate juror to retire to the jury room and remain there during deliberations. Finding this procedure impermissible, this court pointed out that “Rule 24(c) patently makes no provision for the replacement of a juror who becomes disabled after the jury retires to deliberate.” 335 F.2d at 871. Judge Boreman’s construction of the rule is persuasive:

*1130The obvious purpose of Rule 24(c) is to make adequate advance provision for meeting a situation where a regular juror becomes incapacitated or disqualified and the defendant relies upon his constitutional right to a jury of twelve. The delay and expense necessarily arising as consequences of a mistrial and starting afresh with a new jury are thus avoided.
Rule 24(c) is explicit in defining the function of an alternate juror and the time when his replacement of a disqualified regular juror begins, that is, prior to the time when the jury retires to consider its verdict.
It is certain that the alternate [here] had no legal standing as a juror. Rule 24(c) required that he be discharged.
We deem it most unwise to place the judicial stamp of approval upon this attempt of court and counsel to circumvent the established rule and to substitute unauthorized procedures. 335 F.2d at 871-73.

Defense counsel’s failure to object, and apparent consent, to the procedure did not insulate it from attack. Chatman involved an inadvertent violation of Rule 24(c) when an alternate juror mistakenly remained with the jury during the first part of its deliberations. Virginia Erection was held to require a ruling that the presence of the alternate was plain error; again, no objection or motion for mistrial was required.

In an effort to distinguish Virginia Erection and Chatman from the instant case, the majority emphasizes that there were never in fact thirteen jurors in the jury room at the same time.2 I agree that this is so, but I am nonetheless persuaded that this case was in reality tried by a jury of thirteen members. The initial deliberations involved Brian Bamberger and the other eleven regular jurors. They remained together for approximately fifty minutes. Then, after Bamberger was replaced by Miss Stiles, the eleven regular jurors and Miss Stiles made up the fact finders. This group deliberated for thirty-five additional minutes. Unlike the cases in which an alternate was in the jury room under instructions to remain mute, it must be assumed that both Bamberger and Miss Stiles, as well as the other eleven regular jurors, discussed the evidence and participated in the jury’s deliberations. It cannot be gainsaid that thirteen different individuals did ponder the fate of Evans and contribute to the verdict against him.

It is also, in my opinion, not desirable to allow a juror who is unfamiliar with the prior deliberations to suddenly join the group and participate in the voting without the benefit of the prior group discussion. As the New York court of appeals, in striking down a statute allowing such a substitution, pointed out:

“the alternate juror entered the jury room after the eleven original jurors had sifted the evidence, and in all probability, already formulated their preliminary positions. Most important of all, each of the eleven jurors was aware of the outlooks and positions of the others on the questions presented by the case, and sufficient time had elapsed so that surely the interplay of influences among and between the jurors had come into operation ... If deliberations had progressed to a stage where the original eleven were in substantial agreement, they were in a position to present a formidable obstacle to the alternate juror’s attempts to persuade and convince the eleven remaining original jurors.” People v. Ryan, 19 N.Y.2d 100, 278 N.Y.S.2d 199, 224 N.E.2d 710 (1966).

In addition, the eleven regular jurors have had the benefit of the views of the original excused juror, which views were not available to the alternate.

*1131III.

The majority suggests that Evans here consented to this procedure and thus waived any right he might otherwise have had to object. At least one eminent authority suggests that consent in such a situation will not save the day. Professor Wright states that “it is reversible error, even though defendant may have consented, to permit an alternate to stay with the jury after they have retired to deliberate or to substitute an alternate after deliberations have begun.” 2 Wright, Federal Practice and Procedure, § 388 at 52 (1969) (emphasis added) (footnotes omitted).3

Even if consent could cure the error here and give rise to an effective waiver, I am unwilling to find that Evans effectively waived his rights within the meaning of Patton v. United States, 281 U.S. 276, 50 S.Ct. 253, 74 L.Ed. 854 (1930), which sets forth the criteria for such a waiver of constitutional jury rights. It is true that Evans did personally state that he preferred to add the alternate to the jury rather than to have a mistrial. However, Rule 23(b) of the Federal Rules of Criminal Procedure provides an explicit procedure for avoiding a potential mistrial when a regular juror is unable to continue. The record does not mention any discussion of Rule 23(b). As the majority points out, the parties did stipulate during oral argument that the subject of Rule 23(b) was brought up, but they conceded that it appears most probable that Evans “expressed no conclusion for or against an eleven man jury.”

This, to my mind, distinguishes the cases relied upon by my brethren, for in Henderson v. Lane, 613 F.2d 175 (7th Cir. 1980), the defendant specifically refused to stipulate to an eleven member jury, and in United States v. Baccari, 489 F.2d 274, 275 (10th Cir. 1973) (emphasis added), the opinion states that “[ajfter discussing various alternatives, it was agreed by all parties that the alternate juror should be recalled and the deliberations continued.”4

I am unable to accept the theory that there is a Patton waiver when a criminal defendant is never presented with an opportunity to choose among all of the available options. First of all, Evans was not called upon to elect between a mistrial and a Rule 23(b) eleven juror trial. Instead, he was told that he would either suffer a mistrial or allow the alternate to replace Bamber-ger. In short, he was forced to choose between a mistrial and an impermissible procedure without being given an opportunity to consider an avenue expressly made available by the Rules. This to me is neither an informed consent nor a knowing waiver. Without such consent and waiver, the conviction cannot stand. United States v. Lamb, 529 F.2d 1153 (9th Cir. 1975).

I re-emphasize, however, that I find the procedure employed here to be plain error, uncurable by consent. Patton was decided before the adoption of the Federal Rules of Criminal Procedure and it seems clear that Rules 23 and 24 control the case at hand. See Virginia Erection Corp., supra, at 870-71.

IV.

There is a superficial appeal to almost any scheme that would enable a trial judge to prevent a second trial in a protracted lawsuit when a juror becomes incapacitated *1132after jury deliberations have begun.5 However, I am unwilling to uphold the procedure employed in this case. If we enforce the rules as written, trial judges have clear and explicit guides to follow. If we permit deviations from the Rules, where do we stop? How many alternate jurors can be added to a panel? Under what circumstances and at what stage in the deliberations must the substitutions cease?

Therefore, although I concur in the majority’s handling of the evidentiary questions, I cannot agree with its affirmance based on the jury constitution issue.

For these reasons, I dissent and would award a new trial.

. The Committee history leading to the formulation and adoption of Rule 24 discloses that the United States Supreme Court Advisory Committee on Rules of Criminal Procedure seriously considered the possibility of permitting an alternate juror to replace a regular juror who becomes disabled during the jury’s deliberations but rejected it after the desirability and constitutionality of such a procedure had been questioned by the Supreme Court. [See Orfield, Trial Jurors in Federal Criminal Cases, 29 F.R.D. 43, 46.]

Rule 24(c) patently makes no provision for the replacement of a juror who becomes disabled after the jury retires to deliberate. The rule makers were concerned with establishing procedures whereby the courts could avoid mistrials in protracted cases. The procedure followed in the case'at bar, one which had been considered and rejected, was not only contrary to the letter but also the spirit of Rule 24(c).

United States v. Virginia Erection Corp., 335 F.2d 868, 871 (4th Cir. 1964).

The American Bar Association Project on Minimum Standards for Criminal Justice also rejected a similar proposal. See ABA Project on Minimum Standards for Criminal Justice § 2.7 at 326, Standards Relating to Jury Trial (Approved Draft, 1974).

. I readily concede that this case, unlike Virginia Erection and its progeny, does not involve issues of jury privacy, at least in the same sense that those cases do. I am, however, unwilling to put “the judicial stamp of approval” on any procedure that is contrary to the language of the law and that was specifically considered and rejected by the Rule writers.

. Elsewhere, Professors Wright and Miller note that “[t]he rule permits an alternate juror to replace a regular juror only prior to the time the jury retires to consider its verdict. It provides, in mandatory language, that an alternate juror who has not replaced a regular juror ‘shall be discharged’ when the jury retires.” 9 Wright & Miller, Federal Practice and Procedure, § 2484 at 477 (1971) (emphasis added) (footnote omitted).

. The opinion in Baccari reveals that the trial judge made an affidavit concerning a conference which was not a part of the record. A review of this affidavit obtained from the Tenth Circuit shows that the judge asserted, in part that “[ajfter a brief discussion, both defendants, personally, and both defense counsel stated that they did not want a mistrial declared and did not want to continue with eleven jurors." (emphasis added). This demonstrates that the defendants considered and rejected the Rule 23(b) option.

. It should be noted here that this was not a protracted trial, but one that lasted for only one and one-half days. Hence, this is not a case where considerations of judicial economy have any substantial relevance.