United States v. Michael Joseph Murphy

GIBSON, Circuit Judge,

dissenting:

I respectfully dissent and conclude that the proper course is to reverse the conviction and remand for a new trial. When the three notes the jury submitted to the district court during its deliberations are read together, I am convinced that they demonstrate a reasonable possibility that the holdout juror entertained doubts about the merits of the government’s case. Her dismissal thus violated Murphy’s non-waivable Sixth Amendment right to a unanimous verdict.

While I recognize that our review is for abuse of discretion, we also have held that “[t]he district court’s discretion in this area is not unbounded.” United States v. Symington 195 F.3d 1080, 1085 (9th Cir.1999). Indeed, “a court may not dismiss a juror during deliberations if the request for discharge stems from doubts the juror harbors about the sufficiency of the evidence.” Id. (quoting United States v. Brown, 823 F.2d 591, 596 (D.C.Cir.1987)). Symington reasoned that removing a juror “because he is unpersuaded by the Government’s case is to deny the defendant his right to a unanimous verdict.” Id. (quoting United States v. Thomas, 116 F.3d 606, 621 (2d Cir.1997)). If a court could discharge a juror on this basis, “then the right to a unanimous verdict would be illusory.” Brown, 823 F.2d at 596; see also Sanders v. Lamarque, 357 F.3d 943 (9th Cir.2004) (habeas relief affirmed on same theory where state trial court had dismissed the only juror who was holding out in favor of acquittal). The right to a unanimous verdict is so important that, under Federal Rule of Criminal Procedure 31, it cannot be waived. United States v. Lopez, 581 F.2d 1338, 1340 (9th Cir.1978).

I conclude that the three notes from Murphy’s jury demonstrate that this case falls within the prohibition in Symington that, “if the record evidence discloses any reasonable possibility that the impetus for a juror’s dismissal stems from the juror’s views on the merits of the case, the court must not dismiss the juror.” 195 F.3d at 1087. By referring to “a dissenting point of view with one juror,” the first note raises an inference that one juror had an opinion on the merits of the case that was contrary to the other eleven jurors’ view. In its second note, after its members had been re-instructed, the jury asked to review part of the evidence, indicating an attempt to continue deliberations. An 11-1 split was all but confirmed the next morning when the third jury note came, stating that one juror was “not willing to deliberate,” “not open to any additional information,” with an “opinion” that was “firm” and would not change, but also stating that the jury was “working on it.” Viewed in isolation, the third note could *646suggest that the holdout was uncooperative in the deliberative process. The parties thought so at the time, as their stipulation agreed to dismissal “of the one juror who is not deliberating.” Ordinarily, this refusal would provide good cause for dismissal. Perez v. Marshall, 119 F.3d 1422, 1427 (9th Cir.1997). Taken together, however, the notes certainly demonstrate that the dismissed juror had an opinion on the case that differed from all the other jurors’ view. The record does not allow us to determine whether she actually refused to deliberate or whether her frustrated fellow jurors merely thought she was refusing. See Symington, 195 F.3d at 1086-87. Under these circumstances, I conclude that the notes disclosed a reasonable possibility that the removal of the holdout juror stemmed from her views on the merits of the case in violation of Murphy’s right to a unanimous verdict.

The court today concludes that Syming-ton has no bearing on this case because the juror was dismissed by the parties’ stipulation under Federal Rule of Criminal Procedure 23(b)(2)(A), rather than for good cause under Rule 23(b)(2)(B) or (b)(3). First, I observe that neither the stipulation itself nor the parties’ oral statements to the district court specified which subsection of Rule 23(b) authorized the juror’s removal. In any event, the court’s distinction misses the mark because the plain language of Rule 23(b)(2)(A) only authorizes the parties to stipulate — subject to the court’s approval — that “the jury may consist of fewer than 12 persons”; it does not give them free rein to agree among themselves that a specific juror will be removed. The decision to remove a juror is for the district court, which must find “good cause” for dismissal, under the plain language of Rule 23(b)(2)(B) or (b)(3). Moreover, even if Rule 23 allows parties to agree to remove a juror without “good cause,” Rule 31 prohibits a defendant from waiving his right to have his guilt determined by a unanimous jury verdict. See Lopez, 581 F.2d at 1340. Where there is a reasonable possibility that the dismissal of a juror stemmed from her views on the merits of the case, this amounts to a violation of the unanimity requirement, Symington, 195 F.3d at 1085, and Rule 31 invalidates the remaining jurors’ verdict.

The court points out that a defendant is free to agree to a unanimous verdict of a jury of eleven, likening this case to United States v. Vega, 447 F.2d 698 (2d Cir.1971). I am unable to agree that Murphy’s stipulation “to the removal of the one juror who is not deliberating” was such an agreement. In Vega, the record unambiguously showed that the defendant was “unwilling to accept less than a unanimous verdict,” id. at 701, where the defendant agreed to the dismissal of the “primary hold-out” juror on the advice of experienced counsel who expressly insisted upon a unanimous verdict by a jury of eleven. Id. at 698-99. Here, neither the court nor Murphy’s counsel, who both remarked that they had never before proceeded this way, even mentioned Murphy’s non-waivable right to a unanimous verdict. More fundamentally, whether or not a defendant has experienced counsel who formally invokes the right to a unanimous verdict when he agrees to dismiss a juror who is holding out on the merits of the case, that agreement achieves the same result that a prohibited waiver of unanimity would achieve. To the extent the Second Circuit’s approach in Vega holds otherwise, it is inconsistent with the unanimity requirement of Rule 31 as construed by this circuit in Symington.

I believe that Rule 31 precluded Murphy from acceding to a reduction in jury size to remove the holdout juror where there was a reasonable possibility that she was hold*647ing out on the merits of the case. Thus, I dissent.