United States v. Ginyard, Sean

Notice: This opinion is subject to formal revision before publication in the

Federal Reporter or U.S.App.D.C. Reports. Users are requested to notify the

Clerk of any formal errors in order that corrections may be made before the

bound volumes go to press.

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).