# United States v. William T. Smith, Jr. Appeal of United States of America

> Court of Appeals for the Third Circuit · June 13, 1986 · 793 F.2d 85

URL: https://www.frixlaw.com/law-library/cases/9474976

## Case

- **Full name:** UNITED STATES of America v. William T. SMITH, Jr. Appeal of UNITED STATES of America
- **Court:** Court of Appeals for the Third Circuit
- **Decided:** June 13, 1986
- **Citations:** 793 F.2d 85; 55 U.S.L.W. 2027; 1986 U.S. App. LEXIS 26095
- **Precedential status:** Published
- **Opinion:** Dissent by Pollak
- **Judges:** III, Hunter, Poliak, Mansmann, Pollak, Announcing
- **Cited by:** 27 later opinions in the Frix Law Library

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## Opinion text

LOUIS H. POLLAK, District Judge,
dissenting.
I.
This court, in United States v. Miller, 753 F.2d 19 (3d Cir.1985) led the way in parsing the mandate of the Bail Reform Act of 1984 that bail pending appeal be conditional on a finding, inter alia, “that the appeal ... raises a substantial question of law.” 18 U.S.C. § 3143 (b). Following the decision in Miller , a number of other courts of appeal have sought to shed additional light on the delphic statutory language. I concur in Judge Mansmann’s demonstration that, as an explication of “substantial question of law,” the “fairly debatable” standard adopted by the Ninth Circuit in United States v. Handy, 761 F.2d 1279, 1282 (9th Cir.1985), is a sounder guide than the “ ‘close’ question” standard advanced by the Eleventh Circuit in United States v. Giancola, 754 F.2d 898, 901 (11th Cir.1985). Handy’s “fairly debatable” seems to me to comport better with the language of the statute and with the salutary approach to the statutory language taken by this court in Miller .
II.
Although I concur in Judge Mansmann’s conclusion that a question of law is “substantial” for purposes of the Bail Reform Act if it is “fairly debatable,” I do not agree with Judge Mansmann’s companion conclusion: namely, that defendant Smith’s constitutional challenge to the second sentence of Federal Rule of Criminal Procedure 23(b) — the 1983 amendment which provides 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” — did not raise an issue properly char-acterizable as “fairly debatable.” The substance of Smith’s claim was that a verdict rendered by a jury of fewer than twelve persons is constitutionally defective (unless, of course, a defendant stipulates, pursuant to the first sentence of Rule 23(b), to such a diminished jury).
As of the date (July 23, 1985) the district court determined that Smith was entitled to bail pending appeal, there appears to have been only one reported opinion discussing the then recently adopted amendment to Rule 23(b). That was the opinion of the district court in United States v. Gambino, 598 F.Supp. 646 (D.N.J.1984), affirmed, 788 F.2d 938 (3d 1986). The Gambino district court opinion describes the “just cause” which in that instance necessitated discharging a juror after deliberations had begun, and then explains why the court decided to proceed with eleven jurors rather than substitute one of the two sequestered alternates. All the opinion says about the validity of amended Rule 23(b) is the following:
Finally, counsel for the defendants, in urging that this court proceed to substitute an alternate, did not attack Rule 23(b). Thus, the record is barren of any argument that somehow Rule 23(b) was flawed or faulted. Certainly, it cannot now be contended that there is any imperfection, constitutional or otherwise, in the procedure permitted under Rule 23(b).
598 F.Supp. at 661 . 1 Thus it may fairly be stated that, at the time the court below *93 concluded that defendant Smith should be at large pending appeal, that court did not have at its disposal any case law commenting in other than conclusory terms on the validity of the second sentence of Rule 23(b). 2
The case for the validity of the second sentence of Rule 23(b) rests on the Supreme Court’s opinion in Williams v. Florida, 399 U.S. 78 , 90 S.Ct. 1893 , 26 L.Ed.2d 446 (1970). Williams v. Florida was decided in 1970, thirteen years before the Court, in its rule-making capacity, amended Rule 23(b) to add the language challenged by Smith. In Williams v. Florida, the question presented was whether a state’s constitutional obligation to provide a jury in a criminal case — an obligation which the Court, in 1968, had found implicit in the Fourteenth Amendment 3 — was satisfied by a jury of six persons. A divided Court answered that question in the affirmative. En route to its decision, the Court determined that the Sixth Amendment, while in haec verba mandating a “jury” in a federal criminal trial, did not require that the “jury” be composed of twelve persons.
Unquestionably, the 1983 amendment to Rule 23(b) gains strong support from the Court’s pronouncement in Williams v. Florida. That favoring constitutional wind is enhanced by the presumption of validity which properly attaches to a rule of procedure promulgated by the Supreme Court pursuant to its statutorily delegated rule-making authority. 4 And if the second sentence of Rule 23(b) has such impressive credentials, how can its validity be characterized as “fairly debatable”?
The doubt with respect to amended Rule 23(b)’s validity inheres in the Court’s own language in Williams v. Florida. The Court was plainly aware that its latitudinarian description of what a federal criminal jury might look like reflected a sharp departure (and one which, it may be noted, commanded the support of only five of the Justices 5 ) from what had theretofore appeared to be a settled constitutional understanding that the word “jury” as used in the Sixth Amendment connoted “a jury of twelve persons.” 6 Against that background, the Court was careful to make clear that its new reading of the Sixth Amendment would not of its own force confer on federal trial judges any warrant to empanel juries of fewer than twelve: “Our holding does no more than leave the considerations to Congress ... unrestrained by an interpretation of the Sixth Amendment that would forever dictate the precise number that can constitute a jury.” 399 U.S. at 103 , 90 S.Ct. at 1907 .
In the light of this language, it would seem well within the range of reasonable argument that the five Justices comprising the Williams v. Florida majority contemplated that implementation of the path-breaking constitutional latitude there announced would entail affirmative legislation by Congress, not merely Congressional non-objection to a “rule of procedure” *94 promulgated by the Court in its non-adjudicative capacity. 7
III.
The challenge to Rule 23(b) summarized above is not one which, ultimately, I am persuaded by. Indeed, I have already joined in concluding that the district court was on sound constitutional ground in exercising the discretionary authority conferred by the second sentence of Rule 23(b). 8 But I have no difficulty in characterizing the issue of the amended Rule’s validity as “fairly debatable” at the time the district court admitted Smith to bail pending appeal. Therefore, I respectfully dissent from the judgment of this court reversing the order of the district court.
. This court affirmed the district court on April 18, 1986. United States v. Gambino, 788 F.2d *93 938 (3d Cir.1986). The opinion notes that “Appellants concede that they have no constitutional right to a twelve-person jury, see Williams v. Florida, 399 U.S. 78, 103 [ 90 S.Ct. 1893, 1907 , 26 L.Ed.2d 446 ] (1970)." Id. at 947.
. Subsequently, two courts have addressed the question. One is the Second Circuit, which sustained the amended Rule 23(b) in United States v. Stratton, 779 F.2d 820 (2d Cir.1985). The other is this court, in the opinion rejecting the appeals of defendant Smith and his co-defendant Stoneman. United States v. Smith, 789 F.2d 196 (3d Cir.1986). Compare, United States v. Gambino, supra, note 1.
. Duncan v. Louisiana, 391 U.S. 145 , 88 S.Ct. 1444 , 20 L.Ed.2d 491 (1968). Justices Harlan and Stewart dissented.
. 18 U.S.C. § 3771 .
. Justice White wrote for the Court in Williams v. Florida. On the jury issue (the case also presented a notice-of-alibi issue not pertinent here) Justices Harlan, Stewart and Marshall dissented from the Court’s pronouncement that a federal criminal jury could number fewer than twelve. Justice Blackmun did not participate.
. Thompson v. Utah, 170 U.S. 343, 355 , 18 S.Ct. 620, 624 , 42 L.Ed. 1061 (1898); accord. Patton v. United States, 281 U.S. 276, 288 , 50 S.Ct. 253, 254 , 74 L.Ed. 854 (1938).
. With respect to a change in "procedure" which did not involve modifying long-accepted constitutional architecture, see Justice Roberts’ opinion for the Court and Justice Frankfurter’s dissent in Sibbach v. Wilson, 312 U.S. 1 , 61 S.Ct. 422 , 85 L.Ed. 479 (1941).
. See United States v. Smith, supra, note 2.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9474976. Public record. Not legal advice.