United States v. Kenneth Arpan

LAY, Chief Judge,

with whom McMILLIAN and ARNOLD, Circuit Judges, join, dissenting.

I respectfully dissent. This is indeed an unfortunate case. The defendant has been convicted on four counts of embezzlement and theft from an Indian tribal organization in violation of 18 U.S.C. § 1163 (1982). He was acquitted on four other counts. He was sentenced to a five year concurrent term. The government basically alleged that Arpan had overcharged the tribal organization on excavation and landscaping *878 work, submitted false bills for equipment used, and wrongfully converted money of the tribal organization to his own use. Ar-pan testified and denied all allegations against him. The record contains conflicting testimony and is far from overwhelming in sustaining the defendant’s guilt. It is clear from the record that a jury could have as easily acquitted the defendant as it could have convicted. The jury had great difficulty in their deliberations. The case was submitted to the jury at 4:45 in the afternoon on August 18, 1987. The jury deliberated for three days and during that time submitted a number of notes to the court for consideration and explanation. The first note came at 5:45 p.m. on the first afternoon. The jury had not reached a verdict by 9:30 p.m. that evening and the court excused them until the next morning at 9:00 a.m. At 10:05 the next morning the court received a second note. After the court’s response was given, a third note was received at 10:30 a.m. A fourth note was received at 3:15 p.m. After the court’s response a fifth note was received at approximately 8:10 p.m. It was not until the next afternoon the jury returned its verdict of guilty on four counts.

It is obvious from the tenor of the notes that the jury could not reach a verdict on some of the counts. The problem is posed primarily by the jury’s question and the court’s response to the second note. The jury asked: “If we do not have a unanimous decision on a count — (a split decision) —how do we record this on the count(s)?” The court’s response was “as to any count in the indictment, you may not return a verdict unless your verdict as to that count is unanimous.” 1 This response was made more emphatic when the court later responded to note 5. The jury queried: “Judge: We are not in agreement on 2 counts. Will the lack of a verdict on 2 counts affect our decisions on the rest of the counts? If so how?” The court responded:

* * * you may return a verdict as to each count upon which you are unanimous.

* * * Please notify me by note as to whether you wish to return at this time the verdicts upon which you are unanimous.

Upon return of the verdicts on which you are unanimous you may then retire * * * to deliberate upon the counts on which you have not yet reached a unanimous verdict.

(Emphasis added).

This appeal was originally submitted to a panel consisting of myself, Judge Beam and a distinguished visiting judge and a former Chief Judge, now senior circuit Judge John Brown, who has served as a federal judge since 1955. Judge Brown wrote an opinion in which I joined and Judge Beam dissented.

Judge Brown, aware that this appeal did not involve a challenge to the Allen charge, but to the possible interpretation by the jury of the court’s responses, wrote:

But in the words of the jury’s inquiry, these are not the only “options”. Because there is in fact — as all judges and attorneys, prosecution, defense, or both, know too well — the perfectly constitutional option of a failure of the jury to agree. The potential prospect of a hung jury is necessarily a constitutional alternative to our system of requiring proof beyond a reasonable doubt.

* * * Obviously, a trial court cannot instruct the jury that they must return a verdict, guilty or not guilty. And yet, that is the practical consequence of what the trial judge did here. The instruction, as given here in response to the jury’s specific question, denied this jury the option of a hung verdict. This constitutes reversible error.

United States v. Arpan, 861 F.2d 1073, 1077 (8th Cir.1988) (footnotes omitted).

Judge Beam’s dissent was succinct and to the point: there was no prejudicial error because the jury was presumed to follow *879 all of the instructions given as a whole. The other instructions were, of course, given at the time the case was originally submitted to them. Id. at 1078 (Beam, J., dissenting).

Thereafter a suggestion for rehearing en banc was received and the majority of the court voted to place the case en banc. 2 The majority of the court now reinstates the conviction, finding the court’s responses to the jury’s inquiries, along with the earlier jury instructions, do not demonstrate error.

In doing so, the majority fails to apply or even discuss the proper standard of review in such a case. Our focus on whether there was error should not be based upon a judge’s evaluation of right or wrong; rather the focus is to determine how a reasonable juror would have interpreted the court’s instruction. See Sandstrom v. Montana, 442 U.S. 510, 514 , 99 S.Ct. 2450, 2454 , 61 L.Ed.2d 39 (1979); Francis v. Franklin, 471 U.S. 307, 315 , 105 S.Ct. 1965, 1971 , 85 L.Ed.2d 344 (1985). Thus, our review should consider whether a reasonable possibility exists that a reasonable juror could have understood that the option of a “hung jury” was not available. If the jury could have reasonably understood the court’s responses to require unanimity in the result, guilty or not guilty, then there existed patent error.

To urge as the majority now does that the jury was accurately and appropriately instructed ignores the plain meaning of the district court’s responses. The majority’s result ignores as judges what man’s intuitive nature tells us otherwise.

This fact is corroborated by the receipt of a letter by the district judge from a juror in the case. 3 The letter was received on August 21, 1987, the day after the verdict. It reads:

In regards to the trial of Kenneth Ar-pan, there are some matters you should be aware of.

As a juror, I took my job serious. During our deliberation, the evidence was thoroughly looked through, the testimony considered and much discussion took place. At the time of our final verdict on each count, we were informed by you that the only choices we had were to unanimously find Mr. Arpan either guilty or not guilty. But, we were not informed that if no decision could be reached unanimously, the count would be considered undecided. I found the defendant not guilty on all counts. After your note was returned to the jury room stating our two choices, the bargaining began between the jurors. I held out my decision until the end. I compromised the smaller amounts of money for a not guilty verdict on the larger amounts.

(Emphasis added.)

The majority’s response that instruction # 20, given prior to any deliberation by the jury, when read as a whole corrected any misunderstanding, is puzzling to me. This instruction was read two days before the misleading responses. In making its responses the court did not refer the jury back to this charge. The issue is not whether the technical language of the *880 court’s response is legally correct. What the majority fails to evaluate is the fact that the response must be reviewed in light of the question asked. The issue is whether there exists a reasonable possibility that when considering the text of the question asked a reasonable juror could have misunderstood the court’s responses. It is clear that such a reasonable possibility exists and that Judge Brown’s opinion should be reinstated. 4

. In its fourth note, the jury, stating it had only unanimously decided one count, requested the court inform them of their "options” at that point. The court responded with an Allen charge, similar to that approved in United States v. Cook, 663 F.2d 808 (8th Cir.1981), encouraging the jury to continue their deliberations.

. Placing the case en banc, requiring the energies of the full court, is perhaps the most remarkable event surrounding this case. Federal Rule of Appellate Procedure 35(a) limits the court to hear only exceptional cases. A rehearing en banc should be necessitated not by reason of a result in a given case, not because of the correctness of the decision but by reason of the exceptional importance of the case requiring the attention of the full court. See Western Pac. R.R. Corp. v. Western Pac. R.R., 345 U.S. 247, 260-62 , 73 S.Ct. 656, 662-64 , 97 L.Ed. 986 (1953). This case hardly fits that category. It involves specific facts which in all probability will never be repeated and the case can hardly serve as a valuable precedent in this circuit or anywhere else. An en banc guarantee to reinstate guilty verdicts in criminal cases is insignificant to the precedential value of procedural fairness required in all criminal cases. These events recall Frankfurter’s earlier aphorism that “[t]he history of liberty has largely been the history of observance of procedural safeguards. And the effective administration of criminal justice hardly requires disregard of fair procedures imposed by law.” McNabb v. United States, 318 U.S. 332, 347 , 63 S.Ct. 608, 616 , 87 L.Ed. 819 (1943).

. In a somewhat similar case in the Tenth Circuit the court reversed a guilty verdict. In an excellent opinion written by Chief Judge Seth, another distinguished former chief judge of many years, the court stated:

The trial judge received a question from the foreman of the jury during its deliberations. The question was:

“Do all decisions have to be unanimous?" The judge did not advise the parties or the attorneys of the question and responded:

"Members of the Jury: All verdicts you return have to be unanimous one way or the other. If you cannot agree as to any then you do not return a verdict as to it.”

The question was whether “decisions" have to be unanimous and the answer was that "verdicts" have to be unanimous. This would not ordinarily be significant but verdict forms had been provided to the jury. There was a sheet for each defendant and the sheet was headed "Verdict”. Below the heading "Verdict” there were spaces opposite each count for the finding of the jury. With the response of the judge to "decisions," it is apparent that the jury could well have believed that its question as to decisions with the answer of the court meant that the "decisions” as to each count had to be the same to make the "verdict” unanimous.

The court’s answer to the unanimous decision question was confusing and created a definite possibility for prejudice. The answer was in substance a reinstruction on the point and departed from the instructions originally given.

The Government did not show the communication as to "decisions” to be harmless error. The trial court’s response to the jury is by no means in “strict and exact conformity,” see United States v. Arriagada, 451 F.2d 487 (4th Cir.), with the charges previously given in the defendants’ presence. Rather, it is susceptible to various interpretations. "A conviction ought not to rest on an equivocal direction to the jury on a basic issue.” Bollenbach v. United States, 326 U.S. 607, 613 , 66 S.Ct. 402, 405 , 90 L.Ed. 350 . The trial court’s instruction, delivered ex parte, deprived the defendants of any opportunity of clarifying the ambiguity created by the supplemental instruction. That deprivation constitutes reversible error. United States v. Schor, 418 F.2d 26 (2d Cir.).

United States v. DeHernandez, 745 F.2d 1305, 1307-08 (10th Cir.1984).

. Of course, such a letter cannot serve as a basis for a new trial. See Fed.R.Evid. 606(b). The original panel opinion by Judge Brown so held. Nonetheless the letter does serve to corroborate the fact that a reasonable juror could have misunderstood the district court's response.