Sloan v. United States

FERREN, Associate Judge,

concurring in part and dissenting in part:

I concur in the court’s opinion except for Part IV, from which I respectfully dissent.

*1291 I.

On April 4, 1985, the trial judge’s law clerk, and thus the judge, inadvertently-received ex parte information from a juror. It explained why the jury had acquitted appellant on the charge of malicious disfigurement and revealed that the jury, in doing so, had misunderstood the judge’s instructions. The judge disclosed this contact to the parties six weeks later on May 17, immediately before sentencing. He stated that the jury’s “interesting distortion of instructions ... explains the jury’s verdict to some extent,” and he added that, henceforth, he would change, in order to clarify, the instruction on malicious disfigurement. But he also assured everyone concerned that the jury’s misunderstanding, leading to the acquittal, “makes absolutely no difference whatsoever to the sentence I am probably going to impose in this case.”

Defense counsel responded by requesting a brief continuance to interview the juror, and perhaps other jurors, adding: “And given that the Court says that that explains the jury verdict without having heard from any of the other jurors, I think that it does make a difference in terms of what kind of sentence is to be given.” Defense counsel obviously was concerned that the judge might use the information from this one juror, which he apparently credited as true, as a basis for imposing a longer sentence for the assault with a dangerous weapon than he might otherwise have imposed. It is true that a trial judge, in selecting a sentence, is not precluded from considering evidence that related to a charge on which the jury has acquitted. See United States v. Bernard, 757 F.2d 1439, 1444 (4th Cir.1985) (citing cases); United States v. Sweig, 454 F.2d 181, 184 (2d Cir.1972); cf. United States v. Campbell, 221 U.S.App.D.C. 367, 380 , 684 F.2d 141, 154 (1982) (declining to “pursue Sweig to its ultimate reading,” but affirming trial court’s sentence based on evidence relating to crimes for which defendant was acquitted). Counsel apparently surmised that the judge may be more inclined to do so, however, when he believes the jury itself would have convicted but for a misunderstanding of the court’s instructions. Thus, defense counsel understandably sought time to interview the jurors for the purpose of eliciting more complete information — including, possibly, an entirely different report of the deliberations — that might help disabuse the trial judge of any meaningful reliance on the ex parte contact.

While I do not at all doubt the trial judge’s integrity in the matter, I believe he abused his discretion in denying a continuance for this fact-finding purpose. Counsel had a right to investigate the accuracy of information which the judge, before sentencing, received ex parte from a juror through a law clerk. This second-hand information from one juror had impressed the judge enough that he announced he intended, as a result, to revise the standard jury instruction on malicious disfigurement. It follows — to me irresistibly — that defense counsel should have received time to investigate the entire situation, in order to present to the trial court whatever evidence and arguments were available either to assure, after a hearing, that the judge was not influenced by the improper contact in selecting a sentence or, alternatively, to convince the judge to recuse himself given the risk of a psychological taint from such disturbing information.

II.

But even if defense counsel’s proffered reason for a continuance had doubtful potential, given the trial judge’s statement that the jury’s misunderstanding made “absolutely no difference whatsoever,” there was another obvious reason for a continuance: the judge, at the very least, was confronted by the problem of an “appearance” of impropriety. 1

*1292 This problem of “appearances” was significant, not trivial. After learning that the jurors had acquitted appellant of malicious disfigurement because they apparently had misunderstood his instructions, the trial judge imposed the severest possible sentence for assault with a dangerous weapon. That sentence included not only the maximum imprisonment but also $6,000 in restitution which this court today holds both inadequately justified by findings of fact and unlawfully enlarged to cover pain and suffering. However justified the imprisonment may be, and however reasonable the judge’s interpretation and application of the restitution provisions may have been at the time, it unquestionably appears that the trial judge may have “thrown the book” at appellant, within statutory limits, to compensate for a perceived injustice in the acquittal for malicious disfigurement — a perception enhanced by a juror’s announced mistake for which the trial judge may have felt responsible.

This appearance of impropriety is all the more serious for two reasons: First, the trial judge waited 43 days to disclose the ex parte contact (described by the judge himself as a “relevant” matter), and yet he gave defense counsel only a few seconds at the sentencing hearing, immediately after disclosing the contact, to try to persuade the court of the significance of that contact. Second, the trial judge did not address, and thus may not have been aware of, the appearances problem; as far as one can tell from reading the transcript, the judge disclosed the juror contact only to show the jury’s misunderstanding of the instruction, as a matter of general interest, and to state for the record that the judge would not, in fact, be affected by it at sentencing. In a significant respect, therefore, the judge's comments missed the point.

III.

In sum, the trial judge should have granted the requested continuance to permit counsel not only to explore the proffered basis for it — juror interviews — but also to develop an obvious alternative basis: the appearance of impropriety. There is no reason to assume that, after a hearing for which counsel had been given time to prepare, the trial court’s judgment could not have been affected, even to the point of recusal.

Accordingly, I do not agree with the majority that the same judge can now cure this particular problem, on remand, by “al-lowpng] a further investigation of the juror’s comments” if the court feels it is appropriate. Ante at 1288 note 17. Whether or not defense counsel’s interviews with the jurors, followed by a hearing on a motion to recuse, would have resulted in a showing of actual prejudice in sentencing, this remand procedure, after all that has happened, would not now be enough to eliminate the appearance of impropriety. I would remand for resentenc-ing by another judge, “‘both for the judge’s sake and [for] the appearance of justice.’” United States v. Ewing, 480 F.2d 1141, 1142 (5th Cir.1973) (per curiam) (citation omitted).

. The Supreme Court has stated with respect to the similar issue of judicial bias: “[T]o perform its high function in the best way ‘justice must satisfy the appearance of justice.’" In re Murchison, 349 U.S. 133, 136 , 75 S.Ct. 623, 625 , 99 L.Ed. 942 (1955) (quoting Offutt v. United States, 348 U.S. 11, 14 , 75 S.Ct. 11, 13 , 99 L.Ed. 11 (1954)); see also Pepsico, Inc. v. McMillen, 764 F.2d 458, 460 (7th Cir.1985) (judge must recuse self from case "whenever there is 'a rea *1292 sonable basis’ for a finding of an ‘appearance of partiality under the facts and circumstances’ of the case”) (quoting SCA Services, Inc. v. Morgan, 557 F.2d 110, 116 (7th Cir.1977) (per curiam)).