Petition for Writ of Certiorari — Parness v. United States

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In The

Supreme Court of the United States

October Term, 1985

LEONARD PARNESS,

Petitioner,

VS.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

SECOND CIRCUIT

SERCARZ, SCHECHTER & LOPEZ

By: FRANK A. LOPEZ

Attorneys for Petitioner

189 Montague Street

Brooklyn Heights, NY 11201

(718) 624-2112

Dick Bailey Pninters, 203 Richmond Avenue @ Staten Island, New York 10302

Tel.: (212) 608-7666 — (718) 447-5358 — (516) 222-2470 — (914) 682-0848

i

QUESTIONS PRESENTED

Was the verdict of eleven jurors proper and consistent

with Federal Rules of Criminal Procedure 23(b) when the

District Court, over objection, decided to continue after

deliberations commenced with eleven jurors rather than

grant a continuance from Wednesday, October 10, 1984,

to Monday, October 15, because of the religious obser-

vance of one juror?

ili

TABLE OF CONTENTS

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Constitutional and Statutory Provision

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Reasons Why the Writ Should be Granted ................... 3

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Appendix—Order of the United States Court of

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CASES CITED

United States v. Stratton, __U.S.__ (Second Cir.

1985), siip opinion 1073, Dec. December 13th, 1985 ....1,2

Williams v. Florida, 399 U.S. 78 (1970) ............cceeeeeees 4

No.

In The

Supreme Court of the Wnited States

October Term, 1985

LEONARD PARNESS,

Petitioner,

VS.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

SECOND CIRCUIT

INTRODUCTION

Petitioner LEONARD PARNESS, was convicted in

the United States District Court for the Southern District

of New York (Constance Baker Motley, Chief Judge) of

Narcotic Violations upon the verdict of eleven jurors,

returned after one juror was excused during deliberations

pursuant to Federal Rules of Criminal Procedure 23(b).

The United States Court of Appeals for the Second Circuit

affirmed the decision in United States v. Stratton, __ U.S.

__ (Second Cir. 1985), slip opinion 1073, Dec. December

13th, 1985.

JURISDICTION

Petitioner was convicted in the United States District

Court for the Southern District of New York and his con-

viction on Narcotic Violation was affirmed in the United

States Court of Appeals for the Second Circuit in the mat-

ter of United States v. Stratton, et al., supra. Petitioner

seeks a Writ of Certiorari to the United States Court of

Appeals for the Second Circuit and invokes the jurisdic-

tion of this Court under 28 U.S.C. §1254(1).

FEDERAL RULE INVOLVED

Involved here is Federal Rule of Criminal Procedure

23(b) which provides in part:

‘Jurys shall be of twelve but . . . 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 a Court a

valid verdict may be returned by the remaining eleven

jurors.”’

This rule was amended in 1983. Prior Rule 23(b) per-

mitted a verdict of less than twelve jurors only by stipula-

tion.

STATEMENT OF THE CASE

On Monday, October 8, 1984, after summations had

begun, trial juror No. 10, an observant Jew, approached

the District Judge and stated that he would have to leave

early the coming Wednesday, October 10, because of a

religious holiday which would have to be observed

through Thursday and Friday.

3

The District Court discussed the matter with the at-

torneys at trial and defense counsel immediately objected

to any substitution. They requested instead that the trial

be adjourned until October 15, 1984.

The defense lawyers asserted that juror No. 10 had

raised the prospect of her unavailability because of the

holiday during the Voir Dire. Trial Court at that time did

not excuse the juror but allowed the juror to be sworn and

to serve. No party moved to exclude the juror.

In any event, the Trial Judge indicated that a delay

during the course of deliberations from Wednesday until

the following Monday was unacceptable and that despite

objection by defense counsel such an adjournment was not

about to happen. The juror was excused and deliberations

followec with eleven jurors.

During the course of the direct appeal in the United

States Court of Appeals for the Second Circuit, all ap-

pellants argued that the District Court had abused its

discretion by improvidently exercising authority under

Federal Rule of Criminal Procedure 23(b).

REASONS WHY THE WRIT SHOULD BE GRANTED

Petitioner argues that the trial Court abused its

discretion in excusing the juror and having jury delibera-

tions on the basis of eleven jurors. Juror No. 10 was not

incapacitated in the sense that she could no longer serve on

the jury or was unwilling to deliberate on the issues involv-

ed. Her absence was due to religious observance which

would last only two and one half working days (Wednes-

day afternoon, Thursday and Friday) excluding Saturday

and Sunday. The request by the juror as to her religious

observance was known to the Court and all parties involv-

4

ed. There was no application made to excuse the juror and

the Court Sua Sponte made no motion to dismiss the juror

at that time.

While Williams v. Florida, 399 U.S. 78 (1970) does

not require twelve jurors for conviction as constitutionally

required, a fair reading of the rule involved is clear that

under the facts of this case the trial Court abused its

discretion under Rule 23(b) of the Federal Rules of

Criminal Procedure. The opinion of the United States

Court of Appeals for the Second Circuit is attached to the

Appendix herein and is covered by pages 20a through 30a.

CONCLUSION

For the reasons set forth above, the Petition for a

Writ of Certiorari should be granted.

Respectfully submitted,

SERCARZ, SCHECHTER & LOPEZ

By: FRANK A. LOPEZ

189 Montague Street

Brooklyn Heights, NY 11201

(718) 624-2112

la

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

-

Nos. 1073, 1332, 1373, 1374, 1375—August Term 1984

Argued: August 12, 1985 Decided: December 13, 1985

Docket Nos. 84-1441, -1459, -1460, -1463, -1365

—$++—

UNITED STATES OF AMERICA,

Appellee,

—_—V—

RICHARD LOWELL STRATTON, STEVEN PARNESS,

LEONARD PARNESS, and BERNARD FARBAR,

Defendants-Appellants.

Before:

NEWMAN and WINTER, Circuit Judges,

and COFFRIN, District Judge.*

+

The Honorable Albert W. Coffrin, Chief Judge of the United States

District Court for the District of Vermont, sitting by designation.

2a

Appeal from judgments of the District Court for the

Southern District of New York (Constance Baker Motley,

Chief Judge), convicting defendants, after a jury trial, of

narcotics violations. Appellants challenge, among other

things, the verdict of eleven jurors, returned after one

juror was excused during deliberations pursuant to Fed.

R. Crim. P. 23(b).

Affirmed.

—_—_—_—

PHYLIS SKLOOT BAMBERGER, New York,

N.Y. (The Legal Aid Society, Federal

Defender Services Unit, New York, N.Y.,

on the brief), for defendant-appellant

Stratton.

IVAN S. FISHER, New York, N.Y. (David W.

Ely, Fisher & Ely, New York, N.Y., on the

brief), for defendant-appellant Farbar.

(Frank A. Lopez, Brooklyn Heights, N.Y.,

submitted a brief the defendants-appel-

lants Steven Parness and Leonard Par-

ness.)

STUART E. ABRAMS, Asst. U.S. Atty., New

York, N.Y. (Rudolph W. Giuliani, U.S.

Atty., Charles M. Carberry, Asst. U.S.

Atty., New York, N.Y., on the brief), for

appellee.

3a

JON O. NEWMAN, Circuit Judge:

This appeal concerns primarily the validity of a verdict

returned in a criminal trial by an eleven-person jury, after

a juror was excused during deliberations pursuant to the

recently amended Rule 23(b) of the Federal Rules of

Criminal Procedure. Richard Stratton, Steven Parness,

Leonard Parness, and Bernard Farbar appeal from judg-

ments of conviction entered in the District Court for the

Southern District of New York (Constance Baker Motley,

Chief Judge) following a jury trial. All appellants but

Stratton were convicted of conspiracy either to distribute

drugs or possess drugs with intent to distribute them, in

violation of 21 U.S.C. § 846 (1982).' All appellants were

convicted of conspiring to import hashish, in violation of

21 U.S.C. § 963 (1982), and of importing hashish, in

violation of 21 U.S.C. §§ 952, 960 (1982). Stratton was

also convicted of engaging in a continuing criminal en-

terprise, in violation of 21 U.S.C. § 848 (1982), and cited

for criminal contempt for his conduct during the course

of the trial.? In addition to the eleven-person jury issue,

all appellants but Farbar challenge the sufficiency of the

evidence to support their convictions and certain eviden-

tiary rulings. Stratton challenges certain of the jury in-

! The Government agreed to sever this conspiracy couat as to Stratton

prior to trial.

2 The District Court sentenced Stratton to ten years’ imprisonment, a

$100,000 fine, and a five-year special parole term on the drug counts

and to a consecutive six-month prison term for contempt. These

sentences are consecutive to a fifteen-year prison term Stratton re-

ceived in another drug case in the District of Maine. Steven Parness

was sentenced to six years’ imprisonment, $175,000 in fines, and a

special parole term of five years. Leonard Parness received five years’

imprisonment, fines of $175.000, and a five-year special parole term.

Farbar received six years’ imprisonment, a $25,000 fine, and a special

parole term of five years. One defendant, Robert Goldstein, was

acquitted.

4a

structions and the summary nature of the criminal

contempt proceeding.’ Because each of these contentions

is without merit, we affirm.

I. Background

The Government’s proof at trial demonstrated that

appellants, under the leadership of Stratton, were respon-

sible for importing a major hashish shipment into the

United States from Lebanon in 1981. Stratton became

acquainted with the international drug business in the

mid-1970’s. Shortly thereafter, Farbar became his assis-

tant. In the late 1970’s, Stratton met Mohamad Berro, a

former Lebanese customs inspector, who, with his son

Nassif, was a substantial supplier of Lebanese hashish. In

January 1980, Stratton and Farbar planned to import

hashish from Lebanon, with the Berros as their source of

supply. The shipment, purportedly of machine tools, went

by air from Lebanon to Tokyo, Japan, and then to

Kennedy Airport in New York. Because of the shipment’s

unusual itinerary, Customs officials inspected it and dis-

covered 2,000 pounds of hashish. At that time, the

Government could not identify the responsible parties.

Stratton resolved to find a better cover for his next

importation of Lebanese hashish. For this purpose, he

brought Steven Parness and his father, Leonard, the

owner of a New Jersey based trucking concern, into the

conspiracy. The Parness Trucking Company had_a busi-

3 Stratton also challenges his sentence on the continuing criminal

enterprise count. He acknowledges that United States v. Mourad, 729

F.2d 195 (2d Cir. 1984), cert. denied, 105 S. Ct. 2700 (1985), forecloses

in this Court his challenge to the sentences he received for engaging in

a continuing criminal enterprise and for committing the underlying

substantive predicate offenses but raises the issue to preserve it for

Supreme Court review.

Sa

ness relationship with a company that imported dates

from the Middle East, the Bordo Products Company of

Chicago. It was decided that an importation of 150,000

pounds of dates by Bordo would be used to camouflage

importation of more than seven tons of hashish and

hashish oil.‘

In preparation for the second shipment, Mohamad and

Nassif Berro visited New York in April of 1980. They

attended a dinner meeting with Stratton, his wife, Ga-

brielle, and Farbar. Sobhi Hammoud, a distant relative of

the elder Berro, acted as his interpreter. Mohamad Berro

told Hammoud that Stratton and Farbar had been good

customers of his in the date business for some time.

Hammoud acted as interpreter for Mohamad Berro at a

second dinner meeting with Stratton and Farbar at which

the date business was again discussed. Berro invited

Stratton to come to Lebanon to inspect the goods. Strat-

ton’s passport shows that he visited Lebanon in July of

1980.

Mohamad Berro returned to New York in September

1980. He and Hammoud met with the Strattons, Farbar,

and Steven Parness. Patness displayed a bag of dates and

told Berro that the sample demonstrated the quality of

dates desired by his customer, the Bordo Company. Berro

agreed to provide dates of that quality. Berro later

shipped a sample of dates to New York. The Bordo

Company found them to be of acceptable quality. In

January 1981, Bordo formally confirmed an agreement to

purchase 150,000 pounds of Iraqi dates from the Berros.

In January 1981, the Strattons went to Lebanon at

Mohamad Berro’s request. Stratton sent for Farbar, who

4 Hashish oil is a highly potent form of concentrated hashish.

6a

smuggled $50,000 in cash into Lebanon as the first

downpayment on the illicit hashish shipment. In February

1981, the dates and the hashish were loaded on two ships

in Beirut, Lebanon. The total shipment consisted of six

containers. Within each container, cartons of hashish

were surrounded by layers of cartons of dates.

In April 1981, the two ships arrived in New York.

Leonard Parness had been assigned by Stratton to pick up

the shipment but was hesitant out of fear of discovery by

Customs officials. Stratton paid Leonard Parness

$600,000 to convince him to pick up the shipment. Cus-

toms officials accompanied the shipment to the ware-

house of the Parness Trucking Company. They made a

cursory inspection, and, finding only dates, they left.

After initial delivery, the Parnesses moved the hashish to

a “stash-house” located on Staten Island.

In May 1981, Mohamad Berro traveled to New York to

receive payments for successful delivery of the hashish.

On separate occasions, Stratton gave him $20,000,

$180,000, and $30,000. As Stratton was making the last

of these payments, Steven Parness complained that Berro

was receiving more than his share. Stratton told Parness

to keep silent, paid Berro the $30,000, ard indicated that

profits from the sale of the hashish oil would be divided

solely between Stratton and Berro.

Stratton made plans to transport the hashish to Canada

for sale. He agreed that as profits became available he

would give Berro’s share to Hammoud, who would trans-

port it from Canada to Lebanon. In August of 1981,

Hammoud went to Canada at Stratton’s direction. He

was instructed to phone Michelle Siegel, Gabrielle Strat-

ton’s daughter, to locate Gabrielle and to pick up the

7a

money from Gabrielle.’ Following this procedure, Ham-

moud received $270,000 and transported it to Lebanon.

Shortly thereafter, Gabrielle Stratton gave $300,000 to

Nassif Berro, who took the money to his father.

In September 1981, Hammoud made a second trip to

Canada. He contacted Siegel and was eventually given

$270,000 by Gabrielle Stratton and Terry Heddon, a

Canadian pilot who worked for Richard Stratton. During

October, Hammoud made his third trip to Canada and

received $212,000 from Gabrielle Stratton and Michelle

Siegel. Gabrielle informed Hammoud that this was to be

the last of the payments to Berro.

Mohamad Berro, unwilling to see the payments end,

went with Hammoud to Nassif Berro’s home in Miami in

November of 1981. The group eventually located the

Strattons in the Bahamas. On two occasions, Gabrielle

Stratton hung up on Hammoud. Richard Stratton then

called Hammoud and threatened to kill Hammoud’s

family if Hammoud continued to bother him.

Mohamad Berro and Hammoud then returned to New

York, where they met with the Parnesses. All parties

complained that Stratton was refusing to pay out any

more money. The Parnesses also noted that they were still

awaiting Stratton’s instructions regarding disposition of

the last ton of hashish in storage. Upon his own return to

New York, Stratton made a final $10,000 payment to

placate Berro.

In June 1982, Hammoud and Nassif Berro were ar-

rested in California on unrelated drug charges. Ham-

moud agreed to cooperate with the Government and

5 Gabrielle Stratton and Michelle Siegel were later convicted on drug

charges in Toronto, Canada.

8a

ultimately provided the core of the Government’s proof

at trial.

In September 1982, Hammoud induced Farbar to meet

with an undercover agent of the Drug Enforcement Ad-

ministration (DEA), Martin Maguire. Agent Maguire

posed as a drug dealer wishing to locate the last ton of

hashish held in storage by the Parnesses. Maguire sug-

gested that the proceeds from the sale could be used to

bail out Nassif Berro and ensure that he would not

cooperate with the Government. Farbar agreed to talk

with the Parnesses about the last of the hashish. Although

the Government attempted to record this conversation, a

mechanical failure prevented its introduction as evidence

at trial.

The Government was successful, however, in recording

three further conversations involving Farbar. During a car

ride, Farbar told Hammoud that he had done his best to

locate the Parnesses but had been unsuccessful. He dis-

cussed the hashish deal with Hammoud, including his

own trips to Lebanon, and wondered what effect the

Lebanese war would have on the hashish business.

At a dinner meeting with Hammoud and Maguire,

Farbar again explained that he had been unable to reach

the Parnesses. He said that Stratton might have paid

some money to Ayala Shibley, a relative of the Berros

living in Texas. He said he hoped Nassif Berro would not

cooperate with the Government. Farbar then discussed

the course of the hashish transaction. He recalled

Leonard Parness’s original reluctance to pick up the

hashish shipment. He confirmed that Stratton had paid

Berro $1.3 million but had probably reneged on a promise

to pay additiona! money. He speculated that the last ton

9a

of hashish probably remained at the stash-house on

Staten Isiand.

At a final meeting with Hammoud, Farbar told him

that he had learned from Gabrielle Stratton that Nassif

Berro would probably cooperate with the Government.

Farbar said he still hoped this would not occur and again

expressed concern about the effect of the Lebanese war

on the hashish business.

In May 1983, DEA agents obtained a warrant to search

the stash-house on Staten Island. The search uncovered a

large wooden pallet of the same type as the one used to

unload the hashish in April of 1981. Although no hashish

was present, the DEA agents found traces of tetrahydro-

cannabinol, the active agent in hashish.

II. The Jury Charge

In order to convict Stratton of engaging in a continuing

criminal enterpiise, the jury had to find that Stratton

committed “a continuing series of [narcotics] violations,”

21 U.S.C. § 848(b)(2), which we have held means three or

more violations, see United States v. Young, 745 F.2d 733,

747 (2d Cir. 1984), cert. denied, 105 S. Ct. 1842 (1985).

The Government urged that Stratton had committed the

following narcotics viclations: conspiracy to import hash-

ish, as charged in the indictment; importation of hashish,

as charged in the indictment; importation of the hashish

discovered at Kennedy Airport in January of 1980; tele-

phone use violations under 21 U.S.C. § 843(b) (1982);

and distribution of, and possession with intent to distrib-

ute, hashish in violation of 21 U.S.C. § 841(a)(1) (1982).

Stratton challenges three aspects of the trial court’s in-

structions on the section 841 offense.

10a

First, Stratton urges that the jury should have been

instructed that it could not find him guilty of the predi-

cate offense of distributing hashish absent proof of par-

ticular acts of distribution. However, such proof is not

required to establish a section 841 violation. The evidence

need show only that the defendant caused a distribution

to occur. The Government’s proof showed that Stratton

transported hashish to Canada for intended distribution

and soon thereafter received substantial amounts of

money. After going to Canada, Stratton made payments

to Berro in excess of $1 million and bought property in

Texas worth more than $200,000. The jury was entitled to

infer that Stratton accomplished his purpose and con-

verted drugs into money. See Bentley v. Cox, 508 F. Supp.

870, 875 (E.D. Va. 1981) Gury may infer from possession

of currency that drugs were sold). This Court has held

that an indictment alleging illegal sale of narcotics need

not specify the identity of the recipient or the precise

place and circumstances of the offense because these

items are not essential elements of the offense. See Sirico

v. United States, 350 F.2d 3106 (2d Cir. 1965); United

States v. Spada, 331 F.2d 995 (2d Cir.), cert. denied, 379

U.S. 865 (1964).

Second, Stratton argues that the trial court improperly

failed to instruct the jury on the elements of a section 841

violation. Although he failed to object to this portion of

the charge, he argues that failure to instruct on the

elements of a crime is plain error warranting reversal.

However, the trial court instructed that the jury could not

find Stratton guilty of the section 841 predicate offense

unless it found that he distributed hashish or possessed

hashish with intent to distribute. The Court gave proper

guidance on the meaning of “intent.” The Court did not

lla

give instructions on the meaning of “distribution” or

“possession.” Since these terms are clear enough, detailed

instructions were not required absent a pertinent request.

If Stratton wished to raise a technical legal issue (e.g.,

whether particular acts are sufficient to constitute con-

Structive possession), he was required to alert the trial

judge to his concern.

Third, Stratton notes that he could not be guilty of two

predicate offenses based upon section 841(a)(1) unless the

Government proved a possession distinct from that in-

volved in a distribution. See United States v. Young,

supra, 745 F.2d at 754. He argues that the trial court’s

failure to so instruct was plain error. We disagree. The

instruction did not omit an element of the section 848

offense. At worst it failed to explain an aspect of using

section 841 violations as predicate offenses, a matter not

critical in this case since the jury was entitled to find three

predicate violations without cumulating possession of

drugs and distribution of the same drugs. Cf. United

States v. Mowad, 641 F.2d 1067 (2d Cir.), cert. denied,

454 U.S. 817 (1981); United States v. Dixon, 536 F.2d

1388 (2d Cir. 1976).

III. Sufficiency of the Evidence

A. Stratton

Stratton challenges in two respects the sufficiency of

the evidence to support his continuing criminal enterprise

conviction. First, he argues that the distribution and

possession with intent to distribute offenses should never

have been submitted to the jury as predicate acts because

any distribution that might have occurred took place in

Canada and not in the United States. With regard to

12a

possession with intent to distribute, the location of the

distribution is irrelevant as long as the act of possession

occurs within the United States. See United States v.

Muench, 694 F.2d 28, 33 (2d Cir. 1982), cert. denied, 461

U.S. 908 (1983). With regard to distribution, we have no

occasion to decide: whether a defendant who sells nar-

cotics in a foreign country can ever be guilty of a section

841 violation or what prior acts connected with a distribu-

tion are sufficient to establish a violation. This point has

not been properly preserved for appellate review. The

defendant’s only objection to submitting the section 841

offenses to the jury as predicate offenses was the particu-

larity objection, which has been rejected. Stratton never

sought to withdraw the section 841 violations from the

jury for lack of sufficient evidence of distributions in the

United States. Therefore, since the Government adduced

sufficient evidence of at least three other predicate of-

fenses,° the continuing criminal enterprise conviction

must stand regardless of whether the evidence of a section

841 distribution is sufficient. See United States v. Mo-

wad, supra, 641 F.2d at 1073-74; United States v. Dixon,

supra, 536 F.2d at 1401-02.

Stratton also argues that the evidence is insufficient to

support a finding that he organized, supervised, or

otherwise managed five people in his scheme to violate

the drug laws, as required by section 848(b)(2)(A). The

Government argues that Stratton supervised eight people:

Bernard Farbar, Terry Heddon, Gabrielle Stratton, Mi-

chelle Siegel, Leonard Parness, Steven Parness, the

6 We have already noted that the evidence justified a finding that

Stratton possessed hashish with intent to distribute. Stratton does not

challenge that there was sufficient evidence of the conspiracy to

import, importation, or telephone use counts.

l3a

“stash-house” guard, and Sobhi Hammoud. Stratton

does not challenge the sufficiency of the evidence of

supervision of Farbar and Heddon. Therefore, since no

specific objection was made to submitting particular

names to the jury, Stratton’s section 848 conviction must

stand if the evidence is sufficient to support the inference

that he supervised at least three other peopie. See United

States v. Mowad, supra; United States v. Dixon, supra.

With regard to Gabrielle Stratton, the Government’s

proof showed that she attended meetings at which the

conspirators discussed their plans and acted as a courier

for her husband. While in Canada, Gabrielle Stratton

helped transmit Mohamad Berro’s share of the drug

profits by making payments in excess of $1 million to

Hammoud and Nassif Berro. Stratton does not deny his

wife’s participation but argues that she was an equal

partner, rather than an underling whom he supervised. In

determining whether someone is a supervisor Or manager

for section 848 purposes, we must heed the ordinary

meanings of these terms. See United States v. Wilkinson,

754 F.2d 1427, 1431 (2d Cir.), cert. denied, 105 S. Ct.

3482 (1985); United States v. Mannino, 635 F.2d 117 (2d

Cir. 1980). In ordinary parlance, a relationship of supervi-

sion is created when one person gives orders or directions

to another person who carries them out. In light of the

dominant position of Richard Stratton in the overall

scheme, the jury was entitled to infer that, in making

drug-related payments, Gabrielle Stratton was acting at

her husband’s direction.

Michelle Siegel acted as a conduit between Hammoud

and Gabrielle Stratton in connection with the Canadian

money transfers. Stratton disputes his supervision of

Siegel, claiming that the evidence does not demonstrate

l4a

that she was a knowing participant in the drug scheme.

However, Gabrielle Stratton made the last of her pay-

ments to Hammoud, in the amount of $212,000, in

Siegel’s presence, at which time Siegel heard Gabrielle

Stratton tell Hammoud that there would be no future

drug payments. From this evidence, the jury was entitled

to infer that Siegel was a knowing participant in the

conspiracy and that Richard Stratton was the source of

her instructions to act as intermediary between Hammoud

and Gabrielle Stratton.

Stratton was also in a managerial role with regard to

the Parnesses. He “organized” them by bringing them

into the conspiracy to provide trucking and storage ser-

vices and to provide a buyer of dates as a cover for the

drug shipment. He “supervised” or “managed” them by

assigning Leonard Parness the role of picking up the

hashish and by giving instructions regarding disposition

of the stored hashish. Stratton presided over the division

of profits among the conspirators, and Steven Parness

clearly acquiesced in his subordinate position when he

allowed Stratton to pay Berro $30,000 over his objection

and to state that the Parnesses would have no share of the

profits from the hashish oil. Although Stratton argues

that the Parnesses were independent rather than subordi-

nate actors, the jury was entitled to draw a contrary

conclusion. Therefore, the evidence is sufficient to estab-

lish that Stratton supervised at ‘east six people in connec-

tion with his drug scheme.

B. The Parnesses

Leonard and Steven Parness contend that the evidence

was insufficient to support their convictions for con-

spiring to import, and importing, hashish. However, the

lSa

Government’s proof, given largely by co-conspirator

Hammoud, described the Parnesses’ role in providing a

cover for the hashish shipment and in transporting and

storing the hashish. The Parnesses argue in essence that

the jury should noi have believed Hammoud. However,

an appellate court will not second-guess a jury’s finding

on credibility. See, e.g., United States v. Taylor, 464 F.2d

240, 243 (2d Cir. 1972). The Parnesses also argue that

their innocence is proved by the failure of Customs

officials to find,the hashish hidden in the cargo of dates.

Since, On appeal, all permissible inferences must be

drawn in the Government’s favor, see, e.g., United States

v. Young, supra, 745 F.2d at 762, this argument must be

rejected as mercly an attempt to substitute the defen-

dants’ view of the evidence for the jury’s.

IV. Evidentiary Rulings

Three of Bernard Farbar’s conversations with Ham-

moud and Agent Maguire were successfully recorded and

admitted into evidence. During these conversations, Far-

bar described his attempts to locate the last ton of hashish

stored by the Parnesses and outlined the general history

of the drug conspiracy. In so doing, Farbar inculpated

himself and the other appellants. Farbar’s statements are

admissible against him as admissions of a party oppo-

nent. Fed. R. Evid. 801(d)(2). Stratton and the Parnesses

contend that the trial court erred in admitting Farbar’s

hearsay statements against them. We agree with the Gov-

ernment that Farbar’s statements are admissible against

Stratton and the Parnesses as declarations against in-

terest, Fed. R. Evid. 804(b)(3), and as statements of a

co-conspirator, Fed. R. Evid. 801(d)(2)(E).

16a

A declaration against interest is not excludable as

hearsay if three conditions are met: (1) the declarant is

unavailable as a witness; (2) the statement is sufficiently

contrary to the declarant’s pecuniary or penal interests

that a reasonable person in his position would not have

made the statement unless he believed it to be true; and

(3) corroborating circumstances indicate that the state-

ment is trustworthy.’ See United States v. Katsougrakis,

715 F.2d 769, 775 (2d Cir. 1983), cert. denied, 104 S. Ct.

704 (1984). Since Farbar was a defendant, he could not be

called by the Government as a witness and was therefore

“unavailable.” See United States v. Lieberman, 637 F.2d

95, 103 (2d Cir. 1980). Hammoud, a co-conspirator,

provided ample corroboration of Farbar’s taped state-

ments through his own testimony. The only issue, there-

fore, is whether Farbar’s statements were sufficiently

against his penal interests that a reasonable person in his

position would not have made them unless true.

Farbar’s statements were overwhelmingly contrary to

his penal interests. He described the history of the con-

spiracy, including Leonard Parness’ reluctance to pick up

the shipment, the storage of the hashish at the house on

Staten Island, and Stratton’s division of the profits

among the co-conspirators. Farbar’s statements clearly

tied him to the illegal scheme. Moreover, the context in

which the statements were made warrants a finding of

reliability. Farbar believed he was talking to co-conspira-

7 Fed. R. Evid. 804(b)(3) requires corroboration only where an in-

culpatory statement of the declarant is offered by a defendant for

exculpatory purposes. However, since a statement inculpating both the

declarant and others may be of questionable reliability, this Court has

also required corroboration of such statements when offered to in-

culpate. See United States v. Garris, 616 F.2d 626, 631 (2d Cir.), cert.

denied, 447 U.S. 926 (1980).

17a

tors rather than the authorities. He therefore had no

reason to lie or attempt to curry favor. Compare id. with

United States v. Bailey, 581 F.2d 341 (3d Cir. 1978).

Stratton and the Parnesses argue that Farbar had a

motive to lie, which makes his statements unreliable and

inadmissible. They argue that Farbar told Hammoud and

Maguire that he was doing his best to locate and sell the

additional ton of hashish so that Nassif Berro would not

cooperate with the authorities. Initially, we note that the

Statement is generally inculpatory. By indicating that he

knows that the Parnesses were last in possession of the

hashish and that he has some influence over them, Farbar

has suggested his complicity in the drug scheme. More-

over, Farbar’s gratuitous comments about the prior

course of the drug conspiracy strengthen the reliability of

this statement. While Farbar may have lied when he said

he tried his best to help Nassif Berro, the trial judge was

entitled to credit, for purposes of admissibility, his state-

ments relating to the drug conspiracy. Chief Judge Motley

did not err in finding sufficient reliability to justify

admission under Fed. R. Evid. 804(b)(3).

Farbar’s statements are also admissible against Stratton

and the Parnesses as admissions “by a co-conspirator

. . . during the course of and in furtherance of the

conspiracy.” Fed. R. Evid. 801(d)(2)(E). Farbar’s state-

ments were made in furtherance of the conspiracy to

distribute hashish.* He told Hammoud that he would

8 It should be noted that although Farbar’s remarks demonstrate an

attempt to evade justice by keeping Nassif Berro silent, statements

made during the “concealment phase” of a conspiracy are not “in

furtherance of” the conspiracy within the meaning of Fed. R. Evid.

801(d)(2)E). See Krulewitch v. United States, 336 U.S. 440, 443-44

(1949); Fed. R. Evid. 801(d)(2)(E), advisory committee note (adapting

the Krulewitch rule).

18a

attempt to locate the additional hashish for sale. Stratton

argues that the statements cannot be used against him

because he was not charged with being a member of this

conspiracy. Although the conspiracy to distribute count

was severed prior to trial as to Stratton, it is not necessary

that the Government charge a conspiracy to take advan-

tage of Fed. R. Evid. 801(d)(2)(E). The Government

merely needs to demonstrate that the declarant and the

defendants against whom the statements are offered are

members of a conspiracy in furtherance of which the

statements are made, see United States v. Barnes, 604

F.2d 121, 156 (2d Cir. 1979), cert. denied, 446 U.S. 907

(1980), and that this conspiracy is “factually intertwined”

with the offenses being tried, United States v. Lyles, 593

F.2d 182, 194 (2d Cir.), cert. denied, 440 U.S. 972 (1979).

The Parnesses argue that they had withdrawn from the

conspiracy to distribute hashish at the time Farbar made

his statements but offer no evidence of an affirmative act

of withdrawal.

Stratton and the Parnesses claim that, even if Farbar’s

statements otherwise qualify, they should have been ex-

cluded because Farbar lacked personal knowledge of

some of the events recited. For example, Farbar says that

Stratton told him that he (Stratton) had threatened Ham-

moud’s family. However, appellants misconceive the na-

ture of the personal knowledge requirement, see Fed. R.

Evid. 602, in the hearsay context. When A testifies that B

told him of an event, A usually has personal knowledge

only of B’s report. It is B who has personal knowledge of

the event. Thus, the hearsay rules require that the

declarant, B in our example, have personal knowledge of

the events recounted, not that the witness have such

personal knowledge. See United States v. Lang, 589 F.2d

19a .

92, 98 (2d Cir. 1978). Thus, Farbar could have testified to

Stratton’s report of the threats because the threats were

within the personal knowledge of Stratton. Nor is there a

hearsay-within-hearsay problem. Stratton’s threats are

not hearsay because not offered for their truth; the

threats are verbal acts. Stratton’s report of the threats to

Farbar, his chief assistant, is not hearsay because it is a

statement of a co-conspirator in furtherance of the con-

spiracy, Fed. R. Evid. 801(d)(2)(E); therefore Farbar

could have testified to Stratton’s report of the threats.

Finally, tapes may be used instead of Farbar’s live words

because, as discussed above, Farbar’s statements are

declarations against interest and themselves also those of

a co-conspirator in furtherance of the conspiracy.

Stratton and the Parnesses also argue that the admis-

sion of Farbar’s statements against them violates their

Sixth Amendment right to confrontation. Though a hear-

say exception does not end the Confrontation Clause

analysis, see, e.g., California v. Creen, 399 U.S. 149,

155-56 (1970), a finding of reliability sufficient to admit a

statement against penal interest will normally satisfy Sixth

Amendment concerns. Cf. Dutton v. Evans, 400 U.S. 74,

89 (1970) (giving weight, for Sixth Amendment purposes,

to fact that co-conspirator’s statement was against his

penal interest). Moreover, although a higher standard of

reliability is imposed if the hearsay statements are “cru-

cial” to the Government’s case, id., Farbar’s statements

were not of this nature. His description of the drug

conspiracy was largely repetitive of Hammoud’s live testi-

mony, which was subject to cross-examination.

Appellants make two other claims. First, they argue

that, even if Farbar’s statements were admissible, Ham-

moud’s statements from the tapes should not have been

20a

admitted for their truth. This Court has held that such

recorded statements are admissible to provide the context

for the declarant’s admissions. See United States v. Mur-

ray, 618 F.2d 892, 900 (2d Cir. 1980). Appellants would

have been entitled to a limiting instruction preventing the

jury from considering Hammoud’s assertions for their

truth had such an instruction been requested. See id. In

the absence of such a request, the appellants cannot

challenge admission of Hammoud’s statements. Second,

Stratton challenges the admission of his threat against

Hammoud’s family as unduly prejudicial under Fed. R.

Evid. 403. However, threat evidence was relevant to

establish Stratton’s supervisory role concerning Ham-

moud, see United States v. Thomas, 632 F.2d 837, 844

(10th Cir.), cert. denied, 449 U.S. 960 (1980), and the trial

court was within its discretion in finding that the Rule 403

balance favored admission.

V. The Jury Verdict

All appellants contend that the trial court erred in

accepting the verdict of eleven jurors. On Monday, Octo-

ber 8, 1984, after summations had begun but prior to the

commencement of deliberations, Juror No. 10 informed =<*

the district judge that she would have to leave at noon on

Wednesday to observe the Jewish holiday of Succoth,

which would last through Thursday and Friday. The trial

court discussed the situation with counsel and suggested

that an alternate be substituted before deliberations be-

gan. Defense counsel, apparently perceiving Juror No. 10

to be more favorable to their cause than Alternate No. 1,

objected to substitution. The trial judge heeded this

objection and allowed Juror No. 10 to continue.’ Deliber-

9 The trial judge was within her discretion in finding, at the com-

mencement of deliberations, that Juror No. 10 was not “unable or

4

2la

ations began on Tuesday, October 9, and continued

throughout the following morning. At noontime Juror

No. 10 insisted on leaving. The trial judge then decided to

excuse the juror and continue with eleven jurors, rejecting

defendants’ request to adjourn for 4% days until all

twelve jurors could return the following Monday. Later in

the day, the remaining eleven jurors, after further deliber-

ations, returned unanimous verdicts of guilty.

A twelve-member jury was once thought to be a consti-

tutional requirement in federal criminal trials, see

Thompson v. Utah, 170 U.S. 343 (1898), but the Supreme

Court has more recently made clear that the Constitution

does not require twelve jurors for conviction, Williams v.

Florida, 399 U.S. 78 (1970). In construing the Sixth

Amendment right to a jury trial, applicable to the states

through the Fourteenth Amendment, see Duncan v. Loui-

siana, 391 U.S. 145 (1968), Williams held that a six-

member jury was constitutionally sufficient.'° The Court

disqualified to perform [her] duties,” Fed. R. Crim. P. 24(c). lt was

entirely possible that deliberations would be completed in 1/2 days and

before the noon Wednesday deadline. In any case, the defendants

objected to the trial judge’s suggestion, before deliberations began,

that Juror No. 10 be replaced by an alternate and cannot now

complain either that the juror was not replaced or that the trial judge,

having not then replaced her, was for that reason precluded from

excusing her during deliberations.

10 A majority of the Court subscribed to the view that a twelve-mem-

ber jury was not required by the Sixth Amendment and for that reason

was not required of the states by the Fourteenth Amendment. By

contrast, when the Court ruled that the fourteenth Amendment

permitted the states to have non-unanimous verdicts in criminal cases,

only a plurality of the Court premised this ruling on the view that

non-unanimous verdicts were constitutionally permitted in federal

criminal trials under the Sixth Amendment; Justice Powell, casting the

decisive vote, expressed the view that unanimity was required in federal

criminal trials by the Sixth Amendment but not required in state

criminal trials by the Fourteenth Amendment. See Apodaca v. Oregon,

406 U.S. 404 (1972).

22a

explicitly observed that the considerations bearing on the

desirability of a twelve-member jury in federal criminal

trials were left “to Congress.” Jd. at 103. Since Congress

may legislate as to jury size, the Supreme Court may

prescribe by rule, pursuant to the Enabling Act, 18

U.S.C. §§ 3771, 3772 (1982), that under certain circum-

stances a trial judge may excuse a juror and accept a

verdict of eleven jurors.

The Supreme Court did so in 1983 when it amended

Fed. R. Crim. P. 23(b) to provide:

Juries shall be of 12 but . . . if the court finds it

necessary to excuse a juror for just cause after the

jury has retired to consider its verdict, in the discre-

tion of the court a valid verdict may be returned by

the remaining 11 jurors.

Prior to amendment, Rule 23(b) permitted a verdict of

less than twelve jurors only by stipulation. The amended

rule was prompted by the dilemma posed by such cases as

United States v. Meinster, 484 F. Supp. 442 (S.D. Fla.

1980) (juror had heart attack during jury deliberations

after four months of trial), aff’d, 664 F.2d 971 (Sth Cir.

1981), and United States v. Barone, 83 F.R.D. 565 (S.D.

Fla. 1979) (juror became incapacitated for psychiatric

reasons during jury deliberations after six months of

trial). In such cases, the trial judge either had to empanel

an alternate juror or had to declare a mistrial despite a

substantial expenditure of public resources. To avoid a

mistrial, the trial judge in Meinster and Barone substi-

tuted an alternate juror. The technique of substituting an

alternate after deliberations have begun was approved by

this Court, in limited circumstances, in United States v.

Hilliard, 701 F.2d 1052 (2d Cir.), cert. denied, 461 U.S.

23a

958 (1983). However, this technique poses problems. Even

though the jurors will be instructed to disregard previous

deliberations upon empaneling of an alternate, they may

not be able to nullify the effect of past discussions.

Moreover, Fed. R. Crim. P. 24(c) seems to require the

dismissal of alternate jurors once deliberations have be-

gun. United States v. Hayutin, 398 F.2d 944, 950 (2d

Cir.), cert. denied, 393 U.S. 961 (1968); see United States

v. Hilliard, supra, 701 F.2d at 1058. In allowing the court

to accept an eleven-juror verdict, Rule 23(b) was designed

to provide a preferred mechanism for avoiding a mistrial.

See Fed. R. Crim. P. 23(b), advisory committee note.

Indeed, Hilliard questioned whether substituting an alter-

nate during deliberations would be condoned after the

amendment to Rule 23(b) becomes effective. 701 F.2d at

1061.

We do not agree with appellants that Rule 23(b) is to be

used only where a juror suffers permanent or at least

lengthy incapacitation. We read the “just cause” standard

more broadly to encompass a variety of temporary prob-

lems that may arise during jury deliberations, confronting

the trial judge with the need to exercise sound discretion

as to the procedure to be followed at a particularly

sensitive stage of the trial. The appellants suggest that it

was not “necessary to excuse [Juror No. 10] for just

cause” since her absence due to religious observance

would have lasted only 414 days. However, the trial judge

was entitled to conclude that an adjournment of 4% days

would be less desirable than an eleven-juror verdict.

Adjournment would have risked dulling the jurors’ recol-

lections of the evidence and summations and heightened

the danger that the jurors would discuss the case with

outside persons. We note that the record does not present

24a

even the slightest basis to believe that Juror No. 10 was

excused on a pretext to remove an obstacle to reaching a

unanimous verdict. Under the circumstances of this case,

the trial judge did not abuse her discretion in accepting an

eleven-juror verdict.

Our view is confirmed by the few decisions that have

considered Rule 23(b). In United States v. Hilliard, supra,

a juror became ill after 2'4 days of deliberations followed

by a three-day recess. The trial judge refused to accept the

suggestion that he order a one-day adjournment to see if

the ill juror recovered. Instead, fearful of the hazards of

further delay, the trial court empaneled an alternate with

the subsequent approval of this Court. Compared to the

risks accepted in Hilliard, the decision here to accept an

eleven-juror verdict was the more prudent course.

A similar problem was presented in United States v.

Gambino, 598 F. Supp. 646 (D.N.J. 1984), the only

reported decision to interpret amended Rule 23(b). In

Gambino, the Assistant United States Attorney trying the

case accidentally put three pieces of paper containing her

notes into the exhibit box. Two of the papers were

innocuous. The third, which was seen by one of the

jurors, contained comments about the defendant. Judge

Lacey, a member of the Supreme Court Advisory Com-

mittee on the Federal Rules of Criminal Procedure, deter-

mined that the prejudice resulting from the juror’s

viewing the prosecutor’s notes outweighed any prejudice

that might result from proceeding with eleven jurors.

Nor are Dunkerley v. Hogan, 579 F.2d 141 (2d Cir.

1978), cert. denied, 439 U.S. 1090 (1979), and United

States v. Essex, 734 F.2d 832 (D.C. Cir. 1984), relied upon

by appellants, to the contrary. In Dunkerley, this Court

25a

held that the Double Jeopardy Clause prevented retrial of

a defendant where the trial judge in the first trial declared

a mistrial, over the defendant’s objection, instead of

granting a seven-to-ten-day adjournment to allow the

defendant to recover from a collapsed lung and attend the

trial. Dunkerley merely notes that it was error to declare a

mistrial where adjournment was available. The trial court

had no third choice.

In United States v. Essex, supra, which arose under the

prior version of Rule 23(b), unusual circumstances caused

the trial to begin without any alternate jurors.'' The triai

judge decided to proceed after the defendant stipulated to

accept the verdict of eleven jurors if something happened

to one of the remaining twelve. Rule 23(b), both before

and after amendment, provides:

Juries shall be of 12 but ... the parties may

stipulate. . . that a valid verdict may be returned by

a jury of less than 12 should the court find it

necessary to excuse one or more jurors for any just

cause after trial commences. [Emphasis added.]

Deliberations began on a Friday and were adjourned until

the following Monday. On that Monday, only eleven of

the twelve jurors returned. Without making any investiga-

tion to determine the reason for the missing juror’s

absence, the trial judge decided to proceed with eleven

jurors. The D.C. Circuit reversed because there was

nothing in the record upon which a finding of “just

cause” could be based. See United States v. Essex, supra,

734 F.2d at 842. In the instant case, the trial court, using

i The trial court had originally selected one alternate juror. However,

it was later discovered that a juror who had been peremptorily stricken

was seated among the iwelve jurors. The alternate replaced this juror

prior to the commencement of trial.

26a

the discretion granted by the amended rule in the absence

of a stipulation, has articulated sufficient reason to ex-

cuse a juror during deliberations. See United States v.

Hilliard, supra, 701 F.2d at 1055.

Though not raised by appellants, we think considera-

tion should be given to the arguable contention that, even

if amended Rule 23(b) accorded the trial judge a discre-

tion that was not abused in this case, the provisions of the

amended rule could not validly be applied in a trial for

conduct occurring prior to the promulgation of the

amended rule.'? The Ex Post Facto Clause of the Consti-

tution, Art. I, § 9, cl. 3, operates primarily to bar the

retroactive application of legislative changes that define

criminal offenses or enhance criminal penalties. See

Weaver v. Graham, 450 U.S. 24, 28 (1981). However, the

Clause has also been applied to some procedural changes.

See, e.g., Thompson v. Utah, supra (state law reducing

number of jurors from twelve to eight); Kring v. Mis-

souri, 107 U.S. 221 (1883) (state law specifying that

conviction for lesser included offense is no longer deemed

an acquittal of greater offense); United States v. Henson,

486 F.2d (D.C. Cir. 1973) (in banc) (federal law eliminat-

ing discretion of trial judge to exclude prior convictions

to impeach credibility of witness, including defendant).

On the other hand, the Clause has been held inapplicable

to numerous other changes in criminal procedure. See,

e.g., Beazell v. Ohio, 269 U.S. 167 (1925) (limiting right

to severance of co-defendants); Mallett v. North Caro-

lina, 181 U.S. 589 (1901) (granting state a right of

appeal); Thompson v. Missouri, 171 U.S. 380 (1898)

12 The amendment to Rule 23(b) became effective August 1, 1983. The

indictment alleged criminal conduct continuing until its date, July 26,

1983.

27a

(broadening standards for authenticating and introducing

handwriting examplars); Gibson v. Mississippi, 162 U.S.

565 (1896) (change in grand jury selection procedure);

Duncan v. Missouri, 152 U.S. 377 (1894) (reducing num-

ber of judges hearing defendant’s appeal); Hopt v. Utah,

110 U.S. 574 (i884) (enlarging class of competent wit-

nesses). The principle that identifies those few procedural

changes to which the Ex Post Facto Clause applies is not

readily apparent.'’ It has been said that the Clause applies

to those changes that impair the “substantial rights” of a

criminal defendant, see, e.g., Kring v. Missouri, supra,

107 U.S. at 232; United States v. Henson, supra, 486 F.2d

at 1306, though the meaning of “substantial” in this

context is not clear.

In this case, the starting point for our analysis must be

Thompson v. Utah, supra. The defendant in Thompson

had initially been tried in federal court, with a jury of

twelve, for crimes committed in a federal territory. After

the defendant prevailed on a new trial motion, the terri-

tory became the State of Utah. The subsequent state trial

was conducted with a jury of eight, pursuant to Utah law.

The Supreme Court held that the defendant’s second

conviction violated the Ex Post Facto Clause by denying

him a substantial procedural right that was guaranteed by

the Sixth Amendment at the time of his conduct—the

right to a jury of twelve.

However, the major premise of Thompson has been

undercut by Williams v. Florida, supra, in which the

Court held that neither the Sixth nor Fourteenth Amend-

ment guarantees a jury of twelve. The Court noted that a

13 A respected commentator has observed that the Supreme Court

cases “can hardly be distinguished in any functional way.” L. Tribe,

American Constitutional Law § 10-3, at 483-84 (1978).

‘28a

jury of six was constitutional because it contained the

essential elements of a jury:

To be sure, the number should be large enough to

promote group deliberation, free from outside at-

tempis at intimidation, and to provide fair possibility

for obtaining a representative cross-section of the

community. But we find little reason to think that

these goals are in any meaningful sense less likely to

be achieved when the jury numbers six, than when it

numbers 12—particularly if the requirement of una-

nimity is retained.

Id., 399 U.S. at 100. Thus, Williams suggests that the

absolute right to a jury of-twelve that appellants pos-

sessed prior to the 1983 amendment of Rule 23(b) is no

longer viewed as a “substantial right” by the Supreme

Court."

In light of Williams, we hold that retroactive applica-

tion of amended Rule 23(b), allowing conviction by

eleven jurors, is not an Ex Post Facto violation. See State

v. McIntosh, 23 Ariz. App. 246, 543, P.2d 188 (1975)

(approving retroactive change to less than twelve jurors);

State v. Maresca, 173 Conn. 450, 377 A.2d 1330 (1977)

(same); /seton v. State, __ Ind. App. ____, 472 N.E.2d

643 (1984) (same). But see McSears v. State, 247 Ga. 48,

273 S.E.2d 847 (1981). It is highly unlikely that retro-

active application of the amended rule will seriously

disadvantage the defendant. No empirical data has been

I4 A footnote to the Williams opinion raises, without elaboration, the

possibility that the Ex Post Facto Clause might have protected the

defendant from a state court trial with a jury of less than twelve even if

his federal right to a jury of twelve had not been grounded in the

Constitution but instead had rested only on a territorial statute. 399

U.S. at 90 n.26.

29a

located comparing the results of criminal trials with

twelve jurors to those obtained with eleven jurors. Some

data, mostly probability studies, indicate, with internal

contradictions, that a defendant may face a slight disad-

vantage in some respects when the jury size drops from

twelve to six, but also indicate that a decrease in jury size

of only one person may have only the. most minute

effect.'' Whatever disadvantage to the defendant may

1S

Analysts of actual and predicted jury behavior have compared

twelve- and six-member juries with respect to three factors—rate of

hung juries, rates of conviction and acquittal, and rate of a “mistake,”

i.e., convicting the innocent or acquitting the guilty. Professor Zeisel

has reported that the hung jury rate in 290 trials with six-person juries

in the Miami, Florida, Circuit Court was 2.4%, compared to the 5.5%

rate he previously reported for a national sample of 3,576 cases with

twelve-person juries. Zeisel,. . . And Then There Were None, 38 U.

Chi. L. Rev. 710, 720 (1971); H. Kalven, Jr. and H. Zeisel, The

American Jury 56, 57 n.3 (1966). In some instances, one might expect a

disagreeing juror to display a greater willingness to remain steadfast

when those in opposition are fewer in number; however, Kalven and

Zeisel report that juries are more likely to hang when the one or two

holdouts had support from two or three others early in the voting, id.

at 462-63, a result that seems more likely to occur with juries of twelve

than of six. A probability study also reports that the hung-jury rate is

estimated to be lower with juries of twelve than of six, Solomon, Jury

Size and Jury Verdicts, 12 Communications in Statistics, 2179, 2203-04

(1983). (.0557 for twelve-person juries, .0446 for six-person juries).

Since the prosecution is seeking to alter the status quo, a reduction in

hung juries would favor the prosecution, unless the increase in verdicts

would be composed of a disproportionate number of acquittals.

Probability studies indicate that the acquittal rate is estimated to

increase and the conviction rate to decrease when jury size drops from

twelve to six. Jd. (conviction rate .6419 and acquittal rate .3024 for

twelve-person juries; comparable rates for six-person juries are .6347

and .3207); Kaye, And Then There Were Twelve: Statistical Reasoning,

the Supreme Court, and the Size of the Jury, 68 Calif. L. Rev. 1004,

1041 (1980) (conviction rate .6897 and acquittal rate .3103 for twelve-

person juries; comparable rates for six-person juries are .6842 and

3158).

It has also been estimated that the “mistake” rate increases when the

jury size drops from twelve to six, with the rate of convicting the

innocent increasing by about 50% and the rate of acquitting the guilty

30a

occur from reducing the jury size from twelve to eleven is

of insufficient proportion to give him a constitutional

right to a jury of twelve, Williams v. Florida, supra, 399

U.S. at 101, and does not affect the substantial rights of

the defendant for Ex Post Facto purposes. See Jseton v.

State, supra.

VI. Summary Contempt

Appellant Stratton appeals his summary contempt cita-

tion, contending that it was improper under Fed. R.

Crim. P. 42(a). On a number of occasions throughout the

trial, Stratton, who represented himself, attempted to

apprise the jury of his fifteen-year sentence for conviction

on drug charges in the District of Maine. Each time, the

trial judge informed him that the Maine case was not

relevant to the present charges. Just prior to the summa-

tions, the district judge warned Stratton not to appeal for

sympathy on the basis of the Maine conviction. Neverthe-

less, in his summation Stratton told the jury:

Whatever your verdict, however you decide the final

chapter of this book, remember that even as you do

what I believe you will do and write “not guilty,”

increasing by about 200%. Solomon, supra, at 2203-04 (rate of

convicting the innocent .0221 and acquitting the guilty .0615 for

twelve-person juries; comparable rates for six-person juries are .0325

and .1395); see also Kaye, supra, at 1041 (similar estimates).

Professor Kaye's analysis also predicts that the conviction and

acquittal rates remain unchanged when the number of jurors drops

from six to five, although, for some reason, both the rates for

convicting the innocent and acquitting the guilty drop (by a barely

measurable extent). If a reduction in jury size from six to five has such

slight effect, a reduction from twelve to eleven would seem to be of

even less concern.

For a thoughtful critique of the limitations of mathematical models

in this area, see Kaye, Mathematical Models and Legal Realities,

Reflections on the Poisson Model of Jury Behavior, 13 Conn. L. Rev.

1 (1980).

3la

Richard Stratton does not walk out of this court-

room a free man. Richard Stratton will go back to

prison to serve out the rest of his fifteen-year sen-

tence.

The trial judge interrupted Stratton’s summation and

struck this remark. Stratton then made one more state-

ment to conclude his summation. The District Court

excused the jury and held Stratton in contempt of court

for flagrant violation of its instructions. At the end of the

day, the Court sentenced Stratton to six months’ impris-

onment pursuant to Rule 42(a) and made written findings

in support of the contempt citation.

Rule 42(a) states:

A criminal contempt may be punished summarily if

the judge certifies that he saw or heard the conduct

constituting the contempt and that it was committed

in the actual presence of the court. The order of

contempt shall recite the facts and shall be signed by

the judge and entered of record.

If summary contempt as provided in Rule 42(a) is im-

proper, contempt can be punished only pursuant to Rule

42(b), which incorporates full due process protections.

Although Rule 42(a) seems to suggest that summary

contempt is permissible whenever the trial judge witnesses

the contemptuous conduct, the rule has been given a more

limited scope. The summary contempt power may be used

only when nevessary to preserve the authority of the

court. See United States v. Wilson, 421 U.S. 309, 318

(1975); Johnson v. Mississippi, 403 U.S. 212 (1971);

United States v. Martin-Trigona, 759 F.2d 1017 (2d Cir.

1985). Stratton argues that it was unnecessary for the trial

32a

court to punish him summarily because he had finished

his summation by the time he was cited for contempt. He

also argues that the trial court’s delay in sentencing him is

further evidence of the lack of necessity.

The facts of the pending case fall between two patterns

that have previously been considered. Sometimes, con-

temptuous conduct occurring in the presence of the court

is adjudicated and punished immediately upon its occur-

rence. E.g., United States v. Wilson, supra; United States

v. Martin-Trigona, supra. \n other instances, the only

immediate action is a citation for contempt, and final

adjudication and punishment is deferred until the conclu-

sion of the trial, Taylor v. Hayes, 418 U.S. 488 (1974);

United States v. Lumumba, 741 F.2d 12 (2d Cir. 1984).

Where punishment is deferred until after trial, summary

procedure may not be used. Taylor v. Hayes, supra;

United States v. Lumumba, supra. \n the instant case, the

contemnor was held in contempt within moments of his

contemptuous conduct, and the contempt sentence was

imposed at the end of the day, prior to the conclusion of

the trial.

We do not believe that the procedure used by the trial

judge demonstrated a lack of necessity for vindiction of

the court’s authority by use of the summary contempt

power. Though Stratton had finished his summation, the

trial had not ended, and further occasions could arise

when Stratton might be tempted to flout the trial judge’s

authority, for example, during the summations of other

counsel or during the jury charge. The trial judge was

entitled to use an effective sanction to deter Stratton from

again disregarding her instructions. The momentary delay

from the occurrence of the contempt until the contempt

citation resulted from the trial judge’s forbearance in

33a

permitting Stratton to conclude his summation without

the interruption of a summary contempt proceeding and

her sensible decision to excuse the jurors rather than

conduct the proceeding in their presence. This momentary

delay indicated only admirable restraint by the trial judge

to minimize the risks of adverse effects of the contempt

citation upon the conduct of the trial.

Nor does the further brief delay in sentencing until the

end of the day indicate that summary contempt was

unnecessary. Rather, it reflects the carefui restraint of an

experienced irial judge who preferred rot to select a

contempt sentence until the end of the trial day. Uniike

Taylor and Luntumoa, where sentencing imposed after

trial could have had no prophylactic effect upon the

contemnor, ihe triai judge here imposed a sentence at a

point where tt retained a deterrent eifeci for the remain

der Of the trial. ihe judge selected an appropriate trme—

after the confrontation of the episode had subsided and

before the contemnor had much opportunity to misbe-

1. «a > “ ti¢ ‘ }

nave again. Use of the summary contempt procedure was

not precluded by the trial judge’s decision not to impose

Soeiwice ii cul abwihidren wuidOrit wwashualadienged.

VMII£ Gonchision

{ The judgments ofthe District Court are affirmed.”

(16 | Phe Parnesses also comtend that.ehe District Court erted in. excludéng

for. cause 4. juror Decause ofeher.“socip-political heliefs .T This pesenial

juror medicated that she. believed strongly in. the Jegahzataon (of, mari-

juana but: theeght)sheocould make a. fair -degison! - instially: | ehe

Government moved, to. excuse the juran foe cause or, m. the ekenmauye,

/ peremptocly The Government. comends shat wt abandoned.its, meyon

tovescuse for. cause and: chaHenged the juror-pesemptocily: WK further

contends that the netes: af the courtroom deputy clerk confirm, shah ehe

juros was challenged. peremptocily The inensenipl does wal disslose by

what method potential jurors were excused: We.ka ve. Ne bASIS. to dou bi

shat the Govermment chatenged, the yuror:- pecemptacily.

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