Opposition Brief — Vega v. United States

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Gu the Supreme Court of the Aniied States

OcToBER TERM, 1971

No. 71-590

HIpPoLito VEGA, PETITIONER

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UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

MEMORANDUM FOR THE UNITED STATES IN OPPOSITION

After a jury trial in the United States District

Court for the Southern District of New York, peti-

tioner was convicted of having unlawfully received

money for the broadcast of records over a radio

station without disclosing such receipt to the radio

station in advance of the broadcasts, in violation of

47 U.S.C. 508(a), and of perjury before the Federal

Communications Commission in denying having re-

ceived money from record companies to play records,

in violation of 18 U.S.C. 1621. He was sentenced to

concurrent prison terms of three months and fined

$1,500. The court of appeals affirmed (Pet. App. A:

447 F. 2d 698).

450-270—71

(1)

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Petitioner’s principal contention is that it was

error to have accepted his oral consent, expressed

through and given after consultation with counsel, to

excuse one juror who, during the jury’s deliberations,

had sent a note to the court describing himself as the

‘‘primary holdout.’’' Petitioner in effect argues that

the right to a twelve-man jury cannot be waivea.

This issue is canvassed by the court below which prop-

erly concluded, as this Court has held, that the right

to a twelve-man jury can ke waived (Patton v. United

States, 281 U.S. 276; Adams v., United States ex rel.

McCann, 317 U.S. 269, 275; see also, Singer v. United

States, 380 U.S. 24; ef. Walliams v. Florida, 399 U.S.

78, 100-103) ,’? and that the waiver here was intelligent

and voluntary.

Petitioner also contends that the waiver was in-

effective because not in accord with Rule 23(b), Fed.

R. Crim. P., which proviaes that waiver of a twelve-

1 The facts relating to this incident are set out in the opinion

of the court of appeals (Pet. App. A 10-11).

* Hibdon v. United States, 204 F. 2d 834 (C.A. 6), relied on

by petitioner (Pet. 5), is not to the contrary. There, in holding

that the right to a unanimous verdict could not be waived, the

court explicitly noted that the right to a verdict of less than

twelve jurors could be relinquished. We note, moreover, that

even if, contrary to the view of the court of appeals (Pet. App. ©

A 18), this case is deemed to raise the issue whether a unani-

mous jury may be waived, this is a unique case which does not

present a recurrent problem. Moreover, we think Hibdon is wrong.

- Since a defendant may waive a trial by jury and even trial itself

(Boykin v. Alabama, 395 U.S. 238), there seems no reason why

he may not validly waive a unanimous jury. See Ashton v.

Commonwealth, 405 S. W. 2d 562, 570-571 (Ky. Ct. App.),

reversed on other grounds, 384 U.S. 195; State v. Robbins,

176 Ohio St. 362, 199 N.E. 2d 742.

diene EE a

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ian jury must be by written stipulation of the parties

with the approval of the court. The agreement here

was not in writing. Petitioner, however, did not raise

this objection either in the district court (where it

could have been remedied) or in the court of appeals.

The courts have held, in comparable circumstances,

that where the fact of an agreement and its voluntari-

hess are apparent from the record, non-adherence to

the writing aspect of Rule 23 does not require re-

versal. See Horne v. United States, 264 F. 2d 40

(C.A. 5), certiorari denied, 360 U.S. 934; Rogers v.

United States, 319 F, 2d°5 (C.A. 7), certiorari denied,

375 U.S. 989; Bayless v. United States, 381 F. 2d 67,

74-75 (C.A. 9).

It is therefore respectfully submitted that the peti-

tion for a writ of certiorari should be denied.

ERWIN N. GRISWOLD,

Solicitor General.

NOVEMBER 1971.

U.S. GOVERNMENT PRINTING OFFICE: t971