[00:00:00] Speaker 01:
case number 22-3052, the United States of America versus Durrell Armstead, also known as well, also known as Supreme 16.

[00:00:09] Speaker 01:
Mr. Zucker for the imbalance, Mr. Hobart for the appellee.

[00:00:14] Speaker 06:
Morning, Jonathan Zucker and Patty Doss on behalf of five minutes for rebuttal.

[00:00:21] Speaker 06:
There's two issues before the court on this brief and they both relate to jury.

[00:00:28] Speaker 06:
The first is the dismissal of one juror, and I suggest Brown is the controlling precedent here.

[00:00:35] Speaker 06:
The juror expressed concern and during that, well, requested to be dismissed from the deliberations.

[00:00:46] Speaker 06:
And her reason was that she was uncomfortable with, as she put it, my answer, and I'm uncomfortable with the backlash,

[00:00:54] Speaker 06:
Yeah, backfall of it.

[00:00:56] Speaker 06:
It was pretty clear in this context, her answer was synonymous with verdict.

[00:01:01] Speaker 06:
The court

[00:01:03] Speaker 06:
intuitively or implicitly acknowledged that there was a severe possibility or significant possibility that she may have been the holdout, as later facts establish she really was.

[00:01:16] Speaker 06:
And because her decision to be excused from the juror and the judge's decision to dismiss her could not rule out the possibility that it was based on the evidence and based on her verdict, under Brown, it was error.

[00:01:33] Speaker 06:
That's very sad.

[00:01:35] Speaker 03:
Doesn't Brown stand for the proposition that the court can't excuse a juror based on her request that stems from her view of the evidence?

[00:01:45] Speaker 03:
But in this case, she was excused because of a lack of candor during voir dire, which is separate and apart from her views of the evidence, is it not?

[00:01:55] Speaker 06:
If that was the sole basis

[00:01:59] Speaker 06:
Did the court have discretion to dismiss her based on a lack of candor during voilier?

[00:02:04] Speaker 06:
Yes, the court would have had that.

[00:02:06] Speaker 06:
But the problem in this case is there's the significant possibility that her request was based on her different view of the evidence from the rest of the jurors.

[00:02:16] Speaker 06:
And under Brown, given the fact that it has to be transparent, the Brown court found that

[00:02:23] Speaker 06:
is the possibility that it has to do with her view of the evidence, then that should not be permitted.

[00:02:28] Speaker 03:
Now, should we focus on the district court's reasons for excusing her, not what her request focused on?

[00:02:35] Speaker 06:
Well, and that's fine, but the district court was not clear.

[00:02:39] Speaker 06:
The district court said, I can't look into her mind and tell whether or not she was intentionally deceptive during the voir dire.

[00:02:45] Speaker 06:
And the district court also found he

[00:02:47] Speaker 06:
could not say with certainty that it wasn't because she had a different view of the evidence.

[00:02:53] Speaker 06:
As the district court conceded, it could be that she's a holdout and that her, you know, did her experience with her father possibly affect her evaluation of the evidence?

[00:03:03] Speaker 06:
Well, that's possible, but that's not a basis.

[00:03:06] Speaker 06:
If it had been a transparent thing, if the court had made a finding that the sole basis for her coming forward is her failure to disclose previously the conviction of her father on a related offense nearly 50 years earlier, then yes, I would agree with you.

[00:03:24] Speaker 06:
But it's that it was intermixed with her view of the evidence that made it impermissible.

[00:03:32] Speaker 06:
And she, I mean, I'm repeating myself, go ahead.

[00:03:37] Speaker 04:
But I mean, but the misconduct has nothing to do with the jurors view of the evidence.

[00:03:45] Speaker 04:
Well, the basis for the exclusion was lack of candor, which I mean, on this record sounds like a charitable characterization.

[00:03:56] Speaker 06:
I would tend to.

[00:03:58] Speaker 06:
say it's not that clear on this court and the court didn't remember that her father was convicted of the prostitution when she was six or seven a father who died when she was 10 how much i mean i'm assuming that once he was convicted she had no contact was incarcerated so how much contact did they have and how much how present was it uh in her state of mind when she was answering voilier questions um actually the voilier i was the one who asked her

[00:04:25] Speaker 06:
about not knowing anyone who had been convicted of a crime.

[00:04:30] Speaker 06:
And so was it an innocent misrecollection or was it intentional falsehood?

[00:04:33] Speaker 06:
The judge even acknowledged he couldn't make that call definitively.

[00:04:37] Speaker 06:
He said, I can't look into her mind and make that call.

[00:04:40] Speaker 06:
If you can't make that call, that's an intentional falsehood.

[00:04:42] Speaker 04:
His lack of candor

[00:04:45] Speaker 04:
All right, so if we spot you the difference between intentional misleading and just lack of candor, I take those points, but just lack of candor and independent

[00:05:01] Speaker 04:
ground adequate to support excluding?

[00:05:05] Speaker 06:
Well, I think in that instance, the court has to do a test to say, was it intentional or not?

[00:05:11] Speaker 06:
And how did it affect?

[00:05:13] Speaker 06:
Does it prejudice the proceedings at all?

[00:05:16] Speaker 06:
So for the sake of argument, there's lack of candor, but it wasn't intentional.

[00:05:19] Speaker 06:
It had just not come to the forefront of your mind because it was something that happened 50 years ago when she was six.

[00:05:28] Speaker 06:
I would say that in and of itself wouldn't be a basis to dismiss.

[00:05:31] Speaker 06:
But overlaying everything in this case is the possibility that it had to do with her view of the evidence, that she was coming forward because of her view of the evidence.

[00:05:41] Speaker 06:
And that was the reason this decision violated Brown.

[00:05:45] Speaker 07:
Now, Council, I think that just goes back to the first question, which is why should we be focusing on why she came forward as opposed to why the district court discharged her?

[00:05:57] Speaker 07:
And if we think it's incredibly clear that the district court discharged this juror because of misconduct in voir dire, I think our cases say it's entirely irrelevant whether he also knew she had doubts about the government's evidence.

[00:06:12] Speaker 07:
Isn't that right?

[00:06:14] Speaker 06:
I would disagree, because if at the time it comes to the forefront, there is the possibility that

[00:06:22] Speaker 06:
She has a different view of the evidence.

[00:06:24] Speaker 06:
And as the trial judge correctly or intuited, she was the holdout.

[00:06:32] Speaker 06:
And so because her decision to see removal was colored by that possibility, and the judge looking at the case was bound to say, no, if it's based on the possibility that it's her view of the evidence, then that's not a base to dismiss a juror.

[00:06:52] Speaker 06:
I mean, the case was pretty clear on that.

[00:06:54] Speaker 04:
It has to be transparent.

[00:06:57] Speaker 04:
Suppose a juror in the middle of deliberations.

[00:07:03] Speaker 04:
Posts on social media screen about how outrageous the prosecution is, right?

[00:07:11] Speaker 04:
Very clear misconduct.

[00:07:14] Speaker 04:
Very clear.

[00:07:14] Speaker 04:
Indication of the jurors views.

[00:07:19] Speaker 04:
District Court couldn't dismiss that juror based on the misconduct.

[00:07:23] Speaker 06:
I think they probably have to, because they had violated the oath they took to not communicate on social media, and they'd already formulated an opinion before the close of the evidence.

[00:07:34] Speaker 06:
So that's not the situation we have here.

[00:07:38] Speaker 06:
So with all due respect, I'm not sure how it's, how it is in Orange.

[00:07:44] Speaker 04:
Why isn't it?

[00:07:44] Speaker 04:
If the dismissal rests on the lack of candor,

[00:07:48] Speaker 04:
as opposed to whatever the court might have known about the jurors' possible views, it's exactly the same.

[00:07:55] Speaker 06:
Well, it's the same in that the juror is making a declaration about their views.

[00:08:01] Speaker 06:
But in this instance, that's such a blatant violation of the rule about not communicating with somebody outside of the jury, that I think that would be the basis for their dismissal.

[00:08:12] Speaker 06:
I frankly have to think of it in terms of, well, is that painted because the dismissal is in part, not in part, but it indicates, I mean, the dismissal is because of the posting on social media.

[00:08:27] Speaker 06:
It's not because of their view of the evidence in what you said.

[00:08:30] Speaker 06:
It's much more transparent.

[00:08:35] Speaker 06:
is much more transparent.

[00:08:36] Speaker 06:
Where in this case, coming forward was, as the court acknowledged, possibly, and then the dismissal was sought, possibly based on her different view of the evidence and her being a holdout.

[00:08:49] Speaker 06:
You want to move on to question two, unless my colleagues have other questions.

[00:08:54] Speaker 06:
Sure.

[00:08:56] Speaker 06:
Question two is, the rule says what the rule says.

[00:08:59] Speaker 06:
When you have a deliberating jury and you have

[00:09:02] Speaker 06:
A juror who could no longer continue, you have three options, mistrial, go with 11, or bring back an alternate.

[00:09:09] Speaker 06:
In this case, the jury was already down to 11, so you couldn't do that.

[00:09:14] Speaker 06:
And you couldn't bring back an alternate because the court had already found when the first juror was excused, that bringing back an alternate was unrealistic because of the amount of times they'd gone with deliberations.

[00:09:26] Speaker 06:
And so the only option left to the court under Rule 23 was to declare a mistrial.

[00:09:32] Speaker 06:
It was not to say to the jury, well, we're at the point where we're going to have to dismiss you because of COVID anyway.

[00:09:39] Speaker 06:
Would you like to render a partial verdict?

[00:09:41] Speaker 06:
I mean, the invitation, it interfered with and infected the jurors' ability to deliberate.

[00:09:47] Speaker 06:
This was not a situation where the jurors had indicated at all at any time that there was a deadlock or an impasse and something which would have warranted an invitation to or a re-instruction that you could render a partial verdict.

[00:10:00] Speaker 03:
isn't this so analogous to a situation where there is a deadlock and the court takes a partial verdict because the alternative in both cases is a mistrial and a mistrial is something that we've said in our case law we should avoid if we can it's um it's very costly to the system and to the parties to declare a mistrial and so here the option was declare the mistrial or first ask

[00:10:28] Speaker 03:
And I think the judge was very careful not to be coercive about this, but to ask whether you've reached a verdict.

[00:10:34] Speaker 03:
And if you have, let us know what it is.

[00:10:37] Speaker 03:
It seems to me very much on fours with a deadlock situation because what we're trying to avoid is a mistrial.

[00:10:44] Speaker 06:
I mean, clearly the judge was trying to avoid a mistrial that was going to have to be declared because of

[00:10:50] Speaker 06:
extenuating circumstances related to COVID.

[00:10:53] Speaker 06:
And I would agree he did everything he could to be uncoercive in his instruction.

[00:10:58] Speaker 06:
However, the case law is pretty clear.

[00:11:00] Speaker 06:
Unless the jury indicates that they're deadlocked or at an impasse, inviting them to render a partial verdict is tantamount to... I don't know if the case law is clear because this is a sort of unprecedented set of facts.

[00:11:15] Speaker 03:
And so normally,

[00:11:18] Speaker 03:
a court is faced with a deadlock and you can just declare the mistrial or ask for the partial verdict.

[00:11:24] Speaker 03:
Right.

[00:11:24] Speaker 03:
Here, the district court was forced to declare a mistrial, but before doing so, he just asked for the partial verdict.

[00:11:33] Speaker 03:
I just think that's very analogous to a deadlock situation.

[00:11:35] Speaker 06:
Well, it's analogous, except it doesn't have the deadlock, which is what warrants the giving of the partial verdict.

[00:11:41] Speaker 03:
In this case, we'll talk about the trial.

[00:11:43] Speaker 03:
The mistrial, I think, is the thing that is

[00:11:46] Speaker 03:
The mistrial is the thing that is so costly to the system because then you have to have another trial.

[00:11:51] Speaker 03:
There were four and a half days of deliberation.

[00:11:53] Speaker 03:
Right.

[00:11:54] Speaker 03:
And it was a trial.

[00:11:56] Speaker 03:
It's a big cost to the system.

[00:11:58] Speaker 03:
So before we go down that road, if it's not coercive, why is it erroneous or an abuse of discretion to ask the jury in a non-coercive way?

[00:12:08] Speaker 03:
If they've reached a verdict on one of these counts, there were multiple counts.

[00:12:12] Speaker 06:
I'm not saying it wasn't a reasonable decision on the court's part.

[00:12:15] Speaker 06:
What I'm saying is that the case law talks about its error for the court to invite a partial verdict absent declaration of deadlock.

[00:12:28] Speaker 06:
And here, this jury had never indicated that they were deadlocked.

[00:12:33] Speaker 03:
that stands for that proposition that there must be a deadlock or a commercial verdict.

[00:12:38] Speaker 05:
I think it's probably Lavelle or my recollection of my head.

[00:12:43] Speaker 05:
Lavelle or Moore with a 2 on that point.

[00:12:49] Speaker 03:
Thank you.

[00:12:50] Speaker 04:
All right.

[00:12:51] Speaker 04:
What source of law are you invoking?

[00:12:56] Speaker 04:
I'm sorry.

[00:12:57] Speaker 04:
What source of law are we talking about?

[00:12:59] Speaker 04:
The Sixth Amendment?

[00:13:00] Speaker 04:
Are we talking about criminal rule 31?

[00:13:03] Speaker 04:
Or are we just talking about this court's supervisory power over tribunals inferior to us?

[00:13:13] Speaker 06:
I think it's rule 23 sets out what the court has to do.

[00:13:19] Speaker 06:
No, 23 is the one that talks about when a jury

[00:13:27] Speaker 06:
The three options open to a court when they're in a situation like this, where they can't contract or trigger it, where they no longer have a full jury.

[00:13:39] Speaker 05:
And rule 23.

[00:13:40] Speaker 07:
Your briefs argue this should be subject to the constitutional armlessness standard.

[00:13:46] Speaker 07:
And they clearly argue it's a Sixth Amendment right.

[00:13:48] Speaker 07:
And that's how it's.

[00:13:51] Speaker 07:
portrayed by cases like Lavelle and others that you rely on.

[00:13:54] Speaker 07:
That's on the second issue.

[00:13:56] Speaker 07:
Correct.

[00:13:56] Speaker 07:
Right.

[00:13:57] Speaker 07:
I think that was the question.

[00:13:59] Speaker 07:
The source of law for your second issue.

[00:14:03] Speaker 06:
I think what you're trying to get at is the harmless error issue.

[00:14:06] Speaker 06:
And I think in this context, the defendant was denied the right to have the jury fully deliberate and come to a verdict on its own.

[00:14:16] Speaker 06:
and that's what comes forward in the villain more, that you can't infringe upon the juries.

[00:14:21] Speaker 04:
I mean, here's here's how I'm thinking of it.

[00:14:24] Speaker 04:
If we're talking about the Sixth Amendment, there's very spare text, and we would have to

[00:14:36] Speaker 04:
look at history the way Ramos did, right?

[00:14:40] Speaker 04:
Jury verdict means unanimous verdict.

[00:14:42] Speaker 04:
You know that from hundreds of years of practice.

[00:14:47] Speaker 04:
Maybe there's some analogous principle that jury verdict means a verdict structured however the jury wants to structure it.

[00:14:56] Speaker 04:
But I don't see that.

[00:14:59] Speaker 04:
It seems to me we're just talking about

[00:15:03] Speaker 04:
our courts, supervisory authority, judge made law to make sure that trials don't run off the rails.

[00:15:16] Speaker 04:
And if that's what we're talking about, I would think we give the district court a fair amount of leeway to deal with weird circumstances as they come up like an emerging pandemic.

[00:15:32] Speaker 06:
Undoubtedly, that was a significant factor in the judge's decision-making, that everything was being shut down.

[00:15:41] Speaker 06:
And I suspect throughout this country, on the day the courts were shut down, or days the courts were shut down because of the pandemic, there were probably lots of trials that were going on, and probably, I would assume, lots of juries that had not reached finality in their verdicts.

[00:15:57] Speaker 06:
And in that situation,

[00:15:59] Speaker 06:
A mistrial should have been declared.

[00:16:01] Speaker 04:
So the district court has this hugely exigent circumstance, deals with it as best he can.

[00:16:09] Speaker 04:
I agree with Judge Pam, the instruction was not coercive.

[00:16:15] Speaker 04:
So what's the harm to your client?

[00:16:19] Speaker 06:
The harm was that the jury was not allowed to complete their job.

[00:16:23] Speaker 06:
that they were invited to, it was an invitation to render a verdict when the jury had not indicated that they had completed their deliberations.

[00:16:34] Speaker 06:
And the fact that they had preliminary indicated they may have reached a verdict on one count, but then chose not to give it that day, the court does not have the option to say to the jury, we're about to declare a mis-

[00:16:50] Speaker 06:
an abatement of the proceedings.

[00:16:52] Speaker 06:
I wouldn't have used the word mistrial.

[00:16:54] Speaker 06:
Can you render a verdict?

[00:16:55] Speaker 06:
And in essence, that's what occurred here.

[00:16:57] Speaker 06:
Now, I agree that Judge Mehta did everything he could to be as uncoercive as possible, but it is the giving of, as other case law have said, when the judge invites a partial verdict absent a indication from the jury that they are at an impasse, it's improper and it's error.

[00:17:16] Speaker 04:
It's concerning if there's reason to think

[00:17:20] Speaker 04:
that the jury is either tricked or feels coerced into handing in something as final that the jury thinks is tentative.

[00:17:34] Speaker 04:
That didn't happen here.

[00:17:36] Speaker 06:
Well, we don't know whether or not it happened here.

[00:17:37] Speaker 04:
And as the case points out, the juror told the court, we have a verdict on one count.

[00:17:43] Speaker 06:
They did.

[00:17:44] Speaker 06:
But then they chose, and he gave the,

[00:17:46] Speaker 06:
they did not render that verdict, they were continuing to deliberate.

[00:17:49] Speaker 06:
And the case law makes clear that the jurors may have a tentative view on one issue, and that view may change.

[00:17:57] Speaker 06:
And it's up to the jury to control their deliberations as they see fit.

[00:18:00] Speaker 06:
And in this case, that was infringed upon.

[00:18:02] Speaker 06:
Now, while there's sympathetic circumstances, yeah, of course.

[00:18:06] Speaker 03:
I think when Judge Maeda asked the jury if the juror, four person, I guess, whether they had reached a unanimous verdict,

[00:18:17] Speaker 03:
There was no objection by you.

[00:18:19] Speaker 06:
I actually wasn't there.

[00:18:22] Speaker 06:
OK, by the defendants.

[00:18:24] Speaker 03:
And then there were only 20 minutes left in the day.

[00:18:27] Speaker 03:
So the fact that they didn't come back with a verdict does not seem as significant, given that they didn't really perhaps have time to do so, where all of these other events happened that made things go off the rails.

[00:18:39] Speaker 06:
Whether or not they had enough time to do so is a judgment call.

[00:18:43] Speaker 06:
But what clearly prompted

[00:18:46] Speaker 06:
the giving of the partial verdict was the instruction.

[00:18:52] Speaker 06:
when they came back that Monday, and one of the jurors had to be excused, period.

[00:18:56] Speaker 03:
But these are asking Judge Meda, who has been told that there is a partial verdict, to just not ask for it.

[00:19:03] Speaker 03:
Because under the particular facts of this case, with no objection, it was elicited from a member of the jury that there was a partial verdict.

[00:19:12] Speaker 03:
And then these exigent circumstances happened, where the deliberations would have to end due to the pandemic.

[00:19:19] Speaker 03:
district court knew that there was a partial verdict or at least one juror had indicated so and you're saying that the proper course would be just not to ask them for it and take a mistrial which is very costly under the rule under rule 23 that is correct yes that the the court should not

[00:19:39] Speaker 06:
invite a partial verdict absent a declaration from the jury that they are at an impasse or that they wish to bring a partial verdict.

[00:19:49] Speaker 06:
I mean, at the point this was all happening, one juror wasn't even participating by Zoom or something.

[00:19:57] Speaker 06:
They weren't even all present.

[00:19:58] Speaker 03:
Well, they weren't deliberating.

[00:19:59] Speaker 03:
They were just supposed to elect another four person and then fill out the sheet.

[00:20:03] Speaker 06:
Well, but they had not declared their deliberations at an end.

[00:20:09] Speaker 06:
they were still deliberating and then they were told by the judge, give us your essentially give us your partial verdict.

[00:20:14] Speaker 06:
And with all due respect, the judge made it who was balancing all the equities he could under the case law.

[00:20:20] Speaker 06:
That was error.

[00:20:24] Speaker 04:
Okay, thank you.

[00:20:24] Speaker 04:
I'll give you some time on rebuttal.

[00:20:26] Speaker 04:
Appreciate it.

[00:20:39] Speaker 00:
morning.

[00:20:43] Speaker 02:
Good morning, your honors.

[00:20:44] Speaker 02:
May it please the court.

[00:20:45] Speaker 02:
Marco Bell for the United States.

[00:20:48] Speaker 02:
This is a case about discretion, reasonable exercise of discretion.

[00:20:54] Speaker 02:
I don't want to take my colleague out of context, but I think I heard him say that with respect to the verdict, I'm not saying it wasn't reasonable on the district court's part.

[00:21:08] Speaker 02:
district.

[00:21:09] Speaker 02:
Yeah.

[00:21:11] Speaker 02:
The jury's the court's instruction allowing, um, juror, the four person juror 13 to complete two limited tests that morning.

[00:21:21] Speaker 02:
Whatever any unanimous verdicts, um, that the court that the jury had was not an abuse of discretion.

[00:21:28] Speaker 02:
I think that some of the court's questions to Mr. Zucker illuminated, there isn't some clear legal prohibition or clear legal precedent that guided the court's decision making on Monday morning with the impending pandemic.

[00:21:49] Speaker 07:
Well, Mr. Hobell, I think that's true in this circuit.

[00:21:52] Speaker 07:
But for example, the 10th Circuit's Lavallee, I'm not sure how to pronounce it, decision.

[00:21:57] Speaker 07:
Do you think there's any distinction from that case and this one?

[00:22:02] Speaker 02:
I think there is certainly some similarity in the sense that the district court in that case gave a similar instruction that said, if you have any unanimous verdicts, you can deliver them down.

[00:22:15] Speaker 02:
Of course, the 10th Circuit said that was error.

[00:22:18] Speaker 02:
Now, there's some, I think- Well, just to be precise about the error, right?

[00:22:23] Speaker 07:
The court says, just like the 10th Circuit, 8th Circuit, 7th Circuit, 5th Circuit, by my count, have all said that you can remind the jury of their ability to return a partial verdict.

[00:22:33] Speaker 07:
But the line is crossed if you cut off deliberations and require them to deliver any partial verdicts that they have.

[00:22:43] Speaker 07:
I think that's the setup in all four of those cases.

[00:22:46] Speaker 07:
And I don't think there's a case that has come out the other way on similar facts.

[00:22:50] Speaker 02:
Are you aware of one?

[00:22:52] Speaker 02:
I did.

[00:22:52] Speaker 02:
Yes, I disagree with that, that there's some unanimity here.

[00:22:56] Speaker 02:
We cited in our brief, the Harriet case from the Sixth Circuit and also from the 10th Circuit, the I believe it was the McKinney case, which predated Lavallee.

[00:23:05] Speaker 02:
And in both of those cases, the judges said, look, if you have any unanimous verdicts, you should deliver them at this set time, or you should, I maybe miss,

[00:23:20] Speaker 02:
mistaking the mechanics of this between Laveley and McKinney in terms of who she has said seal them in envelopes.

[00:23:26] Speaker 02:
But in both of those cases, you had district courts indicating if you have, like the district court did here, if you have any unanimous verdicts, you can deliver them now, should deliver them now.

[00:23:43] Speaker 02:
But if they're not unanimous,

[00:23:45] Speaker 02:
bending over backwards, and that's I'm taking that language from the Patterson case, which is a 10 circuit case that post states level a bending over backwards to make it clear there was an option that it was not that it was not meant to convert a tentative tentative verdict into a into a permanent.

[00:24:03] Speaker 02:
That's what we have.

[00:24:05] Speaker 02:
And even in law of L.A., the court found it was harmless, even under the Chapman standard for harmless air.

[00:24:11] Speaker 02:
The court found, the 10th Circuit found, harmless beyond a reasonable doubt because it was non-coercive.

[00:24:17] Speaker 02:
And there's no argument here that this was coercive.

[00:24:20] Speaker 07:
I think that might be right as to whether it was coercive at the time.

[00:24:24] Speaker 07:
But the thing that the 10th Circuit, so McKinney, yes, was 1975.

[00:24:28] Speaker 07:
The LaValle case, I think, is 2006.

[00:24:31] Speaker 07:
And I think the Harriette case is essentially an invited error case.

[00:24:36] Speaker 07:
But just put aside sort of counting up the cases, what the 10th and 7th Circuits have essentially said is, yes, this is a formal rule.

[00:24:44] Speaker 07:
But part of the right to a trial by a jury is to have the jury structure its deliberations, including deciding whether and when to deliver a partial verdict.

[00:24:55] Speaker 07:
Now, I think we would have to disagree with those statements to rule for the government in this case.

[00:25:00] Speaker 07:
And the question I had is, why is that articulation of the jury right incorrect?

[00:25:08] Speaker 02:
Well, there's a few and I hope you'll give me an opportunity to unpack that.

[00:25:11] Speaker 02:
One, not that it matters.

[00:25:13] Speaker 02:
I believe McKinney was 1987.

[00:25:14] Speaker 02:
It's a little more recent, but still somewhat dated.

[00:25:17] Speaker 02:
Number two, as to the Seventh Circuit case law, I think Your Honor is referring to peak and to more.

[00:25:25] Speaker 02:
In both of those cases, you had the judge giving a fairly standard partial verdict instruction

[00:25:30] Speaker 02:
hours after the jury had begun deliberating.

[00:25:34] Speaker 02:
I think in peak it was like at 3 a.m.

[00:25:37] Speaker 02:
on an early morning Saturday.

[00:25:40] Speaker 02:
I'm not sure how you're allowed to do that, but apparently they were.

[00:25:45] Speaker 02:
And so in this circumstance here, you had the jury that was out for four and a half days.

[00:25:50] Speaker 02:
That's roughly half the time that this trialed.

[00:25:54] Speaker 02:
They were out for a long time.

[00:25:56] Speaker 02:
And in terms of the

[00:25:59] Speaker 02:
of the indication you can't just tell them to give a partial verdict.

[00:26:04] Speaker 02:
I think if we parse and we're careful, and the district court was very careful in how it gave this instruction, it wasn't said, give me any verdicts now.

[00:26:11] Speaker 02:
It said, if you have any, you should deliver them now.

[00:26:15] Speaker 02:
If you don't just write no verdict, and they came back and they said no verdict on seven out of eight counts, which is entirely consistent with what the four person said, where the four person said they were on Friday at the end of the day.

[00:26:30] Speaker 03:
Can I ask a question about these other cases from other jurisdictions?

[00:26:34] Speaker 03:
It seems to me that when a jury is mid deliberations and you force them to give a partial verdict,

[00:26:43] Speaker 03:
That is one situation where the verdict could change because the jury is going to continue deliberating and there could be changes of heart or there could be horse trading or compromises that could cause something that was a preliminary verdict to change.

[00:27:01] Speaker 03:
But in this situation, we know that the deliberations are ending.

[00:27:06] Speaker 03:
The jury doesn't know it, but the district court knew that was the case.

[00:27:10] Speaker 03:
And it seems to me that there wasn't going to be

[00:27:13] Speaker 03:
an opportunity for continued deliberations where verdicts could change and there could be reassessment of a prior verdict made.

[00:27:21] Speaker 03:
And I'm wondering if that is a fact that distinguishes this case from some of these cases from other jurisdictions.

[00:27:28] Speaker 02:
It is absolutely a fact that distinguishes this case from other cases.

[00:27:32] Speaker 02:
I think it was a material fact in those cases.

[00:27:39] Speaker 02:
I think more is coming to mind here that the jury continued deliberating and returned somewhat inconsistent verdicts or didn't.

[00:27:47] Speaker 02:
I think there was one either more Benedict in which the partial verdict instruction was given.

[00:27:53] Speaker 02:
The jury returned a guilty verdict on the 924 C count and then continued deliberating and it either acquitted or had a mistrial on the underlying predicate.

[00:28:04] Speaker 03:
So it seems that there was no room for the jury to

[00:28:08] Speaker 03:
structured deliberations any further in this particular case, which distinguishes it from those other cases.

[00:28:14] Speaker 02:
That's entirely correct.

[00:28:16] Speaker 02:
That's entirely correct.

[00:28:18] Speaker 02:
And it is true.

[00:28:19] Speaker 02:
There were additional safeguards in place here.

[00:28:24] Speaker 02:
The district court said, you know, I just want to make sure I'm quoting from its record here.

[00:28:34] Speaker 02:
It said.

[00:28:35] Speaker 02:
Sorry.

[00:28:37] Speaker 02:
none of this is none of this is meant to.

[00:28:43] Speaker 02:
I'm not asking you to come to a conclusion if you have not.

[00:28:48] Speaker 02:
And then he again warned the jury.

[00:28:52] Speaker 02:
None of this is meant to urge you or to compel you to reach a verdict as to any particular count.

[00:28:56] Speaker 02:
It also didn't say your deliberations are going to continue.

[00:28:59] Speaker 02:
It said, come back after you've completed these two tasks and we'll sort of reassess from there.

[00:29:03] Speaker 02:
So it didn't squarely say that deliberations were at an end, but it also didn't say that they were going to continue.

[00:29:12] Speaker 02:
Just to briefly respond to the rule 23 unavailability point,

[00:29:18] Speaker 02:
This is not a situation, this is absolutely not a situation with a clear text of Rule 23, proscribes what the district did here.

[00:29:28] Speaker 02:
The district never found that the juror was unavailable.

[00:29:30] Speaker 02:
They found she could participate remotely in completing the two limited tasks that it assigned to the jury, one, a largely clerical one, picking a new four person, two, completing the verdict form with any verdicts, any unanimous verdicts they had reached at that point in time and writing no verdict next to any counsel they had not reached a verdict.

[00:29:49] Speaker 02:
Um.

[00:29:50] Speaker 02:
So this isn't a situation where rule 23 clearly governs and describes us and therefore this is an area that's committed to the district court's discretion and it reasonably exercised its discretion.

[00:30:01] Speaker 02:
It weighed, I think that to quote it, the district court, it weighed the things it had to weigh in the balance.

[00:30:07] Speaker 02:
That's what we asked district courts to do and appropriately exercised its discretion here because a mistrial is very costly and really is to be avoided whenever possible.

[00:30:18] Speaker 02:
That's what the district court did here.

[00:30:20] Speaker 02:
Unless there any further questions on the verdict, I'm happy to turn briefly to juror 10.

[00:30:27] Speaker 02:
So there was an independent good cause justification for removing juror 10 based on her jury misconduct, namely her lack of candor during voir dire.

[00:30:37] Speaker 02:
That was unconnected to her view of the evidence.

[00:30:40] Speaker 02:
She hadn't heard any evidence at the time that

[00:30:43] Speaker 02:
She was asked at least 5 times and and Mister Zuckers right he asked her at least 3 of those times incredulously really you haven't you don't know anybody's been convicted of a crime in your 53 years of living in DC.

[00:30:55] Speaker 02:
I think the district or was somewhat charitable judge Kansas in in in how it characterized.

[00:31:01] Speaker 02:
sure tense conduct here.

[00:31:04] Speaker 02:
I think there but certainly a minimum found there was a lack of candor that is sufficient to remove her.

[00:31:11] Speaker 02:
It was a sufficient good cause just independent good cause justification there for there was no abuse of discretion just very discretion is very quickly before sit down to correct the record here.

[00:31:21] Speaker 02:
The district court did not find that she was dirt and hold out.

[00:31:25] Speaker 02:
It's very explicitly found.

[00:31:28] Speaker 02:
I'm not saying one way or another.

[00:31:31] Speaker 02:
It said, and this is I'm just quoting from pages 57 to 58 of the supplemental appendix.

[00:31:37] Speaker 02:
The court found I'm not taking from her statements any certainty one way or another as to whether she's a holdout or that she is on board with the government's proof and is just simply having a difficult time given her past with with all of it.

[00:31:50] Speaker 02:
There's no finding there that the district explicitly can go down that route.

[00:31:55] Speaker 02:
The district properly focused on her misconduct during voir dire.

[00:31:57] Speaker 07:
Just very briefly though, isn't the rule, if it were absolutely clear she was the holdout and it was also absolutely clear she lied during voir dire, you would say if the judge says solely because she lied during voir dire, I'm discharging her, but that's okay, right?

[00:32:14] Speaker 02:
Absolutely.

[00:32:15] Speaker 02:
I 100% agree with that.

[00:32:16] Speaker 02:
I'm just in terms of correcting.

[00:32:19] Speaker 02:
unless there are any further questions we'd ask that you affirm as the district.

[00:32:23] Speaker 02:
Thank you very much.

[00:32:24] Speaker 04:
Mr. Zucker will give you two minutes.

[00:32:33] Speaker 06:
Regarding Harriet, the distinction in Harriet is that the jury twice, I think, came back with notes saying they were at an impasse.

[00:32:40] Speaker 06:
And that takes it out of the realm of what happened here.

[00:32:43] Speaker 06:
And the only other point is that I believe

[00:32:51] Speaker 06:
When the court made the ruling it did, it took away the juror's right to reconsider and change their mind prior to rendering a verdict, which is, I would suggest, an intrusion.

[00:33:01] Speaker 06:
The third is the judge never made an independent finding, clearly establishing what the basis for striking the juror was, that it was a lack of candor versus

[00:33:15] Speaker 06:
or inability to deliberate because of review of the evidence.

[00:33:19] Speaker 06:
Had he made that finding, we would be in a different state.

[00:33:21] Speaker 06:
He purposely curtailed his inquiry so as not to trade into those areas and because of that, he never made the findings.

[00:33:29] Speaker 06:
That's all I've had in response to any other questions.

[00:33:34] Speaker 04:
Thank you.

[00:33:35] Speaker 04:
Mr. Zucker, you were appointed by the court to represent the appellant in this case and we thank you for your able assistance.

[00:33:44] Speaker 04:
The case is submitted.