United States v. Robert Gregory Greer, A/K/A Greg Greer

620 F.2d 1383

• Court: Court of Appeals for the Tenth Circuit
• Decided: June 2, 1980
• Docket: 78-1950
• Status: Published

Opinions

McKAY, Circuit Judge.

Defendant Greer was convicted by a jury for violating 21 U.S.C. §§ 841(a)(1), 846. He raises several issues for our consideration on appeal, the most fundamental of which involves allegedly improper contact between a United States Deputy Marshal and the jury. After a hearing on this issue, the trial court held that no prejudice to the defendant resulted.

The contact, which came to the court’s attention after verdict and sentence, occurred at a lunch break during trial. In response to a question, the marshal informed a juror that one Daniels, who was previously convicted on an unrelated charge, could receive either a “straight” sentence or be sentenced under the Federal Youth Corrections Act, 18 U.S.C. §§ 5005 et seq. The marshal explained eligibility for sentencing under the Act and the Act’s expungement provisions. Following this exchange, another juror asked about the application of the Youth Corrections Act to another young man convicted by a prior jury on which she served. This and other questions were, according to some jurors’ reports, related to a man named Williamson. However, at least one juror believed the sentencing conversations to be specifically about Greer. At the hearing, the jurors disagreed on the thrust of the conversations but most indicated — and the marshal’s own testimony confirmed — that there was extensive discussion of the Youth Corrections Act and its effect on sentencing of eligible persons.

The authorities are unequivocal in holding that presenting information to the jury about possible sentencing is prejudicial. Breach of this standard has often been grounds for reversal. A jury is obligated to “reach its verdict without regard to what sentence might be imposed.” Rogers v. United States, 422 U.S. 35, 40, 95 S.Ct. 2091, 2095, 45 L.Ed.2d 1 (1975); United States v. Davidson, 367 F.2d 60, 63 (6th Cir. 1966). Absent a statutory requirement that the jury participate in the sentencing decision, nothing is left “for jury determination beyond the guilt or innocence of an accused.” Chapman v. United States, 443 F.2d 917, 920 (10th Cir. 1971).

We need imagine no improbable hypotheticals to appreciate the prejudicial effects of sentencing discussions as specific as those in this case. Information about sentencing or other consequences of a verdict is prejudicial because, if the jury is convinced that a defendant will receive a light sentence, it may be tempted to convict on weaker evidence. It is quite irrelevant that most (but not all) jurors who heard the conversations understood them to refer directly to defendants in other cases. Because of his youthful appearance, the connection of this defendant to the Youth Corrections Act was obvious. We should not assume that jurors are so obtuse that they are unable to draw simple inferences.

Any private contact with jurors during trial about the matter pending before them is “presumptively prejudicial.” Remmer v. United States, 347 U.S. 227, 229, 74 S.Ct. 450, 451, 98 L.Ed. 654 (1954). If a guilty verdict following prejudicial contact is to be sustained, the government must “establish . . . that such contact with the juror was harmless to the defendant.” Id. at 229, 741 S.Ct. at 451. In Remmer, decided prior to the enactment of the Federal Rules of Evidence, the trial court was required to “determine the circumstances [of the contact], the impact thereof upon the juror, and whether or not it was prejudicial.” 347 U.S. at 230, 74 S.Ct. at 451. However, Fed.R.Evid. 606(b) radically modifies this aspect of Remmer.

Under Rule 606(b), an inquiry into a verdict is limited to a determination “whether extraneous prejudicial information was improperly brought to the jury’s attention or whether any outside influence was improperly brought to bear upon any juror.” It is no longer proper for a court to inquire into “the effect of anything upon [a juror’s] mind or emotions as influencing him to assent to or dissent from the verdict.” Fed.R.Evid. 606(b). The effect of the Rule is that a presumption of prejudice cannot be overcome once a jury has reached its verdict.¹

The record indicates that the trial judge basically understood the import of Rule 606(b). He was very careful at the hearing to insure that jurors testified not about the effect of the contact on their deliberations, but only about the nature of the information conveyed.² This makes it clear that the trial judge did not find the contact to be harmless. Instead, he believed that the information conveyed was not prejudicial because it “did not pertain to the guilt or innocence of the defendant.” Record, vol. 1, at 128. That legal standard was erroneous. Because the jury was given presumptively prejudicial information and no showing of harmlessness could be made, the case must be retried.

The only other substantial issue on appeal relates to the Speedy Trial Act of 1974, 18 U.S.C. §§ 3161 et seq. The trial court found a violation of the Act³ but concluded that, since it occurred prior to July 1,1979, the court retained discretion to rule that dismissal is an inappropriate sanction. We agree that such discretion exists as to violations occurring prior to July 1, 1979, 18 U.S.C. § 3163(c), and that the court did not abuse that discretion in this case. Furthermore, because Greer failed to demonstrate that any prejudice resulted, dismissal was not required by either Fed.R. Crim.P. 48(b) or the Sixth Amendment.

Reversed and remanded for a new trial.

WILLIAM E. DOYLE, Circuit Judge, concurring.

I agree generally with the opinion of Judge McKay, who has written the majority opinion in this case. However, I do wish to comment briefly.

I would say that in most instances the presentation of information by a court official to a jury with regard to the question of sentencing or punishment is going to sully the result and will require a reversal, but I do not favor having a conclusive presumption approach to the question. In so concluding, I do not wish to create the impression that I feel that the matter is less serious than does my brother McKay.

The communication to the jury of the subject of punishment is oftentimes reversible even when the judge communicates it. It is so fundamental that a stock instruction must be given to the jury. This provides that the consideration of punishment is a matter exclusively within the province of the court and is never to be weighed by the jury in any way in arriving at its verdict as to the guilt or innocence of the accused.

Why is this principle a fundamental part of criminal jurisprudence? Because punishment is outside the record as far as a jury is concerned, and its only effect can be to persuade the jury in its decision as to guilt or innocence. Thus, if the defendant has some personal appeal and the jury has a reluctance to convict him because of his youth and in view of their belief that he may go to prison, communication to the jury that it is likely that he will be treated as a youth offender and will be subject to early release quiets their fears and when the information is communicated by a court officer the jury feels that he is providing reliable counsel. As a consequence, the courts have condemned this kind of activity through the years, and a well-trained mar-' shal refrains from communicating anything pertaining to the decision of the jury. He confines himself to such subjects as the weather, if he must talk, and that is why there is little room for a hearing on prejudice.

The practice of trial courts encouraging a jury to recommend leniency is not approved, United States v. Glick, 463 F.2d 491 (2d Cir. 1972), nor is it acceptable to tell a jury that it can recommend psychiatric treatment in a case in which mental capacity for crime is an issue, United States v. Patrick, 161 U.S.App.D.C. 231, 494 F.2d 1150 (1974).

Devitt and Blackmar, Federal Jury Practice and Instructions, cites the Third Circuit case of United States v. Smith, 450 F.2d 312 (3d Cir. 1971), cert. denied 405 U.S. 932, 92 S.Ct. 989, 30 L.Ed.2d 807 (1972), wherein the judge’s statement which indicated that the charge was not too serious and that the sentence would not be severe was held by the Third Circuit to be undesirable but was corrected by the statement that punishment was for the court. This was said by Devitt and Blackmar to be a “dubious precedent. Any intimation of leniency might be construed as an invitation to convict.” The authors also cite United States v. Davidson, 367 F.2d 60 (6th Cir. 1966), which ruled that it was plain error for the judge to suggest to the jury that it might recommend leniency.

The authors cite with approval the decision of the Supreme Court in Rogers v. United States, 422 U.S. 35, 95 S.Ct. 2091, 45 L.Ed.2d 1 (1975). The Supreme Court there held that the trial court should not have limited its response to the jury’s inquiry as to the trial court’s willingness to accept a verdict with a recommendation of “extreme mercy.” The Court said at the very least the trial court should have told the jury that such a recommendation would not be binding in any way. The Court’s language is applicable to the case at bar and therefore it is quoted as follows:

Although a violation of Rule 43 may in some circumstances be harmless error [citations omitted], the nature of the information conveyed to the jury, in addition to the manner in which it was conveyed, does not permit that conclusion in this case. The trial judge should not have confined his response to the jury’s inquiry to an indication of willingness to accept a verdict with a recommendation of “extreme mercy.” At the very least, the court should have reminded the jury that the recommendation would not be binding in any way. [citation omitted]. In addition, the response should have included the admonition that the jury had no sentencing function and should reach its p verdict without regard to what sentence might be imposed, [citations omitted]

422 U.S. at 40, 95 S.Ct. at 2095. The opinion of the Chief Justice concluded that:

[t]he combined effect of the District Court’s errors was so fraught with potential prejudice as to require us to notice them notwithstanding petitioner’s failure to raise the issue in the Court of Appeals or in this Court. Silber v. United States, 370 U.S. 717, 82 S.Ct. 1287, 8 L.Ed.2d 798 (1962); Brotherhood of Carpenters v. United States, 330 U.S. 395, 411-412, 67 S.Ct. 775, 784, 91 L.Ed. 973 (1947). Cf. United States v. Davidson, [367 F.2d 60, 63 (6th Cir. 1966)].

422 U.S. at 41, 95 S.Ct. at 2095. The judgment of the Court of Appeals was reversed and the case was remanded for further proceedings.

The decision in Rogers furnishes broad perspective in considering the question before us in that it shows the grave nature of the issue and the high importance of careful supervision of the jury and court officers.

In closing, I would emphasize that our primary concern here is with the assurances given to the jury that the defendant would be treated with leniency at the time of sentencing. The judge had assured the jury that it had nothing to do with sentencing, and the marshal freely advised the jury as to the provisions of one of the sentencing laws, the effect of which would be to lessen the sentence:

The trial court finally found and concluded that no prejudice resulted from the activity described in the majority opinion. The judge attempted to follow Rule 606 in conducting the hearing. He heard the evidence as to extraneous prejudicial information being improperly brought to the jury’s attention, which procedure Rule 606(b) allows. Rule 606 does not, however, authorize evidence as to the effect that such extraneous material might or might not have had on the jury’s deliberations. The judge nevertheless received evidence that the extraneous evidence did not affect the verdict, and the judge found that the evidence was not prejudicial. In my view, this was contrary to the wording and the object of Rule 606(b) and was improper. There was meager evidence as to the effect on the jury. The rule does not justify receipt of this kind of testimony. It was improper for the judge to receive it and to follow it in support of his ruling that the verdict should be upheld.

1 . This effect of Rule 606(b) may require the courts to narrow the definition of “presumptively prejudicial” found in Remmer v. United States, 347 U.S. at 229, 74 S.Ct. at 451. In any event, juror contact which may affect the outcome of a criminal trial — such as specific discussions about sentencing — clearly remains presumptively prejudicial.

2 . The court did, however, allow jurors to be asked if they followed their instructions or kept their oath. This inquiry impeaches their verdict as much as specific probes into their deliberative processes. Even if we were to indulge the fiction that a juror would ever confess the violation of his oath, such an inquiry is forbidden by Rule 606(b).

3 . A total of 179 days intervened between the time of Greer’s initial indictment and the beginning of trial. To meet the requirements of the Speedy Trial Act and the district court’s own plan, trial should have begun within 120 days. The government was unable to show that at least 59 days should have been excluded from the computation.