United States v. Selwyn Chavis, A/K/A "Selwyn Raymond Chavis," A/K/A "John Doe," A/K/A "Win,"

719 F.2d 46, 1983 U.S. App. LEXIS 16042

• Court: Court of Appeals for the Second Circuit
• Decided: October 14, 1983
• Docket: 1344, Docket 82-1349
• Status: Published

Opinions

MESKILL, Circuit Judge:

This is an appeal from a judgment of the. United States District Court for the Southern District of New York, Motley, C.J., following a three day jury trial convicting defendant of conspiracy to distribute heroin and to possess heroin with intent to distribute it in violation of 21 U.S.C. §§ 841, 846. Defendant was sentenced to two years imprisonment. On appeal Chavis claims that his conviction must be reversed because it was not based upon a unanimous verdict as required by Fed.R.Crim.P. 31(a). We agree and reverse and remand for a new trial.

After the jury deliberated for a total of five hours and twenty minutes, interrupted by requests for a re-reading of certain portions of testimony and the charge, the jury sent the following note to Chief Judge Motley:

Your Honor, we have one juror who is in disagreement with the eleven other jurors. He says he had made his mind up and will not change it.

The following colloquy then occurred:

Mr. Jacobs (Defense Counsel): ... I have discussed with the government the possibility of taking a verdict of eleven. My client has agreed.

Mr. Sobol (Ass’t U.S. Atty.): One moment, your Honor.

The Court: Is there going to be some decision by the government on this suggestion?

Mr. Sobol: We will accept it, your Honor.

The Court: An 11-man verdict?

Mr. Sobol: Yes.

The Court: You say the defendant accepts it?

Mr. Jacobs: Mr. Chavis, I have explained to you that if you insist the verdict must be unanimous and you told me you are willing to accept a verdict from 11 of the 12 jurors.

The Defendant: Yes, I will take it.

The Court: The government wants to take it? The government accepts?

Mr. Sobol: Yes, the government accepts, your Honor.

The Court: All right, bring in the jurors.

Tr. at 317-38, Supp.App. at 51-52.

The jury returned to the courtroom and the foreman announced that the verdict of the 11 jurors was guilty. Prior to polling the jury, the identity of the holdout juror was unknown. When polled, all jurors except juror number 12 stated that their verdict was guilty. The verdict was accepted by the court and the jury was excused.

In United States v. Vega, 447 F.2d 698 (2d Cir.1971), cert. denied, 404 U.S. 1038, 92 S.Ct. 712, 30 L.Ed.2d 730 (1972), this Court held that a federal criminal defendant could waive his right to be tried by a twelve-person jury. In that case the trial judge had received a note from a juryman stating that he was the “primary holdout” preventing the return of a verdict. After obtaining the consent of both the defendant and the prosecution, the district court dismissed the juror and the defendant was convicted by an eleven-person jury. On appeal, Vega’s conviction was affirmed on the ground that he had waived his right to a twelve-person jury.

Distinguishing Vega in United States v. Pachay, 711 F.2d 488 (2d Cir.1983), this Court held that Fed.R.Crim.P. 31(a) “does not permit waiver of the unanimity requirement, a conclusion reached by the three other circuits that have confronted the issue.” 711 F.2d at 491. That holding was qualified somewhat by note 4, 711 F.2d at 493 n. 4, which says:

... violation of the Rule’s [Fed.R.Crim.P. 31(a)] prohibition of waiver requires reversal, at least in a case like this, where the waiver was suggested by the District Judge.

We need not consider whether a waiver obtained in violation of a rule prohibiting waiver can ever be given effect, as, for example, if the idea of accepting a non-unanimous verdict originated with a defendant.

In the instant case it was clear that it was defense counsel who introduced the idea of accepting a non-unanimous verdict. This case, like Pachay, involves a purported waiver of a unanimous verdict, but unlike Pachay, the idea of waiver here was introduced by defense counsel rather than by the trial judge.

We need not answer the question left open by Pachay’s note 4, 711 F.2d at 493 n. 4, whether a waiver obtained in violation of Fed.R.Crim.P. 31(a), which provides that a jury verdict must be unanimous, can ever be given effect. Before we could conclude that such an important right had been waived, we would have to be satisfied that the trial judge had made a searching inquiry to insure that the defendant was fully aware of his right to a unanimous verdict and that he had given up that right of his own free will and not as a result of a misunderstanding, or a promise, threat or someone’s suggestion. Even though the discussion of waiver in this case was initiated by Chavis’ counsel, we are not satisfied that Chavis made an intelligent and voluntary waiver of his right to a unanimous verdict and, consequently, a retrial is required.

Reversed and remanded for a new trial.