JAMES BEDFORD FISHER, PETITIONER V. UNITED STATES OF AMERICA No. 90-6557 In The Supreme Court Of The United States October Term, 1990 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Fourth Circuit Brief For The United States In Opposition OPINION BELOW The opinion of the court of appeals (Pet. App. 1-36) is reported at 912 F.2d 728. JURISDICTION The judgment of the court of appeals was entered on August 30, 1990. A petition for rehearing was denied on October 16, 1990. Pet. App. 37-39. The petition for a writ of certiorari was filed on December 18, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). STATEMENT Following a jury trial in the United States District Court for the Western District of Virginia, petitioner was convicted of using or carrying a firearm during a drug trafficking crime, in violation of 18 U.S.C. 924(c)(1) (Count 1); of possessing cocaine with the intent to distribute it, in violation of 21 U.S.C. 841(a)(1) (Count 2); and of possessing a firearm by a convicted felon, in violation of 18 U.S.C. 922(g)(1) (Count 3). The district court sentenced him to consecutive terms of 60 months' imprisonment on Count 1 and 30 months' imprisonment on Counts 2 and 3, to be followed by a three-year term of supervised release. A divided court of appeals affirmed. Pet. App. 1-36. 1. On June 16, 1988, Roanoke, Virginia, police officers executed a search warrant on a residence whose basement was rented by petitioner. The officers saw petitioner in the basement with a handgun in his possession. When the officers searched the bedroom area of the basement, they found 1.52 grams of cocaine in a leather pouch. The cocaine was packaged in four "baggie corners," i.e., corners cut out of plastic sandwich bags. (The packaging of cocaine in baggie corners is commonly associated with street sales of the drug.) The leather pouch was found under a pair of petitioner's jeans, whose pockets contained $1,655.42 in cash. The police also seized numerous plastic baggies and baggie corners, an additional $150 in cash, a marijuana cigarette, and another handgun. Pet. App. 3-4. 2. At petitioner's trial, a 12-person jury was empaneled; no alternates were retained. After counsel for both sides had made their opening statements, the government discovered that one of the jurors, despite a direct question by the court during voir dire, had not revealed that her husband had been convicted of a felony. The court excused the jury and held a conference in chambers. The district court, the juror, petitioner and his counsel, the prosecutor, and the court reporter were present. Pet. App. 5. /1/ The juror admitted that her husband was a convicted felon, and the court excused her from the jury. Pet. App. 43. The court said: "I'm somewhat disappointed. I asked you to pay attention to the questions and to listen to them and this is causing a great deal of problems for us, because we have let the other jurors go." Ibid. After the juror was escorted from chambers, the following colloquy took place, id. at 44-45: THE COURT: All right, is my understanding that with -- (The record will show that (petitioner) is in here.) that (petitioner) is willing to go forward with eleven jurors. Is that correct, (petitioner)? (PETITIONER): Uh-huh. THE COURT: So we will proceed with eleven jurors. And the government is willing to go forward? (PROSECUTOR): Yes, sir. THE COURT: All right. I'm glad we caught it at this stage of the game anyway. Anything else we need to get on the record? (DEFENSE COUNSEL): No, sir. The court reconvened the jury and explained that one juror had been disqualified because of an incorrect response during voir dire. Pet. App. 45-46. The court added that "(b)ut for the agreement of counsel that we could proceed with eleven jurors, we could have had to -- everything that we've done today would have gone for nought." Id. at 46. The trial then proceeded without further comment on the issue. The jury convicted petitioner on all three counts. Id. at 7. 3. A divided court of appeals affirmed. Pet. App. 1-36. Noting that the precise factual situation in this case appeared to be one of first impression, the majority concluded that petitioner's waiver of his right to a 12-person jury was valid for several reasons: (1) the district court addressed petitioner individually; (2) petitioner expressly agreed to proceed with 11 jurors; (3) petitioner had never claimed that his consent was involuntary or presented any facts supporting an inference that his waiver had not been knowing and voluntary; and (4) the district court gave no indication of concern that petitioner's waiver might be invalid. Pet. App. 16-17. Acknowledging that petitioner had not given his consent to the 11-person jury in open court, the court nevertheless found that this circumstance did not undermine the validity of that consent. Pet. App. 17-18. The court noted that petitioner was present when the juror was disqualified; that the court reporter was present as well; that the district court had treated the juror's disqualification as a serious matter; that petitioner knew of the importance of the waiver issue; that the district court had announced the waiver in open court; that neither petitioner nor his counsel had ever objected to the district court's handling of the disqualification and waiver issues; and that Rule 23(b) itself countenanced a defendant's out-of-court consent to a jury of less than 12. Pet. App. 18-20. Accordingly, the court concluded that the intent of the rule was satisfied and that petitioner's consent was "voluntary, knowing and intelligent." /2/ Finally, the court observed that the district court's acceptance of petitioner's consent to an 11-person jury did not deprive petitioner of his underlying constitutional right to a jury trial, because the Sixth Amendment does not require that a jury have 12 persons. Pet. App. 21, citing Williams v. Florida, 399 U.S. 78, 98-103 (1970) (six-person jury is constitutional). Although the court agreed with other courts (e.g., United States v. Essex, 734 F.2d 832, 838 n.6 (D.C. Cir. 1984)) that the district court's procedure here was "not to be approved," Pet. App. 22, the court remarked that occasional use of less than 12-person juries was contemplated under Fed. R. Crim. P. 23(b), and held that "the essential feature of the constitutionally mandated jury," Pet. App. 22 -- the interposition of the judgment of a relatively large group of laymen between the defendant and his government accusers, see Williams v. Florida, 399 U.S. at 100 -- had been preserved. In dissent, Judge Murnaghan disagreed with the majority's conclusion that petitioner's waiver was knowing and intelligent. Pet. App. 29-30. He believed that the informality of the setting in which petitioner gave his consent made it less likely that he understood the significance of the waiver, and that petitioner had had no opportunity to obtain confidential legal advice from his counsel on the effect of the waiver. Id. at 27, 31-33. Judge Murnaghan suggested that because petitioner knew the district court to be disappointed with the disqualified juror, it would not be unreasonable to conclude that petitioner's own consent was prompted by his desire not to disappoint the court further. Id. at 30. Rejecting the majority's finding that the failure of petitioner and his counsel to object to the district court's announcement of the waiver was further evidence that the waiver was knowing and intelligent, Judge Murnaghan said that the majority's equation of "no evidence that the consent was not knowing" with "evidence of knowing consent" was "without justification." Id. at 31, 34-36. ARGUMENT Petitioner contends that he did not validly waive his right to be tried by a 12-person jury. That fact-bound claim is without merit. The court of appeals correctly determined that petitioner's waiver was "voluntary, knowing and intelligent," Pet. App. 20, and the decision of the court of appeals does not confict with any decision of this Court or of any other court of appeals. 1. There is no conflict among the circuits on the question presented by this case. Petitioner notes that some courts, but not all, have concluded that the oral consent of defense counsel, given in open court with the defendant present, suffices to waive the right to a 12-member jury. /3/ Petitioner cites this conflict as the principal reason he urges the Court to review the judgment below. Pet. 20-28. This case, however, does not present that question, because petitioner did personally consent to an 11-person jury. Accordingly, the conflict cited by petitioner has no bearing on this case. 2. The decision below is also correct. Both the Constitution and the Federal Rules of Criminal Procedure guarantee a federal criminal defendant the right to trial by jury. See U.S. Const. Art. III, Section 2, Cl. 3; Amend. VI; Fed. R. Crim. P. 23. The rules further require that a jury shall have 12 members, unless the defendant waives that right. /4/ Rule 23(b), Fed. R. Crim. P., provides in part that: Juries shall be of 12 but at any time before verdict the parties may stipulate in writing with the approval of the court that the jury shall consist of any number less than 12 or 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. The courts have concluded that the requirement in Rule 23(b) that the stipulation must be in writing is only procedural, and have ruled that oral stipulations are valid where a defendant personally gives his knowing and intelligent consent in open court. See, e.g., United States v. Spiegel, 604 F.2d 961, 964 n.7 (5th Cir. 1979); United States v. Roby, 592 F.2d 406, 408 (8th Cir.), cert. denied, 442 U.S. 944 (1979); United States v. Lane, 479 F.2d 1134, 1136-1137 (6th Cir.), cert. denied, 414 U.S. 861 (1973); United States v. Ricks, 475 F.2d 1326, 1328 (D.C. Cir. 1973); United States v. Guerrero-Peralta, 446 F.2d 876, 877 (9th Cir. 1971); Rogers v. United States, 319 F.2d 5 (7th Cir. 1963). See also Patton v. United States, 281 U.S. 276, 312 (1930) ("express and intelligent consent of the defendant" required; counsel stipulated and defendant personally assented in open court to proceed with eleven jurors). /5/ See generally 8A J. Moore, Moore's Federal Practice Section 23.04(2), at 23-27 (2d ed. 1990) ("(T)he courts of appeals have not imposed a rigid, 'bright-line' rule that the defendant must write or sign such a stipulation as a prerequisite to a valid consent to a reduced jury."). That rule is a reasonable one. Indeed, an oral stipulation may carry more weight than a written stipulation. As one court of appeals has observed, United States v. Ricks, 475 F.2d at 1328 (emphasis in original): The stipulation of all the required parties, the Government, the defendant (his counsel), and the court, was entered into in open court, and appears on the trial record prepared by the reporter. If anything, an oral stipulation entered into, under such circumstances, carries more inherent protection of the defendant's basic rights than a written stipulation executed by the defendant out of court and out of the presence of the judge, where no record is made of the arguments or circumstances which were advanced to bring it about. In Ricks, the defendant was present when the court and the attorneys discussed the effect of excusing a juror because her father had died. After counsel agreed to an 11-member jury, the following colloquy took place between the district court and the defendant, 475 F.2d at 1327: THE COURT: Very well. You understand that, Mr. Ricks (the defendant), and you are willing to go forward with the jurors? THE DEFENDANT: Yes. The court of appeals held that this one-word affirmative statement was sufficient consent to an 11-member jury. Id. at 1328. In this case, petitioner was present during voir dire, as the jury was being selected, and when the district court advised the parties that the jury would consist of 12 members. C.A. Jt. App. 17-36. When the juror disqualification issue arose, petitioner was brought to chambers before the arrival of the juror. Pet. App. 42. After the juror arrived, the district court questioned her in petitioner's presence, disqualified her, and excused her. Id. at 42-44. The court then stated its "understanding" that petitioner was willing to proceed with 11 jurors, and asked petitioner whether that understanding was correct. Petitioner responded in the affirmative. Id. at 44. The district court's use of that term is evidence of (and could only have come from) prior discussions held with counsel in petitioner's presence before the juror arrived. See page 3 note 1, supra. Further proof that the district court correctly understood that petitioner and his counsel had knowingly and intelligently consented to proceed with 11 jurors lies in the fact that defense counsel failed to add anything to the record when given the opportunity to do so, Pet. App. 45, and also failed to object when the district court announced to the jury in open court that counsel had agreed to go forward despite the disqualification of one juror, id. at 45-47. See Lowenfeld v. Phelps, 484 U.S. 231, 240 (1988) (the failure to make a timely objection indicates that the potential for prejudice alleged on appeal "was not apparent to one on the spot"); Wainwright v. Witt, 469 U.S. 412, 430-431 & n.11 (1985) (same). As the court of appeals noted, Pet. App. 17, the district court was in the best position to determine whether petitioner's consent was knowing and intelligent. /6/ Petitioner was present during all of the proceedings related to jury selection and the disqualification of one juror. He expressly agreed, on the record, to proceed with an 11-member jury. Neither petitioner nor his counsel raised any objection to his agreement or to the district court's announcement of that agreement in open court. Finally, no one -- neither the defense, the prosecution, nor the trial judge -- expressed any concern at all in the district court about the validity of petitioner's waiver; the issue was raised for the first time on appeal. Under these circumstances, any alleged deficiency in the district court's handling of the waiver issue did not rise to the level of plain error under Fed. R. Crim. P. 52(b). See United States v. Young, 470 U.S. 1, 16 (1985) (plain errors affect substantive rights, undermine the fundamental fairness of a trial, and contribute to "miscarriage of justice"). For all of these reasons, the court of appeals correctly concluded that petitioner had validly waived his right to a 12-member jury under Fed. R. Crim. P. 23(b). CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General ROBERT S. MUELLER, III Assistant Attorney General THOMAS M. GANNON Attorney APRIL 1991 /1/ The prosecutor later recalled that the district court, petitioner and his counsel, the prosecutor, and the court reporter were present in chambers before the juror arrived. During that period, the court and counsel discussed whether the government would move for a mistrial. After consultation with counsel, however, it appeared that petitioner would agree to proceed with 11 jurors. For reasons that are unknown, the court reporter did not report this part of the proceedings in chambers. See Gov't C.A. Br. 5 n.2. Petitioner did not deny or challenge the accuracy of the government's representation. Petitioner's C.A. Reply Br. 3. The court of appeals could have directed that the record be supplemented pursuant to Fed. R. App. P. 10(e) to include what happened in chambers in this portion of the meeting, see United States v. Page, 661 F.2d 1080 (5th Cir. 1981) (following that procedure), but apparently found it unnecessary to do so in order to resolve this case. /2/ The court also rejected petitioner's contention that the evidence was insufficient to support his convictions for possession of cocaine with the intent to distribute it and for using or carrying a firearm during a drug trafficking crime. Pet. App. 8-11. Petitioner does not pursue that contention in this Court. /3/ See United States v. Roby, 592 F.2d 406, 408 (8th Cir.), cert. denied, 442 U.S. 944 (1979); Williams v. United States, 332 F.2d 36, 38, 39 (7th Cir. 1964), cert. denied, 379 U.S. 976 (1965); Horne v. United States, 264 F.2d 40, 41-44 (5th Cir.), cert. denied, 360 U.S. 934 (1959) (all concluding that oral consent of defense counsel in defendant's presence is sufficient). See also United States v. Spiegel, 604 F.2d 961, 964-966 (5th Cir. 1979) (defense counsel consented orally at sidebar conference and signed written agreement), cert. denied, 446 U.S. 935 (1980). See United States v. Pacente, 503 F.2d 543, 551-552 (7th Cir.) (en banc), cert. denied, 419 U.S. 1048 (1974) (written stipulation by defense counsel is sufficient). The Ninth Circuit has ruled to the contrary. United States v. Reyes, 603 F.2d 69, 71 (9th Cir. 1979) (defense counsel's consent in open court is insufficient). Petitioner errs in claiming that the decision below conflicts with the Fourth Circuit's earlier decision in United States v. Virginia Erection Co., 335 F.2d 868 (1964). In that case, unlike in this one, the district court allowed an alternate juror to sit with the jury during its deliberations. In any event, any disagreement within the Fourth Circuit is, of course, for that court, not this one, to resolve. See Wisniewski v. United States, 353 U.S. 901 (1957). /4/ A 12-member jury is not constitutionally mandated. See Williams v. Florida, 399 U.S. at 103. /5/ Although Patton predated enactment of the Federal Rules of Criminal Procedure, Rule 23(b) was intended to be "a restatement of existing practice, the constitutionality of which was approved in Patton v. United States." Fed. R. Crim. P. 23(b) Advisory Committee Note. While Patton suggested that the Constitution requires 12-person juries, see 281 U.S. at 292, that proposition was squarely rejected in Williams v. Florida, 399 U.S. at 103. /6/ Indeed, the dissent below, Pet. App. 23-36, is a largely speculative effort to second-guess that factual determination by the district court. See, e.g., id. at 30 (dissent speculates that petitioner's consent may have been prompted by a desire not to disappoint further a district court that had already been disappointed by the conduct of the disqualified juror). Petitioner's argument, Pet. 36-37, that the absent twelfth juror might have voted for his acquittal is obviously even more speculative.