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Date: 12-20-2015
Case Style: United States v. Spruill
Case Number: 13-4069-cr
Judge: Rosemary S. Pooler
Court: In the United States Court of Appeals For the Second Circuit
Plaintiff's Attorney: SARALA V. NAGALA, Marc H. Silverman, Deirdre M. Daly
Defendant's Attorney: HARRY SANDICK, Andrew D. Cohen
Description: Defendant Jeff Spruill appeals from a judgment of conviction entered on
July 12, 2013, in the United States District Court for the District of Connecticut
(Robert N. Chatigny, J.), after a jury trial at which he was found guilty of two
counts of possession with intent to distribute and distribution of cocaine and
cocaine base (Counts One and Two), one count of possession with intent to
distribute cocaine (Count Three), and one count of unlawful possession of a
firearm by a convicted felon (Count Four). See 18 U.S.C. §§ 922(g)(1), 924(a)(2);
21 U.S.C. § 841(a)(1), (b)(1)(C). Spruill argues that the district court erred in
dismissing a “holdout” juror for cause during the course of jury deliberations, in
violation of principles enunciated in United States v. Thomas, 116 F.3d 606 (2d
Cir. 1997). He also challenges the sufficiency of the evidence supporting his
convictions on Counts One, Two, and Four; the procedural reasonableness of his
sentence, in particular the district court’s application of a career offender
enhancement under U.S.S.G. § 4B1.1; and the effectiveness of former counsel’s
representation in failing to challenge the § 4B1.1 enhancement. In a
supplemental pro se brief, Spruill further argues that knowledge of “drug type”
is a here‐unproved predicate element of the drug offenses for which he was
convicted.1
As we explain herein, Spruill’s juror removal challenge fails for two
reasons. First, the challenged removal is not subject to Thomas’s “any
possibility” rule, see 116 F.3d at 621–22, because the concern underlying Thomas,
juror nullification, was not here at issue. Rather, removal was based on extrinsic
bias, a matter about which the district court could—and did—inquire without
intruding on jury deliberations. See id. at 621. Second, Spruill waived any
challenge to dismissal of the juror in question by specifically telling the district
court that he did not object either to its colloquy with the juror or to the juror’s
removal, and by in fact recommending the very disposition he now challenges.
For reasons explained in a summary order issued this same day, we reject
Spruill’s remaining counseled and pro se arguments.
Accordingly, we affirm the judgment of conviction.
On March 4, 2015, months after this case was argued, Spruill’s appellate counsel moved for leave to allow Spruill to file a supplemental pro se brief. This Court granted the motion and subsequently received Spruill’s supplemental brief and the Government’s response.
13‐4069‐cr United States v. Spruill
I. Background
A. Controlled Purchases
In the summer of 2012, two confidential informants under the direction of
Middletown, Connecticut police purchased cocaine and cocaine base from
defendant Spruill. The second purchase was made at 18 Glover Place, home of
Spruill’s girlfriend, Chanelle McCalla.
B. Search Warrant
Soon thereafter, police applied for and were granted a warrant to search 18
Glover Place and Spruill’s person. Upon executing the warrant, police found
Spruill to be carrying on his person two small plastic bags, one containing
marijuana and the other containing cocaine.2
At 18 Glover Place, they discovered men’s clothing and toiletries in the
master bedroom, as well as a bullet, which McCalla claimed was a souvenir from
a date at a shooting range. An unlocked door near the entrance to the master
bedroom led to the attic, where police found plastic bags containing Spruill’s
Spruill does not challenge his conviction for the controlled substance found on his person.
clothing, as well as garbage bags containing a bulletproof vest and two leather
bags, from which police seized a .357‐caliber handgun, a .40‐caliber handgun
with three boxes of ammunition, and a .380‐caliber pistol with one box of
ammunition.
C. Trial: Jury Selection & Deliberations
Jury selection in Spruill’s case took place on July 9, 2013. The focus of our
attention on this appeal is Juror 11.3 During voir dire, this juror identified herself
as a “clinician in the State of Connecticut . . . do[ing] outreach in the prison
systems in Hartford.” App. 51. Juror 11 explained that “it’s not a reason not to
serve . . . I’m just thinking like if somebody’s found guilty, I could also see this
person in the prison system.” Id.4 In response to a follow‐up question from
Judge Chatigny asking whether any jurors had “experiences or connections . . .
involving law enforcement,” Juror 11 explained that she worked in the
3 “Juror 11” denotes the juror’s place on the petit jury. During voir dire, this individual was denominated Juror 27. To limit potential confusion, we use the petit jury designation, Juror 11, to refer to this juror throughout our discussion. 4 The district court thereafter explained the difference between the state and federal prison systems to assuage any concern Juror 11 might have had as to the likelihood of future contact with Spruill.
Connecticut Offender Reentry Program, and that the Program’s mission is to
help inmates with mental health issues receive treatment and to “represent them
in the prison and [to] work on their . . . life goals.” Id. at 53, 56.
Spruill’s counsel initially applied, but then withdrew, a peremptory
challenge to Juror 11. The record reflects the following exchange:
THE COURT: Mr. Weingast [defense counsel], I’m just interested in why you removed [Juror 11]. MR. WEINGAST: We discussed that very carefully. The fact that she worked in prisons . . . was basically what tipped the scales . . . . THE COURT: What is your concern? MR. WEINGAST: I think with work, she’s a bit jaded. That was a decision by both me and my client. THE COURT: But Mr. Spruill wanted you to remove her? MR. WEINGAST: Yes, Your Honor. Can I just doublecheck? THE COURT: Yes. (Pause) MR. WEINGAST: We’ll keep her instead. THE COURT: I’m sorry? MR. WEINGAST: We’ll keep her.
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8
. . . . THE COURT: To be clear, Mr. Weingast, I don’t want Mr. Spruill to think that I am here to influence his exercise of peremptories, because I’m not. MR. WEINGAST: No, Your Honor absolutely not. This is . . . one we weighed very carefully, and on balance with what the Court just said, we talked about it some more and my client would like to keep her. THE COURT: Okay. Id. at 116–17. Juror 11 ultimately served on the jury.
After the close of evidence, during deliberations, the court received two
jury notes in close succession. The first revealed that the jury was divided,
apparently 11 to 1, and sought clarification as to the law of constructive
possession:
Your Honor, we have one juror that at this point that does not agree with the jury. He/she has doubts and at this point is unwilling to change their vote. There is also the law for constructive possession and clarity on the law. We would like you to confirm that we should take what is stated on page 20 as law. The majority of the jurors are unwilling to stop too quickly at the expense of justice. How should we proceed? Do we continue discussing the points?
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9
Id. at 521. The second note indicated one juror’s concern about a conflict of
interest:
We have one juror who feels in their gut that they have a conflict of interest. We need to understand how to proceed.
Id.
Invited to comment on the first note, both the prosecutor and Spruill’s
counsel stated that the jury did not appear deadlocked and should be instructed
to continue deliberations. As to the second note, counsel agreed that it was not
clear whether the “holdout” juror in the first note and the “conflicted” juror in
the second note were one and the same. With counsel’s agreement, the court
decided to give the jury further instruction.
In response to the first note, the court reminded the jurors that “[e]ach of
you must decide the case for yourself” and “if after carefully considering all the
evidence and the arguments of your fellow jurors you entertain a conscientious
view that differs from the others, you are not to yield your conviction simply
because you are outnumbered.” Id. at 530–31. This immediately prompted a
third note, requesting a definition of “conscientious view.” The court explained,
“the term refers to a view of the case based on fair and impartial consideration of
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10
all the evidence and full and fair discussion of the issues in the case with the
other jurors.” Id. at 532. The court then asked counsel whether they agreed with
the stated definition, and both responded with approval.
Addressing the second note, the district court instructed the jury on
“conflict of interest” as follows:
Like judges, jurors are required to be impartial and unbiased. A juror is not permitted to have a personal bias for or against any party. A conflict of interest can arise when a juror has a financial interest in a case, knows one of the lawyers or parties or witnesses, or has been personally involved in a situation like the one at issue in the case. A conflict of interest is in the nature of a personal stake or involvement in the case that makes it difficult for the individual to be fair and impartial, to decide the case based solely on the evidence and the applicable law, not on anything else. . . . . [I]f after considering these brief comments it appears that there may be a conflict of interest, then that is something that would need to be disclosed and I would need to address it.
Id. at 533–34. When the jury resumed its deliberations, the court confirmed that
counsel had no objections to any part of the instruction given: “Not from the
government, Your Honor”; and “No, Your Honor, thank you,” from Spruill’s
counsel. Id. at 535.
13‐4069‐cr United States v. Spruill
11
Shortly thereafter, the court received a fourth note, this time from Juror 11,
which stated as follows:
I had concerns during jury selection about being in a position where I have involvement with similar cases when working with individuals with similar charges. After hearing deliberations, I’m finding my “gut feeling” is potentially creating a bias. If possible, it may make sense to be replaced at this time by another juror.
Id. at 536. The court shared the note with counsel and solicited guidance on how
to proceed. Agreeing with the Government, Spruill’s counsel urged further
inquiry:
I think the Court would need to inquire of her whether she can set aside the bias and deliberate, and I suppose also the nature of the bias so that we know if it’s something that is truly a bias in terms of jury deliberations. . . . I think the court needs to inquire of her individually. Id. at 537–38.
In discussing how to conduct such an inquiry without intruding on jury
deliberations, see id. at 538–39 (observing, “I don’t want to intrude on the jury’s
deliberations, I don’t want to know about the jury deliberation, but I need to
13‐4069‐cr United States v. Spruill
12
respond intelligently to this note”),5 the district court posited two scenarios:
“either [1] Juror 11 has a conscientious view that differs from everybody else or
[2] she’s having difficulty deliberating as she would wish to do because of what
might be thought of as sympathy for Mr. Spruill,” id. at 539. With counsels’
consent, the court then called Juror 11 into the courtroom.
Before making any inquiry, Judge Chatigny cautioned the juror:
[I]t’s important that you not reveal to me anything about the jury deliberations. . . . That’s a matter for the jury alone and we need to respect the confidentiality of the jury’s work and the secrecy of the jury’s deliberations. But with regard to your own personal situation as a juror, we can talk about whatever problem is causing you concern. Id. at 541.
Juror 11 explained that her employment experience was the source of her
concern:
I think when we had the jury selection . . . I had mentioned [that] I work in the prison system and I work with inmates all the time. And I feel . . . like that was sort of a conflict in the beginning. . . . But
5 The record consistently demonstrates Judge Chatigny’s commendable caution in identifying the concerns presented by the court’s inquiry of a deliberating juror regarding a potential conflict, and in further consulting with counsel before every action taken.
13‐4069‐cr United States v. Spruill
13
I said, okay, well, maybe there isn’t a problem, because I presented it to you as a judge and you continued to let me stay in there, so I figured it probably wasn’t a problem. . . . I’m trying to do my best . . . to make the best unbiased decisions, but I also am feeling like my work and my involvement with people in that matter and the things that I’ve heard from other inmates in cases, similar cases that they have like this—you know, I work with people that have had drug convictions and things like that—and things that they say to me . . . [are] somewhat clouding my views. I’m trying not to. . . . I’m trying to look at the evidence and trying to make a decision on all that, and I feel like in some ways I kind of am. But somebody mentioned—I can’t bring up the deliberations, but it just kind of made me think about it and it’s just been difficult. And they were asking me all this stuff and I was, look, I don’t know, you know. So I’m just trying to be honest about it. I’m trying to do my best . . . . Id. at 542–43. The court then asked, “So in a very real sense, you have clients
who are similarly situated to Mr. Spruill?” id. at 543, to which Juror 11 replied:
Yes. I’ve had experience with that. . . . . And a lot of [my clients] have mentioned things to me that makes me think about the system and things—I don’t know what’s truth and what’s not—to create some cloudiness in my head about certain things. Id. at 543–44.
13‐4069‐cr United States v. Spruill
14
The court then presented Juror 11 with the two possible scenarios
discussed previously with counsel, and she replied:
I’m trying to be as fair as I can be and I feel like I’ve been trying to listen to all the evidence and I feel like I was coming to a fair decision, but I feel like other members also felt maybe I didn’t, you know. So I don’t know where I feel like if I can even—I don’t know. I mean, for [the] interest of the Court and everybody’s time, it might just make sense to have somebody else. I just don’t know. Id. at 546. The court made no decision at that time as to whether Juror 11 could
continue to serve or should be dismissed. Instead, it suggested to Juror 11 that
she take time to consider whether she could “fairly and impartially judge the
case based solely on the evidence.” Id. It directed her not to “be concerned
about time or imposing on other people,” and “simply [to] focus on whether you
are able to be a fair and impartial judge of the case or whether it’s really not a
suitable case for you given the work that you do.” Id. at 547.
After the juror departed the courtroom, the court asked counsel whether
they had “[a]ny objection to anything that happened just now,” to which both
responded, “No, Your Honor.” Id. at 548. The court again solicited guidance on
how to proceed, whereupon Spruill’s attorney stated, “I think we just need to
give her a few minutes . . . . We just have to recess and . . . be nearby . . . .” Id.
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A short time later, the court received a fifth note. Therein, Juror 11 asked
to be dismissed, stating that she was having “some difficulty in making a
decision on a verdict based on feelings of sensitivity toward individuals who
have similar cases to Mr. Spruill.” Id. at 549. When Judge Chatigny invited
comment, the prosecutor stated that Juror 11 “should be excused at this point.”
Id. at 550. Asked whether he agreed, Spruill’s counsel responded, “Yes, Your
Honor.” Id. The court then dismissed Juror 11, replacing her with an alternate.
The jury began its deliberations anew, and soon thereafter returned a
guilty verdict on all counts.
D. Sentencing
At Spruill’s October 10, 2013 sentencing hearing, the court considered the
Presentence Investigation Report (“PSR”) in determining Spruill’s sentencing
range under the United States Sentencing Guidelines. Referencing a transcript of
state court proceedings at which Spruill had pleaded guilty to (1) the sale of
narcotics in violation of Conn. Gen. Stat. 21a‐277(a) and (2) possession of
narcotics with intent to sell in violation of Conn. Gen. Stat. 21a‐277(a), the PSR
recommended that a § 4B1.2 enhancement be applied to Spruill’s firearm
13‐4069‐cr United States v. Spruill
16
conviction and that he be designated a career offender under § 4B1.1, yielding a
Guidelines range of 210 to 262 months’ imprisonment. With objections not
relevant here, the court adopted the PSR’s calculation, considered the factors set
out in 18 U.S.C. § 3553(a), and sentenced Spruill to a below‐Guidelines sentence
of 120 months’ imprisonment.
This timely appeal followed.
II. Discussion
Citing language in United States v. Thomas, 116 F.3d 606 (2d Cir. 1997),
stating that “‘if the record evidence discloses any possibility that the request to
discharge stems from the juror’s view of the sufficiency of the government’s
evidence, the court must deny the request,’” id. at 621–22 (emphasis omitted)
(quoting United States v. Brown, 823 F.2d 591, 596 (D.C. Cir. 1987)), Spruill
argues that the district court erred in dismissing Juror 11 because she was the
holdout against conviction based on doubts as to the sufficiency of the evidence,
see id. at 622 & n.11. Because Spruill did not object to Juror 11’s dismissal in the
district court, we would normally review the challenged decision only for plain
error. See United States v. Marcus, 560 U.S. 258, 262 (2010) (holding that party
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17
claiming plain error must show (1) error; (2) that is clear or obvious, rather than
subject to reasonable dispute; (3) that affected party’s substantial rights; and (4)
that seriously affected fairness, integrity, or public reputation of judicial
proceedings); United States v. Wernick, 691 F.3d 108, 113 (2d Cir. 2012). As we
explain in the next section of this opinion, Spruill cannot demonstrate plain error
because Juror 11 was not removed for possible nullification, the concern
underlying Thomas’s “any possibility” rule, but, rather, for extrinsic bias, which
the district court was able to assess without intruding on jury deliberations. In
any event, Spruill did not simply forfeit but, rather, waived any challenge to the
district court’s inquiry and dismissal of Juror 11 by affirmatively agreeing to
those actions.
A. The Alleged Plain Error Under Thomas
To demonstrate error in the removal of a deliberating juror for cause under
Fed. R. Crim. P. 23(b), Spruill must show that the district court abused the
considerable discretion it is accorded in this area. See United States v. Simmons,
560 F.3d 98, 109 (2d Cir. 2009); cf. United States v. Farhane, 634 F.3d 127, 168 (2d
Cir. 2011) (according district court “broad flexibility” in handling alleged juror
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18
misconduct, “mindful that addressing juror misconduct always presents a
delicate and complex task, particularly when the misconduct arises during
deliberations” (internal quotation marks and citations omitted)).6 Such discretion
extends to decisions whether, and to what degree, to question a deliberating
juror regarding circumstances that may give cause for removal. See United
States v. Baker, 262 F.3d 124, 129 (2d Cir. 2001). Such questioning must be
pursued cautiously, however, so as not to intrude on one of the cornerstones of
our jury system: preservation of the secrecy of jury deliberations. See United
States v. Thomas, 116 F.3d at 618 (observing that “delicate and complex task” of
investigating reports of juror misconduct or bias becomes “particularly sensitive”
where court investigates allegations of juror misconduct during deliberations).
Spruill’s claim that Juror 11’s removal was Thomas error ignores a critical
context difference. The concern here was juror partiality or bias attributable to
6 We have observed that where a juror is the “lone holdout for acquittal” that juror’s removal must be “meticulously scrutinized.” United States v. Hernandez, 862 F.2d 17, 23 (2d Cir. 1988); accord United States v. Thomas, 116 F.3d at 624–25. But even in such cases, what the removal is scrutinized for is abuse of discretion. See United States v. Baker, 262 F.3d 124, 129–30 (2d Cir. 2001) (applying abuse of discretion standard in rejecting Thomas challenge to apparent holdout juror).
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19
an extrinsic cause: the juror’s employment experience. In Thomas, the concern
was possible juror nullification, i.e., a purposeful refusal to consider the evidence
and the court’s instructions on the law in reaching a verdict. See id. at 614.
Thomas stated that “a juror who intends to nullify the applicable law is no less
subject to dismissal than is a juror who disregards the court’s instructions due to
an event or relationship that renders him biased or otherwise unable to render a
fair and impartial verdict.” Id. At the same time, Thomas recognized that where
“no allegedly prejudicial event or relationship” is at issue, id. at 621, juror
disregard of the law is “a particularly difficult allegation to prove and one for
which an effort to act in good faith may easily be mistaken,” id. at 618. Thus, a
court presented with a claim of nullification during deliberations confronts a
serious dilemma. Without an adequate inquiry, the court may remove a juror
who is simply unpersuaded by the Government’s case, which would deny the
defendant his right to a unanimous verdict. See id. at 621. But to conduct such
an inquiry of a deliberating juror suspected of nullification necessarily gives rise
to an “especially pronounced” conflict between a trial court’s “duty to dismiss
jurors for misconduct” and its duty to “safeguard[] the secrecy of jury
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20
deliberations.” Id. at 618. It was to balance these concerns properly that Thomas
pronounced a strict limitation on the removal of a deliberating juror “in any case
where the juror allegedly reuses to follow the law”: “if the record evidence
discloses any possibility that the request to discharge stems from the juror’s view
of the sufficiency of the government’s evidence, the court must deny the
request.” Id. at 621–22 (emphasis and internal quotation marks omitted).7 It was
because the record in Thomas admitted such a possibility that we concluded that
the district court erroneously removed the juror. See id. at 624.
7 The first quotation belies our dissenting colleague’s assertion that “[n]othing in Thomas . . . suggests that the ‘any possibility’ standard applies only in the juror nullification context.” Dissenting Op., post at [4]. Indeed, Thomas makes the point again in pronouncing the standard “an imperfect rule” that, while “leav[ing] open the possibility that jurors will engage in irresponsible activity . . . outside the court’s power to investigate or correct,” nevertheless serves a system of justice where “the judge’s duty and authority to prevent nullification and the need for jury secrecy co‐exist uneasily.” United States v. Thomas, 116 F.3d at 622 (emphasis added). The Thomas footnote cited by the dissent itself makes clear that nullification is the concern of the any possibility rule: “Accordingly, if the record raises any possibility that the juror’s views on the merits of the case, rather than a purposeful intent to disregard the court’s instructions, underlay the request that he be discharged, the juror must not be dismissed.” United States v. Thomas, 116 F.3d at 622 n.11 (emphasis omitted and emphasis added).
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21
Thomas itself recognized that where concerns as to a deliberating juror’s
continued ability to serve arise in a context other than nullification—for example,
juror unavailability or incapacitation—its strict “any possibility” rule is not
required because a trial judge can “conduct a thorough examination of the basis
for removal” and “make appropriate findings of fact,” including juror credibility,
“without any inquiry into the juror’s thoughts on the merits of the case.” Id. at
620 (emphasis in original). Thomas observed that “[t]he need to protect the
secrecy of jury deliberations begins to limit the investigatory powers where the
asserted basis for a deliberating juror’s possible dismissal is the juror’s alleged
bias or partiality in joining or not joining the views of his colleagues.” Id. at 620–
21 (emphasis added). But Thomas did not apply the “any possibility” rule to all
such claims. Rather it recognized that where the claimed bias or partiality is
attributable to an extrinsic event, a judge might well be able to determine its
prejudicial likelihood “without intrusion into the deliberative process.” Id. at
621; see United States v. Egbuniwe, 969 F.2d 757, 762–63 (9th Cir. 1992) (cited
approvingly in Thomas) (upholding removal of deliberating juror whose
girlfriend had been arrested and mistreated by police); United States v. Ruggiero,
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22
928 F.2d 1289, 1300 (2d Cir. 1991) (upholding dismissal of deliberating juror
subjected to intimidation by two men in driveway); United States v. Casamento,
887 F.2d 1141, 1186–87 (2d Cir. 1989) (upholding dismissal of deliberating juror
whose daughter received threatening phone call). In short, by contrast to cases
of alleged nullification, where “the judge may well have no means of
investigating the allegation without unduly breaching the secrecy of
deliberations,” in cases of possible bias from extrinsic factors, “the presiding
judge can make appropriate findings and establish whether a juror is biased or
otherwise unable to serve without delving into the reasons underlying the juror’s
views on the merits of the case [because] an event or relationship itself becomes
the subject of investigation.” United States v. Thomas, 116 F.3d at 621. Thus
Thomas mandated its “any possibility” rule in the former circumstance but not in
the latter. See id. at 623 (stating that it adopted rule in nullification context
because where “duty and authority to prevent defiant disregard of the law or
evidence comes into conflict with the principle of secret jury deliberations, we
are compelled to err in favor of the lesser of two evils—protecting the secrecy of
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23
jury deliberations at the expense of possibly allowing irresponsible juror
activity”).
Since Thomas was decided, this court has reiterated that its strict “any
possibility” rule does not reach beyond nullification to other forms of juror
misconduct. Notably, in United States v. Baker, 262 F.3d at 131–32, we identified
a “subtle, but important,” distinction between a juror “determin[ed] to vote
without regard to the evidence” and a juror who admittedly “refused to
participate in deliberations as required by her obligations as a juror,” such that
the “stringent rule announced in Thomas” applied in the former circumstance
but not in the latter. See id. (explaining that “stringent rule announced in
Thomas . . . is based on the difficulty in detecting the difference between a juror’s
illegal act of nullification . . . and the juror’s failure to be convinced of the
defendant’s guilt”; where “juror refused to participate in deliberations as
required by her obligations as a juror, the rule of Thomas does not apply . . .”).
Thus, we held that the district court acted within its discretion in removing a
juror who had “improperly made up her mind prior to the beginning of
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24
deliberations and refused to engage in deliberations with the other jurors.” Id. at
130.
Our sister circuits also have recognized that the Thomas rule does not
apply where a district court can safely distinguish between instances of actual
juror misconduct and a juror’s views on the merits, such as in cases involving
partiality or bias that can be assessed without reference to the jury’s
deliberations. See United States v. Symington, 195 F.3d 1080, 1087 n.6 (9th Cir.
1999) (distinguishing between allegations that go to “quality and coherence” of
juror’s views on merits, which require strict Thomas‐based standard of dismissal,
and questions of juror bias or competence that focus on some identifiable event
or relationship, which do not demand strict standard); see also United States v.
Kemp, 500 F.3d 257, 303 n.25 (3d Cir. 2007) (observing that strict no‐reasonable
possibility rule does not apply in “many instances” of alleged juror bias where
district court can “focus on the existence of a particular act that gives rise to the
bias”).
Applying these principles here, we observe that even if the record suggests
that Juror 11 was a holdout, it raises no nullification concern as in Thomas. To
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the contrary, the record indicates that Juror 11 understood and accepted the duty
to base a verdict on the evidence and the law, but that she herself voiced concern
about her ability to perform that duty in light of an extrinsic factor: her work in
the state prison system, which may have been causing a bias in favor of
defendant. This is not a circumstance akin to Thomas, where an excusal inquiry
necessarily risked intrusion on jury deliberations as to require application of a
strict “any possibility” standard to the district court’s removal decision. Rather,
it is a circumstance where the removal inquiry and decision could, and did, focus
on the extrinsic matter identified.
This is not to ignore the challenges confronting the district court in making
a decision to excuse Juror 11. As the able trial judge recognized, initially the
juror herself was not clear as to whether she was, in fact, operating under an
actual bias favoring defendant, or whether she simply possessed a conscientious
view of the evidence at odds with her fellow jurors. See App. 539 (observing that
Juror 11 either “has a conscientious view that differs from everybody else or
she’s having difficulty deliberating as she would wish to do because of what
might be thought of as sympathy for Mr. Spruill”). Compare id. at 536 (stating,
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26
in jury note, that “I had concerns during jury selection about being in a position
where I have involvement with similar cases when working with individuals
with similar charges,” and that “[a]fter hearing deliberations, I’m finding my ‘gut
feeling’ is potentially creating a bias”), with id. at 542 (“I’m trying to look at the
evidence and trying to make a decision on all that, and I feel like in some ways I
kind of am.”).
Judge Chatigny, however, was careful to resolve that ambiguity with
minimal inquiry of the juror, and certainly without any inquiry into the juror’s
views of the evidence. Cf. United States v. Baker, 262 F.3d at 132 (observing, in
upholding dismissal of deliberating juror, that “it is often difficult to steer such
interviews clear of revealing the jurors’ views”). He commendably afforded the
juror additional time to consider for herself whether she was “able to be a fair
and impartial judge of the case or whether it’s really not a suitable case for you
given the work that you do.” App. 547; see generally United States v. Nelson,
277 F.3d 164, 202–03 (2d Cir. 2002) (“[I]t is important that a juror who has
expressed doubts about his or her impartiality also unambiguously assure the
district court, in the face of these doubts, of her willingness to exert truly best
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27
efforts to decide the case without reference to the predispositions and based
solely on the evidence presented at trial.” (emphasis in original)). Moreover, he
ensured that the juror would feel no pressure to make a hasty decision,
emphasizing that she should not be concerned with the amount of time needed
or any possible inconvenience. See App. 546–47.
After taking some time, Juror 11 reported to Judge Chatigny that she was
having “some difficulty in making a decision on a verdict based on feelings of
sensitivity toward individuals who have similar cases to Mr. Spruill.” Id. at 617
(emphasis added). On this record, and with no intrusion whatsoever on jury
deliberations, the district court was able to determine—and both prosecution and
defense counsel agreed—that Juror 11 needed to be removed for extrinsic bias.
These circumstances are thus distinguishable from Thomas, and not controlled
by its “any possibility” rule. See United States v. Baker, 262 F.3d at 131–32.
Accordingly, Spruill cannot show error, let alone plain error, in the
dismissal of Juror 11. See generally United States v. Ruggiero, 928 F.2d at 1300
(observing that appellate court “would be rash indeed to second guess the
conclusion of the experienced trial judge, based in large measure upon personal
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28
observations that cannot be captured on a paper record, that [the juror] was
disabled by fear from continuing to participate in the jury’s deliberations”); see
also United States v. Baker, 262 F.3d at 129, 131 (upholding dismissal where
record indicated deliberating juror was not removed for “nonconforming view of
the evidence,” notwithstanding her insistence that views were “based on the
evidence”). In any event, Spruill confronts an even higher hurdle than plain
error, because, as we explain in the next section, his challenge to Juror 11’s
removal is precluded by waiver.
B. Spruill’s Waiver of Any Challenge to Inquiry and Removal of Juror 11
Under Fed. R. Crim. P. 52(b), this court has discretion to correct errors that
were forfeited because not timely raised in the district court, but no such
discretion applies when there has been true waiver. See United States v. Olano,
507 U.S. 725, 731–34 (1993); United States v. Kon Yu‐Leung, 51 F.3d 1116, 1121
(2d Cir. 1995) (explaining that “forfeiture does not preclude appellate
consideration of a claim in the presence of plain error, whereas waiver
necessarily ‘extinguishes’ the claim altogether”). Forfeiture occurs when a
defendant, in most instances due to mistake or oversight, fails to assert an
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29
objection in the district court. See United States v. Kon Yu‐Leung, 51 F.3d at 1122
(“If a party’s failure to take an evidentiary exception is simply a matter of
oversight, then such oversight qualifies as a correctable ‘forfeiture’ for the
purposes of plain error analysis.”); see also United States v. Nouri, 711 F.3d 129,
138 (2d Cir. 2013) (reviewing jury instruction for plain error where defendant
failed to make timely objection at trial); United States v. Gore, 154 F.3d 34, 42 (2d
Cir. 1998) (observing that defendant’s failure to present timely argument or
objection to merger issue amounted to forfeiture). By contrast, waiver can result
only from a defendant’s intentional decision not to assert a right. See United
States v. Quinones, 511 F.3d 289, 321 n.21 (2d Cir. 2007) (defining waiver as
“intentional relinquishment or abandonment of a known right” (internal
quotation marks omitted)); accord United States v. Ferguson, 676 F.3d 260, 282
(2d Cir. 2011); see also United States v. Zubia‐Torres, 550 F.3d 1202, 1205 (10th
Cir. 2008) (observing that “waiver is accomplished by intent, but forfeiture comes
about through neglect” (alterations and internal quotation marks omitted)). We
here identify such intentional action by Spruill with respect to the district court’s
inquiry and removal of Juror 11.
13‐4069‐cr United States v. Spruill
30
Various circumstances can manifest a defendant’s intentional
relinquishment of a known right. For example, this court has recognized waiver
where a party actively solicits or agrees to a course of action that he later claims
was error. See, e.g., United States v. Quinones, 511 F.3d at 320–22 (stating that
defendants who solicited and agreed to erroneous jury instruction that, if death
penalty were not imposed, life imprisonment was mandated, could not later
claim that imposition of life sentence was plain error); United States v. Coonan,
938 F.2d 1553, 1561 (2d Cir. 1991) (concluding that defendant who welcomed
admission of evidence relating to gang membership waived right to appeal
admission of that evidence); see also United States v. Teague, 443 F.3d 1310, 1316
(10th Cir. 2006) (stating that when defendant, through counsel, proposed and
agreed to conditions of supervised release, defendant could not later appeal
conditions). We have identified waiver where a party asserts, but subsequently
withdraws, an objection in the district court. See, e.g., United States v. Weiss, 930
F.2d 185, 198 (2d Cir. 1991) (holding that defendant who withdrew objection to
exclusion of documents waived right to appeal exclusion); see also United States
v. Zubia‐Torres, 550 F.3d at 1205 (“We typically find waiver in cases where . . . a
13‐4069‐cr United States v. Spruill
31
party attempts to reassert an argument that it previously raised and abandoned
below.”); United States v. Denkins, 367 F.3d 537, 543–44 (6th Cir. 2004) (holding
that defendant waived any competency challenge to guilty plea where counsel
secured competency evaluation but later abandoned competency argument and
withdrew any previous objections). We have also recognized waiver where a
party makes a “tactical decision” not to raise an objection. United States v. Kon
Yu‐Leung, 51 F.3d at 1122–23 (holding that, where defendant objects to certain
evidence as irrelevant and prejudicial but opts, as tactical matter, not to object to
other evidence, such inaction “constitutes a true ‘waiver,’ which will negate even
plain error review”); accord United States v. Quinones, 511 F.3d at 321. In each
of these circumstances, the record has supported the critical determination that
the defendant, through counsel, acted intentionally in pursuing, or not pursuing,
a particular course of action.8
8 Judge Pooler observes that Spruill did not personally waive any objection to the removal of Juror 11. See Dissenting Op., post at [10]. To be sure, personal waiver is required for certain rights; a defendant “has the ultimate authority to determine whether to plead guilty, waive a jury, testify in his or her own behalf, or take an appeal.” Florida v. Nixon, 543 U.S. 175, 187 (2004) (internal quotation marks omitted). But while “there are basic rights that the attorney cannot waive
13‐4069‐cr United States v. Spruill
32
The record in this case convincingly demonstrates that Spruill, through
counsel, also acted intentionally when he affirmatively agreed to and, at times,
even recommended the actions he now challenges with respect to the removal of
Juror 11. Thus, his Thomas argument is not simply forfeited without plain error,
but waived.
From the start of trial, and long before jury deliberations commenced,
Spruill was aware that Juror 11’s employment might affect her jury service.
Indeed, during voir dire, Spruill initially exercised, but then withdrew, a
peremptory challenge to Juror 11 based on concern that she might be “jaded”
because of her work. App. 116. Thus, when, during jury deliberations, Juror 11
expressed concern about a possible conflict based on her work, Spruill
without the fully informed and publicly acknowledged consent of the client, the lawyer has—and must have—full authority to manage the conduct of the trial. The adversary process could not function effectively if every tactical decision required client approval.” Taylor v. Illinois, 484 U.S. 400, 417–18 (1988) (footnote omitted). Spruill has nowhere argued that his consent to the removal of a deliberating juror had to be personal rather than through counsel to foreclose a challenge on appeal. Nor has the dissent cited any authority supporting that conclusion. As the cited cases show, most waivers are effected through counsel. And as we observe infra at [37–39], a defendant who thinks his attorney’s waiver of a point was unreasonable and prejudicial may have a Sixth Amendment claim for ineffective representation.
13‐4069‐cr United States v. Spruill
33
specifically urged the district court to undertake the very inquiry of Juror 11 that
he now challenges.
I think the Court would need to inquire of her whether she can set aside the bias and deliberate, and I suppose also the nature of the bias so that we can know if it’s something that is truly a bias in terms of jury deliberations. . . . I think the Court needs to inquire of her individually. Id. at 537–38. A colloquy ensued in which the district court remarked that it was
“reasonable to infer that the jury has taken a vote on the merits and Juror 11 is
alone in opposing the other jurors,” either because she had a “conscientious view
that differs from everybody else” or because “she’s having difficulty deliberating
as she would wish to do because of what might be thought of as sympathy for
Mr. Spruill.” Id. at 538–39. Even after hearing these observations—which
anticipate the argument he makes on appeal—Spruill expressed only support for,
not opposition to, the district court’s questioning of Juror 11. Notably, when
Judge Chatigny advised the parties that he wished, “with your consent,” to
inquire further of Juror 11, Spruill’s counsel provided that consent: “Yes, Your
Honor, thank you.” Id. at 540. At this juncture, Spruill could have objected to
the inquiry he now challenges. His decision not to object, but rather to
13‐4069‐cr United States v. Spruill
34
encourage further inquiry, was an intentional, tactical decision that we deem a
true waiver of any Thomas challenge to the inquiry.
Our conclusion is only reinforced by Spruill’s subsequent actions. For
example, rather than argue that Juror 11 should not have been questioned,
Spruill’s counsel indicated agreement both with how the court conducted its
minimal inquiry, and with its suggestion that Juror 11 take more time to consider
her ability to deliberate fairly and impartially. When specifically asked if Spruill
had “[a]ny objection to anything that happened just now,” defense counsel
replied, “No, Your Honor,” and stated, “I think we just need to give her a few
minutes . . . . [W]e just have to recess and . . . be nearby . . . .” Id. at 548.
Most important, when Juror 11 sent her next note expressing “difficulty in
making a decision on a verdict based on feelings of sensitivity toward
individuals who have similar cases to Mr. Spruill” and proposing that she be
excused, id. at 549, Spruill voiced no objection but, rather, agreed that the juror
needed to be excused: “The Court: Are you [a]greed that I need to excuse her?
Mr. Weingast: Yes, Your Honor,” id. at 550.
13‐4069‐cr United States v. Spruill
35
In sum, the record reveals that (1) from voir dire forward, Spruill
recognized Juror 11’s potential work‐related bias; (2) when, during deliberations,
juror notes were ambiguous as to the reason jurors could not reach a verdict,
Spruill encouraged further instructions, specifically agreeing to the district
court’s “conscientious view” and “conflict of interest” instructions; (3) when
Juror 11 herself expressed a conflict concern, Spruill encouraged and agreed to a
district‐court inquiry as to the nature and extent of any bias; (4) when, upon such
inquiry, Juror 11 expressed uncertainty about her ability to deliberate fairly and
impartially, Spruill supported the court’s decision to give the juror time to
consider the matter further; and (5) when Juror 11 reported that it may be best to
excuse her—because she would have difficulty returning a verdict, due to
sensitivity toward persons with similar cases—Spruill’s counsel agreed that she
should be excused. Indeed, after Juror 11 was replaced and the jury was
instructed to begin its deliberations anew, Spruill’s counsel affirmed that he did
not object “to anything that ha[d] transpired.” Id. at 554.9
Judge Pooler observes that Spruill challenges Juror 11’s removal, not her questioning, on appeal. See Dissenting Op., post at [5]. Nevertheless, to the
13‐4069‐cr United States v. Spruill
This record plainly demonstrates that Spruill’s counsel did not “fall asleep
at the wheel” with respect to the inquiry or dismissal of Juror 11. United States
v. Kon Yu‐Leung, 51 F.3d at 1123. Rather, he actively engaged in the matter and
agreed to every action taken by the district court. These intentional actions
manifest true waiver of any challenge to the district court’s inquiry and removal
of Juror 11. See United States v. Quinones, 511 F.3d at 320–23.
In urging otherwise, Spruill maintains that his trial counsel’s actions were
not a permissible “tactical decision” and, thus, cannot demonstrate waiver. We
disagree. As an initial matter, while an identifiable tactical benefit provides some
evidence that the relinquishment of a right was intentional, see, e.g., id. at 320–
22, we have not made a tactical benefit a prerequisite to identifying waiver where
the totality of circumstances otherwise demonstrate the requisite intentional
action, see, e.g., United States v. Celaj, 649 F.3d 162, 170 n.5 (2d Cir. 2011)
(holding that defense counsel’s agreement to factual stipulation regarding
extent waiver is a product of intent, it is appropriate to review the totality of circumstances leading to Juror 11’s removal to determine what intent is evident with respect to removal. See Grayton v. Ercole, 691 F.3d 165, 174–78 (2d Cir. 2012) (examining record as whole to find defendant’s Confrontation Clause rights implicitly waived).
13‐4069‐cr United States v. Spruill
interstate commerce element of offense waived sufficiency challenge, without
identifying tactical benefit of action). In any event, we cannot foreclose a tactical
motivation for counsel’s actions regarding Juror 11. Counsel may initially have
thought that further inquiry would resolve tension between the first two notes in
a way that would secure his client a mistrial. Thereafter, upon observing Juror
11 firsthand and hearing her repeated equivocal responses and uncertainty as to
whether she could proceed impartially, counsel may have thought the juror more
likely to succumb to the views of other jurors than to maintain an opposing view
and, in those circumstances, thought it better to substitute the first alternate and
begin deliberations anew. Or counsel may simply have recognized that the
juror’s final response acknowledged an extrinsic bias that compelled removal.
Whether such determinations—if, in fact, counsel’s view—were objectively
reasonable can, like other attorney actions, be raised on a Sixth Amendment
challenge to counsel’s representation. Cf. Strickland v. Washington, 466 U.S. 668,
688 (1984); United States v. Best, 219 F.3d 192, 201 (2d Cir. 2000) (holding that
counsel’s “election to forgo an unsupported argument” reflected sound trial
strategy); see also Bell v. Cone, 535 U.S. 685, 701 (2002) (rejecting habeas
challenge to state court’s determination that counsel’s waiver of final argument
in capital case was legitimate trial tactic); United States v. Natanel, 938 F.2d 302,
310 (1st Cir. 1991) (holding that counsel’s waiver of closing argument on count
submitted to jury independently, “while admittedly a gamble,” was reasonable
strategic choice where jury had acquitted defendant on all other counts); United
States v. Jackson, 918 F.2d 236, 243 (1st Cir. 1990) (stating that “counsel’s failure
to object to the prosecutor’s remark and to request a curative instruction seems
consistent with a reasonable tactical decision to minimize any harm the
prosecutor’s remark may have caused, by not inviting further attention to it”).
Because such a challenge must generally be brought collaterally to allow
adequate development of the record, see Massaro v. United States, 538 U.S. 500,
504 (2003) (recognizing that “in most cases a motion brought under § 2255 is
preferable to direct appeal for deciding claims of ineffective assistance”), we
express no conclusive view on that matter, although our rejection of Spruill’s
Thomas challenge may well bear on a Sixth Amendment claim. As to waiver, we
conclude only that a defense action is no less intentional, and thus, no less a “true
waiver,” merely because a defendant may subsequently claim ineffective
assistance of counsel.
We therefore conclude that Spruill, through counsel, having intentionally
urged the questioning of Juror 11 and specifically agreed to her dismissal,
waived the challenges that he now raises on appeal.
Outcome: TTo summarize, we conclude:
1. Spruill waived any challenge to dismissal of the juror in question by
specifically telling the district court that he did not object either to its
colloquy
with the juror or to the juror’s removal, and by in fact recommending the very
disposition he now challenges.
2. Even if Spruill had not waived any Thomas argument, the
challenged juror removal is not subject to Thomas’s “any possibility” rule, see
116 F.3d at 621–22, because the concern underlying Thomas, juror nullification,
was not here at issue. Rather, removal was based on extrinsic bias, a matter
about which the district court could—and did—inquire without intruding on
jury deliberations.
Accordingly, for the reasons stated above and in a summary order
addressing the remaining issues on appeal, the district court’s judgment of
conviction is AFFIRMED.
Plaintiff's Experts:
Defendant's Experts:
Comments: