United States v. Elmer Wiman , 875 F.3d 384 ( 2017 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 16-3929
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ELMER F. WIMAN,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Southern District of Indiana, Evansville Division.
No. 3:15-cr-00017-LJM-CMM-1 — Larry J. McKinney, Judge.
____________________
ARGUED AUGUST 8, 2017 — DECIDED NOVEMBER 13, 2017
____________________
Before WOOD, Chief Judge, and BAUER and EASTERBROOK,
Circuit Judges.
PER CURIAM. Elmer Wiman was convicted by a jury of rob-
bing a credit union, carrying a firearm during and in relation
to a crime of violence (the robbery itself), and possessing a
firearm as a felon. On appeal he raises a narrow challenge:
that the district court’s failure before the start of voir dire to
swear the venire to answer questions truthfully is a structural
2 No. 16-3929
error that warrants a new trial. We disagree, conclude that
any error here is harmless, and affirm the judgment.
On Saint Patrick’s Day in 2015, Wiman, then 66 years old,
drove to a credit union in Vanderburgh County and walked
inside during a lull at lunchtime. Dressed all in denim and
donning a hat, sunglasses, and gloves, he approached one of
the teller windows. He pointed a gun at the teller, pushed a
small, soft-sided cooler toward her, and ordered her to put
money inside it and to “make it snappy.” She complied but,
when he demanded even more cash, told him that she didn’t
have access to more. He grabbed the cooler and bolted, then
turned back and told her to wait five minutes before calling
the cops. The robbery was captured on the credit union’s sur-
veillance video.
Wiman fled in a gray Ford Taurus, and a police dispatch
went out with a description of him and the car. Believing
Wiman to be the robbery suspect, two police officers pulled
him over in a parking lot and arrested him. At the police sta-
tion, Wiman confessed to robbing the credit union. Inside the
car, officers recovered the cooler, which contained sunglasses,
a hat, gloves, a handgun, and $3,084 cash.
Wiman was indicted for robbing the credit union,
18 U.S.C. § 2113(a), using a firearm during and in relation to
a crime of violence (the underlying robbery, as previously
noted), id. § 924(c)(1)(A)(i), and possessing a firearm as a
felon, id. § 922(g)(1). Later he unsuccessfully sought to sup-
press both the evidence found in the car and his resulting con-
fession. The case eventually proceeded to trial.
This appeal arises out of the district judge’s failure before
the start of voir dire to administer an oath to the jurors. (Jurors
No. 16-3929 3
are given two oaths. First, before voir dire, they take an oath
to answer questions truthfully. Later, after jury selection and
before the start of trial, they swear that they will “well and
truly try” the case and render a “true verdict” according to
the law and the evidence. 1 Only the first oath is at issue here.)
At the start of voir dire, the district judge explained that
voir dire “means to tell the truth” and that the process is
meant to “determine whether you can be a fair and impartial
juror.” The judge then proceeded to conduct voir dire himself,
questioning the jurors about the presumption of innocence,
their previous experience with banks or the law, and any ties
they had to the credit union.
Upon realizing that he had not administered the voir dire
oath, the district judge had the clerk swear in the potential ju-
rors. The judge then acknowledged his oversight and decided
to ask the jurors collectively if the oath would have changed
their answers:
Now, here’s the question. This oath should have
been given before we started any of our ques-
tions, and it was not. So the question is, would
any of you have answered any of the questions
differently that I gave to you under oath before
or after? Anybody would have changed their
opinion if they had been under oath?
No one spoke up, and the judge confirmed aloud that every-
one’s answers would have been the same. Defense counsel
1 For sample oaths, see FED. JUDICIAL CTR., BENCHBOOK FOR U.S.
DISTRICT COURT JUDGES § 7.08, at 268–69 (6th ed. 2013), availa-
ble at https://www.fjc.gov/sites/default/files/2014/Benchbook-US-District-
Judges-6TH-FJC-MAR-2013.pdf (visited Nov. 6, 2017).
4 No. 16-3929
promptly moved for a mistrial. Counsel acknowledged that
the failure to administer the oath was an oversight but
pointed out that voir dire had been carried out without the
jurors being sworn: “I think it’s an important procedure. It’s
part of the trial. I don’t think we can just overlook it.” The
government opposed the motion and proposed as a remedy
that each juror be asked separately if he would change any
answers to the voir dire questions now that he had been
sworn. The judge replied that “I think I remedied the problem
now, but I’m not 1,000 percent sure,” and took the matter un-
der advisement.
The judge proceeded with jury selection. Once the jury
had been selected but not yet empaneled, the judge revisited
defense counsel’s motion: he told the parties that if the jurors
responded the same way individually to his questions as they
had as a group, he would overrule the motion. One by one,
the judge polled each juror and asked if his answers would
“have been the same to all of the questions” if he had taken
the oath at the outset of voir dire. Each juror answered yes.
The judge then swore in the jury and allowed the proceedings
to begin.
Over two days of testimony, the government presented
strong evidence of Wiman’s guilt. Two tellers testified in de-
tail about the robbery and identified Wiman as the robber.
Additionally, a police officer testified that the items with
which the robber fled—the disguise, the cooler, the gun, and
the credit union’s money—were found in the car Wiman had
been driving. The government also played a video of the rob-
bery taken from the credit union’s surveillance cameras as
well as a video of Wiman’s confession.
No. 16-3929 5
The jury found Wiman guilty on all counts, and the judge
sentenced him to 110 months’ imprisonment.
On appeal Wiman challenges only the district court’s fail-
ure before voir dire to administer the jury an oath to tell the
truth. That oversight, Wiman contends, is a structural defect
not subject to harmless-error review because it “affects the
framework within which the trial proceeds.” Wiman argues
that any “retroactive” oath would be insufficient:
[T]he oath on voir dire is an essential part of the
trial process designed and intended to allow an
accused person to have confidence that the an-
swers given by prospective jurors are true, and
to impress upon prospective jurors that their an-
swers must be true or there may be conse-
quences, all so the accused person may intelli-
gently exercise peremptory challenges and chal-
lenges for cause.
We disagree that any error was structural. First, Wiman is
wrong that the voir dire oath is an “essential part” of a federal
trial. We have found no rule or decision requiring that a ve-
nire be administered an oath. Similarly, although the empan-
elment oath is arguably more critical to the trial process (be-
cause jeopardy attaches once it is given, see United States v. Lit-
tle Dog, 398 F.3d 1032, 1036 (8th Cir. 2005)), even that oath has
not been determined to be expressly required. See United
States v. Turrieta, 696 F.3d 972, 981–82 (10th Cir. 2012) (“[N]o
binding authority, whether in the form of a constitutional pro-
vision, statute, rule, or judicial decision . . . [addresses]
whether the Sixth Amendment right to trial by jury neces-
sarily requires the jury be sworn.”); United States v. Pinero,
948 F.2d 698, 700 (11th Cir. 1991) (“[I]t is not clear from the
6 No. 16-3929
caselaw whether juries in the federal court system are re-
quired to be sworn in.”).
Second, even though the voir dire oath serves an im-
portant purpose, administering it belatedly did not constitute
structural error. Structural errors affect “basic protections”
without which “a criminal trial cannot reliably serve its func-
tion as a vehicle for determination of guilt or innocence.” Ar-
izona v. Fulminante, 499 U.S. 279, 309–10 (1991) (internal cita-
tions omitted) (identifying such protections as the denial of
the right to counsel or self-representation, the lack of an im-
partial judge, and the denial of the right to a public trial). Er-
rors that relate to basic protections “are so intrinsically harm-
ful as to require automatic reversal” regardless of their effect
on the outcome. Neder v. United States, 527 U.S. 1, 7 (1999). But
the voir dire oath cannot be a “basic protection” because it is
not even a trial requirement.
Third, the federal courts have never treated the failure to
administer the empanelment oath—which in many respects
is comparable to the voir dire oath—as structural error. In-
deed, in one case in which the court failed altogether to ad-
minister the oath, the Tenth Circuit concluded that the error
was not plain (in that case the defendant had not made a con-
temporaneous objection). Turrieta, 696 F.3d at 976. And on
facts closer to this case, two circuits have concluded that oaths
given belatedly before deliberations amounted only to harm-
less error. See United States v. Hopkins, 458 F.2d 1353, 1354
(5th Cir. 1972); Little Dog, 398 F.3d at 1036–37.
Here the district court’s belated voir dire oath and
Wiman’s timely objection make harmless-error review appro-
priate. See FED. R. CRIM. P. 52(a). We agree with the govern-
No. 16-3929 7
ment’s uncontested assertion that the delayed oath was harm-
less because Wiman was not prejudiced. Even without being
administered the formal oath, the jurors were admonished by
the judge at the outset of jury selection to comply with the
oath’s directions—to participate fully and honestly in
voir dire. Additionally, once the district court realized its mis-
take, it immediately took remedial steps: it administered the
proper oath and then questioned the jurors twice—both col-
lectively and individually—to confirm that their answers
would not have changed had they been sworn at the begin-
ning of voir dire. Wiman has not suggested that any juror con-
fusion or dishonesty resulted from the court’s procedural
misstep.
AFFIRMED.