Rogers v. United States , 95 S. Ct. 2091 ( 1975 )

Mr. Chief Justice Burger

delivered the opinion of the Court.

Petitioner was convicted by a jury on five counts of an indictment charging him with knowingly and willfully making oral threats “to take the life of or to inflict bodily harm upon the President of the United States,” in violation of 18 U. S. C. § 871 (a). The Court of Appeals affirmed, 488 F. 2d 512 (CA5 1974), and we granted certiorari to resolve an apparent conflict among the Courts of Appeals concerning the elements of the offense proscribed by §871 (a). 419 U. S. 824 (1974). After full briefing and argument, however, we find it unnecessary to reach that question, since certain circumstances of petitioner’s trial satisfy us that the conviction must be reversed.

The record reveals that the jury retired for deliberation at 3 p. m. on the second day of petitioner’s trial. Approximately two hours later, at 4:55 p. m., the jury sent a note, signed by the foreman, to the trial judge, inquiring whether the court would “accept the Verdict — 'Guilty as charged with extreme mercy of the Court.’ ” Without notifying petitioner or his counsel, the court instructed the marshal who delivered the note “to advise the jury that the Court’s answer was in the affirmative.” Five minutes later, at 5 p. m., the jury returned, and the record contains the following account of the acceptance of its verdict:

“THE COURT: We understand from a note you sent to the Court the verdict finds him guilty on all five counts but that you wish to recommend extreme mercy; is that correct?

“THE FOREMAN: Yes, Your Honor.

“THE COURT: Will you please poll the jury. (Whereupon the jury was polled and all jurors answered in the affirmative.)

“THE COURT: Let the verdict be entered as the judgment of the Court. Certainly the Court will take into consideration your recommendation of mercy, but before we can act upon the case, we will have the Probation Officer make a pre-sentence investigation report. We do not know whether the man has a prior criminal record or not and we will certainly take into account what you have recommended.” 2 Tr. 192-193.¹

Generally, a recommendation of leniency made by a jury without statutory authorization does not affect the validity of the verdict and may be disregarded by the sentencing judge. See Cook v. United States, 379 F. 2d 966, 970 (CA5 1967), and cases cited. However, in Cook, the Court of Appeals held that an exception to this general rule, requiring further inquiry by the trial court, arises where the circumstances of the recommendation cast doubt upon the unqualified nature of the verdict. Assuming the validity of the exception, we need not decide whether either the factual differences between the recommendation in Cook and that in the instant case, or petitioner’s failure to request further inquiry prior to the recording of the verdict, see Fed. Rule Crim. Proc. 31 (d), would suffice to distinguish the cases for purposes of appropriate appellate relief. See 8 J. Moore, Federal Practice ¶ 31.07 (2d ed. 1975). We deal here not merely with a potential defect in the verdict.

In Fillippon v. Albion Vein Slate Co., 250 U. S. 76 (1919), the Court observed “that the orderly conduct of a trial by jury, essential to the proper protection of the right to be heard, entitles the parties who attend for the purpose to be present in person or by counsel at all proceedings from the time the jury is impaneled until it is discharged after rendering the verdict.” Id., at 81. In applying that principle, the Court held that the trial judge in a civil case had “erred in giving a supplementary instruction to the jury in the absence of the parties and without affording them an opportunity either to be present or to make timely objection to the instruction.” Ibid.

In Shields v. United States, 273 U. S. 583 (1927), the Court had occasion to consider the implications of the “orderly conduct of a trial by jury” in a criminal case. The trial judge had replied to a written communication from the jury, indicating its inability to agree as to the guilt or innocence of the defendant, by sending a written direction that it must find the defendant “guilty or not guilty.” The communications were not made in open court while the defendant and his counsel were present nor were they advised of them. The jury thereupon found Shields guilty of one count with a recommendation of mercy. This Court held that a previous request by counsel for Shields and the Government that the trial judge hold the jury in deliberation until they had agreed upon a verdict “did not justify exception to the rule of orderly conduct of jury trial entitling the defendant, especially in a criminal case, to be present from the time the jury is impaneled until its discharge after rendering the verdict.” Id., at 588-589.

As in Shields, the communication from the jury in this case was tantamount to a request for further instructions. However, we need not look solely to our prior decisions for guidance as to the appropriate procedure in such a situation. Federal Rule Crim. Proc. 43 guarantees to a defendant in a criminal trial the right to be present “at every stage of the trial including the impaneling of the jury and the return of the verdict.” Cases interpreting the Rule make it clear, if our decisions prior to the promulgation of the Rule left any doubt, that the jury’s message should have been answered in open court and that petitioner’s counsel should have been given an opportunity to be heard before the trial judge responded. See, e. g., United States v. Schor, 418 F. 2d 26, 29-30 (CA2 1969); United States v. Glick, 463 F. 2d 491, 493 (CA2 1972).

Although a violation of Rule 43 may in some circumstances be harmless error, see Fed. Rule Crim. Proc. 52 (a); United States v. Schor, supra, 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. But see United States v. Davidson, 367 F. 2d 60 (CA6 1966).² In addition, the response should have included the admonition that the jury had no sentencing function and should reach its verdict without regard to what sentence might be imposed. See United States v. Louie Gim Hall, 245 F. 2d 338 (CA2 1957); United States v. Glick, supra, at 494. Cf. United States v. Patrick, 161 U. S. App. D. C. 231, 494 F. 2d 1150 (1974).

The fact that the jury, which had been deliberating for almost two hours without reaching a verdict, returned a verdict of “guilty with extreme mercy” within five minutes “after being told unconditionally and unequivocally that it could recommend leniency,” United States v. Glick, supra, at 495, strongly suggests that the trial judge’s response may have induced unanimity by giving members of the jury who had previously hesitated about reaching a guilty verdict the impression that the recommendation might be an acceptable compromise. We acknowledge that the comments of the trial judge upon receiving the verdict may be said to have put petitioner’s counsel on notice that the jury had communicated with the court, but the only indication that the court had unilaterally communicated with the jury comes from the note itself, which the court correctly ordered to be filed in the record, with a notation as to the time of receipt and the court’s response. It appears, however, that petitioner’s counsel was not aware of the court’s communication until after we granted the petition for certiorari. In such circumstances, and particularly in light of the difficult task of the factfinder in a prosecution under § 871 (a), see Watts v. United States, 394 U. S. 705 (1969), we conclude that the 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 (1962); Brotherhood of Carpenters v. United States, 330 U. S. 395, 411-412 (1947). Cf. United States v. Davidson, 367 F. 2d, at 63.

The judgment of the Court of Appeals is accordingly reversed, and the case is remanded for further proceedings consistent with this opinion.

Reversed and remanded.

1 Petitioner was originally sentenced to five years’ imprisonment on each count, subject to the early parole eligibility provisions of 18 U. S. C. § 4208 (a) (2), to be followed by five years’- supervised probation on the condition that he join Alcoholics Anonymous. The sentence on the last four counts was to run concurrently and to be suspended during good behavior. Cf. United States v. Davidson, 367 F. 2d 60, 63 (CA6 1966). It appears from the record that the District Judge sought to use the confinement to afford petitioner an opportunity to be cured of his alcoholism.

At the suggestion of the Court of Appeals, petitioner moved for, and the Government did not oppose, “a reduction of the stringent sentences imposed in the District Court” under Fed. Rule Crim. Proc. 35. The motion was granted, and petitioner’s sentence was reduced to three years’ imprisonment on each count. Petitioner was released from confinement on December 24, 1974. He remains subject to five years’ supervised probation. After argument we were advised by the Solicitor General that on April 7, 1975, peti-

2 As in Davidson, 367 F. 2d, at 63, the trial court’s response was inconsistent with the instruction in the general charge that “punishment ... is a matter exclusively within the province of the Court and is not to be considered by the jury in arriving at an impartial verdict. . . .” 2 Tr. 190.