United States v. Frank Dean ( 1981 )

BRIGHT, Circuit Judge,

dissenting.

I dissent from the grant of a new trial to the defendant. The record in this case unequivocally demonstrates that both defendant and his lawyer learned of the juror’s misconduct before the jury retired to consider the evidence, but elected to gamble on the return of a favorable verdict by remaining silent. Under these circumstances, defendant cannot now be heard to complain that the juror’s misconduct prejudicially influenced the jury’s verdict. In accordance with the long-established decisions of this court, therefore, the district court did not abuse its discretion in vacating its order granting defendant’s motion for a new trial.

The district court initially granted defendant’s motion for a new trial because one juror’s preverdict statements evinced “a settled disposition on the part of the juror to convict the defendant regardless of the evidence.” United States v. Dean, Nos. JCR-79-1 and J-CR-79-10, slip op. at 6 (E.D.Ark. Sept. 26, 1979). Upon the Government’s motion for reconsideration, however, the district court vacated its order for a new trial and reinstated the guilty verdict. After a thorough evidentiary hearing, the court found that both defendant and defense counsel knew of the alleged juror bias before the close of trial, that neither brought this information to the court’s attention or sought any preverdict relief to insure a fair trial before the jury convicted defendant, that defense counsel unjustifiably delayed in apprising the court of the juror misconduct, and that the court could have substituted an alternate juror for the biased juror had it been informed of the juror’s prejudice. United States v. Dean, Nos. J-CR-79-1 and J-CR-79-10, slip op. at 4-5 (E.D.Ark. Oct. 11, 1979).

The majority does not dispute these findings. Nevertheless, it concludes that the “order for a new trial must be reinstated as an exercise of our supervisory power over the administration of justice in this circuit.” At 783. As justification for this conclusion, the majority stresses the existence of “actual, not potential, juror bias” in this case and the availability of some “appropriate forum” to remedy counsel’s lack of diligence in raising the question of juror bias. At 788. Neither ground, in my view, justifies a new trial for defendant.

The majority first distinguishes our previous decision denying a new trial for juror misconduct as cases “with a potential for affecting impartiality, but not cases in which a juror was actually biased.” At 783. All of these decisions, however, focused on two factual matters: (1) the timeliness of objection once the defendant learned of alleged juror misconduct during the trial; and (2) the degree of prejudice that likely flowed to the defendant from the juror misconduct. Only after the defendant established the timeliness of his objection to the alleged misconduct did the degree of bias — actual or potential — become critical to the defendant’s right to a new trial. See United States v. Sorenson, 611 F.2d 701, 702 (8th Cir. 1979) (“[Objections based on juror misconduct during the trial cannot be raised for the first time on appeal when counsel did not apprise the trial court of the alleged misconduct at trial.”); United States v. Nance, 502 F.2d 615, 621 (8th Cir. 1974) (“A party may not stand idly by, watching the proceedings and allowing the Court to commit error of which he subsequently complains.”), cert. denied, 420 U.S. 926, 95 S.Ct. 1123, 43 L.Ed.2d 396 (1975); United States v. Hester, 489 F.2d 48, 50 (8th Cir. 1973) (“Hester, failing to apprise the trial court of this alleged misconduct, should not be allowed to inject ‘a defect into the trial, and later claim its benefit.’ ”).

The majority contends, however, that, “The way to address counsel’s unjustified delay in raising the question of juror bias is to proceed against counsel in an appropriate forum.” At 783. This contention ignores the district court’s explicit finding that both defendant and defense counsel knew of the allegations of juror misconduct before the jury retired to consider its verdict. The majority does not disturb this finding, nor does it expressly set aside the district court’s finding that defendant received a fair trial under the totality of the circumstances.

For these reasons, I would sustain the district court’s decision to vacate its order granting defendant’s motion for a new trial.

Further, I express disagreement with the majority’s disposition of defendant’s contention that the office of county judge cannot be a “legal entity” and, therefore, the “enterprise” necessary to a RICO prosecution. The district court, with the majority's approval, left it to the jury as a factual matter to determine whether the office of county judge was an “enterprise” within the meaning of the RICO statute, 18 U.S.C. § 1961(4) (1976).

In my view, however, the definition of a statutory term presents a question of law, not a question of fact that may be resolved solely through a review of the evidence. Section 1961(4) defines “enterprise” as including “any individual, partnership, corporation, association, or other legal entity.” Under this definition, the office of county judge would be an “enterprise” only if it is an “other legal entity.” Defendant argues that the office of county judge cannot be a “legal entity” because it lacks legal capacity to sue or be sued. Further, he argues that the ejusdem generis rule of statutory interpretation would limit the meaning of “other legal entity” to identities similar in nature to the words preceding the phrase in the statutory definition. These words — individual, partnership, corporation, and association — differ significantly in their characteristics from a governmental office.

Moreover, Congress specifically defined “State” in the RICO statute to include “any political subdivision, or any department, agency or instrumentality thereof,” 18 U.S.C. § 1961(2), but made no mention of “State” or “any instrumentality thereof” in its definition of “enterprise.”

Although I entertain considerable doubt as to the validity of the majority’s disposition of defendant’s conviction under the RICO counts, this issue comes to us only in the posture of a contention that the term “office” cannot be a “legal entity” under the statute. Defendant does not dispute in this case that a public body may constitute a legal entity. See at 791 n.29. Because the scope of RICO presents an important issue not fully briefed or raised in this appeal and because defendant received a concurrent sentence on the Travel Act and RICO counts, I would leave the issue for another day in a more appropriate case.

Accordingly, I would affirm defendant’s conviction without resolving the RICO question presented to us on this appeal. I also would sustain the district court’s decision to vacate its order granting defendant’s motion for a new trial.