United States v. Williams

Opinions of the United
2005 Decisions States Court of Appeals
for the Third Circuit
12-14-2005
USA v. Williams
Precedential or Non-Precedential: Non-Precedential
Docket No. 03-1070
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"USA v. Williams" (2005). 2005 Decisions. Paper 116.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
No. 03-1070
UNITED STATES OF AMERICA
v.
JOMO A. WILLIAMS,
Appellant
On Appeal from the United States District Court
for the District of New Jersey
(D.C. No. 01-cr-00490)
District Judge: Honorable William G. Bassler
Submitted Under Third Circuit LAR 34.1(a)
December 12, 2005
Before: SLOVITER, SMITH, and STAPLETON, Circuit Judges.
(Filed: December 14, 2005)
OPINION
STAPLETON, Circuit Judge.
Appellant Jomo Williams was charged with two counts of mail fraud and two
counts of assaulting a federal agent while he was engaged in the performance of his
official duties. He was convicted by a jury on all counts following a seven day trial.
Williams was sentenced to 60 months of imprisonment on the first two counts and 78
months of imprisonment on the second two, such terms to run concurrently.
I.
On the seventh day of the trial, the District Court excused a juror and replaced him
with an alternate. Williams insists that this was an abuse of the Court’s discretion. We
find no such abuse.
The District Court noticed the juror who was ultimately excused sleeping on seven
occasions in the course of four separate days. It exhibited commendable patience,
excusing the juror only after taking cautionary measures which included questioning the
juror on two occasions and making findings of fact with respect to his inattentiveness.
Specifically, the Court found, inter alia:
I find as a fact that Mr. Jones is disqualified to perform juror duties.
And I do this very reluctantly, but I have to say in all fairness, I would not
be doing my job if I let this slide. I have noticed Mr. Jones nodding off on a
number of days. . . When I inquired of him about it, I was willing to take
his explanation of a poor night’s sleep. The second time I talked to him
about it, the excuse was some kind of accident. . . . To be perfectly honest,
I really didn’t find his responses all that credible, but I was willing to give
him the benefit of the doubt. And, quite frankly, I was hoping the problem
would go away, that after my inquiry he would pay attention.
There are two problems with this. One is, I’m convinced that at
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times he has fallen asleep, not just nodding but actually fallen asleep, and
I’ve noticed that because Mr. Lee from time to time would reach out to kind
of nudge him [in] an effort to wake him up. And I believe at other times
that that has taken place as well.
. . . I’ve watched [Juror No. 3] where he puts his head back, and you
can see his hand beginning to drop as a person does when they begin to fall
asleep. Furthermore, he has closed his eyes so many times that it certainly
means to me that he’s not really paying attention to what’s happening. And
that’s not a good thing for the Government and it’s not a good thing for the
Defendant. It undermines the whole integrity of the decision of the jury and
of his ability to function as a juror. So reluctantly, I’m going to dismiss him
for his inability to serve as a juror.
. . . I was quite aware of it in my closing instructions, I can’t say he
was following what I was saying. In fact, just the opposite. I know at times
he wasn’t following. And if you look at him, it’s not only his nodding off,
but it’s obvious he drifts. You see him staring off into hither and dearth.
So, I’m taking judicial notice of his conduct in open court. . . .
App. at 48-50.
II.
As the government acknowledges, Williams’ sentence was (1) enhanced based on
facts found by the District Court in violation of the Sixth Amendment, and (2) imposed
under Guidelines that were erroneously viewed as binding. United States v. Booker, 125
S. Ct. 738 (2005). As the government further concedes, given the absence of any other
evidence sufficient to rebut the presumption of prejudice we set forth in United States v.
Davis, 407 F.3d 162, 164 (3d Cir. 2005), Williams is entitled to be resentenced.
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III.
The judgment of sentence will be reversed, and this matter will be remanded for
resentencing only in accordance with United States v. Booker.
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