United States v. Joseph Corre Lamb, Jr.

529 F.2d 1153 UNITED STATES of America, Plaintiff-Appellee, v. Joseph Corre LAMB, Jr., Defendant-Appellant. No. 74--2406. United States Court of Appeals, Ninth Circuit. Dec. 29, 1975. Nicholas R. Allis (argued), Deputy Federal Public Defender, Los Angeles, Cal., for defendant-appellant. W. Michael Mayock, Asst. U.S. Atty. (argued), Los Angeles, Cal., for plaintiff-appellee. OPINION Before CHAMBERS, KOELSCH, BROWNING, DUNIWAY, ELY, HUFSTEDLER, WRIGHT, TRASK, CHOY, GOODWIN, WALLACE, SNEED and KENNEDY, Circuit Judges. ELY, Circuit Judge: 1 The appellant, in his third trial, was convicted of the offense of bank robbery. 18 U.S.C. § 2113 (a), (d). In urging reversal, the appellant presents several contentions, only one of which need now be reached. This is the contention, with which we agree, that reversal is required because of the failure of the District Court to comply with the plain requirements of Fed.R.Crim.P. 24(c). The circumstances giving validity to this contention are briefly and accurately summarized as follows: 2 After instructing the jury, the district judge told an alternate juror that she was excused and would be permitted to go home, but asked her to 'stand by' in…

The appellant, in his third trial, was convicted of the offense of bank robbery. 18 U.S.C. § 2113 (a), (d). In urging reversal, the appellant presents several contentions, only one of which need now be reached. This is the contention, with which we agree, that reversal is required because of the failure of the District Court to comply with the plain requirements of Fed.R.Crim.P. 24(c). The circumstances giving validity to this contention are briefly and accurately summarized as follows:

After instructing the jury, the district judge told an alternate juror that she *1155 was excused and would be permitted to go home, but asked her to “stand by” in case it was “necessary for [her] to come in.” After almost four hours of deliberation spread over two days, the jury returned a verdict of guilty. The judge refused to accept the verdict because of his belief that the verdict was inconsistent with the instructions.

The district judge then announced that when he returned from a luncheon recess he found a note from one of the jurors, which stated:

The district judge then remarked that at the time he received the note he called the alternate juror and asked her to return to…

with whom TRASK, Circuit Judge, concurs (dissenting):

With due respect to the views of the majority, I must dissent.

I.

Some additional facts may be helpful in understanding the situation with which the trial court was confronted. In this prosecution for armed bank robbery, the government’s case consisted of three eyewitnesses who identified Lamb as the robber and a confession by him to the commission of the offense. The defense consisted of an attempt to raise doubts as to the reliability of the eyewitnesses’ identification and the authenticity of the confession. Lamb did not testify.

The jury was duly instructed and the alternate juror was directed to stand ready to be summoned and was charged not to discuss the case meanwhile with any person. The court asked both counsel: “Is the charge satisfactory, gentlemen?” Both responded affirmatively. 1 *1158 Thereafter, at 4:09 P.M., the jury retired to deliberate.

The jury recessed at 5:00 P.M. of the same day, and reconvened at 9:30 A.M. the following morning. Between 11:04 A.M. and 11:25 A.M. the trial judge, at the jury’s request, reread his instructions. The jury recessed at 11:50 A.M. for the noon meal. .

During noon recess…