United States v. Clarence D. Ross

Clarence Ross challenges his conviction, contending that he was denied his right to an impartial jury and that the admission of evidence at trial was improper under Fed. R.Evid. 404(b). We affirm.

I. BACKGROUND

Ross and his wife were charged with conspiracy to defraud the United States. 18 U.S.C. § 371 . He alone was charged with four counts of making false statements to the Department of Labor, 18 U.S.C. § 1001 , and two counts of improperly using his wife’s social security number, 42 U.S.C. § 408 (g)(2). During the trial in 1986, the court admitted evidence, over Ross’s objection, that he had improperly used his wife’s social security number in 1968.

After the jury was instructed on the fifth day of trial, it deliberated for one hour before being excused for the day. During the morning of the following day, the foreperson passed a note to the judge inquiring if the jury could return a verdict on some counts as it was deadlocked on others. The court ordered further deliberations. At 1:45 p.m. the foreperson passed a second note informing the judge that one juror was ill and wished to be excused.

The court convened, and that juror was brought into open court. There followed…

886 F.2d 264 UNITED STATES of America, Plaintiff-Appellee, v. Clarence D. ROSS, Defendant-Appellant. No. 87-3018. United States Court of Appeals, Ninth Circuit. Argued and Submitted Aug. 10, 1989. Decided Sept. 26, 1989. David Skeen, Port Townsend, Wash., for defendant-appellant. Jerald E. Olson, Asst. U.S. Atty., Seattle, Wash., for plaintiff-appellee. Appeal from the United States District Court for the Western District of Washington. Before WRIGHT, NORRIS and BEEZER, Circuit Judges. EUGENE A. WRIGHT, Circuit Judge: 1 Clarence Ross challenges his conviction, contending that he was denied his right to an impartial jury and that the admission of evidence at trial was improper under Fed.R.Evid. 404(b). We affirm. I. BACKGROUND 2 Ross and his wife were charged with conspiracy to defraud the United States. 18 U.S.C. Sec. 371 . He alone was charged with four counts of making false statements to the Department of Labor, 18 U.S.C. Sec. 1001 , and two counts of improperly using his wife's social security number, 42 U.S.C. Sec. 408 (g)(2). During the trial in 1986, the court admitted evidence, over Ross's objection, that he had improperly used his wife's social security number in 1968. 3…

concurring in part and dissenting in part.

I concur in parts I and IIB of the court’s opinion. I respectfully dissent from part IIA.

Fed.R.Crim.P. 23(b) places the burden of excusing a juror for just cause upon the court, not upon counsel. Ms. Peters was candid with the district court when she said she could not be “fair to the defendant.” The rule permits the court to excuse a juror, with or without the consent of counsel, and for the remaining jurors to deliberate to a verdict.

Ross was denied his right to be tried by an impartial jury. Ms. Peters plainly, clearly, and unequivocally stated that she was no longer a disinterested and impartial juror able to argue and cajole, stand firm or retreat as her conscience, the evidence, and the deliberative process demanded. She admitted that her only concern was “to agree with anybody just so I can go home.” We have no way of knowing what effect, if *268 any, the illness of the juror may have had on her fellow jurors and their deliberative proceedings.

There is no case law which I have found which is remotely analogous to the issue raised in this appeal. The reason is clear— no juror so plainly admitting a lack of impartiality would…