United States v. Michael Joseph Murphy

483 F.3d 639 UNITED STATES of America, Plaintiff-Appellee, v. Michael Joseph MURPHY, Defendant-Appellant. No. 05-50608. United States Court of Appeals, Ninth Circuit. Argued and Submitted July 28, 2006. Filed April 18, 2007. Jason Dickstein (argued), Washington Aviation Group, PC and the Law Offices of Jason A. Dickstein, Washington, D.C., for the defendant-appellant. Debra W. Yang, United States Attorney, Wayne R. Gross, Assistant United States Attorney, and Thomas S. McConville (argued), Assistant United States Attorney, Santa Ana, CA, for the plaintiff-appellee. Appeal from the United States District Court for the Central District of California; Alicemarie H. Stotler, District Judge, Presiding. D.C. No. CR-04-00141-AHS. Before JOHN R. GIBSON, * RYMER, and CLIFTON, Circuit Judges. CLIFTON, Circuit Judge. 1 This case presents the question of whether a stipulation to proceed with a jury of fewer than twelve members, permitted under Federal Rule of Criminal Procedure 23(b)(2)(A), constitutes a violation of the requirement that a verdict be unanimous, under Federal Rule of Criminal Procedure 31, in circumstances where there is some indication of a holdout juror. We conclude that…

This case presents the question of whether a stipulation to proceed with a jury of fewer than twelve members, permitted under Federal Rule of Criminal Procedure 23(b)(2)(A), constitutes a violation of the requirement that a verdict be unanimous, under Federal Rule of Criminal Procedure 31, in circumstances where there is some indication of a holdout juror. We conclude that under the circumstances here, where the defendant knowingly and intelligently stipulated to dismissing a juror and received a unanimous verdict by the remaining eleven jurors, the district court did not abuse its discretion in denying a new trial.

I. Background

Appellant Michael Joseph Murphy was charged with violations of 18 U.S.C. § 287 and 18 U.S.C. § 1001 for making false claims and statements in connection with a government contract. After three days of trial, the jury began its deliberations on Friday, February 18, 2005.

On Tuesday, February 22, the court received a note signed by the jury foreperson that stated: “We have a dissenting point of view with one juror that will have no possible position change and requests no evidence or willing to participate.” The parties agreed to the court’s proposed…

dissenting:

I respectfully dissent and conclude that the proper course is to reverse the conviction and remand for a new trial. When the three notes the jury submitted to the district court during its deliberations are read together, I am convinced that they demonstrate a reasonable possibility that the holdout juror entertained doubts about the merits of the government’s case. Her dismissal thus violated Murphy’s non-waivable Sixth Amendment right to a unanimous verdict.

While I recognize that our review is for abuse of discretion, we also have held that “[t]he district court’s discretion in this area is not unbounded.” United States v. Symington 195 F.3d 1080, 1085 (9th Cir.1999). Indeed, “a court may not dismiss a juror during deliberations if the request for discharge stems from doubts the juror harbors about the sufficiency of the evidence.” Id. (quoting United States v. Brown, 823 F.2d 591, 596 (D.C.Cir.1987)). Symington reasoned that removing a juror “because he is unpersuaded by the Government’s case is to deny the defendant his right to a unanimous verdict.” Id. (quoting United States v. Thomas, 116 F.3d 606, 621 (2d Cir.1997)). If a court could discharge a juror on…