Appeal from the September 24, 1982, judgment of the District Court for the Southern District of New York (John E. Sprizzo, Judge) convicting defendant by a jury vote of 11 to 1 after defendant agreed to accept a non-unanimous verdict.
Mansfield, Meskill, and Newman, Circuit Judges. Meskill, Circuit Judge, concurring in the result with a separate opinion.
The issue on this appeal is whether a defendant in a federal criminal trial can waive his right to a unanimous jury verdict. Appellant contends that his narcotics conviction entered on September 24, 1982, in the District Court for the Southern District of New York (John E. Sprizzo, Judge) should be reversed because the District Court accepted a jury verdict of guilty by a vote of 11 to 1 after the defendant and the prosecution had agreed to a non-unanimous verdict. Because this procedure violated Rule 31(a) of the Federal Rules of Criminal Procedure, we are obliged to reverse and order a new trial.
Freddy Pachay was one of two defendants named in a three-count indictment charging distribution of cocaine and conspiracy to distribute cocaine in violation of 21 U.S.C. §§ 841, 846 (1976). On August 2, 1982, after his co-defendant pled guilty to one count, Pachay went to trial alone. The jury began deliberations at 12:30 p.m. on August 4. Over the next two days, the jury sent Judge Sprizzo two notes indicating that they were deadlocked. Judge Sprizzo responded to both notes by encouraging the jury to continue their efforts and to try to reach a unanimous verdict. At 5:25 p.m. on Friday, August 6, the jury sent the following note:
A difference of opinion of a single juror now keeps one jury only a hair's breadth away from a decision. Glaring tempers, however, threaten to make the achievement of unanimity impossible if we continue deliberation in today's overheated condition. Unless we wish to capitulate to a mistrial, the majority of the jury would appreciate the chance to disband for today and reassemble tomorrow morning [Saturday]. In addition, if you decide to allow a resumption of deliberation on Monday, would you please instruct all members of the jury of the penalties for failing to appear for deliberations.
The Court, defense counsel (Mr. Joy), and the prosecutor (Mr. Eggleston) then had the following exchange:
The Court: The jury is impatient to leave one way or the other.
Mr. Joy, is he a gambling man? Are you a gambler?
Mr. Joy: This is about the toughest decision I have made since I have been here.
The Court: It depends upon whether Mr. Pachay is a gambling man. The jury has indicated that they are not going to deliberate any more tonight regardless of what they do. Unless we are willing to go on an 11 to 1 basis, I have to make a choice as to whether to declare a mistrial -- and that's a hard choice because, as somebody said, the jury is deliberating now and they have it down to one holdout and they don't know if the situation on Monday will improve because some of the people may not show up.
I will come back in five minutes. I am not going far away.
Mr. Joy: Your Honor, the defendant is willing to go with 11.
The Court: And the government?
Mr. Eggleston: The government's position is if the defendant is fully advised of his rights the government will go with 11.
The Court: I want you to understand that you are entitled to a unanimous verdict of the jury, but like any right you can waive it, so long as ...