United States v. Gagnon

470 U.S. 522 (1985)

Purchase the Printed Copy at bsmsphd.com

Nature of the Case

To access this section all you need to do is click here and register.

Facts

Ds were indicted for participation in a large-scale cocaine distribution conspiracy. The District Judge was discussing matters of law in open court with the Ds, their respective counsel, and the Assistant United States Attorney, outside the presence of the jury. The bailiff entered the courtroom and informed the judge that one of the jurors, Graham, had expressed concern because he had noticed Gagnon (D) sketching portraits of the jury. D's attorney admitted that D had been sketching jury members during the trial. The Judge ordered that the practice cease immediately. D's lawyer suggested that the judge question the juror to ascertain whether the sketching had prejudiced the juror against D. The judge responded: 'I will talk to the juror in my chambers and make a determination. We'll stand at recess.' No objections were made by anyone nor any requests made to be present. The Judge called for juror Graham to come to chambers. The judge also requested to bring D's counsel to chambers. There the judge, in the company of D's counsel, discussed the sketching with the juror. The juror stated: '. . . I just thought that perhaps because of the seriousness of the trial, and because of -- whichever way the deliberations go, it kind of -- it upset me, because -- of what could happen afterward.' The judge then explained that D was an artist, meant no harm, and the sketchings had been confiscated. The juror was assured that D would sketch no more. D stated that another juror had seen the sketching and made a comment to him about it but no one else seemed to have noticed, and no other jurors had discussed the matter. Graham stated his willingness to continue as an impartial juror. D's counsel asked two questions of the juror and then stated that he was satisfied. The trial resumed. A transcript of the in camera proceeding was available to all of the parties. No objections were made. No motions were made to disqualify Graham or the other juror nor did anyone request that cautionary instructions be given to the jury. Ds were found guilty. On appeal, Ds claimed that the discussion with the juror in chambers violated their Sixth Amendment rights to an impartial jury and their rights under Federal Rule of Criminal Procedure 43. The Court of Appeals for the Ninth Circuit reversed holding that the in camera discussion with the juror violated Ds' rights under Rule 43 and the Due Process Clause of the Fifth Amendment. It held these rights were substantial enough to be noticed as plain error on appeal under Federal Rule of Criminal Procedure 52(b), notwithstanding Ds' failure to preserve the issue by raising it in the District Court.