Lumbard, Chief Judge, and Waterman and Anderson, Circuit Judges. Lumbard, Chief Judge (concurring). Waterman, Circuit Judge (concurring to the extent set forth in his separate opinion).
This petition for a writ of mandamus arises out of an incident and accompanying rulings in the trial of Juan Clemente v. Grace Lines, Inc., before Judge Motley and a jury in the United States District Court for the Southern District of New York. The last day of the trial was Thursday, November 5, 1970; the jury had returned a verdict for the defendant and each juror was being polled by the clerk. He addressed Juror No. 11 and said, "you say you find for the defendant Grace Lines, Inc. Is that your verdict?" According to the Reporter's minutes Juror No. 11 replied, "Yes it had to be unanimous." (On November 19th the court recollected that Juror No. 11 actually said at this point, "Yes, only insofar as it had to be unanimous.") The court inquired, "Have you some explanation for your statement Mrs. Rosmarin?" and Juror No. 11 said, "The verdict, as I understand, had to be one hundred per cent in favor and we had to present one statement. I was, I think the only one that held out and there was no possibility of any change and because of that I did."
The court then declared a mistrial and assigned the case for retrial on Monday, November 9, 1970, at 9:30 a. m. On Friday, November 6, 1970 defense counsel sought a hearing on its motion to vacate the order for mistrial and to stay the assignment for retrial, and the court advised counsel it would receive and hear such motions before the commencement of the trial at 9:30 November 9th. As defense counsel wanted a reasonable time between arguing his motions and receiving the court's ruling thereon, before again going to trial, he applied to the Court of Appeals for a stay and for a writ of mandamus, seeking reinstatefent of the verdict and judgment for the defendant. A stay was granted pending the disposition of the petition for mandamus.
We are satisfied that the trial court's order for the retrial of the case only three and a half days after the declaration of a mistrial, under the circumstances of the case, violated Rule 50(b).
In United States v. Smith, 331 U.S. 469, 67 S. Ct. 1330, 91 L. Ed. 1610 (1947), the trial court had denied defendant's Rule 33 motion for a new trial. The Court of Appeals affirmed this denial and certiorari was denied. The trial judge then had a change of heart and sua sponte ordered a new trial. The Government petitioned the Court of Appeals for writs of mandamus and prohibition directing that the order be vacated, and the petition was denied. The Supreme Court reversed, holding that mandamus will lie to effect vacation of an order for a new trial made in violation of the Federal Rules of Criminal Procedure.*fn1
Rule 50(b) provides that, whenever a motion for directed verdict has been made during the course of the trial and a verdict has not been returned, a party may move for judgment in accordance with his motion for a directed verdict at any time within ten days after the jury has been discharged. On the trial court's assumption that the statement by Juror No. 11 prevented a unanimous verdict and judgment for the defendant the court took the action which precluded the defendant's use of Rule 50(b).
The record shows that the defendant made a motion for a directed verdict at the close of all the evidence, and it was therefore entitled to move for judgment in accordance with its motion within ten days after the discharge of the jury. Even if the trial court were correct as to the effect of Juror No. 11's statement, the writ of mandamus must issue to afford the defendant the opportunity denied it.
But we hold that the district court was also in error in refusing to enter judgment for the defendant and in declaring a mistrial.*fn2
The verdict of the jury had been returned in favor of the defendant, and each juror, individually polled, had replied in the affirmative, except that Juror No. 11 added the remarks about the necessity for a unanimous verdict. Her explanation makes it clear that during the jury's deliberations she had taken a contrary view but had won no one over to her position and in the interests of achieving a verdict she had made the vote of the jurors unanimous for the defendant. There was no hint of coercion or improper conduct on her part or on the part of any other member of the jury or anyone else connected with the case. She was animated by a motive, apparently entirely her own, which was not unlawful.
Of course, the rule that a juror will not be heard to impeach his own verdict, McDonald v. Pless, 238 U.S. 264, 35 S. Ct. 783, 59 L. Ed. 1300 (1915), does not preclude the examination of the reasons motivating a juror's vote when that juror, after giving formal assent to the verdict and before judgment on the verdict has been entered, states in open court that he does not agree with the verdict. 6A Moore's Federal Practice para. 59.08. In the present case Juror No. 11 did not state that she disagreed with the verdict and responded to the clerk's query as to whether she found for the defendant, in the affirmative but then went on to explain what had motivated her affirmative vote. The issue thus presented is whether the motivation of the juror was so unlawful or improper as to require the court to nullify her vote and therefore the entire verdict.
There are two cases which have presented similar issues to this court, where the motivation or motivations which have produced the verdict have arisen within the mind of a juror or in the minds of several jurors in the course of their deliberations rather than through extraneous influences brought to bear upon them outside of the juryroom.
In Jorgensen v. York Ice Machinery Corp., 160 F.2d 432 (2 Cir.), cert. denied 332 U.S. 764, 68 S. Ct. 69, 92 L. Ed. 349 (1947), Judge Learned Hand put aside the rule of McDonald v. Pless, supra and inquired into the juror's motivation. There affidavits submitted after the entry of judgment alleged that the jury was deadlocked at seven for the defendant, five for the plaintiff when the foreman learned his son had been killed in action. At this point "someone suggested that, as seven were for the defendant and only five for the plaintiff, they should return a verdict for the defendant. This they did; it was a compromise to avoid further discussion and to let the foreman return home." 160 F.2d at 434. Judge Hand upheld the trial court's denial of plaintiff's motion for a new trial. "It would be impracticable," he wrote, to insist on a rule that every juror "based his vote only upon evidence he has heard in court." Drunkenness, bribery, receiving incompetent documents or privately interviewing a party do require a new trial. But, said Judge Hand, "there are many irregularities which * * * do not, and among them is an agreement to abide by the vote of the majority." "Not only ought we not upset the judge's discretion in refusing to grant a new trial for such reason, but, had he granted the motion * * * we should not have sustained it." 160 F.2d at 435.
The present case does not involve an overt agreement by all jurors to abide by the will of a majority. But the decision of one juror to do so would seem even less inconsistent with the unanimous jury ...