Defendants-Appellants James Hillard, Robert Allen and Samuel Hillard appeal from judgments of conviction stemming from their participation in large-scale heroin ring. All three defendants challenge admission of electronic surveillance evidence. Defendant James Hillard also contests substitution of alternate juror for regular juror after commencement of jury deliberations, and alleges juror misconduct. Affirmed
Feinberg, Chief Judge, Cardamone and Davis,*fn* Circuit Judges.
Defendants-appellants James Hillard, Samuel Hillard, and Robert Allen appeal from judgments of conviction entered in the United States District Court for the Southern District of New York, Morris E. Lasker, J., on various counts stemming from their participation in a large-scale heroin operation. Three issues are raised on this appeal, involving the admission of certain evidence derived from electronic surveillance, alleged juror misconduct, and the substitution of an alternate for a juror who fell ill shortly after deliberations had begun in James Hillard's trial. For the reasons stated below, we affirm the judgment of the district court in all respects.
According to the government, the defendants were all part of an extensive heroin distribution network headed by James Hillard and informally known as "Black Sunday."*fn1 The Black Sunday ring evidently prospered for at least four years, amassing millions of dollars in profits. The indictment charged eleven defendants in eight counts for offenses related to the Black Sunday operation. Appellants were charged with conspiracy to distribute and to possess with intent to distribute large quantities of heroin, in violation of 21 U.S.C. § 846, conspiracy to use firearms to commit a federal felony, in violation of 18 U.S.C. § 371, and distribution and possession of heroin with intent to distribute, in violation of 21 U.S.C. § 841(a). In addition, James Hillard was charged with supervising a continuing criminal enterprise, in violation of 21 U.S.C. § 848.
After extensive pre-trial motions, hearings and arguments, trial began on June 14, 1982. Midway through the trial, Robert Allen and Samuel Hillard pled guilty to all of the charges against them, but preserved their right to appeal the denial of their motions to suppress electronic surveillance evidence. The trial concluded in early July, when the jury found James Hillard guilty of all but one of the charges against him,*fn2 and reached varying results with respect to the other defendants.
Robert Allen was sentenced to five years in prison and five years special parole. Samuel Hillard was sentenced to seven and one-half years in prison, and three years special parole. James Hillard received a sentence of twenty years in prison to be followed by ten years special parole.
I. The Replacement of a Juror During Deliberations
The jury retired to commence deliberations on June 30, 1982. After two and one-half days of deliberations, followed by a three-day holiday recess, one of the jurors informed the district court that she was ill. At that point in the trial, the first two alternates were still available. There is no dispute that the court had instructed the two alternates to remain in attendance during the deliberations in case they were needed; they were kept separated from the regular jurors, but they joined the jury whenever it returned to the courtroom to hear testimony reread or to receive additional jury instructions.
Judge Lasker discussed with counsel several possible courses of action. Defendants refused to stipulate to an eleven-juror verdict, see Fed. R. Crim. P.23(b), and also objected to the government's proposal that the court order a one-day adjournment in the hope that the ill juror might then be able to return. Judge Lasker did not wish to suspend deliberations because he felt the ill juror's return was uncertain, and because he thought a further delay in deliberations, after the three-day holiday recess, might unduly tax the jurors. Judge Lasker also did not wish to declare a mistrial, because he felt it would be an "enormous and unnecessary waste." Accordingly, he decided to substitute one of the alternates for the ill juror.
Appellant James Hillard*fn3 now offers a number of reasons why this action was reversible error. First, appellant argues that the district court should have ordered a one-day continuance in the hope that the ill juror might recover and be able to resume deliberations. Defendant notes that the ill juror informed the trial court that she was "usually not sick very long." From this defendant concludes that the juror's illness was not a sufficiently serious problem to justify the immediate substitution of the alternate, when there was no indication that the less drastic remedy of a brief continuance would not have sufficed. In support of this argument, defendant cites this court's decision in Dunkerley v. Hogan, 579 F.2d 141 (2d Cir. 1978), cert. denied, 439 U.S. 1090, 59 L. Ed. 2d 56, 99 S. Ct. 872 (1979). We find this argument somewhat disingenuous. First, defendant James Hillard did not accede to a one-day continuance when it was suggested by the government in open court to Judge Lasker; appellant consistently sought only a mistrial. Second, Dunkerley holds that it is inappropriate to declare a mistrial when it does not appear that a mistrial is manifestly necessary because there is no "record evidence or statement by the court indicating why a short continuance would have been unreasonable, unfair, or impractical . . . ." Id. at 148. In this case, the district judge gave plausible reasons as to why a continuance was inappropriate; moreover, he decided to substitute a juror precisely in order to avoid the even more drastic remedy of declaring a mistrial, which was the remedy sought by defendant.
Before proceeding with the substitution, the district court interviewed the alternates. They admitted to having discussed the case with each other "in a general sense." The first alternate acknowledged that he had formed a tentative opinion with respect to each defendant, but indicated that he could deliberate fully and fairly with the eleven regular jurors and, if necessary, could change his views in light of the evidence and the law. He also indicated that his discussions with the other jurors had not affected his view of the case. Judge Lasker discussed the matter further with counsel, and then decided to proceed with the substitution.
Judge Lasker informed the full jury of the substitution, and instructed them to begin their deliberations "from scratch." Over a two-day period, the jury returned several separate verdicts: first, they found James Hillard guilty on the conspiracy counts, but acquitted another defendant on all counts against him; later, they found James Hillard guilty of one substantive count, but not guilty of another, and acquitted another defendant; on the following day, the jury convicted one defendant of conspiracy, and convicted James Hillard on the continuing criminal enterprise count.
Appellant James Hillard contends that the substitution of the alternate juror violated his Sixth Amendment rights, and the plain language of Rule 24(c) of the Federal Rules of Criminal Procedure. This is an important issue in the administration of criminal justice in this circuit, and has not been directly ruled upon by this court. We therefore consider it at some length.
In a case closely analogous to this one, the Fifth Circuit held that the substitution of an alternate after the commencement of deliberations was harmless error. United States v. Phillips, 664 F.2d 971 (5th Cir. 1981), cert. denied, 457 U.S. 1136, 102 S. Ct. 2965, 73 L. Ed. 2d 1354 (1982); accord, United States v. Kopituk, 690 F.2d 1289 (11th Cir. 1982). The circumstances of the substitution in Phillips were as follows: After a lengthy trial, the judge ordered one of the alternate jurors to be separately sequestered but not dismissed. After two days of deliberations, one of the jurors suffered a heart attack and was unable to continue. The district court questioned the alternate juror and found that he had not discussed the case with anyone and felt able to work from the start with the other jurors. The court also questioned the regular jurors, who indicated that they would be able to begin their deliberations anew. The court substituted the alternate over the objection of defense counsel, and instructed the jury to start their deliberations over again. Six days later the reconstituted jury reached a verdict.
As an initial matter, the Phillips court determined that the federal constitution does not proscribe the substitution of an alternate juror after deliberations have begun ("post-submission substitution"). United States v. Phillips, supra, 664 F.2d at 992; see also Johnson v. Duckworth, 650 F.2d 122 (7th Cir.), cert. denied, 454 U.S. 867, 70 L. Ed. 2d 169, 102 S. Ct. 332 (1981); Henderson v. Lane, 613 F.2d 175, 177-79 (7th Cir.), cert. denied, 446 U.S. 986, 64 L. Ed. 2d 844, 100 S. Ct. 2971 (1980); People v. Collins, 17 Cal. 3d 687, 552 P.2d 742, 131 Cal. Rptr. 782 (Cal. 1976), cert. denied, 429 U.S. 1077, 97 S. Ct. 820, 50 L. Ed. 2d 796 (1977); Preliminary Draft of Proposed Amendments to the Federal Rules of Criminal Procedure, Advisory Committee Note to Rule 24(c), 91 F.R.D. 289, 344 (1981).
In Henderson v. Lane, supra, a juror suffered a heart attack two and one-half hours after deliberations had begun. The district court recalled the two alternate jurors, and questioned them about their activities since they had been discharged. The first alternate admitted that he had discussed the case with his wife, but stated that she had not expressed an opinion. He also stated that he had not reached a conclusion regarding the defendant's guilt. Defense counsel acquiesced in the reinstatement of the alternate, but the defendant was not personally present when the substitution was made. The Seventh Circuit held that substitution is constitutional, but that the defendant had the right to be present at the time of substitution. Nonetheless, the jury's verdict was upheld, because the Seventh Circuit determined that the defendant had suffered no prejudice and that the error was therefore harmless. The Seventh Circuit posed the issue as follows:
In determining the constitutionality of the substitution procedure, we must consider whether the procedure preserves the "essential feature" of the jury, defined by the Supreme Court as
the interposition between the accused and his accuser of the commonsense judgment of a group of laymen, and in the community participation and shared responsibility that results from ...