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United States v. Chavis

decided: October 14, 1983.

UNITED STATES OF AMERICA, APPELLEE,
v.
SELWYN CHAVIS, A/K/A "SELWYN RAYMOND CHAVIS," A/K/A "JOHN DOE," A/K/A "WIN," DEFENDANT-APPELLANT



Appeal from judgment of conviction based on a non-unanimous jury verdict. Reversed and remanded for a new trial because there was no intelligent and voluntary waiver of unanimity. Judge Oakes concurs in a separate opinion.

Oakes and Meskill, Circuit Judges, and Hill,*fn* District Judge.

Author: Meskill

MESKILL, Circuit Judge:

This is an appeal from a judgment of the United States District Court for the Southern District of New York, Motley, C.J., following a three day jury trial convicting defendant of conspiracy to distribute heroin and to possess heroin with intent to distribute it in violation of 21 U.S.C. ยงยง 841, 846. Defendant was sentenced to two years imprisonment. On appeal Chavis claims that his conviction must be reversed because it was not based upon a unanimous verdict as required by Fed. R. Crim. P. 31(a). We agree and reverse and remand for a new trial.

After the jury deliberated for a total of five hours and twenty minutes, interrupted by requests for a re-reading of certain portions of testimony and the charge, the jury sent the following note to Chief Judge Motley:

Your Honor, we have one juror who is in disagreement with the eleven other jurors. He says he had made his mind up and will not change it.

The following colloquy then occurred:

Mr. Jacobs (Defense Counsel): . . . I have discussed with the government the possibility of taking a verdict of eleven. My client has agreed.

Mr. Sobol (Ass't U.S. Atty.): One moment, your Honor.

The Court: Is there going to be some decision by the government on this suggestion?

Mr. Sobol: We will accept it, your Honor.

The Court: An 11-man verdict?

Mr. Sobol: Yes.

The Court: You say the defendant ...


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