APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY (D.C. Criminal No. 74-545).
Seitz, Chief Judge, Van Dusen and Weis, Circuit Judges.
Though justice should be tempered with mercy, the guilty verdict of a jury may not be conditioned upon the compassion of a sentencing judge. The defendant in this case contends that a jury's note pleading for leniency raised the specter of an equivocal verdict and required the trial judge to question the jurors on their intentions. The judge declined to do so and we conclude that his decision was not erroneous. We disagree with the defendant's other assertions that certain evidentiary rulings were incorrect and, accordingly, we affirm.
After a jury was unable to agree on a verdict, the defendant was tried a second time and convicted of embezzling and unlawfully opening first class mail in violation of 18 U.S.C. §§ 1709 and 1703(a). Most of the prosecution's testimony was presented by postal inspectors who investigated complaints of theft of mail from the Livingston, New Jersey Post Office where defendant was employed as a postal clerk. One of the inspectors' techniques to discover the culprit was the use of "test letters." An envelope containing currency and addressed to a post office box controlled by the inspection service would be handed to a window clerk for mailing. From a concealed position in an observation gallery, inspectors would then follow the progress of the envelope from station to station.
The procedure was utilized in this case. An undercover inspector handed a test letter to the defendant who was on duty at his assigned window. From the gallery other inspectors saw the defendant leave his post and return a few minutes later. Thereafter several of the inspectors confronted the defendant, found the marked money in his possession and arrested him. The defendant took the stand and denied any wrongdoing.
The jury deliberated for about 12 hours before returning a verdict of guilty, together with a note asking the court to exercise extreme leniency. The jurors were polled and all answered in the affirmative when asked if they concurred in the verdict of guilty as read by the forelady.
Defense counsel then suggested that the trial judge ask the jurors whether their request for leniency was controlling in the determination of guilt. After a bench conference, the judge declined to do so. The defendant now asserts that the refusal to make inquiry of the jurors and several evidentiary rulings constitute error requiring a new trial. Additionally, he contends that the sentence imposed was an abuse of discretion.
In a federal criminal trial, a verdict must be unqualified and unambiguous. It must represent the unanimous vote of the jurors. A trial court may not accept a verdict if it is defective but must either direct the jury to retire for further deliberation or declare a mistrial.
The defendant contends that "serious doubt is left whether this jury did not qualify its verdict by predicating and conditioning it on the request for leniency." Some elaboration of the circumstances of the jury deliberation is helpful.
The jury began its deliberations at 1:15 P.M. on June 6, 1975. During the course of the afternoon, the jury sent notes to the judge requesting information about the testimony of certain witnesses. On each occasion the court convened and made appropriate responses in the presence of counsel and the defendant. In the early evening, the judge told the jurors he would arrange their hotel accommodations for the night. The jurors, however, requested additional time for deliberation. At 10:15 P.M. they sent a note stating that they had not been able to reach a unanimous vote, and asked for additional instructions. A little later they sent another note indicating that a minority had said it would not change its position.
The judge then gave a charge on reasonable doubt and the duty to deliberate with a view to reaching agreement if possible.*fn1 At 12:25 A.M. the jurors asked that they be allowed to deliberate until 1:00 A.M. Soon thereafter they told the bailiff that they had reached a verdict.
When the court convened at 12:50 A.M., the forelady handed the verdict slip and a note which was on a separate piece of paper to the clerk. The judge read ...