On Appeal from the United States District Court for the District of New Jersey. (D.C. No. 00-cr-00003). District Court Judge: Honorable Jerome B. Simandle.
The opinion of the court was delivered by: Fuentes, Circuit Judge
Before: FUENTES, BECKER,*fn1 and ROTH,*fn2 Circuit Judges.
Kevin Boone appeals his conviction and sentence for distribution of cocaine. Boone asserts that the District Court improperly influenced the jury's deliberations when it delivered certain jury instructions and conducted an examination of a juror who had been accused by other jurors of refusing to deliberate properly. We conclude that the District Court did not abuse its discretion or commit plain error in its interactions with the jury.
However, because the District Court sentenced Boone under a mandatory sentencing guidelines scheme rather than under an advisory scheme, we vacate his sentence and remand for resentencing in accordance with the Supreme Court's opinion in United States v. Booker, 543 U.S. 220 (2005), and our opinion in United States v. Davis, 407 F.3d 162 (3d Cir. 2005) (en banc).
Boone was indicted on five counts of distribution of cocaine, two counts of distribution of cocaine base, and one count of being a felon in possession of firearms. At trial, the government's case was based largely on the testimony of a confidential informant named Wendeline Thompson and an undercover officer name Julie Cash.*fn3 Thompson purchased cocaine and cocaine base from Boone, and then introduced Cash to Boone, telling Boone that Cash was a drug dealer named "Martresse." Boone sold both cocaine and cocaine base to "Martresse." The various conversations between Boone, Thompson, and Cash were recorded by the police, although some of the recordings were unintelligible. A search of four residences associated with Boone revealed drug-trafficking paraphernalia, cocaine, and two firearms.
Following a three-week trial and more than three days of deliberation, the jury convicted Boone as to one charge of distributing over 62 grams of cocaine, acquitted Boone on the gun possession charge and on two cocaine distribution charges, and hung as to the remaining drug charges. In February 2003, Boone was sentenced to 225 months in prison.
During the first three days of deliberations, the jury sent several notes to the District Court that are not relevant here. Just before lunch on the third day, the jury submitted another note, which stated:
Dear Judge Simandle, we have agreement on four of the eight counts. However, on the other four counts we have one dissenting vote from the same juror. We have been informed that this one vote will not change no matter how much more discussion there is. What should we do? Signed [jury foreperson].
(A 248; hereinafter "Jury Note A".) In response to this note, defense counsel requested that the judge accept the partial verdict and a hung jury as to the four remaining counts. The judge denied this request, and instead, called the jurors into the courtroom and stated: "I'm asking that you continue to deliberate and that you continue to give your best efforts toward reaching unanimity." (A 255.) He then repeated his jury instruction as to unanimity, including the statement:
It is your duty as jurors to discuss the case with one another in an effort to reach agreement if you can do so. Each of you must decide the case for yourself but only after full consideration of the evidence with the other members of the jury. While you are discussing the case, do not hesitate to reexamine your own opinion and change your mind if you become convinced that you were wrong, but do not give up your honest beliefs solely because others may think differently or merely to get the case over with.
(A 255-56.) Boone did not raise any objection to this instruction before the District Court, and does not do so here.
Shortly after lunch on the same day, the jury sent another note:
We have some serious concern about one of our fellow jurors. He has told . . . all of us several times that his best friend is a cop, and he has several guns, some unregistered and being stored at his friend's house. This leads us to believe that he lied on his initial questionnaire for jury selection. Also, he refuses to discuss certain [counts] because he had his mind made up before we started deliberating. He has said he does not believe anything the police said and thinks everyone is lying. We feel this seriously affects our deliberations. Our votes are 11 to  1 on four [counts] and we have agreed on four. The juror in question has stated they will not change their mind [sic] and does not want to work at any evidence or discuss any testimony. We seem to be at an impasse. Please help us. Thank you, [jury foreperson].
(A 257-58; hereinafter "Jury Note B".) The government suggested that the District Court dismiss the complained-of juror (hereinafter "Juror X"), while the defense urged a mistrial on all counts or, alternatively, acceptance of the verdict on the counts agreed upon by the jury and a mistrial as to the remaining counts. The District Court declined to take immediate action and offered time for both parties to research the legal issues involved. For the interim period, the District Court sent a note to the jury:
In reply to your latest note, you should continue your deliberations in accordance with the instruct[ions] I've previously [given] and in accordance with the oath you have each taken as jurors. In that oath, you each solemnly swore or affirmed under penalty of perjury, "that you will well and truly try U.S. v. Kevin Boone now on trial and render a true verdict according to the law and the evidence." The administration of justice depends upon your faithful adherence to the oath.
(A 264-65.) Defense counsel objected to this note, arguing that it inappropriately singled out Juror X. Judge Simandle overruled the objection. (A 265-67.) About an hour later, the jury sent another note that included a message from both Juror X and the foreperson. (Hereinafter "Jury Note C.") Juror X's message stated: "I am unable to agree for two days on my morals and beliefs [that] there was enough evidence to agree with the other jurors." (A 269.) The foreperson's message stated: "We have been deadlocked on the four counts for just about two days. Signed [jury foreperson]." (Id.)
In response to this note, defense counsel again urged a mistrial on the four deadlocked counts. Government counsel suggested that the District Court bring Juror X into the courtroom and ask him whether he had preconceived biases and whether he was truthful during voir dire. Defense counsel strenuously objected to this proposal. After a discussion of relevant precedent, the District Court determined that asking Juror X a "narrow set of questions" was justified based on the foreperson's allegation that Juror X lied in his voir dire and that he refused to consider the evidence in the case. (A 306.)
The courtroom was emptied (apart from the parties and the judge's law clerk), and Juror X was seated in the jury box for questioning, which proceeded as follows:
Court (Q): Okay, good ...