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United States v. Penn

United States Court of Appeals, Third Circuit

August 30, 2017

UNITED STATES OF AMERICA
v.
JESSE NATHANIEL PENN, JR., Appellant

          Submitted Pursuant to Third Circuit L.A.R. 34.1(a) July 10, 2017

         On Appeal from the United States District Court for the Western District of Pennsylvania District Court No. 2-12-cr-00240-001 District Judge: The Honorable Terrence F. McVerry

          Candace Cain Office of Federal Public Defender Counsel for Appellant

          Rebecca R. Haywood Michael L. Ivory Office of United States Attorney, Counsel for Appellee

          Before: SMITH, Chief Judge, FUENTES, Circuit Judge, and STARK, [*] Chief District Judge

          OPINION

          SMITH, Chief Judge.

         Jesse Nathaniel Penn, Jr., was convicted of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). After opening statements at Penn's trial, the District Court removed one of the jurors, a student with scheduled surgery, replacing him with an alternate. Penn now appeals, arguing that removing the juror deprived Penn of his "constitutional rights to due process, fundamental fairness, equal protection and an impartial jury" because the juror substitution violated Rule 24(c)(1) of the Federal Rules of Criminal Procedure. Because the District Court did not abuse its discretion, we will affirm the judgment of the District Court.

         I.

         A one-count indictment charged Jesse Nathaniel Penn, Jr., with being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). At Penn's first trial, the jury found him guilty. His conviction was vacated on appeal. See United States v. Penn, 616 F.App'x 524 (3d Cir. 2015). On retrial, Penn was again found guilty. This timely appeal followed.[1]

         We consider only Penn's contention that he was deprived of his constitutional rights when the District Court excused a seated juror without making a finding that the juror was "unable to perform" his duties or that there was a ground for disqualifying the juror.[2]

         The facts relative to this issue are undisputed.

         Voir dire for Penn's trial commenced on Monday, August 24, 2015. The District Court asked the members of the venire a series of preliminary questions. Among the questions was whether there was "any legitimate justifiable hardship reason, personal, professional, business, medical condition or impairment, or otherwise why you could not serve as a juror for the duration of this short trial?" A92. Prospective Juror #207, a student at Clarion University, indicated that serving on the jury would be a hardship for him.

         The next question was, "Defendant, Jesse Nathaniel Penn, Jr., is an African-American, as you can see. Do you have such strong personal feelings, either positive or negative, regarding African-Americans which would affect your ability to be a fair and impartial juror in this case?" A93. No member of the venire responded affirmatively to that question.

         Later, the District Court held individual voir dire in chambers. At that time, Prospective Juror #207 explained that he attended Clarion on a full-time basis and that the trial, which would last two to three days, would conflict with his scheduled tonsillectomy on Wednesday, August 26. After the Court asked for a "medical excuse, " the prospective juror stated that he had been told his tonsils had to be removed and that the appointment had been scheduled for "two and a half or three weeks." A111. In response, the Court asked him if he could contact the doctor's office when he left and "reschedule it for the next day or Friday." Id. The prospective juror responded that rescheduling surgery would conflict with basketball preseason practice, which started the following week. He added, "Sometimes that's not easy to get surgery postponed." Id. The District Court advised that it was not inclined to excuse the student from jury service because he did not "have any medical evidence" to show he had surgery scheduled and had not advised the jury operations office of his surgery. A112.

         Further discussion revealed that the August 26 appointment was the earliest appointment the prospective juror could secure after getting sick with bronchitis for the fourth time in July, that he was a varsity basketball player on a basketball scholarship, that he would be unable to perform activities for two weeks after the surgery, and that mandatory practices began the "[n]ext week." A112-13.

         After the prospective juror left chambers, the District Judge said he had no objection to keeping him on the jury, adding, "I don't believe him . . . because if he truly was having surgery on Wednesday, he would have notified the jury office that he is not available for a medical reason and his doctor would send a note to that effect." A114. The Court completed voir dire, after which the student was seated as the ninth juror. The jury was sworn in that afternoon and the Court gave the panel preliminary instructions. After the prosecution and the defense made their opening statements, the Court adjourned for the day.

         The following morning, the District Court received a doctor's note from the student, called the doctor's office, and talked to the student again.[3] The doctor's note advised that the student had an appointment that day with his primary care physician in preparation for his surgery scheduled for the next day, Wednesday, August 26. The document concluded with the doctor's electronic signature. In its discussion with the student, the District Court indicated that the trial was underway, that the student had been sworn in as a juror, and that it was unlikely that he would be excused. The District Court also contacted the doctor's office and learned that the surgery could be rescheduled. The doctor's office confirmed, however, that surgery remained scheduled for the following morning.

         Before reconvening, the District Court advised both prosecution and defense counsel about the note, the meeting with the student, and the call with the doctor's office. The District Judge indicated he had "rethought about it." A162. Because there was "medical support" for the student's need to undergo a tonsillectomy and the scheduling of his surgery, the District Court asked counsel for their consent to excuse the student and replace him with an alternate.[4] A163.

         The prosecution consented to excusing the student. Moreover, one of the prosecutors asserted that he had watched the student the day before and saw that the student was "yawning, disinterested, and clearly did not want to be there." A163-64. ...


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