Submitted Pursuant to Third Circuit L.A.R. 34.1(a) July 10,
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
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
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.
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.
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.
facts relative to this issue are undisputed.
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
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
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.
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.
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.
following morning, the District Court received a doctor's
note from the student, called the doctor's office, and
talked to the student again. 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.
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. A163.
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."