7th Circuit Criminal Law Alert

Alternate Jurors - FRCP 24 Requires Strict Compliance

United States v. Mendoza, No 06-2999.

A jury found José Mendoza guilty of distributing amphetamine in violation of 21 U.S.C. § 841(a)(1).  Mendoza challenges the sufficiency of the government's evidence against him and the district court's procedure for identifying alternate jurors.  We affirm.

At the beginning of his trial on the charge of distributing amphetamine in violation of 21 U.S.C. § 841(a)(1), the district court informed counsel that it intended to select 16 tentative jurors to hear the evidence and, after closing arguments, designate four at random to be the alternates. During voir dire, the district court noted that this system "seems to work very well for everybody, and it has been in use here for close to 25 years." The procedure, however, happened to result in the clerk randomly designating the one Hispanic among the 16 tentative jurors as an alternate juror.

The jury then found Mendoza guilty.

Mendoza filed motions for judgment of acquittal and for a new trial under Federal Rules of Criminal Procedure 29 and 33, and the district court denied both motions.

Primarily, Mendoza challenges the district court's practice of seating 16 jurors to hear the evidence presented and randomly selecting four individuals to be alternates after the presentation of evidence. Although we disapprove of this procedure, the error was harmless.

Federal Rule of Criminal Procedure 24 governs the selection of jurors and alternates in criminal trials. This rule provides in pertinent part that the court may impanel alternate jurors who are identified as such and who replace jurors in the order the alternates are selected:

(c) Alternate Jurors.

(1)  In General. The court may impanel up to 6 alternate jurors to replace any jurors who are unable to perform or who are disqualified from performing their duties.

(2)    Procedure.

(A)  Alternate jurors must have the same qualifications and be selected and sworn in the same manner as any other juror.

(B)   Alternate jurors replace jurors in the same sequence in which the alternates were selected. An alternate juror who replaces a juror has the same authority as the other jurors.

Fed. R. Crim. P. 24(c). We have said that Rule 24(c) contemplates selection of alternates "either by the jury-box system or by a struck-jury method in which defendants know the sequence in which members of the pool will be seated." United States v. Patterson, 215 F.3d 776, 780 (7th Cir. 2000), vacated on other grounds, 531U.S.1033 (2000).

Rather than seating the jury and alternates separately, the district court seated 16 tentative jurors with the intention of randomly naming four of them as alternates just prior to deliberations. There may well be benefits to selecting a jury in this manner.

But this is not the procedure prescribed by Rule 24, nor is this a matter entrusted to the sound discretion of the district court. Rule 24 assumes alternates will be selected separately and sequentially prior to the presentation of evidence and provides for additional peremptory challenges for the parties to use specifically against potential alternates. By delaying the identification of the alternates until after the parties presented evidence, the district court erred.  As a result, Mendoza was unable to exercise peremptory challenges specifically against alternate jurors. See Fed. R. Crim. P. 24(c)(4).

Notwithstanding the logic of this practice and its vintage in the district court, we must join with our sister circuits in "encouraging strict adherence" to the rule, and we now request that the district court discontinue its current practice.

Deviation from the commands of Rule 24 requires reversal only if the error affects the defendant's substantial rights. See Fed. R. Crim. P. 52(a). We held in Patterson that generally the loss of a peremptory challenge does not constitute the deprivation of a substantial right. Only if the loss has a "substantial and injurious effect or influence in determining the jury's verdict" does the loss of a peremptory challenge amount to reversible error. 

Because peremptory challenges exist principally to safeguard the Sixth Amendment's guarantee of trial by an impartial jury,to prevail, Mendoza must demonstrate that the jury was not impartial.

Mendoza does not claim they were), there is no constitutional injury. United States v. Phillips, 239 F.3d 829, 842 (7th Cir. 2001).

Mendoza complains that the district court's procedure excluded the only Hispanic among the 16 tentative jurors and that because this juror was among the first 12 seated, he expected to "try the case" to this juror (despite the district court's warning about the procedure for selecting alternates). But as long as Hispanics were not systematically excluded from the venire (and

Furthermore, Mendoza is not entitled to any Hispanics on the jury, see Taylor v. Louisiana, 419 U.S. 522, 538 (1975), nor by implication is he entitled to any one individual juror.

Finally, Mendoza presents no evidence (other than the fact of conviction, which is insufficient) to suggest that the jury was not impartial. The error was therefore harmless.

AFFIRMED

For the full opinions visit the 7th Circuit Court of Appeals Web Site.

For more about attorney Michael J. Petro, visit www.mjpetro.com .

USSG 2B3.1 Threat of Death Enhancement Not Alllowed With 924(c) Conviction

United States vs. Daniel Katalinic, No. 07-1588.

Daniel Katalinic pleaded guilty to bank robbery (18 U.S.C. § 2113(a)) and carrying a firearm in relation to a crime of violence (18 U.S.C. § 924(c)).  At sentencing, the district court added two levels to the base offense level on the robbery count because Katalinic's co-defendant made a death threat (U.S.S.G. § 2B3.1(b)(2)(F)) during the robbery.

The primary issue on appeal is whether Application Note 4 to § 2K2.4 of the sentencing guidelines prohibits, as double counting, an upward adjustment for a death threat that is related to the firearm for which the defendant received a mandatory consecutive sentence under § 924(c). We agree with our sister circuits and hold that Application Note 4 prohibits the adjustment.

At sentencing, Katalinic objected to the adjustment for the death threat, arguing that it, like brandishing a gun, constituted double counting prohibited by Application Note 4 to § 2K2.4. Because the death threat was related to the firearm, he argued, it could not be used to increase his base offense level for the robbery when he was also subject to a mandatory sentence for the separate firearm conviction.

We review a legal interpretation of the sentencing guidelines and amendments de novo. United States v. Howard, 352 F.3d 332, 335 (7th Cir. 2003). An application note is "authoritative unless it violates the Constitution or a federal statute, or is inconsistent with, or a plainly erroneous reading of " the guideline it interprets.

This case turns on an amendment in 2000 to Application Note 4 of § 2K2.4. Before the amendment, Application Note 4 included examples of the types of firearm characteristics a court could not use to increase an underlying sentence when also imposing a mandatory firearm sentence under § 924(c):

Where a sentence under this section is imposed in conjunction with a sentence for an underlying offense, any specific offense characteristic for the possession, use, or discharge of an explosive or firearm (e.g., § 2B3.1(b)(2)(A)-(F) (Robbery)) is not to be applied in respect to the guideline for the underlying offense.

Courts interpreted the note to mean that they could not even use a death threat to increase the base offense level for an underlying offense if the defendant was also convicted of carrying a firearm under § 924(c) because the note directly referred to the death threat adjustment. See United States v. Smith, 981 F.2d 887, 892-93 (6th Cir. 1992).

The two circuits to consider whether the amended Application Note 4 still prohibits an upward adjustment for a death threat have concluded that it does. Specifically, we have held that Application Note 4 prohibits an increase in the sentence for an underlying offense "for the same weapon and the same conduct that underlie the § 924(c) conviction."

Applying this rule, the district court erred because Maltz's death threat was related to the shotgun for which Katalinic received a mandatory sentence under § 924(c). While Katalinic brandished the shotgun, Maltz told the manager to hurry or he would "shoot" her. The threat to "shoot" was thus directly related to the gun carried into the bank to facilitate the robbery.

Katalinic does not challenge the district court's finding that Maltz's statement was a death threat that was reasonably foreseeable to Katalinic. Thus, because the death threat was related to the shotgun, the district court should not have increased Katalinic's robbery sentence based on Maltz's threat.

Because the district court misapplied the sentencing guidelines in calculating the guidelines range, we must remand the case for resentencing. See United States v. Scott, 405 F.3d 615, 617 (7th Cir. 2005).

For the full opinions visit the 7th Circuit Court of Appeals Web Site.

For more about attorney Michael J. Petro, visit www.mjpetro.com .