Conviction Vacated After Trial Court Improperly Solicited A Partial Verdict

Seventh Circuit vacates conviction after the trial court "invited a partial verdict while deliberations remained ongoing and before the jury indicated that it was truly deadlocked as to any count"; circuit provides guidance into how to address these circumstances, in United States v. Moore, _ F.3d _ (7th Cir. Aug. 19, 2014) (No. 13-2905)

FRE 606(b) prohibits juror testimony concerning jury deliberations. It is a delicate matter for the trial court to respond to jury questions including about the status of their deliberations and whether a verdict has been reached. A recent Seventh Circuit highlights the risks involved.

Trial Court Proceedings: Directing The Jury To Complete The Verdict Form And Continue Deliberating

In the case, defendant more was charged with three counts: (1) taking a motor vehicle by force or intimidation with the intent to cause death or serious bodily harm; (2) using or carrying a firearm during and in relation to a crime of violence; and (3) being a felon in possession of a firearm. At trial, the central issue “was whether [defendant] Moore committed the carjacking with an intent to cause death or serious bodily harm to [victim] Heliotis if she did not cooperate,” and “[t]here was no real dispute that Moore was armed, that he approached Heliotis and showed her his gun, that he instructed her to get out of the car, and that he stole the car when she ran for help.” Moore, _ F.3d at _.

After the case was submitted to the jury, the jury deliberated for seven hours. When the trial court summoned the jury, the foreperson reported that the jury wished to continue deliberating. At 8:22 p.m., the foreperson, provided a note:

We would like to end for the day. Everyone is tired and we are not making progress. If possible we would like to begin deliberations [at] 11:30 a.m. Friday. Some people will not get home tonight until after midnight.

Moore, _ F.3d at _. The trial judge stated his intent "to ask the jury whether it had reached unanimous agreement as to any count of the indictment; if it had, the judge planned to take a partial verdict on that counts" and he intended to "inquire whether, as to any counts on which the jury remained undecided, whether further deliberations would be useful." The government objected and defense counsel noted his concerns. The trial court nonetheless proceeded with his plan. The court said the jury "should complete the verdict form as to the counts upon which it had reached unanimous agreement" and asked whether "further deliberations would be useful on any count or counts as to which they remained divided." The foreperson thought it was unlikely but another juror said he "'wouldn’t exclude the possibility altogether' of reaching a unanimous verdict." The trial court "instructed the jury to return to the jury room and fill out the verdict form as to any counts on which it had agreed." The foreperson then asked:

THE FOREPERSON: One of the counts was multifaceted. There was four elements to Count One. In the event that we reached unanimity on one, two or even three of those, should we indicate that or does —


THE FOREPERSON: — just don’t indicate that anyway.

THE COURT: You have to reach unanimous verdict on all elements of a count.


THE COURT: Three out of four is no good.


THE COURT: Okay? All right. Go ahead and return to the jury room.

Moore, _ F.3d at _. As directed, the jury "returned a verdict form indicating that it had reached unanimous verdicts of guilt on Counts Two and Three of the indictment, but had not arrived at a verdict on Count One." The parties were uncertain whether the verdict could be sustained since the carjacking offense in Count One was an element of Count Two, and suggest further research was warranted. The next morning, the court noted:

that, after further consideration and research, it had tentatively concluded that no further deliberations and no supplemental instructions were warranted with respect to Count Two. The court observed that the evidence was sufficient to support the guilty verdict on that count, and any inconsistency between the jury’s ongoing inability to reach a verdict as to Count One and its finding of guilt on Count Two did not call into question the validity of the verdict on the latter count.

The next morning the court and parties reviewed the options. Defense counsel objected to the process:

I think by having them do a piecemeal verdict, the Court pierced totally unintentionally into the deliberation process to see where they were, whether we thought it was just on Count Two and Three, not just Two, but I think it was inappropriate, Judge. And then to ask the jurors to determine, after the
foreman said that they were hung or could not reach, and one person to raise their hand, again it began to show where the deliberations were. And I
think that that, Judge, was improper, especially now given what we know about what the deliberations and the problems that they are having, given the
verdict forms that they signed.

Moore, _ F.3d at _. The trial court denied the motion for a mistrial and ."declared its intent to accept the partial verdict on Counts Two and Three, and allowed the jury to resume deliberations on Count One without any supplemental instruction." Several hours later, the foreperson sent a note indicating that "the jury foreman advised the court by way of a note that the jury was divided 11 to 1 in favor of conviction on Count One and would be unable to arrive at a unanimous verdict." The trial court inquired whether further deliberations may result in a unanimous verdict. When no juror responded, the trial court gave the jury a "new, clean verdict form" on which the jury indicated guilty verdicts on Counts Two and Three, but noted “impasse” for Count One. A poll of the jury confirmed the result. The trial court ruled a mistrial on Count One and granted the government’s motion to dismissed Count One without prejudice. The trial court later denied the defendant's Fed. R. Crim. P. 33 motion for a new trial noting "the inconsistency between the verdict of guilt on Count Two and the lack of a verdict on the predicate charge in Count One." The defendant appealed the conviction on Count Two, but not Count Three.

Seventh Circuit Review: Interfering With Jury Deliberations

The Seventh Circuit concluded that the trial "court improperly solicited a partial verdict from the jury before jurors indicated that no further deliberations would be useful" and could not "rule out the possibility that this error may have resulted in a premature verdict on" Count Two. The conviction on Count Two was vacated and the case was remanded.

Recognizing Inconsistent and Partial Verdicts

Initially, the circuit noted that an inconsistent verdict between the first two counts was generally permitted and could be the product of "jury mistake, compromise, or lenity." Normally, "the guilty verdict will stand (so long as the evidence is sufficient to support it) notwithstanding an inconsistent verdict on a related offense, even if conviction on the latter offense is a predicate to conviction on the former." Moore, _ F.3d at _ (citing United States v. Powell, 469 U.S. 57, 65 (1984) ("the possibility that the inconsistent verdicts may favor the criminal defendant as well as the Government militates against review of such convictions at the defendant's behest"); Dunn v. United States, 284 U.S. 390, 394 (1932) ("That the verdict may have been the result of compromise, or of a mistake on the part of the jury, is possible. But verdicts cannot be upset by speculation or inquiry into such matters."); United States v. Askew, 403 F.3d 496, 501 (7th Cir. 2005) ("the Supreme Court has recognized that inconsistent jury verdicts may occur for various reasons, including mistake, compromise, or lenity")). Partial verdicts may be permitted and have been recognized in many cases, including the following noted by the circuit. Moore, _ F.3d at _ (citing United States v. Durham, 645 F.3d 883, 893–94 (7th Cir. 2011) (responding to jury inquiries); United States v. Degraffenried, 339 F.3d 576, 580–81 (7th Cir. 2003) (responding to jury note declaring impasse); United States v. Heriot, 496 F.3d 601, 608 (6th Cir. 2007) (accepting partial verdict); United States v. Patterson, 472 F.3d 767, 780–81 (10th Cir. 2006) (instructing jury on option of returning partial verdict), cert. granted, j. vacated, and remanded on other grounds, 555 U.S. 1131 (2009); United States v. Benedict, 95 F.3d 17, 19 (8th Cir. 1996) (accepting partial verdict).

In giving guidance on how to handle the situation, the circuit cautioned against premature inquiries

into whether the jury has reached a verdict as to at least some charges, or an unprompted, mid-deliberations instruction informing the jury that it has the option to return a partial verdict, may impermissibly intrude upon the jury’s deliberative process. The jury should be permitted to structure its deliberations as it wishes; and whether to return a partial verdict, and if so at what point during its deliberations, are questions that in the first instance are for the jury itself to answer. Absent the jury’s declaration that it is deadlocked as to one or more charges, asking the jury whether it has reached agreement as to any charge or giving the jury a supplemental instruction that it can return a partial verdict, might be construed by the jury as a hint from the court that it is taking too long to render a verdict. And where, as here, the jury indicates (whether on its own initiative or in response to the court’s inquiry) that it has reached agreement as to some but not all charges, an invitation to deliver a partial verdict poses the risk that the jury will “premature[ly] conver[t] … a tentative jury vote into an irrevocable one.” Jurors may not realize that in delivering a partial verdict, they are foreclosing to themselves any further consideration of the charges included in that verdict. Locking in a partial verdict may thus deprive the jury of “the opportunity to gain new insights concerning the evidence” as it bears on a count or a defendant as to which a partial verdict has been rendered, and “deprive the defendant of ‘the very real benefit of reconsideration and change of mind or heart,’” Prematurely bringing jury deliberations to an end as to some counts while deliberations on others continue is “particularly troubling” when one of the outstanding counts is closely related to a count on which
the jury is asked to render a partial verdict.

Moore, _ F.3d at _ (citations omitted).

Inviting A Partial Verdict

However, in this case, the trial "invited a partial verdict while deliberations remained ongoing and before the jury indicated that it was truly deadlocked as to any count." As the circuit explained:

Because the actual rationale underlying the jury’s verdicts (and lack thereof ) are typically not the proper subject of judicial inquiry, see Fed. R. Evid. 606(b); Tanner v. United States, 483 U.S. 107, 116–127 (1987); Gacy v. Welborn, 994 F.2d 305, 313 (7th Cir. 1993), we will not and cannot know why the jury convicted Moore on Count Two without reaching agreement on the predicate offense in Count One. See Powell, 469 U.S. at 66; Askew, 403 F.3d at 501. But we cannot discount the possibility that the jury
rendered a verdict on Count Two prematurely, without appreciating that its finding of guilt was logically irreconcilable with its continued division on the predicate offense. This is the very possibility that the district court itself recognized when the partial verdict was first returned. Nor can we rule out the
possibility that had the jury been permitted to continue its deliberations on all counts, without interruption and without the court’s solicitation of a partial verdict, the jury in weighing the evidence that bore on Count One as well as Count Two might have perceived the inconsistency and realized that it had
not, in fact, reached agreement as to all elements of the section 924(c) offense.

Moore, _ F.3d at _.


The Moore case shows the risks of asking a jury about the status and breakdown of their pending deliberations. Ironically, the parties expressed concerns over the course taken by the trial court. Because the trial court interfered with the ongoing deliberations, the conviction was vacated and remanded.


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