We Can Recall

United States v. Rojas, No. 09-3007-cr (2d Cir. August 12, 2010) (Jacobs, Wesley, Chin, CJJ)

Nicholas Rojas was convicted of participating in crack conspiracy. On the written verdict form, the jury found that he was involved with five grams or more of a mixture or substance containing “cocaine base.” However, when the courtroom deputy polled the jury, he misread the verdict form, describing the drug as “cocaine,” not “cocaine base.”

The error was discovered only after the poll was completed and the jury had been “discharged” and returned to the deliberation room to “await the thanks of the court for its service.” Although the defense did not consent to having the jury returned to the courtroom to be re-polled, the judge nevertheless recalled the jury. He explained to the recalled jurors what had happened, had the deputy the verdict again, re-polled them, and discharged them again.

On Rojas’ appeal, the circuit, closing an open question, held that a district court can recall a jury that has been declared “discharged,” but that has not dispersed, to correct a technical error in the reading of the verdict.

Rojas had relied on Fed.R.Crim.Proc 31(d), which provides that the court must poll the jury “[a]fter a verdict is returned but before the jury is discharged.” But if the jury has not dispersed, this rule does not prevent the court from recalling it to correct an error in reciting the written verdict, at least not in cases where there is no prejudice to the defendant and no risk that the court’s or public’s confidence in the verdict will be undermined. In Rojas’ case, there was no uncertainty about what the verdict actually was or whether the jury’s verdict was unanimous.

In fact, a 1926 Fourth Circuit case went the same way, noting that a jury “may remain undischarged and retain its function” even if “discharge” has been “spoken by the court,” if it remains “undispersed” and within the “control of the court with no opportunity to mingle with or discuss the case with others.”