United States v. John Smith , 818 F.3d 299 ( 2016 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 15-1901
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JOHN M. SMITH,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 13 CR 863-1 — Edmond E. Chang, Judge.
____________________
ARGUED MARCH 2, 2016 — MARCH 21, 2016
____________________
Before WOOD, Chief Judge, and BAUER and KANNE, Circuit
Judges.
BAUER, Circuit Judge. John Smith was found guilty by a
jury of distributing heroin, see 21 U.S.C. § 841(a)(1), and sen-
tenced to 216 months’ imprisonment. During deliberations
the jury sent four notes to the judge who conferred with the
parties before responding. In the fourth note, a juror asked
to be removed from the case, but the judge responded that
all the jurors should continue deliberating. Smith argues that
2 No. 15-1901
this response was unduly coercive and asks that his convic-
tion be vacated. The government argues that Smith waived
any challenge to the court’s response. We agree that Smith
waived his challenge and affirm the judgment.
I.
Smith, a retired member of the Black Disciples gang, rou-
tinely distributed heroin near Garfield Park on Chicago’s
West Side. On four occasions over about a month, he sold
heroin to a confidential source of the FBI. Each time, the sale
took place as follows: first the FBI would record telephone
conversations between Smith and the source to arrange the
buy. Then, in preparation for the sale, the FBI would search
the source and his car for contraband, provide the source
with money for the buy, and equip the source with an audio
recorder. During each sale, FBI agents would conduct audio
and visual surveillance from nearby positions. Afterward,
agents would search the source and send the recovered bag-
gies of drugs to a lab, which tested the contents positive for
heroin.
Smith’s trial lasted three days. The confidential source
did not testify, but two FBI agents testified about the tele-
phonic recordings, the searches they carried out, and the
heroin they recovered. An expert witness in narcotics traf-
ficking testified as to the meaning of coded language in the
recorded telephone calls and the market prices at that time
for heroin in that part of Chicago. Another expert witness
testified to the lack of usable fingerprint evidence on the
baggies. Surveillance agents testified that Smith drove an In-
finiti car during the transactions, and records from a Chica-
No. 15-1901 3
go-based Infiniti dealership definitively linked the car to
Smith. Smith presented no evidence.
After closing arguments the court instructed the jury on
the applicable law. It read aloud the so-called Silvern instruc-
tion, set forth in Section 7.03 of the Pattern Criminal Jury In-
structions of this court, which urges jurors to use their “con-
sidered judgment,” listen to their fellow jurors, but “not sur-
render [their] honest beliefs” for the sake of a unanimous
verdict.
On the morning of deliberations, the jury submitted sev-
eral notes to the court. The first note simply requested copies
of the verdict form. The second note requested clarification
about whether the definition of “distribution” covered a sit-
uation where the defendant handed the drugs to someone
else to give to the source. The court conferred with counsel
and Smith, and then wrote the jury that it already had all the
applicable instructions on the definition of “distribution.”
Before it could respond to the jurors’ second note, the
court received a third note. In that note a juror expressed
concern about being bullied by another juror and asked to be
removed from the case. The parties and the court conferred,
and defense counsel requested that the court tell the jurors to
continue deliberating. The court proposed that it repeat the
Silvern instruction. Defense counsel did not object. The court
then prepared a note to the jury that read, “In response to a
note concerning your deliberations, I am directing all of you
to re-read the attached instruction which was previously
provided to you,” along with another copy of the Silvern in-
struction. Defense counsel replied, “That is perfect.”
4 No. 15-1901
An hour later another juror submitted a fourth note,
which is the subject of this appeal. In the note, this juror
asked to be removed from the jury:
Dear Judge,
Can I get off of this Jury due to I cannot make a
sound disstion [sic] of this case.
[Juror’s Signature]
The court read the note aloud and then asked defense
counsel his position. Counsel responded, “Continue to de-
liberate.” But the government wanted to bring the jury back
into the courtroom and have them listen again to the Silvern
instruction. Defense counsel wondered aloud whether the
note was a sign of an impending deadlock, but the govern-
ment and court were disinclined to conclude that the jury
was deadlocked based on one juror’s note. Defense counsel
responded: “Your honor, under oath she was asked if she
would listen to the Court’s instructions and she would ren-
der a fair verdict. I would ask that she be told, not her her-
self, but the jurors be told to continue to deliberate.” He also
noted that now there were three or four jurors who had a
“problem” with the case, and he hoped this might benefit
Smith.
The court adopted the language that defense counsel re-
quested as follows: “In response to jury note 4, each of you is
part of the jury that has been picked to decide this case. Each
of you must continue to deliberate.” The court turned to de-
fense counsel and asked, “How is that, [defense counsel]?”
Counsel answered, “Perfect.”
No. 15-1901 5
Twenty minutes later, the jury informed the court that it
had reached a verdict. The jury found Smith guilty on all
counts. The court polled each juror, and each assented to the
guilty verdict.
Seven months later, after obtaining new counsel, Smith
moved for a new trial on the basis that the court’s response
to the fourth note was unfairly coercive because it did not
remind the jurors to hold onto their convictions. He argued
that the court’s exhortation to keep deliberating, despite the
jurors’ complaints of being bullied and being unable to make
a sound decision, forced the jurors to resign their beliefs and
vote guilty. The district court denied the motion as untimely,
and in any event, the court continued, the challenge to the
court’s response to the fourth juror note was “waived as
waived can be.” The court explained that it formulated its
response to express Smith’s request that the jury “continue to
deliberate,” and Smith agreed that the court’s formulation
was “perfect.” And the challenge was meritless, the court
added, because it had instructed the jurors aloud and twice
in writing to deliberate with an open mind but not to sur-
render their beliefs.
Smith was sentenced to 216 months’ imprisonment on
each count to run concurrently and eight years’ supervised
release.
II.
Smith’s only argument on appeal is that the district
court’s response to the fourth note was coercive. He argues
that the court should have admonished the jury not to relin-
quish their convictions to reach a verdict. The government
argues that Smith affirmatively waived any challenge to the
6 No. 15-1901
court’s response by agreeing with it. It contends that defense
counsel’s reply of “perfect” to the court’s proposed response
constituted “unmistakable approval.”
We agree with the government and the district court that
Smith waived his challenge to the court’s response by af-
firmatively proposing the formulation of the response. When
a defendant affirmatively approves an instruction to the jury,
he waives his challenge. United States v. Kirklin, 727 F.3d 711,
716 (7th Cir. 2013); United States v. DiSantis, 565 F.3d 354, 361
(7th Cir. 2009). Smith’s unequivocal answer of “perfect”—a
more affirmative answer than, say, “no objection”—
constitutes a waiver. See United States v. Ajayi, 808 F.3d 1113,
1121 (7th Cir. 2015) (“Ordinarily, we treat an affirmatively
stated “no objection” to a jury instruction as a waiver.”).
And the district court was under no obligation to provide
the Silvern instruction for a fourth time; it is within the
court’s discretion simply to tell the jury to continue deliber-
ating. United States v. Degraffenried, 339 F.3d 576, 580 (7th Cir.
2003). “[A] bare instruction to keep deliberating does not
warrant reversal.” United States v. Coffman, 94 F.3d 330, 336
(7th Cir. 1996).
III.
We AFFIRM the judgment.