Argued March 2, 2016
Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 13 CR 863-1 - Edmond E. Chang, Judge.
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 sentenced 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 this response was unduly coercive and asks that his conviction 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.
Smith, a retired member of the Black Disciples gang, routinely 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 baggies 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 telephonic recordings, the searches they carried out, and the heroin they recovered. An expert witness in narcotics trafficking 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 Infiniti car during the transactions, and records from a Chica- 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 instruction, set forth in Section 7.03 of the Pattern Criminal Jury Instructions of this court, which urges jurors to use their "considered judgment, " listen to their fellow jurors, but "not surrender [their] honest beliefs" for the sake of a unanimous verdict.
On the morning of deliberations, the jury submitted several 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 situation 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 instruction. Defense counsel replied, "That is perfect."
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:
Can I get off of this Jury due to I cannot make a sound disstion ...