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U.S. v. Isom

July 19, 1996


Appeal from the United States District Court for the Middle District of Florida. (No. 91-181-CR-T-17(B). Elizabeth A. Kovachevich, Chief Judge.

Before Hatchett, Circuit Judge, Henderson, Senior Circuit Judge, and Mills,*fn* District Judge.


The appellants, Ninous Isom, Jr., Jerome Isom, James Isom, Melvin Smith and Riley Bailey, were convicted after a joint trial in the United States District Court for the Middle District of Florida of various criminal offenses and were sentenced in accordance with the United States Sentencing Guidelines.*fn1 On appeal they assert numerous arguments for the reversal of their convictions and sentences.*fn2 After careful consideration of all of the issues raised, we find that only one ground--that concerning jury selection--merits further analysis and deliberation.*fn3 After a review of all the allegations of error, including those dealing with the selection of the jury, we hold that none of the appellants' contentions warrant reversal. Consequently, we affirm their convictions and sentences in all respects.


The jury selection process began in this case on May 13, 1992. For various reasons, including difficulties posed by the projected four-week length of the trial, numerous prospective jurors were excused from service upon request. In due course, after all challenges for cause were entertained by the court and each side had exercised its allotted number of peremptory strikes, a panel of twelve jurors was selected on May 14, 1992. After these twelve were chosen, three members of the venire remained from which to pick alternate jurors. For this purpose, the trial court permitted the prosecution and the defense one peremptory challenge each.*fn4 The defense exercised its strike and the government did not, leaving two alternates. Thereafter, the defense requested an additional peremptory challenge with which to strike one of these two alternates. The court denied the request and the twelve jurors and two alternates were sworn and seated. After receiving preliminary instructions, they were excused for the day and were directed to report the following Monday, at which time opening statements were scheduled to commence.

When the court reconvened on Monday, May 19, 1992, the trial judge announced that one of the twelve regular jurors was excused because of a death in his family and another had been relieved of duty for medical reasons. After hearing no objections from the parties, those jurors were replaced by the two alternates selected on May 14, 1992, which left no stand-by jurors for the trial. The court then suggested that another venire be called for the purpose of selecting new alternates. In response to the court's solicitation of objections to this proposal, Ninous Isom's attorney requested that the two original alternates, who were at that point a part of the twelve-member panel, as well as the prospective alternate who had previously been peremptorily stricken by the defense, be returned to the proposed new pool of alternates. Counsel explained that this would enable her to use the peremptory challenges allowed in connection with striking the new alternate pool to eliminate an alternate juror that had already been seated. The trial court denied this request, reasoning that the original alternates had been selected with the prospect in mind that they would replace regular jurors who were unable to complete their service and that upon the happening of that event, they would become a part of the twelve-member panel. Defense counsel then stated:

For the record, I do object to this procedure. I think that Rule 24 specifies the number of peremptories to be given in choosing alternates based on the number of alternates to be chosen and I think that in general new Jurors or now alternates cannot be chosen once the trial has begun. I think technically with the swearing of the Jury, the trial has begun and I do oppose the procedure.

(R10-8). The court decided, however, that the need for alternate jurors was great given the predicted length of the trial and as demonstrated by the problems already encountered in choosing and keeping jurors. The court consequently ordered that alternates be selected from the new pool. This was accomplished and three new alternates were chosen and sworn.*fn5

Later, during the course of the trial, all of the parties involved agreed, for reasons not relevant to this appeal, that it might become necessary to excuse another of the original twelve jurors from deliberation on the case. The parties also stipulated that, in that event, the juror should be replaced with the first of the newly selected alternates. These circumstances eventually came to fruition. As a result of this development, the jury which deliberated on the case included one member of the second set of alternates.

On appeal, the appellants raise two points of error with respect to the selection and composition of the jury. First, they urge that they were entitled to be tried by the first twelve-member jury sworn and that the court's insistence on providing for a second panel of alternate jurors, one of whom ultimately participated in the deliberations, effected a de facto mistrial and resulted in a double jeopardy violation.*fn6 Second, the appellants contend that the court's refusal to include the originally selected alternates in the second alternate pool unfairly restricted their use of peremptory challenges.


Whether the appellants' prosecution was in violation of the Double Jeopardy Clause is a question of law subject to de novo review. United States v. Nyhuis, 8 F.3d 731, 734 (11th Cir.1993), cert. denied, U.S., 115 S. Ct. 56, 130 L. Ed. 2d 15 (1994).*fn7 The procedure adopted by the trial court to regulate the selection of jurors and the parties' exercise of peremptory challenges is reviewed for abuse of discretion. United States v. Bryant, 671 F.2d 450, 455 (11th Cir.1982).


A. The Double Jeopardy ...

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