CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
Burger, Douglas, Brennan, Stewart, White, Marshall, Blackmun, Powell, Rehnquist
MR. CHIEF JUSTICE BURGER delivered the opinion of the Court.
Petitioner was convicted by a jury on five counts of an indictment charging him with knowingly and willfully making oral threats "to take the life of or to inflict bodily harm upon the President of the United States," in violation of 18 U.S.C. § 871(a). The Court of Appeals affirmed, 488 F.2d 512 (CA5 1974), and we granted certiorari to resolve an apparent conflict among the Courts of Appeals concerning the elements of the offense proscribed by § 871(a). 419 U.S. 824 (1974). After full briefing and argument, however, we find it unnecessary to reach that question, since certain circumstances of petitioner's trial satisfy us that the conviction must be reversed.
The record reveals that the jury retired for deliberation at 3 p.m. on the second day of petitioner's trial. Approximately two hours later, at 4:55 p.m., the jury sent a note, signed by the foreman, to the trial judge, inquiring whether the court would "accept the Verdict -- 'Guilty as charged with extreme mercy of the Court.'" Without notifying petitioner or his counsel, the court instructed the marshal who delivered the note "to advise the jury that the Court's answer was in the affirmative."
Five minutes later, at 5 p.m., the jury returned, and the record contains the following account of the acceptance of its verdict: S
"THE COURT: We understand from a note you sent to the Court the verdict finds him guilty on all five counts but that you wish to recommend extreme mercy; is that correct?
"THE FOREMAN: Yes, Your Honor.
"THE COURT: Will you please poll the jury. (Whereupon the jury was polled and all jurors answered in the affirmative.)
"THE COURT: Let the verdict be entered as the judgment of the Court. Certainly the Court will take into consideration your recommendation of mercy, but before we can act upon the case, we will have the Probation Officer make a pre-sentence investigation report. We do not know whether the man has a prior criminal record or not and we will certainly take into account what you have recommended." 2 Tr. 192-193.*fn1
Generally, a recommendation of leniency made by a jury without statutory authorization does not affect the validity of the verdict and may be disregarded by the sentencing judge. See Cook v. United States, 379 F.2d 966, 970 (CA5 1967), and cases cited. However, in Cook, the Court of Appeals held that an exception to this general rule, requiring further inquiry by the trial court, arises where the circumstances of the recommendation cast doubt upon the unqualified nature of the verdict. Assuming the validity of the exception, we need not decide whether either the factual differences between the recommendation in Cook and that in the instant case, or petitioner's failure to request further inquiry prior to the recording of the verdict, see Fed. Rule Crim. Proc. 31(d), would suffice to distinguish the cases for purposes of appropriate appellate relief. See 8 J. Moore, Federal Practice p31.07 (2d ed. 1975). We deal here not merely with a potential defect in the verdict.
In Fillippon v. Albion Vein Slate Co., 250 U.S. 76 (1919), the Court observed "that the orderly conduct of a trial by jury, essential to the proper protection of the right to be heard, entitles the parties who attend for the purpose to be present in person or by counsel at all proceedings from the time the jury is impaneled until it is discharged after rendering the verdict." Id., at 81. In applying that principle, the Court held that the trial judge in a civil case had "erred in giving a supplementary instruction to the jury in the absence of the parties and without affording them an opportunity either to be present or to make timely objection to the instruction." Ibid.
In Shields v. United States, 273 U.S. 583 (1927), the Court had occasion to consider the implications of the "orderly conduct of a trial by jury" in a criminal case. The trial judge had replied to a written communication from the jury, indicating its inability to agree as to the guilt or innocence of the defendant, by sending a written direction that it must find the defendant "guilty or not guilty." The communications were not made in open court while the defendant and his counsel were present nor were they advised of them. The jury thereupon found Shields guilty of one count with a recommendation of mercy. This Court held that a previous request by counsel for Shields and the Government that the trial judge hold the jury in deliberation until they had agreed upon a verdict "did not justify exception to the rule of orderly conduct of jury trial entitling the defendant, especially in a criminal case, to be present from the time the jury is impaneled until its discharge after rendering the verdict." Id., at 588-589.
As in Shields, the communication from the jury in this case was tantamount to a request for further instructions. However, we need not look solely to our prior decisions for guidance as to the appropriate procedure in such a situation. Federal Rule Crim. Proc. 43 guarantees to a defendant in a criminal trial the right to be present "at every stage of the trial including the impaneling of the jury and the return of the verdict." Cases interpreting the Rule make it clear, if our decisions prior to the promulgation of the Rule left any doubt, that the jury's message should have been answered in open court and that petitioner's counsel should have been given an ...