McLaughlin, Staley and Smith, Circuit Judges.
WILLIAM F. SMITH, Circuit Judge.
The appellant was tried by a jury and convicted on twenty counts of an indictment charging violations of the Gambling Tax Act of 1954 as amended, 26 U.S.C.A. §§ 4401 and 4411, and related provisions of § 7203 of the same title. On each of said counts he was fined $10,000 and sentenced to a term of imprisonment of one year. He was convicted also on a single count charging conspiracy to defraud the United States, 18 U.S.C.A. § 371, and was thereon fined $1,000 and sentenced to a term of imprisonment of one year. It was ordered that nine terms of imprisonment were to run consecutively and the others were to run concurrently with the term of imprisonment imposed on count 2. The present appeal is from the judgment entered on this verdict.
The appellant raises several questions, the most important of which is the following: whether, in the absence of both defendant and his counsel, and without notice, the substantial rights of the defendant were abridged by the action of the trial judge when, in response to an unrecorded note from the jury, he transmitted his reply, through the bailiff, without recalling the jury to the courtroom. The question is troublesome because of the wholly inadequate and badly confused record from which it is impossible to accurately reconstruct the incidents giving rise to the situation. We should add that the briefs on the question leave much to be desired.
After a trial which consumed more than four weeks, the instant case was submitted to the jury at approximately 4:15 P.M., on Wednesday, March 4, 1964. Thereafter deliberations continued until 11 P.M., when the jurors retired for the night. The following morning, at approximately 11:30 A.M., shortly after deliberations had been resumed, the jury sent a note to the judge purportedly indicating their inability to reach a verdict. Without notice to the appellant or his counsel, and in their absence, the judge instructed the jury, through the medium of the bailiff, to continue its deliberations. There was no record made of either the contents of the note*fn1 or the substance of the judge's response. Although informed of the occurrence shortly afterward, counsel for the appellant interposed no objection and failed to request corrective action by the Court.
It was obvious error for the trial judge to instruct the jury, in the absence of the appellant and his counsel, without notice to them. Shields v. United States, 273 U.S. 583, 588, 47 S. Ct. 478, 71 L. Ed. 787 (1927); United States v. Neal, 320 F.2d 533, 536 (3rd Cir. 1963); Jones v. United States, 113 U.S. App. D.C. 352, 308 F.2d 307, 311 (1962); Evans v. United States, 284 F.2d 393, 394 (6th Cir. 1960). It was likewise error to convey these instructions to the jury through the medium of the bailiff. Henderson v. United States, 204 F.2d 126 (6th Cir. 1953); Wheaton v. United States, 133 F.2d 522, 526 (8th Cir. 1943). These errors do not warrant reversal in the absence of prejudice to the substantial rights of the appellant.
However, if appellant's counsel was of the opinion that the errors were prejudicial it was his obligation to interpose a timely objection and seek corrective action by the Court. United States v. Woodner, 317 F.2d 649, 651 (2nd Cir. 1963), cert. den. 375 U.S. 903, 84 S. Ct. 192, 11 L. Ed. 2d 144; United States v. Agueci, 310 F.2d 817, 840, 99 A.L.R. 2d 478 (2nd Cir. 1962), cert. den. 372 U.S. 959, 83 S. Ct. 1013, 10 L. Ed. 2d 11; United States v. Williams, 271 F.2d 434, 437 (7th Cir. 1959), cert. den. 361 U.S. 961, 80 S. Ct. 589, 4 L. Ed. 2d 543. He should have taken this course when he learned of the errors, but failed to do so. A defendant may not sit idly by in the face of obvious error and later take advantage of a situation which by his inaction he has helped to create. United States v. Agueci, supra.
Although not required to do so, we are empowered to consider the alleged errors on the merits if they affected the "substantial rights" of the appellant. Fed. Rules Cr. Proc., rule 52(b), 18 U.S.C.A.; United States v. Provenzano, 334 F.2d 678, 690 (3rd Cir. 1964), cert. den. 379 U.S. 947, 85 S. Ct. 440, 13 L. Ed. 2d 544; Ramsey v. United States, 332 F.2d 875, 877 (8th Cir. 1964); United States v. Vasen, 222 F.2d 3, 5, 6 (7th Cir. 1955), cert. den. 350 U.S. 834, 76 S. Ct. 70, 100 L. Ed. 744; United States v. Jones, 204 F.2d 745, 749 (7th Cir. 1953), cert. den. 346 U.S. 854, 74 S. Ct. 67, 98 L. Ed. 368. The power is discretionary and should be exercised only in those situations in which the failure to do so would result in a manifest miscarriage of justice. Ibid. We do not have such a situation in the instant case.
We find upon our review of the record that the evidence as to the appellant's guilt was overwhelming and that therefore there was no reasonable likelihood that the judge's instruction to the jury influenced the verdict. We are of the opinion that under the circumstances reversal on the ground urged is not warranted. Walker v. United States, 116 U.S. App. D.C. 221, 322 F.2d 434, 436 (1953), cert. den. 375 U.S. 976, 84 S. Ct. 494, 11 L. Ed. 2d 421; United States v. Compagna, 146 F.2d 524, 528 (2nd Cir. 1944), cert. den. 324 U.S. 867, 65 S. Ct. 912, 89 L. Ed. 1422. The case of United States v. Neal, supra, upon which the appellant relies, is distinguishable from the case now before us.
Following the above described incident the jury continued deliberations until 10:50 P.M. Shortly thereafter the bailiff in charge reported to the Court that one of the female jurors had been injured and that another had become ill. We are here concerned only with the ill juror. After she was given medical attention the physician reported to the judge by telephone that she was suffering from a nervous disorder, the exact nature of which is not disclosed by the record. This information was imparted to defense counsel, who had been summoned to the judge's chambers by a deputy marshal. The physician's report was apparently never reduced to writing; in any event, its content was not made a part of the record. The juror was again examined by the physician on the following morning. It would appear that the results of this examination were reported to the Court but were likewise not incorporated into the record.
Counsel for the parties met with the trial judge in his chambers on the morning of Friday, March 6, 1964, at which time they were informed that the juror was still ill but that the jury would be able to resume deliberations later in the day. Defense counsel objected to the resumption of deliberations and moved for a mistrial and the discharge of the jury. He argued that because of the illness of the juror, further deliberations might result "in some sort of a compromise verdict." The motion was denied and jury deliberations were suspended until the following day.
On the morning of Saturday, March 7, the juror was again examined by the physician, who reported to the deputy marshal that she was still ill. However, the condition of the juror was apparently such that the jury was able to resume deliberations at 2:45 P.M. Shortly thereafter the information which the deputy marshal had received from the physician was transmitted to the trial judge in the presence of counsel. Defense counsel again renewed his motion for a mistrial and the discharge of the jury on the grounds urged earlier. The motion was denied. The trial judge then asked counsel if they would consider stipulating "that [the] case could continue * * with a jury of eleven." Defense counsel refused to so stipulate.
While counsel for the respective parties were in conference with the judge in chambers, the judge received a second note from the jury reading as follows:
"I am sorry to inform you that the jury has not been able to reach a verdict. We are deadlocked without any hope, we believe, of any change and feel it useless to deliberate any further. I am not familiar with procedure, but since the majority of the jurors feel that a meeting of the foreman with you might be helpful, I am making such a request."
Again the trial judge failed to recall the jurors to the courtroom. He stated to counsel: "We can't have a meeting with the foreman, but if they want a meeting, they could all come into court, but I don't know what would be accomplished by that. So I think we will just tell them we got their message and tell them to keep on working." Defense counsel interposed no objection to the proposed action of the trial judge and made no request that the jury be recalled to the courtroom for further instructions. The bailiff was instructed to tell the jurors, "I have got their message and I suggest they keep on working." We assume that this message was conveyed to the jury, which continued its deliberations for approximately five hours. A verdict was returned at 8:30 P.M., and thereafter, at the request of defense counsel, the jurors were polled and each assented to the verdict as reported by the foreman.
When the jury returned its verdict the physician who had examined the ill juror was available in the courtroom and this was made known to the Court. Defense counsel requested that the physician be permitted to make his report; this occurred at 9:30 P.M. The Court denied the request stating, "I am not going to bring that up here at this time at all." However, it must be noted that on the previous day the trial judge advised defense counsel that in the event of conviction he could offer the testimony of the physician in support of a motion for a new trial. This motion was made in due course but neither the report of the physician nor his testimony was offered in support of it. It is reasonable to assume that the failure of defense counsel to produce this evidence was prompted by his deliberate choice.
The appellant challenges the verdict as void on the ground that it was the product of judicial coercion. He argues that under the circumstances of this case the prolonged confinement of the jury, coupled with the ...