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UNITED STATES v. LOCKHART

November 14, 1973

UNITED STATES of America
v.
Sylvester LOCKHART and Donald Edward Maddox, Jr.


Edward R. Becker, District Judge.


The opinion of the court was delivered by: BECKER

EDWARD R. BECKER, District Judge.

 At the conclusion of a three-day jury trial, the foreman of the jury announced a guilty verdict on all three counts of an indictment charging defendant Donald Maddox (Maddox) with illegal distribution of heroin on two separate occasions and with conspiracy. *fn1" The events which occurred during a poll of the jury are the sole grounds of substance in Maddox's motion for a judgment of acquittal or a new trial. *fn2"

 The jury poll was requested by Maddox's counsel as a matter of routine. The poll proceeded uneventfully until it reached juror number 4. Thereupon the following occurred:

 
THE COURT: Mrs. Garro, how do you find the defendant, Donald Maddox, guilty or not guilty [as to Count I]?
 
JUROR NO. 4: Guilty.
 
THE COURT: And as to Count 2?
 
JUROR NO. 4: I am not sure.
 
THE COURT: As to Count 2 you say you are not sure?
 
JUROR NO. 4: I'll say guilty.
 
THE COURT: And as to Count 3?
 
JUROR NO. 4: Guilty.

 Defense counsel thereupon moved for a mistrial. The prosecutor asked to see us at side-bar. There ensued an off-the-record discussion in which the prosecutor asked that we repoll juror No. 4 and defense counsel asked that we repoll juror No. 2 who had hesitated before announcing his verdict during the poll. The following colloquy thereupon occurred at side-bar:

 
MR. BURT: I think, perhaps, we should repoll that juror, Mrs. Garro.
 
THE COURT: I will repoll Juror No. 2, also. Juror No. 2, I think, has a nervous defect, and I think that is what caused his hesitation.
 
Is there a request I repoll Juror No. 4?
 
MR. HUNTER: And No. 2.

 We deferred ruling on the mistrial motion and concluded the poll. The remaining jurors announced guilty verdicts on all three counts.

 We then commenced the repolling of jurors No. 2 and No. 4. What occurred was as follows:

 
THE COURT: Now, I have been requested to repoll two jurors, Jurors No. 2 and No. 4.
 
Mr. Eby [Juror No. 2], would you stand again.
 
How do you find the defendant, Donald Edward Maddox, as to Count 1?
 
JUROR NO. 2: Guilty.
 
THE COURT: And as to Count 2?
 
JUROR NO. 2: Your Honor, may I ...

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