Unpublished Disposition, 877 F.2d 64 (9th Cir. 1987)

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U.S. Court of Appeals for the Ninth Circuit - 877 F.2d 64 (9th Cir. 1987)

Frederic J. SHELTON, Plaintiff-Appellant,v.REICHHOLD CHEMICALS, INC., a Delaware Corporation, Defendant-Appellee.

No. 88-3636.

United States Court of Appeals, Ninth Circuit.

Submitted June 8, 1989.* Decided June 13, 1989.

Before GOODWIN, WRIGHT, and WILLIAM A. NORRIS, Circuit Judges.


MEMORANDUM** 

In this case brought under the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et. seq. (1982), the jury returned a verdict in favor of appellee Reichhold Chemicals, Inc., appellant Shelton's former employer. In this appeal, Shelton challenges the district court's jury instructions, voir dire procedures, and the order denying Shelton's post-trial Rule 59 motion. We affirm.

Shelton's challenge to the jury instructions is baseless. Shelton argues that in giving the instructions the district court should not have relied upon Cassino v. Reichhold Chemicals, Inc., 817 F.2d 1338 (9th Cir. 1987), cert. denied, 108 S. Ct. 785 (1988). However, Shelton does not argue that the district court misconstrued or misapplied Cassino. Rather, he simply argues that the Cassino holding was misguided and should be overruled. Because a three-judge panel is not free, absent intervening en banc or Supreme Court authority, to overrule or modify a previous decision of this court, see, e.g., LeVick v. Skaggs Companies Inc., 701 F.2d 777, 778 (9th Cir. 1983), we reject Shelton's first claim.

Next, Shelton argues that the district court abused its discretion by failing to give his counsel adequate time to question each of the jurors at voir dire. This failure, argues Shelton, prevented Shelton's counsel from uncovering an alleged deficiency in the use of the English language by juror Zahlten. We find this claim to be meritless as well.

Local Rule 47, Rules of the United States District Court for the Western District of Washington, provides, in relevant part,

(a) Examination of Jurors. Unless otherwise ordered by the Court, the examination of trial jurors shall be conducted by the Court. Counsel shall submit to the Court any questions which he desires the Court to propound to the jurors at the time and in the manner provided in the pretrial order.

By the terms of this Local Rule, the district court need not permit counsel to examine prospective jurors at all. The district court in the instant case certainly did not abuse its discretion by questioning the jurors itself, and then allowing a few minutes for each counsel to question the jurors.

Finally, Shelton claims that the district court abused its discretion by not granting his Rule 59 motion for a new trial. Shelton based this motion on a statement made to the district court by juror Zahlten that she was having trouble in the jury deliberations because of her difficulty with the English language. Ms. Zahlten made this statement on December 24, 1987, one day after the jury began its deliberation, and immediately after the district court had informed the jury that it would have to return the following Monday after Christmas to continue deliberating.

On the record before us, we hold that the district court did not abuse its discretion in denying the Rule 59 motion. Ms. Zahlten had responded to nine voir dire questions asked by the district court and fifteen voir dire questions asked by Shelton's counsel without any apparent difficulty with the English language. She sat through nine days of trial without mentioning any problems. Moreover, upon learning that it would be no simple matter for an alternate to replace her, Ms. Zahlten made no further comment regarding her inability to understand the proceedings. Given this record, we think that the district court was entitled to find that Ms. Zahlten was in fact capable of understanding and participating in the jury deliberation proceedings.

This makes the instant case distinguishable from United States v. Barrett, 703 F.2d 1076 (9th Cir. 1983), upon which appellant relies. In Barrett, where a juror had informed the trial judge that he had been asleep during some of the trial, we held that "under the particular circumstances of this case, the trial judge could [not] properly take judicial notice of the fact that 'there was no juror asleep during this trial' without making further inquiry into the matter." Id. at 1083. In arriving at this conclusion, we "place [d] some significance on the fact that the trial judge did not assert his knowledge that no juror had been asleep when the question was first raised [before jury deliberation], but only asserted this knowledge after the jury had returned a verdict of guilty." Id. at n. 11. In Barrett, then, we ruled that there was no adequate basis in the record to support the district court's conclusion that "there was no juror asleep during [that] trial." By contrast, the record in the instant case provides ample support for a finding by the district court that Ms. Zahlten was capable of understanding the proceedings.

Appellant's reliance on United States v. Okiyama, 521 F.2d 601 (9th Cir. 1975), is also misplaced. In Okiyama, the jurors were unable to complete the juror qualification form, thereby raising the statutory presumption of juror ineligibility created by 28 U.S.C. § 1865(b) (2) (1982). As we noted in Okiyama, the failure of the district court to "require prospective jurors to answer all questions on the forms, especially those concerning the level of educational achievement, deprived the court of information from which it could have determined whether prospective jurors were or were not language qualified." Id. at 604. In the instant case, Ms. Zahlten did satisfactorily complete the juror qualification form, as well as answer questions at voir dire. Accordingly, we cannot say the district court's decision not to grant a new trial on the basis of one statement by Ms. Zahlten was an abuse of discretion. The judgment is

AFFIRMED.

 *

The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a) and Ninth Circuit Rule 34-4

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Circuit Rule 36-3