`

Robbery convictions upheld despite failure to swear potential jurors

November 13, 2017

The 7th Circuit Court of Appeals has upheld a man’s robbery-related convictions despite the district court’s initial failure to administer an oath of truthfulness to potential jurors, finding such an oath is not explicitly required.

In United States of America v. Elmer F. Wiman, 16-3929, Elmer Wiman was captured on surveillance video robbing a credit union at gunpoint. Wiman fled, but police officers caught up with him and recovered a cooler from the credit union containing sunglasses, a hat, gloves and handgun, plus $3,084 in cash in his vehicle.

Wiman confessed to the robbery while at the police station and was indicted on three counts: robbing the credit union, using a firearm during and in relation to a crime of violence, and possessing a firearm as a felon. After he failed to suppress the evidence against him and his confession, Wiman’s case proceeded to trial.

However, before voir dire for Wiman’s trial, the late Judge Larry J. McKinney of the U.S. District Court for the Southern District of Indiana failed to swear the venire to answer all questions truthfully. Once McKinney realized the oversight, he asked the potential jurors whether their answers would have changed had he administered the oath.

Though the jurors indicated their answers would not have changed, Wiman’s counsel moved for a mistrial. But after confirming from the jurors a second time that their answers would not have changed had the initial oath been administered, McKinney allowed the trial to proceed.

After two days of testimony, Wiman was found guilty as charged and was sentenced to 110 months in prison. Wiman then filed the instant appeal, revisiting the issue of McKinney’s failure to issue the initial oath to the venire, but the 7th Circuit Court of Appeals upheld Wiman’s convictions Monday.

In a unanimous per curiam opinion, the appellate court disagreed with Wiman’s contention that the failure to administer the oath was a structural error. Instead, the court said there is no rule requiring such an oath to be administered to a venire, and without that requirement, McKinney’s oversight cannot be considered a structural error.

The appellate court went on to write that harmless-error review was appropriate in this case, and that such harmless error occurred because Wiman was not prejudiced.

“Even without being administered the formal oath, the jurors were admonished by the judge at the outset of jury selection to comply with the oath’s directions – to participate fully and honestly in voir dire,” the court wrote. “Additionally, once the district court realized its mistake, it immediately took remedial steps: it administered the proper oath and then questioned the jurors twice – both collectively and individually – to confirm that their answers would not have changed had they been sworn at the beginning of voir dire.”

ADVERTISEMENT

Recent Articles by Olivia Covington