OPINION AND ORDER DENYING DEFENDANTS' JOINT MOTION FOR MISTRIAL (ECF NO. 426)
PAUL D. BORMAN, District Judge.
On March 3, 2015, Defendants filed the instant motion for mistrial. (ECF No. 426). The Government has not filed a timely response.
The instant case involved a fifteen count, seven Defendant indictment against the Phantom Outlaw Motorcycle Club charging, inter alia, RICO Conspiracy, 18 U.S.C. § 1962(d); Assault with a Dangerous Weapon in Aid of Racketeering, 18 U.S.C. § 1959(a)(3)-2; Use and Carry of a Firearm During, and in Relation to a Crime of Violence, 18 U.S.C. § 924(c), and Conspiracy to Commit Murder in Aid of Racketeering, 18 U.S.C. § 1959(a)(5); Felon in Possession of a Firearm, 18 U.S.C. § 922(g)(1).
The instant motion relates to a situation that occurred during trial when a sitting juror sent a note to the Court after the conclusion of the Court session on Thursday, February 19, 2015, stating that after jury service on the previous day, Wednesday, February 18, 2015, he had been followed by a silver Ford Taurus containing two occupants while driving from the Courthouse back to his community. (Redacted Note attached as Exhibit A).
Relevant Legal Precedent
The Court then consulted and applied the relevant precedent established by the Supreme Court in its two decisions in Remmer v. United States, 347 U.S. 227 (1954) ("Remmer I") and 350 U.S. 377 (1956) ("Remmer II"), and by the Sixth Circuit in its two decisions in United States v. Corrado, 227 F.3d 528 (6th Cir. 2000) ("Corrado I") and 304 F.3d 593 (6th Cir. 2002) ("Corrado II").
In Remmer, the allegation was that one juror had been directly approached by "an outsider, with a suggestion that its juror could make some easy money if he would make a deal with petitioner Remmer". Remmer II, 350 U.S. at 378. The trial judge reported the matter to the FBI for an investigation; he did not report it to Defendant and his counsel.
In Remmer I, the Supreme Court held:
We do not know from this record, nor does the petitioner know what actually transpired, or whether the incidents that may have occurred were harmful or harmless. . . . The trial court should not decide and take final action ex parte on information such as was received in this case, but should determine the circumstances, the impact thereof upon the juror, and whether or not it was prejudicial, in a hearing with all interested parties permitted to participate.
Remmer I, 347 U.S. at 229-30. The Supreme Court remanded "to the District Court with directions to hold a hearing to determine whether the incident complained of was harmful to the petitioner . . ." Id.
The Supreme Court in Remmer II, focused on "the question of the effect of its extraneous communications with the juror upon the petitioner's right to a fair trial," Remmer II, 350 U.S. at 378, pointing out that the juror's testimony made it "quite evident that he was a disturbed and troubled man from the date of the Satterly contact until after the trial." Id. at 381.
In Corrado I, an individual told a defendant that the had a "friend" on the jury who could assist in obtaining a favorable verdict for the defendants. Corrado I, 227 F.3d 528, 533 (6th Cir. 2000). The Sixth Circuit, citing United States v. Rigsby, 45 F.3d 120, 124-25 (6th Cir. 1995), held that "when there is a credible allegation of extraneous influences, the court must investigate sufficiently to assure itself that constitutional rights of the criminal defendant have not been violated." Corrado I, at 536. The Sixth Circuit held that "the nature and scope of the investigation required" was set forth in Remmer v. United States, 74 S.Ct. 450 (1954). The Sixth Circuit found insufficient the district judge's "three broadly-worded questions to the jury as a group". Corrado I, at 537, and remanded the case to the district court for a Remmer hearing.
In Corrado II, the Sixth Circuit noted that it had previously held that:
the district court erred in not holding a Remmer hearing to determine whether the jury verdict had been tainted by an attempted act of jury tampering.
Corrado II, 304 F.3d 593, 597 (6th Cir. 2002) (internal footnote omitted, citing Corrado I, 227 F.3d at 537). The Sixth Circuit, affirming the district court conclusions post-Remmer hearing, found that there was no evidence to establish prejudice by the jurytampering conduct or any evidence to establish that the jury's verdict was tainted.
The defendants' arguments that this court should presume that the jury's verdict in the present case was tainted are contrary to binding precedent and thus must be rejected. See United States v. Orlando, 281 F.3d 586, 597-98 (6th Cir. 2002) (reaffirming that the burden is on the party claiming juror bias and that a reasonable possibility of taint is insufficient to carry that burden).
Corrado II, at 603. Thereafter, the Sixth Circuit stated:
We have previously held, however, that a juror's testimony regarding his or her own impartiality should not be treated as "inherently suspect." . . . In [United States v.] Pennell, we explicitly held "that if a district court views juror assurances of continued impartiality to be credible, the court may rely upon such assurances in deciding whether a defendant has satisfied the burden of proving actual prejudice." 737 F.2d [521,] 533 [(6th Cir. 1984)].
Corrado II, 304 F.3d 603. The Corrado II opinion further held:
Given Pennell, we hold that the district court did not abuse its discretion in the present case. The district court questioned the jurors individually about the jury tampering incident and news coverage of it and determined that their negative responses to the questions were reliable.
Id. at 604.
The Instant Case
On Friday morning, February 20, 2015, the morning after receiving the note, the Court provided the parties with a copy of the note, and conferred with them about the Court's intentions. The Court then conducted an in camera on-the-record separate voir dire of each of the sixteen sitting jurors in the presence of counsel; defense counsel had waived the presence of the Defendants.1
The Court began the individual juror voir dire with the juror-author of the note, questioning him as to the specifics of his recollection regarding: (1) what occurred that led to him writing the note; (2) whether he spoke about the occurrence with his fellow jurors; (3) if yes, what did he say; (4) given this occurrence, could he, in all fairness to the Defendants, continue to serve as a fair and unbiased juror in this case and give the Defendants a fair trial. The Court also ordered that he not discuss the incident with this fellow jurors upon his return to the jury room.
Thereafter, the Court individually questioned each of the remaining fifteen jurors with regard to: (1) whether the juror who authored the note spoke to them about the note; (2) if yes, did they understand, and could they accept the fact that none of the Defendants or their families or friends were involved in the incident; (3) could they continue to serve as fair and unbiased jurors in this case.
During that individual voir dire, one juror, who could not fully accept the fact that the Defendants or their families or friends were not involved in the incident, was dismissed in Court with the consent of all counsel, and immediately separated from the other jurors. Thereafter, based on the questions to the jurors and their responses, the Court concluded that they could continue to sit as fair and unbiased jurors in this case. The Court denied Defendants' oral motion for a mistrial.
Analysis
In the instant case, this Court determined the circumstances of the incident and its impact upon the author-juror and the other jurors, and also whether or not the incident was prejudicial to the Defendants' right to a fair trial in a hearing with defense counsel present. Further, as stated on page 14 of the trial transcript, the Court permitted defense counsel to participate (defense counsel Arthur Weiss) by providing written requested questions for the Court to consider, and in some cases, to incorporate into its questions to the jurors. Thus, in response to defense counsel's suggestions, the Court added:
Let me ask, you understand that none of the defendants, in this case, are involved in this, do you understand that?
(Trial Tr., 2/20/2015, p. 14:6-13). Thereafter, defense counsel Michael Rataj requested that the Court "drill a little bit deeper" with regard to the possible involvement by Defendants in this incident. (Trial Tr. 2/20/2015, p. 16:12-24). Based on that request, the Court added the phrase "or anyone associated with them" to its question, to read:
Do you understand that none of the defendants or anyone associated with them is involved in this, you understand that?
(Trial Tr. 2/20/2015, at 17:9-11).
Thus, in the instant case, this Court responded immediately to the juror's note, and held a hearing with the defense counsel present to determine the circumstances of the incident, the impact upon the author-juror, and then upon each of the other jurors, and also to evaluate whether or not the incident was prejudicial.
Additionally, the Court also notes that the circumstances in this case are distinguishable from those in Remmer and Corrado. In the instant case, the incident at issue did not involve any contact or communication with the juror, or gesture toward the juror, nor did anyone approach the juror, and there was no aggressive driving toward the juror.
Conclusion
The Court concludes that the record made in the Court on February 20, 2015 satisfies the requirements set out in Remmer and Corrado. The Court further concludes that the responses by the jurors to the questions asked by the Court, which included additional questions suggested by the attorneys, were thoughtful, credible, and clearly established that the jurors were not prejudicially impacted by the incident, and, based on their responses, that the Defendants would, and indeed did, receive a fair jury trial. Accordingly, the Court DENIES Defendants' Motion for a Mistrial.
SO ORDERED.
EXHIBIT A
EXHIBIT B
Jury Trial
Friday, February 20, 2015
MR. PITTS: May it please the Court, Your Honor. Byron Pitts, ready and on behalf of Brian Jackson.
MS. BURTON: And yes, good morning, Your Honor. May it please the Court. Delphia Burton, on behalf of Bryan Sorrell.
MR. WEISS: Good morning, Your Honor. May it please the Court. Arthur Weiss, on behalf of Mr. Jackson.
THE COURT: Okay. Have a seat, please.
I'm going to pass out the note that I received from the juror and I whited out the streets that he mentioned. What I intend to do is to begin with Juror Number 11 and call him in and ask him about that and then following the Supreme Court precedent in Remmer, R-E-M-M-E-R, 350 U.S. 377. This is without — yeah, stay out for a minute. Thank you.
And then also Sixth Circuit in U.S. versus Corrado, C-O-R-R-A-D-O, 227 F.3d 528. We'll speak to this juror and then call in other jurors and ask the appropriate questions and then going through that and ask, "Does this experience prevent you from continuing as a fair and unbias juror, in this case", if they have heard about it.
So, my next door neighbor, Judge Goldsmith, I don't know if any of you were in the Norwood trial with him in Flint, had a similar situation. And I note that, in that case, the defendants were not present at the time he questioned the jurors. And so I wanted to ask Defense counsel if they want a caucus and see if they want the defendants present or not in this matter?
MR. WEISS: Your Honor, if I may, the Defense attorneys have already caucused among ourselves and we would prefer that the defendants not be present during this colloquy between the Court and the jurors.
THE COURT: Okay. The Government okay with that, too?
MR. GABEL: Yes, Your Honor, the Government have no objection to that.
There's one additional issue?
THE COURT: Yes.
MR. GABEL: I don't know if the Court was considering having this in-camera?
THE COURT: Yes, the door should be closed, so we'll have the spectators leave and this was done — and yes, thank you for raising it. This was done in Judge Goldsmith's and I know they did an in-camera hearing, in that case.
MR. RATAJ: Your Honor, just —
THE COURT: Well, let's wait until the door is closed. Do you know how to carefully push that thing? Thanks. I want to thank Jodi again for helping us.
MR. PITTS: Judge, can I bring something up before we get started? Not on this matter, but before we get into this whole process.
THE COURT: Yeah.
MR. PITTS: If I may, I'm not sure if you're aware, we have a verdict down there in Judge Cleland's. At 9:30, they're going to take it and as counsel of choice, I'd like to be present for that?
THE COURT: I'm waiting for a call from Judge Cleland because yesterday he indicated he did not believe you were necessary since there are two other lawyers representing.
MR. PITTS: That's been his position since day one, Your Honor.
THE COURT: In this proceedings, not during the trial. But have a seat, we'll wait for him to call when he hits the building.
MR. PITTS: Just for the record, I would like to go, as counsel of choice.
THE COURT: I understand. I understand. But we've got a serious issue to deal with, so let's stay with that.
Okay. Was there a second thing you wanted to raise other than in-camera?
MR. GABEL: That was it.
"Confidential-Nicholson, Et Al Hearing"
THE COURT: Ms. Tofil, can you please bring in Juror Number 11?
(Juror #11 called into the courtroom, questioned by The Court.)
THE COURT: Good morning, sir.
JUROR #11: Good morning.
THE COURT: Thank you for being timely. We received a note that you gave to Ms. Tofil yesterday and I'm going to leave off the street names so that it doesn't specify where.
But in the note it was dated — it says, "I was followed by a gray Taurus from the courthouse to . . .", and then you named the streets, which are quite a distance from the courthouse. Did this happen — it didn't happen yesterday but it happened?
JUROR #11: The day before.
THE COURT: Wednesday?
JUROR #11: Yes, sir.
THE COURT: Okay. 2-18-15. Okay. Did the car pull up next to you or was it behind you?
JUROR #11: Behind me.
THE COURT: Okay. Did you see the person or persons in the Taurus?
oultOR #11: Because my windows on my side are tinted, but my back window isn't, so I could see from my rearview mirror. But when I pulled into the gas station, I did get a glance at the female.
THE COURT: Okay. So, you pulled into a gas station and that car kept going?
JUROR #11: No, it pulled into the gas station with me. I went in the gas station, made my purchase. They never got out the car. So, I left the gas station and I went to the store across the street. They followed me out the parking lot but didn't come in the store at the parking lot.
THE COURT: Okay. Were they pumping gas at the gas station?
JUROR #11: No, sir.
THE COURT: They just sat at the gas station?
JUROR #11: Yes, sir.
THE COURT: Okay. Did you get any words from the people?
JUROR #11: No.
THE COURT: Were there any gestures? Was it one person?
JUROR #11: Two.
THE COURT: Two people, okay.
JUROR #11: Yes.
THE COURT: Female driver?
JUROR #11: Male driver, female passenger.
THE COURT: Any gestures from the people in the car?
JUROR #11: No, sir.
THE COURT: Did you get the license number?
JUROR #11: No, sir.
THE COURT: Okay. Does this experience prevent you from continuing as a fair and unbiased juror, in this case?
JUROR #11: Can you repeat that?
THE COURT: Does this experience of being followed by the car, prevent you from continuing as a fair and unbiased juror, in this case?
JUROR #11: No, it doesn't bother me. I'm fine.
THE COURT: Do you feel threatened?
JUROR #11: No, sir.
THE COURT: Okay. And this happened to you once?
JUROR #11: Yes, sir.
THE COURT: Did you inform the other jurors of your experience?
JUROR #11: Yes, sir.
THE COURT: Okay. Then what I'm going to do is ask that you not talk about this further with the other jurors and I'm going to call the other jurors in individually to talk to them about — basically, about what you said and whether they can feel they can continue as fair and unbiased jurors, in this case.
JUROR #11: Okay.
THE COURT: So, the bottom line is you do not feel threatened in any way such that you could not be an unfair —
JUROR #11: No, I'm fine.
THE COURT: — I meant that you could not be a fair and unbiased juror, in this case?
JUROR #11: No, I'm fine.
THE COURT: Thank you, sir.
MR. WEISS: Your Honor, may counsel approach?
THE COURT: If you want to give me a written question, then write it out and hand it to me and show it to the Government.
(Written note from Defense Counsel handed to The Court)
THE COURT: Let me ask, you understand that none of the defendants, in this case, are involved in this, do you understand that?
JUROR #11: Yes.
THE COURT: Did you discuss this with family and friends apart from this?
JUROR #11: No.
THE COURT: Okay. Thank you, sir.
Why don't we go beginning with number one and all the way through. And don't discuss it further, sir.
JUROR #11: Okay.
(Juror #1 called into the courtroom, questioned by The Court.)
THE COURT: Good morning.
JUROR #1: Good morning.
THE COURT: My understanding is that Juror Number 11 indicated that he spoke about his experience with the other jurors?
JUROR #1: Yes.
THE COURT: Okay. Do you understand that the defendants, in this case, are not involved in his experience?
JUROR #1: Yes.
THE COURT: In any way, you understand that?
JUROR #1: Of course, yes.
THE COURT: Based on hearing this, do you feel that you can continue as a fair and unbiased juror, in this case?
JUROR #1: Yes.
THE COURT: Thank you.
JUROR #1: You're welcome.
(Juror #2 called into the courtroom, questioned by The Court.)
JUROR #2: Good morning.
THE COURT: Good morning. Please, be seated. Thank you for being timely, along with everyone else. They're outstanding being timely and alert, in this case.
Juror Number 11 spoke to you about his experience, correct?
JUROR #2: Yes.
THE COURT: He spoke to all the jurors? Told all the jurors?
JUROR #2: Yes.
THE COURT: Do you understand that the defendants are, in no way, involved with whatever, in terms of this assertion about a car?
JUROR #2: Correct.
THE COURT: Does this experience that he spoke about, prevent you from continuing as a fair and unbiased juror, in this case?
JUROR #2: No.
THE COURT: You understand that none of the defendants are involved in this?
JUROR #2: Correct.
THE COURT: Okay. Thank you. That's it.
MR. RATAJ: Your Honor, may we approach, briefly?
THE COURT: No, after she leaves, you can talk.
MR. RATAJ: With all due respect, Your Honor, I believe that we should be drilling a little bit deeper. I think that, quite frankly, the question should be asked, "Do you think that the defendants have anything to do with this", as opposed to, you know that, "They don't". We'd like to get their impressions as to whether they think these fellas are behind this in some way, shape or form, either through their families or associates, that's one and I guess that's my initial thing.
But I guess, generally speaking, I would respectfully ask that the Court drill a little bit deeper.
THE COURT: Okay. Let's bring out Juror Number Three. We're up to three?
(Juror #3 called into the courtroom, questioned by The Court.)
THE COURT: Good morning.
JUROR #3: Good morning.
THE COURT: Please, be seated. Yesterday Juror Number 11 spoke with you about his experience about a car following him?
JUROR #3: Yes.
THE COURT: Okay. Do you understand that none of the defendants or anyone associated with them is involved in this, you understand that?
JUROR #3: I do.
THE COURT: Would that experience about what he said, not your experience, but his experience that he communicated to you, prevent you from continuing as a fair and unbiased juror, in this case?
JUROR #3: No.
THE COURT: Thank you.
(Juror #4 called into the courtroom, questioned by The Court.)
THE COURT: Morning sir.
JUROR #4: Good morning.
THE COURT: Yesterday Juror Number 11 spoke to you about his experience on Wednesday with regard to a car following him?
JUROR #4: Correct.
THE COURT: Okay. Do you understand that none of the defendants or no one associated with any of them is involved in this, you understand that?
JUROR #4: Sure.
THE COURT: And you accept that?
JUROR #4: Yes.
THE COURT: Does what you heard about Juror 11's experience prevent you from continuing as a fair and unbiased juror, in this case?
JUROR #4: No.
THE COURT: Thank you.
(Juror #5 called into the courtroom, questioned by The Court.)
THE COURT: Morning.
JUROR #5: Good morning.
THE COURT: Yesterday Juror Number 11 spoke to you about his experience with a car following him a couple days ago?
JUROR #5: Yes.
THE COURT: Do you understand that none of the defendants or nobody associated with them is involved in this experience of a car following him, you understand that?
JUROR #5: Now, I do.
THE COURT: Okay. Well, you say, "Now you do". Do you understand there's no evidence, there's not even a hint of anyone? There's nothing at all?
JUROR #5: Okay.
THE COURT: Let me just ask this question, did anything about what Mr. — Juror Number 11 communicated with you, prevent you from continuing as a fair and unbiased juror, in this case?
JUROR #5: No.
THE COURT: You don't feel threatened in any way? JUROR #5: No.
THE COURT: Thank you.
(Juror #6 called into the courtroom, questioned by The Court.)
THE COURT: Morning.
JUROR #6: Good morning.
THE COURT: Yesterday Juror Number 11 communicated with you an experience he had a couple of days ago?
JUROR #6: Yes.
THE COURT: With regard to a car following him? Do you understand that none of the defendants and no one associated with them was involved in that, do you understand that and accept that?
JUROR #6: I guess I don't one way or the other who was involved. I would have assumed it could have been anyone though.
THE COURT: It could have been anyone.
JUROR #6: Yes.
THE COURT: Do you believe that based on our understanding that no one in the courthouse, that no one from the defendants or anyone associated with them was involved in this?
JUROR #6: You're telling me that, sure.
THE COURT: I'm telling you the question is, can you accept that?
JUROR #6: Sure.
THE COURT: I guess the bottom line is can you be a fair and unbiased juror and continue that way, in this case?
JUROR #6: Yes.
THE COURT: And do you understand and accept the fact that none of the defendants and no one associated with them is in any way involved in Juror Number 11's experience?
JUROR #6: Yes.
THE COURT: You accept that?
JUROR #6: Yes.
THE COURT: Do you feel threatened, based on what you heard from Juror Number 11?
JUROR #6: No.
THE COURT: And you feel that this experience does not prevent you from continuing as a fair and unbiased juror, in this case?
JUROR #6: Yes.
THE COURT: Okay. Thank you.
(Juror #7 called into the courtroom, questioned by The Court.)
THE COURT: Morning, sir.
JUROR #7: Morning.
THE COURT: Yesterday my understanding is that Juror Number 11 told you about an experience with a car following him to a gas station?
JUROR #7: Yeah.
THE COURT: Do you understand that none of the defendants and no one associated with them is involved in that, do you understand that?
JUROR #7: Yes.
THE COURT: Do you accept that?
JUROR #7: Yes.
THE COURT: Okay. Because that is important and it's real, do you understand that?
JUROR #7: Yes.
THE COURT: Does the experience that he had that he communicated with you prevent you from continuing to be a fair and unbiased juror, in this case?
JUROR #7: No.
THE COURT: Thank you.
(Juror #8 called into the courtroom, questioned by The Court.)
THE COURT: Morning, sir.
JUROR #8: Morning.
THE COURT: My understanding is that Juror Number 11 communicated with you about an experience he had a couple days ago with regard to a car that he believed followed him from the courthouse to a gas station?
JUROR #8: Yes.
THE COURT: Okay. Do you understand that none of the defendants and no one associated with them was in any way involved in that, do you understand that?
JUROR #8: Yes.
THE COURT: Okay. Does this experience that Juror Number 11 had, that he communicated with you, prevent you from continuing as a fair and unbiased juror, in this case?
JUROR #8: No, I could still continue.
THE COURT: Okay. Thank you. That's it.
(Juror #9 called into the courtroom, questioned by The Court.)
THE COURT: Morning.
JUROR #9: Good morning.
THE COURT: My understanding is that yesterday Juror Number 11 communicated with other members of the jury that a couple days ago that he had been followed by a car to a gas station from the courthouse?
JUROR #9: Yes, he did.
THE COURT: Quite a distance from here. Do you understand that none of the defendants and no one associated with them was involved in that?
JUROR #9: He wasn't sure, right. There was nothing — he wasn't even sure who, he just had thought that, yeah.
THE COURT: Right. But do you understand that none of the defendants or anyone involved with them was in any way involved in that?
JUROR #9: Yes.
THE COURT: Do you understand that?
JUROR #9: Yes.
THE COURT: Can you accept that?
JUROR #9: I do.
THE COURT: Would this experience that he had, that he communicated to you, prevent you from continuing to be a fair and unbiased juror, in this case?
JUROR #9: No.
THE COURT: Thank you.
(Juror #10 called into the courtroom, questioned, by The Court.)
THE COURT: Please, be seated. Good morning, sir.
JUROR #10: Good morning.
THE COURT: My understanding is that Juror Number 11 communicated to the jury yesterday that a couple days ago he was followed by a car quite a distance from the courthouse to a gas station, okay. Do you understand that none of the defendants and no one associated with them was involved in that, do you understand that?
JUROR #10: Yes.
THE COURT: Okay. Do you — does this statement from Juror Number 11, about his experience, prevent you from continuing as a fair and unbiased juror, in this case?
JUROR #10: Not at all.
THE COURT: Okay. Thank you.
JUROR #10: Okay.
(Juror #12 called into the courtroom, questioned by The Court.)
THE COURT: Good morning.
JUROR #12: Good morning.
THE COURT: Yesterday, my understanding is that Juror Number 11 told the other jurors about an experience he had a couple days ago where a car followed him from the courthouse to a gas station a long, long, way away from here?
JUROR #12: Yes.
THE COURT: Okay. Do you understand that none of the defendants, in this case, and no one associated with them was involved in that, do you understand that?
JUROR #12: Yes.
THE COURT: Is there anything about what he told you about his experience that will prevent you from continuing as a fair and unbiased juror, in this case?
JUROR #12: No.
THE COURT: Thank you.
(Juror #13 called into the courtroom, questioned by The Court.)
THE COURT: Morning.
JUROR #13: Morning.
THE COURT: My understanding is that yesterday Juror Number 11 told the jurors, other jurors, that a couple days ago he was followed by a car from the courthouse to a gas station quite a distance from here, okay?
JUROR #13: Yes.
THE COURT: Do you understand that none of the defendants and nobody associated with them were involved with that car?
JUROR #13: I understand.
THE COURT: You accept that?
JUROR #13: Yes.
THE COURT: Is there anything about his experience, that he communicated to you, that will prevent you from continuing as a fair and unbiased juror, in this case?
JUROR #13: I don't think so.
THE COURT: Do you feel threatened by what he said to you so that you cannot continue to be a fair and unbiased juror, in this case?
JUROR #13: No, I don't feel threatened, but I'm more cautious.
THE COURT: Okay. Does the caution then relate to the feeling that the defendants must have done or friends of theirs must have done something wrong?
JUROR #13: I don't know why, but you hear that and so I'm just more cautious, looking around when I drive.
THE COURT: You're cautious because of what he said and you relate that caution — do you relate that cautiousness to other individuals, particularly the defendants or people associated with them?
JUROR #13: I would say, yes. Probably a little bit, yes.
THE COURT: Okay. Then what I'm going to do — let me just talk to the lawyers side bar for a minute.
- - -
(Side Bar Conference at 9:16 a.m.)
THE COURT: I think that based on that answer that she should be excused as a juror, in this case. Any objection?
MR. GRAVELINE: No objection from the Government.
MR. WEISS: No objection from the Defense.
MR. QUINN: Your Honor, Christopher Quinn.
How — if the Court is going to make that decision, from this point on, how is the Court going to handle her going back in there?
THE COURT: She ain't going back. In other words, I'm going to keep her apart from the other jurors with a CSO or Marshal. They'll come into the courtroom, she'll get her stuff and she'll leave.
MR. QUINN: Okay. And will The Court — will there be any further discussion as to why she's not here with the other jurors or she just will not be around any more?
THE COURT: She won't be around.
MR. WEISS: Your Honor, this is Art Weiss. I don't want to quarrel with The Court. But speaking on behalf of the Defense Attorneys, we would ask the Court to make a more in-depth inquiry, not so much of this juror, but of the others in terms of exactly what they were told. Whether they feel that the Court's assurances — that their anonymity was somewhat compromised. Um —
THE COURT: Okay. I understand. Anything else you want to put on the record?
MR. PITTS: There is one more thing, Judge. Once again, this is Byron Pitts. Not quarreling with the Court or anything. I'm just a little concern because what I hear, the question is, "You understand that these guys had nothing to do with the defendants" —
THE COURT: Or anyone associated.
MR. PITTS: Understood. That doesn't mean, at least to me, that they don't somehow still feel that way. This juror, I think, kind of —
THE COURT: Do you accept that this juror said, "No"? She brought up stuff so — we can have this on the record. Thank you.
(Side bar conference concludes at 9:18 a.m.)
THE COURT: Okay. I'm going to ask Ms. Tofil, if you would take this juror into the chambers and just wait there and we'll get back with you.
(Juror #14 called into the courtroom, questioned by The Court.)
THE COURT: Okay. Please, be seated, sir.
JUROR #14: Yes, sir.
COUR MR. WEISS: My understanding is that yesterday Juror Number 11 communicated with you the fact that a couple days ago he had been followed by a car quite a distance from the courthouse to a gas station; is that correct?
JUROR #14: Yes, sir.
THE COURT: Okay. Do you understand that none of the defendants and no one associated with them is in any way involved with that occurrence, do you understand and accept that?
JUROR #14: Yes, sir.
THE COURT: Okay. Does — do you understand —Strike that.
Does this experience prevent you from continuing as a fair and unbiased juror, in this case?
JUROR #14: No, sir.
THE COURT: Thank you. Okay. If you go back into the juror room, I have to speak with someone. I'll be back in 30 seconds.
(A break was taken from 9:20 a.m. to 9:21 a.m.)
THE COURT: Next juror. Please, be seated. Just for the record, Judge Cleland stopped in chambers and said it is not necessary for you to be there. It's going to take an hour, he said.
So, please bring in the next juror.
(Juror #15 called into the courtroom, questioned by The Court.)
THE COURT: Have a seat, sir. Morning.
JUROR #15: Morning.
THE COURT: Okay. My understanding is that yesterday Juror Number 11 told the jurors that he had an experience a couple days ago about a car following him quite a distance from the courthouse, okay?
JUROR #15: Yes.
THE COURT: Okay. Do you understand that none of these defendants and no one associated with them is in any way involved in that experience, do you understand that?
JUROR #15: `Till I'm proven otherwise, yes, that's what I believe.
THE COURT: Okay. There's no proof otherwise, so do you accept that?
JUROR #15: Yes.
THE COURT: Do you feel threatened by what occurred to Juror Number 11?
JUROR #15: No.
THE COURT: Okay. Does the experience that Juror Number 11 told you prevent you from continuing as a fair and unbiased juror, in this case?
JUROR #15: No problem with that.
THE COURT: Okay. Thank you.
(Juror #16 called into the courtroom, questioned by The Court.)
THE COURT: Good morning.
JUROR #16: Good morning.
THE COURT: Okay. My understanding is that yesterday Juror Number 11 told other members of the jury about an experience he had a couple days ago with regard to a car following him to a gas station quite a distance from the courthouse, you heard that?
JUROR #16: Yes.
THE COURT: Okay. Do you understand that none of these defendants and no one associated with them is in any way involved in that situation, do you understand that?
JUROR #16: Yes.
THE COURT: Do you accept that?
JUROR #16: Yes.
THE COURT: Does the experience that Juror Number 11 had, that he communicated to you, does that communication prevent you from continuing as a fair and unbiased juror, in this case?
JUROR #16: No.
THE COURT: You're sure?
JUROR #16: Yes.
THE COURT: Okay. Thank you. Okay. That completes that.
What I intend to do with regard to the juror that's in the chambers is to call the other jurors in and explain to them that based on her answers, that she's being excused as a juror in this case. And that while they're sitting here, she's going to go into the jury room and get her belongings and her notebook and be excused from further jury service, in this case, and taken down to the jury assembly room and that she's not to communicate with any of the jurors and none of the jurors are to communicate with her. Any objection to that?
MR. GABEL: No objection from the Government, Your Honor.
THE COURT: With regard to the questions and answers that the other jurors gave. I find that these jurors testified credibly. I accept their testimony. I note that this is not an extraordinary case where there has been any contact, in any way, with any of the jurors, including Juror Number 11 who communicated his situation; and therefore, I do not believe that there is a credible allegation of extraneous influences. That the Court has not investigated — but that instead that The Court has investigated and assured itself that the Constitutional Rights of the criminal defendants have not been violated. That's Remmer at 535. And also noting that no gestures were made or words exchanged. So, I believe that they can continue as fair and unbiased jurors, in this case. And that's my ruling on that.
So, what I'm going to do right now, the first thing is I'm going to bring the excused juror in and tell her that she's going to be excused and ask her to go back into the chambers with Ms. Tofil and also tell her not to communicate with any of the jurors. Then I'll bring the other jurors in to explain to them what's going ahead. She will then go with Ms. Tofil into the jury room, get her belongings, her notebook, and leave.
MR. WEISS: Your Honor, if I may? I know The Court's has—
THE COURT: I've made the ruling. I've heard objections and I've ruled.
MR. WEISS: Would the Court mind having the note and the written questions that we submitted to the Court marked and made part of this record?
THE COURT: I've got them right here, so I will make them a part of the record.
MR. WEISS: Thank you.
THE COURT: Okay. Let me go get the juror. You can sit down. I'm going to go bring the excused juror in with Ms. Tofil and explain to her and then have her go back and bring the other jurors in.
(A brief pause)
THE COURT: Okay. What I'm going to do is excuse you from further service, in this case, based on the colloquy and the answers. And so what I'm going to do is inform you — I'm going to have, after we're done here right now, Ms. Tofil will take you back to the chambers. I'm going to order you to not communicate with any of the other jurors in any way and inform the other jurors that you have been excused as a juror, in this case.
After you go back in there, when I ring the bell, then it will be okay, Ms. Tofil, to take this juror into the jury room because the other jurors will be in the courtroom and then I'll inform them. And at that point, you can take her into there, get her coat, get her notebook, you keep the notebook and stuff like that. And then I guess you have to go to five to checkout.
So, Ms. Tofil will take you to five after you get your belongings and your notebook, which you'll give to Ms. Tofil, and then you'll go to five and you'll no longer serve on this jury.
JUROR #13: All right.
THE COURT: I want to thank you for your service thus far. You've been part of a great group. And on behalf of the court, I thank you for your service as a juror. And you cannot speak to anyone about the trial while it's ongoing, including friends and family. We'll communicate with you when the trial is over.
JUROR #13: Okay.
THE COURT: But in the meantime, of course no communication with members of the jury, but don't even talk about it with friends or family or anybody. Okay. Very good.
Ms. Tofil, take the juror back to the chambers and bring in the other jurors. And once they get here, I will ring the bell and then when you're done with all that, having taken her to the elevator, then come back and let us know. The others, I'm going to keep them here.
Okay. If you could please bring in the jury.
(Jury In at 9:32 a.m.)
THE COURT: Please, keep the door closed until we're done with this and then you could open it.
Members of the jury, please be seated. In terms of what we call this issue and the questioning, the Court has ruled that the juror who is not there should no longer serve as a juror, in this case. She will not serve further on this case.
As we sit here now, Ms. Tofil is going to take her to get her coat, notebook, and take her down to the jury assembly room for dismissal. So, the case will continue and we will wait until Ms. Tofil let's me know that the juror has gotten her stuff and gone.
In the meantime, you must not communicate with her in any way. And I've instructed her the same thing, to not communicate with any of you or even to talk with her family or friends or anybody about the case until the case is over and then we will let her know that the case is over. So, we'll just sit here a minute until Ms. Tofil come back and then we'll take about a ten-minute break, 15-minute break and then we will continue on with the trial.
And I thank you for braving another cold record today. I know it's cold and the Court commends you on your attention to jury service, okay.
Members of the jury, will you please go back to the jury room? Take about a 15-minute break. We have other matters to deal with and then we'll call you back.
(Jury out at 9:36 a.m.)
THE COURT: So, we're going to take a 15-minute break. Mr. Pitts, if you want to go and explain to your client? We'll start at ten to. We're just going `till 12:30. Okay. Thank you all.
Let me just ask if Sandy and Pat could come back in, okay. Thank you.
(A break was taken from 9:37 a.m.to 10:10 a.m.)
(Whereupon the "Confidential-Nicholson Hearing" concluded)
