HAIGHT, Senior District Judge:
Defendant James Botti was charged in a three-count indictment with conspiring to commit mail fraud (Count One), the substantive crime of bribery (Count Two), and the substantive crime of mail fraud (Count Three). Count Three alleged that Botti violated the provisions of 18 U.S.C. §§ 1341 and 1346. The case was tried to a jury. The jury convicted Botti on Count Three, specifying in answers to a special verdict form that they were able to reach a unanimous verdict only on a violation of § 1346, engaging in a scheme or artifice to deprive the citizens of Shelton, Connecticut, of the intangible right to the honest services of their public officials. The jury was unable to agree on any other charge, and a mistrial was declared as to them. It is unknown at this point whether Botti will be retried. He is scheduled to be sentenced on September 17, 2010 on the § 1346 violation and for structuring and conspiracy to structure, of which he was convicted at an earlier trial on severed charges.
Botti moved post-verdict for the Court's permission to interview the jurors. [Doc. 324] The government opposed the motion. The Court denied Botti's motion in an order dated May 3, 2010. [Doc. 341] The order stated that an opinion setting forth the Court's reasons for its ruling would issue subsequently. This is that opinion.
Count One charged Botti with conspiring to violate the mail fraud statute, 18
The special verdict form for Count Three, which charged Botti with the substantive crime of mail fraud, similarly distinguished between the two types of mail fraud. Count Two did not present these complications, simply charging Botti with the substantive crime of bribery in violation of 18 U.S.C. § 666(a)(2).
On March 31, during deliberations, the Court excused Juror Number 8 for good cause pursuant to Fed.R.Crim.P. 23(b)(3). The relevant circumstances are described in Part I.C., infra. On April 1, the remaining 11 jurors returned a partial verdict of guilty on Count Three, indicating on the verdict form their unanimous finding that Botti used the mails for the purpose of executing a scheme to deprive the citizens of Shelton of the honest services of public officials. As to all the remaining Counts and questions presented in the special verdict form, the jurors reported that they could not reach unanimous agreement. The Court declared a mistrial as to Counts One and Two in their entirety, and as to Count Three insofar as it charged a violation of 18 U.S.C. § 1341. The jury was discharged.
Botti now moves pursuant to Local Civil Rule 83.5, made applicable to criminal cases by Local Civil Rule 1(c), for Court permission to "obtain the services of a licensed private investigator for the purpose of interviewing all of the excused jurors, including Juror Number 8, to determine what information, if any, they have that may be relevant" to the issue of whether "defendant's constitutional right to an impartial jury [was impaired] by extraneous influences and information." [Doc. 324 at 6]
Botti's motion to interview the jurors is based largely on the events leading up to the Court's excusing Juror Number 8 on March 31 and the record generated thereby. While Botti's briefs in support of this motion are long on generalities but short on specifics, they purport to find in the record sufficient evidence to require juror interviews with respect to four questions: (1) whether extraneous prejudicial information was improperly brought to the jury's attention; (2) whether a juror was biased against Botti because of his choice
The circumstances surrounding the dismissal of Juror Number 8 are as follows. Jury selection took place on February 24, 2010. The trial began on March 8. The Court commenced charging the jury during the morning of Thursday, March 25. After a lunch break, the charge was concluded and the jury commenced deliberations at 2:15 p.m. No verdict was reached that day. Deliberations resumed on Friday, March 26. The jury did not reach a verdict and was excused for the weekend. Deliberations resumed on Monday, March 29 and continued through March 30, without a verdict.
Shortly after the jury assembled on the morning of Wednesday, March 31, the foreperson of the jury sent a handwritten note to the Court (Ct. Ex. 10), which reads as follows:
After discussing the contents of the note with counsel, and with the parties' agreement, I brought the foreperson into the jury box and questioned her on the record in open court. She said that the words on the note were hers, but "I was so upset about writing the note that the juror next to me actually wrote the note." Jury Trial Transcript Excerpt, Vol. 17, March 31, 2010 ("Tr.") at 3. The foreperson explained that the juror referred to in the note, subsequently identified as Juror Number 8, had that morning brought into the jury room "[t]wo personal journals that she wanted to read to us and we all said, `Stop right there.'" Tr. 4. The other jurors first saw the journals "when [Juror Number 8] took them out right before we gave you the note." Tr. 5. According to the foreperson, Juror Number 8 said that the journals contained "[s]omething about the case," and that she wanted to read the contents to the other jurors. Tr. 6. "And then one of the jurors got up and said, `Stop right now.' And we all said we didn't want to hear it." Id. The following exchanges then occurred:
I also questioned the foreperson about the statement in the second paragraph of her note, Ct. Ex 10, which read: "Comments have been made by the same juror about a hung jury prior to all counts being discussed." These exchanges took place:
Tr. 7-11. After conferring with counsel at sidebar, I put further questions on this subject to the foreperson:
Tr. 19-20.
Before excusing the foreperson, I asked her: "In your view, is this particular juror open and capable of going on and deliberating as jurors should, or not?" The foreperson answered "No." To my follow-up question, "You don't think she can?" the foreperson again answered "No." Tr. 20. Lastly, the foreperson identified the juror whose conduct had prompted the jury's note to the Court as Juror Number 8, and the juror with whom that juror was alleged to have had a discussion as Juror Number 5. Tr. 28.
The foreperson then returned to the jury room. Juror Number 8 was summoned to the courtroom. I began by reading to Juror Number 8 that paragraph in the jury's note, Ct. Ex. 10, which read "Outside material was brought in by 1 juror in regards to the case," and told her that the foreperson, who was Juror Number 2, had just stated that "the outside material was some personal journals that a juror brought in this morning." Tr. 30. These exchanges followed:
Tr. 30-33. Because this response lacked clarity, I tried a different approach:
Tr. 33, 36. Eventually the juror's journal was produced, marked Ct. Ex. 12, and shown to counsel.
During this interrogation of Juror Number 8, I also attempted to address the other topic raised in the foreperson's note:
Tr. 34-35.
The transcript reflects the difficulty of following and understanding Juror Number 8's words, which were spoken rapidly, sometimes disjointed, and sometimes seemingly tinged by anger. And the Court did not have much success in getting the juror to respond directly to questions.
The record contains two writings prepared by Juror Number 8. The first is the journal, Ct. Ex. 12, that she brought into the jury room that morning. During a colloquy between Court and counsel, the deputy court clerk said: "And she also has a note, a handwritten note, herself, that she wrote." Tr. 48. At defense counsel's request, Juror Number 8's note was produced, marked Ct. Ex. 11, and shown to counsel. I consider the contents of these documents in turn.
Juror Number 8's journal is a curious document. It is a notebook, 8 % inches by 5 % inches with unnumbered bound pages, by which I mean the pages are not looseleaf and removable, but fastened in place. The journal contains handwritten entries describing events in the juror's personal life. Court Exhibit 12 is comprised of 14 and a fraction pages of entries covering the period during which jury selection and the trial occurred. These pages include comments by the juror on her experiences as a first-time juror and the trial. The curious aspect of the journal lies in the chronological order of the entries, or more accurately, the lack of order. The earliest date of entry is February 15, 2010 and the latest is March 23, 2010. As one turns the pages in the customary manner, the entry dates run consecutively from and including February 15 to and including February 27. There is no entry for February 28, a Sunday. The entry dates thereafter run in this sequence: March 11, March 10, March 9, March 8, March 7, March 6, March 5, March 4, March 3, March 12, March 23, March 22, March 21, March 20. These chronological mysteries are not fully explained by the juror's response to my inquiry on the point:
Tr. 41-42.
The provenance of Juror Number 8's handwritten note, Ct. Ex. 11, and the circumstances of its creation are established by the record.
As stated supra, the foreperson's note expressing the jury's concerns, Ct. Ex. 10, was delivered shortly after all jurors had assembled to resume deliberations on the morning of March 31. That timing corroborates the foreperson's account in response to the Court's questions that as soon as or
The foreperson left the jury room and gave the factual account in open court, as described supra. The other jurors, including Juror Number 8, remained in the jury room. During that period of time, when the atmosphere in the jury room must have been somewhat tense, Juror Number 8 added to the note which became Ct. Ex. 11.
The physical characteristics of the note are revealing. It is a single sheet of paper, notebook size, with handwriting on both sides. One side has centered in the middle three lines in large letters, whose content and appearance I will reproduce as accurately as my word processor will allow:
Following those words, Juror Number 8 signed her full name. In the spaces above and below these centered words and signature, additional notations appear, in smaller lettering, with further notations on the reverse side of the page. These notations are numbered, from the top of the first page, although the numbering is imprecise: two notations bear the number "3," and the numbers of the notations on the reverse side are "7" and "9", with no number 8. I find on this record that Juror Number 8 wrote the larger centered words and signed them at the time she told the other jurors she wanted to submit her note to the Court together with theirs. The jurors having rebuffed that suggestion, Juror Number 8 added the smaller notations on both sides of the page while the foreperson was in the courtroom answering the Court's questions about her note.
Some of the notations are illegible. The top three notations, numbered 1, 2 and 3, have two horizontal lines drawn through them, as if the writer intended to cross out the contents. Other notations are legible and purport to describe conduct, events and comments by unidentified individuals. The note does not specify the dates and times of the incidents and comments, but some clearly occurred during the jury's deliberations.
The first of these is the notation "9 jurors y—3n," which appears to indicate that the jury was dividing 9 to 3 in favor of conviction as deliberations progressed.
The second is a notation upon which Botti's present motion principally relies. It reads: "Botti is guilty—he got the highest paid lawyer in N.H."
Tr. 35.
If one accepts the truth of that account, it shows that the unidentified juror making the remark in question waited until the trial was over and deliberations had begun before making this observation regarding Botti's guilt and defense counsel's pay. The timing of the comment is important, for the reasons stated in Part II.B., infra.
At the conclusion of these events, and in the exercise of my discretion, I excused Juror Number 8 from the trial and proceeded with a jury of 11 in accordance with Fed.R.Crim.P. 23(b)(3), which provides: "After the jury has retired to deliberate, the court may permit a jury of 11 persons to return a verdict, even without a stipulation by the parties, if the court finds good cause to excuse a juror." Good cause existed to excuse Juror Number 8 because, despite the Court's repeated instructions that jurors should not do so, she brought extraneous material (her journal) into the jury room for the purpose of continuing an argument about an entirely irrelevant incident (the chance encounter between two jurors and the defendant in a courthouse elevator). In addition, good cause existed because Juror Number 8 declared that there was a hung jury early in the deliberations, before the jury had even discussed all the counts, which understandably disturbed the other jurors, as reflected in the foreperson's note. When, during deliberations, it becomes apparent that a juror cannot or will not participate appropriately in the deliberative process, Rule 23(b)(3) authorizes the trial judge to excuse the juror and take a verdict of 11. See, e.g. United States v. Manzano-Excelente, 101 F.3d 1393, 1996 WL 414465 (2d Cir. July 25, 1996).
After Juror Number 8 was excused and left the courthouse, I placed the remaining 11 jurors in the jury box, and told them I had excused Juror Number 8 because she had brought certain materials into the jury room.
I then asked the jurors a series of questions, directing them to raise their hands if they would answer any in the affirmative. Those questions were: (1) "During the course of your deliberations, has anyone attempted to discuss the case with you outside your jury room?" (2) "Have any of you discussed the case with anyone else outside discussions in the jury room?" (3) "Has any other juror discussed the case with you while in the jury room, but before all the jurors are there?" Tr. 54-55. No hands were raised. I concluded with the following question, polling each juror individually after posing it:
Tr. 55-56. To that question, each juror responded "No." I directed the jurors to resume deliberations. On April 1 the jury returned the verdict described in Part I.A., supra.
During the succeeding days, there were contacts between certain jurors, the Court, and counsel. Juror Number 8 sent the Court a letter dated April 5, 2010. [Doc. 322] She complained that the foreperson had denied her right to speak to the Court, that she was threatened by another juror on Tuesday, March 30, and the foreperson wrongfully refused to include an account of that threat in the note the foreperson sent to the Court on March 31. The Court put this letter on the docket under seal and sent copies to counsel for the government and the defendant.
The government sent the Court and defense counsel a letter dated April 12, 2010, [Doc. 342], advising that two jurors had communicated with the prosecutors after the jury was dismissed. One juror, referred to as "Juror A," approached AUSA Schechter shortly after the verdict was returned and the jury discharged and asked to speak to him. AUSA Schechter properly told the juror to give his contact information first to a federal agent. An IRS agent prepared a memorandum dated April 1 which recited the juror's name and telephone numbers, and remarks that the juror had made (contrary to AUSA Schechter's request not to do so) about the deliberations, the numerical split between the jurors, and Juror A's feelings about the case. The government's letter of April 12 also enclosed an unsolicited e-mail to AUSA Schechter from another juror, "Juror B," containing similar comments. Lastly, the government sent the Court and defense counsel a letter dated April 30, 2010, [Doc. 349], containing a report by an FBI agent who was a neighbor of Juror A, to whom Juror A on April 1 made remarks about the trial and deliberations in the same vein as his earlier remarks on that day to the IRS agent. All these documents were shared by the Court and counsel and placed under seal.
In these circumstances, Botti asks permission to conduct interviews of all trial jurors, including Juror Number 8.
Following the return by a jury of a verdict of guilty, a request by a convicted defendant to interview the jurors, while not uncommon, is not favored in Second Circuit jurisprudence. "Post-trial jury scrutiny is disfavored because of its potential to undermine full and frank discussion in the jury room, jurors' unwillingness to return an unpopular verdict, and the community's trust in a system that relies on the decisions of laypeople." United States v. Stewart, 433 F.3d 273, 302 (2d Cir.2006) (citation and internal quotation marks omitted). The Second Circuit went on in Stewart to explain the requirements for allowing post-verdict interviews of jurors:
Id. at 302-03 (citation and internal quotation marks omitted). The trial court has broad discretion in dealing with such issues. In United States v. Peterson, 385 F.3d 127 (2d Cir.2004), the Second Circuit said:
Id. at 134 (citations and internal quotation marks omitted). Most recently, the Second Circuit said in United States v. Sabhnani, 599 F.3d 215 (2d Cir.2010):
Id. at 250 (citations and internal quotation marks omitted). These Second Circuit cases and the cases they cite set a high bar for permitting post-verdict interviews of jurors, and confer upon this Court broad discretion in deciding whether to permit them. I conclude that Botti's motion for permission to interview the trial jurors must be denied because he has failed to meet this standard.
Botti's main brief [Doc. 324] begins by asserting that: "The record demonstrates that extraneous material was introduced into the jury's deliberation room, and that outside influences may have improperly been brought to bear upon jurors during deliberations. Further, the record demonstrates that Juror Number 8 was concerned that irregularities may have been present in the jury's deliberative process." His main brief expands on those assertions at 4-5:
"These circumstances," Botti's main brief concludes at 5, "demonstrate irregularities in the jury process which may have imperiled defendant's constitutional right to an impartial jury unimpaired by extraneous influences and information," and the Court should allow Defendant to conduct interviews by "a licensed private investigator" of "the excused jurors, including Juror # 8, to determine what information, if any, they have that may be relevant to those issues."
Botti's reply brief [Doc. 334] reiterates the contentions in his main brief and adds comments about the letters and contacts since the verdict involving Juror Number 8, Juror A and Juror B. Addressing the questions the Court put to the 11 remaining jurors, Botti's reply brief at 2 says that "certain areas were not explored, such as juror bias, as well as a potential threatening situation between Juror # 8 and Juror # 15—which did not come to the Court's and parties' attention until after the conclusion of the trial." In a footnote, the brief argues that the comments expressed by Jurors A and B "demonstrate the heated nature of the jury room [sic], and lend credibility to Juror 8's allegation of feeling threatened—a subject unrelated to the substance of the jury's deliberations." Botti's reply brief at 6 also further explicates his theory of juror bias:
Finally, Botti's reply brief argues in summation at 7:
The circumstances cited by Botti, considered alone or in combination, do not justify a postconviction interrogation of the trial jurors.
The "extraneous material" Juror Number 8 brought into the jury room on March 31 was her personal journal. She wanted to read passages to the other jurors, but they stopped her immediately and sent me the foreperson's note reporting the incident. The jurors never heard or saw any of the journal's contents.
Moreover, it would make no difference to this analysis if the jurors had permitted Juror Number 8 to read from her journal, because the journal contains no information that would taint the trial or the jury's deliberations. To the extent that the journal refers to the trial at all, which is minimal, the entries consist for the most part of Juror Number 8's personal impressions of counsel and the evidence, impressions that each of the other jurors undoubtedly formed for themselves. There is also a detailed discussion of an incident occurring on March 9, the second day of the trial, when Botti entered a courthouse elevator containing Juror Number 8 and another juror named Jeanne. The journal says: "Jeanne and I did not talk to Botti about the trial at all." That reticence was, of course, entirely proper, and the journal does not suggest that Botti said anything to the jurors. Jeanne and Juror Number 8 disagreed with each other about whether they should report this innocent and unremarkable occurrence to the Deputy Court Clerk, with Jeanne expressing the sensible view that there was no need to do so. Juror Number 8 felt strongly to the contrary, writing in her journal that "we have to let them [clerk and judge] know at least for the record for sure." This is apparently the incident Juror Number 8 had in mind when she told the Court, in response to questions about why she had brought in the journal, that she wanted to read it to the other jurors to document what she perceived as improprieties. Significantly, while defense counsel received a copy of the journal entries on March 31, defendant's briefs on this motion do not point to any specific prejudicial material in them, and there is none. But this point does not really arise, because the other jurors refused to hear passages from the journal, properly recognizing that "outside material... in regards to the case" (to quote the foreperson's note) could not be introduced into the deliberations.
As for the unidentified juror's purported remark about the cost of Botti's legal representation, contained in Juror Number 8's note, Ct. Ex. 11, I have found for the reasons stated in Part I.C., supra, that if another juror made such a remark, he or she did so during deliberations. I qualify my observation because it is worth noting that in her verbal reiteration of the alleged comment, Juror Number 8 claimed that the other juror said, "And he paid— he got the best lawyer, the best lawyer in New Haven," whereas in her note, Juror Number 8 wrote, "Botti is guilty—he got the highest paid lawyer in N.H." Therefore, the attribution of guilt as a result of having a highly paid attorney may not have come directly from the other juror's words as Juror Number 8's note seems to suggest, but rather may simply be the meaning that Juror Number 8 herself attached to the other juror's observation that defendant had retained "the best lawyer in New Haven."
However, this question cannot be further pursued because the Rules of Evidence prohibit the pursuit. While it can be argued—indeed, Botti does argue—that such a statement by a juror, if made, was inappropriate, even suggestive of bias, the statement was made during deliberations;
The Rule could not be more broad or explicit. It reflects the drafters' policy-grounded concern, as expressed by the Advisory Committee Notes to 1972 Proposed Rule 606(b) that: "[t]he mental operations and emotional reactions of jurors in arriving at a given result would, if allowed as a subject of inquiry, place every verdict at the mercy of jurors and invite tampering and harassment." To which, one may add in the context of the present motion, place every guilty verdict in a criminal case at the mercy of a defendant dissatisfied by his conviction, hoping that his inquiry into the deliberations might unearth a statement by a juror that the defendant could point to as evidence of purported bias. The Supreme Court voiced that concern in McDonald v. Pless, 238 U.S. 264, 35 S.Ct. 783, 59 L.Ed. 1300 (1915):
Id. at 267 (quoted and cited by the Advisory Committee Notes to the 1974 Enactment of the Rule). More recently the Supreme Court said, albeit in a different context:
Yeager v. United States, ___ U.S. ___, 129 S.Ct. 2360, 2368, 174 L.Ed.2d 78 (2009) (holding that an apparent inconsistency between a jury's verdict of acquittal on some counts and its failure to return a verdict on other counts does not affect the preclusive effect of the acquittals under the Double Jeopardy Clause).
Nor is the disappointed litigant the only potential source of improper post-verdict investigation: the Senate Report accompanying the 1974 Enactment of Rule 606(b) observed that the Rule would prevent "the harassment of former jurors by losing parties as well as the possible exploitation of disgruntled or otherwise badly-motivated ex jurors." Senate Report No. 93-1277, 1974 U.S.C.C.A.N. 7051, quoted in the Advisory Committee Notes for the 1974 Enactment of Rule 606(b). That principle resonates in the case at bar because Juror Number 8 was clearly angry with the other jurors who, through the foreperson's note, had complained to the Court about her conduct. Her anger was manifest as Juror Number 8 responded to the Court's questions, and in the April 5, 2010 letter she wrote to the Court, which indicated her desire to file a lawsuit based upon
Because no juror may testify about statements made during deliberations, a defendant or his counsel may not conduct post-verdict interviews of jurors to ascertain what a juror may have said. The defendant would presumably offer up the perceived fruits of such interviews in the form of affidavits or written statements, upon which a motion attacking the validity of the verdict would be based. The last sentence of Rule 606(b) forecloses that enterprise: "A juror's affidavit or evidence of any statement by the juror may not be received on a matter about which the juror would be precluded from testifying."
It would of course be wrong, and contrary to the Court's repeated instructions, for a juror to think Botti's guilt could be inferred from his choice of counsel, or to express that thought to other jurors (although it is far from clear that this occurred). However, the remark, if uttered at all, was spoken during deliberations, and may not be inquired into. One may reasonably assume that if jury deliberations were transcribed and subjected to post-verdict analysis, a disappointed litigant would frequently be able to identify a remark possibly indicative of bias or some other impropriety and demand an investigation of the jurors. For the policy reasons stated supra, Rule 606(b) precludes such an inquiry.
For these reasons, I hold that neither the conduct of Juror Number 8 in bringing her journal into the jury room nor the "highest paid lawyer in N.H." comment recorded in her note justify postverdict interviews of the jurors.
Botti's additional justifications for juror interviews are unpersuasive and do not require extended discussion.
He claims that "jurors had been conversing about the case—outside the deliberative process." Main Brief at 5. The claim is based upon Juror Number 8's statement in court that another juror, Number 11, was "talking about, deliberating about the case again" on the train when three jurors were riding to or from the trial. It is also based upon a notation in Juror Number 8's note, Court Exhibit 11, which is partially illegible but seems to say: "talk in the train—about the getting the internet."
To be sure, jurors may not discuss a case until the parties have rested, counsel have summed up, the judge has charged the jury, and deliberations begin, and then only when all are present in the jury room. The jurors in this case were repeatedly given those instructions. My
In Sabhnani, 599 F.3d 215, after the verdict, a news photographer told defense counsel that while sitting in his car outside the courthouse at the end of a trial day, he thought he heard one of a group of departing jurors "saying the words `guilty, guilty' in a laughing manner." Id. at 248-49. The trial judge refused defendants' request for a hearing including testimony of all the jurors. The judge concluded that
Id. at 249 (quoting the district court's opinion denying the defense motion for a new trial and a hearing including jury testimony). The Second Circuit also observed in Sabhnani:
Id. at 249-50 (again quoting the district court).
In the case at bar, I closely observed the trial jurors, during the trial, summations, and charge, and during the answers the jurors gave to the Court during the inquiry on March 31. I am satisfied that all the jurors, with the exception of Juror Number 8, performed their duties responsibly. Furthermore, there is no reason to suppose that prejudicial extraneous information from any source tainted the jury deliberations. These jurors responded immediately and negatively when Juror Number 8 attempted to read from her journal. They reported the incident to the Court because they knew that their verdict must be based upon the evidence or lack of evidence, and extraneous matter could not be considered.
A trial judge's observations of jurors is germane to the judge's resolution of issues such as these. Peterson, 385 F.3d 127, is also instructive. The relevant facts closely resemble those in this case. During deliberations, the trial judge received a jury note stating that "`11 jurors do not feel comfortable with juror number three,' and according to juror number three herself, the remaining jurors thought she was `crazy.' " Id. at 136. The judge interviewed juror number three and excused her. He then brought the remaining eleven jurors into the courtroom, explained why he had excused the number three juror, instructed the jurors to disregard anything she might have said, and asked the jurors "[i]f you think what did occur was such that it would prevent you from deciding this case based on the evidence you have heard here. Do you all think you can be fair and impartial and decide?" Id. at 134. The jurors collectively nodded their heads. The trial judge instructed them to resume deliberations. The jury returned verdicts of guilty later that day. On appeal, the Second Circuit rejected defendants' contention that the trial judge should have conducted a further inquiry, stating at 136:
In the case at bar, I reached the same conclusion after a similar exercise, augmented by an individual poll of the jurors to confirm their collective silence when asked if any felt they could not be impartial and find the facts solely on the basis of the evidence and the Court's instructions.
In seeking to interview the jurors, Botti also relies on Juror Number 8's allegation that another juror threatened her. It is difficult to understand why this should prompt a further investigation of the jurors. Assuming arguendo that another juror inappropriately threatened Juror Number 8 during deliberations, she was excused for unrelated reasons and did not participate in the verdict. Therefore the other juror's assumed misconduct could not have prejudiced Botti. Different concerns would arise if another juror threatened Juror Number 8 and she then voted to convict the defendant, since it could be argued that the verdict was coerced, although even then Second Circuit authority appears to require that physical harm be threatened to justify post-verdict relief. See Anderson v. Miller, 346 F.3d 315, 329 (2d Cir.2003) (affirming denial of habeas corpus relief) ("We agree with Judge Block that, at most, Jurors Nos. 2 and 11 felt themselves to be under pressure, perhaps even under duress, to vote in favor of conviction. But we do not find that a reasonable juror, standing in the shoes of Juror Nos. 2 and 11, would have thought herself to be facing a physical assault if she refused to vote, for conviction."). Since Juror Number 8 did not vote on the verdict in this case, there is no need to conduct an inquiry into whether another juror threatened her and in what manner before she was excused. There is no allegation before the Court that any juror who actually voted on the verdict was threatened by any other juror.
Finally, Botti contends that the post-verdict letters, Juror Number 8's letter to the Court and Jurors A and B's letters to the government, require further juror inquiries. They do not, either singly or collectively. Under Rule 606(b), the three legitimate areas of post-verdict jury inquiry are whether extraneous prejudicial information was improperly brought to the jury's attention, or whether any outside influence was improperly brought to bear upon any juror, or whether there was a mistake in entering the verdict on the verdict form. None of these letters contains anything relevant to those concerns.
Having considered all of Botti's arguments in support of his motion for permission to interview the trial jurors [Doc. 324], I conclude that they fail to show clear, strong, substantial and incontrovertible evidence that a specific, nonspeculative impropriety occurred which could have prejudiced the trial. That was Botti's burden under Second Circuit case law, and he did not sustain it. In consequence, I denied his request.
It is proper to add that while I found it necessary to excuse Juror Number 8, that in no way reflects a conclusion that she acted in bad faith or with intentional impropriety.
