Opinion
CR 19-02946-TUC-JAS (LAB)
10-05-2021
United States of America, Plaintiff, v. John Milton Lee, Defendant.
REPORT AND RECOMMENDATION
Honorable Leslie A, Bowman United States Magistrate Judge
The District Court referred this case to the Magistrate Judge for a hearing on the defendant's motion to end jury tampering by oath. (Doc. 77) The defendant, John Milton Lee, takes issue with the Ninth Circuit model jury instruction that requires the judge to instruct the jurors that they must follow the law and the judge's instructions whether they agree with them or not. He claims that the oath and jury instructions are unconstitutional because they are an attempt to reduce jury nullification and enhance the conviction rate.
A hearing was held on 10/1/21. Mr. Lee provided the Court with a witness list of seven potential witnesses, but none were present for the hearing. No testimony was offered by the government or the defense. Mr. Lee submitted an exhibit list for the hearing, but no exhibits were admitted.
Page 4 of the exhibits was proffered to the Court in response to the government's statement that Mr. Lee was denied entry into Mexico for transporting a motorcycle without proper documentation. The photo was referenced to demonstrate that it was properly registered in the United States. The photo was not admitted into evidence.
Charges :
The defendant is charged in Count 1 of the indictment with smuggling goods from the United States, in violation of 18 U.S.C. § 2778 and 22 C.F.R. §§ 121.1, 123.1 and 127.1. He is charged in Count 2 with Impeding and Threatening a Federal Officer, in violation of 18 U.S.C. §§ 115(a)(1)(B) and (b)(1)(B)(iv). He is charged in Count 3 with Possession of Marijuana, in violation of 18 U.S.C. § 844. The indictment also includes a Forfeiture Allegation, pursuant to 18 U.S.C. § 924(d) and 28 U.S.C. § 2461(c).
Motion to End Jury Tampering by Oath :
The defendant argues that placing a jury under oath is jury tampering. Requiring jurors to swear to follow the law and the judge's instructions, even if they do not agree, violates the constitutional mandate to have a trial by a jury of one's peers.
The government responds that the defendant's motion lacks legal authority and jury instructions will be founded in law, including Ninth Circuit Model Jury Instructions. (Doc. 85) The government disputes the defendant's claimed right to jury nullification.
Without evidence or legal support, Mr. Lee replies that the oath and instructions have reduced jury nullification and increased the conviction rate. (Doc. 92)
The Court concludes that the issue of jury instructions is not ripe. It explained to Mr. Lee that he will have the opportunity to submit proposed jury instructions and object to the government's proposed instructions prior to trial and prior to the reading of the instructions to the jury.
RECOMMENDATION :
In view of the foregoing, it is recommended that, after its independent review of the record, the District Court DENY the motion to end jury tampering by oath. (Doc. 77)
The defendant may serve and file written objections within 14 days. If objections are not timely filed, the party's right to de novo review may be waived. No reply to objections shall be filed unless leave is granted from the District Court.
The Clerk of the Court is directed to send a copy of this Report and Recommendation to all parties.