Opinion
CRIMINAL ACTION No. 98-165-B-M2
January 5, 2001
RULING ON DEFENDANTS' MOTION FOR JUDGMENT OF ACQUITTAL OR NEW TRIAL
The defendants have filed a motion for a post-verdict judgment of acquittal or alternatively, an amended motion for a new trial. At the close of all of the evidence, the defendants also filed a motion for a judgment of acquittal which was taken under advisement by the Court. The government has opposed these motions.
Rec. Doc. No. 1467; Rec. Doc. No. 1470.
Rec. Doc. No. 1306. Ecotry Fuller and Greg Tarver also filed motions for judgment of acquittal at the close of all of the evidence. The jury found these defendants not guilty. Therefore, these motions are now moot insofar as they pertain to Ecotry Fuller and Greg Tarver.
Rec. Doc. NO. 1496; Rec. Doc. No. 1492.
After the defendants' motions were filed, the United States Supreme Court rendered its decision in Cleveland v. United States, This Court, on its own motion, requested that the parties submit briefs on the issue of whether the Cleveland decision affected the guilty verdicts previously rendered in this case. After hearing oral arguments, the Court, without objection from the United States, granted a new trial on the following counts, for the following defendants:
531 U.S.__, 121 S.Ct. 365 (2000).
Bobby Johnson — Count 6;
Stephen Edwards — Counts 21 and 22; and
Edwin Edwards — Counts 21 and 22.
Despite the objection of the United States', the Court also granted a new trial on the following counts:
Stephen Edwards — Counts 20, 25, 26 and 27; and
Edwin Edwards — Counts 20, 25, 26 and 27.
In all other respects, the Court, for oral reasons given and in accordance with Griffin v. United States, denied the defendants'
502 U.S. 46, 112 S.Ct. 466, 116 L.Ed.2d 371 (1991).
motions for a new trial on all other counts based on Cleveland. In doing so, the Court held that the defendants were not entitled to a new trial on all counts because of an alleged "spillover effect" from the mail and wire fraud counts on which the Court granted a new trial.
The Court adopts, as part of this opinion, the oral reasons previously given which granted in part and denied in part new trials based on Cleveland. See Rec. Doc. No. 1696 (Tr. 12/6/00); Rec. Doc. No. 1697 (Tr. 12/7/00).
In the alternative, the Court also found there was harmless error. See Neder v. United States, 527 U.S. 1, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999).
The Court must now resolve the other, issues raised in the defendants' pending motions. For the reasons set forth below, the defendants' motion for judgment of acquittal, post-verdict judgment of acquittal, or new trial, is DENIED.
I. Arguments Presented
In addition to the claims asserted under Cleveland, the defendants contend they are entitled to a judgment of acquittal, or alternatively a new trial, because the Court:
(1) improperly dismissed Juror #68 during jury deliberations;
(2) failed to suppress illegally obtained electronic surveillance evidence and the fruits thereof;
See Appendix A. Since the motion for a new trial was filed, the defendants have filed a motion to reconsider the Court's denial of these motions. See Rec. Doc. No. 1660.
(3) failed to suppress fruits of an illegal search;
(4) empaneled an anonymous jury in contravention of defendants' constitutional rights;
(5) improperly tried Bobby Johnson in absentia and, in so doing, created delays that prejudiced all of the defendants;
(6) failed to grant Bobby Johnson's motion for a mistrial; and
(7) erroneously denied defendants' motions to sever their cases from Bobby Johnson.
The defendants further contend that:
(1) Edwin and Stephen Edwards' convictions for extortion, conspiracy and mail or wire fraud based on the 15th Riverboat and Treasure Chest Schemes, were against the weight of evidence;
(2) there were inconsistent verdicts on the conspiracy and mail/wife fraud counts related to the 15th Riverboat Scheme;
(3) the government failed to prove the essential element of concealment in the money laundering count;
The Court has already granted Edwin and Stephen Edwards a new trial on Counts 20, 21, 22, 25, 26 and 27, which charged them with conspiracy to commit mail and wire fraud and mail or wire fraud based on Cleveland v. United States. The Court also granted Bobby Johnson a new trial on Count 6 on the same ground. See pp. 2-3, supra."
(4) defendants were deprived of a public trial;
(5) defendants' counsel were denied the right of access to various proceedings at critical stages of the trial;
(6) the Court admitted improper and prejudicial hearsay evidence during the trial;
(7) the Court allowed prejudicial evidence of privileged communications between defendant, Cecil Brown, and his attorney to be admitted into evidence;
(8) Cecil Brown's conviction was against the weight of the evidence;
(9) Bobby Johnson's conviction was against the weight of the evidence; and
(10) all convictions of each defendant were against the weight of the evidence.
Finally, the defendants argue that this Court should have recused itself from further proceedings in this case after the Judge recused himself in the case of United States v. James H. Brown.
CR No. 99-151. See Rec. Doc. No. 1489.
The United States strongly opposes the defendants' motion. The government contends that the defendants ' arguments are not supported by the law and evidence in this case. In addition, the United States claims the evidence in this case fully supports the guilty verdicts returned by the jury. In short, the government's position is that the defendants received a fair and impartial trial, the Court did not err in its rulings and the guilty verdicts were proper. Therefore, the government urges the Court to deny the defendants' motions for a new trial and their request for a judgment of acquittal.
The Court now turns to a discussion of each of these contentions.
II. Discussion
As the record reveals, the Court used an anonymous jury. Therefore, jurors were referred to by the number assigned to them.
During the jury's deliberations, the Court received two notes from the jury which ultimately caused the Court to conduct a hearing. One note came from Juror #68. The foreman of the jury sent the other note on behalf of the jury. In addition to conducting a hearing on the two juror notes, the Court also conducted a hearing, at the same time, on a prior complaint the Court had received from two citizens regarding Juror #68.
The hearing that the Court held on Juror #68 was identical to the hearings previously conducted on Juror #350, after the Court had received a similar complaint. The defendants did not object to the investigation or to the dismissal of Juror #350, even though the Court's reasons for dismissing the jurors were essentially identical.
The defendants argue that the Court improperly investigated the allegations surrounding Juror #68 and then removed the juror, in violation of the defendants' constitutional rights. According to the defendants, the Court should not have investigated the complaints it received about this juror from a telephone call made to the Court during the trial or the information set forth in the foreman's note which indicated that the juror may have been disobeying the Court's instructions. In opposition, the government argues that Juror #68 was properly removed as a juror based on his lack of candor with the Court and his failure to follow the Court's instructions.
Rec. Doc. No. 1475, pp. 3-10.
Rec. Doc. No. 1496, pp. 2-10.
Because the Court again finds that Juror #68 was properly removed as a juror, the Court denies the defendants' motion for a judgment of acquittal, or new trial, based on this ground. The Court has previously set forth detailed reasons, in two separate opinions, explaining why Juror #68 was removed from the jury. The Court adopts by reference the reasons set forth in these opinions. As reflected in these opinions, the Court found that the juror had not been candid with the Court in the responses he gave during a hearing conducted by the Court. The Court also found that on several occasions, including during jury deliberations, the juror had failed to follow the legal and other instructions given to the jury by the Court. As is clearly noted in the transcripts of the hearings conducted by the Court and in the Court's earlier opinions, the Court did not remove this juror for his religious beliefs or for any opinions he may have had regarding the guilt or innocence of — any defendant. The Court also found that the complaints made by the two citizens did not warrant Juror #68's dismissal.
The Court dictated two lengthy opinions into the record after Juror #68 was discharged from the jury. See Rec. Doc. No. 1611, pp. 24-31; 32-51 (Tr. 5/5/00). The Court first announced one opinion in an open hearing, with the press and public present. To avoid any prejudice to the remaining jurors who were still deliberating, the Court provided a more detailed explanation to the parties and their counsel in an in camera hearing. Both of these opinions have now been made a part of the public record.
Fifth Circuit jurisprudence clearly holds that a trial court has discretion to remove a juror who fails to be candid in answers given to the Court. In addition, a district court is bound to investigate allegations and remove a juror who has violated his or her oath as a juror by disobeying the court's instructions.
See United States v. Fryar, 867 F.2d 850 (5th Cir. 1989).
United States v. Thomas, 116 F.3d 606 (2nd Cir. 1997), petition for cert. filed (Mar. 24, 2000) (No. 99-8779).
In addition to the reasons previously given by the Court, the Court now addresses the arguments specifically raised by the defendants in their motion. The Court believes that it is important to set forth a clear timeline of the events which ultimately led to the removal of Juror #68. Despite the Court's clear statement and ruling that the Court only removed Juror #68 because of his lack of candor and his failure to follow the Court's instructions, the defendants attempt to characterize the Court's investigation of Juror #68 as an improper intrusion into the jury's deliberative process. The Court finds that the hearings which led to the removal of this juror did not involve an improper inquiry into the jury's deliberations for a number of reasons. It is clear that the removal was not based on the juror's beliefs about the sufficiency, or insufficiency, of the evidence. In addition, the record clearly reveals that the Court was very careful not to ask questions about any juror's opinion on the guilt or innocence of the defendants, or matters discussed by the jury during its deliberations. It was only after the Court began to conduct its investigation on the foreman's note, that the Court learned of instances of the juror's failure to follow the Court's instructions and his subsequent failure to be candid with the Court about these issues.
Rec. Doc. No. 1603, pp. 287-289, 295-296, 305 (Sealed Tr. 5/1/00); Rec. Doc. 1604, pp. 287-289, 295-296, 305 (Redacted Tr. 5/1/00). See also Rec. Doc. No. 1605, pp. 5-7, 18, 23-24, 29, 52-64, 78-79, 91, 91-102, 136, 153, 161, 168-170, 175, 181, 185-188, 191 (Sealed Tr. 5/2/00); Rec. Doc. No. 1606, pp. 5-7, 18, 23-24, 29, 52-64, 78-79, 91, 91-102, 136, 153, 161, 168-170, 175, 181, 185-188, 191 (Redacted Tr. 5/2/00).
In addition to the foreman's note, the Court had also received other information, during the trial, regarding alleged actions of Juror #68. During the course of the trial, the Court received several anonymous phone calls from persons who claimed to have information regarding Juror #68. Essentially, the callers alleged that Juror #68: (1) was talking about the case at church functions while serving as a juror in this case; (2) had previously been involved with defendant, Edwin Edwards, in a medical transportation business in Melville, Louisiana; (3) had sought counseling from his pastor about the verdict; and (4) had strong bias against the defendant, Edwin Edwards. After questioning Juror #68 on two separate occasions regarding these allegations, the Court found no reason at that time, based on the evidence presented, to remove him from the jury. Without objection from the defendants, the Court allowed Juror #68 to remain on the jury.
See Rec. Doc. No. 1587, pp. 48-50 (Tr. 3/21/00); Rec. Doc. No. 1695, pp. 10-11 (Tr. 4/18/00).
Because the Court was able to identify the two people who called the Court in reference to Juror #68, the Court had the United States Marshal's Office investigate the matter further. The United States Marshal's Office proceeded to interview those persons who had information regarding the allegations made pertaining to Juror #68. As the Court received information about the matter from the marshal's office, the Court disclosed the information to the parties. At various times before the jury began its deliberations, the Court advised the parties of the need to hold a hearing on these allegations. The Court believed then, and continues to believe, that because of Juror #68's alleged bias against Edwin Edwards and the other allegations made regarding Juror #68, the Court was required to hold a hearing on whether Juror #68 should continue to serve as a juror. Once the Court received the foreman's note, it was clear that a hearing on the previous allegations received by the Court and those raised by the foreman's note should be held at the same time.
Other information also came to the Court's attention, during the trial, regarding Juror #68. After jury deliberations began on April 24, 2000, the Court discovered that a juror had brought a dictionary and a thesaurus into the jury deliberation room. The Court directed the United States Marshal's Office to remove the two books. The Court also admonished the jury that they were not to consider any outside sources, like the dictionary, as part of their deliberations. The Court advised the jury that they had to follow the law, as provided by the Court. In addition, the Court instructed the jury that no juror could bring anything into or take anything from the jury deliberation room without the permission of the Court. The Court stated:
Under no circumstances may you bring other materials in the jury room other than what I sent back there to you. That means your notes that you have already taken during the trial, the notes that you take during the course of your deliberations are permitted.
The indictment that the Court sent back to you may be used by you. The jury charge which I sent to you may be used by you. All of the exhibits which have been sent to the jury deliberation room may be used by you. Nothing that was not admitted into evidence or given to you by the Court can be used by you, and nothing else can be brought into the jury room. Dictionaries, thesauruses are not permitted.
Rec. Doc. No. 1687, p. 41 (Tr. 4/25/00).
The Court later discovered that Juror #68 had brought the dictionary and the thesaurus into the jury deliberation room without the permission of the Court, and that the dictionary may have been referred to during the deliberations. Among the words highlighted, or otherwise marked, in the dictionary were "conspiracy, " "extortion" and "extort."
The jury foreman and other jurors revealed that certain definitions from the dictionary were discussed by the jurors. The definitions of "extortion, " "extort" and "conspiracy" were mentioned. See Rec. Doc. No. 1605, pp. 105-106, 163-165, 197 (Sealed Tr. 5/2/00); Rec. Doc. No. 1606, pp. 105-106, 163-165, 197 (Redacted Tr. 5/2/00).
This was not the first time Juror #68 had failed to follow the Court's instructions to the jury. During the trial, despite being specifically instructed not to do so, Juror #68 had kept a copy of a transcript of a telephone call, which had been played to the jury. The Court allowed the jurors to use the transcripts as an aid when the recordings were played to the jury. The jurors were not permitted to keep copies of the transcripts. The Court only discovered that Juror #68 had kept a copy of the transcript when the transcript fell from his trial notes when the notes were being secured at the end of the day's testimony. The Court had also instructed the jurors not to write — any notes or other matters, including their juror numbers, in the transcript books which the jury was using. However, when the defendant, Edwin Edwards, was testifying during the trial, he noted that Juror #68's number was on the transcript book that he was using during his testimony. The Court requested that Edwin Edwards be given another transcript book to use during his testimony.
This document, with Juror #68's number on it, was introduced into evidence. See Rec. Doc. No. 1460.
Several days after the dictionary incident, the Court received a note from Juror #68 which indicated that he felt "intimidated" by other jurors and had "doubts." The note did not provide any other details regarding the source of the juror's problems. After sending the note to the Court, the juror refused to re-enter the jury deliberation room, apparently waiting for the Court to respond to his note. Instead of individually questioning the jurors about this incident, the Court decided to re-read a portion of the final jury charge which had earlier been given to the jury after closing arguments. The jury then resumed its deliberations.
Rec. Doc. No. 1316 (Jury Note No. 7)(4/27/00).
The Court read the section of the jury charge which explained a juror's duty to deliberate.
On May 1, 2000, the Court received a note from the jury foreman regarding a jury problem. After extensive discussions with the parties regarding the proper procedure the Court should follow, the Court elected to question only the jury foreman to determine the nature of the problem. The Court decided to question the jury foreman for two primary reasons: (1) the Court simply did not have adequate information based on the two jury notes to determine what problems, if any, the jury was having; and (2) based on the facts and the circumstances, the Court concluded the refusal to deliberate could be related to the "intimidation" mentioned by Juror #68 in his note to the Court, the dictionary incident, or other matters of which the Court was not aware. Because the Court was also aware of the sensitive nature of questioning jurors during deliberations, the Court informed the parties that a limited scope of questions would be posed. The Court also discussed the procedures which would be followed by the Court. The following procedure was adopted: The Court first discussed what questions would be asked of the juror with the parties. The Court then brought the juror into the conference room and asked the juror those questions, on the record, with only the juror, Judge, marshal and court reporter present. After answering the Court's questions, the juror was excused from the room and the Court discussed the answers and follow-up questions with the parties. During the interview with the foreman, the Court clearly set forth the parameters of the questions to be asked of him by telling the foreman, before any questions were asked:
Rec. Doc. No. 1328 (Jury Note No. 11)(5/1/00).
The defendants strenuously argued that the Court had adequate information based only on the two notes to conclude that the juror's refusal to deliberate was based on the sufficiency of the evidence. Rec. Doc. No. 1475, p. 6. As the testimony later revealed, the notes failed to adequately explain the problems which the jurors were encountering, as well as the fact that material was being taken to and from the jury deliberation room by Juror #68.
Rec. Doc. No. 1603, pp. 263-283 (Sealed Tr. 5/1/00); Rec. Doc. No. 1604, pp. 263-283 (Redacted Tr. 5/1/00).
THE COURT: Mr. 64, the only people here, as you can see, is the court reporter and myself and the marshal. I am going to ask you some very limited questions in an attempt to have you explain the last note that you all sent to me, number 11, regarding the note that I am now showing you. Okay.
Never do I want you to tell me, nor do I want to know, how you have voted or anybody else on that jury has voted, including the juror who is subject of the note. Do you understand that? You have to answer me.
Rec. Doc. No. 1603, p. 269 (Sealed Tr. 5/1/00); Rec. Doc. No. 1604, p. 269 (Redacted Tr. 5/1/00) (emphasis added).
Each time the Court questioned this juror (and all other members of the jury), the Court cautioned the juror, not: to disclose any information about the deliberative process, their votes or their discussion of the evidence.
During his testimony, the foreman explained that Juror #68 refused to discuss anything with the other jurors during the deliberations and that "[h]e doesn't interject at all to help us understand why this person feels the way he does on an issue versus why we feel this way on the issue to help us understand his way or for him, for us to help him understand our way." As a part of a follow-up question and answer, the foreman also disclosed that he observed Juror #68 removing pieces of paper from the jury room during the course of deliberations. In pertinent part, the foreman said:
Rec. Doc. No. 1603, p. 280 (Sealed Tr. 5/1/00); Rec. Doc. No. 1604, p. 280 (Redacted Tr. 5/1/00).
JUROR 64: Not a threat, it was just more of an attitude between — I am not going to talk — I am not talking to that person. Jurors have seen several things going on that look funny. Showing up possibly with some notes that came from your house. I believe two or three people noticed that. I don't have enough —THE COURT: This juror may have brought something in?
JUROR 64: A note from home. I couldn't swear under oath that I know for a fact that happened. I saw part of that situation and I believe it happened.
I saw along with four or five other jurors today this person take several notes out of the personal notebook, walk out of the room to the bathroom, and come back in and make a point that we saw him lay one sheet of paper back on top of his book. I know he walked out of the room with more than one sheet of paper. It may be all innocent. I don't know, but the way the voting is going and the kind of comments that have been made, and the lack of communication in deliberation, all of these little things have caused a lot of concerns in the room.
THE COURT: We are not going to ask you any more questions tonight. We are going to let you go home, and we will meet again at eight o'clock in the morning.
Rec. Doc. No. 1603, pp. 292-293 "(Sealed Tr. 5/1/00); Rec. Doc. No. 1604, pp. 292-293 (Redacted Tr. 5/1/00).
The foreman's statements about Juror #68 removing paper from the jury deliberation room concerned the Court. Because of dictionary and thesaurus incident and the Court's firm instructions to the jury that no material should be brought into or taken from the jury room, the Court was concerned that this juror was again disobeying the Court's instructions. The Court has already explained other instances where Juror #68 had failed to follow the Court's instructions. The Court believed it was imperative to determine what was happening to ensure that the jury deliberations and any verdict would not be questioned later, — particularly if guilty verdicts were returned.
On the following day, the Court again questioned the foreman regarding his note. The foreman's answers were consistent with his previous day's testimony, although he also stated the following regarding Juror #68:
Rec. Doc. No. 1605, pp. 103-108 (Sealed Tr. 5/2/00); Rec. Doc. No. 1606, pp. 103-108 (Redacted Tr. 5/2/00).
The book that we have, the binder, with all of the yellow paper that we write in throughout the trial, and it could be just coincidence, but during a part that was kind of not going well in deliberations, because of a certain individual, when we got-after the vote was made, I believe it was after the vote was made, several pages were taken out, and then he went to the bathroom. He was gone three to five minutes. And when he came back there was only one yellow sheet of paper.
Rec. Doc. No. 1605, pp. 106-107 (Sealed Tr. 5/2/00); Rec. Doc. No. 1606, pp. 106-107 (Redacted Tr. 5/2/00).
The Court then questioned Juror #68 regarding the dictionary and thesaurus incident, and the bringing of material into and the removal of notes from the jury room. Although Juror #68 acknowledged bringing the dictionary and thesaurus into the deliberation room, he denied bringing anything else into the room. The transcript reflects that the Court very specifically asked this juror about the issues testified to by the foreman:
Rec. Doc. No. 1605, pp. 154-168 (Sealed Tr. 5/2/00); Rec. Doc. No. 1606, pp. 154-168 (Redacted Tr. 5/2/00).
THE COURT: Okay. I am going to ask you a couple more questions.JUROR #68: Yes, sir.
THE COURT: And then we will probably take another little break, okay?JUROR #68: Yes, sir.
THE COURT: What materials, including the dictionary and thesaurus, have you brought into the jury room; could you describe each of them with some particularity as to what you have brought into the jury room?
JUROR #68: Yes, sir. I apologize for bringing that. The night before the second day of deliberation, my son had some books out, and" one of them was his dictionary. I was just glancing through it, and I asked him if I could use it. And I was not aware that you couldn't have one, and I innocently did bring it into the jury room. Well, my son asked me, he. said, well, here is another book. You might want it too, you know. And I didn't even really notice what it was until I got here, and I saw it was a thesaurus, too. So I just put them on the table, deliberation table. And before it was discovered, another juror had asked, do we have a dictionary in here? And I said, sure. I said, I brought one, I said, in case we needed it. And that person said, great, you know. That will help us to maybe understand some things better as we go along. I said, well, you're more than welcome to use it.
So there were a couple of words that were looked up. And to make it easier, I was going to highlight each word and put a sticker, the stickum paper on each word, in case we wanted to go back to it. We just had to thumb to see on the end of the card what the word was. But it was seen before, right after lunch.
THE COURT: Okay. Were any other materials brought into the jury room?JUROR #68: By me?
THE COURT: Yes.
JUROR #68: No, sir. Nothing else.
THE COURT: Specifically, do you know if you ever brought any notes into the jury room that were not your notes that you all kept up here? Did you bring — any other notes into the jury room from home or any other place?JUROR #68: Notes that I made or anything?
THE COURT: I am just asking. I don't —
JUROR #68: No, sir.
THE COURT: Any other material of any kind, whether they were notes, papers, books, charts, whatever, whatever you might want to — I mean, you have to tell me, I don't know.
JUROR #68: That's all that I brought in, your honor.
THE COURT: Just the dictionary, and just the thesaurus?JUROR #68: Yes, sir. Yes, sir.
THE COURT: Okay. Have you — well, let me phrase it this way — what materials of any type whatsoever have you taken from the jury room and just brought home with you, or just taken outside of the jury room?
JUROR #68: Besides — and this really isn't material — besides water, or a cold drink, I have a medicine, a bag with medicine in it. That's all.
Rec. Doc. No. 1605, pp. 161-166 (Sealed Tr. 5/2/00); Rec. Doc. No. 1606, pp. 161-166 (Redacted Tr. 5/2/00) (emphasis added)
The following day, the Court again questioned Juror #68 regarding the removal of notes from the jury room. Juror #68 again denied removing any notes from the jury room. He then admitted he may have taken blank pages from his notebook and written down his wife and son's names on the paper to calm his nerves. After several more questions, the juror also recalled that he may have brought extraneous materials into the room. The Court then questioned the remaining jurors. Juror #68's account of taking things into and out of the jury room was contradicted by several of the other jurors. Jurors 335, 334, 36, 11, and 134 all stated that they saw Juror #68 remove papers from the jury room. Juror #334 clearly saw the incident. She testified "just yesterday after the note was sent, he — when we came back upstairs, he [Juror #68] tore out about five or six pages from his notebook that it appeared he had been writing on throughout that — just that day, just yesterday, and went to the bathroom with them, and when he came back he had only one sheet. And I noticed this because he's right-on the side of me." Jurors 235 and 160 also saw Juror #68 either remove the papers from the jury room or bring them back in. The Court reached the following factual conclusions regarding the events surrounding Juror #68:
(1) Juror #68 brought materials into and removed material from the jury room. He did so in direct violation of the Court's previous order which prohibited the jurors from bringing any extrinsic information into the jury deliberation room or from removing materials from the jury deliberation room.
(2) The juror denied bringing any materials into or out of the jury deliberation room when questioned by the Court. This testimony was contradicted by the testimony of numerous other jurors.
(3) Only after being confronted with questions about the extraneous materials did the juror remember that he had taken materials out and brought materials into the jury room.
(4) The testimony of other jurors directly conflicted with Juror #68's testimony on these issues.
Rec. Doc. No. 1607, pp. 41-46 (Sealed Tr. 5/3/00); Rec. Doc. No. 1608, pp. 41-46 (Redacted Tr. 5/3/00).
Rec. Doc. No. 1607, p. 42 (Sealed Tr. 5/3/00); Rec. Doc. No. 1608, p. 42 (Redacted Tr. 5/3/00).
Rec. Doc. No. 1607, pp." 41-45 (Sealed Tr. 5/3/00); Rec. Doc. No. 1608, pp. 41-45 (Redacted Tr. 5/3/00). In referring to his recollection that he brought paper into the jury room, Juror #68 said [he brought in] "a question one time at the beginning that I on the way to where they pick us up at I had jotted down on a piece of paper. Other than that — and I just glanced over it in the deliberation room." Rec. Doc. No. 1607, p. 43 (Sealed Tr. 5/3/00); Rec. Doc. No. 1608, p. 43 (Redacted Tr. 5/3/00).
See Rec. Doc No. 1605, pp. 213; 235-237; 243-246; 251-252; 258-263 (Sealed Tr. 5/2/00); Rec. Doc. No. 1606, pp. 213; 235-237; 243-246; 251-252; 258-263 (Redacted Tr. 5/2/00).
Rec. Doc. No. 1605, p. 235 (Sealed Tr. 5/2/00); Rec. Doc. No. 1606, p. 235 (Redacted Tr. 5/2/00).
See Rec. Doc. No. 1605, pp. 198-200; 228-230 (Sealed Tr. 5/2/00); Rec. Doc. No. 1606, pp. 198-200; 228-230 (Redacted Tr. 5/2/00).
In reaching these factual conclusions, the Court took into consideration the credibility of the witnesses who testified at the hearing.
The Court, based on the information presented at the hearing and considering other matters which had occurred during the trial involving Juror #68, removed Juror #68 from the jury for just cause.
Fed.R.Civ.Proc. 23(b) allows a verdict to be rendered by a jury of less than twelve if "the court finds it necessary to excuse a juror for just cause after the jury has retired to consider its verdict." The jurisprudence has defined what constitutes "just cause" for the removal of a juror once deliberations have begun.
See United States v. Brown, 823 F.2d 591 (D.C. Cir. 1987); United States v. Thomas, 116 F.3d 606 (2nd Cir. 1997), petition for cert. filed (Mar. 24, 2000) (No. 99-8779).
As the Court noted in its oral opinions, it would be "a dereliction of duty for a judge to remain indifferent to reports that a juror is intent on violating his oath." It is clear that a juror who "is determined to ignore his duty, who refuses to follow the court's instructions on the law and who threatens to undermine the impartial determination of justice based on law' is subject to dismissal during the course of deliberations under Rule 23(b)." "This conclusion reinforces the court's inherent authority to conduct inquiries in response to reports of improper juror conduct and to determine whether a juror is unwilling to carry out his duties faithfully and impartially." The Court may remove a juror for failure to follow the Court's instructions and for failure to be candid with the Court. The Court may not discharge the juror "if the record evidence discloses any possibility that the request to discharge stems from the juror's view of the sufficiency of the government's evidence. . . . "
Rec. Doc. No 1611, p. 26 (Tr. 5/5/00). See also Thomas, 116 F.3d at 616.
Thomas, 116 F.3d at 617 ( quoting United States v. Krzyske, 836 F.2d 1013, 1020 (6th Cir.), cert. denied, 488 U.S. 832, 109 S.Ct. 89, 102 L.Ed.2d 65 (1988)).
Id.
Brown, 823 F.2d at 596. See also Thomas, 116 F.3d at 621, 622.
A review of the record in this case reveals that the Court was very careful not to probe into the jurors' opinions as to the sufficiency of the evidence, or to otherwise learn any juror's views regarding the evidence or the substance of their deliberations. Indeed, the Court gave a very careful instruction to each juror before asking the juror any questions which cautioned the juror not to disclose their vote, or the vote of any juror, juror discussions of the evidence, or information about the deliberative process. As the Court noted earlier, once the juror advised the Court of the nature of the problem, the Court only asked questions about extraneous matters.
The Court advised the parties that it could no longer ask Juror #68 additional questions because of the Court's belief that there was a possibility that Juror #68's position may be based on his evaluation of the evidence.
These extraneous matters were commonly referred to as questions one, two, three and five. See Rec. Doc. No. 1605, p. 191 (Sealed Tr. 5/2/00); Rec. Doc. No. 1606, p. 191 (Redacted Tr. 5/2/00).
After questioning the jury foreman about the remaining allegations in his note, the Court felt obligated and compelled to resolve the other allegations which had been brought to the Court's attention by the foreman. It was during these interviews that the Court discovered that Juror #68 had violated the Court's instructions prohibiting jurors from bringing in or taking materials from the jury deliberation room and that Juror #68 had not been candid with the Court. In deciding to remove Juror #68 from the jury, the Court found that he had previously violated the Court's orders by:
(1) keeping a copy of a transcript, on which he placed his juror number, of a tape recording which had been played to the jury with his trial notes;
(2) writing his juror number on the transcript book which Edwin Edwards later used briefly during his testimony;
(3) bringing a thesaurus and a dictionary into the jury room and highlighting definitions of "conspiracy," "extort" and "extortion" found in the dictionary;
(4) taking papers in and removing papers from the jury room during the jury's deliberations after having been instructed not to do so by the Court; and
(5) failing to be candid with the Court when the Court asked the juror questions regarding materials being taken to or from the jury deliberation room.
Juror #68 violated the Court's instruction on extraneous material only several days after it was given to the jury. Despite the defendants' attempts to portray the juror's actions as understandable and innocent, the Court's instructions were very clear. No material was to be brought into or taken out of the jury room.
The cumulative effect of the juror's failure to follow the Court's instructions and to be candid with the Court constituted "just cause" to remove the juror from the jury. His removal had nothing to do with his opinion of the evidence or his religious beliefs. The Court also found that the complaints made by the two citizens during the trial did not warrant the juror's removal. For the Court to have allowed the juror to continue to serve in this case would not have been in the interest of justice and would have "threatened to undermine the impartial administration of justice based on law. "
United States v. Krzyske, 836 F.2d 1013, 1020 (6th Cir.), cert. denied, 488 U.S. 832, 109 S.Ct. 89, 102 L.Ed.2d 65 (1988).
The defendants' argument that Juror #68 was the lone hold out whose removal deprived the defendants of their right to a unanimous verdict is not supported by the facts of this case. This jury returned numerous not guilty verdicts in this case and also found that numerous racketeering acts had not been proven. The verdict fails to support the argument that the jury wanted the juror off the jury in order to be able to return guilty verdicts. Furthermore, the mere fact that a juror may be a hold out, which is not certain here, does not preclude the Court from removing the juror for just cause. A review of the record also reveals that the Court heeded the cautions set forth in Thomas and other appellate cases in conducting its hearings. Specifically, the Court was very careful to maintain jury secrecy during the investigation in order to safeguard jury deliberations. Following the hearing, detailed instructions were given to the jury and voir dire was conducted to make sure the remaining jurors could serve in a fair, honest and impartial manner. Thus, a careful balance was maintained and the integrity of the jury was not compromised.
United States v. Huntress, 956 F.2d 1309 (5th Cir. 1992), cert. denied, 508 U.S. 905, 113 S.Ct. 2330, 124 L.Ed.2d 243 (1993); United States v. Leahy, 82 F.3d 624 (5th Cir. 1996).
The investigations did not interfere with the defendants' right to a trial by jury. The Court was careful to follow circuit precedent when conducting its hearings. It also followed circuit precedent in removing all of the jurors who were removed in this case. As the jurisprudence indicates, when extrinsic material is introduced into the jury deliberation room, the sanctity of jury deliberations is invaded and the Court must ensure that such material does not influence the jury's verdict.
See Paz v. United States, 462 F.2d 740 (5th Cir. 1972), cert. denied, 414 U.S. 820, 94 S.Ct. 115, 38 L.Ed.2d 52 (1973); United States v. Luffred, 911 F.2d 1011 (5th Cir. 1990).
As noted earlier, the Court took into consideration the credibility of the witnesses in reaching its decision. In determining the facts, the Court stated:
Despite Mr. 68's denial of his, that he brought notes out of the room or brought notes back into the room on the first inquiry that the court conducted, Jurors 160, 334, 36, 134, 370 and 237 saw the juror take notes, leave the room, the jury deliberation room, and come back with the notes. Three jurors did not see the notes go out, but saw the notes come back in, Jurors 11, 64 and 235. Two jurors did not see anything in regard to this matter, Jurors 335 and 300, although Juror 335 testified that that juror was troubled by what had happened after she learned of it.
Four jurors saw notes come out of the juror's, #68's pocket, Jurors 160; 36; 334 — who apparently was sitting close to him at the time — and 64.
Two of the jurors, numbers 36 and 334, testified that these notes would be pulled out at the time of votes, and Juror 36 indicated that the juror was very suspicious.
Juror 334 indicated that she believed this was done on more than one occasion, but she would only testify that she saw it at least once.
Rec. Doc. No. 1611, p. 39 (Tr. 5/5/00).
The defendants also argue that the Court treated Juror #68 differently from Juror #350. However, the record reveals that Juror #350 was also removed from the jury for failing to be candid with the Court. The Court followed "the same procedures in conducting the hearings involving both of these jurors. What complicated the hearing involving Juror #350 was the fact that persons who were closely associated with the defendants had made the accusations against the juror. However, these close associations were not voluntarily disclosed to the Court by the defendants or their counsel. One of the key witnesses at the hearing involving Juror #350 had previously dated Vickie Edwards, the daughter and sister of Edwin and Stephen Edwards, respectively, had eaten frequently at the governor's mansion, and rode horses with Edwin Edwards. He also was a business partner of Bobby Johnson and was Bobby Johnson's wife's beautician, and who may have even fixed her hair during the trial. Another witness had attended the wedding of Candy Edwards' best friend, which was held at the governor's mansion. After holding appropriate hearings regarding Juror #350, the Court excused the juror, whom the defendants believed to be pro-government. While the defendants argue that Juror #68 may have been a pro-defense juror, it is immaterial to the Court which side a party thinks a juror may favor. The Court's main concern is whether a juror is fair and impartial, and is complying with the Court's instructions in reaching his or her verdict and serving as a juror in the case. Both Juror #350 and Juror #68 were removed for just cause. Therefore, the Court finds that the defendants' motion for a new trial based on the removal of Juror #68 is DENIED. Fruits of Electronic Surveillance and Search Warrants
Prior to the trial, the defendants filed motions to suppress evidence obtained from the electronic surveillance and from search warrants authorized by Judges Donald Walter and John Parker. The Court denied the motions, for written reasons assigned. After the motion for a judgment of acquittal, or new trial, was filed, the defendants filed a Motion to Reconsider Denial of Suppression Motions and Supplemental Filing in Support of its Motion for New Trial on Grounds of Failure to Suppress Fruits of Illegal Electronic Surveillance and Illegal Searches. "In addition, the defendants adopt, by reference, a similar motion filed by the defendant Cecil Brown in United States v. Cecil Brown. The government has filed a response to both motions. The defendants have also filed a reply to the government's response to their motion. A summary of the arguments of the parties is necessary to properly understand the issues before the Court on this motion.
Rec. Doc. No. 1539. See Appendix A.
Rec. Doc. No. 1660.
CR No. 99-171. See Rec. Doc. No. 32.
Rec. Doc. No. 1674.
Rec. Doc. No. 1680.
Cecil Brown filed a Motion to Suppress the Fruits of the Wire, Oral and Electronic Surveillance and the Fruits of the Search Warrants on November 17, 2000 in CR No. 99-171. In addition to adopting the prior motions filed in CR No. 98-165, Brown made additional arguments based on information obtained from depositions and other court hearings which occurred in unrelated cases in Texas.
As noted in the Court's earlier opinion which is attached to the appendix of this opinion, the FBI filed an application and order in the Western District of Louisiana seeking to place a wiretap on the home and office phones of Cecil Brown. Attached to this initial application was the affidavit of FBI Agent Freddie Cleveland. Brown and the other defendants contend "that the Cleveland affidavit either deliberately or with reckless disregard for the truth omitted facts clearly critical and material to a finding of probable cause." The defendants further argue that "the Cleveland affidavit failed to relate or misstated critical information concerning Patrick Graham's past and current criminal activity and his lack of credibility for the reviewing judge to consider in determining whether to issue the requested wiretaps." Specifically, Brown and the other defendants contend that the affidavit fails to:
CR No. 99-171, Rec. Doc. No. 33, p. 4.
Id.
(1) "Specify the nature or extent of Patrick Graham's extensive criminal and fraudulent activity . . .;"
(2) Inform "that the FBI created a `Chinese wall' whereby they purposefully did not learn of the specifics of Graham's criminal activity in Texas" or "the specifics of the substantial civil judgment against Graham for fraud in Texas;" and
(3) "Set forth the substantial motivation Patrick Graham had to lie based upon the benefits he would gain from assisting the government in making a case against Cecil Brown, Edwin Edwards and others in Louisiana."
Id. at 4.
Id. at 5.
Id.
In short, the defendants allege that the FBI purposefully remained ignorant of Patrick Graham's criminal activity and civil fraud, which directly implicated his credibility and reliability, and failed to call this to the attention of Judge Walter. The defendants further contend that the United States failed to disclose to Judge Walter that it would assist Graham in obtaining a downward departure in his federal tax case in Texas, advise the Texas state judge of his cooperation, and grant Patrick Graham and his brother, Michael, immunity from all federal crimes committed in Louisiana or committed partly in Louisiana and partly in Texas. Therefore, Brown and the other defendants argue that the ". . . Cleveland affidavit does not support a finding of probable cause to believe that a criminal offense has been (or will be) committed and that the facilities where interception will occur have or will be used in the commission of the alleged crime, such that evidence of the alleged crime will be obtained through the interception."
Id. at 6.
In addition to the above allegations, the defendants have filed a separate motion in the instant case (CR 98-165) which sets forth additional reasons for the Court to grant the motion to suppress. In their motion for reconsideration, the defendants contend "that the government did not provide Judge Walter and Judge Parker with complete and accurate information when it presented affidavits to those judges for authority to conduct electronic surveillance and to search the houses and offices of the defendants." Defendants suggest that the information that was provided by the government "was intentionally or recklessly false in regard to key factual points." In the memorandum filed to support the motion in CR No. 98-165, the defendants contend that the government failed to set forth specific details in the affidavits about the investigations being conducted by federal and state authorities and the benefits the Graham brothers were receiving. The defendants also assert that the FBI and the United States Attorney's Office for the Eastern District of Louisiana "purposefully avoided" learning anything else about the Grahams and "made a deliberate decision to withhold this information from both Judge Parker and Judge Walter." The defendants contend that "[t]he government vouched for [Patrick] Graham's credibility and then withheld information it had from the courts that contradicted that credibility and purposefully avoided learning additional information that it knew would further contradict that credibility." In addition, the defendants argue that "the government entered into some agreements with the Grahams that were never disclosed to Judge Walter or Judge Parker." According to the defendants, the immunity agreement made with the Grahams was "in violation of Justice Department. Regulations."
Rec. Doc. No. 1660, p.l.
Id.
See Rec. Doc. No. 1661, p. 3.
Id. at 4.
Id. at 5.
Id. The defendants make specific reference to USAM §§ 9-27.640 and 9-27.650.
The defendants also contend the information set forth in. Cleveland's June 26, 1996 affidavit, regarding an alleged payment made to bribe Edwin Edwards, "was a lie." Thus, the defendants suggest that the government provided false information to the judge.
Id. at 6.
Finally, in both motions, the defendants seek a hearing under Franks v. Delaware to determine what effect these disclosures or failure to disclose have on the affidavits submitted to Judges Parker and Walter.
438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978).
The United States has filed a response to the defendants' motions in CR No. 98-165 and CR No. 99-171. The United States contends that the disclosures it made in the Cleveland affidavit comply with "relevant case law." The government also states that the judges:
Rec. Doc. Nos. 564, 1674.
Rec. Doc. No. 46.
Rec. Doc. No. 1674, p. 2.
(1) "were given more than enough information to determine that Pat Graham had motivation to lie;"
(2) "were told that Pat Graham had been indicted by a Texas grand jury for money laundering and theft, said matter then pending;"
(3) "were further told that Pat Graham was the target of a current federal tax and corruption investigation in Houston handled by the IRS and FBI in conjunction with the U.S. Attorney's office."
Id. (emphasis supplied by the government).
Id. (emphasis supplied by the government).
Id. (emphasis supplied by the government).
The government argues that it did set up a "Chinese wall" between the Houston investigation and the investigation being conducted by the U.S. Attorney for the Eastern District of Louisiana. However, the government states "[t]he `Chinese wall' testified to by SSA Santini was not meant to blind the investigators in Louisiana from receiving negative information about the Grahams for the purpose of avoiding disclosure to the supervising courts." "Rather, it was designed for the legitimate, standard purpose of eliminating Kastigar evidence spillover which could have been detrimental to the federal investigation in Houston and violative of the Grahams' legal right not to have their cooperation used against them."
Rec. Doc. No. 1674, p. 2, n.l.
Id.
Insofar as the cash payment allegedly made to Edwin Edwards which was included in the affidavit, the government concedes that the "exact date of the transfer of the cash money to Edwin Edwards was, due to the secretive nature of the transaction, mistakenly stated by SSA Cleveland as being in November 1992." However, the government argues that it "was not able to pinpoint the exact date of the cash transfer to Edwin Edwards until after the investigation went public and grand jury subpoenas could be issued." The government also contends that when Fred Hofheinz pled guilty, he confessed that in addition to a monthly retainer, substantial sums of money were paid to Cecil Brown.
Id. at 3.
Id. The government contends that documentary evidence established the date of the cash transfer to Edwin Edwards to be in September, 1993.
The government denies that it violated Department of Justice guidelines in its relations with the Grahams. Finally, the government argues that "SSA Cleveland's affidavit did not put an imprimature on the Grahams' reliability.'" According to the government, the "FBI's test of Pat Graham's credibility was the consensual tapes he made with Cecil Brown." The government states that "these tapes clearly established that Cecil Brown was using the name and power of Edwin Edwards to extort money out of Pat Graham, " and "Cecil Brown confirmed a prima facie case of extortion on these consensual tapes, thereby confirming Pat Graham's allegations."
Rec. Doc. No. 1674, p. 5.
Id.
Id.
On August 22, 2000, the Court issued a lengthy opinion which set forth, in detail, why the Court denied the defendants' motions to suppress and refused to grant the defendants a Franks hearing. The Court again finds that the defendants have not satisfied the "substantial preliminary showing" set forth in Franks.
After reviewing the defendants' motion to reconsider the Court's denial of defendants' motions to suppress, the Court finds the motions should be denied for the reasons previously set forth in the Court's August 22, 2000 opinion. The Court specifically finds that the agents did not misrepresent the meaning or context of the affidavits to the issuing judges. To the extent there were omissions in the affidavits, the Court finds that this did not affect the Court's finding of probable cause. The affidavits set forth the nature of the criminal investigations involving the Grahams. A review of the totality of the facts set forth in the affidavit also reveals that Patrick Graham's statements were independently corroborated by other credible evidence, including consensual recordings and other documentary evidence. As noted in the Court's first opinion, there was an adequate factual and good faith basis for the statements made in the affidavit at the time the affidavits were submitted to the issuing judges. The same may be said regarding the defendants' contentions surrounding Patrick Graham's credibility. There was sufficient information contained in the affidavits about Patrick Graham's past and current criminal activity and the ongoing investigations for the issuing judges to consider in determining whether to issue the warrants. The depositions and other transcripts from the Texas proceedings regarding the Texas investigations and plea agreements which the United States Attorney for the Eastern District of Louisiana may have made with the Grahams do not negate the probable cause which existed in the affidavits. The Court finds the agents did not "intentionally mislead" or trick the judges into issuing the surveillance authorizations. The Court also finds there were no material misrepresentations made by the FBI agents which" would have negated a probable cause finding by the two judges who issued the electronic authorizations and, later, the search warrants, authorizing searches of defendants' homes and offices. The Court's decision would not change even if the challenged statements were corrected or if more information on the Grahams was included. There was sufficient information set forth in the affidavits regarding the Grahams, as well as substantial independent corroboration of the information from other reliable sources, including statements made by Cecil Brown on the consensual recordings.
It is clear that an order authorizing a wiretap, like an ordinary search warrant, must be supported by a finding of probable cause. Probable cause is evaluated utilizing a totality of the circumstances test. In Illinois v. Gates, the United States Supreme Court set forth the standard under which a Court is to review a judge's determination of probable cause as follows:
. . . [W]e have repeatedly said that after-the-fact scrutiny by courts of the sufficiency of an affidavit should not take the form of de novo review. A magistrate's "determination of probable cause should be paid great deference by reviewing courts." "A grudging or negative attitude by reviewing courts toward warrants" is inconsistent with the Fourth Amendment's strong preference for searches conducted pursuant to a warrant "courts should not invalidate . . . warrant[s] by interpreting affidavit[s] in a hypertechnical, rather than a commonsense, manner."
Looking at the totality of the circumstances and giving due deference to Judge Walter's and Judge Barker's evaluation of the evidence, the Court finds that Judges Parker and Walter did not act in an arbitrary manner when they issued the wiretap order and search warrants in this case.
A judge's decision to issue a warrant based on his determination that probable cause exists is entitled to great deference. See United States v. Phillips, 727 F.2d 3L92 (5th Cir. 1984); United States v. Freeman, 685 F.2d 942 (5th Cir. 1982); Doescher v. Estelle, 666 F.2d 285 (5th Cir. 1982).
In summary, the Court finds: (1) no Franks hearing is required because the defendants have failed to make the requisite showing;
(2) Judges Parker and Walter properly found probable cause to issue the wiretap order and search warrants under the totality of the facts; (3) the government did not intentionally mislead or trick the issuing judges into issuing their orders; (4) sufficient information was provided to the issuing judges about the credibility of the Grahams; (5) there was credible independent corroboration of Pat Graham's statements; and (6) all of the statutory and constitutional requirements to issue a wiretap order and search warrants were complied with.
Therefore, the defendants' motion to reconsider the denial of suppression motions is DENIED. Anonymous Jury
The Court has considered all of the arguments of counsel whether specifically discussed herein or not. The Court also adopts its August 22, 2000 opinion to support, its decision to deny the defendants' motion for reconsideration. See Appendix A.
The defendants again object to the Court's order which granted the government's motion for an anonymous jury. The defendants have not raised any new issues in their motion for judgment of acquittal, or new trial. Therefore, the Court adopts the reasons previously set forth in its ruling on the government's motion for an anonymous jury.
Rec. Doc. No. 1508; 119 F. Supp.2d 589 (M.D.La. 2000). See Appendix B.
The Court does wish to add a few additional comments.
The defendants argue that had they known the juror's names, they could have discovered additional information about possible bias certain jurors had against Edwin Edwards, which would have enabled them to excuse the juror by either using a peremptory challenge or challenging the juror for cause. This argument is without merit. The defendants had more than sufficient information to assist them in deciding which jurors to keep or challenge. Furthermore, there is no evidence of bias on the part of any juror who returned a guilty verdict in the case. From a review of the verdict, it is obvious that the jury in this case carefully weighed all of the evidence. The jury acquitted two defendants of all charges and returned a total of 71 verdicts, which either acquitted the remaining defendants or found that the government failed to prove a racketeering act.
The facts and circumstances surrounding the case before, during and after the trial more than justify the Court's decision to use an anonymous jury. A review of the record reveals numerous attempts of some to either speak to jurors during the trial and jury deliberations, or harass and otherwise attempt to obstruct the orderly process of this trial. The Court believes there would have been even more problems of this nature had the Court not empaneled an anonymous jury.
The only information the Court withheld from the parties during jury selection was the name, address and actual place of employment of the jurors. Considering the voluminous nature of the information provided to the parties about the jurors and the numerous attempts to interfere with the jury and its deliberations, the Court properly exercised its discretion to empanel an anonymous jury. Thus, the defendants are not entitled to a judgment of acquittal, or new trial, on this ground.
Trial in Absentia of Bobby Johnson, Bobby Johnson's Mistrial Motion. Defendants Motions to Sever
The Court has issued a separate opinion this date, which finds that Johnson was properly tried in absentia. The Court adopts those findings by reference. There was no need for the Court to grant a severance in this case.
January 5, 2001.
Rec. Doc. No. 1704. See Appendix E.
Various Guilty Verdicts and the Weight of the Evidence
The defendants argue that their convictions are against the weight of the evidence. Thus, defendants seek to have the Court grant a judgment of acquittal or, in the alternative, a new trial. After reviewing the record and arguments of counsel, the Court finds that the defendants are riot entitled to a Judgment of acquittal under the law and evidence applicable, to this case.
Rec. Doc. No. 1475 (Defendants' Memorandum in Support of Motion for Judgment of Acquittal, Motion for New Trial). The defendants have jointly argued that their convictions are against the weight of the evidence. In addition, Stephen Edwards, Cecil Brown, and Bobby Johnson have each filed an individual motion on this issue.
The standard the Court must apply, in determining whether to grant or deny a motion for judgment of acquittal under Rule 29 of the Federal Rules of Criminal Procedure is clear. The Court must determine whether the evidence presented, viewed in light most favorable to the government, establishes the defendants' guilt beyond a reasonable doubt. The Fifth Circuit has held that "[i]t is not necessary that the evidence exclude every rational hypothesis of innocence or be wholly inconsistent with every conclusion except guilt, provided a reasonable trier of fact could find the evidence establishes guilt beyond a reasonable doubt."
United States v. Duncan, 164 F.3d 239 (5th Cir. 1999); United States v. Pruneda-Gonzales, 953 F.2d 190 (5th Cir.), cert. denied, 504 U.S. 978, 112 S.Ct. 2952, 119 L.Ed.2d 575 (1992).
Pruneda-Gonzales, 953 F.2d at 193.
After considering the evidence in the light most favorable to the government, the Court finds that a rational finder of fact could have found the defendants guilty beyond a reasonable doubt. Therefore, the" "Court hereby DENIES the defendants' motion for judgment of acquittal on those counts on which the defendants were convicted. The Court finds that the defendants are not entitled to a new trial on this basis.
Inconsistent Verdicts and Constructive Amendment/Variance
The defendants argue that: (1) the simultaneous acquittals of Greg Tarver and Ecotry Fuller and the convictions of Stephen and Edwin Edwards represent inconsistent verdicts; and (2) the government constructively amended, or varied from, the charges set forth in the superceding indictment returned in this case. According to the defendants, both of these contentions warrant a judgment of acquittal or, alternatively a new trial. The defendants' arguments regarding the inconsistent verdicts on the mail and wire fraud counts are now moot because the Court has granted new trials on Counts 6, 20, 21, 22, 25, 26 and 27, based on the Cleveland case.
Rec. Doc. No. 1475 (Defendants' Memorandum in Support of Motion for Judgment of Acquittal, Motion for New Trial), pp. 30-39.
See pp. 1-2, supra.
To the extent the defendants argue that the government constructively amended the indictment or, alternatively varied from, the charges in the indictment regarding the mail and wire fraud counts, the argument is also moot for the reasons set forth above.
To the extent the defendants' argument regarding constructive amendment applies to other counts of the indictment, the Court finds there was no constructive amendment of the indictment. A constructive amendment argument must fail when "the indictment completely and accurately describes the conduct, so that the grand jury is not misled about the basis for the indictment." The essence of a constructive amendment problem is that a defendant is convicted of an offense with which he is not charged. That is simply not the situation in this case.
United States v. Mikolajczyk, 137 F.3d 237, 243 (5th Cir.), cert. denied, 525 U.S. 909, 119 S.Ct. 250, 142 L.Ed.2d 206 (1998).
A variance of the evidence is evaluated by a different standard and is found when "the evidence proves facts different from those alleged in the indictment, but does not modify an essential element of the charged offense." "A variance between the wording of an indictment and the evidence presented at trial is fatal only if `it is material and prejudices . . . [the defendant's] substantial rights.'" The Court finds that even if those variances alleged by the defendants are found to exist, the defendants have not established any prejudice. The defendants cite the proper standard for evaluating prejudicial variance, namely whether "the indictment notifies a defendant adequately to permit him to prepare a defense, and does not leave the defendant vulnerable to a later prosecution because of failure to define the offense with particularity. " Each of the areas of alleged variance raised by the defendants is clearly addressed in the indictment. The Court finds that the defendants had ample information to craft a defense to the charges in the indictment. Likewise, the Court finds the indictment was sufficiently clear about those offenses charged and does not leave the defendants vulnerable to a later prosecution. As a result, the Court finds the defendants did not suffer prejudice as a result of any variance that may have occurred. The defendants are not entitled to a judgment of acquittal, or new trial, on this ground.
United States v. Salvatore, 110 F.3d 1131, 1145 (5th Cir.), cert. denied, 522 U.S. 981, 118 S.Ct. 441, 139 L.Ed.2d 378 (1997).
United States v. Sprick, 2000WL1701801, *6 (5th Cir. Nov. 14, 2000).
United States v. Hernandez, 962 F.2d 1152, 1159 (5th Cir. 1992). See also United States v. Puig-Infanti, 19 F.3d 929 (5th Cir.), cert. denied, 513 U.S. 864, 115 S.Ct. 180, 130 L.Ed.2d 115 (1994); United States v. Lokey, 945 F.2d 825 (5th Cir. 1991).
Money Laundering Counts Against Edwin Edwards, Stephen Edwards and Andrew Martin
The defendants contend Edwin Edwards, Stephen Edwards and Andrew Martin should be granted a new trial on their money laundering convictions under Count 34 of the indictment because: (1) there was no evidence offered which demonstrated these defendants used any illegal funds to further any unlawful activity; and (2) there was no evidence to show these defendants attempted to conceal the source, location, or nature of any of the funds. The Court disagrees and finds no basis for granting a new trial on these counts.
Rec. Doc. No. 1475 (Defendants' Memorandum in Support of Motion for Judgment of Acquittal, Motion for New Trial), p. 39-41.
The Court finds that there was sufficient evidence offered at trial to permit the jury to conclude that the defendants were guilty of this charge. Although the defendants argue there was no evidence at trial offered to sustain certain elements of the money laundering violation, the defendants arguments are simply a re-characterization of their broader argument that all the convictions are "against the weight of the evidence." Consequently, the Court must determine whether the jury could conclude that evidence presented, viewed in light most favorable to the government, established defendants' guilt beyond a reasonable doubt. The Count has already concluded the unlawful activity predicates to support a conviction of money laundering were valid. The Court also finds that all of the other elements of money laundering have been properly proven by the United States.
United States v. Duncan, 164 F.3d 239 (5th Cir. 1999); United States v. Pruneda-Gonazales, 953 F.2d 190 (5th Cir.), cert. denied, 504 U.S. 978, 112 S.Ct. 2952, 119 L.Ed.2d 575 (1992).
The Court further finds that the indictment detailed several transactions which involved concealment of the proceeds of illegal activity and demonstrated the intent of the defendants to use the funds to further their illegal activities. There was sufficient evidence offered at the trial to support these charges and allegations. A judgment of acquittal, or new trial, is not warranted on this ground.
As an example of the evidence of intent and concealment, the indictment outlined a plan created by Stephen Edwards, Edwin Edwards and Andrew Martin to conceal cash payments made by Bobby Guidry to them in exchange for assurances that Guidry's riverboat license would be approved. See, e.g., Rec. Doc. No. 306, Overt Acts 100-103. These defendants proposed purchasing a tug boat and renting it to Guidry at a highly inflated rate to conceal the illegal nature of the payments. Testimony was offered a trial to establish these facts set forth in the indictment. In addition, the indictment charges that some of the cash payments made by Guidry to the Edwards' and Martin were surreptitiously left in garbage dumpsters for Martin to recover.
There are other examples of concealment detailed in the indictment. The indictment charged extortion of the Players Riverboat Corporation ("Players"). As a part of this scheme, Players paid sums of money to Ricky Shetler that eventually passed to Stephen and Edwin Edwards. In an attempt to conceal certain payments, instead of making a cash payoff, Ricky Shetler purchased a vehicle which was placed at Edwards' Vail condominium for Edwards' use. See Rec. Doc. No. 306, Overt Act 78. Shelter concocted a similar deal for Stephen Edwards, however Shetler purchased the van in Stephen Edwards' name. See Overt Acts 86, 88. In addition, Shetler contracted with Players for consulting services relating to the licensing of their casino while at the same time making: (1) cash payments to Stephen Edwards; and (2) purchases of goods for Stephen Edwards. See Overt Acts 76, 83, 84, 88.
The defendants argue that Edwin Edwards made numerous cash expenditures publicly and therefore did not conceal the illegal nature of the payments he received. This argument is not convincing nor relevant to the facts presented in the indictment. Making certain payments publicly does not negate the concealment of others.
Right to a Public Trial
The defendants argue that they are entitled to a judgment of acquittal, or new trial, because they were denied the right to a public trial under the Sixth Amendment. In addition, the defendants argue they are entitled to a judgment of acquittal, or new trial, because the press and public were denied access to the trial in violation of the First Amendment. Specifically, the defendants contend the following constitute a violation of their right to a public trial: (1) the use of a gag order; (2) closure of anonymous jury related hearings; (3) the Court's order, entered on January 7, 2000, which required all newly filed documents to be placed under seal; (4) closure of certain portions of jury voir dire; (5) the supplemental gag order issued during trial; (6) the denial of the defendants' and media's motions to unseal the entire record; and (7) the Court's closure of hearings involving alleged juror misconduct. The United States has filed a response which denies that the defendants were denied a public trial.
Rec. Doc. No. 1475 (Defendants' Memorandum in Support of Motion for Judgment of Acquittal, Motion for New Trial), p. 42-49.
Id. at 42.
The Court finds that the defendants are not entitled to a judgment of acquittal, or new trial, because the defendants were not denied their right to a public trial under the First or Sixth Amendments. The Court will address each of the contentions raised by the defendants separately.
During the course of the trial, the Court issued numerous written opinions on the issues raised in this part of the motion. These opinions, which are adopted herein by reference, are attached in the appendix to this opinion.
See Appendices B, C, D, and F.
The record reveals that, in this case, there was intense media interest because of the named defendants, the nature of the charges and the notoriety of some of the witnesses. There were also three separate cases where defendants in one case were also named as defendants or unindicted co-conspirators in the other case.
In an effort to limit any extra-judicial and prejudicial publicity associated with this trial, the Court issued an order which prohibited certain public comments by the parties and their counsel. The defendants argue that this order interfered with their rights to a public trial and prevented them from discussing the trial in the press. The Court finds that the order issued by the Court was a proper and necessary measure to limit the harmful and prejudicial effects on the unsequestered jury in this case.
Rec. Doc. No. 3.
The Supreme Court has long recognized that an atmosphere essential to the preservation of a fair trial is one of the most fundamental rights held by litigants. In addition, trial courts have an affirmative duty to take steps to minimize the effects of prejudicial pre-trial publicity. "The beneficiaries of this duty [to minimize pre-trial publicity] include not only the defendant in a given trial, but other defendants as well, such as co-defendants in the same case or defendants in related cases . . . whose fair trial rights might be prejudiced by the extrajudicial statements of other, trial participants." A district court may "impose an appropriate gag order on parties and/or their lawyers if it determines that extrajudicial commentary by those individuals would present a `substantial likelihood' of prejudicing the court's ability to conduct a fair trial."
Estes v. Texas, 381 U.S. 532, 85 S.Ct. 1628, 14 L.Ed.2d 543 (1965).
Gannett Co. v. DePasquale, 443 U.S. 368, 99 S.Ct. 2898, 61 L.Ed.2d 608 (1979).
United States v. Brown, 218 F.3d 415, 424 (5th Cir. 2000), petition for cert. filed, 69 U.S.L.W. 3157 (U.S. Aug. 21, 2000) (No. 00-277).
Brown, 218 F.3d at 427.
The Court imposed the order in — this case based on the "substantial likelihood" that the media attention relating to this case would impair the Court's ability to select an untainted jury and conduct a fair trial. To prevent a "trial by press" atmosphere, the Court entered an order which prohibited the parties from making certain extrajudicial statements. However, the Court did not completely prevent the parties from commenting about the trial or the proceedings before the Court. After witnessing significant violations of the gag order and attempts to make prejudicial statements in the press, the Court entered a more strict order which prohibited any extrajudicial comments by the parties or their counsel. The Court issued this order after the trial of this case commenced.
The Court's supplemental order was based on a virtually identical order issued by Judge Walter Smith in United States v. Branch, Docket No. 93-Cr-046 (W.D. Tex. 1994), rev'd in part on other grounds, 91 F.3d 699 (5th Cir. 1996), cert. denied, 520 U.S. 1185, 117 S.Ct. 1466, 137 L.Ed.2d 681 (1997).
Rec. Doc. No. 1010.
In addition to issuing an order in this case, the Court also issued a similar order in United States v. Brown, The parties in Brown, including the defendant Edwin Edwards, appealed the Court's decision. The Fifth Circuit affirmed the order issued by the Court. Because the orders are so similar, the opinion issued by the Fifth Circuit in Brown is imperative to a resolution to the pending motion.
CR No. 99-151.
The Fifth Circuit affirmed, in Brown, the very same gag order the defendants now attack in their post-trial motions. In upholding this Court's order issued in United States v. Brown, the panel recognized that "the district court did identify a `substantial likelihood' that the extrajudicial comments of the trial participants would prejudice its ability to conduct fair trials in all three related cases." The Court also recognized the intense media surrounding the present case and the other two pending cases, as well as the potential for harmful and prejudicial publicity if the participants were permitted to make unrestricted public comments about the case. The Fifth Circuit further noted how the parties were attempting to use the press in Brown, which is exactly what the defendants were doing in this case. The Court has already issued an opinion in the Brown case explaining the effect of the Fifth Circuit's opinion on the gag order. This opinion is adopted by reference and attached as an appendix to this opinion.
United States v. Brown, 218 F.3d 415 (5th Cir. 2000), petition for cert. filed, 69 U.S.L.W. 3157 (U.S. Aug. 21, 2000) (No. 00-277).
Id. at 428.
Id.
CR No. 99-151; Rec. Doc. No. 87.
See Appendix F.
The defendants also contend the Court erred when it closed certain hearings and proceedings during the course of trial. Defendants argue the Court improperly closed the hearings related to the anonymous jury motion. Defendants also argue that the Court should have held arguments on the parties' peremptory challenges and Batson arguments in public. Defendants contend that closure of these hearings amounted to a denial of the right of. the defendants to a public trial.
The Court finds no merit to these arguments. The hearings related to the anonymous jury motion were properly closed to the press and public because of the sensitive nature of the information discussed and the Court's finding that the information could potentially cause prejudice to the fair trial rights of the defendants. The Court also wanted to limit access to certain information which would otherwise identify the jurors. Even though the Court empaneled an anonymous jury, certain individuals and even the media were able to identify, contact, harass and even talk to certain jurors. The Court can only wonder how many more jurors would have been affected if the Court had not proceeded the way it did. The Court has previously assigned lengthy reasons for closing the courtroom and denying the defendants' motion to unseal. Consequently, the Court will not reiterate those reasons in this opinion. As to the defendants' Batson arguments, the Court advised the parties, prior to trial, that Batson arguments would be delivered to the Court at a bench conference, as opposed to publicly. The defendants did not object to this procedure. This conference was in essence a bench conference, but because of logistical difficulty in holding a bench conference with sixteen lawyers, the Court elected to briefly close the courtroom to allow the parties to freely present their arguments. This closure was proper because trial courts are not obligated to conduct bench conferences in a public setting. This procedure is also designed to avoid any prejudice a party might suffer because of a of a prospective juror learning who sought to excuse a juror and the reasons given by a party for doing so.
See Rec. Doc. No. 559, Appendix D.
Rec. Doc. No. 1698 (Tr. 1/9/00). The Court clearly advised the parties of this procedure and no objections were lodged. The Court said: "Before I swear the jury in, I will ask you to approach the Bench and you will let me know whether or not you have any Batson motions." Rec. Doc. No. 1698, p. 34 (Tr. 1/9/00).
United States v. Edwards, 823 F.23 111, 115 (5th Cir. 1987), cert. denied, 485 U.S. 934, 108 S.Ct. 1109, 99 L.Ed.2d 270 (1988). The Court has also addressed this issue in its ruling on the media's motion for access to certain documents and documents. See Rec. Doc. No. 1507, p. 20-21.
The defendants also challenge the Court's procedures regarding sealed documents. Defendants argue that the Court improperly denied their motion, made during the trial, to unseal all sealed documents and records. The defendants also challenge the Court's order which required all documents be filed under seal. Neither of these arguments have merit. The Court has addressed the defendants' motion to unseal in a prior ruling, which is adopted herein by reference. The Court was forced to issue the order requiring records to be filed under seal to curtail the parties' attempts to circumvent the Court's gag order which limited certain extrajudicial comments by the parties, and to limit the obviously prejudicial comments being made by the parties essentially for the press' consumption. The Court's sole purpose in issuing the gag order, sealing records and closing hearings was to ensure all of the parties had a fair and impartial trial and to shield jurors from prejudicial and inflammatory comments. The actions the Court took were the least restrictive available and were based solely on the facts of the case. The defendants are not entitled to a judgment of acquittal, or new trial, on this ground.
The Court has addressed these procedures at length in the media-related opinion and adopts the reasons set out therein. See Rec. Doc. No. 1507, Appendix C.
Rec. Doc. No. 559. See Appendix D.
DEFENDANTS' RIGHT TO COUNSEL AT CRITICAL STAGES OF THE TRIAL
The defendants argue that they were denied the right to counsel at critical stages of the trial. Specifically, the defendants argue they were denied the right to counsel during the Court's in camera interviews of members of the jury because the Court only permitted two representative attorneys, from each side, to be present during the interviews. The Court finds that the defendants were not denied the right to counsel and their arguments do not warrant a judgment of acquittal, or new trial, on this ground.
Rec. Doc. No. 1475 (Defendants' Memorandum in Support of Motion for Judgment of Acquittal, Motion for New Trial), p. 50.
During the course of the trial, it was necessary to interview a number of jurors. A procedure was agreed on to have two representatives from each side present so as not to intimidate the juror. The Court believed it was more appropriate to interview the jurors in the conference room rather than have the jurors sit in the witness chair or in the jury box. When the Court received the notes from the jury while the jury was deliberating, the Court changed the procedure to avoid any prejudice the hearing might have on the jurors. Defendants particularly complain about the questioning of Juror #68.
The Court also allowed the defendants to bring their paralegal, Mary Jane Marcantel, to all of the conferences.
The Court has previously set forth, in this opinion, a clear account of the procedures which surrounded the removal of juror #68. The Court interviewed not only Juror #68 but all of the members of the jury regarding the notes sent to the Court. As noted earlier, due to the large number of lawyers involved, the Court was very concerned that some jurors would feel intimidated if questioned with all counsel present. The Court was further concerned that this intimidation might discourage frank answers from the jurors. Because the Court sought to afford counsel the right to participate in the hearing, while at the same time limiting the effect the hearing would have on the jurors, the Court followed a procedure which balanced both concerns. Outside the presence of the jurors, the Court first discussed, with counsel, questions to be asked of the jurors. The Court then excused the lawyers and brought in a juror. After asking the juror the agreed upon questions, the Court excused the juror and then brought the — lawyers back into the conference room, where the Court played a tape of the Court's questions and the juror's answers. The Court then gave the parties an opportunity to suggest follow-up questions. This procedure was followed for each juror and the transcript reflects that all counsel were given an opportunity to participate in the discussion of the questions to be asked of each juror. Thereafter, the Court allowed the parties to have two representatives present for the questioning of the jurors.
See pp. 9-30, supra.
Rec. Doc. NO. 1605 (Sealed Tr. 5/2/00); Rec. Doc. No. 1606 (Redacted Tr. 5/2/00). In United States v. Thomas, 116 F.3d 606 (2nd Cir. 1997), the district court followed a similar procedure where it conducted the juror interviews in camera with no counsel present. The Second Circuit implicitly approved this procedure.
Rec. Doc. No. 1605, pp. 101-283 (Sealed Tr. 5/2/00); Rec. Doc. No. 1606, pp. 101-283 (Redacted Tr. 5/2/00).
The defendants also argue that the Court refused to allow counsel to participate in the proceedings regarding Juror #68. In support of their arguments, the defendants cite an excerpt of the trial transcript in which the Court instructed the marshals to close the courtroom. This excerpt and argument is a total and unfortunate mis-characterization of the events which related to this hearing. A review of the transcript reveals that at the end of the day, after the Court had completed the questioning of witnesses regarding Juror #68, the Court held a conference with two representatives from each side. During this questioning, three of the attorneys present at the conference engaged in a shouting match that caused the Court to request the deputy marshals to remove them from the conference room. After the deputy marshals removed the attorneys from the conference room, the Court ordered that the attorneys be brought to the courtroom and separated from each other. The Court took this drastic step because of. the Court's concern for the personal safety of the attorneys as well as members of the Court's staff who were present. When the lawyers arrived in the courtroom, they apparently began arguing again. The Court then entered the courtroom. Thereafter, an attorney representing one of the defendants attempted to enter the courtroom. The Court, because of the volatile nature of what had just occurred in chambers and in the courtroom, asked the attorney to leave the courtroom. The Court then allowed the parties to deliver their remarks in the courtroom and adjourned for the day. All counsel were allowed to participate in a hearing held on the following day to assert their arguments for and against the removal of Juror #68. A judgment of acquittal, or new trial, is not warranted on this ground.
Rec. Doc. No. 1475 (Defendants' Memorandum in Support of Motion for Judgment of Acquittal, Motion for New Trial), p. 50.
The attorneys involved in this incident were: Jim Letten, James Cole and Dan Small. Although Todd Greenberg was present, he did not participate in this unfortunate incident.
The Court was fortunate to have two marshals in the conference room, who removed the attorneys through separate doors.
Rec. Doc. No. 1607, pp. 243-246 (Sealed Tr. 5/3/00); Rec. Doc. No. 1608, pp. 243-246 (Redacted Tr. 5/3/00). The Court moved the lawyers to the courtroom to conduct the remainder of the discussion in an attempt to avoid a possible fight between the lawyers and to restore order.
Rec. Doc. No. 1607, pp. 265, 275 (Sealed Tr. 5/3/00); Rec. Doc. No. 1608, pp. 265, 275 (Redacted Tr. 5/3/00).
Admission of Hearsay Evidence
The defendants object to the admission of certain statements of co-conspirators and statements offered to show the witnesses' state of mind. The Court finds, for oral reasons previously given, that the evidence was properly admitted in accordance with the Federal Rules of Evidence.
Rec. Doc. No. 1475 (Defendants' Memorandum in Support of Motion for Judgment of Acquittal, Motion for New Trial), 53-59.
During the course of the trial, the Court considered the government's request to admit co-conspirator statements, as permitted by Rule 801 of the Federal Rules of Evidence. Although frequently referred to as an "exception" to the hearsay rule, Rule 801(d)(2)(E) indicates that "a statement by a coconspirator of a party during the course and in furtherance of the conspiracy" is not a hearsay statement. The Supreme Court has ruled that a co-conspirator's statement may be admitted when the trial judge finds that a conspiracy existed and that the statement was made during and in furtherance of the conspiracy. The evidence must establish these factors by a" preponderance of the evidence. The Court considered the arguments of counsel during the trial as to the admissibility of certain co-conspirator statements. The Court made the appropriate findings at the time the evidence was introduced and at the close of the case.
Bourjaily v. United States, 483 U.S. 171, 107 S.Ct. 2775, 97 L.Ed.2d 144 (1987).
Bourjaily, 483 U.S. at 175, 107 S.Ct. at 2779.
Although the defendants argue that all co-conspirator statements offered during the trial were admitted in contravention to the rules of evidence, they only cite one example-the testimony of Sam Gilliam. Prior to the admission of Gilliam's testimony, the Court received a proffer of evidence regarding Gilliam's participation in the conspiracy. After considering the evidence submitted and the arguments of counsel, the Court found the requisite showing was established by a preponderance of the evidence. The Court then gave oral reasons for admitting these statements. See Rec. Doc." No. 1021 (Tr. 2/8/00).
On the government's motion, the Court issued the following ruling on the statements of the co-conspirators at the conclusion of the case:
The court, at the end of the trial has to make a finding, and the Court so finds that the prosecution has shown, by a preponderance of the evidence, that in those charges where conspiracy is involved, or where there were unindicted co-conspiratory situations, that a conspiracy existed, that the co-conspirator and the defendant against whom the co-conspirator's statement is offered, are members of the conspiracy. And the Court finds that the statements made were made during the course of and in furtherance of the conspiracy. The court makes a such a finding for each of the defendants who were charged as conspirators or co-conspirators, or unindicted co-conspirators in this case. And the Court finds that an appropriate finding. That a preponderance of evidence has been established is so made by the court."
Rec. Doc. No. 1699, p. 14 (Tr. 4/17/00).
The Court's finding comports with the Supreme Court's ruling in Bourjaily and Fifth Circuit law.
See United States v. Cornett, 195 F.3d 776 (5th Cir. 1999); United States v. Broussard, 80 F.3d 1025 (5th Cir.), cert. denied, 519 U.S. 906, 117 S.Ct. 264, 136 L.Ed.2d 189 (1996).
Statements of a witnesses' "then existing mental, emotional or physical condition" are excluded from the hearsay rule under FRE 803(3) provided they are not admitted to prove the truth of the matter asserted. The defendants complain that certain statements were improperly admitted during the trial pursuant to this exception to the hearsay rule. As an example, the defendants cite the testimony of C.J. Blache. The record reflects that this testimony was offered, not to prove the truth of the matter asserted, but rather to establish the witnesses' state of mind at the time of the incident. This fully satisfied the requirements of Rule 803.
United States v. Hyde, 448 F.2d 815 (5th Cir. 1971), cert. denied, 404 U.S. 1058, 92 S.Ct. 736, 30 L.Ed.2d 745 (1972).
Rec. Doc. No. 1475 (Defendants' Memorandum in Support of Motion for Judgment of Acquittal, Motion for New Trial), p. 58.
After reviewing the arguments regarding the defendants' objections to evidentiary rulings made by the Court, the Court finds the evidence was properly admitted under the Federal Rules of Evidence. To the extent the Court may have erred in any evidentiary ruling, the Court finds such evidence does not warrant a finding that a new trial or judgment of acquittal should be granted.
Admission of Communications Between Cecil Brown and His Attorneys
The defendants argue that the Court improperly admitted recordings of intercepted telephone conversations between the defendant, Cecil Brown, and his attorneys, which occurred during a civil suit. According to the defendants, this evidence was not only privileged information, it was highly prejudicial to Cecil Brown.
Rec. Doc. No. 1475 (Defendants' Memorandum in Support of Motion for Judgment of Acquittal, Motion for New Trial), p. 59.
The Court has previously considered the admissibility of these recordings. Prior to trial, the government filed a motion in limine regarding the admissibility of these tapes, which the defendants opposed. The Court granted the government's motion in limine and permitted these tapes to be introduced at trial based on the crime/ fraud exception to the attorney-client privilege. The defendants do not raise any new arguments in their post-trial motions on the issue. Therefore, the Court adopts its prior reasons for admitting this evidence at the trial. Recusal in this Case Based on Recusal in United States v. Brown
Rec. Doc. No. 756.
Rec. Doc. No. 858. The Court's ruling was, in part, based on a ruling issued by Judge Parker in conjunction with the grand jury investigation of this matter which had been placed under seal. See Rec. Doc. No. 858, p. 1, n. 3.
In a supplement to their motion for a new trial, the defendants argue that the jury's verdict should be set aside because this judge should have recused himself in this case. In support of this argument, the defendants cite the Court's recusal in United States v. Brown. The Court recused itself in Brown for two principal reasons: (1) the name of the U.S. Attorney for the Middle District of Louisiana was set forth in the indictment and it was possible he would be called as a witness in the Brown trial; and (2) the Court had received a telephone call from a witness regarding the job qualifications of another possible witness.
Rec. Doc. No. 1489.
See CR No. 99-151, Rec. Doc. Nos. 254 (order), 261 (written reasons).
This phone call occurred prior to the beginning of any federal investigation.
The defendants now argue that because the government presented evidence from Brown in support of its motion for anonymous jury, the Court's reasons for recusing itself in Brown should likewise apply, to this case. The defendants' arguments are without merit. In. deciding the anonymous jury matters, the jurisprudence clearly indicates that the Court was not required to make credibility assessments. The Court was only required to look to allegations that, if true, would justify the impanelment of an anonymous jury. The Court has previously noted that the evidence offered in support of the anonymous jury motion in this case was more than ample to justify granting the motion, even if the Court did not consider the allegations against Edwin Edwards discussed in the Brown indictment. This Court had no reason in law or fact to recuse itself in this case. Conclusion
Specifically, the defendants argue that: (1) the government referenced the insurance indictment and the guilty plea of Judge Sanders in support of their motion for anonymous jury; (2) the government specifically cited the alleged witness tampering of Ed Gonzales as a basis for granting the anonymous jury motion in this case; (3) by doing so, the Court was required to make a credibility determination regarding Ed Gonzales' testimony. See Rec. Doc. No. 1489, p. 4.
See Rec. Doc. No. 1508 (anonymous jury ruling), Appendix B. See also United States v. Krout, 66 F.3d 1420 (5th Cir. 1995), cert. denied, 516 U.S. 1136, 116 S.Ct. 963, 133 L.Ed.2d 884 (1996); United States v. Paccione, 949 F.2d 1183 (2nd Cir. 1991), cert. denied, 505 U.S. 1220, 112 S.Ct. 3029, 120 L.Ed.2d 900 (1992).
Rec Doc. No. 1508, p. 16, n. 50.
The defendants also filed a pretrial motion to recuse. The Court denied this motion for written reasons assigned. This opinion is adopted herein by reference. See Rec. Doc. No. 81, Appendix G.
The Court has very carefully considered all of the arguments and contentions of the parties, whether specifically discussed herein or not. After reviewing the entire record, the Court finds that the defendants received a fair and impartial trial. The Court further finds that the guilty verdicts returned by the jury are fully supported by the law and evidence in this case. It is apparent that the jury which heard this case carefully and meticulously reviewed the evidence and applied the law as given to it by the Court before returning their verdicts in this case. There are no legal or factual reasons for the Court to disturb the jury's verdict except on those counts for which a new trial was required under Cleveland.
Therefore, IT IS ORDERED that defendants' motions for judgment of acquittal and post-verdict judgment of acquittal be and each is hereby DENIED.
IT IS FURTHER ORDERED that defendants' motion for a new trial is GRANTED on the following counts and on behalf of the following defendants:
Bobby Johnson — Count 6;
Edwin Edwards — Counts 20, 21, 22, 25, 26 and 27;
Steven Edwards — Counts 20, 21, 22, 25, 26 and 27.
IT IS FURTHER ORDERED that in all other respects, defendants' motion for a new trial be and it is hereby DENIED.
IT IS SO ORDERED.
APPENDICES
Ruling on Motion to Suppress Rec. Doc. No. 1539 . . . . . . . . . . . A
Ruling on Anonymous Jury Rec. Doc. No. 1508 . . . . . . . . . . . B
Ruling on Media Motion for Release of Evidence Rec. Doc. No. 1507 . . . . . . . . . . . C
Ruling on Order to Conduct In Camera Hearing on Motion for Anonymous Jury Rec. Doc. No. 559 . . . . . . . . . . . . D
Ruling on Bobby Johnson's Motion for Judgment of Acquittal or New Trial for Being Tried in Absentia Rec. Doc. No. 1704 . . . . . . . . . . . E
Ruling on Defendant's Motion to Modify the Court's Prior Order in United States v. James Harvey Brown Cr. No. 99-151, Rec. Doc. No. 87 . . . . . F
Corrected Ruling on Defendants' Motion to Recuse Rec. Doc. No. 101 . . . . . . . . . . . . G
Baton Rouge, Louisiana, January 5, 2001.