Opinion
02 Cr. 1455 (RWS).
July 9, 2003.
Elizabeth Carpenter, Ausa., of Counsel, James B. Comey, United States Attorney for the Southern District of New York, Attorneys for United States of America.
Thomas F. X. Dunn, Esq., Attorneys for Defendant.
OPINION
Defendant Hilary M. Okehi ("Okehi") moves for a new trial pursuant to Rule 33 of the Federal Rules of Criminal Procedure (FRCP) and for a judgment of acquittal pursuant to FRCP Rule 29. For the reasons set forth below, both motions are denied.
Prior Proceedings
On November 12, 2002, Okehi was charged with conspiracy to commit wire fraud in violation of 18 U.S.C. § 371 in connection with his participation in a scheme to defraud an elderly woman, Barbara Maynard, by convincing her that she was investing in oil interests in Nigeria. Okehi's co-defendant, Michael Uzor ("Uzor"), was charged both with conspiracy to commit wire fraud and with substantive wire fraud in violation of 18 U.S.C. § 1344. Uzor pled guilty on January 24, 2003. On February 28, 2003, Okehi and his attorney attended an innocence proffer meeting at the office of the United States Attorney for the Southern District of New York. At an innocence proffer meeting a defendant appears before the prosecutor and agents and explains his side of the case, often under an agreement that the information will not be used against the defendant at trial unless he testifies differently. Also present at the February 2 meeting were the prosecuting attorney in the case and Special Agents Timothy Burke and Brian Koch from the United States Secret Service. Agent Burke took notes during the meeting.
Okehi exercised his right to a jury trial, and a trial took place between April 1 and April 4, 2003. During the trial, at the close of the government's case, Okehi moved pursuant to Fed.R.Crim.P. 29 for acquittal because the government had failed to present sufficient evidence to the jury to make out a prima facie case. The motion was denied. (Tr. at 211.)
Shortly after the jury began deliberations on April 4, the Court was informed that one page of the notes taken by Agent Burke during the February 28 innocence proffer meeting was present in the jury room, apparently inadvertently. At trial Agent Burke's notes had been labeled as a defense exhibit for identification purposes only; the notes were not admitted into evidence. The page of notes was included in one juror's exhibit book.
The Court was notified that the notes were in the jury room when the jurors sent a note on their first and only day of deliberations. The note read as follows: "This form was not labeled and was only in one of the juror's binder. [sic] Can we please be advised on how to consider this matter." The page of Agent Burke's notes which was in the juror's binder was attached to the note.
Okehi first moved for a mistrial. The motion was denied. (Tr. at 516-19.) The Court then instructed the jury as follows:
The document to which you refer got into one of the binders by error. No one involved in the case knows how that happened. But it was in error. It is not evidence in the case. You disregard it. If you have considered it, you must strike it from your mind and disregard it for all purposes in the future.
I can tell you what it is. It is part of an exhibit which was never introduced into evidence. That is to say, Defendant's Exhibit A was never introduced and therefore can't be considered by you as you deliberate on the issues in the case.
You must disregard it. It was an accident, and we don't know how it happened but it is not an exhibit in the case. It must be disregarded. And I wish you luck in your deliberations. Thank you very much.
(Tr. at 519.) Approximately 90 minutes after the jury resumed deliberations, a guilty verdict was returned.
By motion of April 10, 2003, Okehi moves to set aside the verdict and grant a new trial on the basis that the presence of the notes in the jury room had impermissibly contaminated the jury process and deprived the defendant of a fair trial. Okehi also moves for a judgment of acquittal on the grounds that the government's evidence was insufficient to present to a jury concerning the charges before the Court as well as on the same grounds as the Rule 33 motion.
The New Trial Motion
A court may grant a new trial to a defendant "if the interests of justice so require." Fed.R.Crim.Pr. 33. However, because such motions are disfavored in this Circuit, see United States v. Gambino, 59 F.3d 353, 364 (2d Cir. 1995), a motion for a new trial should be granted only where there is "a real concern that an innocent person may have been convicted," after an examination of the totality of evidence and considering objectively all of the facts and circumstances of the case.United States v. Sanchez, 969 F.2d 1409, 1414 (2d Cir. 1992).
The introduction of extrinsic information to a juror or jurors may be sufficiently prejudicial as to require a new trial. See United States v. Schwarz 283 F.3d 76 (2d Cir. 2002) (new trial granted where defendant police officer's defense was that another police officer, who had pleaded guilty, acted alone in assault, and jurors learned during deliberations that the officer who pleaded guilty said he had not acted alone). However, "not every instance of a juror's exposure to extrinsic information results in the denial of a defendant's right to a fair trial. Many such instances do not." Id. at 99. To determine whether a jury's exposure to extrinsic information prejudiced the defendant's right to a fair trial, the court must examine the extrinsic information "on the basis of the nature of the matter and its probable effect on a hypothetical average jury." Id. (quoting United States v. Crosby, 294 F.2d 928, 950 (2d Cir. 1961). Put succinctly, the issue is "Did the intrusion affect the jury's deliberations and thereby its verdict?" United States v. Olano, 507. U.S. 725, 739 (1993).
Okehi argues that the question from the jury asking how it should consider the notes is sufficient evidence of the effect that the note had on the jury, or at least to justify the initiation of an investigation by the Court into what effects it may have had.
The government conversely argues that "[t]he text of the note itself indicates that the jurors did not consider the page of notes and in fact did not examine it closely enough to know what it was." Gov't. Memo at 3-4. The government further argues that the Court's curative instruction, to which Okehi did not object, removed any prejudicial effect which the note may have had. Finally, the government argues that even if the jury had considered the notes and ignored the Court's instructions to disregard it, nothing contained on the page could have prejudiced the defendant or affected the jury's verdict.
As an initial matter, the Court may not conduct the investigation requested by Okehi into "what effect if any this document had on deliberations." Def. Memo at 11. Rule 606(b) of the Federal Rules of Evidence, which governs inquiry into the validity of verdicts, provides that "a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury's attention." A juror may not, however, "testify as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon that or any other juror's mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror's mental processes in connection therewith." Fed.R.Evid. 606(b). Here, the extent of the extrinsic information that was available to the jury is fully known. No further inquiry is permissible under Rule 606(b).
Regarding the curative instruction, jurors are presumed to follow the instructions given to them by the Court. See Greer v. Miller, 483 U.S. 756, 766 n. 8 (1987). The Court "normally presume[s] that a jury will follow an instruction to disregard inadmissible evidence inadvertently presented to it, unless there is an `overwhelming probability' that the jury will be unable to follow the court's instructions, and a strong likelihood that the effect of the evidence will be `devastating' to the defendant." Id. (citing Richardson v. Marsh, 481 U.S. 200, 208 (1987), and Bruton v. United States, 391 U.S. 123, 136 (1968)). Okehi has not provided any evidence to suggest that the jury in this case would be unable to follow a curative instruction.
Even if the jury had not followed the curative instruction of the Court and considered the page of notes in its deliberations, nothing on the page could have prejudiced the defendant or affected the verdict. While the page of notes itself was extrinsic evidence not introduced at trial, the contents of the page were before the jury. The subject of the innocence proffer was discussed at length during the testimony of Agent Burke and the defendant (Tr. 142-148, 162-168, 171-173, 262-264, 300), the existence of the notes was also discussed (Tr. 144), and the notes were used extensively on cross-examination of Agent Burke (Tr. 162-168, 171-173). As a result, testimony regarding each specific item on the page made it into the record. Most of the notes on the page outline facts that are either undisputed or have been confirmed by the defendant during his trial testimony. The remainder of the items on the page are facts to which Agents Koch and Burke testified at trial. It could therefore not be prejudicial for the jury to consider the notes because no new information and no new opinions were revealed.
Motion for Acquittal
Okehi renews the motion for a judgment of acquittal he made at trial under Rule 29 based on the sufficiency of the government's evidence. The Second Circuit has repeatedly held that "a defendant making an insufficiency claim bears a very heavy burden." United States v. Desena, 287 F.3d 170, 177 (2d Cir. 2002); see also United States v. Macklin, 927 F.2d 1272, 1277 (2d Cir. 1991). In considering a motion for judgment of acquittal, "the court must view the evidence presented in the light most favorable to the government." United States v. DeFreitas, 92 F. Supp.2d 272, 275 (S.D.N.Y. 2002) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979). All permissible inferences must be drawn in the government's favor. Id. A jury verdict must be upheld if "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." United States v. Autuori, 212 F.3d 105, 113 (2d Cir. 2000) (quoting Jackson, 443 U.S. at 319); accord United States v. Reyes, 302 F.3d 48, 52 (2d Cir. 2002)
The government has provided sufficient evidence to present to a jury on the charges against the defendant. At trial, the jury heard the eyewitness testimony of Agents Koch and Burke, both of whom witnessed the conduct for which the defendant has been charged and convicted. Agent Burke also testified that despite the defendant's claim that his contact with Uzor was minimal, phone records showed that the two men called each other 119 times in the two month period prior to the arrest. (Tr. at 151-53.) The jury also heard the testimony of Theresa Spooner, who wired money to the defendant believing that she was paying a fee so that she would receive an inheritance from a relative. The jury is entitled to weigh the evidence before it and to make reasonable inferences based on that evidence. Considering all of the evidence presented, the Court finds that a reasonable trier of fact could have found all the elements of conspiracy to commit wire fraud beyond a reasonable doubt.
The defendant also bases his motion for a judgment of acquittal on the same facts and argument on which he based his motion for a new trial. No prejudice, and therefore no grounds for acquittal, have been shown as a result of the presence of Agent Burke's notes in the jury room.
Conclusion
For the foregoing reasons, both the Rule 33 motion and the Rule 29 motion are denied.
It is so ordered.