Opinion
Case No. 00-40104-01/02-RDR.
September 16, 2004
MEMORANDUM AND ORDER
This matter is presently before the court upon defendants' motion for new trial. Having carefully reviewed the materials presented by the parties, the court is now prepared to rule.
The defendants were convicted by a jury on March 31, 2003 of conspiracy to manufacture, distribute and dispense 10 grams or more of LSD in violation of 21 U.S.C. § 846 and possession with intent to distribute 10 grams or more of LSD in violation of 21 U.S.C. § 841(a)(1).
Each defendant filed a motion for new trial following the verdict. On July 29, 2003 the court denied those motions. The court sentenced the defendants on November 25, 2003 and filed the judgments on December 3, 2003 and December 4, 2003. Defendant Pickard filed his notice of appeal on December 11, 2003, and defendant Apperson filed his notice of appeal on December 12, 2003. Following the docketing of the appeals, defendants filed a motion with the Tenth Circuit seeking remand to this court for the limited purpose of granting a new trial based upon newly discovered evidence of juror misconduct. On June 25, 2004 the Tenth Circuit denied the motion without prejudice. The defendants filed the instant motion on August 3, 2004.
In this motion, the defendants contend that they are entitled to a new trial under Fed.R.Crim.P. 33 based upon juror misconduct. They assert that the juror who was elected foreperson, Scott Lowry, "lied" about his qualifications to serve on the jury. They point out that during voir dire Mr. Lowry failed to disclose that (1) he had graduated from law school and was an attorney; and (2) he had attended the same law school at the same time as the prosecutor for the government, Greg Hough.
While the filing of a notice of appeal normally "divests the district court of [jurisdiction] over those aspects of the case involved in the appeal," Griggs v. Provident Consumer Disc. Co., 459 U.S. 56, 58 (1982), Fed.R.Crim.P. 33 specifically states that "if an appeal is pending, the court may grant the motion only on remand of the case." Fed.R.Crim.P. 33. By implication, Rule 33 leaves the district court free to entertain a Rule 33 motion after a notice of appeal has been filed. See Smith v. Pollin, 194 F.2d 349, 350 (D.C. Cir. 1952). Accordingly, the district court retains jurisdiction to deny a Rule 33 motion during the pendency of an appeal, even though it may not grant such motion unless the court of appeals first remands the case to the district court. Id.; see also United States v. Cronic, 466 U.S. 648, 667 n. 42 (1984). If the district court decides to grant the Rule 33 motion, the district court may then signal its intention to the court of appeals. Cronic, 466 U.S. at 667 n. 42. Only when presented with evidence of the district court's willingness to grant a Rule 33 motion will the court of appeals remand the case. Id.
A motion for new trial based on any ground other than newly discovered evidence must be made within seven days after the verdict. Fed.R.Crim.P. 33(b)(2). A motion based on newly discovered evidence must be filed within three years of the verdict. Fed.R.Crim.P. 33(b)(1). The time limitations of Rule 33 are jurisdictional. United States v. Miller, 869 F.2d 1418, 1420 (10th Cir. 1989).
In the response to the motion the defendants filed with the Tenth Circuit, the government argued that the evidence offered by the defendants was not newly discovered because this evidence "could have been discovered and produced during jury selection and at trial." The government pointed to United States v. Hughes, 41 Fed.Appx. 276, 279 (10th Cir.), cert. denied, 537 U.S. 985 (2002) for support of this argument.
The court shall turn initially to the issue argued by the government in its response to the motion filed by the defendants with the Tenth Circuit. If the evidence offered by the defendants is not newly discovered, then the instant motion would be untimely. Accordingly, the court shall proceed to consider this issue.
The court is doing so reluctantly. The government, in its response to the instant motion, has incorporated the response it made at the Tenth Circuit. The court is not enthusiastic about this approach since it requires us to examine another response and determine what arguments are now being made. This contention is a prime example. It was made half-heartedly with little legal support and no factual support. Nevertheless, the court shall discuss it in order to resolve it.
A motion for new trial asserting juror misconduct and based upon newly discovered evidence must be supported by proof that the evidence of misconduct was not discovered until after the verdict was returned. In the context of juror misconduct, this rule serves to ensure that the trial court is given every available opportunity to attempt to salvage the trial by ridding the jury of prejudicial influences. Thus, where the defendant or defense counsel knows of juror misconduct or bias before the verdict is returned but fails to share this knowledge with the court until after the verdict is announced, the misconduct may not be raised as a ground for a new trial. United States v. Jones, 597 F.2d 485, 488 (5th Cir. 1979); see also United States v. Edwards, 696 F.2d 1277, 1282 (11th Cir. 1983), cert. denied, 461 U.S. 909 (1984) (no abuse of discretion in refusing to interrogate jury about alleged juror misconduct where defendant waited to hear the verdict before contesting jury's impartiality); United States v. Dean, 667 F.2d 729, 732-34 (8th Cir. 1982) (en banc) (untimely notification of juror misconduct waives right to new trial even where actual prejudice can be shown).
In the motion filed by defendants with the Tenth Circuit, they provide the following background for this motion. On May 17, 2004, counsel for defendant Pickard received a letter from his client. The letter indicated that Pickard had recently discovered an article in "Quarterly Interest," a publication of the Kansas Office of the State Bank Commissioner, containing some information about an employee, Scott Lowry, who served as the jury foreperson during the defendants' trial. The article notes that Mr. Lowry graduated and received a degree from Washburn Law School in 1987. This information led Pickard to investigate where Mr. Hough, the government's prosecutor, went to law school and when he graduated. Pickard subsequently learned that Mr. Hough graduated from Washburn Law School in 1986. The defendants and their counsel point out that they had no reason to know at the time of trial that Mr. Lowry was an attorney and that he went to the same law school at the same time as the government's prosecuting attorney.
Here, the information before the court demonstrates that the defendant did not gain the facts concerning the juror foreperson until after the trial. The court is not persuaded that this is the type of information that the defendants or their counsel could have, with reasonable diligence, obtained during the course of the trial. Accordingly, we believe there is little question that this is newly discovered evidence.
The case cited by the government as support for its position on this issue is inapposite. In Hughes, the defendant sought habeas relief based upon an affidavit provided by a co-defendant. The Tenth Circuit determined that this evidence was not newly discovered because the affidavit could have been produced at trial since it had been prepared prior to trial and the defendants were aware of its existence prior to trial. The circumstances here are entirely different since there is no indication that the defendants or their counsel had this information, or could have reasonably obtained it, prior to trial or during the trial. Therefore, the court shall proceed to the merits of the motion.
A defendant seeking a new trial based upon the denial of a fair trial due to the dishonesty of a juror during voir dire must satisfy the two-part test articulated in McDonough Power Equipment, Inc. v. Greenwood, 464 U.S. 548, 556 (1984). United States v. Cerrato-Reyes, 176 F.3d 1253, 1259 (10th Cir. 1999) (Greenwood standard applied in a criminal case). The test requires the party to "demonstrate that a juror failed to answer honestly a material question on voir dire and then further show that a correct response would have provided a valid basis for a challenge for cause." Greenwood, 464 U.S. at 556. This test "is not satisfied by showing that a juror provided a mistaken, though honest answer, but rather is directed at intentionally incorrect responses."Cerrato-Reyes, 176 F.3d at 1259 (internal citations and quotation omitted).
In the federal system, the examination of prospective jurors is governed by Fed.R.Crim.P. 24. Rule 24, however, does not contain the words "impartiality" or "challenge for cause." The federal right to challenges for cause is set forth in 28 U.S.C. § 1870 (2000) ("All challenges for cause or favor, whether to the array or panel or to individual jurors, shall be determined by the court."). Interestingly, the statute contains no list of principal challenges; it merely provides that challenges for cause are to be ruled upon by the trial court. Federal courts have required a showing of partiality by a prospective juror before a challenge for cause will be sustained. Swain v. Alabama, 380 U.S. 202, 220 (1965); see also United States v. Annigoni, 96 F.3d 1132, 1138 (9th Cir. 1996) (challenges to potential jurors must be based upon partiality, such as personal relationship with party, witness or attorney in litigation, or biased state of mind concerning party or issue in case); Dennis v. Mitchell, 68 F.Supp.2d 863 (N.D.Ohio 1999) (challenge for cause is designed to remove juror who is partial to one side or who has formed opinion prior to hearing evidence).
The court has thoroughly examined the voir dire in this case as well as the information provided by the defendants. The defendants have failed to demonstrate that a new trial is required here.
The court begins by an examination of the voir dire process. The court began by empaneling twelve jurors and then asking a series of questions. The court then allowed the prosecutor and the defense attorneys to ask questions. During this process, the court excused jurors either for cause or through the exercise of peremptory challenges. New jurors were then called to replace the jurors who had been excused. As the court and the attorneys questioned the new jurors, the number of questions that were asked became smaller. On several occasions, the court and the attorneys simply asked the new juror if they had any positive responses to any of the questions that had previously been asked. If the new juror indicated that he or she had a response to a prior question, the court or the attorneys would follow up with additional questions.
Mr. Lowry was seated as a juror on the second day of voir dire. Prior to the time that Mr. Lowry was seated in the jury box, the following questions had been asked during the course of voir dire: (1) "[D]o you know any of the attorneys involved or any of the attorneys that are employed in the United States Attorney's Office?" (2) "[H]as your family or any member of your family or you, for that matter, had any legal training or — exposure to the law, other than the time that you've previously sat on a jury?" These particular questions were never asked of Mr. Lowry. He was, however, asked the following by Mr. Hough:
Q. Now, sir, the questions that have been asked today and yesterday, did you hear the questions that I have asked and the two defense attorneys have asked?
A. Yes.
Q. Any of those that would have caused you to give an answer that would require any explanation?
A. No.
The defendants believe that the aforementioned responses require at least an evidentiary hearing because they assert that Mr. Lowry intentionally failed to disclose his prior association with Mr. Hough and his legal background. The court is not convinced that even an evidentiary hearing is necessary. See United States v. Cattle King Packing Co., 793 F.2d 232, 243 (10th Cir.), cert. denied, 479 U.S. 985 (1986) (no need to conduct an evidentiary hearing when only "thin allegations of jury misconduct" are present).
The court begins by noting that the defendants have failed to demonstrate that Mr. Lowry intentionally lied in not disclosing an association with Mr. Hough. The defendants have provided nothing to the court to indicate that Mr. Lowry knew Mr. Hough. Rather, the defendants have only shown that Mr. Lowry and Mr. Hough were in law school at the same time. The mere fact that at some time over fifteen years ago Mr. Lowry and Mr. Hough were in reasonable proximity to each other does not show any type of relationship or association. If the defendants had produced some evidence showing that Mr. Lowry and Mr. Hough knew each other, then the court might consider holding an evidentiary hearing because such information might have led to a challenge for cause. The court uses the term "might" because it is abundantly clear that a prior association or relationship might not be the basis for a challenge for cause. In sum, the evidence offered by the defendants on this point is so flimsy that there is no need for an additional hearing.
In turning to the second alleged "lie" of Mr. Lowry, we do not find that an evidentiary hearing is necessary on this matter either. The reason for the denial of the hearing on this argument differs from the one stated concerning the first argument. Here, the evidence is stronger that Mr. Lowry intentionally failed to disclose information on a material matter during voir dire. The court uses the word "stronger" because it is obviously not certain that Mr. Lowry "intentionally" withheld any information. It is possible that he simply honestly did not remember the prior question on legal training, and we do note that it was only asked once during the two-day voir dire proceeding. However, for the purposes of this motion, we shall assume that Mr. Lowry intentionally failed to disclose this information. Even under this assumption, we are not persuaded that the defendants are entitled to an evidentiary hearing. The court fails to find any support for the position that a favorable response would have justified a challenge for cause. See United States v. Nururdin, 8 F.3d 1187, 1190-91 (7th Cir. 1993) (trial court not required to excuse any juror on the basis of his occupational background so long as the court is able to conclude that the juror would be able to view the evidence with impartiality and to decide the case without bias); Crowley v. L.L. Bean, Inc., 303 F.3d 387, 407 (1st Cir. 2002) (professional experience as an attorney in a sex discrimination case would not merit challenging juror for cause in a sex discrimination case). This decision is made even clearer when one considers the following responses made by Mr. Lowry to other questions that no doubt would have arisen if he had disclosed that he had some legal training:
Q. The judge will give you instructions as to what the law is, including what reasonable doubt is. Would you be willing to follow those?
A. Yes, I would.
Q. Even if you didn't agree with what — what the judge told you it was, even if it just — you said this is wrong, would you still follow the Court's instruction?
A. Yes, I will — I would always follow the judge's instruction.
. . . . .
Q. Is there anything that you've heard yesterday or today that you believe in any manner would affect your ability to remain fair and impartial throughout this entire proceeding?
The defendants have also suggested that other information uncovered by Pickard since the jury verdict requires an evidentiary hearing. Pickard also learned that another Lowry, Kirk Lowry, was in law school at the same time as the jury foreperson and the prosecuting attorney. Pickard further ascertained that Kirk Lowry and the jury foreperson had the same address during law school. Finally, Pickard discovered that another assistant United States Attorney in the Topeka office, Thomas Luedke, also attended Washburn Law School during the same period as Mr. Lowry and Mr. Hough. The court is not persuaded that the defendants have demonstrated any significance concerning any of these facts since the defendants have not shown that Mr. Lowry intentionally failed to disclose any of this information or that a response would have provided a valid basis for a challenge for cause.
In sum, the court finds no basis for an evidentiary hearing or for a new trial. Accordingly, the defendants' motion for new trial shall be denied.
IT IS THEREFORE ORDERED that defendants' motion for new trial (Doc. # 496) be hereby denied.
IT IS SO ORDERED.