Opinion
No. 04 Cr. 1110 (DLC).
October 25, 2005
For the Government: Timothy Treanor, Esq. Jennifer G. Rodgers, Esq. Benjamin Gruenstein, Esq. Assistant United States Attorneys, United States Attorney's Office for the, Southern District of New York, New York.
James Kousouros, Esq. Kew Gardens, New York.
OPINION AND ORDER
This Opinion addresses the motion for a mistrial made by the six defendants in this criminal case on the ground that they were not given a sufficient time to consult with their own counsel regarding the exercise of their peremptory challenges. For the following reasons and those explained on the record, the motion was denied.
Background
The trial of the six lead defendants charged in this RICO indictment was severed from that of their co-defendants. At a conference on September 16, 2005, the Court reviewed the voir dire process with counsel in detail and explained that the struck panel method would be used. The Court advised that defense counsel should consult during the course of the day regarding the peremptory challenges since they would be sharing those challenges, and would only be given about ten minutes to finish consultations once the necessary number of venirepersons had been questioned.
The trial of a seventh defendant was also severed, but he entered a plea of guilty just before the jury was empaneled.
A panel of over 500 potential jurors was assembled on September 21 and asked to complete a questionnaire. The questionnaire comprised a single question addressed to the panel member's ability to serve as a juror in a trial expected to last three and a half months. Counsel reviewed the questionnaires and agreed to the dismissal of over 300 of the jurors for cause. With a single exception, the Court approved their agreement.
On Monday, September 26, jury selection began. With the defendants' consent that the Government could have an additional two peremptory challenges, the Court granted the defendants an additional four peremptory challenges to use in selecting the first twelve jurors. With these additional challenges, the use of the struck panel method required the selection of forty-six potential jurors.
The defendants were given fourteen challenges to exercise against the first twelve jurors and three to choose six alternates. The Government was given eight and then three challenges.
One hundred ten venirepersons were sent by the Jury Clerk to the Ceremonial Courtroom in the Daniel Patrick Moynihan Courthouse. After examining jurors to ensure that the length of the trial did not present a significant impediment to their service, an individual voir dire was conducted through the use of a written voir dire form that was given to each juror. The form contained 50 questions generally addressed to a juror's ability to be fair, and 11 questions addressed to an individual's background. After reviewing each of the fairness questions with the first juror, each subsequent juror simply identified which questions she would answer affirmatively, and then explained why. Questions requiring a confidential inquiry were taken at sidebar with counsel. All potential jurors answered questions regarding their background in open court.
During the voir dire process, the first eighteen potential jurors were seated in the jury box, and the remaining twenty-eight were seated in the first rows of the public seating section of the courtroom. When individuals in this latter group were questioned they stood and used a microphone to answer the questions. At the end of the first day, the voir dire process was almost complete. The venire was excused for the night, two prospective jurors were questioned individually, and one of those was excused. Thus, by the end of September 26, only one of the forty-six seats remained to be filled.
Before adjourning on September 26, the Court advised the defendants that they would have a further opportunity to discuss their peremptory challenges with their counsel at the end of the selection process the next day. The Court explained that since so much progress had been made in selecting the jury, and the defendants and their counsel would have all night to think about those prospective jurors that had already been chosen, the amount of time they would be given would be brief.
On Tuesday, September 27, the parties and the Court were scheduled to meet at 9:00am and the jurors were expected to be sent to the Ceremonial Courtroom by the Jury Clerk at approximately 10:00am. Argument on an evidentiary issue raised by a defendant, other colloquy, and brief recesses filled the remainder of the time until the venire returned to the Ceremonial Courtroom.
During the examination of the venire on September 27, two previously questioned jurors asked to be excused, the Court granted a defendants' challenge for cause, and the seat remaining from September 26 was filled. Altogether, four new jurors were selected.
Since each of the defendants was in custody, the venire had to leave the courtroom in order for the defendants to be taken to an adjoining room to consult with their attorneys as a group. There was no other courtroom on the floor where the Ceremonial Courtroom is located, so the venire, which was then composed of almost 70 persons, was sent to stand in the hallway outside the courtroom. The jurors were told that there would be a fifteen-minute break.
Once the venire had left the courtroom, defense counsel protested that fifteen minutes was not enough time to consult. The Court denied the request for more time, explaining that counsel had all night to consider their selections and consult. The Court returned to the courtroom at 11:30am, after an eighteen-minute break. Instead of returning to the courtroom when requested by the Deputy to do so, defense counsel sent one of their number as an emissary to ask for more time. The Court denied the request, explaining that there were scores of jurors standing on their feet outside the courtroom and that counsel had all of Monday evening to consult.
After the defendants were reseated, the venire was allowed to reenter the courtroom. Defense counsel approached the bench and argued that they needed ten more minutes, specifically, that attorneys had different views regarding which jurors to select and were confused by their numbering systems. The request was denied, with the Court reiterating that the time to consult was the night before. Counsel then returned to their seats to write their selections on a sheet of paper. At that point, one of the defense attorneys approached the bench again with a "separate issue" that needed only "one lawyer." He asserted that he had learned from one of the defendants during the conference in the adjoining room that one of the forty-six jurors had "consoled" an emotional juror who had been dismissed that morning. After consulting with all counsel about how to address the issue, the Court inquired of the juror, who asserted that nothing had happened that affected her ability to be fair. By then it was 11:50am.
Counsel then exercised their challenges against the first thirty-four jurors to choose the first twelve jurors. The defendants used all of their fourteen challenges. Counsel were given an opportunity to object to the dismissal of the challenged jurors. At the sidebar, defense counsel moved for a mistrial based on their lack of opportunity to consult with their clients.
The parties then exercised the peremptory challenges against the remaining twelve jurors, choosing the six alternates. The defendants again exercised each of their three peremptory challenges. With the exception of their previously stated mistrial motion, the defendants had no objection to excusing the challenged jurors. All prospective jurors except for eighteen were dismissed at that time.
At the end of the day on September 27, the Court inquired of defense counsel whether they wished an opportunity to submit something in writing to support their mistrial motion. They indicated that they did, and in a letter of September 28 argue that each defendant was deprived of "any meaningful opportunity" to consult with his own counsel in selecting the jury. In a letter of September 30, besides addressing the legal standard that applies to this issue, the Government points out that each defendant had the entirety of the voir dire process to confer with his attorney about the potential jurors, and that defense counsel had the evening of September 26 to consult with each other, as well as the time granted for consultation on September 27. The Government argues as well, that the Court's decision to grant defendants four extra peremptory challenges should have made the decision as to which jurors to challenge easier, and that defense counsel were warned that they should use Monday evening to consult with each other and that their time to consult at the end of the jury selection process would be limited.
Discussion
"A motion for mistrial is addressed to the sound discretion of the trial judge." United States v. Marshall, 458 F.2d 446, 451 (2d Cir. 1972) (citation omitted). "[A] mistrial is warranted only upon a showing of actual prejudice" by the defendant.United States v. Gaskin, 364 F.3d 438, 463 (2d Cir. 2004) (juror misconduct allegation); see also United States v. Lubrano, 529 F.2d 633, 638 (2d Cir. 1975) (holding that a Government agent's contact with jurors did not warrant mistrial absent a showing of prejudice).
Trial courts similarly "retain a broad discretion to determine the way peremptory challenges will be exercised." United States v. Thompson, 76 F.3d 442, 451 (2d Cir. 1996) (quoting United States v. Severino, 800 F.2d 42, 48 (2d Cir. 1986)). Although Rule 24(b) specifies the minimum number of peremptory challenges granted to each side, federal law "prescribes no particular method for their use." United States v. Blouin, 666 F.2d 796, 798 (2d Cir. 1981). A district court thus remains free to craft the "procedures through which peremptory challenges are exercised" so long as it does not adopt "`[a]ny system for the empaneling of a jury that pre[v]ents or embarrasses the full, unrestricted exercise by the accused of [his right to challenge peremptorily].'" Id. at 797 (quotingPointer v. United States, 151 U.S. 396, 408 (1894)) (alterations in original).
Defendants have made no showing that they were prevented from the full exercise of their peremptory challenges. These challenges "are a `means to the constitutional end of an impartial jury and a fair trial.'" Thompson, 76 F.3d at 451 (quoting Georgia v. McCollum, 505 U.S. 42, 57 (1992)); see also United States v. Martinez-Salazar, 528 U.S. 304, 316 (2000) (identifying "a principal reason for peremptories: to help secure the constitutional guarantee of trial by an impartial jury"). Defendants do not contend that the questioning of the jurors was inadequate or that they were not given a sufficient number of peremptory challenges. Nor do they contend that any biased juror was empaneled as a result of the time limit set by the Court. Moreover, the defendants exercised their full complement of peremptory challenges. In the absence of any evidence that a biased juror was seated, it is not possible to conclude that defendants were denied the primary function of their peremptory challenges.
The defendants have not even identified how their peremptory challenges would have been reconfigured if they had had additional time to consult. Even if they had made such a showing, however, the Second Circuit's opinion in Blouin "made clear that a defendant `cannot succeed in his claim simply by showing that he could, under some procedure, have made more effective use of his peremptories.'" United States v. Resto, 824 F.2d 210, 213 (2d Cir. 1987) (quoting Blouin, 666 F.2d at 798). The Supreme Court has similarly rejected challenges to court procedures that made the defendant's exercise of peremptory challenges more difficult, noting that "[a] hard choice is not the same as no choice." Martinez-Salazar, 528 U.S. at 315.
Perhaps attempting to draw attention away from the lack of prejudice, defendants have styled their claim as a denial of meaningful participation in the process of selecting a jury. Defendants are undoubtedly accurate in their characterization of jury selection "as a critical stage of a criminal proceeding," during which defendants have a constitutional right to be present. See Gomez v. United States, 490 U.S. 858, 873 (1989). But the cases cited for this proposition offer no support for defendants' position. Indeed, the Second Circuit noted inCohen v. Senkowski, 290 F.3d 485 (2d Cir. 2002), that a defendant's "rights in this respect [are] sufficiently preserved by his presence during the questioning, his opportunities to confer with counsel, and the formal announcement of the stricken and seated jurors in open court." Id. at 490.
The use of the struck panel method, a system of jury selection in which all challenges are exercised at the end of the voir dire process, maximizes the amount of time defendants and their counsel can consult regarding their use of peremptory strikes. The defendants see all prospective jurors before they exercise any challenges. They exercise their challenges against every prospective juror, in contrast to the jury box method where the last jurors may be seated after the final round of challenges are exercised.
The struck panel method also provides defendants another advantage over the jury box method: since the Government's and defendants' challenges are made at the same time, jurors have no basis to judge which party struck any particular juror.
Defendants nonetheless argue that they were denied opportunities to consult with counsel because the fifteen minutes allotted by the Court (which, as described above were effectively stretched into about half an hour) did not allow each defendant to express his views on the relative merits of the potential jurors. Quite the contrary, as already described, defendants had ample time to consult with their lawyers. Defendants were present during the questioning of each juror in open court, which presented an ideal opportunity for consultation with counsel.
Defendants' motion does not argue that the individual defendants needed more time to discuss their views as a group, but only that they had insufficient time to consult with their attorneys.
Indeed, as a practical matter, by far the best time to make and share judgments about individual venirepersons when the pool is as large as it was in this case, is when the individual venireperson is responding to questions. Because the basis for a peremptory challenges may be effervescent, little more than the "`sudden impressions and unaccountable prejudices we are apt to conceive upon the bare looks and gestures of another,'" id. (quoting United States v. Crutcher, 405 F.2d 239, 244 (2d Cir. 1968) (quoting Lewis v. United States, 146 U.S. 370, 376 (1892))), one's reasons for making such a challenge are, if anything, easier to communicate immediately. Cf. McCrory v. Henderson, 82 F.3d 1243, 1248 (2d Cir. 1996) (noting that peremptory challenges are "often based on . . . subtle, intangible impressions"). Moreover, had defendants shared their views with counsel during questioning, then counsel for each defendant could have compared notes over Monday evening (as the Court had advised them to do) and come Tuesday morning fully prepared with choices as a group with respect to 42 of the 46 prospective jurors. Given the amount of time defendants had with their counsel during the questioning of the venire, and the clear notice that additional time provided afterwards would be limited, if any defendant actually decided to postpone consultation or expected that more time would be provided, that decision and expectation were unreasonable.
In an unpublished opinion, the Second Circuit observed that it is not "reasonable for defense counsel to wait to confer until right before the time to exercise peremptory challenges, on the assumption that they would be given more time to exercise their challenges." United States v. Rodriguez, Nos. 99-1120, 99-1204, 99-1227, 2000 WL 639954, at *2 (2d Cir. May 17, 2000) (unpublished table decision). The Court does not rely on this case in reaching its decision, but merely notes the agreement.
Defendants have failed to locate a single case where a court has found a limitation on the time allotted to counsel for the exercise of peremptory strikes sufficiently prejudicial to warrant a mistrial. Several courts have, however, rejected challenges to similar limitations. See, e.g., United States v. Buchanan, 213 F.3d 302, 310 (6th Cir. 2000) (finding no plain error in time limits on peremptory challenges); United States v. Nelson, 733 F.2d 364, 367 (5th Cir. 1984) (finding no violation of Rule 24(b) when defendant was present for only five of the thirty minutes allotted to making peremptory challenges and a juror unwanted by the defendant was not struck).
In Norde v. Keane, 294 F.3d 401 (2d Cir. 2002), half of the jury and all of the alternates were chosen after the defendant had been removed from the courtroom. The Second Circuit based its conclusion that the district court's "denial of counsel's request for an adjournment to consult with her client was a constitutionally impermissible denial of the right to counsel" on the fact that "jury selection proceeded and concluded without any participation by [the defendant]." Id. at 414. The defendants in this case were present in the courtroom for the entirety of the voir dire process, and they do not contend that they were prevented from consulting with counsel during that time.
See also United States v. Martinez, Nos. 91-10295, 91-10298, 91-10299, 91-10319, 1993 WL 326465, at *14 (9th Cir. Aug. 26, 1993) (unpublished table decision) (upholding ten-minute limitation on the exercise of peremptory challenges).
Finally, the decision to deny the defendants' request for additional time was not based solely on the Court's "insistence upon expeditiousness" as defendants allege. Although the Court did put the parties on notice that it wanted them to be prepared to exercise their challenges promptly after the close of the voir dire process, there was an additional concern that day. Specifically, because the defendants were in custody, the entire venire had to be removed from the courtroom so that the Marshals could escort the defendants into the private room where they wished to discuss their challenges. Once removed from the courtroom, however, the potential jurors had nowhere else to go. The Court was thus concerned not only with unnecessary delay, but also the inconvenience to the potential jurors who were made to stand in the hallway while defendants conferred on an issue they should have been discussing with their counsel the entire previous day.
Conclusion
The defendants had the opportunity to consult with their attorneys during the questioning of the potential jurors. The attorneys, moreover, had all night and several breaks in the voir dire to discuss their choices for peremptory challenges among themselves and to resolve any conflicts among their clients' expressed views. This time was sufficient to allow the defendants to exercise the peremptory challenges guaranteed them by the Federal Rules of Criminal Procedure and to use those challenges to secure their constitutional right to a fair and impartial jury. Absent any evidence that any biased jurors were empaneled, the motion for a mistrial is denied.
SO ORDERED.