Opinion
Cr. No. 98-0070-E-BLW
December 9, 1999
MEMORANDUM DECISION AND ORDER INTRODUCTION
The Court has before it a motion for new trial filed by defendant Allan Elias. The motion is fully briefed and at issue. The Court finds that Elias has made out a prima facie case of jury tampering and is entitled to a presumption that he was prejudiced thereby. The Court will reserve ruling, however, on whether the Government is able to rebut that presumption or whether a new trial is necessary. The Court finds that an earlier evidentiary hearing was too limited in scope either to provide a total picture of the tampering allegations or to give the Government a full opportunity to rebut the presumption of prejudice. For those reasons, the Court will set up a full evidentiary hearing, and then render a final ruling on the motion for new trial after that hearing. The Court will explain its reasoning in more detail below.
The Court uses the term "jury tampering" with some reservation. That term suggests an active attempt by an outside party to interfere with the jury's independence and decision-making. There is no indication that such interference occurred here. However, the term "jury tampering" has become almost a word of art, and has been used to describe a wide variety of incidents which called into question whether the jury was improperly subjected to outside influences which may have affected the reliability of the jury's decision. In this case, as the Court will discuss, there is evidence that the jury foreperson believed that the Defendant attempted to influence the vote of another juror. It may be more accurate to describe these circumstances as "perceived" jury tampering — that is, the foreperson perceived that the Defendant attempted to influence another juror. At any rate, when the Court uses the term jury tampering in this decision, it is referring to the Defendant's prima facie showing that the foreperson perceived that the Defendant attempted to influence the vote of another juror.
FACTUAL BACKGROUND
On May 7, 1999, following a three-week trial, a jury convicted Elias of making false statements to the Government, improperly handling hazardous waste, and endangering his employees by exposing them to that waste. On June 16, 1999, more than a month after that conviction, the Government prosecutors conducted a telephone conference with the jury foreperson, Boyd Greenlee, to discuss the trial. During that conference, Greenlee told the prosecutors that during the trial, he had heard from another juror that Elias had approached that juror and asked her "what it would take to buy her off." See Transcript of June 23, 1999, hearing at 5. The prosecutors immediately informed the Court of Greenlee's statements, and notified defense counsel that the Government would be seeking to detain Elias prior to sentencing based on Greenlee's statements.
The Court conducted an evidentiary hearing on July 2, 1999. The hearing occurred in chambers with each of the available jurors called one at a time, placed under oath, and questioned by the Court. Counsel were not permitted to ask questions, but they could relay additional questions to the Court, who would then ask the questions.
Three of the jurors were not available, and have not been questioned.
In response to the Court's questioning, Greenlee stated that during the "middle of the trial," another juror told her fellow jurors, including Greenlee, that Elias had "approached" her and asked her "what would it take to turn her decision." See Transcript of July 2, 1999, hearing at 20, 11. 5-10. At another point during the Court's questioning, Greenlee again paraphrased the juror's accusation against Elias: "she [the juror] mentioned that he [Elias] said what would it take to win your vote." Id. at 20, 11. 2-3. Greenlee understood that the juror had been approached by Elias in the parking lot of the Federal Courthouse as the juror was returning from a trial recess on her way to the jury room. Id. at 30, 11. 1-17. Greenlee could not remember the name of the juror who made this accusation, but he did describe her hair color and seating position within the jury box, establishing that she was the third alternate, Janet Scott.
The following colloquy then occurred between the Court and Greenlee:
Court: Did you understand — or what was your understanding as to the tone or nature of Mr. Elias' remark?
Greenlee: I kind of think maybe he was just joking. I wasn't there, so I didn't hear. This is just hearsay.
Court: Sure.
Greenlee: This is just what she repeated. And he was maybe trying to just kind of make her feel a little bit at ease. I don't know. I don't know what the whole entire thing was about that.
Court: But that was your understanding, is that it was somewhat in jest?
Greenlee: Yeah.
Court: Did this juror indicate as much?
Greenlee: Yeah, I think so. I think she didn't really feel totally uncomfortable about it.
. . . .
Court: Now, at the time, I think both at the beginning of the trial and at the end of the trial, the Court instructed you, that is, the jury, that the decision was to be made solely from the evidence presented in the courtroom and in the context of my instructions as to the law. I also, as I recall, specifically advised you that certain matters were not evidence and were not to be considered by you, and those included things that may have been said or done by the parties, the attorneys, or the witnesses when they were not in the courtroom. Were you able to follow my instructions in that regard?
Greenlee: Yes.
Elias denied making any such statement to Scott. None of the other jurors questioned by the Court during the July 2, 1999, hearing recalled hearing Scott recount to them that Elias had approached her and asked what it would take to "win" or "turn" her vote.
ANALYSIS
Elias's strongest argument is that Greenlee believed that Elias had attempted to influence the vote of Scott, and that Greenlee was therefore biased against Elias. In dealing with this charge that one of the jurors may have perceived that the defendant attempted to influence another juror, the Court is guided by the Supreme Court's decisions in the Remmer I and Remmer II cases. See Remmer v. United States, 347 U.S. 227 (1954) ( Remmer I); Remmer v. United States, 350 U.S. 377 (1956) ( Remmer II).
In Remmer I, the Supreme Court was faced with a case where the district court — without holding any kind of a hearing — had denied a motion for new trial based on jury tampering. In the motion, the defendant asserted that after his conviction on tax evasion, he learned that the jury foreperson, one Smith, was approached by a third party, one Satterly, who told Smith that the defendant had $300,000 from a recent sale of property, and asked Smith "[w]hy don't you make a deal with [the defendant]." Remmer II, 350 U.S. at 380. Smith told the trial judge, who had the Federal Bureau of investigation compile a report on the incident. The trial judge and the prosecutor then examined the report and decided solely between themselves that the incident was meaningless. When the defendant later discovered what had happened, he filed a motion for new trial and request for a hearing, all of which was denied by the district court.
The Supreme Court in Remer I treated the incident more seriously than the district court:
In a criminal case, any . . . tampering, directly or indirectly, with a juror during a trial about the matter pending before the jury is, for obvious reasons, deemed presumptively prejudicial. . . . The presumption is not conclusive, but the burden rests heavily upon the Government to establish, after notice to and hearing of the defendant, that such contact with the juror was harmless to the defendant.
The Supreme Court remanded the case to the district court to "determine the circumstances [of the alleged tampering], the impact thereof upon the juror, and whether or not it was prejudicial, in a hearing with all interested parties permitted to participate." Id. at 230.
The district court then held a hearing in which 27 witnesses were called. See U.S. v. Remmer, 122 F. Supp. 673 (D.Nev. 1954). It appears that the Government had the full opportunity to examine the witnesses because the district court's decision notes that "[t]he Government assumed the burden of proceeding with the evidence." Id. at 673.
On the basis of the evidence presented at that hearing, the district court found (1) that "[f]oreman Smith regarded the comment of Satterly as being jocular," id. at 674; (2) that "later, after turning the incident over in his mind, and being mindful of the admonition of the court, [Smith] reported it to the trial judge," id.; (3) that the incident was not communicated to any of the other jurors; and (4) that the "presumption of prejudice is conclusively dispelled" because the incident "did not have the slightest bearing upon the integrity of the verdict nor the state of mind of the foreman of the jury, or any of the members of the jury." Id. at 675.
On appeal, the Supreme Court reversed in Remmer II. In that case, the Supreme Court stated that because the district court had a "paucity of information relating to the entire situation," and because the Government labored under "the presumption which attaches to the kind of facts alleged by the [defendant]," the district court was required to conduct a "full hearing" where the "entire picture should be explored." Id. at 379-80. The Supreme Court took the district court to task for too narrowly construing its mandate, and then proceeded to interpret the evidentiary record much differently than the district court. The Supreme Court concluded that Smith was "disturbed and troubled" by Satterly's approach, id. at 381, and that the district court could not properly find that "[Smith] was not affected in his freedom of action as a juror." Id. It was the district court's "unduly restrictive interpretation" of its mandate, the Supreme Court held, that "had the effect of diluting the force of all the other facts and circumstances in the case that may have influenced and disturbed Smith in the untrammeled exercise of his judgment as a juror." Id. at 382.
Remmer I and II hold that when a defendant makes a prima facie showing of jury tampering, a presumption of prejudice arises that requires the district court to hold a full hearing to investigate all the circumstances surrounding the alleged tampering. The Supreme Court intends the hearing to provide (1) the district court will all the facts, and (2) the Government with an opportunity to rebut the presumption of prejudice.
The Ninth Circuit has recently reaffirmed its allegiance to the tampering aspects of Remmer I and II in United States v. Dutkel, 192 F.3d 893 (9th Cir. 1999). The Circuit noted that while the Supreme Court has retreated from presuming prejudice in cases involving "more prosaic kinds of jury misconduct," the Supreme Court has never backed off from Remmer in cases of jury tampering. The Circuit went on to explain why:
Jury tampering is a much more serious intrusion into the jury's processes and poses an inherently greater risk to the integrity of the verdict. While we presume that jurors will disregard the advice of friends and ignore other ex parte contacts, we can indulge no such presumption where jury tampering is involved.Id. at 895.
The Circuit then went on to define jury tampering: "an effort to influence the jury's verdict by threatening or offering inducements to one or more of the jurors." Id. The type of tampering that triggers the presumption of prejudice occurs both in the case where a juror was personally offered inducements by the defendant, and in the case where a juror suspected that another juror was offered inducements by the defendant: Where the intrusion is (or is suspected to be) on behalf of the defendant raising the claim of prejudice, the presumption arises automatically because jurors will no doubt resent a defendant they believe has made an improper approach to them." Id. at 897.
The initial burden is on the defendant to make a prima facie showing of jury tampering. Id. at 897. Once the defendant has established a prima facie case, the Court is bound to hold a Remmer hearing that "begin[s] with a strong presumption that the jury tampering affected the jury's decision-making." Id. at 899. "The burden rests heavily upon the Government to prove otherwise." Id. (quoting Remmer, 347 U.S. at 229). The inquiry should "focus on whether [Elias's] overtures affected [Greenlee's] behavior — and the behavior of the other jurors — during deliberations." Id. "The Government must show that there is no reasonable possibility that [Greenlee] (or any other juror) was affected in his freedom of action as a juror." Id. at 899. To put it another way, "[u]nless the district court is convinced that there is no reasonable possibility that the deliberations . . . were affected by the tampering, the Court must vacate [the] conviction." Id.
In the present case, Elias has made a prima facie showing of jury tampering sufficient to raise the presumption of prejudice. Regardless of whether Elias actually approached juror Scott, Elias has at least made a prima facie showing that Greenlee believed that Elias had approached Scott and asked her what it would take to "win" or "turn" her vote. It matters little that Elias's approach was less direct than an offer of a sum certain of cash in return for a vote of acquittal. The "name your price" or "what will it take" approaches are every bit as much inducements to influence decisions as direct offers of cash. This type of less direct approach did not distract the Supreme Court in Remmer. There, the offeror told the jury foreman that the defendant had recently sold a piece of property and had some money at his disposal, and urged the foreman to "make a deal" with the defendant. Remmer, 350 U.S. at 380. There was no direct inducement such as the offer of a payment in cash in return for a vote of acquittal. Nevertheless, the Supreme Court did not hesitate to find that a showing of tampering had been established sufficient to trigger the presumption of prejudice.
The Government asserts, however, that Greenlee took Elias's comments to Scott as a joke. Greenlee did testify that "I kind of think maybe he [Elias] was just joking," see transcript of July 2, 1999, hearing at 21, 11. 19-20, and at another point answered "yes" to the Court's question whether Elias's approach was "somewhat in jest?" Id. at 22, 11. 2-4. But Greenlee hedged these descriptions by pointing out that "I wasn't there, so I didn't hear," and "I don't know what the whole entire thing was about that." Id. Greenlee's attempt to qualify his assertion leaves it unclear as to how much weight he gave to his apparent belief that Elias had approached a juror. If Greenlee viewed the approach as "somewhat" in jest, did he still give it some weight in his deliberations? Greenlee did indicate that he followed the Court's admonition not to consider any extrinsic evidence; however, his specific charge of tampering requires more detailed questioning than was permitted in the limited hearing on July 2, 1999. As in Remmer II, the fact that Greenlee raised the issue indicates that it occupied some importance in his mind.
It is generally not difficult to establish a prima facie case. Elias has raised a serious issue whether Greenlee believed that Elias attempted to influence Scott. On the basis of the limited record in this case, the Court cannot find that Greenlee treated the incident as a joke and ignored it in his deliberations. That issue will require further hearings, discussed more fully below. The Court therefore finds that Greenlee has made a prima facie case of tampering.
A presumption of prejudice therefore arises, and the Government has the burden of rebutting that presumption by showing "that there is no reasonable possibility that the deliberations . . . were affected by the [alleged] tampering." Dutkel, 192 F.3d at 899. To give the Government an opportunity to rebut the presumption, the Court is directed by Remmer I and II to hold a "full hearing" where "the entire picture should be explored." Remmer II, 350 U.S. at 379.
While this Court did hold a hearing, it was not the type of extensive hearing, envisioned by Remmer I and II, covering all of the circumstances surrounding the alleged tampering. In that hearing, held as discussed above on July 2, 1999, the Court asked a short series of limited questions to each juror. With all jurors except Greenlee, the Court merely asked them if they had heard any juror describe an incident similar to the alleged tampering reported by Greenlee. The Court did ask a few more questions of Greenlee, but never examined all the circumstances surrounding the incident and its effect on the jurors.
There are at least three areas of important concern that were not covered by the Court at the July 2, 1999, hearing. First, the Court did not ask Greenlee why he failed to disclose the incident to the Court during the trial. Was it because the incident was unimportant to him, or was it because of some other reason? Second, the Court's questions, and Greenlee's answers, did not nail down whether Greenlee ignored the alleged tampering as a joke. As discussed above, the limited nature of the hearing rendered counsel unable to clarify Greenlee's numerous qualifications that left it unclear how he perceived the incident. Third, assuming that Greenlee perceived that Elias attempted to influence Scott, did Greenlee act upon that perception in any way through his conduct with fellow jurors? Did other jurors notice anything in Greenlee's conduct consistent with Greenlee's perception? This is a particularly critical question, given Greenlee's role as foreperson during the jury's deliberations.
These and other matters were never covered in the July 2, 1999, hearing. The Court therefore does not have, as Remmer I and II require, the total picture of the circumstances surrounding the alleged tampering and its impact on the jury. In addition, the Government has never had its full opportunity, as required by Remmer I and II, to rebut the presumption of prejudice. For these reasons, Elias's motion for new trial will be granted in part with the remainder reserved. The Court will grant that part of the motion seeking a ruling that Elias has established a prima facie case of jury tampering sufficient to raise a presumption of prejudice. The Court reserves ruling on the remainder of the motion until the Court can hold a full evidentiary hearing.
The Court will set the hearing date for January 7, 2000, at 9:00 a.m. in the Federal Courthouse in Pocatello, Idaho. The Court will direct the Government to subpoena the jurors to appear on that date. At that hearing, the Government will have the burden of rebutting the presumption of prejudice. The Government must show that "there is no reasonable possibility that the deliberations . . . were affected by the [alleged] tampering." Dutkel, 192 F.3d at 899. In making this determination, the Court and counsel "may not inquire into any juror's mental processes, but rather must focus on conduct." Id.; see also Fed.R.Evid. 606(b).
The Court will permit the Government and defense counsel to question jurors under the strict guidance of the Court. The Government and defense counsel may subpoena witnesses other than the jurors after notice to the other side and approval by the Court. The parties shall exchange witness lists on or before January 3, 2000. No further briefing shall be permitted prior to the hearing. No depositions or pre-hearing discovery shall be permitted.
The Court is mindful that the January 7 hearing date may place the Government under unfair time pressures. The Court is also aware that the jury's verdict was entered more than 6 months ago, and the final resolution of this case has been delayed for a number of reasons, none of which can be attributed to the Government. There is a need to bring this case to a final conclusion. Nevertheless, given the Government's heavy burden in this case, the Court will consider a request from the Government for a brief continuance of the hearing date so as to provide it with a full and fair opportunity to rebut the presumption of prejudice which exists in this case.
The Court recognizes that there are other pending motions. Those motions will be held in abeyance until the Court resolves the motion for new trial following the hearing.
ORDER
In accordance with the Memorandum Decision above,
NOW THEREFORE IT IS HEREBY ORDERED, that the motion for new trial (docket no. 206) is hereby GRANTED IN PART AND RESERVED IN PART. The motion is granted to the extent it seeks a ruling that defendant has established a prima facie showing of jury tampering sufficient to raise a presumption of prejudice. The motion is reserved in all other respects until the Court can hold an evidentiary hearing.
IT IS FURTHER ORDERED, that an evidentiary hearing shall be held on January 7, 2000, at 9:00 a.m. in the Federal Courthouse in Pocatello, Idaho.
IT IS FURTHER ORDERED, that the Government is directed to subpoena the jurors who rendered a verdict in this criminal matter to appear at the Federal Courthouse in Pocatello, Idaho on the date and time above stated.
IT IS FURTHER ORDERED, that the parties shall exchange witness lists on or before January 3, 2000, and that the hearing shall be conducted as set forth in the Memorandum Decision above.