U.S. v. Bishawi

• Decision Date: 28 August 2000
• Docket Number: No. 97-40044.,97-40044.
• Citation: 109 F.Supp.2d 997
• Parties: UNITED STATES of America, Plaintiff, v. Ahmad BISHAWI, Defendant.
• Court: U.S. District Court — Southern District of Illinois

109 F.Supp.2d 997

UNITED STATES of America, Plaintiff, v. Ahmad BISHAWI, Defendant.

No. 97-40044.

United States District Court, S.D. Illinois, Benton Division.

August 28, 2000.

Kit R. Morrissey, Fairview Heights, Patty Merkamp Stemler, Washington, DC, for plaintiffs.

Eric W. Butts, St. Louis, MO, for defendants.

OPINION

RICHARD MILLS, District Judge.

Central to the right to a fair trial, guaranteed by the Sixth and Fourteenth Amendments, is the principle that "one accused of a crime is entitled to have his guilt or innocence determined solely on the basis of the evidence introduced at trial, and not on grounds of official suspicion indictment, continued custody, or other circumstances not adduced as proof at trial."

Holbrook v. Flynn, 475 U.S. 560, 567, 106 S.Ct. 1340, 89 L.Ed.2d 525 (1986), quoting Taylor v. Kentucky, 436 U.S. 478, 485, 98 S.Ct. 1930, 56 L.Ed.2d 468 (1978).

I. BACKGROUND

On January 19, 1999, a jury found Ahmad Bishawi guilty of conspiracy to distribute cocaine and cocaine base in violation of 21 U.S.C. § 841(a)(1) and § 846. On October 1, 1999, United States District Judge Paul E. Riley sentenced Bishawi to 240 months of imprisonment.¹

That same day, Bishawi filed a notice of appeal of his conviction and sentence. While his appeal was pending before the United States Court of Appeals for the Seventh Circuit, Bishawi's counsel received notification from Chief United States District Judge J. Phil Gilbert that Judge Riley may have had ex parte communications with the jury during its deliberations in Bishawi's case. Based upon a motion by Bishawi's attorney, the Seventh Circuit issued a general remand to the district court for further proceedings based upon the information subsequently learned regarding Judge Riley's conduct during the trial.

Bishawi has now filed a motion for a new trial pursuant to Federal Rule of Criminal Procedure 33.² Therein, Bishawi argues that, because he was unaware of the ex parte communications until after the jury had reached its verdict, Judge Riley's ex parte communications with the jury constitute newly discovered evidence entitling him to a new trial. Moreover, Bishawi contends that because it is impossible to determine the exact nature and extent of the communications which occurred between Judge Riley and the jury in his case, this Court should conduct an evidentiary hearing (including interviewing the jurors who deliberated in this case) and, thereafter, should grant him a new trial.

The Government argues that, because Bishawi has not proffered any concrete evidence that Judge Riley engaged in any ex parte communication with the jury, the Court should deny both his request for an evidentiary hearing and his motion for a new trial. Although the Government admits that Judge Riley committed error in this case by responding in writing to a question from the jury without first consulting counsel and Bishawi,³ it contends that this error was harmless and, therefore, does not entitle Bradley to an evidentiary hearing or a new trial.

Apart from this note, the Government claims that Bishawi has not met his burden of establishing that an ex parte communication occurred between Judge Riley and the jury. Because Bishawi has not met his initial burden, the Government asserts that no presumption of prejudice arises for it to overcome. Accordingly, the Government asks the Court to deny Bishawi's request for an evidentiary hearing and his motion for a new trial.

II. APPLICABLE LAW

Federal Rule of Criminal Procedure 33 provides that "the court on motion of a defendant may grant a new trial to that defendant if required in the interests of justice." Id. "Probably the most frequent basis for a Rule 33 motion — and the only one specifically mentioned in the rule — is one `based on the ground of newly discovered evidence.'" United States v. Woolfolk, 197 F.3d 900, 905 (7th Cir.1999), quoting United States v. Kamel, 965 F.2d 484, 490 (7th Cir.1992). The United States Court of Appeals for the Seventh Circuit has explained:

To receive a new trial based on newly discovered evidence, the defendant must demonstrate that the evidence (1) came to their knowledge only after trial; (2) could not have been discovered sooner had due diligence been exercised; (3) is material and not merely impeaching or cumulative; and (4) would probably lead to an acquittal in the event of a retrial.

Woolfolk, 197 F.3d at 905.

However, when the basis for a new trial is newly discovered evidence that the trial judge has had improper contact with a juror or jurors, the test is somewhat different because "[a]ny ex parte meeting or communication between the judge and the foreman of a deliberating jury is pregnant with possibilities of error." United States v. United States Gypsum Co., 438 U.S. 422, 460, 98 S.Ct. 2864, 57 L.Ed.2d 854 (1978). As the United States Supreme Court has opined:

In a criminal case, any private communication, contact, or tampering directly or indirectly, with a juror during a trial about the matter pending before the jury is, for obvious reasons, deemed presumptively prejudicial, if not made in pursuance of known rules of the court and the instructions and directions of the court made during the trial, with full knowledge of the parties. 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.

Remmer v. United States, 347 U.S. 227, 229, 74 S.Ct. 450, 98 L.Ed. 654 (1954), citing Mattox v. United States, 146 U.S. 140, 150, 13 S.Ct. 50, 36 L.Ed. 917 (1892). Moreover, the Seventh Circuit has stated that "the unusual practice of a judge entering the jury room to speak privately with jurors is almost certain to run afoul of a defendant's right to be present during trial proceedings."⁴ United States v. Smith, 31 F.3d 469, 471 (7th Cir.1994).

Before the Government is put to its burden of showing that an improper contact by an outsider with the jury is harmless, however, a defendant must first establish that an ex parte communication occurred. See Owen v. Duckworth, 727 F.2d 643, 646 (7th Cir.1984)(holding that the defendant bears the burden of proving outside contact with the jury); see also United States v. Wilson, 715 F.2d 1164, 1172 (7th Cir.1983)(holding that while "private communications between jurors and others are presumptively prejudicial[,][t]here can be no prejudice ... in the absence of any such communication."); see also United States v. Heater, 63 F.3d 311, 321 (4th Cir.1995)(holding that the defendant bears the initial burden of demonstrating that the improper juror contact occurred, and only if the contact is established must the Government demonstrate absence of prejudice). The moving defendant must meet this burden by a preponderance of the evidence. United States v. Caro-Quintero, 769 F.Supp. 1564, 1580 (C.D.Cal.1991); see also United States v. Tarpley, 945 F.2d 806, 811 (5th Cir.1991)(holding that the defendant must show that "improper communication of extrinsic information had likely occurred."); see also United States v. Cousins, 842 F.2d 1245, 1247 (11th Cir.1988)(holding that a defendant must make a "colorable showing" that an ex parte communication occurred).

Furthermore, "[a] determination of jury prejudice is complicated in the federal courts by the proscription against questioning jurors directly about the effect of the outside contact on their deliberations." Owen, 727 F.2d at 646. Federal Rule of Evidence 606(b) provides:

Upon an inquiry into the validity of a verdict or indictment, a juror may not 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, except that a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury's attention or whether any outside influence was improperly brought to bear upon any juror. Nor may a juror's affidavit or evidence of any statement by the juror concerning a matter about which the juror would be precluded from testifying be received for these purposes.

Id. Thus,

[r]ather than question the jurors directly, a district court must make findings of fact at two separate levels. First, the district court must find the basic, or subsidiary, facts — e.g., the nature, content, and extent of the extra-judicial contact. Based on its findings of subsidiary facts, the district court must then make the ultimate factual determination: whether the contact likely affected the juror's impartiality.

Owen, 727 F.2d at 646.

III. ANALYSIS

In the instant case, the Court finds that it is more likely than not that Judge Riley had an ex parte communication(s) with the jury during Bishawi's trial. Tarpley, 945 F.2d at 811. The Court believes that it can make this finding without the necessity of conducting an evidentiary hearing as requested by Bishawi.⁵

The Government is correct that a judge's failure to consult with counsel and a criminal defendant in open court prior to responding to a jury's communication can be considered "harmless error." United States v. Gagnon, 470 U.S. 522, 526, 105 S.Ct. 1482, 84 L.Ed.2d 486 (1985); United States v. Patterson, 23 F.3d 1239, 1254 (7th Cir.1994); Verdin v. O'Leary, 972 F.2d 1467, 1482 (7th Cir.1992). Moreover, the Government is correct that Judge Riley's error in this case should, generally, be considered harmless because he correctly instructed the jury on the law and because it appears that nothing Bishawi or his counsel could have said, had they been present, would have altered Judge Riley's response. United States v. Rodriguez, 67 F.3d 1312, 1316 (7th Cir.1995).

It was, nevertheless, error for Judge Riley to have...