United States v. Harmon
| Decision Date | 28 February 2014 |
| Docket Number | Case No.: 08–CR–00938–LHK |
| Citation | 21 F.Supp.3d 1042 |
| Court | U.S. District Court — Northern District of California |
| Parties | United States of America, Plaintiff, v. Jamie Harmon, Defendant. |
Richard C. Cheng, Grant P. Fondo, United States Attorney's Office, San Jose, CA, for Plaintiff.
ORDER DENYING DEFENDANT JAMIE HARMON'S MOTION FOR A NEW TRIAL
Before the Court is a motion for a new trial brought by Defendant Jamie Harmon (“Harmon”). ECF No. 321. The government opposes the motion. ECF No. 325. Having considered the submissions of the parties, the evidence, and the relevant law, the Court hereby DENIES Harmon's motion for a new trial.
On July 20, 2010, a jury found Jamie Harmon guilty of five counts of money laundering in violation of 18 U.S.C. § 1956(A)(i)(b)(i), but hung regarding her guilt on one count of conspiracy to commit money laundering in violation of 18 U.S.C. § 1956(h). ECF No. 146. On October 1, 2010, Harmon requested an evidentiary hearing regarding alleged misconduct by one of the jurors in her trial, Mark Porter. ECF No. 172. The government opposed Harmon's request. ECF No. 186. Harmon filed a reply. ECF No. 189. Judge James Ware granted Harmon's request, and summoned Porter to testify at an evidentiary hearing. ECF Nos. 200 (); 201 (Order summoning Mark Porter to come to the hearing). The evidentiary hearing was held on April 1, 2011. ECF No. 213 (“April 2011 hearing transc.”). After the hearing, the parties filed supplemental briefing. ECF No. 217 (Harmon's brief); ECF No. 220 (government's brief).
Prior to the evidentiary hearing on juror misconduct, Harmon also filed a motion for judgment of acquittal, or in the alternative, a new trial, raising various other issues, and the government opposed. ECF No. 175 (motion); ECF No. 183 (opposition). On August 18, 2011, Judge Ware issued an order that rejected Harmon's arguments in the acquittal motion and denied Harmon's motion for acquittal, but nonetheless granted Harmon's motion for a new trial based on an erroneous jury instruction that the Court identified sua sponte. ECF No. 227. The order expressly declined to reach Harmon's claim of juror misconduct. See id. at 17 n.20. The government subsequently appealed the order granting a new trial. ECF No. 236.
After Judge Ware's retirement, this case was reassigned to the undersigned judge for post-trial litigation and sentencing on September 5, 2012. ECF No. 278. On August 13, 2013, the Ninth Circuit issued a memorandum disposition reversing Judge Ware's grant of a new trial because “the instructional error would not have warranted a new trial because it was harmless” in light of the overwhelming evidence of Harmon's guilt. ECF No. 308 at 3. The Ninth Circuit did not reach the issue of whether there was juror misconduct in Harmon's trial. See id.
On December 18, 2013, Harmon moved for a new trial based on Mark Porter's alleged juror misconduct. ECF No. 321 (“Mot. 1”). On January 8, 2014, the government filed an opposition. ECF No. 325 (“Opp'n 1”). Harmon did not file a reply. The Court held an evidentiary hearing on this issue on January 24, 2014. ECF No. 335 (). After the hearing, the parties filed supplemental briefing. ECF No. 324 (government's brief, hereinafter “Opp'n 2”); ECF No. 343 (Harmon's brief, hereinafter “Mot. 2”).
Mark Porter served as a juror and the foreperson in Harmon's trial. At the 2014 evidentiary hearing before this Court, Porter testified that he suffered from a long-term cocaine addiction in the 1980s and 1990s for about twelve years, Transc. at 52–53, but has “been clean” since around 1998 or 1999. Id. He also testified that he does not remember having a checking account in the 1990s, id. at 46, and that for about ten or twelve years during the time of his drug addiction he was homeless, for he was “living in the streets just making do the best [he] knew how.” Id. at 53.
The record contains evidence that Porter has a criminal history consisting of four convictions: (1) a 1994 state felony conviction for welfare fraud, Cal. Welfare & Institutions Code § 10980(c)(2) ; (2) a 1982 state conviction for nonsufficient funds, Cal. Penal Code § 476a ; (3) a 1980 state conviction for possession of a dangerous weapon, Cal. Penal Code § 12020(a) ; and (4) a 1980 state conviction for reckless driving, Cal. Vehicle Code § 23103. See ECF No. 186, Exhibits B, C. The state court records for the latter three convictions have apparently been destroyed, see Opp'n 2 at 6, but both Harmon and the government acknowledge that Porter was convicted of these crimes. Opp'n 2 at 2, 5–6; Mot. 2 at 1. There is no record of whether these latter three convictions were felonies or misdemeanors. See ECF No. 186, Exhibits B, C.
The record also reveals that Porter was charged with possession of a concealed weapon in 1989, and insufficient funds in 1994, but both charges were dismissed. ECF No. 186, Exhibit B at 3. Porter was also charged, but not convicted, of insufficient funds in 1982 while on probation. Id.1 He was also charged with three counts of perjury, which were subsequently dropped, in connection with his 1994 welfare fraud conviction, see id. ; ECF No. 186, Exhibit C at 1–3. Thus, Porter has a total of six charges that did not lead to convictions.
Prior to serving on the jury in Harmon's trial, Porter completed a “Juror Qualification Questionnaire” on August 28, 2009. ECF No. 172, Exhibit B (hereinafter “juror questionnaire”). Porter checked the “yes” box with respect to question six, which asked whether he had been “convicted ... of a state or federal crime for which punishment could have been more than one year in prison.” Id. at 1. The questionnaire explained that question six was controlled by the “maximum penalty, and not the actual sentence.” See id. at 2. The questionnaire also asked, in question number seven, if Porter's civil rights had been restored. Id. at 1. Porter answered “yes.” Id. Question number seven also noted that if the answer to the question was “yes,” the prospective juror should “explain [on page 2].” Id. Porter stated the following under the “Remarks” section on page 2 of the questionnaire: Id. at 2.
Sometime before Harmon's trial began, Porter submitted another “Jury Information Form.” See ECF No. 172, Exhibit D (hereinafter “jury information form”). Question number 17 on that form asked, “Have you been convicted of a state or federal crime punishable by imprisonment for more than year?” Mr. Porter checked the “no” box in response. See id. at 1.
On July 6, 2010, Judge Ware conducted jury voir dire for Harmon's trial. ECF No. 325 at 19–83 (“voir dire transcript”). Judge Ware asked the prospective jurors if they or a family member had been charged or convicted of a criminal offense:
Id. at 20–21. A few jurors explained their backgrounds concerning this issue, and then Judge Ware called on Porter, who stated the following: Id. at 23. Judge Ware responded to Porter: Id. Judge Ware, the prosecutor, and Harmon's lawyer did not ask Porter any further questions about his prior convictions. See generally voir dire transcript. At no point during voir dire were the jurors informed that Harmon was a former prosecutor. Id. Porter subsequently was selected to serve on the jury and was ultimately the foreperson. Transc. at 48.
On April 1, 2011, Judge James Ware held an evidentiary hearing on Porter's alleged juror misconduct. ECF No. 213. Porter testified under oath, answering various questions from counsel and the Court. See generally id. Before Porter testified, Judge Ware asked Porter if he would like to speak to a lawyer about the proceedings before he testified and offered to appoint Porter an attorney, id. at 4. Porter responded, “I've done nothing, so let's do this.” Id. at 5. Later, Porter explicitly waived his right to have the Court appoint an attorney to represent him in the proceedings. Id. at 6–7.
On January 24, 2014, the undersigned judge held an evidentiary hearing on the issue of Porter's alleged juror misconduct. See generally Transc. Porter was present and testified under oath, answering various questions from counsel and the Court, again without the aid of a lawyer. Id. Before he testified, the Court asked Porter if he would like to speak with a lawyer before testifying and offered to appoint Porter a lawyer. Id. at 8. Porter responded, Id. When the Court noted that Porter should know that “a lawyer is available to [him] if [he] wanted to ask questions or consult with them,” Porter...
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