Ford, In re
| Decision Date | 02 March 1992 |
| Docket Number | Nos. 91-5497,91-5548,s. 91-5497 |
| Parties | In re Harold E. FORD, Petitioner (91-5497). UNITED STATES of America, Plaintiff-Appellee, v. Harold E. FORD, Douglas Beaty, Karl A. Schledwitz, and David Crabtree, Defendants-Appellants (91-5548). |
| Court | U.S. Court of Appeals — Sixth Circuit |
J. Alan Hanover, Hanover, Walsh, Jalenak & Blair, Memphis, TN, William E. McDaniels (argued), Brent J. Gurney, Williams & Connolly, Washington, DC, for Harold E. Ford.
Odell Horton, pro se.
Ed Bryant, U.S. Atty., Memphis, TN, Daniel Clancy, Asst. U.S. Atty., Jackson, TN, Gary Humble, Asst. U.S. Atty. (argued), Chattanooga, TN, for U.S.
Steven R. Ross (briefed), U.S. House of Representatives, Office of the Clerk, Washington, DC, for amicus curiae The Speaker and Bipartisan Leadership Group of the U.S. House of Representatives.
Eric Schnapper (briefed), NAACP Legal Defense & Educational Fund, New York City, for amicus curiae N.A.A.C.P.
Albert C. Harvey, Thomason, Hendrix, Harvey, Johnson & Mitchell, Memphis, TN, Ann C. Short, Herbert S. Moncier, Knoxville, TN, for Douglas R. Beaty.
Kemper B. Durand (briefed), Albert C. Harvey, Thomason, Hendrix, Harvey, Johnson & Mitchell, Memphis, TN, for Karl A. Schledwitz.
Anthony Philip Lomonaco, Vaughan & Zuker, Knoxville, TN, Albert C. Harvey, Thomason, Hendrix, Harvey, Johnson & Mitchell, Memphis, TN, for David A. Crabtree.
Julius L. Chambers, NAACP Legal Defense Fund, Eric Schnapper (briefed), NAACP Legal Defense & Educational Fund, Barrington D. Parker, Claire Silberman, Morrison & Foerster, New York City, for amicus curiae N.A.A.C.P., NAACP Legal Defense and Educational Fund, Inc.
Before: MARTIN and MILBURN, Circuit Judges; and CONTIE, Senior Circuit Judge.
Defendants appeal an order denying their motion to dismiss criminal charges on grounds of double jeopardy, arguing that the district court erred in granting a mistrial. Defendant Harold Ford also seeks mandamus review of an order directing jury selection for his retrial take place in a city other than the site of his retrial, and the propriety of the district court's consideration of an FBI affidavit outlining evidence of juror misconduct.
Four defendants, Douglas Beaty, Karl S. Schledwitz, David Crabtree and Congressman Harold E. Ford, were charged in a nineteen count indictment with conspiracy, bank fraud and mail fraud. The allegations of the indictment allege, among other things, that the defendants conspired to defraud the trustee in bankruptcy for the Southern Industrial Banking Corporation ("SIBC"). The indictment also alleges that an ongoing pattern of "loans" were made from SIBC to Ford, with no expectation of repayment.
This case was investigated by a grand jury sitting in Memphis, the Western District of Tennessee. However, the case was actually presented to the grand jury in Knoxville, in the Eastern District of Tennessee. The government maintained that Knoxville was the only site where venue existed for all charges. However, three of the four defendants were from Memphis, and so, defendants argued that venue properly rested there. Upon indictment by the Knoxville grand jury, Ford began to speak out against the government's handling of the case. Ford alleged that the indictment was sought in Knoxville rather than in Memphis to deprive him of a fair trial. The district court entered a gag order limiting Ford's comments, which was subsequently reversed on appeal by this court. United States v. Ford, 830 F.2d 596 (6th Cir.1987).
Subsequently, in response to defense motions, the United States Magistrate in Knoxville recommended that under Fed.R.Crim.P. 21(b), the defendants were entitled to transfer the case from the Eastern District to the Western District of Tennessee. The United States appealed the transfer order, but the district court affirmed. Accordingly, the case was transferred to Memphis.
The United States then filed a motion in the Memphis district court to have the case transferred outside of the Memphis area, which was, the government contended, subject to pretrial publicity to such a degree that a fair trial would be impossible. The district court judge denied the motion, concluding that the jury pool would include jurors from counties outside of Memphis, which was the primary target of the pre-trial publicity. The district court specifically ruled out Jackson, Tennessee, in the Eastern Division of the Western District, because a highly publicized trial had recently occurred there. The court expressed its confidence that a fair jury trial could be conducted in Memphis, despite the fact that Congressman Ford had generated much publicity there and was a popular local figure.
The venue of the case having been settled, the case proceeded. Trial finally commenced on February 12, 1990. The United States presented evidence from March 1, 1990 through March 15, 1990 and from March 19, 1990 through April 12, 1990. The defendants put on no testimony.
When the case was ready for closing arguments one of the jurors failed to appear. When he later appeared he explained that he had been arrested the prior night on a traffic charge. Further questioning revealed that he had at least one prior arrest even though he had stated on the jury questionnaire that he had never been arrested. This juror was excused, and an alternate juror was appointed.
Closing arguments were then made, and the case was submitted to the jury on Tuesday, April 24, 1990. On the second day of deliberations, Wednesday, April 25, 1990, the jury requested the trial transcript, but since no transcript was available, the jury was informed that it would take 30 days to prepare. Later this second day, the jury announced that it was ready to return a verdict. The court instructed the foreman to read the verdict to the court. The foreman read: "[Counts] One, Five, Six, Seven and Eight, we have four guilty and eight not guilty." Joint Appendix at 318. In addition, the foreman stated "at this particular time the jury is in a hopeless deadlock as far as coming back with a verdict." Id.
In response, the court stated "I don't know what else you can do but they just have to go back and start over again, and I'm not going to let them come back after a short time and tell us that they are hopelessly deadlock[ed]." Id. at 319. The court then ordered the jury to resume deliberations on the following day.
On Thursday, April 26, the jury requested the trial testimony of seven witnesses rather than the testimony of all the witnesses as was requested earlier. The court informed the jury that this could take two weeks to prepare, but that some transcripts could be prepared sooner.
On the next morning, Friday, April 27, the government moved to bring to the attention of the court prior undisclosed convictions of one of the jurors. The jury was adjourned early, but prior to leaving provided a note to the court which stated:
The majority of the jury has voted by secret ballot (9-3) that it cannot reach a guilty or not guilty verdict without violence to individual judgment.
A hearing was then held, and the juror admitted that she had been convicted of two prior felonies, but did not admit to them on the jury questionnaire. She was dismissed.
The court then returned to the question of the jury's deadlock. The court asked the foreman to explain, and he replied that the jury was hopelessly deadlocked, and there was no chance of reaching a verdict without violence to individual judgment. The judge polled the jury, and all jurors agreed that a hopeless deadlock had been reached.
The defense requested that the jury be sent back for further deliberations, that the court read the jury a modified "Allen charge", and that the jury be instructed that it could return a partial verdict or verdicts as to one or several defendants. After considering each alternative, the court held that the jury deadlock made it manifestly necessary for it to declare a mistrial. Secondarily, the district court justified its decision to declare a mistrial based on prior juror misconduct, allegations of improper juror contact, and attempts to influence the jury.
Following the declaration of a mistrial an FBI investigation was conducted which included interviews of all jurors and other witnesses. The affidavit of the special agent conducting this investigation indicated that in addition to the problems associated with the two dismissed jurors, another juror had slept in the jury room, had received news information about the case during a break in deliberations, and had been approached by two women who tried to influence her. The foreman of the jury declined to answer, on the advice of his attorney, whether he had made up his mind prior to deliberations and whether he thought the case was nothing but a vendetta against Ford.
Following this investigation, the United States made a "Motion for Protection of the Integrity of the Jury Process," pointing out problems with the first trial and asking that precautions be taken to avoid the same problems in the second trial. The government proposed various alternatives, including a more detailed voir dire, sequestration of the jury, and transfer within the district. In the intervening period, the defendants moved for dismissal of the indictment on the grounds that there was no basis to declare a mistrial, and that retrial would violate the defendants' rights under the double jeopardy clause.
On April 10, 1991, the district court issued an order denying defendants' motion to dismiss the indictment on double jeopardy grounds. In response to the government's motion, the district court directed that the selection of jurors would take place in Jackson, Tennessee, in the Eastern Division of the Western District. After the jurors were selected, however, the trial itself would resume in Memphis. From this order the defendants have appealed the propriety of the mistrial...
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