U.S. v. Bishawi

• Decision Date: 25 February 2002
• Docket Number: No. 97-40044.,97-40044.
• Citation: 186 F.Supp.2d 889
• Parties: UNITED STATES of America, Plaintiff, v. Ahmad BISHAWI, Defendant.
• Court: U.S. District Court — Southern District of Illinois

Page 889

186 F.Supp.2d 889

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

No. 97-40044.

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

February 25, 2002.

Patty Merkamp Stemler, U.S. Department of Justice, Criminal Div., Appellate Section, Washington, DC, for Plaintiff.

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

OPINION

RICHARD MILLS, District Judge.

The late Paul E. Riley, United States District Judge for the Southern District of Illinois, had a penchant for communicating ex parte with jurors in cases in which he was the presiding judge.¹

Sometimes the communications involved benign subjects such as the weather or televisions programs, but sometimes he commented upon the evidence presented at trial. Such conduct reflects poorly, not only upon the judge who engages in ex parte contacts with jurors, but upon the court in which that judge sits and upon the judicial system as a whole.

I. BACKGROUND

While Ahmad Bishawi's appeal of his conviction and sentence was pending before the United States Court of Appeals for the Seventh Circuit, some information came to light that Judge Riley may have had ex parte communications with the jurors during Bishawi's trial. Based upon this newly discovered evidence, Bishawi filed a motion for a new trial pursuant to Federal Rule of Criminal Procedure 33.²

After considering the parties' briefing on the motion, the Court allowed Bishawi's motion and granted his request for a new trial. United States v. Bishawi, 109 F.Supp.2d 997 (S.D.Ill.2000). The Government moved for reconsideration, and after the Court denied its motion, the Government appealed the Court's ruling.

On appeal, the Seventh Circuit vacated and remanded for further proceedings. United States v. Bishawi, 272 F.3d 458 (7th Cir.2001). Specifically, the Seventh Circuit opined:

The holding of an evidentiary hearing in this case would have afforded the parties an opportunity to interview jurors and determine "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." Fed. R.Evid. 606. Once these factual determinations were made, the trial court would have been equipped to adequately assess the impact of any ex parte contacts on the juries before whom appellees' cases were tried and decided whether or not such communications were harmless error.... The trial court abused its discretion in failing to hold such a hearing.

Id. at 462-63. Accordingly, the Seventh Circuit remanded Bishawi's case "to hold an evidentiary hearing to determine what ex parte contact occurred and whether such contact was prejudicial to the appellees." Id. at 463.

After receiving the mandate, the Court conducted an evidentiary hearing as directed by the Seventh Circuit. At this hearing, the Court heard testimony from the jurors who deliberated and found Bishawi guilty of conspiring to distribute cocaine and cocaine base in violation of 21 U.S.C. § 841(a)(1) and § 846. In addition, the parties asked the Court to re-evaluate and re-consider the affidavits of court personnel which had been previously submitted to the Court.

Bishawi argues that, after hearing the jurors' testimony and reconsidering the affidavits of the court personnel, nothing has changed and that the Court should again allow his motion for a new trial. Bishawi contends that the jurors' testimony clearly establishes that Judge Riley had ex parte communications with some, if not all, of the jurors in this case. Bishawi asserts that, when these improper contacts are combined with the fact that Judge Riley improperly responded to a question from the jury without first consulting counsel or him, the Court should find that an ex parte communication occurred and should presume that he suffered prejudice as a result. When the Court does this, Bishawi claims that it will have no other choice but to again allow his motion for a new trial.

On the other hand, the Government argues that the jurors' testimony and the court personnel's affidavits clearly establish that Bishawi is not entitled to a new trial. The Government notes that, although some of the jurors remembered having contacts with Judge Riley during the trial, none recalled having any communication with him while they deliberated. Moreover, the Government asserts that the jurors testified that even the communications which they had with Judge Riley only involved "small-talk" and were not in any way related to the merits of the case. As such, the Government contends that Judge Riley's contacts with the jurors did not affect Bishawi's substantial rights.

Likewise, the Government contends that, although Judge Riley did not follow proper procedures when he responded to the jury's question, his error was harmless. Accordingly, the Government asks the Court to deny Bishawi's 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. 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.

United States v. Woolfolk, 197 F.3d 900, 905 (7th Cir.1999).

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). Therefore, 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." United States v. Smith, 31 F.3d 469, 471 (7th Cir.1994).

Nevertheless, "the mere occurrence of an ex parte conversation between a trial judge and a juror does not constitute a deprivation of any constitutional right. The defense has no constitutional right to be present at every interaction between a judge and a juror, nor is there a constitutional right to have a court reporter transcribe every such communication." Rushen v. Spain, 464 U.S. 114, 119, 104 S.Ct. 453, 78 L.Ed.2d 267 (1983)(Stevens, J., concurring in judgment); see also Verdin v. O'Leary, 972 F.2d 1467, 1481-82 (7th Cir.1992)(explaining that the constitutional right to presence is not implicated per se by a judge's ex parte communication with a deliberating jury). "Rather, the constitutional right to presence, which derives from the Sixth Amendment's Confrontation Clause and the Due Process Clause of the Fourteenth Amendment, exists where there is a reasonably substantial relation to the fullness of opportunity to defend against the charge and to the extent that a fair and just hearing would be thwarted by the defendant's absence." Bishawi, 272 F.3d at 461-62, citing United States v. Gagnon, 470 U.S. 522, 526, 105 S.Ct. 1482, 84 L.Ed.2d 486 (1985), and citing Snyder v. Massachusetts, 291 U.S. 97, 105-06, 54 S.Ct. 330, 78 L.Ed. 674 (1934).

A defendant's broader, procedural right to be present pursuant to Federal Rule of Criminal Procedure 43 is, likewise, not without limits.³ Rule 43 alleviates the presence requirement when the proceeding involves only a conference or hearing upon a question of law. Fed. R.Crim. Pro. 43(c)(3); see also United States v. Johnson, 859 F.2d 1289, 1294 (7th Cir.1988)(holding that "a defendant's presence is not required `[a]t a conference or argument upon a question of law.'"), quoting Rule 43(c)(3).

The defendant bears the burden of proving the occurrence of an ex parte contact with the jury. 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 defendant must meet this burden by a preponderance of the evidence. See United States v. Caro-Quintero, 769 F.Supp. 1564, 1580 (C.D.Cal.1991)(noting that a defendant must prove that the jury was exposed to ex parte contacts with courthouse personnel by a preponderance of the evidence); see also United States v. Tarpley, 945 F.2d 806, 811 (5th Cir.1991)(holding that the defendant must show...