U.S. v. Carpa, No. 98-2797
| Decision Date | 29 October 2001 |
| Docket Number | No. 98-2797 |
| Citation | 271 F.3d 962 |
| Parties | (11th Cir. 2001) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. DOUGLAS J. CARPA, EMILIO L. IPPOLITO, JACK W. WARREN, LAURENT J. MOORE, SUSAN MOKDAD, and CHARLES P. DUNNIGAN, Defendants-Appellants |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Appeals from the United States District Court for the Middle District of Florida.
Before EDMONDSON and BIRCH, Circuit Judges, and SHAPIRO*, District Judge.
Defendants appeal their convictions and the district judge's denial of their post-trial motions, including a motion for a new trial because of alleged juror misconduct. This court has jurisdiction under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291.
On March 15, 1996, a federal grand jury in the Middle District of Florida returned an 18-count indictment against defendants Emilio Ippolito ("Ippolito"), Susan Mokdad ("Mokdad"), Phillip Marsh ("Marsh"), Douglas Carpa ("Carpa"), Richard Brown ("Brown"), Charles Dunnigan ("Dunnigan"), Jack Warren ("Warren"), and Laurent Moore ("Moore"), for violations of federal law, includingattempts to obstruct state and federal court proceedings by threatening jurors. The district judge, on the Government's motion and over defendants' vigorous objection, empaneled an "innominate" jury,1 and assigned each prospective juror an identification number. The trial lasted from May 28 until August 13, 1997. Brown was acquitted of all charges, Carpa was convicted of all charges, and the remaining defendants were found guilty of some counts and not guilty of others.
As a threshold issue, we are concerned about the district judge's investigation of charges of juror misconduct.2 Our decision turns on few of the many facts adduced, proceedings conducted, and decisions rendered by the district judge throughout the long, difficult trial. Only those facts relevant to this decision will be stated below.
During voir dire, the district judge asked each prospective juror whether he or she had been 6/3/97 Transcript, at 147. Juror 505 responded, Id. at 148. The district judge stated, "All right," and proceeded to the next juror. Id. at 148. In fact, during the entire trial, Juror 505 was: (1) on probation following a Florida felony arrest for driving with a suspended license; and (2) required to serve 60 days in jail on weekends. See 3/12/98 Transcript of Proceedings before Circuit Judge Douglas Baird. It is unclear from the record whether any portion of this sentence was actually served during the trial.
The district judge empaneled twelve petit jurors and six alternates; juror 505 was an alternate. At the end of evidence but before deliberation, the district judge excused a juror on a motion by the defense. Juror 505, as first alternate, became a petit juror. Juror 505 subsequently participated in deliberations and remained present during announcement of the verdicts on August 13, 1997.
On October 30, 1997, Robert Gaskin, Esq. ("Gaskin"), of Pinellas County, Florida, contacted Thomas Ostrander, Esq. ("Ostrander"), counsel for Ippolito. Gaskin advised Ostrander that he had recently taken the sworn deposition of a party in a marriage dissolution action, and the deponent identified himself as a member of the petit jury that rendered verdicts in the Ippolito trial. Ostrander asked Gaskin not to provide him with the juror's identifying information because of the innominate jury order. See 11/4/97 letter from Ostrander to Judge Merryday, Docket #776. Gaskin stated that the deponent had admitted to: (1) being charged and convicted of numerous felonies; and (2) having been on probation before, during, and after his tenure as a juror in the Ippolito trial.
Ostrander communicated the information he received from Gaskin to the district judge. See 11/4/97 letter from Ostrander to Judge Merryday, Docket #776. The district judge asked the Federal Bureau of Investigation ("FBI") to investigate the facts surrounding Gaskin's allegations, see 6/9/98 Dist. Ct. Op. at 5, and to identify and investigate the juror and his criminal record.
The FBI assigned Agent Robert Coffin ("Coffin") to investigate; Coffin deduced that the suspect was Juror 505. Coffin interviewed Juror 505, once in the presence of Deputy Marshal Billy Walker, and once in the presence of Assistant United States Attorneys ("AUSAs") Ernest Peluso (the AUSA who prosecuted defendants) and Robert Monk. Coffin interviewed the Florida probation officer assigned to Juror 505 once alone, and once in the presence of AUSAs Peluso and Monk. Coffin's interviews of Juror 505 and his probation officer were not in the presence of defense counsel or the district judge.
Defendants moved for a mistrial based on the allegations concerning Juror 505.3 The district judge held hearings on Juror 505's alleged misconduct on April 6 and 8, 1998 ("the hearings").4 Evidence was adduced that between 1988 and 1997, Juror 505 was charged with burglary, contributing to the delinquency of a minor, disorderly conduct, grand theft, and driving with a license suspended or revoked. Each charge was either dropped or received an "adjudication withheld," a Florida procedure suspending a jail sentence and placing defendant directly on probation. In 1991, Juror 505 violated probation on the burglary charge, entered a guilty plea, but was still not convicted of a felony. In October, 1996, Juror 505 pled no contest to driving with a license suspended or revoked; his prior traffic infractions upgraded the offense to a third degree felony. Adjudication was withheld, but Juror 505 nevertheless was sentenced to 60 days in custody and 18 months probation.
On March 12, 1998, Juror 505 had moved the Florida court to modify his sixty day jail sentence; Judge Douglas Baird originally stated that Juror 505 had to complete his jail sentence, but after learning of Juror 505's service on the jury that convicted some defendants, Judge Baird waived the jail portion of his sentence. See 4/7/98 Order of Honorable Douglas W. Baird.
Juror 505 was not called to testify at the hearings; the only witness heard was Coffin. Coffin testified to Juror 505's criminal record as obtained through: (1) NCIC, the national crime tracking system; (2) interviews with Juror 505; and (3) interviews with Juror 505's probation officer. The NCIC report was incomplete; Coffin was unable to answer difficult questions about Juror 505's record. The District judge acknowledged the "ambiguity as to [Juror 505's] degree of fault [in prior arrests]." See 6/9/98 Dist. Ct. Op. at 15. But at various times during the hearings, the district judge expressed reluctance to order a new trial, presumably because of the length and complexity of the trial. See, e.g., 4/6/98 Hrg. Transcr. at 65, 84; 4/8/98 Hrg. Transcr. at 52.
After the hearings, the district judge, denying defense motions for mistrial, concluded that there was no juror misconduct for lack of evidence that Juror 505 was dishonest or biased. The district judge found that Juror 505: (1) had adjudications withheld on several occasions and served several probationary terms, but had no federal or state felony convictions; (2) never had his civil rights suspended or terminated; (3) had no felony charges pending against him at the time of trial; and (4) satisfied the statutory qualification to sit as a juror under 28 U.S.C. § 1865.
The district judge reasoned that: (1) the mixed verdict was strong evidence that Juror 505 was not biased; (2) retrial would involve large expenditures of time and expense; and (3) Juror 505 did not actively elect to withhold or deflect his criminal record, and if he did, it was to minimize his embarrassment. The district judge implied that any error related to Juror 505 was harmless error. The district judge based his decision on Coffin's hearsay testimony of Juror 505's criminal record and motive.
In April, 1998, Juror 505's identity was revealed by an unknown source; his picture was posted on the internet and his name printed in newspapers. The district judge requested an FBI investigation into the release of Juror 505's identity because it violated court orders restricting the identification of jurors.
Errors during voir dire can so affect a trial that they warrant a new trial. But "[a] litigant is entitled to a fair trial, but not a perfect one." McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548, 553 (1984). Courts should "ignore errors that do not affect the essential fairness of the trial." Id.; see also 28 U.S.C. § 2111 (harmless error statute). Voir dire examination serves to protect the right to a jury capable and willing to decide the case solely on the evidence before it. SeeMcDonough, 464 U.S. at 554. To invalidate the result of a long and burdensome trial because of a juror's mistaken, though honest, response to a question, "is to insist on something closer to perfection than our judicial system can be expected to give." Id. at 555, 104 S. Ct. 845.
To obtain a new trial for juror misconduct during voir dire, a party must: 1) demonstrate that a juror failed to answer honestly a material question on voir dire, and then 2) show that a correct response would have provided a valid basis for a challenge for cause.5 See McDonough Power Equip. v. Greenwood, 464 U.S. 548, 556 (1984). McDonough first "requires a determination of whether the juror's answers were honest." BankAtlantic v. Blythe Eastman Paine Webber, Inc., 955 F.2d 1467, 1473 (11th Cir. 1992). Then, there must be a showing of bias that would disqualify the juror. See id.; United States v. Perkins, 748 F.2d 1519, 1532 (11th Cir. 1984). Bias may be shown either by express admission or by proof of specific facts...
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