U.S. v. Cheek

• Decision Date: 26 August 1996
• Docket Number: No. 95-6297,95-6297
• Citation: 94 F.3d 136
• Parties: 45 Fed. R. Evid. Serv. 484 UNITED STATES of America, Plaintiff-Appellee, v. Garvey Martin CHEEK, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 136

94 F.3d 136

45 Fed. R. Evid. Serv. 484

UNITED STATES of America, Plaintiff-Appellee, v. Garvey Martin CHEEK, Defendant-Appellant.

No. 95-6297.

United States Court of Appeals, Fourth Circuit.

Argued April 1, 1996.

Decided Aug. 26, 1996.

ARGUED: Thomas Kieran Maher, Rudolf & Maher, P.A., Chapel Hill, North Carolina, for Appellant. Kenneth Davis Bell, Acting United States Attorney, Charlotte, North Carolina, for Appellee. ON BRIEF: David S. Rudolf, Rudolf & Maher, P.A., Chapel Hill, North Carolina, for Appellant.

Before HALL and MOTZ, Circuit Judges, and BUTZNER, Senior Circuit Judge.

Reversed and remanded by published opinion. Senior Judge BUTZNER wrote the opinion, in which Judge HALL and Judge MOTZ joined.

OPINION

BUTZNER, Senior Circuit Judge:

Garvey Martin Cheek appeals from the district court's denial of his petition for a writ of habeas corpus brought pursuant to 28 U.S.C. § 2255. The district court's opinion is reported as Cheek v. United States, 873 F.Supp. 970 (W.D.N.C.1995). In the petition, Cheek had sought a new trial, alleging that his codefendant, James Alvin Rhodes, had attempted to bribe a juror during Cheek's and Rhodes' joint trial. Because the contact was presumptively prejudicial, and the government failed to prove that there was no reasonable possibility that the improper extrajudicial contact affected the verdict, we reverse the district court's judgment and remand for a new trial.

I

After a joint trial that began on July 19, 1984, and ended on July 25, 1984, a jury convicted Cheek of conducting a continuing criminal enterprise in violation of 21 U.S.C. § 848, for which the district court imposed a sentence of 75 years without parole. This court affirmed. United States v. Rhodes, 779 F.2d 1019 (4th Cir.1985).

In 1992, Cheek filed a petition for a writ of habeas corpus, alleging that during the trial and without Cheek's knowledge, Rhodes had contacted a juror, Michael Louis Davis, as part of a bribe attempt. In response to the petition, the government initially acknowledged that if the facts were as alleged, a bribe attempt had occurred and Cheek should be given a new trial. The government then filed a supplemental response stating:

Following its independent investigation, the United States stipulates that the facts as alleged in this Petition, that is, that codefendant Rhodes contacted a juror during the trial of this case in an attempt to bribe or intimidate that juror, and that Petitioner had no knowledge of or role in the attempt to bribe or intimidate the juror.

The government also said that Cheek was entitled to a new trial based on the authority he cited. The government later sought to withdraw its supplemental response, alleging that there was conflicting Fourth Circuit precedent regarding the proper allocation of the burden of proof in cases of juror tampering. In its motion to withdraw, the government specified once again that the "basic facts are not in dispute, although the details may not be agreed upon by the parties."

After a hearing, during which no evidence was presented, the magistrate judge denied the government's motion to withdraw its supplemental response. The government appealed the magistrate judge's ruling. The district court, which had also presided over Cheek's trial, then held an evidentiary hearing to address both the government's appeal from the magistrate judge's order and the merits of Cheek's § 2255 petition. The district court reversed the magistrate judge's order.

Ruling on the merits of Cheek's petition, the court held that Cheek was not entitled to a new trial because the presumption of prejudice mandated by Remmer v. United States, 347 U.S. 227, 74 S.Ct. 450, 98 L.Ed. 654 (1954) (Remmer I ), was not applicable. The district court determined alternatively that even if the presumption applied, the government had successfully rebutted it by demonstrating that the contact had had no effect on Davis' personal verdict. The district court accepted Cheek's affidavit that he did not obtain proof of Rhodes' contact until long after the trial. Consequently, delay played no part in the district court's denial of the habeas petition. See § 2255 Proceedings R. 9 (1996).

At the hearing before the district court, Davis testified that he had been a juror in Cheek's and Rhodes' joint trial. On one evening during the trial, at about 7 or 8 o'clock p.m., a stranger named Oren Alexander drove to Davis' apartment. Alexander told Davis that he was needed at the federal courthouse. Davis testified that he thought at the time that this request was "peculiar" but that he thought "they must have an emergency meeting or something." Davis did not ask Alexander any questions.

After Davis got into the car, Alexander drove him to the police station, which was 15-20 minutes from Davis' home and 10 or 11 blocks from the courthouse. At this point Davis testified that he started "getting suspicious" and felt that his driver "might not be on the level." However, he refrained from questioning Alexander, who told Davis to get out of the car and follow him into the station. Once inside, the pair walked into a room and Alexander told Davis to wait. Alexander left the room and Davis remained standing in the room for approximately 15 minutes. Davis did not speak to anyone during that time. However, he testified that he knew "something was up" because a person sent from the courthouse would have brought him directly there if that person was "honest and on the level." He also testified that he began to think that "something was going on" in connection with his status as a juror.

Davis testified that Alexander returned to the room and told him to get back into the car. Davis complied voluntarily. Alexander then drove Davis to a bail bondsman's office. Davis testified that at this point he realized that Alexander was a bail bondsman and that court proceedings were not going to be held in the bondsman's office. However, he testified that although he was "very suspicious," he did not know what was going to happen. He therefore followed Alexander into the office. After about 15 minutes, Davis told Alexander that he was leaving. Alexander told him to wait. Davis decided that he had to leave "because something [was] wrong." As he rose to leave, Rhodes walked into the room. Recognizing Rhodes as one of the defendants on trial, Davis left the bondman's office without saying a word. He then walked home--a distance of four to five miles.

Davis asserted that Alexander had "deviously" lied to him about being a court official. He also stated that he believed that he had been "used." When counsel asked him why he thought he had been "used" or "set up," he answered: "I know I was on this jury. They took advantage of that." When asked if he knew who was trying to set him up Davis replied: "I have no idea. I seen [Rhodes'] face in there. It had to be him. Who would deliberately lure me to that place with the intentions of doing something?" He testified that the experience had "devastated" him.

Davis acknowledged that numerous times during the trial the court had told all the jurors to report any suspicious contacts immediately. But Davis did not tell the district court judge, the attorneys, other jurors, or anyone else associated with the trial about his experience. He testified that he did not report the incident because he was "very afraid" of retaliation by the defendants. The only person he spoke to was his commanding officer in the North Carolina National Guard, Captain (now Major) Harding, whom the district court credited. Major Harding testified that Davis said he was sitting on a jury and that he had been approached with a bribe.

II

Cheek argues that the district court erred by overruling the magistrate's order that denied the government's motion to withdraw its supplemental response. After an independent investigation, the government acknowledged in its supplemental response that Cheek was entitled to a new trial. This issue need not detain us. The government's opinion concerning Cheek's right to a new trial was not binding on either the district court or this court, although it "is entitled to great weight." Young v. United States, 315 U.S. 257, 258, 62 S.Ct. 510, 511, 86 L.Ed. 832 (1942) (direct criminal appeal); see also Every v. Blackburn, 781 F.2d 1138, 1140-41 (5th Cir.1986) (habeas corpus).

III

The standard of review of the district court's opinion involves three inquiries. We review historical facts for clear error. See Fed.R.Civ.P. 52(a). Questions of law are reviewed de novo. See generally Pierce v. Underwood, 487 U.S. 552, 558, 108 S.Ct. 2541, 2546, 101 L.Ed.2d 490 (1988). The final question is whether the improper contact or communication compromised the impartiality of the jury. Ordinarily, the grant of a new trial is committed to the sound discretion of the district court. See 11A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 2818, at 194 (1995). However, because the ultimate factual determination regarding the impartiality of the jury necessarily depends on legal conclusions, it is reviewed in light of all the evidence under a "somewhat narrowed," modified abuse of discretion standard giving the appellate court "more latitude to review the trial court's conclusion in this context than in other situations." Haley v. Blue Ridge Transfer Co., 802 F.2d 1532, 1537-39 & nn. 11-12 (4th Cir.1986); Owen v. Duckworth, 727 F.2d 643, 646 (7th Cir.1984).

There is no issue concerning the district court's findings of historical fact. Rhodes and Alexander offered conflicting testimony regarding the details of the factual circumstances of the alleged bribe attempt and their respective culpability in the attempt. The court stated that it did not find Alexander or Rhodes to be credible witnesses. Neither Cheek nor the government appeals from the district court's findings of historical fact regarding the circumstances of the bribe...