U.S. v. Hodges, 99-40009.
| Citation | 189 F.Supp.2d 855 |
| Decision Date | 20 February 2002 |
| Docket Number | No. 99-40009.,99-40009. |
| Parties | UNITED STATES of America, Plaintiff, v. Carlan D. HODGES, Defendant. |
| Court | U.S. District Court — Southern District of Illinois |
Patty Merkamp Stemler, U.S. Department of Justice, Criminal Div., Appellate Section, Washington, DC, for Plaintiff.
Renee E. Schooley, Asst. Fed. Public Defender, East St. Louis, IL, for Defendant.
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.
While Carlan D. Hodges' appeal of his convictions 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 Hodges' trial. Based upon this newly discovered evidence, Hodges 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 Hodges' motion and granted his request for a new trial. United States v. Hodges, 110 F.Supp.2d 768 (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 Hodges' 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 Hodges guilty of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1) and guilty of receiving stolen firearms in violation of 18 U.S.C. § 922(j) and § 924(a)(2). In addition, the parties asked the Court to re-evaluate and reconsider the affidavits of court personnel which had been previously submitted to the Court.
Hodges 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. Hodges 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. Specifically, Hodges points to the testimony of one juror who recalled that Judge Riley entered the jury room during the jury's deliberations and the testimony of two jurors who testified that Judge Riley was present in the courtroom while the jury viewed the evidence (i.e., the guns).
Furthermore, Hodges asserts that the Court should give him the benefit of the doubt and grant him a new trial based upon the court personnel's affidavits. Specifically, Hodges relies upon David Agay's (i.e., Judge Riley's law clerk) affidavit in which he stated that Judge Riley entered the jury room in three of the four cases to which he was assigned during his tenure with Judge Riley. Hodges argues that, when the Court considers the jurors' testimony along with the court personnel's affidavits and Judge Riley's habit of communicating with jurors, the Court should grant his request for a new trial in order to uphold the integrity of the judicial system and to avoid the appearance of impropriety.
The Government argues that Hodges did not meet his burden of establishing that an ex parte communication occurred between the jury and Judge Riley. As for Judge Riley's presence in the courtroom while the jury viewed the guns, the Government notes that no juror testified that Judge Riley said or did anything while they viewed the guns. In any event, the Government contends that Hodges has waived any objection which he might have had to Judge Riley's presence in the courtroom while the jurors viewed the guns.
Moreover, as for the juror who testified that Judge Riley entered the jury room during the deliberations, the Government asserts that he was the only juror who recalled this incident. More importantly, the Government notes that the juror testified that Judge Riley did not say anything while he was in the jury room. Finally, the Government claims that the court personnel's affidavits support the juror's testimony-no improper communication occurred between Judge Riley and any juror in this case. Accordingly, the Government asks the Court to deny Defendant's motion for a new trial.
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, 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)( 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)( 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)( 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...
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