U.S. v. Mejia
| Decision Date | 23 April 2002 |
| Docket Number | No. 01 CR. 150(VM).,01 CR. 150(VM). |
| Parties | UNITED STATES of America v. Bienvenido MEJIA, a/k/a "Nido" Defendant. |
| Court | U.S. District Court — Southern District of New York |
Jeffrey A. Udell, Assist. U.S. Atty., Mary Jo White, U.S. Atty., Criminal Div., New York City, for U.S.
Roy R. Kulcsar, New York City, Peter Batalla, Bronx, NY, for defendant.
DECISION AND ORDER
Defendant Bienvenido Mejia ("Mejia") was tried and convicted pursuant to 21 U.S.C. § 846 of conspiracy to violate the narcotics laws of the United States. During its deliberations on April 4, 2002, the jury submitted to the Court a note indicating that it could not reach agreement on a verdict. Because the note violated the Court's specific procedural instructions concerning jury communications to the Court, in that it reported the extent of the split among jurors, the Court returned it to the jury, along with a copy of the specific instructions with which it failed to comply, and did not inform the parties at that time. Instead of resubmitting the note in a form complying with its procedural instructions, the jury continued deliberating and later that same day returned a verdict of guilty. Mejia moved for a mistrial. For the reasons set forth below, the Court denies Mejia's motion.
After a five day trial, the jury in this matter, along with its charge on the substantive law of the offense, was given instructions as to the manner and procedures governing its communications with the Court. In particular, the Court instructed the jury that: (Tr. at 859-60 (emphasis in original).) This instruction had been reviewed and approved by counsel. Twelve full copies of the jury charge were provided to the jurors for their reference during deliberations. The language referred to is contained on page 37 of the copy provided to each juror.
One full day into deliberations, the jury returned a note which read: "We the jury can't all agree on a verdict!".1 (Court Ex. 6.) Following disclosure to and consultations with the parties, the Court instructed the jury in open court to return and continue deliberating. (Tr. at 902.) The next day, April 4, 2002, in the presence of counsel and the defendant, the Court provided the parties with a draft Allen charge that it proposed issuing should the jury report a third time that it could not reach agreement. (Tr. at 907-08.) Neither party objected to the draft Allen charge, or to the Court's contemplation of its delivery in the event of another jury message indicating an impasse.
Later that day, the jury submitted a note requesting review of certain testimony and exhibits on the record. The material was provided to it, following the Court's discussions with counsel, at approximately 1:45 p.m. Subsequently, at 2:10 p.m., the jury sent a note to the Court that again informed of a continuing stand-still. But this note contravened the Court's specific instructions set forth above as to the proper form and impressible content of jury communications. (Court Ex. 14.) The note2 stated that: "We the Jury can't come to an agreement—we have exhausted all possibilities + have had the same vote for the past 2½ days 11—1" and was signed by the fore-person. (Id. (emphasis in original).) Given the noncompliance with the relevant procedural charge, the Court, through the Marshal, returned the note, accompanied by a copy of page 37 of the jury charge. (Court Ex. 15.) Marking the page with a highlighter, the Court pointed to the express instruction proscribing disclosure of the numerical split or nature of deliberations among jurors. The particular lines highlighted read: "If you are divided, do not report how the vote stands, and if you have reached a verdict, do not report what it is until you are asked in open court." (Court Ex. 15.) Nothing else from the Court was communicated to the jury in any other manner or form.
The Court did not inform the parties of the jury's 2:10 p.m. note at that time, anticipating that the jury, reminded of the applicable procedure, momentarily would resubmit the note containing the same message but without disclosing the vote split. The Court further contemplated that it would then convene the jury and the parties and, if still appropriate, proceed with an Allen charge as earlier agreed. Instead, approximately 50 minutes later, at 3:00 p.m., rather than revising and returning its impasse note, the jury submitted another note to the Court that read: "We the jury have reached a verdict." (Court Ex. 12 (emphasis in original).) The Court then assembled the parties in the courtroom.
The Court first apprised the parties of the jury's 3:00 p.m. note informing that it had reached a verdict. At the same time, the Court disclosed the existence of and circumstances relating to the 2:10 p.m. note as described above, without indicating the vote split or its duration. Specifically, the Court informed the parties of its return of the note and the reason for this action, as well as of the Court's transmittal to the jury of the highlighted copy of the specific instructions set forth on page 37. The Court advised that in so returning the note, it had expected that the jury would revise the note to bring it in compliance with the Court's instructions and resubmit it, and that on that expectation the Court delayed informing the parties of the circumstances. (Tr. at 914-16.)
Mejia then moved for a mistrial on the ground that he should have been allowed an opportunity to comment upon the Court's procedure and to request that an Allen charge be given at that point. (Tr. at 915.). The Government opposed the motion. The Court denied the request and indicated that it would issue a ruling expressing its reasoning. The jury was then recalled to the courtroom, at which point it rendered a verdict of guilty. The Court polled the jury and found the verdict unanimous. The jury was discharged without objection. (Tr. at 918-19.)
Before rendering its formal decision, the Court sua sponte scheduled a post-trial factual hearing to afford the parties further opportunity to examine the events, to question the Marshal and the Court's Deputy Clerk concerning the circumstances surrounding the return of the jury's impasse note and confirm the extent of any communications with the jury that occurred in this connection. At that proceeding, held on the record on April 15, 2002 with the defendant and counsel for the parties present, both the Government and Mejia stated that they saw no need for any additional inquiry regarding the communications in question and that they rested on the record as described by the Court. (Transcript of Post-Trial Hearing, April 15, 2002, at 5-6.) The Court thus finds the facts pertaining to its ruling on Mejia's mistrial motion to be as set forth above.
A. DEFENDANT'S RIGHT TO BE PRESENT FOR, OR APPRISED OF, IMPROPERLY SUBMITTED JURY NOTE
A defendant in a criminal case has a fundamental right, protected by the Fifth and Sixth Amendments of the United States Constitution, to be present at all formal proceedings related to the charges brought against him and where the jury is present. See Shields v. United States, 273 U.S. 583, 588-89, 47 S.Ct. 478, 71 L.Ed. 787 (1927) (); Snyder v. Massachusetts, 291 U.S. 97, 114, 54 S.Ct. 330, 78 L.Ed. 674 (1934); Illinois v. Allen, 397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970). This right was codified in Federal Rule of Criminal Procedure 43(a), which provides in pertinent part that: "The defendant shall be present at the arraignment, at the time of the plea, at every stage of the trial including the impaneling of the jury and return of the verdict, and at the imposition of sentence, except as otherwise provided by these rules."
Neither the Constitutional right nor the rule of procedure, however, establishes an absolute standard demanding the defendant's presence in every circumstance. See, e.g., Fed.R.Crim.P. 43(c)(3) (). The issue now before this Court concerns the limits of this right.
To determine whether a defendant's presence at a criminal proceeding is required by the Sixth Amendment Confrontation Clause and the Due Process Clauses of the Fifth and Fourteenth Amendments, a court must consider whether "a fair and just hearing would be thwarted by [the defendant's] absence." Hernandez v. Edwards, 2001 WL 575594, *5 (citations omitted). The defendant's right of presence is clearly established in connection with the court's issuance to the jury of any instructions, supplemental charges or responses to inquiries seeking clarification or guidance regarding the accusations or law pertinent to the jury's charge. Under proper practice pursuant to Rule 43(a), any form of such communication should be conducted on the record in open court in the presence of the defendant and counsel at a time when counsel have a full opportunity to object and make a proper record. See Rogers v. United States, 422 U.S. 35, 39-40, 95 S.Ct. 2091, 45 L.Ed.2d 1 (1975); Shields, 273 U.S. at 588-89, 47 S.Ct. 478; United States v. Schor, 418 F.2d 26, 27-30 (2d Cir.1969); United States v. Ronder, 639 F.2d 931, 934 (2d Cir.1981); Krische v. Smith, 662 F.2d 177, 179 (2d Cir.1981).
Failure to adhere to the correct procedure may be reversible error where the court communicates informally with the jury in a manner that...
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