U.S. v. Walters

• Citation: 89 F.Supp.2d 1206
• Decision Date: 12 January 2000
• Docket Number: No. 99-40012-01-SAC.,No. 99-40012-02-SAC.,99-40012-01-SAC.,99-40012-02-SAC.
• Parties: UNITED STATES of America, Plaintiff, v. Jay Dee WALTERS, Cheryl Walters, Defendant.
• Court: U.S. District Court — District of Kansas

Page 1206

89 F.Supp.2d 1206

UNITED STATES of America, Plaintiff, v. Jay Dee WALTERS, Cheryl Walters, Defendant.

No. 99-40012-01-SAC.

No. 99-40012-02-SAC.

United States District Court, D. Kansas.

January 12, 2000.

Anthony W. Mattivi, Office of U.S. Atty., Topeka, KS, for U.S.

Eric Kjorlie, Topeka, KS, pro se.

Dwight L. Miller, Topeka, KS, pro se.

Cheryl Walters, Valley Falls, KS, pro se.

Jay Dee Walters, Valley Falls, KS, pro se.

MEMORANDUM AND ORDER

CROW, Senior District Judge.

On May 27, 1999, the grand jury returned a five count superseding indictment charging the defendants, Jay Dee Walters and Cheryl Walters, with one count of conspiracy to manufacture and distribute in excess of one kilogram of a mixture or substance containing a detectable amount of methamphetamine (Count 1) and one count of harboring a federal fugitive, Billy J. Hill (Count 2). Count 3 of the indictment charges Cheryl Walters with money laundering. Count 4 charges Jay Dee Walters with money laundering. Prior to trial the court granted the government's motion to dismiss both money laundering counts. In Count 5, the United States seeks forfeiture of certain property allegedly used to commit and to facilitate the conspiracy to manufacture and distribute methamphetamine charged in Count 1. The Walters are husband and wife.

On August 4, 1999, this court entered a memorandum and order granting in part and denying in part the pretrial motions filed by the defendants. See United States v. Walters, 188 F.R.D. 591 (D.Kan.1999). In that decision, the court granted the defendants' request to bifurcate the guilt phase from the criminal forfeiture count. Id. at 598.

Trial in this matter commenced on December 1, 1999. During its case-in-chief, the government introduced redacted¹ copies of the tape-recorded post-indictment statements of each codefendant. At the time of the post-indictment interviews, both defendants were represented by Eric Kjorlie.² During separate interviews, each defendant essentially admitted to harboring Billy Hill from law enforcement officers on their farm and to obtaining precursor chemicals or other items used to manufacture methamphetamine, but stated that they did so only out of their imminent fear of reprisal in the form of physical torture and death from Hill or one of his cohorts. Each defendant claimed to have been so afraid for their own lives and the lives of their children that they wrote letters to a friend and to a family member in which they stated that they believed they were in severe danger from Billy Hill but could not contact the police out of fear of reprisal.

From the evidence presented, it is apparently beyond doubt that Billy Hill is a man capable of violence against other persons and at least one dog. Hill is currently charged by the State of Kansas with killing Calvin Neu, a person he allegedly shot multiple times. Hill allegedly killed Neu for "snitching" on Hill. Until his apprehension, Hill utilized a somewhat sophisticated manufacturing system to make methamphetamine for the purpose of illicit drug trafficking. After leaving the Walters' farm, Hill successfully eluded law enforcement officers for about a month. Hill was ultimately apprehended by law enforcement officers only after a two-day standoff.

Prior to trial, the government and Jay Dee Walters entered an agreement in which the parties stipulated that Jay Dee Walters would take a polygraph examination and that the results of that examination, if conclusive, could be received into evidence at trial. The defendant agreed to the examination, hoping that by passing the examination the government would agree to substantially reduce the charges against him. Questions asked during that examination concerned only the date on which the "fear of being killed by Billy Hill" letters had been written. Unfortunately for Jay Dee Walters, he did not pass the examination. After taking the polygraph examination, Jay Dee Walters admitted that the "fear of being killed by Billy Hill" letter was written after Billy Hill left the Walters' farm. However, Jay Dee Walters contended that Hill still threatened him at the time he wrote the letters.

Although the government and Jay Dee Walters stipulated to the admissibility of the evidence of the polygraph examination, prior to permitting the admission of the examination or its results, the court exercised its gate-keeping function under Fed. R.Evid. 702 and Fed.R.Evid. 703, see In re TMI Litigation, 193 F.3d 613 (3rd Cir. 1999) ("Although the `primary locus' of the District Court's gatekeeping role is Rule 702, a court `should also be mindful of other applicable rules,' Daubert, at 590, 113 S.Ct. 2786; 595, 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469, when conducting a Daubert analysis."), conducting a Daubert³ hearing outside the presence of the jury to determine the admissibility of the polygraph examination. See Miller v. Heaven, 922 F.Supp. 495, 500-04 (D.Kan. 1996) (excluding evidence of polygraph examinations taken by plaintiff and defendant in a civil case).⁴ In this case, the polygraph examiner, George Johnson of the Kansas Bureau of Investigation, was able to articulate with sufficient precision the reasons supporting his opinion that the polygraph examination administered to Jay Dee Walters was reliable. The polygraph examiner was also able to explain in substantial detail the manner in which the polygraph examination worked, the manner in which this examination had been verified by Jay Dee Walters' post-examination interview, and the peer scrutiny to which that examination had been subjected and deemed reliable. Johnson also explained that polygraph examinations similar to the one he performed on Jay Dee Walters have empirically been proven reliable.

After being satisfied that evidence pertaining to the polygraph was admissible under Rules 702 and 703, the court then engaged in an analysis under Fed.R.Evid. 403 and its inherent power to insure that the defendant receives a fair trial. Ultimately, and particularly in light of the parties' stipulation, the court permitted the government to introduce evidence regarding the polygraph examinations, including the results of that examination.⁵ See United States v. Gilliard, 133 F.3d 809, 812 (11th Cir.1998) ("Prior to this Court's en banc decision in United States v. Piccinonna, 885 F.2d 1529 (11th Cir.1989) (en banc), polygraph evidence was per se inadmissible in this Circuit." Piccinonna, 885 F.2d at 1531-32. In Piccinonna, however, this Court concluded that the per se rule was unwarranted in light of the advances that had been made in the field of polygraphy and the lack of evidence that juries are unduly swayed by polygraph evidence. Id. at 1535. Specifically, we held that a district court can admit polygraph evidence in two circumstances: (1) when the parties stipulate in advance as to the circumstances of the test and as to the scope of its admissibility; and (2) to impeach or corroborate the testimony of a witness at trial. Id. at 1536. We were careful to note, however, that neither modification to the per se exclusionary rule "preempt[s] or limit[s] in any way the trial court's discretion to exclude polygraph expert testimony on other grounds under the Federal Rules of Evidence." Id.); United States v. Ponce-Rodriguez, 963 F.2d 381, 1992 WL 102616 (9th Cir.1992) ("Polygraph evidence is inadmissible to establish the truth or falsity of a party's statements `unless the parties have stipulated to the admissibility of the polygraph results before the examination is administered, and the court is satisfied that the examination has been administered in a manner which supports the reliability of the polygraph results.'" Brown v. Darcy, 783 F.2d 1389, 1391 (9th Cir.1986).); see also United States v. Gordon, 688 F.2d 42, 44 (8th Cir.1982) (polygraph evidence admissible if parties stipulate admissibility in advance of test).

Although both defendants presented evidence in their own defense, neither defendant testified at trial. The defendants' motions for judgment of acquittal at the close of the government's case and at the conclusion of evidence were denied.

On December 14, 1999, the jury began its deliberations. On December 15, 1999, the jury sent a note to the court indicating that they were deadlocked. After conferring with counsel, and over the defendants' objection, the court, in the exercise of its discretion, read an Allen⁶ instruction to the jury. The jury returned to deliberate. The jury then sent a note indicating that they unanimously agreed that Jay Dee Walters was guilty of Count 1 (charging conspiracy to manufacture or distribute methamphetamine). However, the same note indicated that the jury was unable to reach a unanimous verdict on the other count against Jay Dee Walters (Count 2 charging harboring) and on both counts against Cheryl Walters. After consulting with the parties, the court read a partial verdict instruction to the jury.⁷ The jury then returned to deliberate. The jury then informed the court that they had reached a verdict on Count 1 against Jay Dee Walters, but were hopelessly deadlocked on Count 2 against Jay Dee Walters and both counts against Cheryl Walters.

In open court, the court received the jury's verdict. The court asked the foreperson whether the jury was in fact hopelessly deadlocked and whether any further deliberations might prove fruitful. The foreperson, as well as the rest of the jury, indicated that further deliberations would be futile and that they could not reach a unanimous verdict on the undecided counts. Hearing no objection from the parties, the court accepted the jury's verdict on Count 1 finding Jay Dee Walters guilty of conspiring to manufacture methamphetamine and declared a mistrial a manifest necessity on the remaining counts. Trial on the forfeiture count against Jay Dee Walters was set for January 18, 2000.

This case comes before the court upon the following motions filed by Jay...