U.S. v. Wilkerson
| Decision Date | 10 July 2009 |
| Docket Number | Cr. No. 00-0157-15 (TFH). |
| Citation | 656 F.Supp.2d 1 |
| Parties | UNITED STATES of America v. Larry WILKERSON, Defendant. |
| Court | U.S. District Court — District of Columbia |
Pending before the Court is defendant Larry Wilkerson's Motion for a New Trial Based on Violation of Defendant's Sixth Amendment Right to a Unanimous Jury Based on the Court's Improper Removal of Juror Number 0552 During Deliberations ("Improper Removal Motion") (Docket No. 2195). Finding that the removal of Juror Number 0552 from the deliberating jury was not improper, the Court will deny the motion.
After a two-month long trial, on September 22, 2004, a jury found Wilkerson guilty on nine counts related to narcotics conspiracy, RICO conspiracy, and the murders of Marvin Goodman, Christopher Burton, and Scott Downing.1 Wilkerson filed numerous post-trial motions attacking the validity of the proceeding, of which the Improper Removal Motion is one. Because of these pending post-trial motions, Wilkerson has yet to be sentenced.
The Improper Removal Motion concerns the Court's dismissal of Juror 05522 from the jury in the midst of deliberations. The jury commenced deliberations on the afternoon of Wednesday, September 8, 2004, and continued to deliberate on the ensuing Thursday, Monday, and Tuesday. On the morning of Wednesday, September 15, 2004, the Court received a handwritten note from Juror 0552 bearing the time of 9:30 a.m., which read as follows:
I, juror number 0552, request that I be replaced with an alternate in the deliberation of Larry Wilkerson. I strongly disagree with the laws and instructions that govern this deliberation, and I cannot follow them. Because I feel so strongly about this, it may affect my decisions in this matter. In other words a possible bias decision [sic]. In addition, I am experiencing emotional and mental distress. For this alone, I felt it was enough for me to ask for a replacement. I would not be asking for this request, if I didn't feel that this was a serious issue. Please take this request under strong consideration. I apologize, for the delay in this request, but if it is at all possible please remove me from this deliberation. Sincerely, Juror 0552
Improper Removal Motion, Attach. B (copy of the note).
The Court consulted with counsel about how to proceed and reviewed the leading case law, in particular United States v. Brown, 823 F.2d 591 (D.C.Cir.1987) and United States v. Thomas, 116 F.3d 606 (2d Cir.1997) ( following Brown). See Trial Tr. at 2-25, Sept. 15, 2004. Drawing on these precedents, the Court recognized that this situation required it to strike a delicate balance between two duties: (1) not to intrude upon the process of jury deliberations, and (2) to discharge a juror who engages in misconduct such as not following the law. See Thomas, 116 F.3d at 618("Once a jury retires to the deliberation room, the presiding judge's duty to dismiss jurors for misconduct comes into conflict with a duty that is equally, if not more, important— safeguarding the secrecy of jury deliberations.") Over the government's objection, the Court conducted a further voir dire of Juror 0552 to confirm her statements in the note. Over defense counsel's opposition, the Court did not ask the juror directly whether her discomfort reflected doubts about the sufficiency of the government's evidence. The colloquy between the Court and Juror 0552 is reproduced in full below:
Trial Tr. at 26-28. After further discussion with counsel, id. at 28-33, the Court decided to dismiss Juror 0552 pursuant to FED.R.CRIM.P. 23(b)(3) based on her representation, both in the note and during the voir dire, that she strongly disagreed with the laws governing the deliberation and could not follow them. Id. at 36-38.
Wilkerson claims that the Court erred in four ways. Improper Removal Mot. at 2. First, he argues procedurally that Brown required the Court to ask Juror 0552 if she harbored concerns about the evidence. Second, Wilkerson asserts that the Court applied an incorrect legal standard to dismiss Juror 0552, as it found that there was no "substantial possibility" that the juror harbored evidentiary concerns even though Brown commands an "any possibility" standard. Third, Wilkerson contends on the merits that the record was ambiguous as to whether Juror 0552 had concerns about the evidence, so the Court was wrong to remove her regardless of her perceived intent to disregard the law. Fourth, Wilkerson submits that, leaving aside concerns about the evidence and assuming arguendo that Juror 0552 intended to disregard the law, the prospect of jury nullification is not a proper basis to dismiss a juror under Rule 23(b).
Based on these alleged errors, Wilkerson argues that the Court wrongly dismissed Juror 0552 in violation of his right to a unanimous verdict. See United States v. Essex, 734 F.2d 832, 840-41 (D.C.Cir. 1984) (). As his remedy, Wilkerson seeks a new trial. In the alternative, he requests that the Court summon Juror 0552 for another voir dire to explore more conclusively whether evidentiary concerns motivated her request to be discharged.
FED.R.CRIM.P. 23(b)(3) provides that "[a]fter the jury has retired to deliberate, the court may permit a jury of 11 persons to return a verdict, even without a stipulation by the parties, if the court finds good cause to excuse a juror."3 The D.C. Circuit, interpreting this Rule's "good cause" requirement,4 has held that "a court may not dismiss a juror during deliberations if the request for discharge stems from doubts the juror harbors about the sufficiency of the government's evidence." Brown, 823 F.2d at 596. "If a court could discharge a juror on the basis of such a request, then the right to a unanimous verdict would be illusory." Id.; see also Thomas, 116 F.3d at 621 ().
While this rule provides a bright line conceptually, its application in practice is not always clear-cut:
[A court] must, however, confront the problem that the reasons underlying a request for a dismissal will often be unclear [A] court may not delve deeply into a juror's motivations because it may not intrude on the secrecy of the jury's deliberations. Thus, unless the initial request for dismissal is transparent, the court will likely prove unable to establish conclusively the reasons underlying it. Given these circumstances, . . . if the record evidence discloses any possibility that the request to discharge stems from the juror's view of the sufficiency of the government's evidence, the court must deny the request.
In Brown, the D.C. Circuit held that the district court erred in dismissing a juror because the record indicated a "substantial possibility" that the juror's discharge request stemmed from a belief that the evidence offered at trial was inadequate to support a conviction. Id. at 596. The juror in that case sent out a note saying that he was "not able to discharge [his] duties as a member of this jury." Id. at 594. Upon questioning by the trial judge, however, the juror stated...
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United States v. Wilkerson
...court did not err.A.On September 8, 2004, after two months of trial, the jury began deliberations. United States v. Wilkerson , 656 F. Supp. 2d 1, 2 (D.D.C. 2009) (" Wilkerson I "). Three-and-a-half days into deliberations, the district judge received the following handwritten note from a j......
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U.S. v. Wilkerson
...out a note stating that she strongly disagreed with the law as instructed and could not follow it. See supra n. 2; United States v. Wilkerson, 656 F.Supp.2d 1, 2 (D.D.C.2009). In that note and under subsequent questioning by the Court, Juror 0552 also expressed that she was experiencing "em......