United States v. Collins

• Decision Date: 09 January 2012
• Docket Number: Docket No. 10–1048–cr.
• Citation: 665 F.3d 454
• Parties: UNITED STATES of America, Appellee, v. Joseph P. COLLINS, Defendant–Appellant.
• Court: U.S. Court of Appeals — Second Circuit

665 F.3d 454

UNITED STATES of America, Appellee,

v.Joseph P. COLLINS, Defendant–Appellant.

Docket No. 10–1048–cr.

United States Court of Appeals, Second Circuit.

Argued: Sept. 9, 2011.Decided: Jan. 9, 2012.

Christopher L. Garcia, Assistant United States Attorney (Justin S. Weddle, Assistant United States Attorney, on the brief), for Preet Bharara, United States Attorney for the Southern District of New York, New York, NY, for Appellee.

William J. Schwartz (Jonathan P. Bach, Jason M. Koral, Reed A. Smith, Kathleen E. Cassidy, on the brief), Cooley LLP, New York, NY, for Defendant–Appellant.

Barry A. Bohrer, Alexandra A.E. Shapiro, Marc E. Isserles, for Amicus Curiae New York Council of Defense Lawyers.Jack C. Auspitz, LaShann M. DeArcy, Amy J. Phillips, Martin Sander Kaufman, for Amicus Curiae Atlantic Legal Foundation.

Before: CALABRESI, CHIN, and CARNEY, Circuit Judges.

CHIN, Circuit Judge:

In this case, defendant-appellant Joseph P. Collins proceeded to trial on a fourteen-count indictment charging him with, inter alia, conspiracy, securities fraud, wire fraud, and bank fraud. After twenty-two days of testimony, the jury began deliberations. On the fifth day of deliberations, difficulties arose as two jurors were involved in a verbal altercation. The next day, the foreman sent a note to the court asserting that one juror had attempted to barter his vote and was refusing to deliberate. The court did not share the contents of the note with the parties or seek counsel's input before it conducted an ex parte interview with the accused juror. During the interview, the court gave the juror what amounted to a supplemental instruction, emphasizing the importance of resolving the case. This sequence of events deprived Collins of his right to be present at every stage of the trial. Because the deprivation was not harmless, we vacate and remand for a new trial.

BACKGROUND

By a superseding indictment dated December 4, 2008, the government charged Collins with conspiracy, securities fraud, wire fraud, bank fraud, and making false filings with the SEC.

Trial commenced May 13, 2009. Jury deliberations began July 1. On July 8, the fifth day of deliberations, the jury reported difficulty reaching a verdict, requesting guidance from the court. The court responded by note, stating, “You, not the judge, are the sole judges of the facts.” (Ct.Ex.41).

Later that afternoon, a Court Security Officer (the “CSO”) heard a disruption in the jury room. When the CSO entered, one juror told him that another juror had physically threatened him. The court brought the jury into the courtroom and instructed them “to show respect for one another” and to “[t]ry not to get heated.” (Tr. 5351). The court dismissed the jury for the day while it decided, with counsel, on an instruction that would help the jury deliberate more productively.

The following morning, just before 10AM, the court received two additional notes from the jury. The first note was written by Juror 4, and read:

I am writing to express my concern regarding the conduct of juror number 9.... Although I appreciate your efforts to control the frequent insults I've endured, the threat of bodily harm brings this abuse to a whole new level. Specifically, in a loud and belligerent man[ne]r juror [9] threatened to “cut off your (my) finger.” She made that statement twice. In the same tirade she stated, “I will have my husband take care of you.” These threats were made yesterday afternoon July 8, 2009.

Rest assured I will not allow such threats and intimidation [to] alter my vote when it comes to determ[in]ing a verdict in this case. I am concerned, how[ev]er, [that] hearing these threats may affect other jurors. Regardless, I believe this is not the proper way to deliberate and the Court should be made aware of this conduct.

Please forward this note to the Court as soon as possible. Hopefully we can get some guidance on how to proceed and complete our assigned task.

(Ct.Ex.45).

The second note was written by the foreman to the court:

In regards to the earlier note I forwarded to your attention from Juror 4 ..., it is my personal opinion that the altercation yesterday could be traced to both parties involved. There ha[ve] also been conversations on numerous

occassions [sic] regarding respectfulness on the part of Juror 4....

I do not intend this note to reflect the opinion of the jurors on a whole, but thought it important to voice my personal opinion on yesterday's altercation.

(Ct.Ex.46).

Both of these notes were disclosed to the parties and counsel and read into the record.

At 10:15AM the jury received a note that the court had drafted with counsel the night before.¹

At 2:15PM that afternoon, the court received two additional notes from the jury. The first requested trial exhibits and testimony. This first note was read into the record. The second note stated:

This is sent as a private note from Juror # 1.

There's been some concern amongst some of the juror's [sic] regarding odd behavior on the part of Juror # 4.... During deliberations on 7/2, [Juror 4] changed his vote on a charge, bringing a unanimous decision. However, [Juror 4] then attempted to make his vote contingent upon the room agreeing blindly on a charge to be voted on later. He wanted to barter.

In my opinion, this is at the heart of yesterday's altercation between juror's [sic] 4 and [9].

To compound this issue, juror 4 has made it clear he would prefer to be a hung jury than do further evidence research.

As foreman, I am struggling to find ways of dealing with these issues, and will continue guiding the jury towards a conclusion using your guidance from court exhibit # 44.

(Ct.Ex.48) (the “Note”).

The district court did not read the Note into the record, or otherwise inform counsel of its contents. Instead, it simply stated that it had received the Note and would be speaking privately with Juror 4. The court did not explain why it would be holding an ex parte conference with Juror 4. Defense counsel stated that he was “not consenting” to the court's chosen course of action. (Tr. 5409).

The court proceeded to hold an ex parte conference with Juror 4.² During the conference, the court asked Juror 4 about the accusations leveled against him in the Note. Before giving Juror 4 an opportunity to respond, the court told him that his alleged behavior was “not conducive to getting this matter resolved, and it is important to both parties that the matter be resolved. As you know, we have taken eight weeks or more, two months to get to this point.” (Tr. 5411).

Juror 4 denied that he was refusing to deliberate, stating that he was deliberating “more than many others.” (Tr. 5413). He also denied that he had engaged in vote bartering. He acknowledged that he had used the phrase “what if we” and “deal” in the same sentence, but maintained that the other jurors took his words out of context and he did not intend to barter. (Tr. 5415–16).

Several times in the course of the ex parte conference with the court, Juror 4 expressed his frustration at having to endure insults from other jurors during deliberations. “I don't think I signed up to endure being called a jerk, having my skin tone made fun of,” he said. (Tr. 5413). The foreman had asked the other jurors to stop the insults, Juror 4 reported, “[b]ut the next day, instead of insults, it moved to physical threats.” (Tr. 5414).

The court asked Juror 4 to “keep [his] respect for [the foreman], because ... he's trying to do a good job.” (Tr. 5415). Juror 4 agreed, but expressed concern that “a deliberate attempt is being made to remove me because I don't vote with him.” ( Id.). The court responded, “No, you don't have to vote with anybody.” ( Id.).

Later in the conference, the court again encouraged Juror 4 to work with the foreman, stating, “I don't think you should proceed on the assumption that he isn't trying to do a good job. He is trying to do a good job.” (Tr. 5416). But Juror 4 continued to express frustration:

[M]any people don't agree with me. Because of that, I have been insulted and threatened.

...

I don't mind the insults. I am a little concerned about when somebody is going to have their husband take care of me.

...

This is not the kind of thing that I should have to consider when I'm trying to decide on a vote on a verdict.

Like I said to him, it is not going to change my vote. If he thinks that's the way to do it, no, wrong.

(Tr. 5417).

The court told Juror 4 to “[k]eep an open mind” and then sent him back to the jury room. (Tr. 5418).

After the ex parte conference, the court read the Note and the transcript of the conference to counsel on the record. Defense counsel argued that the deliberative process had been tainted and moved for a mistrial. The court denied the motion and decided to let deliberations proceed without further communication to the jury.

The following day, July 10, defense counsel requested that the court also interview Juror 9 to ameliorate any prejudice that may have resulted from singling out Juror 4. The court denied this request.

That afternoon, at 3:45PM, the jury sent the following note:

Your Honor—

While deliberations over the past three days have been productive, and we feel more comfortable that we each understand our fellow juror's [sic] reasoning for their decisions on the charges presented, we are still unable to come to a unanimous decision on all counts.

There is a firm feeling among the majority of the jurors that further deliberation will not result in a unanimous decision.

(Ct.Ex.62).

The court, after consulting with counsel, asked the jury to list the counts on which it had reached a verdict. The jury replied that it had reached a verdict on Counts One (conspiracy), Two (securities fraud), Three (securities fraud), Six (wire fraud), and Nine (wire fraud). The court, with consent of counsel, agreed to take a partial verdict. The court brought in the jury, and the foreman reported a verdict of guilty on each of these...