United States v. Juror No. One

• Decision Date: 21 December 2011
• Docket Number: Criminal Action No. 10–703.
• Citation: 866 F.Supp.2d 442
• Parties: UNITED STATES of America, Plaintiff, v. JUROR NUMBER ONE, Defendant.
• Court: U.S. District Court — Eastern District of Pennsylvania

866 F.Supp.2d 442

UNITED STATES of America, Plaintiff,

v.JUROR NUMBER ONE, Defendant.

Criminal Action No. 10–703.

United States District Court,

E.D. Pennsylvania.

Dec. 21, 2011.

Virgil B. Walker, United States Attorney's Office, Philadelphia, PA, for Plaintiff.

MEMORANDUM

EDUARDO C. ROBRENO, District Judge.

I. INTRODUCTION

The issue before the Court involves juror misconduct by unauthorized use of e-mails during deliberations in a criminal trial. After being dismissed, Juror Number One disobeyed the Court's orders and discussed via e-mail with other jurors her opinion on the Defendant's guilt. Juror Number One's conduct led to the dismissal of another juror on the panel and had the potential to lead to a mistrial. On December 16, 2011, the Court found Juror Number One guilty beyond a reasonable doubt of criminal contempt for juror misconduct and sentenced her to a fine of $1,000. This Memorandum is an expanded version of the sentence delivered by the Court from the bench.

II. BACKGROUND¹

On June 2, 2011, Juror Number One was selected for jury service in the above captioned criminal trial, as a member of a twelve-person jury with two alternates. When the jury, in the above captioned case, was empaneled, the Court provided general instructions, including:

Now, a few important words about your conduct as jurors in the case. First, I instruct you that during the trial you are not to discuss the case with anyone or permit anyone to discuss the case with you. Until you retire to the jury room at the end of the case to deliberate, you simply are not to talk about the case. ... Of [sic] anyone tries to talk to you about the case, bring it to my attention immediately.... I instruct you that until the trial is concluded an [sic] you have heard all the evidence and retired to the jury room, you are not to discuss the case with anyone. There are good reasons for this ban in discussion .... I know many of you use cell phones, ... to access the internet and to communicate with others. You must also not talk to anyone about the case or [use] these tools to communicate electronically with anyone about the case ... or use these devices to communicate electronically by messages, ... including e-mails.... This is extremely important, particularly in this era of electronic communication, it is extremely important that you follow this direction not to communicate in that manner ....

Trial Tr. 5:23–7:18, June 2, 2011.

Each time the jury recessed the Court instructed them, “[d]o not discuss the matter among yourselves or with anyone.” See, e.g., Trial Tr. 60:17–18, June 3, 2011.

Upon her request, on the second to last day of trial, for reasons associated with her employment, and with no objections of the parties, the Court dismissed Juror Number One and replaced her with the first alternate on June 7, 2011. Trial Tr. 269:21–270:7, June 7, 2011. At the time she was dismissed, and in open court, the Court instructed her individually:

The only thing I want to instruct, as you know, the case has not yet been completed, so please do not discuss the case until it is completed. [The Deputy Clerk] will give you a call and let you know how things turn out and at that point you will be free to discuss the case and your experience, if you want to. If you don't want to, you don't have to discuss it with anybody. It would be entirely up to you, but don't do that until the matter is complete.

Id. at 270:7–16.

On June 7, 2011, the night she was dismissed, Juror Number One sent an e-mail to Juror Number Eight and Juror Number Nine, jurors that were still on the panel, stating:

Dear [Juror Number Eight] and [Juror Number Nine]: It was great meeting you and working with you these past few days. If I was so fortunate as to have finished the jury assignment, I would have found [Defendant] guilty on all 4 counts based on the facts as I heard them. There was a lot of speculation and innuendo, but that is the case as I saw it. How wonderful it would have been to see how others saw it. Please fill me in as you can.... I feel like I was robbed. After four days, I should have been able to contribute in some way.... I want to wish you and the rest of the jurors very clear thinking and the will to do the right thing. Respectfully, [Juror Number One].

Trial Chambers Conference Tr. 14:18–15:24, June 8, 2011.

Juror Number Eight responded “Thank you for sharing your thoughts. I am of the same mind and have great doubt that the defense can produce anything new today that will change my thinking. It disturbs me greatly to know that people lie .... Anyway I will share your message with the gang.” Id. at 16:2–11. ² The Court conducted voir dire of Juror Number Eight. Upon Defendant's motion and without objection from the Government, the Court dismissed Juror Number Eight from the jury and she was replaced by the second alternate. Trial Tr. 14:18–15:24, June 8, 2011.

The Court also engaged in voir dire of Juror Number Nine. She stated that she had not seen an e-mail from Juror Number One.

Trial Chambers Conference Tr. 24:18–25:1, June 8, 2011. Upon agreement of the parties, Juror Number Nine remained on the jury. During deliberations, the Court ordered her cell phone to be held in the Court's custody until the end of trial on June 9, 2011.³ Trial Tr. 24:6–8, June 9, 2011.

On June 30, 2011, this Court referred the matter of prosecuting Juror Number One for contempt to the United States Attorney for the Eastern District of Pennsylvania for violation of 18 U.S.C. § 401. ECF No. 90. In relevant part, section 401 states: “A court of the United States shall have power to punish by fine or imprisonment, at its discretion, such contempt of its authority, and none other, as ... (3) Disobedience or resistance to its lawful writ, process, order, rule, decree, or command.”

The Government subsequently filed a motion for an Order to Show Cause why Juror Number One should not be held in contempt of this Court for failing to obey its orders of June 2, 2011, and June 7, 2011. Gov't's Mot. for Order to Show Cause, ECF No. 103.

III. WHETHER JUROR NUMBER ONE'S ACTIONS EVINCE JUROR MISCONDUCT

Generally, contempt means disregard for, or disobedience of, the orders or commands of a public authority either legislative or judicial. A federal court has the power to punish contemnors by fine or imprisonment “at its discretion.” 18 U.S.C. § 401; Michaelson v. United States ex rel. Chicago, St. Paul, Minneapolis & Omaha Ry. Co., 266 U.S. 42, 65, 45 S.Ct. 18, 69 L.Ed. 162 (1924) (“That the power to punish for contempts is inherent in all courts, has been many times decided and may be regarded as settled law.”). This authority extends over jurors who disobey a court's orders. See, e.g., United States v. Hand, 863 F.2d 1100, 1101 (3d Cir.1988) (affirming district court's judgment that a juror guilty of impermissible contact with a defendant was required to pay restitution to the government for the cost of prosecuting the trial). Based on Juror Number One's conduct, the Court found that contempt proceedings were appropriate to evaluate whether Juror Number One had violated the Court's orders. The Government's petition and the Court's order to show cause provided Juror Number One with the essential facts underlying its request for contempt sanctions.⁴See Gov't's Mot. for Order to Show Cause, ECF No. 103; Order, Sept. 23, 2011, ECF No. 105.

A. Criminal Versus Civil Contempt

The appropriateness of either of two types of contempt, civil or criminal, depends upon the court's reason for initiating contempt proceedings. Taberer v. Armstrong World Indus., Inc., 954 F.2d 888, 896–97 (3d Cir.1992) (citing Shillitani v. United States, 384 U.S. 364, 371, 86 S.Ct. 1531, 16 L.Ed.2d 622 (1966)). “The dichotomy between criminal and civil contempt lies in the function of the order.” McDonald's Corp. v. Victory Inves., 727 F.2d 82, 86 (3d Cir.1984). Civil contempt sanctions are remedial in nature and are designed to coerce compliance with a court order or to compensate the injured party. See Roe v. Operation Rescue, 919 F.2d 857, 868–69 (3d Cir.1990); Latrobe Steel Co. v. United Steelworkers of Am., 545 F.2d 1336, 1343 (3d Cir.1976). As a result, a civil contemnor can purge the contempt if he performs the affirmative act required by the court's order. By contrast, criminal contempt is a punitive sanction, designed to vindicate the court's authority by punishing past acts of disobedience and therefore cannot be cured by the contemnor. Hicks ex rel. Feiock v. Feiock, 485 U.S. 624, 631–32, 108 S.Ct. 1423, 99 L.Ed.2d 721 (1988).

The two types of contempt also have different burdens of proof and relations to the underlying proceeding. Civil contempt must be proved by “clear and convincing” evidence, while criminal contempt must be proved beyond a reasonable doubt. United States v. Pozsgai, 999 F.2d 719, 735 (3d Cir.1993); see also Hicks, 485 U.S. at 632, 108 S.Ct. 1423;Quinter v. Volkswagen of Am., 676 F.2d 969, 974 (3d Cir.1982). Although civil contempt proceedings are ordinarily a part of the underlying action, criminal contempt proceedings are “separate from the actions which spawned them.” Latrobe Steel Co., 545 F.2d at 1343.

It is a criminal non-summary contempt proceeding that is most appropriate here, as the Court is not compelling compliance but instead is punishing for past behaviors, and the judge neither saw nor heard the contemptuous conduct. SeeFed.R.Crim.P. 42(a) (“[T]he court (other than a magistrate judge) may summarily punish a person who commits criminal contempt in its presence if the judge saw or heard the contemptuous conduct and so certifies.”); Taberer, 954 F.2d at 896–97 (finding that the [Supreme] Court's admonition in Shillitani that courts must first resort to civil contempt sanctions “was intended to apply only when a judge initiates contempt proceedings for the purpose of coercing compliance with a court order, and not when the court's purpose is to punish past violations of its...