United States v. Wilkerson

• Decision Date: 24 July 2020
• Docket Number: No. 10-3037,10-3037
• Parties: UNITED STATES of America, Appellee v. Larry WILKERSON, Appellant
• Court: U.S. Court of Appeals — District of Columbia Circuit

966 F.3d 828

UNITED STATES of America, Appellee

v.Larry WILKERSON, Appellant

No. 10-3037

United States Court of Appeals, District of Columbia Circuit.

Argued February 3, 2020

Decided July 24, 2020

Sebastian K.D. Graber, appointed by the court, argued the cause for appellant. With him on the briefs was Timothy Cone, appointed by the court.

Nicholas P. Coleman, Assistant U.S. Attorney, argued the cause for appellee. With him on the brief were Jessie K. Liu, U.S. Attorney, at the time the brief was submitted, and Elizabeth Trosman, Washington, DC, and Suzanne Grealy Curt, Assistant U.S. Attorneys.

Before: Srinivasan, Chief Judge, Henderson, Circuit Judge, and Randolph, Senior Circuit Judge.

Srinivasan, Chief Judge:

In November 2000, a grand jury indicted appellant Larry Wilkerson and fifteen codefendants on 158 counts related to a violent narcotics-distribution conspiracy that operated in D.C. throughout the 1990s. Appellant was charged with conspiracy to distribute and possess with intent to distribute cocaine, cocaine base, heroin, and marijuana, conspiracy to participate in a racketeer-influenced corrupt organization, four counts of aiding and abetting first-degree murder, four corresponding counts of aiding and abetting a continuing criminal enterprise (CCE) murder, and one count of aiding and abetting first-degree felony murder.

Many of appellant's codefendants pled guilty and some also agreed to cooperate with the government. The rest went to trial in groups. "Group One" consisted of six defendants, including the conspiracy's leaders, Kevin Gray and Rodney Moore. That trial concerning the Gray-Moore conspiracy ended in guilty verdicts and substantial sentences, which this court affirmed in part and vacated in part in United States v. Moore , 651 F.3d 30 (D.C. Cir. 2011), aff'd in part sub nom. Smith v. United States , 568 U.S. 106, 133 S.Ct. 714, 184 L.Ed.2d 570 (2013). "Group Two" consisted of six more defendants and similarly resulted in guilty verdicts and lengthy sentences, which this court affirmed in part and reversed in part in United States v. McGill , 815 F.3d 846, 877 (D.C. Cir. 2016), cert. denied , ––– U.S. ––––, 138 S. Ct. 58, 199 L.Ed.2d 43 (2017).

Appellant was tried separately from his codefendants. On September 22, 2004, a jury found appellant guilty on all counts except one count of aiding and abetting first-degree murder and a corresponding count of aiding and abetting CCE murder. On April 20, 2010, the district court sentenced appellant to life imprisonment.

Appellant now appeals. He raises a number of challenges, including to the district court's dismissal of a juror during deliberations and to the district court's rejection of his motion to dismiss the RICO conspiracy count as time-barred. We reject his challenges and affirm his convictions and sentence.

I.

We first consider the district court's dismissal of a juror who, after deliberations began, expressed her disagreement with the applicable law and her inability to apply it. Appellant contends that the district court's dismissal of the juror violated his Sixth-Amendment right to conviction by a unanimous jury. We conclude that the district 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 juror:

"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. 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."

Id.

The district court decided to ask Juror 0552 about her note. The following colloquy ensued:

COURT: All right. Thank you. In your note I just want to review it with you and ask you a couple of questions about it. And I cannot go into your deliberations or what's going on in the jury room. You understand that? I don't want to hear anything about the deliberations or intrude in any way, but because of your note I need to ask you a couple of questions. ... You said that you request to be replaced because you strongly disagree with the laws and instructions that govern this deliberation and you cannot follow them. In other words, I just need to ask you when you make that statement you mean the instructions and the law that I've given to you in this case we're talking about?

JUROR 0552: Yes.

COURT: And although you took an oath to follow the instructions and the law you feel you cannot do so; is that fair?

JUROR 0552: Yes.

COURT: And you were very fair about it. You wrote I feel so strongly about this it may affect my decisions in this matter. In other words, I may have possible bias decision. And because you're disagreeing with the law, is that what you're saying?

JUROR 0552: Yes.

COURT: You also said you're feeling emotional and mental distress. You felt that alone was enough to ask for replacement. Is that just because of deliberations you mean? I don't want to get --

JUROR 0552: The whole thing.

COURT: The whole case?

JUROR 0552: The whole case.

COURT: Let me ask you about the law. You've read the instructions. You've heard my law [sic] we're talking about. And it's your opinion you cannot follow the law and apply it in this case? Is that what you're saying?

JUROR 0552: I cannot follow it because I do not agree with it.

COURT: You do not agree with the law?

JUROR 0552: No.

COURT: I don't want to get in your deliberations now.

JUROR 0552: Okay.

COURT: You just don't agree with the law?

JUROR 0552: Uh-uh.

COURT: And you came to this belief after seriously considering you say here that you didn't, you know, you wouldn't ask for this but you didn't feel you felt it was such a serious issue?

JUROR 0552: It is serious. We're dealing with somebody's life.

COURT: And under the law that I've given you you disagree with that? Is that what you're saying?

JUROR 0552: Yes.

Id. at 3.

After some further discussion with counsel, the district court decided to dismiss Juror 0552. Id. Based on Juror 0552's note, the above colloquy with her, the brevity of the jury's deliberations relative to the length and complexity of the trial, and the lack of any substantive jury questions, the district court found as a matter of fact that Juror 0552 sought to be dismissed because she disagreed with the applicable law rather than because of any concerns about the evidence. Trial Tr. 36–38, Sept. 15, 2004, 8 J.A. 2551–53.

Instead of proceeding with eleven jurors, the district court replaced Juror 0552 with an alternate. Wilkerson I , 656 F. Supp. 2d at 4 n.3. On September 22, 2004, the reconstituted jury returned guilty verdicts on all counts except one first-degree-murder count and an associated CCE murder count. Appellant moved for a new trial, arguing that the district court had violated his Sixth-Amendment rights by dismissing Juror 0552. The district court denied the motion. Id. at 10–11.

B.

Appellant renews his contention that the dismissal of Juror 0552 violated his Sixth-Amendment rights. Appellant challenges both the district court's finding that Juror 0552's concerns were with the law, not the evidence, and the district court's conclusion that disagreement with the law is a valid ground for dismissal. We disagree with both challenges. We hold that intent to disregard the law constitutes a valid ground for dismissing a juror and that the district court permissibly dismissed Juror 0552 on that basis.

1.

Federal Rule of Criminal Procedure 23(b) authorizes dismissal of a juror during deliberations for "good cause." Fed. R. Crim. P. 23(b)(3). "A variety of issues" can constitute "good cause" to excuse a juror, "including illness, family emergency, or, ... jury misconduct." United States v. McGill , 815 F.3d 846, 866 (D.C. Cir. 2016) (internal quotation marks omitted). "[A]ction by jurors that is contrary to their responsibilities" can constitute good cause. Id. (internal quotation marks omitted).

Because a district court, "based on its unique perspective at the scene, is in a far superior position than [a court of appeals] to appropriately consider allegations of juror misconduct," we review a district court's dismissal of a juror "only for an abuse of discretion." Id. at 867 (quoting United States v. Boone , 458 F.3d 321, 329 (3d Cir. 2006). The Sixth Amendment, however, constrains that discretion. Id. This case presents a question we have previously left open: whether the Sixth Amendment precludes dismissing a juror "for refusing to apply the relevant substantive law." United States v. Brown , 823 F.2d 591, 597 (D.C. Cir. 1987). We now answer that question in the negative: the Sixth Amendment does not afford a defendant the right to a juror who is determined to disregard the law.

We have already decided as much with regard to trial proceedings that come before jury deliberations. In particular, we have held that the Sixth Amendment provides no right to a jury instruction on nullification. United States v. Dougherty , 473 F.2d 1113, 1130–37 (D.C. Cir. 1972). As we later explained, a "jury has no more ‘right ’ to find a ‘guilty’ defendant ‘not guilty’ than it has to find a ‘not guilty’ defendant ‘guilty.’ "

United States v. Washington , 705 F.2d 489, 494 (D.C. Cir. 1983). Rather, "it is the duty of juries in criminal cases to take the law from the court, and apply that law to the facts as they find them to be from the...