US v. Brown

• Decision Date: 11 January 1996
• Docket Number: Criminal No. 4-94-95.
• Citation: 913 F. Supp. 1324
• Parties: UNITED STATES of America, Plaintiff, v. David R. BROWN, Defendant.
• Court: U.S. District Court — District of Minnesota

913 F. Supp. 1324

UNITED STATES of America, Plaintiff, v. David R. BROWN, Defendant.

Criminal No. 4-94-95.

United States District Court, D. Minnesota, Fourth Division.

January 11, 1996.

COPYRIGHT MATERIAL OMITTED

David L. Lillehaug, United States Attorney, Janet A. Newberg, Assistant United States Attorney, and David B. Orbuch, Special Assistant United States Attorney, Minneapolis, MN, for plaintiff.

Joseph J. Duffy, Kevin D. Evans, and Schiff, Hardin & Waite, Chicago, IL, for defendant.

ORDER

DOTY, District Judge.

This matter is before the court upon the motion of defendant David R. Brown ("Brown") for judgment of acquittal or, in the alternative, a new trial. Defendant contends that the verdict is contrary to the great weight of the evidence and should be set aside in the interest of justice, juror misconduct violated his Sixth Amendment right to trial by an impartial jury and that the jury was exposed to prejudicial extrinsic information which also deprived him of his Sixth Amendment rights. Based upon a review of the file, record and proceedings herein, and for the reasons stated below and at oral argument, the court grants defendant's motion for a new trial on Counts 13 and 17 of the redacted second superseding indictment based on juror misconduct and the jury's exposure to extrinsic information, but denies defendant's motion for judgment of acquittal or a new trial based on the sufficiency of the evidence.¹

BACKGROUND

Brown was charged in 39 counts of a 63 count second superseding indictment. The court presided over defendant's twelve week jury trial between August 1 and October 19, 1995. The court granted Brown's motion for judgment of acquittal as to twelve counts with which he was charged and severed eight other counts on October 3, 1995.² On the same day, the court granted motions for judgment of acquittal of Brown's four co-defendants, Mieszala, Herring, Geil and Jennings in their entirety.

The proceedings and trial of Brown and his co-defendants received significant local and national media coverage throughout their pendency. Following the events of October 3, 1995, and the publication of an article by the Minneapolis Star Tribune on Wednesday, October 4, 1995, which discussed the co-defendants' acquittals and Caremark's pre-trial plea of guilty and payment of a large fine, the court and Brown's counsel were justifiably concerned that the jury might have been exposed to extrinsic information. Accordingly, the court conducted a limited voir dire of the jurors as a panel and individually on October 10, 1995. In the courtroom, the court asked the 15 member jury panel "Has anybody in the panel here seen or heard anything about this case outside of the courtroom and not within the courthouse? Anybody read, seen, or heard anything?" 10/10/95 Tr. at 12. Some jurors raised their hands.

During the court's individual voir dire in chambers, juror Ulmen was asked: "Did you see anything outside the courthouse, or courtroom, about this case, over the last week or so?" 10/10/95 Tr. at 32. Juror Ulmen responded that he had not heard or seen anything regarding the case "other than that the defendants were let go — or — things were decided on the other four defendants." 10/10/95 Tr. at 33. Juror Ulmen also stated that he learned of the acquittals from the reaction of the four co-defendants as they exited the courtroom on October 3, 1995, while he was in a courthouse hallway during a recess. Id.

Juror Asphaug was one of the jurors who had raised his hand during the court's questioning of the panel. In chambers, the court asked juror Asphaug "to tell us whatever it was you saw or heard and the circumstances surrounding it?" Id. He stated that friends and neighbors had told him about the acquittal of the four co-defendants, but he claimed he had not learned anything more about the case outside the courtroom. Id. at 36-37.

Following the individual voir dire, the court gave a limiting instruction in open court concerning the judgment of acquittal of the co-defendants, the judgment of acquittal on twelve of the thirty-nine counts against Brown, and the severance of eight other counts against the defendant. 10/10/95 Tr. at 53-55. On October 11, 1995, following closing arguments of counsel, alternate jurors Davis, White and Hesse were dismissed and the case was submitted to the jury. None of the three alternates had expressed any knowledge concerning Caremark's plea of guilty or payment of a fine during the October 10, 1995 voir dire.

The jury began deliberations on Thursday, October 12, 1995. On Monday, October 16, 1995, the court received a note from juror Dickinson which stated:

Judge Doty, I am concerned about information that has come to the jury but was not part of the evidence. On Thursday, October 12, when Juror Asphaug was asked to comment, he stated that "Juror Ulmen and I have information that the rest of you do not have." He went on to say that "Care mark sic was found guilty of this same crime and paid a fine of $367,000,000." Juror Shelley quickly stated that she did not want this information and did not wish to hear any more.... At the end of the day on Friday I saw this same information affect another discussion.

10/16/95 Tr. at 6.

After receiving this note, the court did not voir dire any of the jurors. The court did, however, convene a hearing with counsel for Brown and the government to discuss an instruction the court proposed be sent back to the jury. This colloquy ensued in chambers:

The Court: Just so it is clear on the record at this point: I have propounded this instruction (indicating) or note back to the jury for this morning — that has been read to counsel, I believe — and it would read like this:

The court has learned that discussions concerning defendants that are no longer in this case have occurred during jury deliberations. Please remember the court's instruction that you are not to consider in your deliberations on this defendant anything that may have occurred outside of the courtroom regarding other defendants. In this regard you should be governed by the same principle as stated in Instruction Number Three.

And just so it is clear on the record, Instruction Number Three dealt with the four defendants that had been removed from the case after the jury had known about them.

10/16/95 Tr. at 6-7.

Defendant's counsel, Mr. Duffy, objected to the court's proposed instruction and stated:

When we talk about defendants, we talk about the original five who started this case, and we have given them instructions on those people, and it is clear that they are not talking about those people. They are taking about a company.... But what is most troubling is that they are talking about Caremark, which is not before them and shouldn't be before them in any form or fashion.

10/16/95 Tr. at 8-9.

The Court: What would you suggest that the court ought to do, as long as you have objected to the proposal that the court has made?

10/16/95 Tr. at 9.

. . . . .

Mr. Duffy: Judge, we referenced the last part of Instruction Four. You can read this here.

The court has learned that discussions concerning matters that are not part of this case have occurred during jury deliberations. Please remember the court's instructions that you are not to consider in your deliberations on this defendant anything that may have occurred outside the courtroom. Such matters are not proper evidence and must be entirely disregarded. Your verdict must be based only on the evidence in this case.

And this language comes right out of Instruction Four.

10/16/95 Tr. at 13.

The Court: Right. Is that okay with you folks?

. . . . .

Mr. Orbuch: The government doesn't have any objection to that.

10/16/95 Tr. at 14.

. . . . .

Mr. Duffy: This is a tough one, Judge. That's why it took us so long. Brown would like to have you read that instruction (indicating) to the jury.

. . . . .

Mr. Duffy: Oh, no. No. I do apologize. The issue we brought up with Brown was the issue of the possibility of a mistrial and other things, and it's having the court send that note back to them.

Following this discussion, the court did send the jury the instruction all counsel had approved.

On October 19, 1995, three days after the court received juror Dickinson's note, the jury returned its verdict and found Brown guilty on Counts 13 and 17. After the verdict was published, Mr. Duffy requested the court again voir dire each of the jurors in chambers concerning external information the jury may have considered during their deliberations. Over the government's objection, the court agreed to conduct a limited inquiry.

Questioning juror Shelley, the court asked "Was there any information brought to you during you deliberations that was not presented to you in the courtroom as evidence?" 10/19/95 Tr. at 53. Juror Shelley responded, "Yes." Id. This juror further stated that the extrinsic information presented was "that Caremark paid fines" and that this information may have affected deliberations. Id. Additionally, juror Dickinson stated that the information he referred to in his October 16, 1995, note affected deliberations. 10/19/95 Tr. at 58.

DISCUSSION

Brown contends that he is entitled to a new trial based on alleged juror misconduct and the jury's exposure to prejudicial extrinsic information. Based on juror Dickinson's note and the court's post-trial voir dire, defendant contends that certain jurors misrepresented their knowledge of extrinsic evidence to the court and the jury improperly considered this extrinsic evidence. Specifically, Brown claims that members of the jury misrepresented that they had not seen or heard any extraneous information concerning Caremark's pretrial plea of guilty which the court had excluded from evidence during the trial and communicated this information to the rest of the jury during deliberations.

The government argues that by proceeding to verdict after Brown became aware of juror Dickinson's note he waived...