United States v. Greer

998 F. Supp. 399, 1998 U.S. Dist. LEXIS 3356, 1998 WL 128486
District Court, D. Vermont·Decided February 9, 1998·No. No. 2:95-CR-72·Published·Cited by 1 cases

Opinion

OPINION AND ORDER

SESSIONS, District Judge.

On June 30, 1997, Defendants filed a Motion for New Trial (Paper 448) pursuant to Fed. R. Cr. P. 29. They rely upon a newspaper article indicating that one juror was related to a person mentioned during testimony as having purchased ten pounds of hashish from Defendant William Greer in the early 1980’s. They also assert that the juror disclosed this relationship to other jurors but not to the Court or counsel. In addition, a mutual Mend of the juror and one of the Defendants contacted the juror and urged lenience; the juror told some of the other jurors about the call. The Defendants seek a new trial based, on the juror’s bias and the impropriety of the jury’s consideration of extrinsic evidence. For the reasons cited below, the Court denies the Motion for New Trial.

I. Factual Background

The grand jury returned a superseding indictment on July 24, 1996, charging each of the Defendants with participation in conspiracies to import and/or export hashish and marijuana and to violate the Maritime Drug Law Enforcement Act (“MDLEA”). According to the indictment, the conspiracy to import or export drugs occurred between 1980 and February 12, 1993, while the conspiracy to violate the MDLEA occurred between 1989 and 199Í. In addition, Greer, Hutchins, and Cook were charged with conspiring to distribute' and possess with intent to distribute hashish, marijuana, and cocaine from 1980 to 1993. Greer and Hutchins were charged with engaging in a continuing criminal enterprise (“CCE”) from 1980 to 1991. Greer, Hutchins, and Cook were charged with importing hashish and currency violations in 1990. Finally, Greer and Hutchins faced charges of traveling in foreign commerce to promote illegal activity.

Trial commenced on March 11, 1997 and extended for approximately ten weeks. The jury returned a verdict on May 31,1997. All of the Defendants were convicted of conspiracy to violate the MDLEA, and all but Koski were convicted of conspiring to import and [403]*403export drugs. The jury acquitted Greer, Hutchins, and Cook of the distribution conspiracy and acquitted Greer and Hutchins of the CCE charge. Greer was convicted of one currency violation count. The remaining charges resulted in not guilty verdicts.

Prior to jury selection, each panel member filled out a jury questionnaire which asked, inter alia, whether the potential juror, a relative, or a person close to that juror had ever been a victim of a crime, a witness to a crime, or accused of a crime. Juror John Baker responded “No” to that query and signed the responses under penalty of perjury.

Prior to announcing the ease to .the jury panel, the Court described the possible length of the trial and permitted those jurors with potential scheduling conflicts or other personal reasons based upon the trial’s length to address those issues in chambers. The Court met with potential jurors without counsel present for the sole purpose of discussing requests for recusal unrelated to knowledge of the case. During such a conference, Juror Baker suggested that he thought he knew what case was to be tried and that he had an important matter to share with the Court. The Court informed Baker that the purpose of the conference was only to address personal excuses from service unrelated to knowledge of the case, and that issues relating to possible service on this case should be addressed in open court. Juror Baker did not disclose any knowledge of the case or an understanding of what case was to be tried.

During voir dire, the Court asked the jurors: “Have you had any experience involving yourself, any members of your family, or any close friend that relates to the use or possession of illegal drugs or narcotics within the past ten years?” (Vol. I at 149.) Juror Baker did not disclose knowledge of any relative being involved in drug activity within the past ten years. After a night’s reflection, he did relate that his best friend died as a result of drug and alcohol abuse. Both government and defense counsel disclosed names of potential witnesses to the jury. The name Robert Baker was never mentioned.

The Court also questioned Juror Baker about his knowledge of the ease. He stated that he had read about the case in the Burlington Free Press but had not formed an opinion concerning the Defendants’ guilt or innocence. (Vol. 1 at 71.) He also told the Court that he could put aside any information he had received from outside sources concerning the case and decide it based exclusively on the evidence elicited in court. The Court asked all jurors if they could be fair and impartial, to which all of the jurors who were eventually accepted, including Juror Baker, responded affirmatively.

On each day of the trial the Court asked the jurors if they had spoken with any outsiders or among themselves about the case. The jurors always replied in the negative.

The name Robert Baker was mentioned twice during the trial, both times on April 8, 1997. (Vol. 13 at 133, 144.) The Government was attempting to establish, through the testimony of Michael Johnson, a pattern of drug distribution by William Greer dating back to 1980. Counsel for the Government asked Johnson to describe situations in which Greer distributed drugs to others. Johnson testified thát Greer distributed ten pounds of red hashish to a Robert Baker in South Hero, Vermont in 1980 or 1981. Robert Baker was described as one of many persons who had purchased hashish from Greer in the 1980’s. This testimony related to the conspiracy to distribute and CCE counts; the role attributed to Robert Baker was minimal. Defendants were acquitted of the conspiracy to distribute and CCE counts.

Juror Baker did not disclose his relationship to Robert Baker during the remainder of the trial. After the trial, Juror Baker told a news reporter that Robert Baker was in fact his brother. The article indicated that this juror did not disclose this relationship to counsel or the Court because, when asked at voir dire, he knew of no drug use by his brother within the last ten years. He apparently informed the reporter that other jurors also knew of his relationship with Robert Baker, but that this fact did not impede his ability to be impartial.

[404]*404Defendants requested permission to question three jurors. In' accordance with the Court’s broad discretion to shape the scope of any inquiry into a juror’s fitness or the jury’s deliberations (see United States v. Rosario, 111 F.3d 293, 299 (2d Cir.1997) (juror bias), cert. denied — U.S. -, 118 S.Ct. 319, 139 L.Ed.2d 246, and cert. denied — U.S. -, 118 S.Ct. 418, 139 L.Ed.2d 320; United States v. Hillard, 701 F.2d 1052, 1064 (2d Cir.1983) (extrinsic evidence)), the Court held a full hearing to address Juror Baker’s extrajudicial statements and the potential for bias. All of the jurors were interviewed by the Court; the parties were permitted to propose questions before and during the hearing.

At the posttrial hearing Juror Baker confirmed that Robert Baker was his brother. According to Juror Baker, the two were not close; he did not “regularly associate with” Robert Baker. (Jury Hr’g Tr. at 109.) Baker knew that his brother had been incarcerated in 1969 and believed that he had subsequently been jailed, but he recalled no specific details.

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United States v. Greer, 998 F. Supp. 399, 1998 U.S. Dist. LEXIS 3356, 1998 WL 128486 (D. Vt. 1998).

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