United States v. Saya

980 F. Supp. 1152, 1997 U.S. Dist. LEXIS 16191, 1997 WL 641208
Procedural entryThis page is a short order in United States v. Saya. Read the opinion of the Court — 980 F. Supp. 1157
District Court, D. Hawaii·Decided June 27, 1997·No. Crim. No. 95-01065 ACK·Published

Opinion

ORDER PARTIALLY GRANTING GOVERNMENT’S MOTION FOR AN ANONYMOUS JURY AND INCREASED COURT AND JURY SECURITY MEASURES

KAY, Chief Judge.

BACKGROUND

Soon after the first trial resulted in a mistrial, the government filed the instant motion for an anonymous jury and for increased court and jury security measures. Through the motion, the government seeks employment of an anonymous jury. On a practical level, the government seeks to omit the “names, phone numbers, addresses or place of employment of any jurors.” See Government’s Motion, pg. 7. During voir dire, the government proposes that each juror be referenced by a number and that the parties have the opportunity to question on “background, age, employment (without specifying names of companies), family mem[1154]*1154bers without disclosing identities.”1 The government also seeks greater security measures.2

DISCUSSION

The Ninth Circuit has yet to address the issue of an anonymous jury. Six other circuits have addressed the issue, however, and found them constitutionally permissible in certain situations. See e.g. United, States v. Paccione, 949 F.2d 1188 (2nd Cir.1991); United States v. Scarfo, 850 F.2d 1015 (3rd Cir.1988), cert, denied, 488 U.S. 910, 109 S.Ct. 263, 102 L.Ed.2d 251 (1988); United States v. Salvatore, 110 F.3d 1131 (5th Cir. 1997); United States v. Crockett, 979 F.2d 1204, 1215-17 (7th Cir.1992); United States v. Ross, 33 F.3d 1507 (11th Cir.1994); United States v. Edmond, 52 F.3d 1080 (D.C.Cir.1995), cert, denied, — U.S.-, 116 S.Ct. 539, 133 L.Ed.2d 443 (1995).

These courts have not empaneled an anonymous jury “without (a) concluding that there is a strong reason to believe the jury needs protection, and (b) taking reasonable precautions to minimize any prejudicial effects on the defendant and to ensure that his fundamental rights are protected.” United States v. Paccione, 949 F.2d 1183, 1192 (2nd Cir.1991). In determining whether a jury needs protection, a number of these circuits have relied on a five factor analysis. United States v. Salvatore, 110 F.3d 1131 (5th Cir. 1997); United States v. Paecione, 949 F.2d 1183 (2nd Cir.1991); United States v. Ross, 33 F.3d 1507 (11th Cir.1994); United States v. Edmond, 52 F.3d 1080 (D.C.Cir.1995), cert. denied, — U.S. -, 116 S.Ct. 539, 133 L.Ed.2d 443 (1995). The five factors are:

(1) the defendant’s involvement in organized crime, (2) the defendant’s participation in a group with the capacity to harm jurors, (3) the defendant’s past attempts to interfere with the judicial process, (4) the potential that, if convicted, the defendant will suffer lengthy incarceration and substantial monetary penalties, and (5) extensive publicity that could enhance the possibility that jurors’ names would become public and expose them to intimidation or harassment

Ross, 33 F.3d at 1520. The Court finds these factors reasonable. Thus, it adopts this analysis as its own in deciding the instant motion.

1. Defendant’s involvement in organized crime

Compared to other cases involving an anonymous jury, this factor is not strongly present in this case. See e.g. United States v. Paccione, 949 F.2d 1183 (2nd Cir.1991) (Defendant a member of the Gambino Crime Family). There was no evidence in the first case that Defendants were members of the mafia, or any organized crime family. However, Mr. Bunag testified that this alleged drug conspiracy had been operating for some period of time, with different geographic areas of the island having been assigned to specific defendants and other persons. Moreover, Defendant Saya has been convicted of murder, and a search of the residence of Defendants Sylva and Burke revealed an automatic assault rifle (like those used by SWAT teams) and equipment to intercept police calls and detect a body recorder. This factor alone, however, does not support the empanelment of an anonymous jury.

2. The Defendant’s Participation in a Group with the Capacity to Harm Jurors

This factor favors granting the government’s motion. During the first trial (which lasted in excess of eight weeks), the courtroom was filled every day with the Defendants’ supporters. At times, these supporters engaged in disruptive conduct. Such behavior resulted in the Court warning the [1155]*1155audience that further disruption would not be tolerated.

During the first trial, this Court made several rulings concerning jury intimidation and tampering and intimidation of a witness, as a result of observations reported by Deputy Marshals, Court Security Officers, and government counsel. This included Court directions that lunch be brought in to the jury lounge during the deliberations. The government also documented that after the trial was concluded five jurors informed the government that they felt intimidated by some of the supporters of the Defendants who attended trial on a daily basis. After the trial, two jurors were approached by the local males who followed them and told them “we know where you live.” Moreover, on another day, one of the jurors’ car was “keyed,” an incident the juror believed to be more than coincidental. Other jurors reported after the trial that they felt supporters of the Defendants glared at them and that they had to run a “gauntlet” when they entered and exited the courtroom. At least one juror was concerned for her safety in the event how she voted became public knowledge upon polling the jury.3

In addition to intimidation, the jury in the first trial was also tampered with. According to one juror, she received a phone call at home on December 2, 1996 telling her not to report to court the next day. Relying on the phone call (made at 10:30 p.m.), the juror did not attend the trial the next day. Authorized court personnel, however, did not make the telephone call. Based on Defendants’ objections, she was excused from further duty.

Adhering to the presumption of innocence, this Court does not allocate blame for this incident on any one party. However, it will not tolerate its jurors being tampered with. The anonymous jury, although no panacea, will reduce the likelihood of another such juror tampering incident.

Taken together, these incidents demonstrate that Defendants are members of a group with the capacity to harm the jurors.

3.

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United States v. Saya, 980 F. Supp. 1152, 1997 U.S. Dist. LEXIS 16191, 1997 WL 641208 (D. Haw. 1997).

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Related

United States v. Clarence Crockett and Albert Tocco
979 F.2d 1204 (Seventh Circuit, 1992)
United States v. Allan Ross
33 F.3d 1507 (Eleventh Circuit, 1994)
United States v. Rayful Edmond, III
52 F.3d 1080 (D.C. Circuit, 1995)
United States v. Salvatore
110 F.3d 1131 (Fifth Circuit, 1997)
United States v. Paccione
949 F.2d 1183 (Second Circuit, 1991)