Opinion
IP 01-081-CR-01-T/F
November 4, 2002.
ORDER ON APPLICATION TO INTERVIEW TRIAL JURORS
This Entry is a matter of public record and is being made available to the public on the court's web site, but it is not intended for commercial publication either electronically or in paper form. Although the ruling or rulings in this Entry will govern the case presently before this court, this court does not consider the discussion in this Entry to be sufficiently novel or instructive to justify commercial publication or the subsequent citation of it in other proceedings.
The jury found Defendant Brent Merritt guilty on one count of unlawful possession of firearms by a convicted felon under 18 U.S.C. § 922(g)(1). He was acquitted of a second count involving other firearms. Subsequent to his trial, counsel for the Defendant indirectly learned that one of the jurors, in a conversation with an attorney representing Merritt on civil matters (not counsel in this trial), allegedly disclosed that the jury reached an agreement beyond a reasonable doubt as to constructive possession of only one of the firearms. Defendant now seeks permission to interview the juror who made this statement, and possibly other jurors as well. The Defendant asserts that he seeks to learn through the interview(s) whether it is true that the jurors determined that he possessed only one firearm, and if so, which one. The court rules as follows.
The particulars of this information are contained in the Defendant's Application to Interview Trial Juror(s), which was originally filed in camera, ex parte and under seal. Having considered the Application, the court now determines that there is no valid reason to maintain the Application under seal. Therefore, the Clerk is directed to unseal the Defendant's Application and the Defendant's sealed request that any order granting the motion be under seal.
The Defendant asserts in his application that the information he hopes to obtain from the juror(s) is sought for "purposes of potential appeal." Simply put, the Defendant maintains that all sentencing factors relating to offense level must be based on proof beyond a reasonable doubt and must be determined by the trier of fact, in this case, the jury. This is evident from his objections to the Presentence Report contained in the Addendum to that report, and this theory is consistent with the Defendant's assertions at trial, as reflected by his proposed jury instructions (in particular, his proposed special verdict form) and his objections to the court's instructions. For lack of a better description, this could be referred to as the Defendant's effort to assert an Apprendi claim.
Though not stated in the application, the Defendant may also be hoping to use the information he would obtain from the juror(s) prior to taking an appeal, specifically, at sentencing. Based on his objections to the Presentence Report, he might want to use this information to support some of those objections. First, it appears that the Defendant will contend at sentencing that he can only be accountable for the illegal possession of one firearm, so that the enhancement of § 2K2.1(b)(1) of the Sentencing Guidelines for the possession of more than three firearms should not apply. Or he may contend, in the alternative, that he could be held accountable for possessing, at most, thirteen firearms so that only the four level enhancement of § 2K2.1(b)(1)(D) should apply. It also appears that he will contend that the Base Offense Level should not be determined through the use of § 2K2.1(a)(4)(B) of the Sentencing Guidelines, which elevates the base offense level from 14 to 20 for this type of conviction, if the offense involved a firearm described in 26 U.S.C. § 5845(a) or 18 U.S.C. § 921(a)(30). If the information he would obtain from the juror(s) would indicate that the jury did not unanimously agree that it was proven beyond a reasonable doubt that he possessed the requisite number or type of firearm, he may wish to offer that information to support his arguments on those points. It makes no difference to the outcome of his request, though, whether the information is sought for purposes of sentencing or to support an appeal, as will be explained below.
On a somewhat related note, it also appears that the Defendant contends that matters which could exacerbate his sentence over a minimal sentence must have been proved to the jury, or at least proved to the sentencing court, by proof beyond a reasonable doubt or some other heightened burden of proof greater than a preponderance of the evidence. This, too, is consistent with the position articulated by the Defendant's counsel at trial.
First, these are not promising arguments. Apprendi and its progeny make quite clear that only facts which would increase the sentence beyond the statutory maximum must be submitted to a jury and proven beyond a reasonable doubt. See, e.g., Apprendi v. New Jersey, 530 U.S. 466 (2000) (fact other than prior conviction extending sentence beyond statutory maximum must be submitted to jury and established beyond reasonable doubt); Harris v. United States, 122 S.Ct. 2406 (2002) (brandishing of a weapon, increasing mandatory minimum, does not implicate statutory maximum and thus is subject to judicial determination at sentencing); United States v. Skidmore, 254 F.3d 635, 642-643 (7th Cir. 2001) (question of possession of silencer did not require submission to jury where it would not implicate statutory maximum).
Similarly, to the extent that the Defendant asserts that the sentencing factors presented by this case require findings based on something greater than a preponderance of evidence, he is swimming against a strong current. The Seventh Circuit Court of Appeals recently addressed a similar argument (in the slightly different context of a drug distribution sentencing) in terms which do not indicate that the juror information he seeks would be useful:
Lowe alleges that the trial court improperly applied the preponderance of evidence standard when determining the applicable amount of drugs under the Sentencing Guidelines. Lowe argues that a more demanding evidentiary standard was warranted because the district court's relevant conduct determination drastically increased his sentence beyond what he would have received if his sentence had been calculated using the smaller quantity of drugs found by the jury. Further, Lowe claims that Apprendi limits the trial court to finding the amount of drugs specified by the jury in the special verdict. When reviewing sentencing determinations under the Guidelines, we review the district court's legal conclusions de novo and its findings of fact for clear error. United States v. Parolin, 239 F.3d 922, 927-28 (7th Cir. 2001).
At the outset, we note that Lowe conflates the jury's factfinding role during trial with the district court's factfinding role during sentencing. To put it simply, the two fact finders make separate findings of fact for two distinct purposes. The adjudication of guilt is concluded once the jury finds the defendant guilty beyond a reasonable doubt. Then, during the sentencing phase, the judge assesses the facts under the relevant provisions of the Sentencing Guidelines and employs a preponderance of the evidence standard. United States v. Zehm, 217 F.3d 506, 511 (7th Cir. 2000); Talbott v. Indiana, 226 F.3d 866, 869 (7th Cir. 2000); U.S.S.G. § 6A1.3, cmt. (discussing preponderance of the evidence as the recommended standard). Here, Lowe claims that there were special circumstances that required the district court to depart from this usual framework. First, Lowe argues that a more exacting standard than preponderance must be applied when the court's factual findings as to drug amount markedly exceed the findings of the jury, thereby producing a much more severe sentence under the Sentencing Guidelines. Second, Lowe contends that Apprendi effectively caps the district court's findings as to the drug amount at the level determined by the jury.
Here, the jury found, by special verdict, that Lowe conspired to possess and distribute 50 to 100 kilograms of marijuana. Under U.S.S.G. § 2D1.1, this amount would produce a base offense level of 24. Under a preponderance of the evidence standard, the district court found that Lowe conspired to possess and distribute 528 kilograms of marijuana, setting the base offense level at 28. U.S.S.G. § 2D1.1(6). Both of these base offense levels would then be increased by adding 8 points relating to several adjustments, including presence of a firearm, obstruction of justice and Lowe's leadership role. The smaller quantity of drugs (the jury determination) therefore results in a 32 offense level, which in turn produces a sentencing range of 151 to 188 months, given Lowe's Category III criminal history. However, the district court relied on the larger drug amount to reach a 36 offense level, which produced a sentence of 240 months.
Lowe claims that the district court must apply a clear and convincing standard of proof when its findings of fact lead to a disproportionately large increase in a defendant's sentence (in this case, 52 months). To support his argument, Lowe directs our attention to United States v. Rodriguez, 67 F.3d 1312 (7th Cir. 1995), where we stated in dicta that a case might require a higher standard of proof when the finding at sentencing becomes "`the tail that wags the dog of the substantive offense.'" Id. at 1322 (quoting McMillan v. Pennsylvania, 477 U.S. 79, 84, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986)); see also United States v. Hardin, 209 F.3d 652, 654 (7th Cir. 2000) (stating in dicta that "perhaps in extreme circumstances . . . clear and convincing evidence would be the standard of proof for sentencing factors"), vacated, Sallis v. United States, 531 U.S. 1135, 121 S.Ct. 1071, 148 L.Ed.2d 948 (2001). However, in the seven years since we decided Rodriguez, we have yet to find a sentencing disparity that warrants this heightened evidentiary standard. And certainly, there is nothing about Lowe's sentence that would cause us to break new ground today. See, e.g., Rodriguez, 67 F.3d at 1322-23 (finding preponderance of evidence appropriate for relevant conduct determination that extends sentence from 51-63 months to life in prison); United States v. Masters, 978 F.2d 281, 283-85 (same for sentence increase from 33-41 months to 40 years). Thus, although the principle of Rodriguez remains viable, it has no application to the case before us.
Lowe's Apprendi argument is also meritless. Under Apprendi, when a sentence was increased above the statutory maximum, the facts underlying it had to be submitted to the jury and proven beyond a reasonable doubt. 530 U.S. at 490, 120 S.Ct. 2348; United States v. Wallace, 276 F.3d 360, 369 (7th Cir. 2002) ("[T]o the extent that a drug quantity affects a defendant's statutory maximum sentence, it is an aspect of the crime that . . . must be proven beyond a reasonable doubt") (emphasis added); Brough, 243 F.3d at 1079-80 (same); United States v. Nance, 236 F.3d 820, 825 (7th Cir. 2000) (same). Here, through the use of the special verdict form, the jury unanimously determined that Lowe conspired to distribute 50-100 kilograms of marijuana. Under § 841(b)(1)(C), the statutory maximum for that quantity of drugs is 20 years, which is the precise sentence (240 months) imposed here by the district court. Therefore, since the drug amount as determined by the district court did not push the sentence beyond the statutory maximum, the district court correctly relied upon a preponderance of the evidence standard when making its sentencing determinations.
United States v. Smith, No. 00-4184, 2002 WL 31307867, at *1, 14-15 (7th Cir. Oct. 16, 2002) (footnotes omitted).
It is this court's assessment that confirmation of the assertions in the application about the jury's findings, or lack thereof, will take the Defendant no where on appeal. In effect, the application for juror interview(s) is simply a renewal of the instructions the Defendant proposed at trial seeking specific findings regarding each of the firearms alleged in the Indictment. The court unambiguously rejected those proposed instructions, and incorporated in its reasons its understanding of the Apprendi line of authority as discussed above. So, the information that the Defendant now seeks to obtain through interview(s) is the same information that he sought through his proposed verdict forms. The court declined the invitation to obtain the information through the jury's verdict for the reasons indicated. The Defendant has not persuaded the court that it would be any more useful now, either on appeal or at sentencing.
Thus, even if the facts are as alleged in Defendant's application, and the jury only agreed as to Defendant's possession of one of the firearms, that would be sufficient to find Merritt guilty under 18 U.S.C. § 922(g)(1). The maximum sentence for a violation of that section is ten years imprisonment. 18 U.S.C. § 924(a)(2). Whether Merritt possessed any additional firearms, and the type of firearms he possessed, potentially subjecting him to enhancements under the Sentencing Guidelines, are, in this court's view, questions for this court to decide at sentencing. These matters are sentencing factors, not elements of the offense. So long as no enhancement could cause him to receive a sentence in excess of 120 months in prison, the maximum provided in 18 U.S.C. § 924(a)(2), Merritt does not have a colorable Apprendi claim.
Nothing in the Defendant's Application suggests that the jury's verdict was less than unanimous, that the jury used a standard of proof other than beyond a reasonable doubt, or that the jurors were less than unanimous in agreeing which firearm the Defendant possessed.
With respect to the Defendant's assertion that the evidence supporting enhancements to the Base Offense Level for the illegal possession of one firearm (whether because of the number and/or type of firearms) must be supported by proof beyond a reasonable doubt, that argument will be determined as matter of law and as a matter of fact at sentencing, based on the evidence at trial and at sentencing. Just so the Defendant holds no unjustified expectations about this, the court will have to be persuaded that the standard of proof for the determination of sentencing factors is anything greater than by a preponderance of the evidence. The law seems clear that only a preponderance of evidence is necessary. As for what the evidence at trial proved about the number and type of firearms the Defendant possessed, the court will consider the arguments of counsel and any additional evidence submitted at sentencing before reaching any conclusions. The court's position on this issue should be of no surprise to the Defendant. The court's ruling on the Defendant's proposed jury instructions and his objections to the court's final jury instructions clearly responded to and rejected the Defendant's view that the jury was required to make specific findings on each firearm beyond a reasonable doubt before he could be held accountable for possession of any particular firearm.
Second, even if the court is wrong on these points, Defendant already has before him all he needs to assert his arguments both at sentencing and on appeal because of the court's instruction regarding the firearms allegedly possessed by the Defendant in Count One and the general verdict form used. Specifically, the court instructed:
In order to return a verdict of guilty on Count One of the Indictment, you must find that the Defendant possessed at least one of the firearms or at least one of the rounds of ammunition listed in Count One, and you must unanimously agree as to which particular firearm or firearms or round or rounds of ammunition listed in that count the Defendant possessed.
(Final Jury Instruction 19.)
The general verdict form submitted to the jury and returned by it merely disclosed their determination of the Defendant's guilt. The record is clear that the Defendant objected to that instruction and tendered counter instructions which would have required the jury to make specific findings as to each firearm alleged in that Count. Therefore, even if juror interview(s) substantiated Defendant's allegation that the jury only came to a consensus as to one of the firearms, that would not amount to proof that the jury disregarded this court's instructions, or suggest any other impropriety in the verdict. Rather, such a determination by the jury, coupled with a verdict of guilty on the felon-in-possession count, is perfectly consistent with this court's instructions.
If the court's instructions were erroneous, then Merritt does not require testimony as to the jury's internal deliberations, but can simply point to the instructions and verdict themselves. The Defendant still has the opportunity to argue, both at sentencing and on appeal, that all that may be determined from the general verdict of guilt on Count One is that the jury concluded that the proof at trial demonstrated beyond a reasonable doubt that the Defendant possessed one firearm (or a single round of ammunition), and nothing more-and that the verdict does not allow additional firearms to be attributed to the Defendant for purposes of sentencing. The record before this court preserves that argument. Moreover, this court understands that it cannot infer from the verdict that the jury found that the Defendant possessed more than one of the firearms or more than one round of the ammunition alleged in Count One, or that the jury found that the Defendant possessed one of the types of weapons that can give rise to an increase in the base offense level, i.e. firearms that are described in 26 U.S.C. § 5845(a) or 18 U.S.C. § 921(a)(30). As the cases discussed above and their progeny teach, these are decisions for the sentencing judge. Whether this is a case which requires those determinations to be made by an elevated standard of proof, although unlikely, remains to be determined at sentencing.
Thus, the juror information would add nothing to the sentencing hearing. Furthermore, this court cannot conceive how it would benefit the Defendant in arguing his theories on appeal, either. If this court was in error in instructing the jury and in seeking a general verdict, that alone should give the Defendant a basis to urge the reversal of his conviction or a modification of his sentence on appeal. What the jurors might say about whether they reached unanimous agreement about his possession of more than one firearm (or which one) or more than one round of ammunition would add nothing to the soundness of his arguments.
Moreover, the evidence Defendant seeks is inadmissible under Federal Rule of Evidence 606(b). Short of a claim of extraneous prejudicial information or outside influence on a juror, which Defendant has not alleged, courts may not receive evidence "as to any matter or statement occurring during the course of the jury's deliberations[.]" Fed.R.Evid. 606(b). This rule codifies the long-standing practice in the federal courts of refusing to allow inquiry into the jury's deliberative process, as expressed by McDonald v. Pless, 238 U.S. 347, 382 (1912), cited in the Advisory Committee Notes to Rule 606(b):
[L]et it once be established that verdicts solemnly made and publicly returned into court can be attacked and set aside on the testimony of those who took part in their publication and all verdicts could be, and many would be, followed by an inquiry in the hope of discovering something which might invalidate the finding. . . . If evidence thus secured could be thus used, the result would be to make what was intended to be a private deliberation, the constant subject of public investigation-to the destruction of all frankness and freedom of discussion and conference.
The Seventh Circuit has likewise repeatedly refused to allow proof of a jury's internal deliberations to impeach the verdict. See, e.g., United States v. Briggs, 291 F.3d 958, 963-964 (7th Cir. 2002) (denying new trial based on juror questionnaire because under Federal Rule of Evidence 606(b) "a court will not inquire into the jury's deliberative process, including arguments, statements, discussions, mental and emotional reactions, and votes, in the absence of a claim of external influence") (citation and internal quotation omitted); United States v. Schwartz, 787 F.2d 257, 262-262 (7th Cir. 1986) (evidence of jury agreement as to facts relating to a count on which defendant convicted is inadmissible under 606(b) as proof of mental processes of jurors); United States v. Davis, 15 F.3d 1393, 1412 (7th Cir. 1994) (absent sufficient showing of improper influence, no inquiry into jury deliberations); see also Dall v. Coffin, 970 F.2d 964, 972 (1st Cir. 1992) (declining request for post-verdict interview of jurors because circuit rule prohibits such interviews except in "extraordinary circumstances").
In sum, the evidence sought by Defendant would neither support a meritorious legal claim nor comply with the evidentiary rules for admissibility. The court will therefore not allow Merritt to pry open the doors to the jury room and intrude upon the deliberative process in order to obtain it. His application to interview jurors is DENIED.
ALL OF WHICH IS ORDERED this 4th day of November, 2002.