Opinion
Crim. No. 96-117, Section "K".
March 2, 2000.
The Court is in receipt of the attached letter from counsel for Frank Smith requesting permission to contact the jurors who served for Mr. Smith's trial. As a starting point, such a "request" in reality is better made by formal motion as leave of court is required. L.R. 47.5E. Under the local rule, good cause must be shown in order to obtain such leave. On the surface, counsel's request is aimed at eliciting comments or observations that any juror would care to make by letter or by phone conversation with counsel concerning the trial. While the request would appear benign, in light of the pending motion for new trial, in reality it appears to be a fishing expedition on the part of counsel.
In the Motion for New Trial, counsel participates in rampant conjecture as to what was in the mind of the jury, including alleging that when the jury returned to the courtroom, there was visibly "distressed" juror. Counsel states without any support, in the opinion of this Court, as follows:
The jury deliberated over ten hours during two days and at least on juror showed visible signs of distress when returning to the courtroom for delivery of the verdict. One cannot but have the nagging feeling that some extraneous factor influenced the verdict, what it might have been is unclear; possibilities include: juror speculations about the answers to questions they asked during deliberations (i.e.: where is Tonti Street; what time the fire department arrived?), an impermissible inference drawn from Mr. Smith's exercise of the Fifth Amendment, a promanagement bias, a xenophobic attitude about "New Orleans issues," a subliminal racial component.
(Paragraph VI of the Motion for New Trial).
The Fifth Ciruit has made it clear that interrogations of jurors have not been favored by federal courts except where there is some showing of illegal or prejudicial intrusion into the jury process. As stated in United States v. Riley, 544 F.2d 237 (5th Cir. 1976):
In each case submitted to this Court supporting such an inquiry into the deliberative process, specific instances of misconduct were shown by testimony or affidavit. A party attacking the integrity of a jury on the ground of a juror's prejudice must prove prejudice by a preponderance of the evidence. United States v. Cashio, 5 Cir. 1970, 420 F.2d 1132 cert denied, 397 U.S. 1007, 90 S.Ct. 1234, 25 L.Ed.2d 420.Id. at 242. There is no such testimony or affidavit presented. Indeed, another basis for the motion for new trial is an anonymous phone call alleging that a juror's response to a voir dire question concerning relatives that worked at MacFrugal's was incorrect. That juror had responded that she had a niece that worked at a retail store; the phone caller alleged that the juror had "two relatives in management at MacFrugal's." This unsupported allegation is simply insufficient for the Court to find good cause to allow this wholesale inquiry.
Indeed, Rule 606(b) of the Federal Rules of Evidence provides:
Inquiry into Validity of Verdict or Indictment. Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon that or any other juror's mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror's mental processes in connection therewith, except that a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury's attention or whether any outside influence was improperly brought to bear upon any juror. Nor may a juror's affidavit or evidence of any statement by the juror concerning a matter about which the juror would be precluded from testifying be received for these purposes.
Fed.R. evid. 606(b). Thus, generally, a juror could not testify about the mental process by which the verdict was arrived.Rouillier v. Illinois Central Gulf, 1988 WL 72866 (E.D.La. July 5, 1988), citing Rushen v. Spain, 464 U.S. 114, 121 n. 5 (1983). Thus, the kind of inquiry that counsel seeks is beyond the pale and such responses could not be used to impeach the jury's verdict. Accordingly,
IT IS ORDERED that the request to contact the jurors is DENIED.
Before the Court is a Motion for New Trial filed by Frank Smith. As grounds for new trial Smith argues that:
1) the district court created reversible error by failing to charge the jury using the State of Louisiana's evidence rule on circumstantial evidence;
2) the district court erred by introducing lay and expert evidence concerning the second fire for which the defendant was not charged;
3) the district court erred by its failure to grant a Rule 29 motion because there existed a reasonable doubt as to the defendant's guilt;
4) the defense was severely handicapped because of the defendant's indigence to fully review the civil investigative material surrounding the fire; and
5) alleged misinformation given by a juror during voir dire.
The Court has reviewed the pleadings, memoranda and the relevant law and finds the motion to be without merit.
With respect to the first issue — the proper jury charge with respect to "cirumstantial evidence", the United States Court of Appeal for the Fifth Circuit has made clear that a federal district court commits no error when it fails to use a state evidentiary rule in charging a federal jury with respect to a federal crime. See generally United States v. Carl W. Cleveland, 182 F.3d 296, 312 (5th Cir. 1999). The Court employed the standard Fifth Circuit jury charge as set forth in the Fifth Circuit Pattern Jury Instructions, No. 1.07 (West 1998).
As to the second issue, as concerns the testimony with respect to the second fire, the Court reiterates in full by reference its minute entry of November 7, 1999 wherein it denied defendant's motion in limine to exclude such evidence. Proof concerning the actual cause of the second fire was admissible and relevant in light of Smith's exculpatory statements.
As to the third issue, defendant did not file a post-trial Rule 29 motion; as such, the issue of sufficiency of the evidence cannot be the basis for the granting of a Motion for a New Trial pursuant to Rule 33. Even if it were; however, the Court was and remains convinced that there was sufficient evidence to sustain a conviction of guilty.
As to the fourth issue — being handicapped in the investigation of this case — the Court finds this argument totally devoid of merit. This case was continued numerous times in order on the defense's motion to afford the defendant an opportunity to prepare this case for trial. Indeed, forty-three months were available to Smith for this purpose. Furthermore, the Court recognizes and emphasizes the great amount of cooperation given by the Government with respect to discovery. Simply put, a vigorous defense was mounted; the jury simply found the government's case to be true. This allegation is baseless.
Finally, as more fully explained in this Court's denial of defendant's request to interview jurors, the defendant has failed to meet his burden for this Court to grant a motion for new trial based on the alleged "improprieties."
The Fifth Circuit has made it clear that interrogations of jurors have not been favored by federal courts except where there is some showing of illegal or prejudicial intrusion into the jury process. As stated in United States v. Riley, 544 F.2d 237 (5th Cir. 1976):
In each case submitted to this Court supporting such an inquiry into the deliberative process, specific instances of misconduct were shown by testimony or affidavit. A party attacking the integrity of a jury on the ground of a juror's prejudice must prove prejudice by a preponderance of the evidence. United States v. Cashio, 5 Cir. 1970, 420 F.2d 1132, cert denied, 397 U.S. 1007, 90 S.Ct. 1234, 25 L.Ed.2d 420.
Id. at 242. There is no such testimony or affidavit presented. Indeed, another basis for the motion for new trial is an anonymous phone call alleging that a juror's response to a voir dire question concerning relatives that worked at MacFrugal's was incorrect. That juror had responded that she had a niece that worked at a retail store; the phone caller alleged that the juror had "two relatives in management at MacFrugal's." This unsupported allegation is simply insufficient for the Court to find good cause to allow this wholesale inquiry.
Based on the foregoing,
IT IS ORDERED that the Motion for New Trial is DENIED.