UNITED STATES DISTRICT COURTMIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
UNITED STATES OF AMERICA
VS. NO. 8:09CR572-T-30TGW
MARK ANTHONY MYRIE
REPLY TO GOVERNMENT’S RESPONSE TO DEFENDANT’SSECOND AMENDED RENEWED MOTION
COMES NOW the Defendant, Mark Anthony Myrie, hereinafter (“Myrie”),
through counsels, and files this Reply to the Government’s Response to Defendant’s
Second Amended Renewed Motion and shows the Court the following:
INTRODUCTION
1. Juror Terri Wright, hereinafter (“Wright”), credibility and conduct throughout
this proceeding has been wanting to say the least. First, during voir dire, Wright was
not forthcoming when she informed the Court that she had previously been on a
jury, a civil case where a verdict was returned, She later admitted in an interview
with reporter Chris Sweeney, hereinafter (“Sweeney”), taped recorded with her
permission, to having a passion for jury service and previously sitting on seven (7)
prior juries, both civil and criminal.
2. Second, Wright, in this same interview, admitted to Sweeney that though
she was aware of the Court’s admonition not to do any research, at the end of the
day she would write her notes in her car and go home and do her research while
the issues were fresh in her mind.
3. Third, at the post-trial hearing and in spite of her taped recorded interview,
Case 8:09-cr-00572-JSM-TGW Document 457 Filed 04/08/13 Page 1 of 16 PageID 3673
recorded with her permission and played in court, Wright denied under oath that
she did any research during trial and instead testified that she did her research after
the trial. After the Court granted Myrie’s motion to examine Wright’s hard drive, the
Court expanded the search to include the two weeks after the trial due to concern
about Wright’s credibility. The Court’s concern about Wright’s credibility proved
perceptive. The hard drive Wright produced for examination showed no history of
internet use; not even for the two week period after the trial the Court expanded
due to concerns for Wright’s credibility.
4. Juror Janice Benoit’s testimony that a white female juror told two male
jurors that she did research on the Pinkerton rule is evidence that Wright is not the
lone juror guilty of juror misconduct. Benoit’s testimony is further evidence
supporting Myrie’s renewed motion that he be granted a new trial due to jury
misconduct.
5. The Government’s conduct herein has been less than laudable. Instead
of seeking justice and not convictions, the Government filed a questionable and
extraordinary motion on Wright’s behalf, after the Court notified Wright of her right
to be represented by counsel at the hearing, which Wright declined. The
Government’s motion alleged that Wright’s privacy rights were being violated by
the Court’s January 4, 2013 Order to seize her computer. On January 8, 2013 the
Court Agreed and withdrew the Order, Wright was instead Ordered to bring the
computer or hard drive that she conducted her research on to the February 19,
2
Case 8:09-cr-00572-JSM-TGW Document 457 Filed 04/08/13 Page 2 of 16 PageID 3674
2013 court hearing, Wright thereafter had the time, over a month, and opportunity
to carry out a switch-a-rue. At the February 19, 2013 hearing, Wright brought to
Court to be examined some other computer hard drive. The computer hard drive
Wright produced showed no internet use for the period in question, not even for the
Court ordered two week period after the trial. In short, the time delay in seizing
Wright’s computers enabled Wright to perpetrate a fraud upon the Court by
producing a computer hard drive other than the one the Court ordered her to
produce and which she told the Court she did her research on after the trial and
which she still possessed. Wright’s actions throughout these proceedings bring not
only her credibility into question, but her conduct is also contemptuous to this Court
and prejudicial to Myrie.
6. It is of particular note that in its Response to Defendant’s Second Amended
Renewed Motion, the Government makes only a fleeting reference of Wright’s
taped recored interview with Sweeney. Sweeney’s tape recorded interview of
Wright. The Government references this interview as the “reported statements of
juror Terri Wright” and being the basis for Myrie’s motion for new trial. Glaringly, the
Government’s Response omits any reference to the fact that the computer hard
drive Wright produced for examination had no history of internet use during the two
week Court ordered period after the trial.
3
Case 8:09-cr-00572-JSM-TGW Document 457 Filed 04/08/13 Page 3 of 16 PageID 3675
THE LAW
7. The Sixth Amendment guarantees a criminal defendant the right to a trial
by an impartial jury. See U.S. Const. Amend VI. In McDonough Power Equipment,
Inc. v. Greenwood, 464 U.S. 548, 104 S.Ct. 845, 78 L.Ed.2d 663 (1984), the Supreme
Court addressed juror dishonesty during voir dire and emphasized that “[o]ne
touchstone of a fair trial is an impartial trier of fact -‘ a jury capable and willing to
decide the case solely on the evidence before it.’”McDonough, 464 U.S. at 554
(quoting Smith v. Phillips, 455 U.S. 209, 217, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982)). Voir
dire plays an essential role in protecting the right to trial by an impartial jury.
Defendants deserve “full and fair opportunity to expose bias or prejudice on the
part of veniremen,” and “there must be sufficient information elicited on voir dire
to permit a defendant to intelligently exercise not only his challenges for cause, but
also his peremptory challenges. “ United States v. Barnes, 604 F.2d 121, 139 (2 Cir.nd
1979) (internal quotations and citations omitted).
8. The Sixth Amendment to the United States Constitution also guarantees a
criminal defendant an impartial jury to rule upon question of guilt or innocence. See
Duncan v. Louisiana, 391 US 145, 147-49, 88 S.Ct. 1444, 20 L.Ed 2d 491 (1968). The
Sixth Amendment “guarantees to the criminally accused a fair trial by a panel of
impartial, ‘indifferent’ jurors.” Irvin v. Dowd, 366 U.S. 717, 722, 81 S.Ct 1639, 6 L.Ed2d
751 (1961).
9. A juror’s dishonesty during voir dire undermines a defendant’s right to a fair
4
Case 8:09-cr-00572-JSM-TGW Document 457 Filed 04/08/13 Page 4 of 16 PageID 3676
trial. Writing for a unanimous Supreme Court, Justice Cardozo concluded: “If the
answers to the question [during voir dire] are willfully evasive or knowingly untrue,
the talesman, when accepted, is a juror in name only ... His relation to the court
and to the parties is tainted in its origin; it is mere pretense and sham.” Clark v.
United States, 289 U.Srtz . 1, 11, 53 S.Ct. 465, 77 L.Ed. 993 (1933); see also
McDonough, 464 U.S. at 554 (“The necessity of truthful answers by prospective jurors
if [voir dire] is to serve its purpose is obvious.”). Thus, a juror who lies her way onto a
jury is not really a juror at all; she is an interloper akin “to a stranger who sneaks into
the jury room.” Dyer v. Calderon, 151 F.3d 970, 983 (9 Cir. 1998) (en banc).”Justiceth
must satisfy the appearance of justice.” Offutt v. United States, 348 U.S. 11, 14, 75
S.Ct. 11, 99 L.Ed. 11 (1954). Accordingly, “courts cannot administer justice in
circumstances in which a juror can commit a federal crime in order to serve as a
juror in a criminal case and do so with no fear of sanction so long as a conviction
results.” United States v. Colombo, 869 F.2d 149, 152 (2 Cir. 1989).nd
10. In McDonough, the Supreme Court held that to obtain a new trial where,
as here, a juror lied during voir dire, “a party must first demonstrate that a juror
failed to answer honestly a material question on voir dire, and then further show
that a correct response would have provided a valid basis for a challenge for
cause. The motives for concealing information may vary, but only those reasons
that affect a juror’s impartiality can truly be said to affect the fairness of a trial.”
McDonough, 464 U.S. at 556. In Colombo, the Second Circuit held that where a
5
Case 8:09-cr-00572-JSM-TGW Document 457 Filed 04/08/13 Page 5 of 16 PageID 3677
juror deliberately conceals information that, if revealed, “might thwart her desire
to sit” on the jury, and resulting conviction “cannot stand” because such conduct
“obstruct[s] the voir dire and indicate[s] an impermissible partiality on the juror’s
part.” Colombo, 869 F.2d at 151. While the Second Circuit “has never found reason
to overturn a verdict on the basis of juror nondisclosure under McDonough, “United
States v. Stewart, 433 F.3d 273, 303 (2 Cir. 2006), the exceptional circumstances-nd
deliberate lies engineered to create a fictitious, “marketable” juror– presented by
this case warrant such extraordinary relief.
11. As a matter of established law, the burden of proving prejudice does not
lie with the defendant because prejudice is presumed the moment the defendant
establishes that “extrinsic contact with the jury in fact occurred. United States v.
Martinez, 14 F.3d 543 (11 Cir. 1994),citing United States v. Caporale, 806 F.2s 1487,th
1503 (11 Cir. 1986), cert. denied, 482 U.S. 917, 107 S.Ct. 3191, 96 L.Ed.2d 679 (1987);th
United States v. Perkins, 748 F.2d 1519, 1533 (11 Cir. 1984). In a criminal case, anyth
private communication [or] contact ... directly or indirectly, with the juror during a
trial about the matter pending before the jury is, for obvious reasons, deemed
presumptively prejudicial, if not made in pursuance of known, rules of the court and
the instructions and directions of the court made during the trial, with full
knowledge of the parties. Remmer. v. United States, 347 U.s. 227, 229, 74 S.Ct. 450,
451, 98 L.Ed. 654 (1954). See United States v. Spurlock, 811 F.2d 1461, 1463 (11 Cir.th
1987) (adopting Remmer standard of presumptive prejudice).
6
Case 8:09-cr-00572-JSM-TGW Document 457 Filed 04/08/13 Page 6 of 16 PageID 3678
12. Once the defendant proves extrinsic contact, the burden shifts to the
government to demonstrate that the consideration of the evidence was harmless.
Perkins, 748 F.2d at 1533; Caporale, 806 F.2d at 1503; Spurlock, 811 F.2d at 1463.
13. An impartial jury is one in which every juror is “capable and willing to
decide the case solely on the evidence before [her].’” McDonough, 464 U.S. at 554
(quoting Smith 455 U.S. at 217). Jurors are instructed that they are to decide the
question of a defendant’s guilt based solely on the evidence presented. See United
States v. Thomas, 116 F.3d 606, 616-17 n.10 (2d Cir. 1997). A juror is biased- -i.e., not
impartial–if her experiences “would ‘prevent or substantially impair the
performance of [her] duties as a juror in accordance with [her] instructions and
[her] oath.’” Wainwright v. Witt, 469 U.S. 412, 424, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985)
(quoting Adams v. Texas, 448 U.S. 38, 45, 100 S.Ct. 2521, 65 L.Ed.2d 581 (1980)); see
also United States v. Torres, 128 F.3d 38, 43 (2d Cir. 1997) (juror properly excused for
cause who had structured financial transactions, in case involving structuring of
cash deposits). Challenge for cause can be based on actual bias, implied bias, or
inferable bias. See Torres, 128 F.3d at 43; see also United States v. Sampson, 820
F.Supp. 2d 151, 162-67 (D. Mass. 2011) (discussing at length each type of bias).
14. Bias may be implied when the case presents a relationship in which the
“potential for substantial emotional involvement, adversely affecting the
impartiality.’” is inherent, Tinsley v. Borg, 895 F.2d 520, 527 (9 Cir. 1990). In thoseth
extreme situations where the relationship between a prospective juror and some
7
Case 8:09-cr-00572-JSM-TGW Document 457 Filed 04/08/13 Page 7 of 16 PageID 3679
aspect of the litigation is such that it is highly unlikely that the average person could
remain impartial in his deliberations under the circumstances.’” Id. (Quoting Person
v. Miller, 854 F.2d 656, 664 (4 Cir. 1998). th
A. Dishonesty on voir dire
15. Convictions overturned due to dishonesty on voir dire include Green v.
White, 232 F.3d 671 (9 Cir. 2000) (jurors’s lies concerning his background, both onth
juror questionnaire and during voir dire, and juror’s attempts to cover up behavior
in post-trial proceedings-where juror attempted to distance himself from statements
in his declaration-supplied bias for presumption of actual bias and required habeas
corpus relief); United States v. Perkins, 748 F.2d 1519 (11 Cir. 1984) (conviction forth
obstruction of justice was reversed and case remanded for a new trial. The court
found that the defendant had suffered actual prejudice as a result of juror’s failure
to disclose prior associations with the defendant as well as prior involvement in
criminal cases); McCoy v. Goldston, 652 F.2d 654 (6 Cir. 1981) (in civil right caseth
grounded on alleged police misconduct, remand for hearing to determine
whether juror’s intentional failure to disclose fact that son was in training to become
parole officer, despite being asked question on point during voir dire, rendered trial
unfair based on either a resulting prejudicial impairment of right to exercise
peremptory challenge or finding that correct answer would have provided basis
for challenge for cause).
1. Actual Bias
8
Case 8:09-cr-00572-JSM-TGW Document 457 Filed 04/08/13 Page 8 of 16 PageID 3680
16. “Actual bias is ‘bias in fact.’” Torres, 128 F.3d at 43 (quoting United States
v. Wood, 299 U.S. 123, 133, 16 S.Ct. 839, 40 L.Ed. 980 (1936); see also Greer, 285 F.3d
at 171. Whether a juror is actually biased is a question of fact determined by the
trial judge. See Dyer, 151 F.3d at 973 (citing Patton v. Young, 467 U.S. 1025, 1038, 104
S.Ct. 2885, 81 L.Ed.2d 847 (1984)); see also Torres, 128 F.3d at 43 (citing Wood, 299
U.S. at 133). “A juror is found by the judge to be partial either because the juror
admits partiality. . . or the judge finds actual partiality based upon the juror’s voir
dire answers.” Torres, 128 F.3d at 43; see also Hughes v. United States, 258 F.3d 453,
456 (6 Cir. 2001) (requiring a new trial after seated juror expressed during voir direth
her bias against defense based on her relationships with law enforcement officers).
2. Implied Bias
17. Because actual bias is often difficult to detect, court imply bias when
“certain circumstances create too great a risk of affecting a juror’s decision making
process, even if the juror is not, consciously, fully aware of the impact.” Fields v.
Brown, 503 F.3d 755, 806 (9 Cir. 2007) (Berzon, J. Dissenting). As explained long agoth
by the Supreme Court:
Bias or prejudice is such an elusive condition of themind that it is most difficult, if not impossible, to alwaysrecognize its existence, and it might exist in the mind ofone (on account of his relations with one of the parties)who was quite positive that he had no bias, and said thathe was perfectly able to decide the question whollyuninfluenced by anything but the evidence. The lawtherefore most wisely says that, with regard to some of therelations which may exist between the juror and one ofthe parties, bias is implied, and evidence of its actual
9
Case 8:09-cr-00572-JSM-TGW Document 457 Filed 04/08/13 Page 9 of 16 PageID 3681
existence need not be given.
Crawford v. United States, 212 U.S. 183, 196, 29 S.Ct. 260, 53 L.Ed. 465 (1909); see also
McDonough, 464 U.S. at 556 (Blackmun, J., concurring) (recognizing implied bias as
a basis for relief); Smith, 455 U.S. at 221-22 (O’Connor, J., concurring) (same).
18. Implied bias is determined as a matter of law and “attributed to a
prospective juror regardless of actual partiality.” Torres, 128 F.3d at 45 (citing Wood,
299 U.S. 133); see also United States v. Tucker, 243 F.3d 499, 509 (8 Cir. 2001)th
(implied bias determined “without regard to [the juror’s] subjective state of mind”).
Where a juror is implicitly biased, disqualification of that juror is mandatory. See
United States v. Rhodes, 177 F.3d 963, 965 (11 Cir. 1999). Therefore, if a juror whoth
participated in rendering a verdict was impliedly biased, the moving party is
entitled to a new trial. See, e.g. Hunley v. Gonzalez, 875 F.2d 316, 319-20 (7 Cir.th
1992).
19. Courts imply bias in “extreme situations where the relationship between
a prospective juror and some aspect of the litigation is such that it is highly unlikely
that the average person could remain impartial in his deliberations under the
circumstances.” Person v. Miller, 854 F.2d 656, 664 (4 Cir. 1988); see also Fields, 503th
F.3d at 770); Sanders v. Norris, 529 F.3d 787, 792 (8 Cir. 2008). “some examplesth
might include a revelation that the juror is an actual employee of the prosecuting
agency, that the juror is a close relative of one of the participants in the trial or the
criminal transaction, or that the juror was a witness or somehow involved in the
10
Case 8:09-cr-00572-JSM-TGW Document 457 Filed 04/08/13 Page 10 of 16 PageID 3682
criminal transaction.” Smith, 455 U.S. at 222 (O’Connor, J., concurring); see also
United States v. Brazelton, 557 F.3d 750, 753-54 (7 Cir. 2009) (explaining that courtsth
must imply bias if the juror is related to one of the principals in the case, regardless
of whether the juror is objective in fact). Courts imply bias “ when there are
similarities between the personal experiences of the juror and the issues being
litigated.” See Sampson, 820 F.Supp. 2d at 153-64 (quoting Skaggs v. Otis Elevator
Co., 164 F.3d 511, 517 (10 Cir. 1998) and collecting cars where bias was impliedth
based on the juror’s experiences (internal quotation marks omitted)).
20. The issue for implied bias is whether an average person in the position of
the juror in controversy would be prejudiced.” United States v. Gonzalez, 214 F. 3d
1109, 1112 (9 Cir. 2000).th
3. Inferable Bias
21. “Inferable” or “inferred” “bias exists” “when a juror discloses a fact that
bespeaks a risk of partiality sufficiently significant to warrant granting the trial judge
discretion to excuse the juror for cause, but not so great as to make mandatory a
presumption of bias.’” Greer, 285 F.3d at 171 (quoting Torres, 128 F.3d at 47). As the
Second Circuit reasoned:
There is not actual bias because there is no findingof partiality based upon either the juror’s own admissionor the judge’s evaluation of the juror’s demeanor andcredibility following voir dire question as to bias. And thereis no implied bias because the disclosed fact does notestablish the kind of relationship between the juror andthe parties or issues in the case that mandates the juror’sexcusal for cause.
11
Case 8:09-cr-00572-JSM-TGW Document 457 Filed 04/08/13 Page 11 of 16 PageID 3683
Nonetheless, inferable bias is closely linked to bothof these traditional categories. Just as the trial court’sfinding of actual bias must derive from voir direquestioning, so the court is allowed to dismiss a juror onthe ground of inferable bias only after having receivedresponses from the juror that permit an inference that thejuror in question would not be able to decide the matterobjectively. In other words, the judge’s determinationmust be grounded in facts developed at voir dire. Andthis is so even though the juror need not be asked thespecific question of whether he or she could decide thecase impartially. Moreover, once facts are elicited thatpermit a finding of inferable bias, then just as in thesituation of implied bias, the juror’s statements as to his orher ability to be impartial become irrelevant.
Torres, 128 F.3d at 47; see also Greer, 285 F.3d at 171; United States v. Quinones, 511
F.3d 289, 301 (2 Cir. 2007).nd
22. Although declining to define the “precise scope of a trial judge’s
discretion to infer bias,” Judge Calabresi further explained:
it is enough for the present to note that cases inwhich a juror has engaged in activities that closelyapproximate those of the defendant on trial areparticularly apt. the exercise of the trial judge’s discretionto grant challenges for cause on the basis of inferred biasis especially appropriate in such situations. “Because [insuch cases] the bias of a juror will rarely be admitted bythe juror himself, partly because the juror may have aninterest in concealing his own bias and partly becausethe juror may be unaware of it, [partiality] necessarilymust be inferred from surrounding facts andcircumstances.” McDonough, 464 U.S. at 448 (Brennan,Jr., concurring) (internal quotation marks and citationomitted).
Torres, 128 F.3d at 47.
23. Therefore, the doctrine of inferable bias, which courts have long
12
Case 8:09-cr-00572-JSM-TGW Document 457 Filed 04/08/13 Page 12 of 16 PageID 3684
“implicitly assumed to exist, “Torres, 128 F.3d at 43, permits a court in its discretion
to dismiss a juror because of an inference that the juror will not be able to decide
the case based solely on the evidence.
24. Juror’s “dishonesty, of itself, is evidence of bias”) Burton v. Johnson, 948
F.2d 1150, 1159 (10 Cir. 1991). Juror’s conscious censoring of information wasth
“hostile” to the “interest of the defense and the court,” which “in itself constitutes
bias”).Juror’s dishonest, in and of itself, is a strong indication that he was not
impartial”. United States v. Perkins, 748 F.2d 1519, 1532 (11 Cir. 1984). th
25. An appellate court may consider a juror’s deliberate concealment of
information during voir dire to be evidence of bias and grant a new trial. Green v.
White, 232 F.3d 671, 675-76 (9 Cir. 2000) (new trial required because juror lied onth
jury questionnaire and during voir dire, and pattern of lies created uncertainties
about whether he could render impartial verdict). Appellate courts may also
reverse conviction when a juror’s mistaken but honest response to a material voir
dire question prevented the trial court from discovering actual bias. See
McDonough Power Equip. v. Greenwood, 464 U.S. 548 555-56 (1984) (plurality
opinion). To establish reversible error in case involving inadvertent nondisclosure, a
defendant must demonstrate that “a juror failed to answer honestly a material
question on voir dire” and that “a correct response would have provided a valid
basis for a challenge for cause.” Id.; see e.g. U.S. v. St. Clair, 855 F.2d 518, 522-23 (8th
Cir. 1988) (new trial required in prosecution for conspiracy to construct destructive
13
Case 8:09-cr-00572-JSM-TGW Document 457 Filed 04/08/13 Page 13 of 16 PageID 3685
device because juror admitted during deliberation to 7 years of experience with
explosive and did not speak up during voir dire).
CONCLUSION
Had this Court and Myrie known the true facts, Wright would have been
subject to a valid challenge for cause or peremptory challenged. In any event,
had the truth been known, Wright would not have served on this jury. Wright was
manifestly incapable of performing the central functions of a juror–evaluating
witness credibility and making a fair assessment of the evidence. Based on her false
voir dire answers, her research during the trial, her taking of notes outside of the
Court, and her production of some other computer hard drive for examination
instead of the one she utilized for her research. The Court can easily infer that Wright
is inherently unable to perform the crucial function of ascertaining the truth. As a
result, and in the interest of justice, this Court must order that Myrie be granted a
new trial.
This the 8 day of April 2013.th
Respectfully submitted
MARK ANTHONY MYRIE
By:
s/ Imhotep Alkebu-lan Imhotep Alkebu-lan MSB#10592
14
Case 8:09-cr-00572-JSM-TGW Document 457 Filed 04/08/13 Page 14 of 16 PageID 3686
Post Office Box 31107Jackson, Mississippi 39286-1107601-353-0450 Telephone601-353-2818 [email protected]
CHOKWE LUMUMBA MSB #8865Post Office Box 31762Jackson, Mississippi 39286-1762601-353-4455 Telephone601-353-2818 [email protected]
ATTORNEYS FOR DEFENDANT
15
Case 8:09-cr-00572-JSM-TGW Document 457 Filed 04/08/13 Page 15 of 16 PageID 3687
CERTIFICATE OF SERVICE
I hereby certify that on the below date I electronically filed the foregoing
with the Clerk of the Court using the ECF system which sent notification of such filing
to the following individual(s):
David Oscar Markus, Esq. James C. Preston, Jr.Marc David Sellers, Esq. Anita M. Cream40 N.W. 3 Street AUSArd
Penthouse One 400 N. Tampa StreetMiami, FL 33128 Tampa, FL 33602
I hereby certify that I have mailed by United States Postal Service the
document to the following non-ECF participant:
William Harold Long Jr. Lori D. PalmieriAttorney At Law Attorney At Law99 NW 183 Street 13055 W. Linebaugh Avenuerd
Suite 241D Tampa, FL 33626Miami Gardens, FL 33169-4551
This the 8 day of April 2013.th
s/ Imhotep Alkebu-lan Imhotep Alkebu-lan
16
Case 8:09-cr-00572-JSM-TGW Document 457 Filed 04/08/13 Page 16 of 16 PageID 3688
Top Related