United States District Court, E.D. North Carolina, Eastern Division
MALCOLM J. HOWARD, Senior District Judge.
This matter is before the court on defendant's renewed motion for new trial on Counts One through Ten [DE #139]. The government responded [DE #147]' defendant produced a supplemental memorandum [DE #174], and the court has held conferences on this matter. Additionally, the court conducted a hearing on this motion on Tuesday, February 18, 2014, at the United State Courthouse in Greenville, North Carolina.
Following the jury verdict in this matter,  the government filed a post-verdict notice of possible juror misconduct [DE # 97], and the defendant responded to the notice by filing a Motion for New Trial [DE #111], pursuant to Rule 33 of the Federal Rules of Criminal Procedure.
The Notice informed the court of the following:
[A]s the undersigned attorney was returning a key to the court clerk's office, two jurors, accompanied by a court security officer, approached the undersigned attorney to thank the Government for its work in the case. During the short discussion that followed, one of the jurors mentioned in passing that another juror (who was not present) had conducted home Internet research regarding Subchapter S Corporations and had mentioned this fact to the assembled jury.
Based on this information, the court held a sealed hearing on June 19, 2013. On August 1, 2013, the court granted in part and denied in part defendant's motion for a new trial, setting aside the jury's verdict as to Counts Eleven and Twelve, based on jury misconduct.
Specifically, the court reasoned:
[T]here was juror misconduct in that Juror Number Three conducted research on the internet in contravention of the instructions of the court. Because the outside research done by the juror related to the filing of taxes, the court finds that it may have been material to Counts Eleven and Twelve. As the court is not able to say that the misinformation obtained by Juror Number Three was immaterial to those counts, the court determines that a presumption of prejudice arises.
United States v. Laroque, No. 4:12-CR-88-1H, 2013 WL 3984131, at *4 (E.D. N.C. Aug. 1, 2013). The court then found that the government was unable to rebut the presumption of prejudice against defendant as to Counts Eleven and Twelve.
On August 30, 2013, the defendant filed a renewed motion for new trial, attaching affidavits from two jurors ("original affidavits"). The government responded in opposition on October 7, 2013, raising issue as to the admissibility of the original affidavits. On February 10, 2014, defendant filed a supplemental memorandum in support of his renewed motion for new trial and submitted a new affidavit ("supplemental affidavit") from Juror Number Three. The court held a hearing in this matter on February 18, 2014, and heard extensive arguments from the parties on these matters.
Defendant argued that the affidavits are admissible, specifically the portions about outside research on deferred compensation. Furthermore, defendant argued that deferred compensation goes to the heart of the defense presented at trial, and therefore, the extrinsic information on that subject was material as to Counts One through Ten. As a showing of materiality gives rise to a presumption of prejudice, defendant then argued that the government could not meet its burden to overcome that presumption.
The government countered that the affidavits were improper, at least in part, pursuant to Rule 606 (b), and questioned the credibility of Juror Number Three's sworn statements. The government did not seek to call Juror Number Three as a witness or otherwise present any new evidence. Nonetheless, the government posited that even if Juror Number Three researched deferred compensation online, it is immaterial to Counts ...