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United States v. Brown

United States District Court, E.D. North Carolina, Western Division

May 3, 2017



          LOUISE W. FLANAGAN United States District Judge

         This matter is before the court on defendant's motion for hew trial, made pursuant to Federal Rule of Criminal Procedure 33. (DE 74). Upon completed briefing, the court convened hearing on the motion May 1, 2017. The issues raised are ripe for ruling. For the reasons that follow, defendant's motion is denied.


         On July 12, 2016, a grand jury returned an indictment charging defendant with one count of being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and § 924.[1] Defendant pleaded not guilty to count one and trial commenced on February 14, 2017.[2] At around 3:00 p.m. on February 16, 2017, the court discharged the jury to begin its deliberations. At approximately 3:40 p.m. the jury sent a note through its foreperson to the court which read "[p]lease define reasonable doubt." (DE 63). The note also stated "[w]e would like to hold the gun, the ammo, the magazine. Could someone bring those to the jury room." (Id.). The court addressed the jury's note with the parties, first by acknowledging that courts are not obligated to define reasonable doubt. Defendant requested a definition, offering as an example the definition provided in United States v. Williams. 152 F.3d 294 (4th Cir. 1998). The government acquiesced to defendant's definition, requesting only that the definition include that reasonable doubt is not based on sympathy and common sense. After further discussion with the parties, the court summoned the jury back in the courtroom and provided the following instruction:

Reasonable doubt is a real doubt based upon reason and common sense and careful and impartial consideration of all the evidence in the case. Now, you'll recall, during jury selection, I told you, among other things, it is very important for you to know and understand that your sole source of information must come from evidence presented to you in this courtroom. And you cannot supply the answer to unanswered questions arising in your mind by guessing. The answer must be found within the confines of the evidence presented in court. And among other instructions in my final instructions, you will recall that I instructed you in performing this duty of deciding whether or not the government has proven the defendant's guilt beyond a reasonable doubt, you must not be persuaded by bias, prejudice, or sympathy as to any party or by any public opinion. And I'll remind you, as I told you earlier, you're to be guided by all of the [c]ourt's instructions, those given to you at the beginning, in the middle of the trial, and in the end. Don't single out any one, consider them as a whole.

(Tr. Day 3, DE 81 at 523:11-524:5). The court complied with the jury's second request by assigning the courtroom clerk to bring the sought after items to the jury room for inspection.

         The day wound down with no verdict forthcoming. The court admonished the jury at the close of business February 16, 2017, together with the alternate who remained on premises, to remember the court's instructions including those governing conduct during any separation. The jury then was discharged in the presence of the parties.

         Court reconvened at approximately 9:00 a.m. on February 17, 2017. Before the jury was returned to the courtroom, the court informed the parties it had learned that when the clerk was securing the jury room the evening before, the jury foreperson and one other juror remaining in the room approached her and asked if it would be possible to substitute a juror. The court informed the parties of its intent simply to call the jury into the courtroom, remind them of their duties, and have them return to the jury room to continue deliberations. The government suggested the court investigate further whether a juror was intentionally disregarding his or her duties:

So if that's the issue, that there's someone in this jury pool that's not willing to apply the facts to the law, then I think that's something we should be aware of. If it's, you know, illness or something else, you know, if there are other things that the Court can properly address with the whole group - but I think if that's -1 mean, that's what this whole case is about, applying the facts to the law. And if that is the concern, I think we should be aware of it.

(Tr. Day 4, DE 73, 3: 15-23). The court declined to entertain suggested inquiry underlying the government's concern that one juror might need to be removed and the alternate substituted, responding in part:

I don't think we're there yet though. I think we're not anywhere close to that yet. So what I would just like to do is hope that after a good night's sleep and they come back here today, they listen to what I have to say and they go back in and they listen to each other and go through the facts and the evidence. Now if we get a note that gives us some details, then it becomes something I think would maybe need some more pointed address. But you're going to have to give me authority for taking a juror off, out of a jury who simply refuses to consider the others.
* * *
Now, I think if there's a mental issue, if someone is unable to participate because they're always in the bathroom, I mean, that's a whole different ball of wax. But you ought to, in this break, be researching what my authority would be to go in and inquire along those lines and take those steps that you, I think, are thinking about.

(Id. at 3: 24-25; 4: 1-12; 4: 17-24)

         Defendant then offered through counsel "you can bet that we would strongly object to just striking someone just because they didn't agree with the rest of the group, " clarified by statement "I mean, the Court knows that we're going to take a very strong position on that." (Id. at 5: 3-7).

         After alerting the parties to this report, and hearing their concerns, having declined the government's request to learn directly from the foreperson the basis of her concerns while indicating it could revisit the issue if a note was provided to it offering some details, the court summoned the jury into the courtroom, reminded them of their duties and the court's previous instructions, and discharged the jury to the jury room to continue their deliberations at or around 9:11 a.m. Shortly thereafter, around 10:20 a.m., the jury submitted a note which read: "We have reached an impasse. We have at least 1 person on each side (guilty/not guilty) that is/are adamant about not changing their minds. We need direction on how to proceed." (DE 64). Defendant requested the court give the Allen charge[3], a copy of which the court previously had provided the parties with, in anticipation of this issue.

         While not objecting to the form of the court's Allen charge, the government articulated concern that somehow the clerk's measured response to the foreperson in the jury room the evening before had led the foreperson to believe she could not bring to the court's attention that a juror was refusing to deliberate, meriting at this time pointed inquiry by the court. Both sides referred in dialogue with the court to the foreperson's deliberate vagueness. The government offered through counsel "I agree [with defense counsel] that this letter is deliberately vague." (Id. at 10: 8-9). Counsel continued:

So it's not clear if there's one juror that's holding out and the other 11 are one way or -1 think that they left this deliberately vague. I think our only concern is that when the foreperson yesterday asked the clerk to remove a juror, she did so for a reason. And if the clerk told her, you know, this is not the appropriate way to do this..."

(Id. at 10:13-16). The court reminded counsel that when asked if it would be possible to substitute a juror the clerk had informed the court that she responded simply that she could not address this question.[4] Government counsel persisted, "[b]ut that, Your Honor, that may have possibly left it to the foreperson to believe that this was not something that could be addressed." (Id. at 10: 19-21).

         The court responded in part "I'm not aware of any case law that permits a judge to pull a juror who has a heartfelt, steadfast view developed, albeit, very, very quickly [but] [n]ow, if you want me to pull the foreperson in here and just ask her about what happened yesterday just so I can understand fully, I will do that." (Id. at 11:1-7). The government was satisfied. Defendant, however, through counsel offered a passionate response, in mistaken understanding that the court intended to expansively question the foreperson:

That's over our vehement objection. Your Honor. I think that this is invading the province of the jury. The jury is a sacred part of the criminal justice system. And for us to pierce that veil and invade that space I think is completely inappropriate. If that foreperson had gone to [the clerk] yesterday for example, and said we have someone who is refusing to deliberate, who is refusing to read the jury instructions, who is saying that she has a moral opposition to finding someone guilty, that would be something else. But I don't think that we have any place - we couldn't find any case that allowed the judge to do what [counsel for the government] is asking you to do.

(Id. at 11:10-22). The court reminded counsel the line of inquiry would be limited to the nature of the foreperson's contact with a member of court staff the evening before.

         The foreperson was brought into the courtroom and in front of the parties she responded affirmatively that she was aware she could raise her concerns directly with the court but had not done so because she wanted to give the jury additional time for reflection and to deliberate more this morning. The court acknowledged receipt of the note, thanked the foreperson for writing, and instructed her to return to the jury room and let her fellow jurors know that the court would be requesting their presence in the courtroom to give them direction. Both sides appeared satisfied. The court indicated it would now give the Allen charge. The jurors returned and the court addressed them:

Of course this case is important. It's been expensive for both sides, for the prosecution and for the defense. If you should fail to reach a verdict or agree on a verdict, the case is left open and undecided. And, like all cases, it must be disposed of at some time. There appears no reason to believe that any other trial would be any less expensive for both sides or the could be tried any better than it has been in this instance. And, further, any other jury must be selected in the same manner, from the same source as you have been chosen. So there appears no reason to believe the case will ever be submitted to 12 men and women more intelligent, more impartial, or more competent to decide it, or that more or clearer evidence would be produced on behalf of either side. It's unnecessary to add that the [c]ourt does not wish any juror to surrender his or her conscientious convictions. As stated in the instructions given at the time the case was submitted to you, do not surrender your honest convictions as to the weight or effect of the evidence solely because of the opinion of the other jurors or for the mere purpose of returning a verdict. However, it is your duty as jurors to consult with one another and to deliberate with a view to reaching an agreement if you can without doing violence to your individual judgment. Each of you must decide the case for himself and for herself. But you should do so only after consideration of the evidence with your fellow jurors. In the course of your deliberations, don't hesitate to change your mind when convinced it is erroneous. Each juror who finds himself or herself in the minority should give equal consideration to the views of the majority. And each juror who finds himself or herself in the majority should give equal consideration to the views of the minority. You are not partisans. You've got no friends to reward. And you've got no enemies to punish. You are judges. You're the judges of the facts of this case. And your sole purpose is to ascertain the truth from the evidence before you. You're the sole and exclusive judges of the credibility of all the witnesses and the weight and effect of all the evidence. And in the performance of this high duty, you are at liberty to disregard all comments of both [c]ourt and counsel, including, of course, the remarks that I'm making to you right now. But remember at all times that no juror is expected to yield the conscientious conviction he or she may have as to the weight or effect of the evidence. But remember, also, that after full deliberation and consideration of all the evidence, it is your duty to agree upon a verdict if you can do so without violating your individual judgment or your individual conscience. As I previously instructed you, the law presumes a defendant to be innocent. And that presumption of innocence alone is sufficient to acquit a defendant - unless the jury is satisfied beyond a reasonable doubt of the defendant's guilt after a careful and impartial consideration of the evidence introduced at trial. A defendant has no obligation to establish his innocence. The burden is always upon the prosecution to prove beyond a reasonable doubt. And this burden never shifts to the defendant. Now you may take as much time in deliberations as the occasion requires. And you are to take all the time that you feel is necessary.

(Id. at 14:9-16:25). Following the charge, the court offered to the foreperson opportunity for any member of the jury to take a short walk around the courthouse block before resuming deliberations. The jury exited the courtroom at 10:46 a.m. Lunch subsequently was provided to the jury members on premises. Another note followed from the jury at around 1:00 p.m. The parties again were summoned to the courtroom. The note, again signed by the foreperson, appeared indicative of the jury's receptive interpretation of the court's Allen charge. It read:

1. Can we get a flip chart markers - We don't want to erase the white board do want to continue outlining and discussed the evidence and its relevance.
2. We will need to end today by/before 5 pm - 2 jurors have medical care giving needs from 5 pm on.
3. If we can't agree today, would it be Monday (holiday?) or Tuesday when we come back?

(DE 65). After consideration with the parties, the court responded affirmatively to the first two questions, and responded to the third one that deliberations would continue if necessary on Tuesday in a signed writing delivered to the jury room.

         Just an hour and a half later, at approximately 2:30 p.m., another note was submitted from the jury, signed by the foreperson. This one returned to the theme of the question the foreperson had raised in the presence of the clerk the evening before. It read: "What is the procedure for acquiring an alternate juror if one juror needs to recuse themself?" (DE 66). During the court's brief discussion with the parties it was noted that one member of the jury was pregnant, raising prospect of apossible medical issue. It was agreed more information would be necessary in order to respond. The use of the word "recuse" rather than "excuse" was curious, the court noted.

         With consent of the parties, the court invited the jury foreperson to the courtroom to explain the circumstances surrounding any recusal. The foreperson indicated that the jury was deadlocked. The foreperson explained that "one juror [was] getting very emotional, " and she did not "see [the jury] coming to a position of agreement." (Tr. Day 4, DE 73, 22:13-21). In describing the emotional juror, the foreperson asked "how frank can I be?". (Id. at 22:14). The court reminded the foreperson not to disclose how the jury stood, but instead guided her to disclose if there was a health issue, to which she responded in the negative. "No, " she answered, "[i]t's just that this one juror is not going to change their mind. And the discussions become emotional. And the person - I don't see us coming to a position of agreement." (Id. at 22:18-21). She continued:

And one thought that some of the other jurors have brought up is there is an alternate. Is it reasonable, is it proper, is it even possible - you know, we, in front of the one person, we asked, you know, is this something that - you know, we know you feel strongly about this, is this something you would consider? Object to? How ...

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