The opinion of the court was delivered by: McMAHON, United States District Judge.
DECISION GRANTING DEFENDANTS' MOTIONS FOR MISTRIAL AND DENYING
GOVERNMENT'S MOTION FOR RULE 23(B) DISCHARGE OF JUROR
Fed.R.Crim.P. 23(b) permits a Court to discharge a deliberating juror
for just cause when the juror becomes unable to perform her duties as a
juror by reason of illness or incapacity — a term that has been
broadly defined to include psychological inability to go forward with
deliberations. United States v. Thomas, 116 F.3d 606 (2d Cir. 1997),
prohibits a Court from discharging a deliberating juror if the record
evidence reveals any possibility that the request to discharge the juror
stems from her views of the merits of the case. The question raised by
the instant motions is: what to do when the reason a deliberating juror
can no longer perform her duty is due to the pressures of being in the
minority? Put otherwise, when Rule 23(b) intersects with Thomas, which
This case involves a seventy-three count indictment that was originally
brought against fourteen defendants, all of whom are members of the
Hasidic Jewish community, most of whom live in or near the Village of
Kiryas Joel. It charges the defendants with a variety of frauds (mail,
wire and bank) involving Ponzi schemes, phony bank deposits, insurance
policies issued in false names, and hundreds of dummy tax filings claiming
earned income credits. The principal defendants (including the two
defendants who are on trial) are additionally charged with violating the
Racketeering Influenced and Corrupt Organization Act (RICO),
18 U.S.C. § 1961, by their participation in what the Government
characterizes as "The Samet Group."
The case took seven weeks to try. Jury selection was done using
questionnaires, given the length of the trial, the nature of the issues,
and the notoriety of the community.*fn1 After reviewing 272
questionnaires, and conducting individual voir dire of over 120 venire
persons, a total of 12 jurors and 6 alternates were empanelled.
Presentation of evidence, summations and the charge took another six
weeks. The jury commenced deliberations on June 10, 2002, at about 3:30
The world view in the courtroom changed radically on the morning of
Friday, June 14, which would have been the fifth day of deliberations. At
8:45 A.M., Robert Rogers, the Deputy Chief Clerk of the Court for the
White Plains Division delivered the news that Juror #2 had called,
announced that she could not deliberate any more and planned not to come
to Court. He had directed her to report at 9:45 A.M. Shortly thereafter,
when my senior law clerk (who functions as my Deputy Clerk in criminal
cases) arrived, he found three messages from Juror #2 on his phone mail.
Two had been left the previous evening; the third a few moments earlier.
All were in a semi-hysterical tone of voice — teary, anxious,
The first message was: "Hi, Jim. This is [Juror #2]. Could you please
get one of the alternates to replace me? I'm being verbally abused. And
the way I feel right now, for me to run out, I'm just going to vote the
same as everyone else, just to be done with this. I can't sleep. I've
been living on kaopectate since the trial started. My nerves just can't
take it anymore. Please call me. The number is [xxx-xxx-xxxx]. The cell
phone number's [xxx-xxx-xxxx]. Thank you. And please, if I have to, if I
can't get out of this, please don't mention this to the jury members,
because that's just going to make it worse. Please. Thank you. Bye."
The second message said: "Hi, Jim. It's [Juror #2] again. I just want
to let you know I don't plan on coming tomorrow morning. I'm physically
sick to my stomach. I no longer feel that I can be fair. Please call me
as soon as you can at home. The number is [xxx-xxx-xxxx]. Thank you."
And the third message said: "Jim, hi. It's [Juror #2] again. It's a
quarter to 9:00. I'm still trying to reach you. I spoke to Robert
Rogers. He told me that I need to come in. I'm sick to my stomach. But if
you get this message, maybe you can try to call me in the car. I'm going
to try to make my way in. I'm obviously going to be very late. The cell
phone number is [xxx-xxx-xxxx]. I just — there's no point in me
being on this trial anymore, because I feel like I can no longer be
fair. I don't feel like I can voice an opinion. If I have any questions,
I just — I got to get out. I can't handle it anymore. Thank you."
As soon as counsel and the defendants had gathered, the messages were
played for them. The Government, noting the distress in Juror #2's voice,
suggested that a careful and limited inquiry be conducted in order to
determine whether she was capable of deliberation. If she was not, the
Government asked that the deliberation proceed with eleven jurors.
Defendant Samet's counsel argued that Juror #2 should only be removed
from the jury if it is absolutely necessary and that empanelling an
alternate juror should not be considered. Both defendant Samet's counsel
and defendant Hollender's counsel suggested that it might be advisable to
let the jury leave early and reconvene on Monday, in order to allow for a
cooling-off period. (6/14/02 Tr. at 3569-3578).
The Court had previously arranged to segregate Juror #2 from her fellow
jurors upon her arrival. After consultations with counsel were
concluded, I voir dired her in the presence of counsel and the
The first voir dire went as follows:
THE COURT: Hi, [Juror #2]. I'm going to ask you to
speak up. Okay? We've all heard the
messages that you left for Jim. Thanks
for leaving them. As a result, I was
able to play them for everybody. And we
also got the note that Robert Rogers
sent up after he spoke to you on the
telephone. And I am so sorry, and we're
all very sorry, that you are feeling so
poorly and so upset. I need to ask you
some questions. Okay? I have to caution
you about some things. You remember,
when I instructed the whole jury I don't
want to know what's going on in the
deliberations? I need to reinforce
that. It's very important that we're
not supposed to invade that jury room.
So it's very important that you
not tell me about what is the nature
of the deliberations or what the vote
is, or anything else like that. But I
want to ask you about, not about
counts and votes and stuff like that,
but about how you feel you're being
treated and how it's affecting your
ability to proceed as a deliberating juror.
That's what the issue is. So I gather
that you're feeling a little abused.
THE COURT: By just one person?
JUROR #2: Yes. Everybody is being nice. It's hard
for me to say without —
THE COURT: I hate to do this. But could we put you
in the witness box, just so you'll have
JUROR #2: I'm just not sure how to answer without
saying what's going on in there.
THE COURT: I understand. It's tricky. It's tricky.
You say there is one person who is being
abusive to you.
JUROR #2: Yes. I just don't feel that I can voice
my opinions, or if I have a question or a
doubt, if I want to vote one way or the
other, everyone is upset, because I just
don't — oh, how do I say this? I
just feel like I'm open-minded.
THE COURT: I want everyone to be open-minded.
JUROR #2: I don't believe that's the case. Well, I
can't say that.
THE COURT: This is the time of the case when people
actually do form opinions. So it's not
open-minded in the same sense of being
open-minded during the trial. People are
deliberating, people are, in fact
MR. BURSTYN: You're Honor, I believe you're doing —
THE COURT: Mr. Burstyn, okay. But what I'm trying to
figure out is whether I've got —
without the details of what people are
talking about, whether I've just got
folks who are tired and testy because
this has been going on for several days,
or whether you're being treated
wrongfully. I mean, there's a difference
between those two things.
JUROR #2: I think everyone is focused in one
direction, one direction only.
THE COURT: Okay. Let me ask you a couple of other
questions. On the telephone, you
indicated that you were really upset,
that you were on kaopectate.
JUROR #2: Yes, I'm sick every day. My nerves, the
stress. It's just — I don't feel I
can be fair anymore. I'd just vote as
everyone else is.