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June 26, 2002


The opinion of the court was delivered by: McMAHON, United States District Judge.


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 yields?

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 P.M.

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, fearful.

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 defendants.

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.
JUROR #2: By just one.
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 the microphone.
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.
JUROR #2: In —
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.
THE COURT: That's a big question. That's a big question. Obviously, if I were to instruct you as the Judge that we've resumed deliberations, maybe today, maybe Monday, to give people a chance to cool off a little bit, and that everybody is supposed to go in and do their best and ...

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