United States District Court, S.D. New York
May 5, 2004.
United States of America -against- Martha Stewart and Peter Bacanovic, Defendants
The opinion of the court was delivered by: MIRIAM CEDARBAUM, Senior District Judge
Defendant Martha Stewart moves for a new trial pursuant to
Fed.R.Cr.P. 33 or, alternatively, an evidentiary hearing into alleged
juror misconduct. Her co-defendant, Peter Bacanovic, joins this
motion.*fn1 For the following reasons, the motion is denied.
Stewart and Bacanovic were indicted in June 2003 and charged with
conspiracy, making false statements to government officials, and
obstruction of an agency proceeding. Bacanovic was also charged with
perjury and making and using a false document, and Stewart with
Because the extraordinary publicity surrounding the case presaged difficulty in finding an unopinionated jury pool, a two-part
voir dire process was used. Several hundred jurors were
summoned to the courthouse to fill out a questionnaire that the parties
had jointly drafted. The Government and defendants then reviewed the
completed questionnaires. After challenges for cause, the remaining
prospective jurors returned to the courthouse for individual questioning.
Among many other areas of inquiry, the questionnaire sought to
determine each prospective juror's prior contact with the justice system.
One question asked whether the juror had ever appeared in court. Another
asked whether the juror, or someone close to the juror, had ever been a
victim of a crime, filed criminal charges, been sued by someone, or been
accused of wrongdoing on a job. Another question asked whether the juror
or a family member or close friend had ever been questioned by law
enforcement, accused of, charged with, or convicted of any crime.
Chappell Hartridge was among the prospective jurors who returned for
individual questioning. In his questionnaire, Hartridge explained that he
had appeared in court in a dispute with his landlord. He responded in the
negative to all of the other questions described above. Hartridge was
subsequently empaneled as Juror 8.
After a five-week trial, the jury convicted Stewart of all four of the counts against her,*fn2 and convicted Bacanovic of
four of the counts in which he was charged, acquitting him of one. In the
days following the return of the verdict, several members of the jury,
including Hartridge, spoke with the press concerning their experiences as
jurors in this case.
Defendants now move for a new trial pursuant to Fed.R.Cr.P. 33,
claiming that they were deprived of their right to a fair trial because
Hartridge deliberately concealed material information in his jury
I. Legal Standard
Unquestionably, it is the court's duty to ensure that every criminal
defendant receives a fair trial. An essential component of fairness is an
impartial jury, and voir dire serves to protect the defendant's
right to an impartial jury "by exposing possible biases, both known and
unknown, on the part of potential jurors. . . . The necessity of
truthful answers by prospective jurors if this process is to serve its
purpose is obvious." McDonough Power Equip., Inc. v. Greenwood,
464 U.S. 548, 554 (1984). However, a defendant who seeks a new trial based on allegations of
juror misconduct faces a very high hurdle. As the Supreme Court
explained, "full and frank discussion in the jury room, jurors'
willingness to return an unpopular verdict, and the community's trust in
a system that relies on the decisions of laypeople would all be
undermined by a barrage of postverdict scrutiny of juror conduct."
Tanner v. United States. 483 U.S. 107, 120-21 (1987).
Accordingly, "courts are, and should be, hesitant to haul jurors in after
they have reached a verdict in order to probe for potential instances of
bias, misconduct or extraneous influences." United States v.
Moon, 718 F.2d 1210, 1234 (2d Cir. 1983). Such inquiries are not
mandatory; rather, "a trial court is required to hold a post-trial jury
hearing only when reasonable grounds for investigation exist. Reasonable
grounds are present when there is clear, strong, substantial and
incontrovertible evidence, that a specific, nonspeculative impropriety
has occurred which could have prejudiced the trial of a defendant."
Id. (citation omitted). Were it otherwise, the policy of
restraint that governs postverdict inquiries into juror conduct could be
circumvented at the defendant's option, no matter how ill-founded or
farfetched the demand.
McDonough governs claims that a juror's failure to respond
accurately to voir dire questions jeopardized the fairness of a
defendant's trial. During juror questioning in McDonough
a personal injury suit arising from a lawnmower accident
prospective jurors were asked whether they or any of their family members
had ever suffered an injury that had resulted in disability or prolonged
pain and suffering. After the jury returned a verdict in favor of the
plaintiff, the defendant moved for a new trial, having learned that one
juror, who had answered that question in the negative, had a son who had
been injured by an exploding truck tire. The district court denied the
motion, and the Supreme Court agreed, noting that the juror apparently
believed that his son's injury did not fall within the category of
injuries that the question contemplated. See McDonough, 464
U.S. at 555. Recognizing that every defendant "is entitled to a fair
trial but not a perfect one, for there are no perfect trials,"
id. at 553 (quoting Brown v. United States,
411 U.S. 223, 231-32 (1973)), the Court set out a multi-part test to govern
the analysis of such motions:
[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.
Id. at 556. Accordingly, under the McDonough
test, a court must first find that a juror answered a question
dishonestly. The Second Circuit has noted that a "good faith failure to
respond, though mistaken, [does] not satisfy . . . the first prong of the test." United States v. Shaoul, 41 F.3d 811
815 (2d Cir. 1994) (citing McDonough, 464 U.S. at 555). The
court must then determine whether it would have granted a challenge for
cause based on a truthful answer. See United States v. Greer,
285 F.3d 158, 171 (2d Cir. 2002). Challenges for cause are generally
based on a finding of bias. See id. (citing United States
v. Torres. 128 F.3d 38, 43 (2d Cir. 1997)).
The difficulty of this showing is evident from the fact that no verdict
in the Second Circuit has been overturned on the basis of juror
nondisclosure under the McDonough test. In some cases,
defendants fail to satisfy the first prong of the test: showing that the
juror in controversy failed to answer a question honestly. See,
e.g., Shaoul, 41 F.3d at 816 (affirming the district court's denial
of the defendant's Rule 33 motion where the defendant conceded the
juror's good faith and the court found that the juror's distant familial
relationship with an Assistant United States Attorney did not require a
finding of implied bias). But even where a juror deliberately omitted or
misstated facts during voir dire, a new trial will not be
granted absent a finding that the juror's nondisclosure concealed some
bias or partiality that would have sustained a for-cause challenge. In
United States v. Langford, 990 F.2d 65 (2d Cir. 1993), for
example, the defendant learned after a guilty verdict had been returned
that a juror had deliberately concealed several arrests and criminal convictions. However, the district court found no
evidence that the juror lied from a desire to sit on the jury, or from
some prejudice against the defendant rather, she had simply
wished to avoid embarrassment and the possible public exposure of her
criminal history. The Second Circuit affirmed the district court's denial
of the defendant's motion. See id. at 69-70. In
Greer, a juror had failed to disclose during voir
dire that a close friend of the defendant's had contacted him prior
to jury selection and asked him to be a "sympathetic ear" on the jury.
The Second Circuit affirmed the district court's determination that
despite his failure to disclose, the juror demonstrated no bias that
would support a for-cause challenge. See Greer, 285 F.3d at
171-72. These cases demonstrate that a defendant seeking a new trial
because of juror nondisclosure must satisfy both prongs of the
McDonough test. See id. at 170; Shaoul, 41
F.3d at 816.
In only one case has the Second Circuit found grounds to remand a case
for an inquiry into possible juror nondisclosure. In United States
v. Colombo, 869 F.2d 149 (2d Cir. 1989), the defendant produced the
affidavit of a juror who stated that another juror confided that she had
deliberately refrained from disclosing the fact that her brother-in-law
was a government attorney because she wanted to remain on the panel. The
juror in controversy was also alleged to have told the affiant that a certain location, mentioned at trial as a meeting place for
defendant and his associates, was a "hang out for gangsters." See
id. at 150. The Second Circuit found that if this affidavit were
accurate, "the juror's motive in lying on the voir dire was
precisely to prevent defense counsel . . . from acting on information
the juror believed might lead to her dismissal from the case."
Id. at 151. In other words, an inference of bias was
permissibly drawn from the juror's stated wish to remain on the panel
because the information she withheld betrayed her partiality toward the
Government. After remand, the hearing revealed that the juror had made no
such statements and possessed no partiality toward the Government, and
the Second Circuit upheld the district court's denial of the defendant's
renewed motion. See United States v. Colombo, 909 F.2d 711, 713
(2d Cir. 1990).
II. Bases for Defendants' Motion
Defendants offer the following five allegations to support their claim
that Hartridge's questionnaire betrays a pattern of deliberate omissions
that concealed his bias against them: (1) Hartridge was once arrested and
arraigned for assault; (2) Hartridge and several of his family members
have been sued; (3) Hartridge's son was convicted of attempted robbery;
(4) Hartridge was accused of embezzlement while volunteering as treasurer
of a Little League; and (5) Hartridge was terminated from a job for
It should be pointed out that many of the allegations offered to
support these claims amount to little more than hearsay, speculation, and
in one instance, vague allegations made by a person who refused to
identify himself. However, each of defendants' claims is examined in
A. Hartridge's Arrest
Defendants contend that Hartridge deliberately failed to disclose that
he had been arrested and arraigned for assaulting his former girlfriend.
Defendants submit an affidavit from the girlfriend, Gail Outlaw, who
describes the incident and states that she later dropped the charges.
Defendants argue that this information demonstrates that Hartridge lied
when he answered "no" to the following questions: "Have you or has anyone
close to you ever: Been a victim of a crime? [or] [m]ade criminal charges
against someone?" and "Have you or has a family member or close friend
ever been questioned by law enforcement, accused of, charged with, or
convicted of any crime, or been the subject of a criminal investigation,
other than a minor traffic violation?" In addition, defendants argue that
Hartridge lied when he answered the question, "Have you ever been in
court before, other than for a minor traffic violation?" by disclosing only a dispute
with his landlord.
Even assuming that Outlaw's affidavit accurately describes Hartridge's
criminal history, it is not clear that defendants have satisfied the
first prong of the McDonough test. As an initial matter, there
is ambiguity in each of the questions that defendants highlight. The
Supreme Court has recognized that "jurors are not necessarily experts in
English usage. Called as they are from all walks of life, many may be
uncertain as to the meaning of terms which are relatively easily
understood by lawyers and judges." McDonough, 464 U.S. at 555.
Would a reasonable juror necessarily consider an ex-girlfriend to be
"someone close to him?" Does a question that does not ask specifically
about arrests and arraignments require disclosure of those things when
the charges were later dropped? The parties in this case had the
opportunity to draft the questions exactly as they wanted them. They
cannot now demand a new trial because a juror failed to place the
broadest possible construction on those questions.
The Government points out that Hartridge may have believed that he was
not obliged to disclose the arraignment and dropped charges. New York
Criminal Procedure Law § 160.60 provides that upon the dismissal of a
criminal action against a defendant,
the arrest and prosecution shall be deemed a
nullity and the accused shall be restored, in
contemplation of law, to the status he occupied before the
arrest and prosecution. . . . Except where
specifically required or permitted by statute or
upon specific authorization of a superior court,
no such person shall be required to divulge
information pertaining to the arrest or
Because his record was sealed and the charge dismissed, Hartridge
may have understood that he was under no obligation to disclose the
arrest on the questionnaire.*fn3
If so, he did not answer the
But even if Hartridge deliberately concealed his arrest and
arraignment, defendants have not shown that these facts would have
provided a sufficient basis for a challenge for cause. Defendants have
cited no authority for the proposition that a prospective juror who has
been arrested but not convicted of a crime faces a per se bar
to jury service in a case involving entirely unrelated crimes. Indeed,
during voir dire, Stewart argued vigorously against the
Government's challenge to a prospective juror who failed to disclose that
she had been the target of a securities fraud investigation and had been
questioned by the United States Attorney's Office and the Securities and
Exchange Commission. Defendants argue instead that because other prospective jurors with
criminal histories were successfully challenged, Hartridge would have
been excused had his criminal background been revealed. However, as the
Government points out, those for-cause challenges resulted from the
parties' agreement, not from the court's analysis of each challenged
juror's ability to be impartial. The question now is whether Hartridge's
omission reveals a bias sufficient to support a for-cause challenge.
See Greer, 285 F.3d at 171; Torres. 128 F.3d at 43.
In responding to that issue, defendants characterize the assault charge
as a "gender-related incident" that permits an inference of gender bias.
Essentially, defendants ask this court to presume that Hartridge is
guilty of the assault despite the fact that the charges were dropped.
Even if that presumption of guilt were permissible, the fact that
Hartridge assaulted his girlfriend does not support a rational inference
that he would contrive to be empaneled on this jury and vote to convict
both defendants because one was a woman.
Defendants make two additional arguments concerning Hartridge's bias,
which they rely on for all of their claims of prejudicial nondisclosure.
First, they contend that Hartridge made post-trial statements to various
news organizations that demonstrate a class bias and a desire to scapegoat Stewart.*fn4
They claim that the court can infer from the substance and frequency of
those comments, and from a hearsay allegation that Hartridge attempted to
receive compensation for one media appearance, that his bias and his
impermissible agenda motivated him to lie about the arrest and other
incidents in his past in order to remain on the jury panel. Second,
defendants argue that evidence that a juror lied out of a desire to be
empaneled is sufficient to support an inference of bias.
Even if these post-verdict statements may be considered, they do not
satisfy prong two of the McDonough test. First, and most
importantly, they do not show that Hartridge was biased against Stewart,
either before or after the trial. That Hartridge spoke of the verdict's
broader message does not reveal an agenda to punish the wealthy and powerful he was very
likely responding to questions that invited him to speculate about the
impact of the verdict. In addition, to read Hartridge's use of the
phrases "little guys" and "bigwigs" as evincing class bias places far too
great a semantic burden on these commonly used shorthand phrases.
Hartridge's suggestion that the verdict may persuade powerful people to
abide by the law is an accurate characterization of the general deterrent
effect that Stewart's conviction may have, not evidence of a long-held
personal grudge against Stewart. And Hartridge's remarks concerning how
ordinary investors may have greater faith in the stock market as a result
of this verdict do not reveal that he prejudged the case. They reveal
that Hartridge understood that Stewart obstructed an investigation whose
purpose was to determine whether the laws that ensure the integrity of
the securities market had been violated, and that investors might take
heart in knowing that such investigations are prosecuted vigorously.
Nor does Hartridge's willingness to be interviewed in the days
following the verdict a trait shared by half of the jurors
support an inference that he was biased against defendants.
Hartridge would have garnered the same amount of media attention after a
verdict of acquittal. To the extent that Hartridge's comments reveal a negative attitude
toward Stewart, it is important to recognize that these comments came
after a trial during which the Government presented credible evidence
sufficient to persuade the jury beyond a reasonable doubt that she
committed the crimes of which she was convicted. In other words,
defendants have not offered any evidence that Hartridge possessed a
negative attitude toward Stewart before he heard the evidence
presented in this case.
Defendants also make the related argument that Hartridge's media
appearances, and his unsubstantiated attempt to receive compensation for
one of them, betray a desire to sit on the jury and support an inference
that he lied on his questionnaire in order to fulfill that desire. They
cite Colombo for the proposition that evidence that a juror
deliberately omitted information during voir dire in an attempt
to remain on a jury creates an inference of partiality sufficient to
justify a new trial. As noted above, Hartridge's post-trial statements do
not give rise to an inference that he desired to be empaneled on the
jury. Furthermore, in Colombo, the defendant did not seek to
prove the juror's bias by reference to external statements; rather, the
substance of the undisclosed information gave rise to the inference that
the juror was biased against the defendant. See Greer, 285 F.3d
at 172-73 ("[I]n Colombo I, it was not simply that the lies in
question were deliberate, but that the deliberateness of the particular lies evidenced
partiality." (emphasis in original)). Colombo does not
hold that deliberate omissions that are prompted by a desire to serve,
but which do not show bias or prejudice, should overturn a jury verdict.
Such a holding would be at odds with McDonough's requirement that the
undisclosed information suffice to support a for-cause challenge.
Subsequent Second Circuit opinions suggest that this would be an overly
broad reading of Colombo. See, e.g., Greer, 285 F.3d at 173
("Colombo I did not eliminate the second prong of the McDonough
test. It simply held that a lie which simultaneously demonstrates both
dishonesty and partiality on the part of the juror will satisfy both
prongs of the test.").
Defendants also rely heavily on a Ninth Circuit case, Dyer v.
Calderon, 151 F.3d 970 (9th Cir. 1998) (en banc). to argue that bias
may be inferred when a juror lies in order to remain on a jury panel. In
that case, the court reversed the lower court's denial of a petition for
a writ of habeas corpus that was based on allegations of prejudicial
juror nondisclosure during voir dire. While the Ninth Circuit
does discuss the troubling implications of jurors' lying in order to
remain on a jury for any reason, see id. at 982, the substance
of the nondisclosure found in that case clearly showed the juror's bias
against the petitioner, see id. (noting that the juror had
failed to disclose that her brother had been murdered in a way similar to
the way the petitioner was accused of killing his victims). Such is not the
For these reasons, defendants have failed to show that Hartridge's
nondisclosure of his alleged arrest and arraignment concealed a bias
against them that would have supported a for-cause challenge.
Accordingly, defendants cannot use this nondisclosure to support their
motion for a new trial.
B. Hartridge's Court Appearances and Lawsuits
Defendants also assert that Hartridge failed to disclose that he and
members of his family had been sued and that he had appeared in court
several times. The grounds for these allegations are several judgments
entered against Hartridge and Hartridge's relatives in the New York City
Civil Court. Defendants uncovered the records of two judgments filed
against Hartridge in 1990 and 1991, and more recent judgments filed
against his wife and son. Another default judgment, for $11,393, was
filed against Hartridge and his wife in 1997. According to defendants,
these judgments and other proceedings demonstrate that Hartridge lied
when he answered "no" to the question, "Have you or has anyone close to
you ever . . . [b]een sued by someone?" and when he indicated, in
answer to the question, "Have you ever been in court before, other than
for a minor traffic violation?" that he had been in court in a dispute with his
Several of these claims are of dubious significance with respect to
Hartridge's voir dire disclosures. Most of the judgments were
for less than $3,500, and several are over a decade old, suggesting that
Hartridge may have forgotten about them. Several others are default
judgments, which indicates that Hartridge did not appear in court in
connection with them. Defendants have not produced any evidence that
Hartridge knew about the judgments against his family members.
The only questionable omission is the 1997 judgment for $11,393 against
Hartridge and his wife. Assuming Hartridge had notice of this suit, the
size of the judgment and its comparatively recent date suggest that he
may have deliberately omitted it when he stated that he had never been
sued. But defendants offer no explanation as to how the fact that a court
has entered a judgment against a prospective juror supports an inference
that the individual would be biased against defendants in a completely
unrelated case. This information would not have supported a for-cause
challenge, and accordingly cannot support defendants' Rule 33 motion. C. Hartridge's Son's Conviction for Attempted Robbery
Defendants also point to Hartridge's failure to disclose that his son,
Maurice Hartridge, was convicted of attempted robbery in the second
degree in 2000. Defendants submit documentation of Maurice Hartridge's
arrest, indictment, and sentence.
Defendants have raised a serious question concerning whether Hartridge
deliberately omitted information concerning his son's arrest when he
answered "no" to the question: "Have you or has a family member or close
friend ever been questioned by law enforcement, accused of, charged with,
or convicted of any crime, or been the subject of a criminal
investigation, other than a minor traffic violation?" However, defendants
have still failed to demonstrate how that information would have
supported a for-cause challenge of Hartridge. It is difficult to see how
information concerning Hartridge's son's conviction for an attempted
robbery a crime unrelated to the crimes charged in this case
could justify an inference that Hartridge would be biased against
these defendants. If anything, a prospective juror with a family member
who had been convicted of a crime would more likely be considered biased
in favor of criminal defendants. At any rate, defendants offer
no authority for the proposition that this conviction would support a
for-cause challenge. Defendants have failed to satisfy the second prong of
the McDonough test with respect to this allegation.
D. Defendants' Remaining Allegations
Defendants also claim that Hartridge embezzled money from the
Kingsbridge Little League ("KLL") during his tenure as volunteer
treasurer of that organization in the mid-1990s. According to defendants,
this information reveals that Hartridge lied when he answered "no" to the
question: "Have you or has anyone close to you ever . . . [b]een
accused of wrongdoing on a job?" Defendants concede that Hartridge served
as a volunteer treasurer, but nevertheless argue that this is the type of
"job" the questionnaire contemplates.
Defendants have not demonstrated that Hartridge failed to answer this
question honestly. The relevant question asks about accusations of
wrongdoing on a job. The common understanding of the word "job" is a
position for which a person receives remuneration. A volunteer position
is therefore not a job. "Jurors cannot be faulted if they fail to
disclose information about which they were not asked." Crawford v.
Greiner, No. 02 Civ. 7636 (NRB), 2003 WL 21714932, at *3 (S.D.N.Y.
July 23, 2003). Furthermore, defendants' evidence consists almost
entirely of affidavits containing hearsay statements from individuals
with no personal knowledge of the facts. Several of these affidavits note that the KLL board declined to take action in
response to Hartridge's supposed improprieties. Accordingly, even if the
allegations against Hartridge had merit, it is not clear that he was
formally "accused" of anything.
Defendants also allege that Hartridge may have been fired from his job
at Citibank for abusing drugs or for improper expense accounting.
According to defendants, if Hartridge was indeed terminated for one of
these reasons, his answer to the question noted above was dishonest.
Defendants' support for this allegation is wholly inadequate. They rely
in part on the statements of a former KLL official who appears to be
repeating rumors, and who has no personal knowledge of matters relating
to Hartridge's employment at Citibank. They also rely on an anonymous
telephone call received by Stewart's lawyer from an individual purporting
to work for Citibank. Defendants do not explain how such a tenuous and
unverifiable source of information could possibly justify further
inquiry. As the Second Circuit pointed out, in affirming the denial of an
evidentiary hearing with respect to allegations that jurors had received
extraneous prejudicial information, to overcome the traditional
reluctance to engage in postverdict scrutiny of juror conduct, "there
must be `clear evidence', `strong evidence', `clear and incontrovertible
evidence', `substantial if not wholly conclusive evidence.'" United
States v. King, 576 F.2d 432, 438 (2d Cir. 1978) (quoting United States v. Dioguardi, 492 F.2d 70,
78, 79, 80 (2d Cir. 1974)). Gossip and anonymous tips do not satisfy this
III. Defendants' Request for an Evidentiary Hearing
Defendants have presented evidence that Hartridge failed to disclose
information regarding a lawsuit against him and his son's criminal
conviction. The remainder of their allegations are not sufficiently
concrete and nonspeculative to constitute a "pattern of nondisclosure" or
to raise an inference that any wrongdoing occurred.
Although defendants have satisfied the first prong of the
McDonough test with regard to two of their allegations, nothing
they have submitted shows that Hartridge was biased or prejudiced against
them before the trial started, or that he had prejudged the evidence.
Examined closely, Hartridge's comments simply do not betray the prejudice
that defendants attribute to him.
Defendants speak vaguely of an evidentiary hearing, but they have not
offered a single, nonspeculative question, the answer to which would show
bias or prejudice on the part of Hartridge. Most importantly, an
evidentiary hearing cannot help defendants satisfy the second prong of
the McDonough inquiry, because none of the information
Hartridge is accused of withholding would give rise to an inference of
bias, either for or against defendants, that would support a for-cause challenge. Furthermore, to permit an
inquiry based on such scant evidence in a case that continues to receive
an unprecedented level of publicity would do serious damage to the
policies that justify limitations on postverdict juror scrutiny.*fn5
Defendants have failed to demonstrate that Hartridge's purported
nondisclosures justify vacating their convictions and granting a new
trial. This is not to condone deliberate nondisclosure during
voir dire, for it is extremely unfortunate that a prospective
juror would approach this important phase of a trial with a lack of
candor. But the law is clear that lack of candor, in the absence of
evidence of bias, does not undermine the fairness of defendants' trial.
Accordingly, defendants' motion is denied.