The opinion of the court was delivered by: Honorable Richard J. Arcara Chief Judge United States District Court
Currently before the Court is defendant James Charles Kopp's motion for a new trial, pursuant to Rule 33 of the Federal Rules of Criminal Procedure. The defendant asserts that a new trial is warranted because the jury's verdict was not unanimous. First, defendant asserts that Juror #4's hesitation and emotional state when responding during the polling of the jury established that she did not agree with the verdict and that the Court should therefore have taken remedial action at that time. Second, the defendant alleges, based on statements made by Juror #4 following the trial, that Juror #4 was intimidated by other jurors. In the alternative, the defendant seeks an evidentiary hearing at which to question Juror #4 and other jurors regarding the jury's deliberations.
For the reasons stated, the Court denies defendant's motion for a new trial.
On January 25, 2007, following a seven-day trial, the jury advised the Court that it had reached a unanimous verdict. The verdict was guilty as to both counts of the indictment. The defendant requested that the jury be polled. The Court directed the courtroom deputy to poll the jury. When polled, Juror #4 had difficulty providing an audible answer. The Court advised the juror, "Ma'am, I can't hear you. You have to answer the question." Item No. 296 at 6. The juror then answered "yes," her verdict agreed with the verdict reported by the foreperson. Id. The rest of the jurors also answered that their individual verdicts agreed with the verdict reported by the foreperson, and the Court accepted the unanimous verdict.
Following the polling and dismissal of the jury, the defendant made an observation on the record about the manner in which he perceived Juror #4 answered the poll. He stated, "juror 4 has taken quite a while before she answered, and her answer was barely audible and she began weeping and didn't cease weeping until she left the room." Id. at 9. He also stated that "juror 7, the foreperson, basically began weeping at the end of the polling and she didn't cease weeping until she left the room." Id.
Following discharge, Juror #4 contacted stand-by counsel and had a conversation with him regarding the verdict. Juror #4 also was interviewed by Buffalo News reporter Michael Bebee for an article published February 5, 2007.
In addition, Juror #4 wrote several of the other jurors a letter. Finally, on May 3, 2007, the Court received a letter from Juror #4.*fn1
Juror #4, in the news article and in her letters, states that she is upset over the "control" she felt under from the law and the lack of discussion by the jury on some points. She does not indicate that she was influenced or affected by any external information or source, or that she was in anyway physically threatened by any of her fellow jurors or by anyone else during the deliberations. Rather, Juror #4 complains that she "had to follow the law," and could not consider a justification defense. She also complains that the jury answered the questions on the verdict form with little discussion.
In Andres v. United States, 333 U.S. 740, 748 (1948), the Supreme Court held that "[u]nanimity in jury verdicts is required where the Sixth and Seventh Amendments apply." Rule 31(a) of the Federal Rules of Criminal Procedure provides that "[t]he verdict shall be unanimous." Rule 31(d) provides for polling of the jury to ensure that each member agrees with the verdict and to discover possible coercion. United States v. Spitz, 696 F.2d 916, 917 (11th Cir. 1983) (citations omitted). The method of conducting the jury poll is left to the judge's discretion. United States v. Gambino, 951 F.2d 498, 501 (2d Cir. 1991) (citations omitted). If a juror's response during polling is ambiguous or indicates uncertainty, then the court must take remedial action. United States v. Morris, 612 F.2d 483, 489 (10th Cir. 1979).
The record in this case supports a finding that the verdict was unanimous. As stated above, the transcript states that when Juror #4 was asked whether her verdict was the same as the verdict reported by the foreperson, she responded, "yes," an unambiguous ...