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United States of America v. Robert E. Mcdonald

November 22, 2011

UNITED STATES OF AMERICA,
v.
ROBERT E. MCDONALD,
DEFENDANT.



The opinion of the court was delivered by: John G. Koeltl, District Judge:

OPINION AND ORDER

On July 6, 2011, the defendant, Robert McDonald ("McDonald") was convicted by a jury of one count of securities fraud in violation of 15 U.S.C. §§ 78j (b) and 78ff, 17 C.F.R. § 240.10b-5, and 18 U.S.C. § 2; one count of wire fraud in violation of 18 U.S.C. §§ 1343 and 2; and one count of mail fraud in violation of 18 U.S.C. §§ 1341 and 2. McDonald represented himself with the assistance of standby counsel. McDonald timely filed the present motion for a new trial under Rule 33 of the Federal Rules of Criminal Procedure. He argues that it was improper and coercive for the Court to instruct the jury "to continue to deliberate to see whether [the jury] can reach a verdict" after a jury poll disclosed a non-unanimous jury. For the reasons set forth below, McDonald's motion is denied.

I.

Rule 33 of the Federal Rules of Criminal Procedure states that the trial court may grant a defendant's motion for a new trial "if the interest of justice so requires." Fed. R. Crim. P. 33(a). Rule 33 gives district courts "broad discretion . . . to set aside a jury verdict and order a new trial to avert a perceived miscarriage of justice." United States v. Ferguson, 246 F.3d 129, 133 (2d Cir. 2001) (quoting United States v. Sanchez, 969 F.2d 1409, 1413 (2d Cir. 1992)). "Because motions for a new trial are disfavored in this Circuit the standard for granting such a motion is strict." United States v. Gambino, 59 F.3d 353, 364 (2d Cir. 1995); United States v. Sattar, 395 F. Supp. 2d 66, 72 (S.D.N.Y. 2005). A district court therefore "must exercise the Rule 33 authority 'sparingly' and in 'the most extraordinary circumstances.'" Ferguson, 246 F.3d at 134 (quoting Sanchez, 969 F.2d at 1414). In short, "[i]t is only when it appears that an injustice has been done that there is a need for a new trial 'in the interest of justice.'" Sanchez, 969 F.2d at 1414.

II.

The following facts are undisputed, unless otherwise indicated.

On the morning of July 5th, 2011, the Government and McDonald delivered their closing arguments to the jury in McDonald's trial for securities fraud, wire fraud, and mail fraud. (Trial Tr. 1212-95.) That afternoon, this Court charged the jury. In the course of those instructions, the Court explained to the jury that:

Each juror is entitled to his or her own opinion, but you are required to exchange views with your fellow jurors. This is the very essence of jury deliberation. It is your duty to discuss the evidence. If you have a point of view, and after reasoning with other jurors it appears that your own judgment is open to question, then of course you should not hesitate in yielding your original point of view if you are convinced that the opposite point of view is really one that satisfies your judgment and conscience. However, you are not to give up a point of view that you conscientiously believe in simply because you are outnumbered or outweighed. You should vote with the others only if you are convinced on the evidence and the facts and the law that is the correct way to decide the case. (Trial Tr. 1358.)

The Court also charged the jury that "[y]our verdict must be by a unanimous vote of all of you." (Trial Tr. at 1359; see also Trial Tr. at 1360 ("I remind you that your verdict must be unanimous.").) The Court further charged the jury on how to send the Court notes, if needed; how to fill out the verdict sheet; and how to inform the Court that the jury had reached a verdict. (Trial Tr. 1358-1360.) The Court "stress[ed] that no note should give me any indication on any disputed issue or on your verdict." (Trial Tr. 1359.) The Court explained that when the jury reached a verdict, all of the jurors should sign the verdict sheet. (Trial Tr. 1360.) At 4:15 p.m. that afternoon, the jury retired to deliberate. (Trial Tr. 1373.) At 6:15 p.m., the jury sent the Court a note requesting to stop deliberation for the day and continue the next morning, and the Court granted the request. (Trial Tr. 1384-85; Court Ex. 9.)

The next day, July 6, 2011, at approximately 9:30 a.m., the jury resumed deliberations. (Trial Tr. 1384, 139; Court Ex. 10.) At 11:15 a.m., the Court received a note from the jury stating that "[w]e have reached a verdict on all counts." (Trial Tr. 1398; Court Ex. 11.) The Court then called the jury into the courtroom, and asked the foreperson if the jury had reached a verdict. (Trial Tr. 1399-1400.) The foreperson responded that they had. (Trial Tr. 1400.) The Court then received the jury's written verdict sheet, and noted that it was undated. (Trial Tr. 1400.) At a side bar conference, the Court told the Government, McDonald, and McDonald's standby counsel that it would "send the jurors back and have them date the verdict sheet in the jury room," and the parties agreed. (Trial Tr. 1401.) The Court told the jury that it was "send[ing] you back to the jury room just so you could look at the verdict sheet again and date it." (Trial Tr. 1402.)

When the jury indicated it was ready with the verdict sheet, the Court called the jury back into the courtroom.

(Trial Tr. 1402.) The foreperson then told the Court that the jury had reached a verdict, and passed the verdict sheet to the Court's deputy clerk. (Trial Tr. 1403.) The foreperson then announced, in response to successive questions by the deputy clerk, that the jury had found McDonald guilty on each of the three counts of the indictment. (Trial Tr. 1403.) The verdict sheet, signed by all 12 jurors, reflected a unanimous verdict of guilty on each of the three counts. (Court Ex. 12 (verdict sheet); see also Trial Tr. 1408).)

On its own motion, the Court then had the jury polled. The deputy clerk recited to the jury the verdict, as expressed by the foreperson and the verdict sheet-guilty on all three counts of the indictment-and then asked each individual juror if that was the juror's verdict. (Trial Tr. 1403-04.) The first ten jurors polled affirmed that this was their verdict. (Trial Tr. 1404-05.) However, the 11th juror polled, when asked if guilty on each of the three counts was her verdict, responded, "[n]o." (Trial Tr. 1405.) The Court said "[a]ll right" and immediately called a side bar conference without polling the 12th juror. (Trial Tr. 1405.)

At the side bar conference, the Court told the Government, McDonald, and McDonald's standby counsel that it would "send the jurors back to the jury room because they've not reached a unanimous verdict. All right?" (Trial Tr. 1406.) The Government and McDonald's standby counsel both responded, "[y]es." The Court also told the parties that it would "tell the jurors that they should deliberate in light Of all my instructions to see if they can reach a unanimous verdict," and that it would provide them with another verdict form because the current verdict form was no longer good. (Trial Tr. 1406.) McDonald said, "[a]greed" and then his standby counsel, and the Government, also said "[y]es." (Trial Tr. 1406.) The Court also said that the previously returned verdict sheet would be kept and not returned to the jury room. McDonald, his standby counsel, and the Government all agreed. (Trial Tr. 1406.)

The Court then told the jury the following:

Ladies and gentlemen, I will send you back to continue to deliberate to see whether you can reach a unanimous verdict, in light of all of the instructions that I have given you. And I'll very shortly send back another ...


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