United States District Court, W.D. New York
DECISION AND ORDER
ELIZABETH A. WOLFORD United States District Judge.
Matthew Nix ("Nix") and Earl McCoy
("McCoy") (collectively, "Defendants")
were charged in a Third Superseding Indictment returned on
January 5, 2017, with 12 counts alleging violations of the
Hobbs Act, 18 U.S.C. § 1951(a), and related firearms and
narcotics charges, all in connection with a spree of violent
home invasions during 2014. (Dkt. 165). Trial commenced on
February 13, 2017, and concluded on March 17, 2017, with the
jury convicting Defendants on all 12 counts. (Dkt. 229; Dkt.
266; Dkt. 267). Sentencing is presently scheduled for
September 8, 2017. (Dkt. 350).
McCoy aggressively defended the case before and during trial,
and the intensity of that defense only continued after the
jury returned its verdict. Defendants' post-verdict activities
spawned further hearings, appearances, and motion practice,
with Defendants attacking various aspects of the trial, from
the jury selection to the jury instructions. Among the issues
raised by Defendants was that one of the jurors in this
case-"Juror No. 3"-was a convicted felon who failed
to disclose his criminal history during jury selection. Juror
No. 3's felon status was not discovered until,
post-verdict, counsel for Nix uncovered this information
based on a "hunch." (Dkt. 327 at 6-9). Arguing that
Juror No. 3's felon status tainted the impartiality of
the jury, Defendants have filed motions pursuant to Fed. R.
Crim. P. 33 seeking a new trial. (Dkt. 286; Dkt. 289).
had a fundamental constitutional right to a fair trial, and
this Court is responsible for ensuring that they were
afforded that right. Central to that right is the Sixth
Amendment's guarantee to a trial by an impartial jury.
See also United States v. Nelson, 277 F.3d 164, 206
(2d Cir. 2002) ("[Q]uite apart from offending the Sixth
Amendment, trying an accused before a jury that is actually
biased violates even the most minimal standards of due
process."). "An impartial jury is one in which all
of its members, not just most of them, are free of interest
and bias." United States v. Parse, 789F.3d83,
111 (2d Cir. 2015).
in the words of the Supreme Court, Defendants were
"entitled to a fair trial but not a perfect one, for
there are no perfect trials." McDonough Power
Equipment, Inc. v. Greenwood, 464 U.S. 548, 553 (1984)
(internal quotation marks and citation omitted). In other
words, although Defendants were unquestionably entitled to an
impartial jury, they may not, post-verdict, challenge the
selection of jurors who, in hindsight and with additional
information, Defendants wished had not been selected. After a
thorough consideration of the evidence and the parties'
arguments, the Court concludes that the presence of Juror No.
3 did not destroy the impartiality of the jury in this case.
Juror No. 3, a convicted felon who was not qualified to
serve, admittedly blundered his way onto the jury-but he did
not smuggle his way onto the jury through intentional deceit.
As a result, Defendants are not entitled to a new trial, and,
for the reasons discussed below, the motions pursuant to Fed.
R. Crim. P. 33 (Dkt. 286; Dkt. 289) based upon Juror No.
3's alleged bias are denied.
Jury Selection-February 13, 2017
selection occurred on February 13, 2017. (See Dkt.
328). From a venire of 83, the Court sat a panel of 36
prospective jurors for the proposed 16-member jury (12 jurors
and 4 alternates). Prospective jurors were excused for cause
and replaced from the venire as the Court questioned the
panel of prospective jurors. Each prospective juror had
completed a questionnaire mailed to him or her in advance by
the Clerk's Office. The questionnaire asked, among other
things, for information about prior felony
No. 3, an African American male, was the sixth prospective
juror called by the Court's deputy clerk, and he was
seated in the sixth seat of the panel of 36. (Id. at
29). After all prospective jurors were placed under oath
(id. at 30), the Court proceeded to ask questions of
No. 3 responded to the Court's questions shortly after
the questioning began, when the Court questioned the
prospective jurors about their availability to sit for the
trial that was estimated to last five weeks:
JURORNO. 3: Hello, my name is [J.B.]. I'm self employed.
THE COURT: What do you do [J.B.]?
JURORNO. 3: I have my own cleaning business. Right now
it's covered because I'm working at night. I
don't know if I can do that for five weeks.
THE COURT: You tell me what you would be able to do.
JURORNO. 3: I don't know. I have contracted and these
people rely on me to clean the businesses.
THE COURT: Do you typically clean during the day[?]
JUROR NO. 3: No, at nighttime. And I have a couple of
contracts during the daytime, too.
THE COURT: Only you know whether or not you can manage it.
We're going to be in session typically from 9 to 1. You
would have the afternoons, typically, would be free and there
would be some days where we'll be going full days.
Obviously we're not meeting on the weekends. You tell me
whether or not you think you could do it.
JUROR NO. 3: I have a contract that gets Tuesday and Friday
morning. I don't know if she will allow me not to do it
for five weeks.
THE COURT: During the break, would you be able to contact the
JUROR NO. 3: Not really, I don't have my phone. It's
in the car.
THE COURT: If during the lunch break -
JUROR NO. 3: Yes.
THE COURT: We'll have about an hour lunch break, would
you be able to make a call to see if it would work.
JUROR NO. 3: Yes.
(Id. at 40-42).
the first break, Juror No. 3 revealed that he had been able
to "switch everything around" and, therefore, he
would be able to serve if selected. (Id. at 86-87).
Juror No. 3 did not speak for the rest of the day in response
to the Court's voir dire questions, until the
Court asked for biographical information from each juror at
the end of the voir dire. (See Id. at 245). As a
result, Juror No. 3 did not respond to any of the following
questions that were asked of the entire panel:
(1) "Has anyone ever been the victim of a home
robbery?" (id. at 97);
(2) "Has anyone ever served on a jury before?"
(id. at 205);
(3) "Has anyone ever been a defendant in a criminal
case?" (id. at 214);
(4) "Has anyone ever visited a jail or correctional
facility other than in connection with . . . your educational
curriculum" (id. at 229);
(5) "Has anyone had anyone close to them, other than
what we already discussed, I know we covered this, anyone
close to them convicted of a crime?" (id. at
Juror No. 3 did not offer any information in response to the
Court's "catch-all" questions asked toward the
end of voir dire: whether there was "anything
in fairness to both sides that you think we should know that
we haven't covered already" (id. at 221),
and "[i]s there anything that you think we should know
that we haven't covered up to this point?"
(id. at 257).
No. 3 was one of two African American males seated in the
panel of 36 prospective jurors. Like Juror No. 3, prospective
juror "T.P." was also called by the Court's
deputy clerk during the initial seating. (Id. at
30). T.P was seated in seat 26 of the panel of 36.
(Id.). And like Juror No. 3, T.P. remained quiet
throughout much of the voir dire until the Court
asked each prospective juror at the end of jury selection to
provide biographical information. (See Id. at 252).
Also like Juror No. 3, T.P. was a convicted felon and failed
to disclose that information either when completing the
questionnaire mailed by the Clerk's Office or in response
to the Court's voir dire questions.
(See Court Ex. 3A). However, unlike Juror No. 3,
T.P.'s felon status was discovered during jury selection
when, prior to exercising peremptory challenges, the
Government disclosed that it had run a background check on
T.P. and discovered his undisclosed criminal history. (Dkt.
328 at 269-75; see also Court Ex. 3B; Court Ex. 3C).
When the Government brought to the attention of the Court and
defense counsel its discovery of T.P.'s criminal history,
counsel for McCoy accused the Government of targeting the
racial minorities on the jury. (Dkt. 328 at 270
("I'm concerned if an African American comes in and
the FBI is running record checks on him, they probably did
that with the other one, too."))- The Government denied
defense counsel's accusations, and ultimately the issue
was resolved with the Government agreeing to use one of its
peremptory challenges to strike T.P. (Id. at
turns out, the Government had not run a background check on
any other prospective juror, including Juror No. 3 (Dkt. 308
at ¶ 3(A)), and Juror No. 3's criminal history was
not discovered until after the return of the verdict. One of
the issues Nix raises in his post-verdict motion is the
Government's background check on T.P. (Dkt. 289 at
¶¶ 83-84). Thus, Defendants seek a new trial both
because an African American prospective juror who failed to
disclose his criminal history was excused from the jury, and
because an African American prospective juror who failed to
disclose his criminal history was not excused from
Discovery of Juror No. 3 's Felon Status
Defendants filed motions pursuant to Fed. R. Crim. P. 29(c)
and 33 raising a number of issues, including the discovery
that Juror No. 3 may be a convicted felon. (Dkt. 286-1 at
¶¶ 8-22; Dkt. 289 at ¶¶
36-50). The Government filed papers in
opposition to the motions, and, among other things, indicated
that it was unaware of Juror No. 3's felon status until
the issue was raised in Defendants' post-trial filings.
(Dkt. 296 at 5-11). Defendants filed reply papers (Dkt. 299;
Dkt. 300), and, due to the competing allegations about the
background checks on the jurors in the case, the Court
directed each counsel to disclose, by affidavit, information
about any background checks conducted on jurors or
prospective jurors. (Dkt. 302). Counsel for each party filed
affidavits (Dkt. 306; Dkt. 308; Dkt. 309), and a hearing was
conducted on May 15, 2017 (see Dkt. 327).
appearance on May 15, 2017, counsel for Nix indicated that he
performed the criminal background check post-verdict on Juror
No. 3 based on "a hunch." (Id. at 6-9).
The Court determined that it would hold an evidentiary
hearing concerning Juror No. 3 (id. at 25-27), and
the Court scheduled a further appearance for May 25, 2017
(id. at 28-29). At the Court's direction, the
United States Marshals Service served Juror No. 3 with an
Order directing his appearance on May 25, 2017. (Dkt. 315;
25, 2017, Juror No. 3 appeared in Court, was advised of his
rights, and, at his request, counsel was appointed to
represent him. (Dkt. 329 at 5-7). The Court set a date to
conduct an evidentiary hearing: June 12, 2017. (Id.
at 11). The Court also heard argument from counsel on the
scope of the hearing, and it reserved decision on whether it
would allow counsel to question Juror No. 3, indicating that
the Court was going to initiate the questions and any
questions that the parties wanted asked needed to be
submitted to the Court in advance. (Id. at 37-41;
see, e.g., Dkt. 312). On June 9, 2017, the U.S.
Attorney's Office provided an immunity letter to Juror
No. 3. (See Dkt. 358 at 70).
The Evidentiary Hearing
evidentiary hearing commenced on June 12, 2017, and continued
on June 14, 2017 (Dkt. 358; Dkt. 359). Only the Court asked
questions on the first day of the hearing, but counsel were
permitted to ask questions during the second day of the
hearing. (See Dkt. 358; Dkt. 359).
No. 3, a 47-year-old African American male (see Dkt.
358 at 76; see, e.g., Court Ex. 14), testified that
he did not have a high school diploma or G.E.D., but had been
educated up until the 11thgrade (Dkt. 358 at 71). He has five
children (id. at 71-72) and is self-employed as a
cleaner (id. at 71; see, e.g., Court Ex.
14). He described his marital status as single (Dkt. 358 at
72), although when questioned further about his marital
status, it was revealed that he is separated but not legally
divorced (id. at 94-95).
No. 3 acknowledged that he completed the Court's juror
questionnaire online (id. at 73), and he
inaccurately answered "No" in response to Question
No. 6, which asked: "Have you ever been convicted either
by your guilty or nolo contendere plea or by a court or jury
trial, of a state or federal crime for which punishment could
have been more than one year in prison?" (id.
at 74; see Court Ex. 14; Court Ex. 15).
No. 3 explained his reasoning for answering inaccurately as
follows: "At the time, I thought that it meant 21 and
over." (Dkt. 358 at 74). Juror No. 3 offered a similar
explanation as to why he had not offered this information
during the Court's questions during voir dire
(id. at 86-88), but he acknowledged that his answers
were not accurate:
Q But I never said 21 and up, did I?
A No, you did not.
Q And the questionnaire didn't say 21 and up, did it?
A No, it did not.
Q And as you sit here now, would you agree with me that you
did not answer those questions truthfully?
(Id. at 89).
admitting that he had been convicted of at least one felony,
Juror No. 3 displayed a hazy memory concerning the number of
prior felony convictions and arrests.
Q Can you tell me how many crimes punishable by more than one
year in prison or felonies have you been convicted of?
A Truthfully, I don't remember, your Honor.
(Id. at 75). Juror No. 3 did offer that he could
recall being convicted of a felony where he "was accused
of breaking into a clothing store" when he was 17 or 18
years old. (Id. at 76). He testified that he was
sentenced to two to four years in prison, but that sentence
was satisfied by serving six months in "shock
camp." (Id. at 78). However, Juror No. 3 did
not recall several facts surrounding this conviction, such
as: if the charge was resolved through a plea or trial
(id. at 76); where the shock camp was located
(id. at 78); the name of one of his co-defendants
(id. at 77); if he was prosecuted in federal or
state court (id. at 79); and the name of the judge
who sentenced him (id.).
Juror No. 3 testified that he did not know if he had been
convicted of any other felonies other than the one involving
the clothing store:
Q Other than that felony conviction [involving the burglary
of the clothing store], do you know if you were convicted of
any other prior felonies?
A No, I don't.
(Id. at 80). He testified that he had been arrested,
although the only arrest that he was initially able to recall
involved a stolen car when he was 17 or 18 years old, and he
testified that he could not recall how it was resolved.
(Id.). However, later during the first day of the
hearing, Juror No. 3 testified that he was convicted of the
incident involving the stolen car:
Q How did the-I may have asked you this, I'm not sure-how
did the stolen motor vehicle charge get resolved?
A I'm not sure.
Q In other words, do you know if you were convicted or not?
Q You were convicted?
Q But you don't know if you were convicted by a plea or
by a trial?
A No, I don't.
Q And as you sit here now, you don't know if you
served-you don't recall serving any time for that
A No, I-
Q -is that fair to state?
A Yes, your Honor.
(Id. at 87-88).
No. 3 testified that he was falsely accused of both the
clothing store burglary and the stolen car crime:
Q So, you were falsely accused of this crime [involving the
clothing store burglary]?
(Id. at 79).
Q And if I understand correctly, you did not actually engage
in the burglary of the clothing store, correct?
Q What about the stolen vehicle, did you actually steal a
(Id. at 84-85). However, during the second day of
the hearing, when confronted with his signed confession about
the burglary of the clothing store, Juror No. 3 ultimately
admitted his involvement and that he provided the Court false
testimony on the subject. (Dkt. 359 at 181-84). When the
Court confronted him about why he failed to testify
accurately, Juror No. 3 had no explanation:
Q So, why did yo\u not answer my question accurately when I
first asked it of you?
A Don't know.
Q You don't know?
Q Isn't it fair to state that you'd prefer not to be
honest about your prior criminal history?
A Truthfully, I don't think about my prior history, to
tell you the truth. I don't think about it.
Q Well, we're here on it right now.
A Yes, we are.
Q So we're talking about it right now.
Isn't it fair to state that you'd prefer not to be
honest about your prior criminal history?
(Id. at 183; see Id. at 231 (admitting that
Juror No. 3 provided false testimony during first day of the
hearing about his involvement in the clothing store
burglary)). In response to Nix's counsel's questions,
Juror No. 3 also admitted that he remembered stealing a car
and switching the license plates. (Id. at 225).
number of additional arrests were reflected in the records
obtained by the parties in preparation for the evidentiary
hearing. Juror No. 3 appeared to have no memory of those
Q Do you recall being arrested in 1986 for assault in the
A No, I don't.
Q Do you recall being arrested in March of 1987 for petit
Q And in connection with that arrest, do you recall you were
convicted and were sentenced to two work Saturdays; do you
have any recollection of that?
Q What about a conviction in November 1987 for petit larceny
where you served 14 days in the Monroe County Jail; does that
sound familiar to you?
A Truthfully, your Honor, I don't remember none of this
stuff. That was 28 years ago.
(Dkt. 358 at 81-82).
Q Do you recall being arrested in July of 1989 for burglary
in the second degree for illegal entry of a dwelling?
A No, I do not.
. . .
Q Do you recall burglarizing a home in May of 1989?
A No, I do not.
(Id. at 84). In addition, during the second day of
the hearing, Juror No. 3 was questioned by the Court about
reports concerning two separate alleged domestic violence
incidents (one in 1993 and the other in 1999)-one of which he
recalled but for which he denied being arrested, and the
other of which he had no recollection. (Dkt. 359 at 176-77).
During questioning by Nix's counsel, Juror No. 3 appeared
to have some recollection of a petit larceny conviction on
March 10, 1987 (id. at 215-16), and possibly an
assault charge when he was 16 (id. at 214-15),
although it was impossible to distinguish at that point
whether Juror No. 3 was testifying based on his memory or his
review of records.
addition, other than his six-month stint at shock camp for
the clothing store burglary, Juror No. 3 indicated he had no
memory of being incarcerated for any other period of time,
other than possibly overnight for the stolen vehicle charge:
Q Do you recall ever serving any time in the Monroe County
A Not at all, no, I don't.
Q I mean, as you sit here right now, can you tell me whether
or not you've been to the Monroe County Jail?
A Yes, I've been there.
Q And tell me in connection with why you've been there.
A For the stolen car.
Q Okay. And, so, tell me about the time-I mean, were you kept
overnight for the stolen car?
Q So, how long were you kept overnight for the stolen car, do