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United States v. Nix

United States District Court, W.D. New York

August 24, 2017

MATTHEW NIX and EARL McCOY, Defendants.


          ELIZABETH A. WOLFORD United States District Judge.


         Defendants 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).

         Nix and McCoy aggressively defended the case before and during trial, and the intensity of that defense only continued after the jury returned its verdict.[1] 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"[2]-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).

         Defendants 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).

         However, 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.[3]


         A. Jury Selection-February 13, 2017

         Jury 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 convictions.[4]

         Juror 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 the panel.

         Juror 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 person.
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).[5]

         After 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:[6]

(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 239).

         Similarly, 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).

         Juror No. 3 was one of two African American males seated in the panel of 36 prospective jurors.[7] 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.[8] (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 270-75).

         As it 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).[9] 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 the jury.

         B. Discovery of Juror No. 3 's Felon Status

         Post-verdict, 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).[10] 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).

         At the 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; Dkt. 317).

         On May 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).[11] On June 9, 2017, the U.S. Attorney's Office provided an immunity letter to Juror No. 3. (See Dkt. 358 at 70[12]).

         C. The Evidentiary Hearing

         The 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).

         Juror 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).

         Juror 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).

         Juror 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?
A Yes.

(Id. at 89).

         While 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.).

         Initially, 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?
A Yes.
Q You were convicted?
A Yes.
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 conviction-
A No, I-
Q -is that fair to state?
A Yes, your Honor.

(Id. at 87-88).

         Juror 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]?
A Yes.

(Id. at 79).

Q And if I understand correctly, you did not actually engage in the burglary of the clothing store, correct?
A Yes.
Q What about the stolen vehicle, did you actually steal a vehicle?
A No.

(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?
A No.
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?
A No.

(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).

         A 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 arrests:

Q Do you recall being arrested in 1986 for assault in the second degree?
A No, I don't.
Q Do you recall being arrested in March of 1987 for petit larceny?
A No.
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?
A No.
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.

         In 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 Jail?
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?
A Yes.
Q So, how long were you kept overnight for the stolen car, do ...

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