United States District Court, W.D. New York
DECISION AND ORDER
ELIZABETH A. WOLFORD, United States District Judge.
before the Court are two motions filed by defendants Earl
McCoy ("McCoy") and Matthew Nix ("Nix")
(collectively, "Defendants") seeking
reconsideration of the Court's Decision and Order, dated
August 24, 2017 ("Rule 33 Denial Order"), in which
the Court denied Defendants' motions for a new trial
pursuant to Federal Rule of Criminal Procedure 33 based on
Juror No. 3's alleged bias. (See Dkt. 417; Dkt.
418). Through this second set of motions for reconsideration
of the Rule 33 Denial Order, Defendants request vacatur of
the judgment and a new trial, or, alternatively, a
continuation of the evidentiary hearing regarding Juror No.
3's qualifications to sit on the jury. (See Dkt.
417 at 1; Dkt. 418 at 1). The Government opposes
Defendants' motions. (Dkt. 425). For the reasons set
forth below, the Court denies Defendants' motions in
facts relevant to the issue of Juror No. 3's alleged bias
are set forth in detail in the Rule 33 Denial Order, with
which familiarity is assumed. (See Dkt. 382). The
Court provides only a summary of those facts, as well as
additional background information as relevant to this motion.
brief, Juror No. 3, an African American male, was the sixth
prospective juror called by the Court's deputy clerk
during jury selection on February 13, 2017. (Dkt. 328 at 29).
Juror No. 3 is a convicted felon, but he failed to disclose
his criminal history during jury selection. Juror No. 3's
felon status was discovered only after the verdict, which was
returned on March 17, 2017. (Dkt. 266; Dkt. 267). Defendants
both moved for a new trial pursuant to Rule 33 and argued,
inter alia, that Juror No. 3's felon status
destroyed the impartiality of the jury. (Dkt. 286; Dkt. 289).
March 30, 2017, counsel for Nix made a Freedom of Information
Law ("FOIL") request "for any and all criminal
records and reports to the Monroe County District
Attorney's Office concerning Juror #3 . . . and only
received one page which did not concern the incident, on or
about June 7th, 2017." (Dkt. 417-1 at ¶
initial appearance regarding Defendants' post-verdict
motions on May 15, 2017, the Court concluded that it must
hold an evidentiary hearing concerning Juror No. 3's
qualifications to serve on the jury. (See Dkt. 327).
The Court held an evidentiary hearing on June 12 and 14,
2017, during which Juror No. 3 testified, confirmed his felon
status, and was examined by the Court and counsel. (Dkt. 348;
Dkt. 353). On the first day of the evidentiary hearing, Juror
No. 3 was asked if he recalled being arrested for a burglary
of a home in May of 1989, and he answered that he did not
recall. (Dkt. 358 at 84).
the second day of the evidentiary hearing, Assistant District
Attorney Stephen O'Brien ("ADA O'Brien")
appeared in response to a subpoena that counsel for Nix had
served upon the Monroe County District Attorney's Office
("MCDAO") on June 13, 2017, one day earlier. (Dkt.
359 at 144). The subpoena sought production of certain
documents, including those related to a May 1989 burglary for
which Juror No. 3 was allegedly charged but not convicted.
ADA O'Brien moved to quash the subpoena, arguing that it
was overbroad. (Id. at 144). ADA O'Brien also
informed the Court that the MCDAO had been unable to locate
any file pertaining to Juror No. 3 that would respond to the
subpoena. (Id. at 144-47). ADA O'Brien stated that
the MCDAO employed a contractor to house older files, and the
contractor was unable to locate the requested file pertaining
to Juror No. 3. (Id. at 145). While there was a
possibility that the file was misfiled, the MCDAO would have
to pay a fee for the contractor to sift through thousands of
individual boxes of files-with, of course, no guarantee that
the file would be located. (Id. at 146-47). The
Court quashed the subpoena, determining that it was
overbroad, that the MCDAO's reasonable efforts to search
for the requested records had yielded no results, and that it
would be unnecessarily burdensome to require a search of each
box that the contractor maintained. (Id. at 151).
The evidentiary hearing concluded on June 14, 2017.
27, 2017, Nix filed a motion requesting the issuance of
post-hearing subpoenas to the Monroe County Clerk and the
Rochester City Court for records of the May 1989 burglary.
(Dkt. 354). Nix stated that "the juror witness would not
have to be recalled" if the subpoenas were issued.
(Id. at ¶ 11). The Government opposed the
motion. (Dkt. 361). At an appearance before the Court on July
6, 2017, the Court noted that the requested information was
"probably outside the scope of a proper judicial
subpoena" (Dkt. 421 at 11), and that "the
application is untimely" (id. at 12).
Nevertheless, the Court permitted the subpoenas to issue in
order to allow the defense to explore whether there were any
records concerning the May 1989 burglary. (Id. at
August 24, 2017, after the parties had filed post-hearing
submissions (Dkt. 363; Dkt. 369; Dkt. 370; Dkt. 371; Dkt.
372), the Court issued the Rule 33 Denial Order, which denied
Defendants' Rule 33 motions to the extent that those
motions were based upon Juror No. 3's alleged bias. (Dkt.
382). In the Rule 33 Denial Order, the Court concluded that
Juror No. 3's criminal history-including the alleged
arrest for burglary of a home-did not justify a finding that
Juror No. 3 was biased against Defendants:
Additionally, the information disclosed about Juror No.
3's criminal history does not support an inference of
bias against Defendants. The fact that Juror No. 3 has been
previously arrested and convicted of two prior felonies-
including convicted for burglarizing a clothing store and
possibly arrested for burglarizing a home-does not
justify a finding of bias against Defendants, and Defendants
cannot articulate any reasonable basis for concluding
(Id. at 61-62 (emphasis added)). In so concluding,
the Court specifically noted Juror No. 3's inability to
recall the burglary arrest in May of 1989:
There is some evidence in the record that Juror No. 3 may
have been arrested for burglarizing a home in May of 1989
(when he was 19 years old). However, Juror No. 3 had no
recollection of this alleged incident, and there ...