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United States v. Brown

United States District Court, M.D. Florida, Jacksonville Division

August 16, 2017


          A. Tysen Duva, Esq. (Asst. U.S. Attorney), Michael Coolican, Esq. (Asst. U.S. Attorney), Eric G. Olshan, Esq. (Asst. U.S. Attorney) James W. Smith, III, Esq. Samuel A. Walker, Esq. Defendant.



         This case was tried from April 24 to May 8, 2017, with both sides getting a full opportunity to present their evidence and arguments. The jury then began deliberating. On May 10, following a communication from another juror and with both parties' agreement, I questioned Juror No. 13 who told me that from the beginning of deliberations, he had “received information as to what [he] was told to do” from his “Father in Heaven” and that “the Holy Spirit” “told [him] that Corrine Brown was not guilty on all charges.” Doc. 182 at Tr. 41, 51.[1] Recognizing the sensitivities when religious beliefs are involved, I nevertheless determined that this juror must be excused. I would have reached the same conclusion had the juror said that the Holy Spirit had told him that Corrine Brown was guilty on all charges.

         Under the rules, we could have proceeded with eleven jurors. However, both sides asked me to seat an alternate so I did. I received an individual commitment from each juror that they would start deliberations anew. The newly composed twelve member jury then deliberated for more than eleven hours over two days before returning a verdict of guilty on some counts and not guilty on others, bespeaking careful consideration of the evidence. Then, each juror stood up in open court and announced that this was their “true verdict.”

         Corrine Brown received a fair trial and a considered verdict from a properly constituted jury. Her motion for new trial is denied. A full discussion follows.

         I. The Pertinent Facts

         Former Congresswoman Corrine Brown and a co-defendant, who eventually pled guilty and testified against her, were charged in a twenty-four count indictment alleging a conspiracy to commit mail and wire fraud, aiding and abetting mail and wire fraud, and, as to Corrine Brown only, additional financial disclosure and income tax-related charges.

         Jury selection began on April 24, 2017 with a pool of over 100 prospective jurors coming in over the next two days. On the morning of April 26, United States Magistrate Judge James R. Klindt, who selected the jury by the parties' consent, seated a jury of twelve with four alternates. All those seated on the jury agreed during questioning that they had no “political, religious, or moral beliefs that would preclude [them] from serving as a fair, impartial juror in this case.” Doc. 169 at Tr. 189. Each juror also agreed that they had no “religious or moral beliefs” that would preclude them from “sitting in judgment of another person.” Id. at Tr. 190. Once the jury was selected, each juror swore to render a true verdict according to the law, evidence and instructions of the Court. Doc. 171 at Tr. 44-45. The Court then instructed the jury that their task was to decide the case based solely on the evidence they heard in the courtroom and to ignore all outside opinions. Id. at Tr. 50. As the Court then reiterated, “If you didn't get it in this courtroom, you shouldn't have it” because “our whole system depends upon the fact that the case is decided in this courtroom on the evidence in this courtroom and nothing else.” Id. at Tr. 50-51. The Court advised the members of the jury that “every single one of you has [the] responsibility to make sure that that's what happens.” Id. at Tr. 51.

         During eight days of trial, the jury heard testimony from 41 witnesses, including the defendant, and the Court admitted 371 exhibits into evidence. After closing arguments, the Court instructed the jury on the law, including instructions that their decision “must be based only on the evidence presented during the trial” and that the jury “must follow the law as I explain it- even if you do not agree with the law- and you must follow all of my instructions as a whole, ” and that they “must not single out or disregard any of the Court's instructions on the law.” Doc. 180 at Tr. 124. The jurors were also instructed that they each must decide the case for themselves, “but only after fully considering the evidence with the other jurors, ” that they “must discuss the case with one another and try to reach an agreement, ” and that they should not hesitate to reexamine their opinions and change their mind if they become convinced that they were wrong. Id. at Tr. 143-44. The four alternates were dismissed but were kept together in the courthouse under orders that they continue to follow all the Court's instructions, including that they not discuss the case.

         Deliberations began on Monday afternoon, May 8. At 5:00 p.m. the jury retired for the evening, returning the following day where they deliberated without incident from 9:00 a.m. to 5:00 p.m. Later that evening, Juror No. 8 (who was not the foreperson) called the courtroom deputy on her cell phone to report that she and other jurors had “concerns” about Juror No. 13 who, from the beginning of their deliberations, was talking about “Higher Beings” and mentioned the name of the defendant.[2] The courtroom deputy immediately advised Juror No. 8 that she could not discuss the matter with her but would report it to the Judge, which she then did. I communicated with counsel overnight via email, we shared relevant case law, [3] and I convened a hearing at 8:15 a.m. the following morning (Wednesday, May 10) to determine how to proceed.

         After some discussion, both sides were firm that the Court needed to question Juror No. 8 in camera to gather more information. The Court agreed.

         Members of the public and media were cleared from the courtroom and Juror No. 8 was brought in.[4] Before making any inquiry, the Court advised her:

[B]efore I ask you any questions or talk to you, I want to make sure that you know that I am not asking you to, nor should you, state or reveal in anything you say your own opinions or positions about any of the deliberations that you've been having or any of the issues in this case, nor should you disclose or discuss the opinions of any of the other jurors about any of the deliberations that have gone on. So I want to be clear about that.

Doc. 182 at Tr. 21. The Court then asked Juror No. 8 to share her concerns as she had recounted them the previous evening, “without talking about the deliberations or anybody else's views or your views.” Id. Juror No. 8 then offered to give the Court a letter she had written in case she did not receive further communication following her phone call the previous evening. The Court accepted her letter and shared it with the parties. The letter, marked as Court Exhibit 1, states:

Your Honor
With all due respect, I'm a little concerned about a statement made by Juror #13 when we began deliberation.
He said “A Higher Being told me Corrine Brown was Not Guilty on all charges”. He later went on to say he “trusted the Holy Ghost”. We all asked that he base his verdict on the evidence provided, the testimony of the witnesses and the laws of the United States court. Other members of the Jury share my concern.
Thank you,
[name redacted], Juror # 8

         Upon further questioning, Juror No. 8 stated that Juror No. 13 made his first comment when the jury “first went into deliberation” and made his second comment a few hours later the same day; Juror No. 13 had not expressed that view again; his comments were not interfering with Juror No. 8's ability to deliberate; and Juror No. 13 appeared to be deliberating. Doc. 182 at Tr. 23-24. The Court solicited questions from counsel, which resulted in Juror No. 8 explaining that while Juror No. 13's comments only occurred on the first day, other jurors had subsequently expressed concern in Juror No. 13's presence that his comments might affect his decision. Juror No. 8 also advised that she was acting on her own initiative and the other jurors did not know she had come forward. Id. at Tr. 23-26. The Court then excused Juror No. 8 with the admonition that she not share with the other jurors the discussion she had just had with the Court, to which she agreed.

         The government commented that Juror No. 13's statements contradicted his agreement during voir dire that he would set aside any religious or philosophical beliefs and further expressed concern that while Juror No. 8 said his comments were not affecting her ability to deliberate, it could be affecting the overall deliberations, particularly since Juror No. 13's comments came at the beginning of deliberations. Counsel for the government suggested questioning the foreperson. Counsel for the defendant suggested doing nothing further in light of Juror No. 8's statement that her own deliberations were not affected and the lack of evidence that Juror No. 13 was refusing to follow the Court's instructions, but acknowledged that if Juror No. 13 was committed to a particular result notwithstanding the evidence, it would be a concern. Id. at Tr. 28-30. The Court noted the fine line between persons praying for guidance, which is to be respected, and persons being prevented by a religious view from making a determination based on the evidence. The Court then asked the parties whether Juror No. 13 should be questioned, commenting that if Juror No. 8 had reported that Juror No. 13 told the jury that the Holy Spirit told him Corrine Brown was guilty of all charges, her counsel likely would want further inquiry. Her counsel agreed that Juror No. 13 could be questioned to see if he could assure the Court that he would follow the law. Id. at Tr. 30-33.

         The Court determined to question Juror No. 13. The parties agreed the Court should first ask him general questions such as whether he was able to follow the instructions given in voir dire about setting aside any religious or moral views that would prevent a decision based on the evidence, and to follow up asking more specific questions, such as whether he had shared contrary views with the jury. Juror No. 13 was then brought in and told the Court that he remembered the Court asking about political, religious or moral beliefs that would preclude service as a fair and impartial juror and he maintained the response he had previously given that he could serve. Juror No. 13 said he was not having any difficulty with any religious or moral beliefs interfering with his ability to decide the case on the facts presented and the law as instructed. Id. at Tr. 39. The Court then asked if he considered himself to have been deliberating with the other jurors to which he responded that they were going over the individual charges. The Court interrupted, instructing Juror No. 13 not to reveal anything about the deliberations. Juror No. 13 responded that he had been “following and listening to what has been presented and making a determination from that, as to what I think and believe.” Id. at Tr. 40. The Court then asked Juror No. 13 whether he had made any statements to his fellow jurors to the effect that a higher being was guiding him on these decisions or that he was trusting in his religion as a basis for making his decisions. Id. Juror No. 13 responded: “I did, yes.” Id. The following colloquy then took place:

The Court: Okay. Can you tell me, as best you can, what you said?
Juror No. 13: Absolutely. I told them that in all of this, in listening to all the information, taking it all down, I listen for the truth, and I know the truth when the truth is spoken. So I expressed ...

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