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United States v. Wilcher

United States District Court, S.D. Florida

August 24, 2017




         THIS CAUSE comes before the Court on the Government's Motion to Clarify Transcript, filed July 11, 2017 (DE 63, "Motion"). After I held an evidentiary hearing on the Government's Motion, Defendant filed a Cross-Motion for Correction of the Record Pursuant to Fed. R. App. P. 10(e). (DE 80, "Cross-Motion"). For reasons stated below, the official transcript must be corrected.


         Defendant was charged with one count of possession of ammunition by a convicted felon. (DE 1). He proceeded to a jury trial, which began on August 8, 2016. After the close of the evidence and closing arguments, the jury began deliberations on August 9, 2016 around 3:00 p.m. and deliberated until 5:00 p.m. The jury returned the following morning and reached a verdict around 3:35 p.m. on August 10, 2016. After everyone had gathered in the courtroom, the foreperson indicated the jury had reached a verdict and that the verdict was unanimous. I directed the courtroom deputy to read the verdict and to poll the jury thereafter, which is my usual practice.[1] After the courtroom deputy read the verdict (filed at DE 30), she then polled the jurors. The jury was dismissed and I scheduled Defendant's sentencing for October 11, 2016 (DE 31).

         On August 24, 2016, Defendant filed a Motion for New Trial. (DE 34). On August 26, 2016, I denied his Motion for New Trial. (DE 35).

         On October 11, 2016, 1 sentenced Defendant to 360 months' imprisonment, followed by a term of supervised release of five years. (DE 44, 45). Defendant filed a Notice of Appeal on October 24, 2016 (DE 46), followed by an Amended Notice of Appeal filed the same day (DE 48). The trial transcript was filed on December 27, 2016 (DE 58) and December 30, 2016 (DE 59, 60). On February 3, 2017, the Clerk of the District Court for the Southern District of Florida certified that the record is complete for the purpose of appeal. (DE 62).

         On July 11, 2017, the Government filed a Motion to Clarify the Accuracy of the Trial Record Pursuant to Federal Rule of Appellate Procedure 10(e). (DE63). The Government explained that the official transcript provided that one of the jurors answered "no" when asked by the courtroom deputy, "Is this your verdict?" The Government also explained that it had filed in the appellate court an unopposed motion to stay the appeal pending Rule 10(e) proceedings in the district court.

         Defendant, through counsel, filed a response to the Motion on July 13, 2017. (DE 64). In his response, Defendant agreed that the district court should determine whether the trial transcript accurately reflects that Juror No. 7 answered "no." (Id. at 1). Defendant also requested an evidentiary hearing. (Id. at 2). Should the Court find that "the transcript accurately records Juror No. 7's 'no' answer, " Defendant "will ask this Court to order a mistrial, in accordance with Fed. R. Crim. P. 31 (d), which provides that if a jury poll reveals a lack of unanimity, the district court should either direct the jury to deliberate further (an option which is no longer available), or declare a mistrial." (Id. at 2-3).

         On July 18, 2017, I held a telephonic status conference on the Motion, and informed the Parties that I had listened to the court reporter's audio recording of the jury poll.[2] (DE 82, Status Conf. Trans.). I informed them that, based on my perception of the audio recording, Juror 7 answered "yes" but that Juror 6's answer was unintelligible or unclear. I asked the Parties for their positions on how to proceed and both believed an evidentiary hearing was appropriate. The Parties also believed that Jurors 6 and 7 should be subpoenaed to testify. During the conference, the Parties informed me that the Eleventh Circuit had granted the motion to stay "pending resolution of FRAP 10(e) motion in the district court to correct the record." See No. 16-16751-AA (11th Cir. July 17, 2017). At the conclusion of the status conference, I scheduled an evidentiary hearing for August 15, 2017 (DE 66), which was later rescheduled for August 18, 2017 (DE 69). I issued a writ of habeas corpus ad prosequendum for Defendant's appearance at the evidentiary hearing. (DE 67).

         On August 18, 2017, 1 held an evidentiary hearing. I questioned Juror 6 and Juror 7 in the jury box. The Government called Genevieve McGee, my courtroom deputy who polled the jury during Defendant's trial. Defendant called three witnesses: Robin Dispenzieri, the court reporter during Defendant's trial; Assistant United States Attorney Miesha Darrough, one of the Government's trial counsel; and Assistant Federal Public Defender Adebunmi Lomax, one of Defendant's trial counsel.

         After the evidentiary hearing, Defendant filed a Cross-Motion for Correction of the Record Pursuant to Fed. R. App. P. 10(e). (DE 80). In the Cross-Motion, Defendant seeks to correct the transcript in three places: (1) to change Juror 6's answer from "yes" to "no" in response to the jury poll; (2) to change Juror 7's answer from "no" to "yes" in response to the jury poll; (3) and to add the Court's instruction to Juror 12, "Ma'am you need to answer out loud."


         Federal Rule of Appellate Procedure 10(e) provides:

(1) If any difference arises about whether the record truly discloses what occurred in the district court, the difference must be submitted to and settled by that court and the record conformed accordingly.
(2) If anything material to either party is omitted from or misstated in the record by error or accident, the omission or misstatement may be corrected and a supplemental record may be certified and forwarded:
(A) on stipulation of the parties;
(B) by the district court before or after the record has been forwarded; or
(C) by the court of appeals.
(3) All other questions as to the form and content of the record must be presented to the court of appeals.

Fed. R. App. P. 10(e). A certified court transcript is "deemed prima facie a correct statement of the testimony taken and proceedings had." 28 U.S.C. § 753(b). However, a certified transcript is subject to correction. See United States v. Smith, 433 F.2d 149, 151 (5th Cir. 1970).[3]


         Before turning to the evidentiary hearing, I address two issues raised by Defendant's counsel: (1) whether the jurors should be permitted to testify and (2) whether I may rely on my own recollection of the jury poll.

         Juror Testimony.

         During the telephonic status conference on the Government's Motion to Clarify, Defendant's appellate counsel, Mr. Cone, expressed his interest in having Juror 6 and Juror 7 testify at the evidentiary hearing he had requested. See (Status Conf. Trans.). After the status conference, Defendant filed a Motion to Quash (DE 70), seeking to quash the jurors' subpoenas. Defendant argued that no juror should be "recalled" to testify because juror testimony would intrude upon jury deliberations and that, based on the passage of time, jurors may have been exposed to extrinsic information which could "shape [their] testimony at an evidentiary hearing." (DE 70 at 6). I denied the Motion to Quash, specifically noting that "[t]he scope of examination of the jurors will be limited to the issue of jury polling and will preclude any inquiry into jury deliberations." (DE 71).

         At the evidentiary hearing, Mr. Cone objected to any juror testimony. I reminded Mr. Cone that his position was contrary to his position at the telephonic status conference, during which Mr. Cone repeatedly expressed his desire to hear from Jurors 6 and 7:

Mr. Cone: Well, it sounds like we should be asking juror number six. (Status Conf. Trans, at 10:21-22).
Mr. Cone: And so I do think the Government, if it wants to change a "no" to a "yes, " needs to call witnesses to establish that "no" means "yes." The two being opposite things of course. So I think the Government should call juror number six, if they want to establish that "no" means "yes, " in other words. (Id. at 11:17-22).
Mr. Cone: Well, then maybe I need to call number six, the defendant needs to call number six, which, you know, that's fine....if the Government doesn't want to call juror number six, I'll subpoena juror number six. (Id. at 12:2-6).

         Indeed, when scheduling the evidentiary hearing at the end of the status conference, Mr. Cone "wonder[ed] whether the jurors also might have conflicts ... but that's obviously a high priority matter as well, those witnesses, and the court reporter." (Id. at 18:4-8).

         Inquiry into a jury deliberations is constrained. As explained recently by the Supreme Court:

A general rule has evolved to give substantial protection to verdict finality and to assure jurors that, once their verdict has been entered, it will not later be called into question based on the comments or conclusions they expressed during deliberations. This principle, itself centuries old, is often referred to as the no-impeachment rule.

Pena-Rodriguez v. Colorado, 137 S.Ct. 855, 861 (2017). Congress codified a "stringent version" of the no-impeachment rule in Rule 606(b) of the Federal Rules of Evidence. Id. at 864. Rule 606(b) provides:

(1) Prohibited Testimony or Other Evidence. During an inquiry into the validity of a verdict or indictment, a juror may not testify about any statement made or incident that occurred during the jury's deliberations; the effect of anything on that juror's or another juror's vote; or any juror's mental processes concerning the verdict or indictment. The court may not receive a juror's affidavit or evidence of a juror's statement on these matters.
(2) Exceptions. A juror may testify about whether:
(A) extraneous prejudicial information was improperly brought to the jury's attention;
(B) an outside influence was improperly brought to bear on ...

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