United States District Court, S.D. Florida
ORDER ON MOTIONS TO CLARIFY/CORRECT
M. MIDDLEBROOKS, UNITED STATES DISTRICT JUDGE.
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.
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. 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).
August 24, 2016, Defendant filed a Motion for New Trial. (DE
34). On August 26, 2016, I denied his Motion for New Trial.
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).
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.
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
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. (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
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.
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."
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
(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
(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
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.
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).
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).
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).
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