Petition for Writ of Certiorari — Abbell v. United States

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“1161 8™may =1 2002

No. 01-

| IN THE

Supreme Court of the GQnited States

MICHAEL ABBELL AND WILLIAM MORAN,

Petitioners,

UNITED STATES OF AMERICA,

Respondent.

Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Eleventh Circuit

PETITION FOR A WRIT OF CERTIORARI

BRUNO A. RISTAU CARTER G. PHILLIPS

4500 Foxhall Crescents, VIRGINIA A. SEITZ*

N.W. SIDLEY AUSTIN BROWN &

Washington, D.C. 20007 WOOD LLP

(202) 965-3810 ; 1501 K Street, N.W.

Washington, D.C. 20005

ScoTT A. SREBNICK (202) 736-8000

2400 South Dixie Highway Counsel for Petitioners

Suite 200

Miami, FL 33133 G. RICHARD STRAFER

(305) 285-9019 —~ G. RICHARD STRAFER, P.A.

Counsel for Michael Abbell 2400 South Dixie Highway

Suite 200

Miami, FL 33133

(305) 857-9090

Counsel for William Moran

May 1, 2002 * Counsel of Record —~

aa ne oC ei LS ETRE REE ROAR BME DN I

WILSON-EPES PRINTING CO., INC. — (202) 789-0096 - WASHINGTON, D.C. 20001

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QUESTION PRESENTED

Whether Federal Rule of Criminal Procedure 23(b) and the

Sixth Amendment’s guarantee of a verdict by an impartial,

unanimous jury prohibit the discharge of a deliberating

holdout juror through a process in which the court (i)

questions all members of a jury about their deliberations, and

(ii) makes credibility determinations and _ subjectively

decides — based on a patently ambiguous record of those

deliberations — that there is no “substantial possibility” that

the juror is being discharged for her views about the merits of

the Government’s case.

(i)

PARTIES TO THE PROCEEDING

All parties to the proceeding are identified in the caption.

TABLE OF CONTENTS

TABLE OF AUTHORITIES. ...0000.0002.00..0.00.0cccccccccceeee.

a ss cc cocessadeassasechbuvendonenbvadacsins

Lilia is bactecdcecibadeniniesaanaesadsccavebeees

CONSTITUTIONAL AND STATUTORY PROVI-

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REASONS FOR GRANTING THE PETITION ...........

I. THE COURTS OF APPEALS ARE IN CON-

FLICT ABOUT THE APPLICATION OF FED.

R. CRIM. P. 23(B) WHEN A JUROR IS

ACCUSED BY OTHER JURORS OF

REFUSING TO FOLLOW THE COURT'S

INSTRUCTIONS 000000...0.0.c-ccccssssecssecsssecssecsssesseee:

Il. THE COURT OF APPEALS’ DECISION IS IN

TENSION WITH DECISIONS OF THIS

(iii)

TABLE OF CONTENTS - continued

Page

Ill. THE UNIFORM AND CORRECT APPLICA-

TION OF RULE 23(B) IS CRITICAL TO THE

FAIR ADMINISTRATION OF JUSTICE AND

THE CONSTITUTION .............--::::: 26

CONCLUSION 2......--::cssceccecssesssersnssenscnennsncnnenvonsssoene® 30

TABLE OF AUTHORITIES

CASES Page

Apodaca v. Oregon, 406 U.S. 404 (1972) ............. 28

Brasfield v. United States, 272 U.S. 448 (1926)... 3, 22

Clark v. United States, 289 U.S. 1 (1933)............. 24

Garcia v. People, 997 P.2d 1 (Colo. 2000)........... 19, 28

Lowenfield v. Phelps, 484 U.S. 231 (1988)........... 22

Mattox v. United States, 146 U.S. 140 (1892)....... 23

McDonald v. Pless, 238 U.S. 264 (1915).............. 23

People v. Cleveland, 21 P.3d 1225 (Cal.

isi asetenisinastaketnccetecuhn aaa 21, 24, 27

Reeves v. Sanderson Plumbing Prods., Inc., 530

Aah Se I scesh clic erect tate coe 20

Remmer v. United States, 347 U.S. 227 (1954)...... 21

Richardson v. Marsh, 481 U.S. 200 (1987)........... 9

State v. Cheek, 936 P.2d 749 (Kan. 1997)............. 28

State v. Valenzuela, 643 A.2d 582 (N.J. 1994)..... 19, 28

Tanner v. United States, 483 US 107

GRWED scssicsconsccusstlvaeicemcaeuraam ae 3, 21, 23, 26, 29

United States v. Aguilar, 515 U.S. 593 (1995) ...... 12

United States v. Armijo, 834 F.2d 132 (8th Cir.

Rates ivcsdviidnpstcs ableton anal San Ue 14

United States v. Baker, 262 F.3d 124 (2d Cir.

MT cinkssisusntlcsiites be pigs eae eta ee, 17

United States v. Brown, 823 F.2d 591 (D.C. Cir.

PTE rig ikinbicitumeniigi ce ae 3, 17, 18, 21, 28

United States v. Casamento, 887 F.2d 1141 (2d

ERE Rs, Min een ea 14

United States v. Gabay, 923 F.2d 1536 (11th Cir.

| SR OREN RATE OE MEO TRS RG a.) My 14

United States v. Geffrard, 87 F.3d 448 (11th Cir.

Unio heriesticacplabamsigeemonte: tisiataminn eat iaae eae. 14

United States v. Hernandez, 862 F.2d 17 (2d Cir.

PA etvicai dn sshssoukaniecaduantaeidsaniaiatige ieee ie 17

United States vy. Huntress, 956 F.2d 1309 (5th

Re iiss inidicakGnduae eee ene 14

TABLE OF AUTHORITIES — continued

Page

United States v. Olano, 507 U.S. 725 (1993)......... 24

United States v. Reese, 33 F.3d 166 (2d Cir.

BODID. .<.c0ccececsccesccesscsccscssscoccsnssnsensnsensoncussasenesens 14

United States v Symington, 195 F.3d 1080 (9th

eB acnscsessceccccescssasecsgevsensettecsnens 3, 18, 19, 25, 28

United States v. Thomas, 116 F.3d 606 (2d Cir

DOD). ;...cccccccccccccssssscecesssccensesscnsoccosssssssonsscosnzees passim

STATUTES

UF.G, Comat, emmmtn, VE qn. cccccccsascsscecccessceccsssccsssseess 1, 28

18 U.S.C. § 1956(aX 1 (BX)... 9

RULES

Re Cpineererre re 20

8 &: st ee 2

23, Advisory Committee Notes... 2, 22

SCHOLARLY AUTHORITIES

Frank A. Bacelli, Note, United States v. Thomas:

When the Preservation of Juror Secrecy During

Deliberations Outweighs the Ability to Dismiss

a Juror for Nullification, 48 Cath. U. L. Rev.

IDS CHOBE). ..0...recccrccccssecscsssccsssccscccoceccnsessapensenees 25

Nancy S. Marder, The Myth of the Nullifying

Jury, 93 Nw. U. L. Rev. 877 (1999).............00. 25

Ran Zev Schijanovich, Note, The Second

Circuit's Attack on Jury Nullification in United

States v. Thomas: In Disregard of the Law and

the Evidence, 20 Cardozo L. Rev. 1275

PETITION FOR CERTIORARI

Petitioners, Michael Abbell and William Moran,

respectfully petition for a writ of certiorari to review the

judgment of the United States Court of Appeals for the

Eleventh Circuit in this case.

OPINIONS BELOW

The opinion of the court of appeals (App. la-29a) was

entered on November 7, 2001, and is reported at 271 F 3d

1286 (11th Cir. 2001). The order denying petitioners’

petitions for panel rehearing and rehearing en banc (App. 60a-

62a) was entered on February 5, 2002, and is not reported.

The opinion of the United States District Court for the

Southern District of Florida denying petitioners’ motion for a

new trial (App. 36a-59a) was entered on May 5, 1999, and is

not reported.

JURISDICTION

The court of appeals entered its opinion and judgment on

November 7, 2001. Petitioners timely filed petitions for panel

rehearing and rehearing en banc which were denied on

February 5, 2002. This Court has jurisdiction pursuant to 28

U.S.C. § 1254(1).

CONSTITUTIONAL AND

STATUTORY PROVISIONS INVOLVED

The Sixth Amendment of the United States Constitution

provides in pertinent part:

In all criminal prosecutions, the accused shall enjoy the

right to a speedy and public trial, by an impartial

jury...

Federal Rule of Criminal Procedure 23(b) provides:

(b) Jury of Less Than Twelve. Juries shall be of 12

but at any time before verdict the parties may stipulate in

writing with the approval of the court that the jury shall

consist of any number less than 12 or that a valid verdict

may be returned by a jury of less than 12 should the

court find it necessary to excuse one or more jurors for

any just cause after trial commences. Even absent such

stipulation, if the court finds it necessary to excuse a

juror for just cause after the jury has retired to consider

its verdict, in the discretion of the court a valid verdict

may be returned by the remaining 11 jurors.

INTRODUCTION

In 1983, Federal Rule of Criminal Procedure 23(b) was

amended to authorize a district court to excuse a deliberating

juror for “just cause” and to allow the remaining jury of 11 to

return a verdict. The purpose of the amendment was to avoid

the burdens of mistrial when, after deliberations have

commenced, “one of the jurors is seriously incapacitated or

otherwise found to be unable to continue service upon the

jury.” Advisory Committee Notes to 1983 Amendment to

Rule 23(b). Since 1983, the courts have comfortably and

unanimously excused jurors for “just cause” based on illness,

incapacity or improper external influence. The courts of

appeals, however, are in conflict on the important and

recurring question raised by the application of Rule 23(b)

where jurors allege that another juror is refusing to follow the

court’s instructions during deliberations. Specifically, they

disagree about both (i) the proper process for investigating

such allegations; and (ii) the standard by which evidence of

such allegations should be assessed.

In order to protect the secrecy of jury deliberations and an

accused’s constitutional right to a verdict from an impartial,

unanimous jury, the Second, D.C., and Ninth Circuits have

eS SP

held that a district court confronted with allegations that a

juror is refusing to follow the court’s instructions may “ot

conduct a broad probe of the jury’s deliberations. In addition,

these courts conduct an objective examination of the record to

determine if there is “any possibility” or “any reasonable

possibility” that the discharge request arose because the juror

was unpersuaded by the government’s case. United States v.

Thomas, 116 F.3d 606 (2d Cir. 1997); United States v.

Brown, 823 F.2d 591 (DC. Cir. 1987); United States v.

Symington, 195 F.3d 1080 (9th Cir. 1999). In this case, the

Eleventh Circuit, in marked contrast, authorized a sweeping

and disruptive intrusion into deliberations and allowed the

district court subjectively to weigh conflicting evidence in the

record and make credibility determinations. Moreover, the

court held that a discharge is permissible unless there is

“substantial evidence” that the request to discharge arose

from the juror’s view of the sufficiency of the evidence. App.

25a. Thus, the Eleventh Circuit affirmed the discharge of a

deliberating juror on an indisputably ambiguous record.

There is no doubt that the Second, D.C., and Ninth Circuits

would have vacated the convictions at issue and granted a

new trial based on the district court’s intrusion into the

deliberative process and its use of a subjective evaluation of

the conflicting testimony of individual jurors as the basis for

discharging a holdout juror.

The Eleventh Circuit’s approach is also wholly inconsistent

with this Court’s decisions mandating the preservation of the

secrecy of jury deliberations. In several contexts — including

a trial judge’s inquiry about a deliberating jury’s numerical

split, the admission of post-verdict juror testimony about

internal juror misconduct, and the presence of alternate jurors

during deliberations — this Court has made clear that the

general “tendency” of judicial inquiries about the status of the

jury’s deliberations is “coercive” and “is not to be

sanctioned.” Brasfield v. United States, 272 U.S. 448, 450

(1926). Moreover, additional “long recognized and very

substantial concerns support the protection of jury

deliberations from intrusive inquiry.” Tanner v. United States,

483 US. 107, 127 (1987). This authority leaves no room for

the juror interrogations conducted by the district court here.

This Court has never addressed the scope of Rule 23(b). It

should intervene to resolve the conflicting applications of the

Rule in this important context, to eliminate the Eleventh

Circuit’s utilization of a process inconsistent with this Court’s

precedents and the constitutional rights at issue, and to

preserve the secrecy of jury deliberations.

STATEMENT OF THE CASE

1. In an indictment filed in 1996, the government charged

petitioners and 73 co-defendants with (a) participating in a

RICO conspiracy (Count 1); (b) engaging in substantive RICO

violations (Count II); (c) participating in a conspiracy to

import cocaine (Count III); (d) participating in a conspiracy to

import and distribute cocaine (Count IV); and (e)

participating in a conspiracy to launder money (Count IX).

After a five-month trial, petitioners were acquitted of Count

II, but the jury was unable to reach a verdict on the other

counts, and a mistrial was declared.

A second trial commenced in 1998. This petition concerns

the jury deliberations for that trial. The jury began

deliberating on July 1, 1998. On July 9, 1998, after

approximately 20 hours of deliberations, the court received a

note from the jury forewoman Sebastian and Juror Gooden

claiming that another juror (later determined to be Juror

Alfonso) “had ‘formed an unwavering opinion — prior to,

in{ Jspite .. . of and []regardless .. . of the evidence

presented” and that Juror Alfonso was “unwilling or unable

to review, read, or view exhibits” that were contrary to that

opinion. App. 37a.

Over objection, the court interrogated Forewoman

Sebastian about the note. She testified that Juror Alfonso had

——eeaOO

1 alte ciate clita

iit Nit AIM ae TRS ee Cele 6 WE ae A RENE

expressed her views “‘right at the beginning of

deliberations.” App. 38a, 64a-65a. She also testified that

Juror Alfonso had said that RICO is “‘a stupid law and we

don’t have to regard it’”” and expressed her “opinion” that

Juror Alfonso had not engaged in “meaningful deliberations.”

Id. at 38a, 71a.

Again over objection, the court instructed the jurors that

jury nullification of the law is “not legal” and that they had a

duty to follow the law. App. 38a, 75a. The jurors were also

instructed that if any among them was unable to follow the

law, he or she should send a note to the court and there would

be no recrimination. /d. at 38a.

On July 13, 1998, the court received an unsigned note

stating that the jury was “hopelessly deadlocked.” App. 77a,

39a. The court returned the note for signature, and it returned

co-signed by Forewoman Sebastian and Juror Alfonso. /d.

Petitioners again moved for a mistrial. The court denied the

motion, emphasizing the months spent on the trial and the

“enormous expense for the government,” and stating: “I

guess that’s my way of saying I am not going to let this case

go down easily.” Jd. at 78a. But, before the court could

respond to the note, it received a further note signed by

Forewoman Sebastian and nine other jurors stating that it was

“the consensus of the rest of the jurors’” that they were not

hopelessly deadlocked. /d. at 39a.

Over renewed objections, the court again questioned

Forewoman Sebastian. She testified that the jury had not

been exposed to any extraneous matters and that Juror

Alfonso had not made any further comment indicating an

unwillingness to follow the law subsequent to the judge’s

reinstruction. App. 8la-82a. The court again asked

Forewoman Sebastian whether the jurors were ll

“deliberat[ing],” and she stated her opinion that Juror Alfonso

was not. /d. at 81a.

The government urged the court to question all jurors about

Juror Alfonso’s alleged misbehavior. Although the court ~

initially indicated that that could lead to “sure fire reversal,” it

ultimately summoned Juror Gooden, author of the first note.

Tr. 8731, App. 83a. When asked whether Juror Alfonso was

deliberating, he responded that perhaps the instructions were

“not simple enough” and that Juror Alfonso said she was

“having a hard time understanding [RICO].”” Id. at 39a,

86a-87a.

On July 14, 1998, the government again requested Juror

Alfonso’s removal. Over objection, the court questioned

Forewoman Sebastian a third time. She again stated her

belief that Juror Alfonso was not “deliberating.” App. 40a,

89a-90a.

Thereafter, the court interrogated the remaining jurors. In

response to queries from the judge as to whether Juror

Alfonso was deliberating, Jurors Grant and Butler testified

that all jurors, including Juror Alfonso, were “debating” and

“participating” in deliberations. App. 42a, 45a, 117a, 146a.

Juror Doll expressly testified that Juror Alfonso had

“discusse[d]” the case with other jurors and actively. stated

her opinion, explaining in response to further questions that

although Juror Alfonso had not “said anything this morning,”

she was “alert and looks around and listens.” Jd. at 99a.

Asked whether Juror Alfonso was deliberating, Juror

McSwiggan testified “somewhat” and “yes,” although she

“had her back up” and “really didn’t want to participate

much,” id. at 92a-93a, 40a. Juror Peralta answered “yes” and

“50/50. . . . Some days yes, some days no” to the same

question. /d. at 13la. Jurors Mandall and Cortes both stated

that while Juror Alfonso did not engage in much “verbal

participation,” she did “appear to be listening” although she

was not changing her votes on anything. /d. at 123a, 139a.

Juror Blanton testified that Juror Alfonso had spoken for

“over an hour” during deliberations prior to the court’s

reinstruction, and expressed the view that following the

7 ana

reinstruction, Juror Alfonso had only “pretended” to

deliberate “a few times.” /d. at 40a, 95a-96a. See also id. at

43a (Juror Mandall testimony characterizing Juror Alfonso as

giving “‘lip service that she is willing to’” listen).

The jurors unanimously testified that following the court’s

reinstruction, Juror Alfonso had not repeated her statement

that she would not follow the court’s instructions App 15Sa

Indeed, Juror Mandall testified that even before the court’s re-

instruction, Juror Alfonso had told the jurors that “she was

willing to listen to the law,” and that, after the instruction, she

said she could “participate in the process.” /d at 12la-122a

Juror Butler indicated that Juror Alfonso “keeps insisting that

she’s following the law.” /d. at 148a

In the course of interrogating the other jurors, the court

interrogated Juror Alfonso. She denied that she had the right

to ignore the law. App. Illa She testified that she had

“been following the law,” but did not believe that meant she

had to “change [my vote] to please the others,” id. at |13a

When asked to explain her initial criticism of the law, she

testified repeatedly that the law was “not the only thing I have

to follow,” because the instructions were “not everything

here. We have to take into consideration the testimony of the

witness[es], this, this, this and that.” /d at 102a-103a. See

id. at 108a (“I don’t have to follow only the law. I have to

use my common sense. I have to use — I have to — the

testimony, you know’); id (the law should give way if she

had “a doubt, any reasonable doubt’).

Juror Alfonso also testified that “I [have] been reading like

everybody else through the evidence. I’ve been giving my

point of views... .” App. 104a. She explained that “[s]ome

other people from the moment one voted this way. They

haven’t changed.” /d She explained that Juror Blanton was

exerting control over the jury: “Everybody that doesn’t agree

with his point of view has to go through that [explaining him

or-herself]” and that he told her that if she caused a mistrial,

she was “going to have to face the press and tell the press

why” she did not vote to convict. Jd at 110a, 102a. (Jurors

Butler, Grant and Russo confirmed that Juror Blanton was

making “threats.” /d. at 118a, 138a, 146a.) Critically, Juror

Alfonso stated that she was “following the law” but did not

agree with the other jurors: “You are telling me that I cannot

agree with you so I am not following the law.” /d. at 113a,

114a-115a. See id. at 42a (in response to the court’s query

whether the law is “‘just advisory,’” Juror Alfonso stated

“‘Tejxactly like that, no, Judge. I say [sic], “This is not

everything”. . . . We have to take into consideration a lot of

things here.””) (alterations and omission in original).

While the decision concerning Juror Alfonso’s dismissal

was pending, the court received two additional notes from the

jury, signed only by Forewoman Sebastian and inquiring (1)

whether the defense had a right to review seized evidence,

and (2) whether the jurors could have a copy of the testimony

of Douglas Hartman, a defense witness. Unbeknownst to the

judge, Forewoman Sebastian had sent the second note at the

request of Juror Alfonso. App. 45a, 46a.

Before recessing for the day, the court received yet another

note, this time from Juror Grant, stating “I quit.”” App. 45a.

The court indicated that this juror was “on the verge of tears.”

Tr. 9052. After she complained of mistreatment, she was sent

home for the day to compose herself. App. 1Sla.

Forewoman Sebastian was again summoned to testify and she

‘ndicated that unnamed jurors had been “zealous in trying to

explain the deliberation process” to Juror Grant. Id. at 152a."

Forewoman Sebastian again expressed her view that everyone

was participating in the “give and take,” except Juror

| ‘The next day the court interrogated Juror Grant who said she had been

verbally abused because she was “not going the way they want me to go.”

App. 156a-157a; see also id. at 158a-159a (inquiring how much longer

she had to stay “there and disagree” and stating that she did not “want to

get in trouble”). Ultimately, she agreed to continue deliberating. Id. at

46a.

et eee eT ee ee et 0

Alfonso. In so testifying, she did not reveal that Juror

Alfonso had made the request to review witness Hartman’s

testimony. /d. at 153a.

Despite the absence of evidence that Juror Alfonso refused

to follow the law following the court’s reinstruction and the

fact that “[it is] the almost invariable assumption of the law

that jurors follow their instructions,” Richardson v. Marsh,

481 U.S. 200, 206 (1987), the district court nonetheless

decided that Juror Alfonso was not abiding by its instructions.

Accordingly, the next day the court dismissed Juror Alfonso,

stating that although the court “accept[ed]” that she had been

deliberating, it believed she had “apparently made up her

mind that she can do pretty much what she feels like doing

regardless of what the law is.” App. 155a. The court then

explained to the jury that Juror Alfonso had been dismissed

due to “her views of the jury process and also her own

feelings . . . . It is just because I think in her view of what the

law is or isn’t, she just was unable to serve as a juror in this

case.” Id. at 161a-162a. The court stated that the dismissal

had “‘absolutely nothing to do with how I may view this

case’” and asked each juror whether he or she could continue

fair and impartial deliberations. /d at 46a.

On July 20, 1998, the remaining 11 jurors found petitioners -

guilty of the RICO and money-laundering concealment

conspiracy charges (Counts I and IX). To engage in money-

laundering concealment, a defendant must conduct a

transaction with knowledge and the intent to “conceal” or

disguise the nature, location, the source, the ownership, or the

control of the proceeds of unlawful activity. 18 U.S.C.

§ 1956(a)(1)(B){i). Petitioners’ convictions were based on

transactions in which their law firms openly issued money

orders or paid assistance money to clients in jail or the

families of such clients; billed Miguel Rodriguez-Orejuela

(“Rodriguez”), a leader of the so-called Cali Cartel who was

paying the clients’ fees; and maintained records of these

transactions. These actions were concededly unconcealed, and

petitioners denied any knowledge that Rodriguez’s payments

were the proceeds of unlawful activity. The jury was unable

to reach a verdict on the two drug conspiracy counts.

2. Petitioners filed motions for a new trial and motions for

a judgment of acquittal on all counts. Im support of the

former motion, they asserted that the decision to strike Juror

Alfonso and the process used to determine whether to strike

her violated Federal Rule of Criminal Procedure 23(b) and

petitioners’ constitutional right to a unanimous verdict by an

impartial jury. The court denied the new trial motions on

May 5, 1999. App. 59a. Ironically, in rulings that appear to

reflect Juror Alfonso’s view of the government’s case, the

court also held that no rational juror could have found

petitioners guilty on either the RICO or drug conspiracy

counts and entered judgments of acquittal on those counts.

Id. at 33a, 3a. The court refused, however, to acquit

petitioners of the money-laundering concealment conspiracy

charge.

Pertinent here, the trial court held that Juror Alfonso should

be excused for “just cause” under Fed. R. Crim. P. 23. The

court asserted that it had “‘broad discretion’ in determining

the proper investigative procedure to be used when faced with

an allegation of juror bias or misconduct.” App. 49a. The

court acknowledged that the “nature of the alleged

misconduct dictates the scope of the court’s investigation”

and that courts must proceed cautiously when such an

investigation would require intrusion upon the jury’s

deliberations. Jd. at 50a. Nonetheless, the court concluded

that the scope of its investigation — viz., the interrogation of

- all jurors, some more than once — was permissible.

In addition, the court decided that Juror Alfonso was

properly excused for “misconduct” based on her statements

- during deliberations that she had a “‘problem with the federal

law [RICO]’” and other jurors’ testimony that Juror Alfonso

had indicated that she did not have to follow the law. App.

54a. The court did not address the jurors’ unanimous

a -

testimony that Juror Alfonso had not repeated that sentiment

following the court’s reinstruction or many jurors’ testimony

that Juror Alfonso had been engaged in deliberations since the

court’s reinstruction. Nor did the court accept Juror

Alfonso’s testimony that her votes were based on the

evidence.’ Instead, the court concluded that Juror Alfonso

“did not intend to apply the law as set forth in [the court’s]

instructions” and “that the record does not reveal a

‘substantial possibility’ that Juror Alfonso’s position was due

to her belief that the evidence was insufficient to support a

conviction as to RICO conspiracy.” /d. at 56a, 55a.

In a related point, the court concluded that it was not

dismissing “the sole holdout for acquittal,” based on Juror

Alfonso’s testimony and Juror Grant’s testimony. App. 57a.

The court did not consider the coercive effect that its

interviews and dismissal of Juror Alfonso, one of two

apparent holdouts for acquittal, might have had on Juror

Grant and the jury as a whole.

Finally, the court justified its decision by stating that “it is

proper to consider the length of time invested in a proceeding

when determining whether dismissal of a juror is necessary.”

App. 57a-58a. The court pointed out that this had been a long

trial, and expressed its reluctance to cause a further

expenditure of prosecution, defense and court resources. /d

3. Petitioners appealed the denial of their motions for a

new trial and the convictions for money-laundering

concealment conspiracy to the Eleventh Circuit. The court of

appeals first acknowledged that “[n]o evidence shows that the

pertinent transactions ended up creating the appearance of

legitimate wealth for Rodriguez[].” App. 17a. The court

recognized that the money laundering statute is “designed to

* The court appears to have concluded, based on Juror Butler’s

testimony about the deliberations, that Juror Alfonso “felt that her position

in law enforcement (as a corrections officer) provided her with sufficient

knowledge to disregard the federal law.” App. 56a.

punish defendants who thereafter take the additional step of

attempting to legitimize their proceeds so that observers think

their money is derived from legal enterprises.”” Jd. The court

further acknowledged that “[t]he facts here do not appear to

be that kind of case,” because the law firms did not conceal

and, indeed, openly maintained records reflecting that

Rodriguez was the source of the funds at issue, id. The court

nonetheless upheld the conviction on the rationale that the

transactions benefited Rodriguez and concealed that he was

the source of the funds, id. at 18a-19a.°

This decision required the court to confront the district

court’s denial of petitioners’ motion for a new trial. The court

of appeals held that the district court did not abuse its

discretion by dismissing Juror Alfonso for “just cause” under

Fed. R. of Crim. P. 23(b), after other members of the jury ac-

cused her of refusing to apply the law. The court first decided

that in such circumstances, “a juror should be excused only

when no ‘substantial possibility’ exists that she is basing her

decision on the sufficiency of the evidence.” App. 25a. It

explained that it meant “for this standard to be basically a

‘beyond reasonable doubt’ standard.” Jd. The court further

approved the district court’s investigation of Juror Alfonso’s

statements and conduct during the deliberations and held that

>The government cross-appealed the judgment of acquittal on the

RICO conspiracy charge, and the court of appeals reversed. It held that

the government had proven that petitioners engaged in predicate acts

related to money laundering and obstruction of justice sufficient to support

the RICO conspiracy convictions. The court acknowledged that a person

does not engage in obstruction of justice unless his acts have the natural

and probable effect of interfering with a judicial proceeding and assumed

that Rodriguez could not be extradited (in light of the extradition

prohibition in the Colombian constitution), but nonetheless found that it

was possible that the affidavits at issue could be involved in some future

proceeding against Rodriguez. App. 22a-23a. On the basis of that

speculation, which was inconsistent with this Court’s decision in United

States v. Aguilar, 515 U.S. 593, 598-601 (1995), the court reinstated the

RICO conspiracy convictions.

“because the demeanor of the pertinent juror is important to

juror misconduct determinations, the district court is uniquely

situated to make the credibility determinations that must be

made in cases like this one: where the juror’s motivations and

intentions are at issue.” Jd. at 26a.

The court acknowledged that after the trial court’s

reinstruction on “the jury’s duty to apply the law and to obey

the court’s instructions,” Juror Alfonso “made no more direct

statements about ‘er intention not to follow the law.” App.

27a. Moreover, although several jurors testified in response

to the judge’s questions that Juror Alfonso was deliberating

and although Juror Alfonso’s testimony made clear that she

had doubts about the government’s case based on the

evidence, the court of appeals accepted the view of a

“majority of the jurors” who believed that Juror Alfonso was

not deliberating (although the district court had not done so).

Id. In addition, the court of appeals stated that Juror

Alfonso’s “own testimony on her commitment to follow the

law was not certain.” Jd. at 28a. The court of appeals thus

held that “the record supports the district court’s skeptical

view of Juror Alforso’s answers to its questions and that the

district court’s findings about Alfonso’s intentions are

supported by the record.” Jd.

Finally, the court of appeals rejected petitioners’ assertion

that the district court’s interrogation of each juror and

ultimate dismissal of Juror Alfonso “so tainted the jury pool

as to make a fair trial impossible.” App. 27a n.20. The court

stated that “[t]o find much fault with the inquiry in this case

would unduly hinder a district court’s ability to detect and

rectify a juror’s refusal to obey her duty in applying the law to

the case and obeying the court’s instructions.” Jd.

REASONS FOR GRANTING THE PETITION

I. THE COURTS OF APPEALS ARE IN CONFLICT

ABOUT THE APPLICATION OF FED. R. CRIM.

P. 2318) WHEN A JUROR IS ACCUSED BY

OTHER JURORS OF REFUSING TO FOLLOW

THE COURT'S INSTRUCTIONS.

In 1983, the Federal Rules of Criminal Procedure were

amended to authorize district courts to dismiss a juror for

“just cause” even after deliberations have commenced and to

allow a valid verdict to be returned by a jury of 11. Since

then, jurors have been dismissed for just cause based on

unavailability (due to illness or other reasons), mental or

physical impairment, exposure to external sources of

influence or bias, misconduct prior to deliberations, and self-

proclaimed refusal to follow the law, because such claims can

be resolved without delving into the jury’s deliberations. *

The courts of appeals, however, do not agree on the

standard and process for assessing when and whether a

deliberating juror may be discharged for just cause based on

other jurors’ allegations that he or she is refusing to follow

the court’s instructions. The lower courts are conflicted about

both (i) the process that may be used to investigate

accusations of internal juror misconduct related to the merits

of a case, and (ii) the standard by which such allegations

* See, e.g., United States v. Reese, 33 F.3d 166, 172-73 (2d Cir. 1994)

(juror leaving on business trip), United States v. Armijo, 834 F.2d 132,

134 (8th Cir. 1987) (juror in serious car accident), United States v.

Huntress, 956 F.2d 1309, 1312-13 (Sth Cir. 1992) (juror’s doctor states

that juror’s mental condition rendered juror unable to deliberate), United

States v. Gabay, 923 F.2d 1536, 1541-43 (11th Cir. 1991) (pre-deliber-

ation misconduct, to wit, pre-deliberation statements regarding view of the

case); United States vy. Casamento, 887 F.2d 1141, 1186-87 (2d Cir. 1989)

(juror fearful after threatening phone call to her daughter), United States v.

Geffrard, 87 F.3d 448, 451 (11th Cir. 1996) (discharging juror who stated

that her religious beliefs forbid her to return a guilty verdict).

should be assessed: The Second Circuit, D.C. Circuit, and

Ninth Circuit have made it clear that a district court

confronted with allegations of such juror misconduct may not

question jurors during deliberations about the substance of

those deliberations. In addition, and in further protection of

the jury’s deliberations, these courts of appeals apply an

objective test to the evidence of alleged internal misconduct

to determine whether there is “any possibility” or “any

reasonable possibility” that the juror is being discharged

based on his or her views of the merits of the case. Applying

this approach, these three circuits have reversed trial court

decisions discharging jurors who allegedly refused to obey

the court’s instructions.

In marked contrast, the Eleventh Circuit here authorized the

interrogation of all 12 jurors about deliberations, some more

than once, to assess whether internal juror misconduct

occurred. It refused to require the district court objectively to

assess whether there is any possibility that the juror is being

discharged based on his or her views of the merits of the case.

Instead, the Eleventh Circuit upheld the district court’s

authority to make credibility determinations despite

competing accounts by jurors in deciding that “no “substantial

possibility’ exists that [the discharged juror] [wa]s basing her

decision on the sufficiency of the evidence.” App. 25a.

The Second Circuit has expressly recognized that:

Once a jury retires to the deliberation room, the

presiding judge’s duty to dismiss jurors for misconduct

comes into conflict with a duty that is equally, if not

more, important — safeguarding the secrecy of jury

deliberations. This conflict is especially pronounced . . .

where the alleged misbehavior is a purposeful disregard

of the law, a particularly difficult allegation to prove and

one for which an effort to act in good faith may easily be

mistaken. [7homas, 116 F.3d at 618].

(16

Moreover, the court acknowledged, where “a presiding judge

receives reports that a deliberating juror is intent on defying

the court’s instructions on the law, the judge may well have

no means of investigating the allegation without unduly

breaching the secrecy of deliberations.” /d. at 621. “[T]o

determine whether a juror is bent on defiant disregard of the

applicable law, the court would generally need to intrude into

the juror’s thought processes.” Jd.

To protect the integrity of the deliberative process, the

Second Circuit took two related steps: It held that “in any

case where the juror allegedly refuses to follow the law,” a

juror may not be discharged ““‘if the record evidence discloses

any possibility that the request to discharge stems from the

juror’s view of the sufficiency of the government’s

evidence.” Jd. at 621-22 (emphasis omitted). It justified this

rule as necessary “to protect against overly intrusive judicial

inquiries into the substance of the jury’s deliberations”:

A presiding judge faced with anything but unambiguous

evidence that a juror refuses to apply the law as

instructed need go no further in his investigation of the

alleged nullification; in such circumstances, the juror is

not subject to dismissal on the basis of his alleged

refusal to follow the court’s instructions. A lower

evidentiary standard would encourage the court faced

with ambiguous evidence of such impropriety to

investigate further, eliciting testimony from jurors until

enough evidence surfaced to affirm or reject allegations

of juror nullification. One unavoidable consequence of

imposing a lower evidentiary standard would thus be to

open up the possibility that judges, in response to

demands of counsel or otherwise, would wind up taking

sides in disputes between jurors on allegations of juror

nullification — in effect, to permit judicial interference

with, if not usurpation of, the fact-finding role of the

jury. [/d. at 622.]

Cf. id. at 620 (“the very act of judicial investigation can at

times be expected to foment discord among the jurors”). See

also United States v. Hernandez, 862 F.2d 17, 23 (2d Cir.

1988) (error to discharge juror when “it is not clear in the

record that the removal was because of mental incompetence

rather than to avoid a hung jury”); United States v. Baker, 262

F.3d 124, 132 (2d Cir. 2001) (disapproving district court’s

question “‘Do you feel that the defendants were unfairly

prosecuted here?” because it “sent the inquiry unnecessarily

in the direction of the juror’s view of the merits”).

Under this approach, the Second Circuit considered the

record — one juror’s testimony that the discharged juror’s

(Number 5) position was based on the fact that “the

defendants were his ‘people,’” another’s that it was juror 5’s

belief that defendants were “good people,” two others’ that it

was based on his belief that “drug dealing is commonplace,”

two others’ that it was based on his belief that they “had

engaged in the alleged criminal activity out of economic

necessity,” while still others, including juror 5 himself,

testified that juror 5 was relying on the evidence. Zhomas,

116 F.3d at 611. The court did mot assess the relative

credibility of the jurors, but held that it “cannot say that it is

beyond doubt that Juror No. 5’s position during deliberations

was the result of his defiant unwillingness to apply the law, as

opposed to his reservations about the sufficiency of the

Government’s case against the defendants.” /d. at 624.

The D.C. Circuit’s approach is in accord with that of the

Second Circuit. In Brown, the trial court dismissed a juror

who asked to be discharged based on his “‘disagree[ment]’”

with RICO and “‘how it runs’” and “‘the way [the RICO law

is] written and the way the evidence has been presented.’”

823 F.2d at 594. The court indicated that in such cases, it had

to “confront the problem that the reasons underlying a request

for a dismissal will often be unclear” and that “a court may

not delve deeply into a juror’s motivations because it may not

intrude upon the secrecy of the jury’s deliberations.” Jd at

596. Thus, the court concluded, “unless the initial request for

dismissal is transparent, the court will likely prove unable to

establish conclusively the reasons underlying it.” Id

(emphasis supplied). As a result, the court held “that if the

record evidence discloses any possibility that the request to

discharge stems from the juror’s view of the sufficiency of the

government’s evidence, the court must deny the request.” Jd.

(citing United States v. Essex, 734 F.2d 832, 843 (D.C. Cir.

1984) (finding a violation of the defendant’s right to a

unanimous jury because there was a “‘possibilit[y]’ that the

absent juror was a ‘lone holdout for innocence in the face of a

hostile pro-conviction majority,’” id. (alteration in original)).

Again, the court did not purport to assess the juror’s

credibility, but simply concluded that the juror’s response,

noted above, “create[d] an ambiguous record,” id. at 597, and

therefore it had been error.to discharge him.

In United States v. Symington, the Ninth Circuit, too,

concluded that in light of the strong interest in protecting jury

deliberations, “where a request for juror dismissal focuses on

the quality of the juror’s thoughts about the case and her

ability to communicate those thoughts to the rest of the jury,

‘the court will likely prove unable to establish conclusively

the reasons underlying’ the request for dismissal.” 195 F.3d

at 1086 (quoting Brown, 823 F.2d at 596). The court thus

held that “if the record evidence discloses any reasonable

possibility that the impetus for a juror’s dismissal stems from

the juror’s views on the merits of the case, the court must not

dismiss the juror.” /d. at 1087 (emphasis omitted). That rule,

the court explained, is “attentive to the twin imperatives of

preserving jury secrecy and safeguarding the defendant’s

right to a unanimous verdict from an impartial jury.” Jd. The

court did not assess relative juror credibility, but simply

concluded that “while there may have been some reason to

doubt Cotey’s abilities as a juror, there was also considerable

evidence to suggest that the other jurors’ frustrations with her

derived primarily from the fact that she held a position

a a i a al ia

opposite to theirs on the merits of the case” and that those

frustrations “manifest[ed] themselves in concerns about [her]

reasonableness or ge‘ieral capacity as a juror.” Jd. at 1088."

The Eleventh Circuit’s approach is flatly inconsistent with

that taken by the Second, D.C. and Ninth Circuits. After 20

hours of deliberations, based on a note from two jurors that

another juror had made up her mind about the case, the

district court commenced an investigation that consumed four

days and entailed detailed, sometimes multiple interviews, of

all jurors, in which they were asked about Juror Alfonso and

Blanton’s statements and opinions and about their own

opinions of the deliberations and other jurors’ conduct. In

light of the patent ambiguity of the record at its

commencement and as it developed, the court of appeals’

approval of the interrogation of all jurors was unlawfully

intrusive under the rule of Thomas, Brown and Symington.

The questioning probed the substance and the process of the

jurors’ deliberations and, in addition, required the jurors to

reveal mental impressions and opinions concerning the course

of deliberations.

It is equally clear that the Eleventh Circuit did not

objectively assess the record to determine whether there was

“any possibility” or a “reasonable possibility” that Juror

* See also Garcia v. People, 997 P.2d 1, 7 (Colo. 2000) (holding that

the “trial court impermissibly invaded the jury’s deliberations” by

interviewing the foreperson about complaints that a juror was refusing to

follow the court’s instructions because “‘the mental processes of a

deliberating juror . . . must remain largely beyond examination and

second-guessing, shielded from the court as much as from the eyes and

ears of the parties and the public”); State v. Valenzuela, 643 A.2d 582,

589 (N.J. 1994) (“[t]he record on which a court may excuse a deliberating

juror must reveal with greater clarity that a juror cannot proceed with

deliberations and fulfill the function of a juror, particularly when the

record contains any suggestion that the problems regarding the juror stem

from interactions with the other jurors and not from circumstances

399

‘exclusively personal to the juror in question”).

Alfonso was discharged based on her minority view of the

evidence. As the Second, D.C., and Ninth Circuit decisions

prohibiting intrusion on the deliberative process make clear,

this assessment should be analogous to the assessment made

in deciding a motion for a directed verdict under Fed. R. Civ.

P. 50 — to wit, the judge should inquire whether there is

sufficient evidence for a reasonable jury to rule in favor of the

non-moving party without “mak[ing] credibility determin-

ations or weigh[ing] the evidence.” Reeves v. Sanderson

Plumbing Prods. Inc., 530 U.S. 133, 150 (2000) (emphasis

supplied). Thus, when faced with allegations that a juror is

refusing to follow the law, the judge should ask the /egal

question whether the evidence would persuade any reasonable

person that the juror is being discharged based on his or her

views of the merits of the government’s case. In this case,

however, the trial court erroneously believed that the proper

inquiry was whether the conflicting evidence persuaded him.

Here, while several jurors subjectively believed that even

after the court’s anti-nullification instruction, Juror Alfonso

was not following the court’s instructions, other jurors

testified to the contrary, and all jurors testified that after the

re-instruction, Juror Alfonso never said she did not have to

follow the court’s instructions. Moreover, as noted supra at

9, jurors are presumed to follow the court’s instructions.

Juror Alfonso accurately testified both that she was following

the law and that she was following the court’s express

instruction to apply her common sense and life experiences to

the testimony. Nonetheless, although it recognized the deep

ambiguity of the record, the court of appeals allowed the

district court to make credibility judgments among jurors and

hence to discredit the testimony of Juror Alfonso and that of

the jurors corroborating her testimony, and then compounded

its error by affording complete deference to the district

court’s subjective assessment of the record. App. 25a-26a. In

addition, the court of appeals made it easier to uphold the

dismissal of a holdout juror. It allowed discharge unless the

record demonstrates that there is no “‘substantial possibility”

that the discharge was based on the juror’s view of the merits

of the case.° Jd at. 25a. (emphasis supplied)—-That

approach — with its subjective assessment of the record and

lenient standard for discharge — is the antithesis of the

objective, stringent approach of the other courts of appeals.’

This Court should grant the petition and resolve the conflict

among the courts of appeals.

Il. THE COURT OF APPEALS’ DECISION IS IN

TENSION WITH DECISIONS OF THIS COURT.

The right of a federal criminal defendant to a unanimous

verdict by an impartial jury is embodied in the United States

Constitution, and that constitutional right is secured by secret

jury deliberations. “The integrity of jury proceedings must

not be jeopardized by unauthorized invasions.” Remmer v.

United States, 347 U.S. 227, 229 (1954). See also Zanner,

483 US. at 120 (describing the “weighty government interest

in insulating the jury’s deliberative process”). In several

contexts, this Court has unanimously recognized “‘the

6 The Eleventh Circuit stated that the Brown court also employed a

“substantial possibility” standard, see App. 25a n.14, but that is wrong.

The Brown court used that phrase only as an assessment of the weight of

the evidence in that case. See 823 F.2d at 596.

” Similarly, in People v. Cleveland, 21 P.3d 1225, 1236-37 (Cal. 2001),

while agreeing that a judicial investigation of misconduct related to

deliberations must be careful, the California Supreme Court declined to:

adopt the standard promulgated in Brown, and refined in Thomas and

Symington, that restricts a court’s authority to inquire into whether a

juror is unable or unwilling to deliberate and that precludes dismissal

of such a juror whenever there is “any reasonable possibility that the

impetus for a juror’s dismissal stems from the juror’s views on the

merits of the case.” —

That court instead authorized whatever inquiry is necessary to decide that

discharge is warranted by requiring the trial court to find as a

“*demonstrable reality’” that the juror is being discharged due to his or her

views of the merits of the government’s case. /d. at 1237.

cardinal principle that the deliberations of the jury shall

remain private and secret.”” Advisory Committee’s Notes on

Fed. Rule Crim. P. 23(b) (quoting United States v. Virginia

Erection Corp., 335 F.2d 868, 872 (4th Cir. 1964)). The

principles undergirding these decisions simply cannot be

reconciled with the intrusions into the deliberative process

. approved by the court of appeals in this case.

First, in Brasfield v. United States, 272 U.S. 448 (1926),

this Court held that a trial judge’s inquiry into the numerical

split among the jurors is grounds for reversal, even though the

defendant failed to object to the inquiry at the time it was

made. The Court explained that the effect of the judge's

inquiry “upon a divided jury will often depend upon

circumstances which cannot properly be known to the trial

judge or to the appellate courts and may vary widely in

different situations, but in general its tendency is coercive.”

: Id. at 450. As a result, the Court said:

[i]t can rarely be resorted to without bringing to bear in

some degree, serious, although not measurable, an

improper influence upon the jury, from whose delibera-

tions every consideration other than that of the evidence

and the law as expounded in a proper charge, should be

excluded. ... and. . . is not to be sanctioned. [/d]

Cf. id. (“[an inquiry as to numerical division] serves no useful

purpose that cannot be attained by questions not requiring the

jury to reveal the nature or extent of its division”) (emphasis

supplied). See also Lowenfield v. Phelps, 484 U.S. 231, 240

(1988) (citing Brasfield as “instructive as to the potential

dangers of jury polling”). A fortiori, the interrogations of all

jurors about the deliberations in this case intruded upon the

secrecy of deliberations and exerted a serious and improper

influence on the jury.

Second, this Court directly confronted the question whether

allegations of juror misconduct during deliberations may be

investigated and considered to impeach a jury verdict in

Tanner v. United States. The Court held in Zanner that such

allegations may be investigated and decided where it is

alleged that a jury has been infected by “extraneous” or

“external” influences (such as contact with an outsider or

exposure to media accounts of a crime), but not where the

allegations of misconduct involve “internal” matters. 483

U.S. at 117-20 (citing numerous cases).

The Court interpreted Federal Rule of Evidence 606 to bar

such post-verdict inquiries into internal matters based in part

on the Senate’s rejection of a House bill that would have

opened “verdicts up to challenge on the basis of what

happened during the jury’s internal deliberations, for

example, where a juror alleged that the jury refused to follow

the trial judge’s instructions or that some of the jurors did not

take part in deliberations.” /d at 124 (quoting Sen. Rep. No.

93-1277, at 13 (1974)) (emphasis supplied). And, although

Congress was protecting the finality of jury verdicts, it was

also guarding the secrecy of deliberations:

[C]ommon fairness requires that absolute privacy be

preserved for jurors to engage in the full and free debate

necessary to the attainment of just verdicts. Jurors will

not be able to function effectively if their deliberations

are to be scrutinized in post-trial litigation. In the

interest of protecting the jury system and the citizens

who make it work, rule 606 should not permit any

inquiry into the internal deliberations of the jurors. [/d

at 124-25 (quoting S. Rep. No. 93-1277, at 14)].°

Applying this framework, this Court held that evidence of

juror intoxication and drug use during deliberations was an

8 See also McDonald v. Pless, 238 U.S. 264, 267-68 (1915) (rejecting

use of juror testimony to impeach the verdict because it would “make

what was intended to be a private deliberation, the constant subject of

public investigation”); Mattox v. United States, 146 U.S. 140, 148-49

(1892) (allowing jurors to testify about external influences, but not about

the effect those influences had on their deliberations).

“internal” matter and could not be used to impeach the jury’s

verdict. This external/internal distinction thus bars the

investigation of juror misconduct during deliberations in

order to protect the secrecy of jury deliberations. Cf. also

United States v. Olano, 507 U.S. 725, 742 (1993) (Kennedy,

J., concurring) (allowing alternate jurors into deliberation

room is unlawful and, if objected to, virtually certain to be

reversible error, because the rule “is based on certain

premises about group dynamics that make it difficult for us to

know how the jury’s deliberations may have been affected”).

Many of the considerations underlying the rules prohibiting

judicial inquiry into the numerical split of a jury during

deliberation, post-verdict inquiries into deliberations, and the

presence of alternate jurors in the jury room during

deliberations, apply with full force to the instant case.” “The

secrecy of deliberations is the cornerstone of the modern

Anglo-American jury system,” and judicial probes into those

deliberations create two principal dangers. Thomas, 116 F.3d

at 618.

First, the disclosure of deliberations endangers the

operation of the deliberative process itself. “Freedom of

debate might be stifled and independence of thought checked

if jurors were made to feel that their arguments and ballots

were to be freely published to the world.” Clark v. United

States, 289 U.S. 1, 13 (1933). See also Thomas, 116 F.3d at

618-19 (citing numerous courts and commentators).'° Jurors

9 See also Cleveland, 21 P.3d at 1231 (“[mjany of the policy

considerations underlying the rule prohibiting post-verdict inquiries into

the jurors’ mental processes apply even more strongly when such inquiries

are conducted during deliberations”).

10 See also Ran Zev Schijanovich, Note, The Second Circuit's Attack on

Jury Nullification in United States v. Thomas: In Disregard of the Law

and the Evidence, 20 Cardozo L. Rev. 1275, 1313-19 (1999) (explaining

that one of Fed. R. Evid. 606(b)’s purposes is ensure open and free debate

among jurors).

simply cannot express themselves freely in the jury room if

their mental processes are subject to scrutiny.

Second, judicial questioning about deliberations affects

those deliberations. As the 7homas court explained, “the very

act of judicial investigation can at times be expected to

foment discord among jurors”:

Were a district judge permitted to conduct intrusive

inquiries into — and make extensive findings of fact

concerning — the reasoning behind a juror’s view of the

case, or the particulars of a juror’s (likely imperfect)

understanding or interpretation of the law as stated by

the judge, this would not only seriously breach the

principle of the secrecy of jury deliberations, but it

would invite trial judges to second-guess and influence

the work of the jury. [/d. at 620.]

See also Symington, 195 F.3d at 1086. A court’s inquiries

about a juror’s expressed or unexpressed views related to the

case will most often implicitly convey to the jury the court’s .

disapproval of those views.'' Jurors who are aware that the

juror under investigation favors acquittal may conclude that

the judge regards such a position as unreasonable or incorrect,

a conclusion that would have a substantial effect on the jury.'”

See also Frank A. Bacelli, Note, United States v. Thomas:

'! See also Nancy S. Marder, The Myth of the Nullifying Jury, 93 Nw.

U. L. Rev. 877, 949-50 (1999) (“[t}here is a danger that the judge will be

guided by his or her views of what the appropriate outcome of the case

should be and may be more likely to dismiss a juror whose views do not

accord with those of the judge”).

'2 In this case, the district court, after interviewing every juror,

informed the jury that Juror Alfonso had been dismissed because of her

““views of the jury process’” and “‘her own feelings,”” App. 46a. The

interviews in combination with this statement created a significant danger

. that the remaining jurors were influenced by the judge’s disapproval of

Juror Alfonso. And, indeed, Juror Grant, who appears to have been a

holdout for acquittal with Juror Alfonso (see id. at 45a-46a), changed her

position shortly after Juror Alfonso’s discharge.

When the Preservation of Juror Secrecy During Deliberations

Outweighs the Ability to Dismiss a Juror for Nullification, 48

Cath. U. L. Rev. 125, 159 (1998) (“the deeper the

investigation’s probe, the more likely a juror’s opinion of the

trial will be revealed to a judge, who may then unintentionally

side with certain jurors”). Judicial probing of deliberations

operates as the Heisenberg Uncertainty Principle does: In

order to make a measurement or determination, the measurer

or judge must intrude upon the situation, and, by doing so, he

or she disturbs the very system being measured or judged. In

physics, failure to recognize this effect may render a

measurement inaccurate, while in law, failure to prevent this

effect may render the outcome unjust and result in a violation

of the accused’s constitutional rights.

In sum, this Court’s cases demonstrate that “long

recognized and very substantial concerns support the

protection of jury deliberations from intrusive inquiry.”

Tanner, 483 US. at 127. The Eleventh Circuit’s

interpretation of Rule 23(b) — allowing district courts to

conduct a full scale probe of jury deliberations based on

allegations that a juror is refusing to follow the court’s

instructions — is in substantial, irreconcilable tension with this

authority and should be reviewed by this Court.

Il. THE UNIFORM AND CORRECT APPLICATION

OF RULE 23(B) IS CRITICAL TO THE FAIR

ADMINISTRATION OF JUSTICE AND THE

CONSTITUTION.

This Court’s intervention is critical, because the uniform,

correct application of Rule 23(b) is of central importance to

the administration of justice and federal constitutional rights.

The secrecy of jury deliberations is “essential to the proper

functioning of juries,” and “disclosure of the substance of jury

deliberations may undermine public confidence in the jury

system.” Thomas, 116 F.3d at 618 (citing Note, Public

Disclosures of Jury Deliberations, 96 Harv. L. Rev. 886, 889

(1983)). In addition, the fundamental importance of the

accused’s right to a unanimous verdict by an impartial jury is

implicated by the dismissal of jurors based on their views and

conduct during deliberations. The Eleventh Circuit has

substantially undermined these important constitutional

principles, yielding to current fears about jury nullification

and the pressure resulting from the heavy caseload of the

federal courts.

On the one hand, jurors have the power, but not the right, to

nullify the law and vote to acquit, and the courts are in

agreement that a juror may be disqualified for his or her

refusal to follow the court’s instructions as to the law. See id.

at 615 (citing authority). On the other hand, it is extremely

difficult to distinguish “between the juror who favors

acquittal because he is purposefully disregarding the court’s

instructions on the law, and the juror who is simply

unpersuaded by the Government’s evidence,”’’ and equally

difficult to conduct the investigation necessary to make such a

distinction, because jury deliberations must remain secret. /d.

at 621.

'? See Cleveland, 21 P.3d at 1238 (“[t]he circumstances that a juror

does not deliberate well or relies upon faulty logic or analysis does not

constitute a refusal to deliberate and is not a ground for discharge.

Similarly, the circumstance that a juror disagrees with the majority of the

jury as to what the evidence shows, or how the law should be applied to

the facts, or the manner in which deliberations should be conducted does

not constitute a refusal to deliberate and is not a ground for discharge”).

This case demonstrates the difficulty of the determination. Several

jurors who disagreed with Juror Alfonso on the merits reported comments

before the court’s reinstruction that supported an inference that Juror

Alfonso was refusing to follow the court’s instructions. Others (Jurors

Butler and Grant) provided contrary testimony. Juror Alfonso said RICO

was complicated and that her disagreements with other jurors arose from

her application of common sense and life experiences. See App. 103a,

llla. Plainly, the record is ambiguous on the basis of Juror Alfonso’s

views about the case.

To add to the difficulty, a court does not have the option of

discharging a juror for “just cause” if there is any doubt about

whether he or she is nullifying as opposed to being merely

unpersuaded by the evidence. This is because Rule 23(b)

must be interpreted and applied without infringement of the

defendant’s constitutional right to trial by impartial and

unanimous jury. See U.S. Const. amend. VI (“[ijn all

criminal prosecutions, the accused shall enjoy the right to a

speedy and public trial, by an impartial jury”); Apodaca v.

Oregon, 406 U.S. 404, 369-71, 382, 400, 414 (1972) (Powell,

J, concurring) (Douglas, J., dissenting) (Marshall, J.,

dissenting) (Steward, J., dissenting) (five justices agreeing

that a criminal verdict must be unanimous in federal triats).

The dismissal of a juror based on doubts about the

government’s case would violate the accused’s right to an

impartial and unanimous jury. See Thomas, 116 F.3d at 621;

Symington, 195 F.3d at 1086; Brown, 823 F.2d at 596.'* Even

the appearance of such a dismissal would substantially

damage public confidence in the jury system.

Simply put, before dismissing a juror based on allegations

that he or she is refusing to follow the court’s instructions, a

court must be certain that the juror is not simply unpersuaded

by the government’s case. To achieve the necessary level of

certainty, the court would have to conduct an investigation

that probes the jury’s deliberations and violates the

established principle that such deliberations should remain

secret. Acknowledging the constitutional dilemma, the

\4 See Garcia, 997 P.2d at 8 (“we are equally concerned about a trial

court removing a deliberating juror in a manner that appears to facilitate

the rendering of a guilty verdict”); State v. Cheek, 936 P.2d 749, 761

(Kan. 1997) (“[tJhe right to a unanimous verdict, or, in the alternative, a

jury unable to reach a verdict and the resulting mistrial . . . would be lost if

we permitted removal of a juror without reasonable cause so that a unani-

mous verdict could be reached”) (citation omitted); Valenzuela, 643 A.2d

at 587 (holding that a trial court cannot discharge a juror “merely because

that juror is one “whose position is at odds with the rest of the jury’”).

Second, D.C., and Ninth Circuits have held that unless the

juror’s refusal to obey the court’s instructions is essentially

undisputed on the record, the district court must not probe the

deliberative process, may not weigh conflicting evidence and

testimony, and may not discharge the juror at issue. The

Eleventh Circuit, in contrast, has authorized a disruptive

intrusion into deliberations, has allowed the district court

subjectively to weigh conflicting evidence and make

credibility determinations, and permitted the discharge of a

juror on a patently ambiguous record. This approach, we

submit, incorrectly interprets Rule 23(b) and thereby violates

the accused’s constitutional rights and will erode public

confidence in the jury system by undermining jury secrecy

and creating an appearance of judicial manipulation. This

question deserves the Court’s attention.

It may well be that the Eleventh Circuit, by authorizing

thorough investigations of the deliberative process, was

simply attempting to purify the jury by facilitating the

removal of jurors who arguably. disregard the court’s

instructions. But, as this Court said in an analogous context,

“[i}t is not at all clear. . . that the jury system could survive

such efforts to perfect it.” Tanner, 483 U.S. at 120. And,

while the Eleventh Circuit’s lenient approach would assist

district courts in moving their dockets by making it easier to

discharge a juror who stands in the way of a verdict, the

stricter application of Rule 23(b) by other ccurts of appeals —

which precludes discharge of a juror on an ambiguous

record — effectively eliminates this incentive to infringe

constitutional rights.'°

'® The district court here referred several times to the time the case had

consumed. See App. 64a (“[w]e have been at this for, excluding matters

between trials and before trials, . . . for 8 months almost in trial. I totally

disagree with the concept that we are at a point where we ought to do

nothing. . . . 1 am going to do something”); id at 78a (expressing a desire

“not . . . to let this case go down easily”).

The conflict on the proper application of Rule 23(b) in

these circumstances intensifies the importance of this Court’s

review. It is fundamentally unfair for a criminal defendant in

New York or Washington, D.C., to be treated differently in

this regard than a defendant in Florida or Georgia. And,

equally to the point, it is improper for members of jury

venires to be subjected to differing levels of judicial

intrusiveness and standards for discharge based on nothing

more than geographical location.

Under the Eleventh Circuit’s approach, the classic movie

Twelve Angry Men, which embodies our common

understanding of how juries can and should function under

our Constitution, would have been very different. In the

classic film, the holdout juror is accused by the others of

nullification, and extended deliberations follow. In the

Eleventh Circuit’s hypothetical re-make, the holdout juror is

accused of nullification by his fellows; judicial interviews

ensue; the juror is dismissed, and a unanimous verdict 1s

reached with an unjust result. Both the nature of the process

and the outcome are damaged, or at least changed beyond

recognition, by this approach.

This Court should grant the petition to resolve the conflict

among the lower courts on this important question of federal

law and to establish a uniform interpretation of Federal Rule

of Criminal Procedure 23(b) that is consistent with this

Court’s precedent protecting the secrecy of jury deliberations

and the accused’s constitutional right to an impartial,

unanimous jury.

CONCLUSION

The petition for certiorari should be granted.

BRUNO A. RISTAU

4500 Foxhall Crescents,

N.W.

Washington, D.C. 20007

(202) 965-3810

SCOTT A. SREBNICK

2400 South Dixie Highway

Suite 200

Miami, FL 33133

(305) 285-9019.

Counsel for Michael Abbell

May 1, 2002

Respectfully submitted, _

CARTER G. PHILLIPS

VIRGINIA A. SEITZ*

SIDLEY AUSTIN BROWN &

WOOD LLP

1501 K Street, N.W.

Washington, D.C. 20005

(202) 736-8000

Counsel for Petitioners

G. RICHARD STRAFER

G. RICHARD STRAFER, P.A.

2400 South Dixie Highway

Suite 200

Miami, FL 33133

(305) 857-9090

Counsel for William Moran

* Counsel of Record

APPENDICES

Ste int}

aes.)

APPENDIX A

UNITED STATES COURT OF APPEALS

ELEVENTH CIRCUIT

No. 99-12058

UNITED STATES OF AMERICA,

Plaintiff-Appellee-Cross-Appellant,

Vv.

MICHAEL ABBELL, WILLIAM MORAN,

Defendants-Appellants-Cross-Appellees.

Appeals from the United States District Court

for the Southern District of Florida.

Nov. 7, 2001

Before EDMONDSON, FAY and GARWOOD,” Circuit

Judges,

PER CURIAM:

Defendants Michael Abbell (“Abbell”) and William Moran

(“Moran”) (together “Defendants”), appeal their conviction

for COnspiracy to launder money and appeal the district

court’s denial of their motions for new trial. The government

CrOSS-appeals the district court’s judgment of acquittal on the

govermmment’s charges of RICO conspiracy and the sentencing

court’s application of the sentencing guidelines.

We affirm the district court’s denial of judgment for both

Defendants on the money laundering conspiracy, reverse the

_” Honorable Will L. Garwood, U.S. Circuit Judge for the Fifth Circuit,

sitting by designation.

agehree COut s Heme i YUH, Fs, Rese, Dedenants, Wt,

the RICO conspiracy charges, affirm the denial of Defend-

ants’ requests for a new trial, and remand the case to the

district court for resentencing in the light of our opinion.’

STATEMENT OF THE CASE

In 1996, the government filed a “Fourth Superseding

Indictment” charging Defendants, and over 70 other code-

fendants, with these offenses: 1) participating in a RICO

conspiracy (Count I); 2) engaging in substantive RICO

violations (Count I); 3) participating in a conspiracy to

import cocaine (Count III); 4) participating in a conspiracy to

import and distribute cocaine (Count IV); and 5) participating

in a conspiracy to launder money (Count [X). The gov-

ernment first prosecuted Defendants at trial beginning in

1997. Defendants were acquitted of the substantive RICO

count (Count II) after a five-month trial, but the jury could

not reach a verdict on the other counts. The district court

declared a mistrial on those counts.

The government tried Defendants a second time beginning

in 1998. The district judge did not grant Defendants’ motions

for judgment of acquittal: motions made on all counts at the

close of the government’s case and after all of the evidence.

During jury deliberations, the court received word that one of

the jurors was behaving improperly and refusing to obey the

law or to obey the court’s jury instructions. The court then

! Defendants’ motion to dismiss the government’s appeal for lack of

jurisdiction is denied. The government's notice of appeal was timely. See

18 U.S.C. § 3731; Fed. R.App. P. 4(b)(1)(B)(i), (0(2); United States v.

Rothseiden, 680 F.2d 96, 97 (11th Cir.1982); United States v. McInnis,

601 F.2d 1319, 1322-23 (Sth Cir.1979). Furthermore, the requirement

that the government obtain approval under 18 U.S.C. § 3742(b) to pros-

ecute this appeal is not jurisdictional. United States v. Hall, 943 F.2d 39,

41 (11th Cir.1991). The government stated in its response to the motion

to dismiss that approval was obtained. See id.

SANfe fe UM NNEUCOHS WVU te ‘leplitey St nulifitiion

and about the jury’s duty to apply the law as instructed by the

court. After receiving more complaints from jury members,

the court conducted an inquiry into the conduct of one of the

jurors. The court talked with the juror in question and with

each member of the jury in an attempt to ascertain whether

the juror’s conduct warranted her dismissal.

Over Defendants’ objections, the district court dismissed

the juror. The court had concluded that the juror was not

applying the law to the case. Then, the jury found Defend-

ants guilty of the RICO conspiracy (Count I) and money

laundering conspiracy (Count IX) counts. The jury could not

reach a verdict on the counts charging conspiracies to import

and distribute cocaine (Counts III and IV).

Defendants filed motions for a new trial based on the

juror’s dismissal and on their discovery that another juror

planned to write a book about the trial. The court denied the

motions for a new trial. The court granted a post-trial

judgment of acquittal on the RICO conspiracy charges (Count

I) and on the conspiracy to import and distribute cocaine

charges (Counts III and IV), but allowed the jury’s guilty

verdict on the money laundering conspiracy to stand.

_Abbell and Moran were sentenced to 87 months and 60

months in prison, respectively. Abbell is free pending this

appeal. Moran, who fled the jurisdiction before the verdict,

was captured and is incarcerated.

Defendants appeal the district court’s denial of judgment of

acquittal on the money laundering conspiracy charge (Count

IX) and the district court’s denial of their motion for new trial

based on the jury problems. The government cross-appeals

the district court’s entry of judgment of acquittal on the RICO

conspiracy charge (Count I) and the district court’s calcu-

lation of Defendants’ specific offense levels pursuant to the

United States Sentencing Guidelines § 2S 1.1.

cP Cs AR De a lal SE el

1. BACKGROUND *

In the 1980s and 1990s Miguel Rodriguez-Orejuela was

one of the leaders of a widespread cocaine producing and

smuggling empire that imported large quantities of cocaine

into the United States. The organization widely know as the

Cali Cartel (the “Cartel”) smuggled cocaine into the United

States by creatively concealing the cocaine and by using front

businesses that were engaged in drug smuggling.

The Code of Silence and Efforts to Avoid Extradition

Rodriguez-Orejuela and other leaders of the Cartel main-

tained a strict code of silence among their employees.

Employees were told not to cooperate with authorities if

employees were ever arrested. To maintain this code of

silence the Cartel utilized a carrot-and-stick approach. On the

one hand, the Cartel paid the attorney’s fees of members and

expenses for those members’ families and, on the other hand,

threatened those employees who were arrested and their fam-

ilies with injury or death if they cooperated with authorities.

Rodriguez-Orejuela also conducted an active campaign of

collecting sworn statements from his employees to shield

himself from prosecution or extradition to the United States.

Members or employees of the Cartel apprehended by police

would often soon thereafter sign affidavits disavowing

knowledge of, or involvement with, Rodriguez-Orejuela, who

was often named as a codefendant in prosecutions of persons

apprehended by United States’ authorities.

Later this program expanded to include taking deposition

testimony from certain people who had been arrested in the

United States. During deposition, they would give statements

2 Because this appeal concerns charges where the jury found for the

government, we take the facts in the light most favorable to the

government’s theory of the case. See United States v. Taylor, 972 F.2d

1247, 1250 (11th Cir.1992).

similar in nature to the statements in the affidavits. Persons

were picked to give such deposition testimony based on the

degree to which Rodriguez-Orejuela was implicated in their

case by other evidence and by the degree to which he thought

that the person would provide answers favorable to

Rodriguez-Orejuela.

The Plan in Action

The evidence presented in this case centers around

Defendants’ acts relating to the arrest (due to four successful

investigations by United States authorities) and trials of drug

traffickers. In November 1991, a group of people led by

Gustavo Naranjo (“Naranjo”) was arrested after a shipment of

cocaine was imported into Miami inside concrete pillars and

then transported to Texas. In April 1992, a group of people

led by Harold Ackerman (“Ackerman”) was arrested in

connection with cocaine disguised in frozen vegetables. In

April 1993, a group of people led by Carlos Torres (“Torres”)

was arrested for conspiracy to import 500 kilograms of

cocaine. In September 1993, a group of people led by Raul

Marti (“Marti”) was arrested in connection with a drug

smuggling operation run out of a coffee-importing business.

The Naranjo Case

In August 1991, cocaine was discovered hidden inside

concrete posts that were being delivered to the port of Miami.

Customs agents set up surveillan¢e of the shipment. In

November 1991, a portion of the shipment was removed from

a warehouse and transported to Texas where the cocaine was

removed from the concrete posts. In Texas, Naranjo, Tommy

Johnson, William Brooks, Anibal Restrepo and J.C. Lanier

were arrested.

Customs Agent Edward Kacerosky, who was deeply

involved in the pertinent case, met with Naranjo shortly after

his arrest. Naranjo began to cooperate with authorities and

made some recorded phone calls to Rodriguez-Orejuela and

another Cartel employee in Miami. The arrests in this case

were made public on 25 November 1991. Searches were then

conducted yielding a seizure of 12,250 kilograms of cocaine.

After the arrests were made public, Joel Rosenthal, a

Miami lawyer, flew to Texas and met with Naranjo. Naranjo

stopped cooperating after the visit from Rosenthal. Rosen-

thal arranged for Texas lawyer Frank Jackson to represent

Naranjo. Rosenthal paid Jackson with money from

Rodriguez-Orejuela. Naranjo was convicted in March 1992.

The Ackerman Case

Agent Kacerosky continued his investigations based on

information he obtained from the Naranjo case. This activity

led to the arrest of Harold Ackerman, Carlos Giron, Pedro

Pablo Gomes and Jacome Milanes for importing cocaine

hidden in frozen vegetables. Searches resulted in a seizure of

6,650 kilograms of cocaine and of detailed ledgers showing

millions of dollars in proceeds from cocaine sales and

showing millions of dollars having been shipped back to

Rodriguez-Orejuela in Columbia.

Rodriguez-Orejuela told Ackerman all about the code of

silence back when Ackerman had been brought into the

business. Rodriguez-Orejuela also had told Ackerman that, if

Ackerman was ever arrested, his lawyer would be paid for

and his family would be taken care of. Whenever Ackerman

brought a new person into the smuggling activities, Rod-

riguez-Orejuela would tell them about the code of silence.

Before Ackerman took over certain smuggling activities, he

was introduced to Defendant Moran who was told that

Ackerman would now be in charge.

Ackerman hired lawyer Robert Moore and instructed

Moore to hire other lawyers for his codefendants. Francisco

Laguna (“Laguna”) (who worked for Defendant Abbell) ,

3 Central to the government’s case, Laguna’s testimony throughout the

trial was that Abbell and he were in constant communication about the

visited Ackerman in prison a few days after Ackerman’s

arrest, and Ackerman asked Laguna to relay a message to

Rodriguez-Orejuela that Ackerman wanted his attorney’s fees

paid. Ackerman was threatened by Gonzalo Paz, one of

Rodriguez-Orejuela’s Colombian attorneys, that he should

not cooperate with police. After a trip to Colombia, Moore

also relayed a message from Rodriguez-Orejuela to Acker-

man that he should not cooperate with authorities or

Ackerman’s family would be killed.

Ackerman retained an independent lawyer, Ed Shohat,

in October 1992. While representing Ackerman, Shohat

received a call from Defendant Abbell. Abbell told Shohat

that Rodriguez-Orejuela had agreed to pay his legal fees and

wanted Ackerman to sign an affidavit that both Shohat and

Abbell knew to be false. Shohat refused to have Ackerman

sign the affidavit. —

Defendant Moran represented Carlos Giron who was

arrested and went to trial with Ackerman. When Shohat

pursued a coercion defense for Ackerman, Moran asked if

Shohat had received permission from Rodriguez-Orejuela

to do so. All of the defendants in the Ackerman case

were convicted.

The Torres Case

Working for Rodriguez, Carlos Torres was arrested in

April 1993 for charges involving a 500-kilogram cocaine

conspiracy. He pleaded guilty nine months later.

Torres hired Miami lawyer Stephen Golembe, who had

earlier successfully represented Torres’ wife. Torres’ wife

called Rodriguez-Orejuela to obtain money for her husband’s

legal fees. Rodriguez-Orejuela told her to talk to Moran,

which she then did. Moran told Mrs. Torres that her husband

work Laguna was doing for Rodriguez-Orejuela and that Laguna’s

activities were directed and approved by Abbell.

had to pick Moran as his lawyer because Rodriguez-Orejuela

had said so. Moran met with Torres after Torres’ initial

appearance before the district court. Moran told Torres that

Moran was going to Colombia. Torres told Moran to tell

Rodriguez-Orejuela and Jorge Lopez to change all the beeper

numbers because the police had them. Moran wrote this

information in his notes.

Moran requested and received money from Rodriguez-

Orejuela for attorney’s fees for Torres and his codefendants.

Moran was able to obtain a $250,000 corporate surety bond

for Torres and faxed a letter to Rodriguez-Orejuela requesting

that property used to collateralize the bond come from “clean

money.” It was never necessary to put up the money for the

bond: the government successfully appealed the bond ruling

and kept Torres in jail.

Torres fired Moran after hearing that Moran had written

the prosecutor to inquire about a plea bargain. Torres

went back to Golembe, but he fired Golembe when Golembe

filed a statement with a probation officer that implicated

Rodriguez-Orejuela. Torres then hired Laguna and Ferguson.

Laguna submitted a new statement on behalf of Torres that

did not implicate Rodriguez-Orejuela.

The Marti Case

Agent Kacerosky was able to identify another smuggling

operation from the records obtained in the Ackerman case. In

September 1993, authorities searched coffee containers that

had arrived in Miami in August and had been under sur-

veillance since their arrival. Authorities seized over 5,600

kilograms of cocaine. Raul Marti, Oscar Rabasa, Rodney

Paterson and Richard Carlyle were arrested for involvement

with the importation of the cocaine.

Marti hired Miami lawyer Dan Forman to represent him.

Laguna informed Forman that Laguna represented Rodriguez-

Orejuela and wanted Marti to sign one of the exculpatory

affidavits. When Forman informed Laguna that he would not

tell his client to sign a false affidavit, Laguna told Forman

that Rodriguez-Orejuela would not pay Marti’s legal fees

unless Marti signed the affidavit.

Later, Laguna visited Marti in jail without Forman’s

permission. Laguna then called Forman to inform him that

funds were being transferred to him. Forman notified the

government of the $100,000 he received and turned it over to

the government.

Cash Payments to Prisoners and Family Members

During his representation of Giron, Moran’s secretary gave

Giron’s wife $5,000 in cash that Giron’s wife believed to

have come from Rodriguez-Orejuela. In May 1993, Moran

had a courier deliver $10,000 to Torres’ wife. After receiving

the money, Mrs. Torres was arrested and deported to

Colombia. After Giron was convicted and he retained Ristau

& Abbell, the firm began paying about $100 a month into his

prison commissary account. Ristau & Abbell also made

payments into Torres’ commissary account. The advances to

Giron and Torres were made for about a year. Ristau &

Abbell also made payments into the commissary accounts of

people who were not clients of the firm. All of the payments

were made using money orders as required by the Bureau of

Prisons’ regulations.

Laguna delivered cash payments to Giron’s wife, to

Torres’ wife and to Torres’ son. Laguna also arranged for a

corporate surety bond in the amount of $500,000 for Raul

Marti, which required a $75,000 payment to a bail bondsman.

Laguna and Abbell asked Ferguson to receive the cash

payment and to forward the money to Marti’s wife. Ferguson

received the money and forwarded it to Marti’s wife.

10a

Il.

The Money Laundering Conviction

The structure of the money laundering statute, 18 U.S.C.

§ 1956, makes it illegal to engage knowingly in acts involv-

ing illegally obtained money either to promote a criminal

activity or to conceal the source of the funds. The jury, by

special verdict in this case, found that Defendants had

engaged in acts to conceal the source of the funds, not to

promote illegal activity.*

Defendants argue on appeal that the government failed to

prove that Defendants ever joined or intended to join an

illegal agreement to violate the money-laundering conceal-

ment statute. Also Defendants argue—more specifically—

that the government could not show that they agreed to enter

such an agreement because the government never showed that

the transactions that actually took place were illegal. Defend-

ants say the government failed to produce sufficient evidence

that 1) the funds involved in the transactions were from

narcotics proceeds; 2) that Defendants knew the funds were

from narcotics proceeds; and 3) that the purpose of the

transactions was to disguise the source or ownership of the

funds involved or to create the appearance of legitimate

wealth for Rodriguez-Orejuela.

‘ The jury therefore convicted Defendants under the concealment part

of the money laundering statute, 18 U.S.C. § 1956(a)(1)(B)(i), which says:

“Whoever, knowing that the property involved in a financial

transaction represents the proceeds of some form of unlawful activity,

conducts or attempts to conduct such a financial transaction which in fact

involves the proceeds of specified unlawful activity—knowing that the

transaction is designed in whole or in part to conceal or disguise the

nature, the location, the source, the ownership, or the control of the

proceeds of specified unlawful activity” violates the statute.

lla

Defendants first argue that the government failed to present

evidence that the actual funds used in the pertinent transac-

tions came from illegal activity. Pointing to precedents, they

say that, when the government fails to trace directly the funds

used in the transactions, it must at least show that no source

of legitimate income could have generated the funds used or

that the funds used come from a source of funds that are

commingled with illegally obtained funds. But, Defendants

overstate the holdings in the cases upon which they rely.

In United States v. Eastman, 149 F.3d 802, 804 (8th

Cir.1998), the Eighth Circuit said that it was sufficient

evidence to support a jury verdict for the funds to come from

illegal sources if the government showed defendant had no

legitimate source of income to create these funds. In United

States v. Westbrook, 119 F.3d 1176, 1191 (Sth Cir.1997), the

Fifth Circuit said it was sufficient evidence to support a jury

determination if the government showed that “defendant’s

cash outflow in a financial transaction exceed[ed] his legiti-

mate income.” These cases decided issues about whether the

proof in those cases was sufficient to support a jury verdict,

not about the degree of proof that is required as a minimum.

In this case, the government presented evidence that the

Cartel received proceeds from drug sales in the hundreds of

millions of dollars. Evidence was presented that much of this

money was kept in Miami and used to finance Cartel opera-

tions and that large sums of it were transported to Colombia —

for Rodriguez-Orejuela’s use. When a jury hears evidence

that a drug operation is bringing in hundreds of millions of

dollars, keeping large sums in Miami, and sending large sums

to Rodriguez-Orejuela in Colombia, the jury can reasonably

infer that the money Rodriguez-Orejuela used to pay lawyers

defending himself and his employees from prosecution for

drug trafficking is coming from specified illegal activity.

Defendants argue that evidence showed that Rodriguez-

Orejuela, in Colombia, owned a wide variety of “legitimate”

eT ne

12a

businesses, including a chain of pharmacies, grocery stores,

construction companies, and a soccer team from- which

Rodriguez-Orejuela could have paid Defendants. We will

accept that Rodriguez-Orejuela’s businesses produced some

amount of cash flow from which the funds used in trans-

actions underlying this case might have been derived. We,

however, will not accept that the evidence demanded a find-

ing that Rodriguez-Orejuela’s businesses were “legitimate.”

Defendants forget that our job is to review the sufficiency

of the evidence: not to choose between competing interpre-

tations. “It is not necessary that the evidence exclude every

reasonable hypothesis of innocence or be wholly inconsistent

with every conclusion except that of guilt, provided that a

reasonable trier of fact could find that the evidence

established guilt beyond a reasonable doubt. A jury is free to

choose among the constructions of the evidence.” United

States v. McDowell, 250 F.3d 1354, 1365 (11th Cir.2001)

(quoting United States v. Calderon, 127 F.3d 1314, 1324

(1 1th Cir.1997)).

Defendants point us to no evidence on the amount of

money that these companies made, and they offered no

formal documents proving the existence of these companies

or the amount ef income Rodriguez-Orejuela himself derived

from these companies. But, more important, the government

presented evidence that all of Rodriguez-Orejuela’s ‘legiti-

mate” businesseswere funded with narco-profits. In addition

to supporting a finding that the ultimate source of the money

received by Defendants was illegal activity, we think the

government’s evidence on this point supports a finding that

Rodriguez-Orejuela’s illegal and legal moneys—to the extent _

legal moneys existed—were commingled, thus tainting all

funds originating from Rodriguez-Orejuela.” See United

5 The amount of illegal money that needs to be combined with another,

larger amount of legal money need only be slight to render all the money

commingled and, therefore, illegal. And, once the illegal and legal

scene aaa i

13a

States v. Cancelliere, 69 F.3d 1116, 1120 (11th Cir.1995)

(money laundering statute allows for conviction “where the

funds involved in the transaction are derived from com-

mingled account of which only part comes from ‘specified

unlawful activities”’’).

The government must prove the funds came from illegal

activity. We conclude that, when the government presents

the kind of evidence it presented in this case, the evidence is

sufficient to support a beyond-reasonable-doubt jury finding

that the pertinent funds came from an unlawful source. We

acknowledge that Defendants’ evidence about “legitimate”

businesses might be able to rebut the government’s evidence

in the eyes of some jury. But Defendants’ evidence does not

nullify the government’s evidence to demand that we over-

turn a factual finding by the jury that the funds came from

illegal activity.

Defendants next contend that no evidence was presented

from which a reasonable jury could determine that Defend-

ants actually knew the funds provided in the pertinent

transactions were proceeds from narcotics dealing. Evidence

presented by the government supported finding that both

Defendants 1) knew that their long-time clients were high

level drug traffickers; and, 2) were close to and knew

Rodriguez-Orejuela and his associates well.

Evidence presented by the government against Abbell

further supported findings that 1) Abbell altered, deleted, or

destroyed his financial records involving Rodriguez-Orejuela;

2) Abbell worked closely with his long-time associate,

moneys are commingled, no passage of time will remove the taint. United

States v. Ward, 197 F.3d 1076, 1083 (11th Cir.1999) (“The district court’s

theory that the passage of time and the large infusion of legal proceeds

remove the taint from the illegal proceeds defeats the purpose of the

money laundering statute and promotes money laundering schemes.

Because money is fungible, the government must prove only that the

tainted proceeds were commingled with other funds.”).

‘ 14a

Laguna, who testified that he (Laguna) was in “constant

contact” with Abbell about their representation of Rodriguez-

Orejuela and other Cartel clients; and 3) Laguna knew

that all Rodriguez-Orejuela’s businesses were funded with

narco-profits.

Abbell contends that the government essentially argues that

Abbell knew that the funds he received were derived from

narcotics trafficking because Abbell knew his client was

involved in narcotics trafficking. Abbell argues that evidence

that he knew of Rodriguez-Orejuela’s extensive narcotics

trafficking is not sufficient to prove that Abbell had knowl-

edge of the illegality of the funds he received, considering

‘that the evidence of Rodriguez-Orejuela’s “legitimate” busi-

ness interests establishes a legitimate source of funds from

which Abbell reasonably believed he was being paid.

As discussed above, the evidence of Rodriguez-Orejuela’s

allegedly legitimate business interests in Colombia is slight:

no formal documents evidencing their existence and no

evidence of the amount of money they allegedly produced.

The government’s evidence, in contrast, tends to show that all

of the businesses were established with narcotics proceeds

and allows—when combined with other evidence—a reason-

able jury to infer that Abbell knew (based on the reasonable

inference of what Laguna told Abbell) © that all Rodriguez-

Orejuela’s businesses were established with narcotics pro-

ceeds. Thus, if the evidence shows that Rodriguez-Orejuela

had other business interests, the evidence also shows that

° Laguna testified that he was in “constant contact” with Abbell about

their representation of Rodriguez-Orejuela and other members of the

Cartel for drug trafficking—including forfeiture proceedings that required

investigation into the finances of Cartel businesses in Colombia. Abbell’s

office manager also testified that Laguna and Abbell talked two or three

times a day. The jury could reasonably infer that Laguna told Abbell

about the state of Rodriguez-Orejuela’s businesses in Colombia: that they

were all financed with narco-profits.

— Te ee oe ee

TN ei a aaa

15a

Abbell knew those interests were not legitimate. In other

words, the evidence supported a jury finding beyond a

reasonable doubt that, to the extent Rodriguez-Orejuela had

other business interests, Abbell knew that those business

interests were so intertwined with Rodriguez-Orejuela’s

narcotics trafficking that money paid by Rodriguez-Orejuela

came, at a minimum, from commingled funds.

The government’s evidence that, in the days and weeks

before a search warrant was executed against Abbell’s

office, Abbell destroyed or altered his records of his bills to

Rodriguez-Orejuela—including his bills for reimbursements

for payments to third-parties on Rodriguez-Orejuela’s

behalf—further supports a reasonable jury’s finding that

Abbell knew the money he was paid involved the drug trade.

See United States v. Mastropieri, 685 F.2d 776, 790-91 (2d

Cir. 1982) (“There can be no doubt that an attempt to suppress

material records permits an inference of consciousness of

guilt and therefore of guilt itself.”); cf. United States v.

Hughes, 716 F.2d 234, 240-41 (4th Cir. 1983) (“Fabrication of

evidence by a defendant . . . [is] clearly admissible to prove

his guilty state of mind.”).

The government also presented sufficient evidence upon

which a jury could reasonably find that Moran knew that the

money he received was derived from narcotics trafficking.

The government presented evidence that Moran often solic-

ited money from Rodriguez-Orejuela. When he made these

solicitations, he normally did not indicate that he needed

“clean money,” or that he desired unclean money. For

instance, in Moran’s notes that he made after a meeting with

Torres in jail, Moran recorded that he_needed to request

money from Rodriguez-Orejuela to pay to Torres for support

of his family.’ Those notes do not mention any requirement

7 Immediately after this meeting with Torres, Moran flew to Colombia

and met with Rodriguez-Orejuela. Moran then flew back with money for

Torres and couriered $10,000 to Torres’ wife.

16a

that the money be “clean.” A fax from Moran to Rodriguez-

Orejuela’s men in Colombia during the same period also

requests money for Torres without specifying that it be “clean

money.” In contrast, another fax from Moran to Rodriguez-

Orejuela’s men in Columbia, also sent around the same time,

specifically requested “CLEAN MONEY” (all caps in orig-

inal) for use in obtaining Torres’ bond. Such a request could

either imply that Moran only dealt in clean money or,

especially in the light of his failure to request “clean money”

in other situations, that he felt he needed clean money only

for this specific transaction.® Such a determination is for the

jury. We think that this “CLEAN MONEY” evidence sup-

ports a beyond-reasonable-doubt jury finding that Moran was

aware that some money he was receiving was from narcotics

trafficking. Put differently, we accept that a jury could treat

the emphatic and isolated request for “clean money” as

evidence that “clean money” was the exception to the usual

rule of dirty money. We recall the ancient legal maxim: the

exception also declares the rule.’

We now address whether the evidence supports a finding

that the transactions in which Defendants were involved were

designed to conceal the source of the funds. Abbell concedes

that he engaged in the following transactions. He, on

8 In fact, evidence was presented to the jury that Moran did need clean

money for this specific transaction. Torres’ bond included an explicit

requirement that the money not be proceeds of illegal activity. Thus, a

jury could reasonably conclude that, when outside influences demanded

the use of clean money, Moran requested clean money because he knew

that if he did not request clean money, the money he received would be

from narcotics trafficking.

* Exceptio quoque regulam declarat: “[t]he exception also declares the

rule.” S.S. Peloubet, A Collection of Legal Maxims in Law and Equity 74

(Fred B. Rothman & Co. 1985) (1884) (collecting legal maxims, citing to

their origin, and providing English translations). A related maxim states:

Exceptio probat regulam de rebus exceptio, “faJn exception proves the

rule concerning things not excepted.” Id.

ee ee rrr een See

17a

multiple occasions, paid money into the commissary accounts

of inmates: both those inmates he represented and those he

did not. He deposited this money in their accounts using

money orders paid for by Ristau & Abbell and signed by

Abbell or Ristau. Abbell then billed Rodriguez-Orejuela for

these sums. Abbell also paid Mrs. Giron (wife of one of the

defendants) $3,000. He then billed Rodriguez-Orejuela for

the $3,000. Abbell’s office manager testified that Rodriguez-

Orejuela thereafter reimbursed Abbell for the deposits and

the $3,000.

Moran concedes that he engaged in the following trans-

actions. He paid Mrs. Giron $5,000 in cash. He paid her this

money in his office. He sent Mrs. Torres (wife of another

defendant) $10,000 in cash. This money was sent via com-

mercial courier, identifying his law firm as the sender.

Evidence was presented that the cash for both of these

payments was given to Moran by Rodriguez-Orejuela in Cali.

Defendants argue that no evidence shows that these

payments were designed to conceal the source of the funds;

they say they were paid to help people in need of financial

assistance. Defendants argue that evidence did not demon-

Strate the “legitimization” step required for money laun-

dering. We disagree.

Defendants correctly point out that we have said section

1956(a)(1)(B)(i) is “designed to punish defendants who there-

after take the additional step of attempting to legitimize their

proceeds so that observers think their money is derived from

legal enterprises.” United States v. Majors, 196 F.3d 1206,

1212 (11th Cir.1999). The facts here do not appear to be that

kind of case. No evidence shows that the pertinent trans-

actions ended up creating the appearance of legitimate wealth

for Rodriguez-Orejuela.

But, the text of the statute is not that restrictive. It applies

to transactions involving illegal proceeds when the trans-

action is designed “to conceal or disguise the nature, the

18a

location, the source, the ownership, or the control of

the proceeds of specified unlawful activity.” 18 U.S.C.

§ 1956(a)(1)(B)(i). The statute does not always require that

the appearance of legitimate wealth be generated for

Rodriguez-Orejuela. We believe it is enough for the statute

that Defendants engaged in transactions from which

Rodriguez-Orejuela received a benefit (and moneys were paid

on behalf of Rodriguez-Orejuela) while concealing that

Rodriguez-Orejuela was the source of the funds."°

In this case, the evidence showed 1) Rodriguez-Orejuela

was obligated to take care of people to maintain the code of

silence; 2) Rodriguez-Orejuela was seeking to avoid extra-

dition to, and prosecution in, the United States by obtaining

from employees affidavits stating that they did not even know

who he was; 3) Defendants were involved in obtaining the

affidavits while they were involved at the same time in

dispersing funds from Rodriguez-Orejuela to employees, and

their wives, who were claiming not to know Rodriguez-

Orejuela; 4) Rodriguez-Orejuela gave Defendants large sums

of money; and 5) Defendants then paid large amounts of this

money to others, including employees from whom affidavits

were sought and their wives.!! This evidence supports a jury

the pertinent transaction. See United States v. Wynn, 61 F.3d 921, 924

(D.C.Cir.1995). Also, that Defendants openly made payments to the

Bureau of Prisons, Mrs. Torres, and Mrs. Giron fails to demonstrate that

they were not attempting to disguise the source of the funds. See United

States v. Starke, 62 F.3d 1374, 1384 (11th Cir.1995).

"| Jn Abbell’s case, points four and five are reversed for the trans-

actions discussed. In the context of this case, the fact that Abbell first

advanced his own money in the transactions at issue and then sought

reimbursement from Rodriguez-Orejuela is of no legal consequence.

Abbell, however, argues that “before the primary offense of money

laundering can occur, the underlying criminal activity must be complete.”

Majors, 196 F.3d at 1212 n. 13. The flaw in Abbell’s reliance on quotes

like the one above is that evidence showed that Rodriguez-Orejuela had,

before Abbell made the payments at issue, already engaged in massive

19a

finding that these transactions were designed to conceal that

Rodriguez-Orejuela was paying money to persons, and

their families, who were claiming that they did not know

who he was.

The evidence thus adequately supports the finding that

Defendants willfully participated in a conspiracy to conceal

the source of funds that were the proceeds of unlawful

conduct and were paid to cartel employees and their families

by Rodriguez-Orejuela.

RICO Conspiracy

We review the district court’s entry of judgment of

acquittal for insufficient evidence on the RICO conspiracy

charge de novo. United States v. Toler, 144 F.3d 1423, 1428

(11th Cir.1998). We must take the evidence in the light most

favorable to the government and determine whether a rea-

sonable jury could have concluded beyond a reasonable doubt

that Defendants were guilty of the offense charged. /d.

The indictment charged Defendants with participating in a

RICO conspiracy and listed various forms of obstruction of

justice and money laundering as predicate acts agreed to by

Defendants. Agreement to participate in a RICO conspiracy

can be proved in one of two ways: 1) by showing an agree-

ment on an overall objective; or, 2) by showing that a

defendant agreed personally to commit two predicate acts and

therefore to participate in a single objective conspiracy.

United States v. Church, 955 F.2d 688, 694 (11th Cir.1992).

If the government can prove an agreement on an overall

illegal narcotics trafficking. We discern no other relevant difference

between the order in which Abbell and Moran completed points four

and five.

20a

objective, it need not prove a defendant personally agreed to

commit two predicate acts. United States v. To, 144 F.3d

737, 744 (11th Cir.1998).”

For Defendant Moran, we have little trouble determining

that a reasonable jury could have concluded beyond a

reasonable doubt that he agreed to commit two predicate acts

showing an agreement to participate in the RICO conspiracy.

We have already addressed Moran’s activities in the money

laundering conspiracy which supports a finding that he was

engaged in those predicate acts. Moreover, evidence supports

the conclusion that Moran was very much involved in obtain-

ing multiple false affidavits from members of the Cartel who

were arrested importing drugs—each false affidavit constitut-

ing a separate predicate act.

Copies of affidavits were found on Moran’s computers in

his office. Also, letters to other attorneys were presented into

evidence where Moran outlined the procedure for procuring

affidavits from their clients that would exculpate Rodriguez-

Orejuela. In one letter Moran wrote to Rodriguez Orejuela;

“Setting aside our most recent disagreements as to the best

way of acquiring certain affidavits, my observations is that

'2 Paragraph 2 of the indictment lists over 70 people as well as “others

known and unknown to the grand jury.” It then says that they “managed,

operated, were employed by and associated with the Enterprise.” Defend-

ants argue that this language requires the government prove Defendants

operated or managed the conspiracy, even though the law of this circuit

does not require such proof for a RICO conspiracy. We disagree.

In the light of the whole indictment, it is clear to us that paragraph 2 is

a general statement that this group of over 70 people, as a group, man-

aged, operated, was employed by and associated with the Enterprise—not

that each person individually did all of these things. The indictment goes

on to charge specific acts within the conspiracy to the many individuals

allegedly involved. Because neither the indictment nor the law of the

circuit require proof that Defendants operated or managed the enterprise,

Defendants’ collateral estoppel argument also fails.

2la

what was most important to accomplish has been attained,

and at the same time I think that some of my suggestions, at

least in part, that of using an independent attorney (Laguna),

has been suitable to this matter, and everyone came out

clean.” This letter is at least evidence of Moran’s organi-

zational capacity in the false affidavit scheme and his aware-

ness that special procedures needed to be used for everyone to

come out “clean.” A jury could infer from this letter both

an organizational role by Moran and guilty knowledge on

his part.

About Defendant Abbell, in addition to his acts in the

money laundering conspiracy, we conclude the government

offered sufficient evidence of two predicate acts of obstruc-

tion of justice, supporting the jury’s verdict for RICO

conspiracy. We focus specifically on two predicate acts.

First, Abbell’s involvement in trying to obtain a false exculp-

atory affidavit from Ackerman; and, second, his involvement

in the section 1782 deposition process.

Evidence was presented that Abbell was deeply involved in

obtaining a false affidavit from Ackerman. Whiie attempting

to get the affidavit from Ackerman, Abbell spoke with

Ackerman’s lawyer Ed Shohat. Shohat recognized the affi-

davit as false and that Abbell knew the affidavit was false.

Shohat also testified that Abbell had told Rodriguez-Orejuela

that Shohat would make sure Ackerman signed the affidavit,

thus putting Shohat in danger if Ackerman did not sign.

Abbell also visited Ackerman in prison, where Ackerman

indicated he intended to sign the affidavit and asked Abbell to

ask Rodriguez-Orejuela to pay his attorney’s fees.

Evidence was also presented that Abbell directed the

1782 deposition scheme. Abbell targeted employees of the

Cartel likely to give false exculpatory statements benefitting

Rodriguez-Orejuela, but warned against deposing employees

of the Cartel who might give damaging statements. Abbell

22a

knew that the employees he targeted, such as Giron whom he

represented, would have to lie to answer the questions in a

manner that benefitted Rodriguez-Orejuela.

Abbell argues that his activities in obtaining false affidavits

and directing efforts to obtain section 1782 depositions could

not, as a matter of law, possibly constitute predicate acts of

obstruction of justice. Relying on United States v. Aguilar,

515 U.S. 593, 115 S.Ct. 2357, 132 L.Ed.2d 520 (1995), and

United States v. Vaghela, 169 F.3d 729 (11th Cir.1999),

Abbell—correctly, we think—contends that a person does not

engage in obstruction of justice unless his acts will have the

natural and probable effect of interfering with a judicial

proceeding. He then says that, because the affidavits and the

section 1782 depositions were meant only to be used in

extradition proceedings in Colombia, and that the possibil-

ity of such extradition proceedings ever occurring were

extremely low, the possibility of use in a judicial proceeding

was, at best, speculative.

After reviewing the statute and the precedents upon which

Abbell relies, we conclude that his arguments are without

merit. In Aguilar, the essential question was the intent of the

defendant. Aguilar, 115 S.Ct. at 2362. The Court wrote that,

when a person makes a statement to an investigating official

(and the speaker is not aware that it is likely that the official

will testify in a judicial proceeding) not enough evidence is

presented of that lying person’s intent to interfere with a

judicial proceeding. /d. at 599, 115 S.Ct. 2357. But in

Vaghela, we said the requirement that defendants’ acts have

the natural and probable effect of interfering with the due

administration of justice is not so narrow as to exclude efforts

“to obstruct specific future judicial proceedings.” Vaghela, |

169 F.3d at 734.

In this case, Rodriguez-Orejuela had already been named

in several cases as a codefendant. Therefore, judicial pro-

ceedings in the United States were in progress to which the

23a

false affidavits and depositions could be linked. Defendants’

claim that the affidavits or depositions were to be used in

extradition proceedings in Colombia is not determinative. It

is clear that these affidavits (which were in English) could

also be used as a defense if Rodriguez-Orejuela was ever

forced to stand trial in one of the cases in which he was a

named defendant.'? Moreover, a lawyer working the affidavit

scheme would know that these affidavits and depositions

could be so used.

Because we conclude that sufficient evidence was pro-

duced by which a jury could find beyond a reasonable doubt

that Defendants agreed to overall goals of the RICO con-

spiracy or engaged in two predicate acts manifesting their

agreement, or both, the district court’s order granting

Defendants judgment of acquittal on Count I must be vacated.

Defendants’ Motion for New Trial

Defendants argue that they are entitled to a new trial for

two reasons. First, they say that new evidence on Juror

Blanton’s plans to write a book about the case demanded

more inquiry by the district court into what influence this plan

had on jury deliberations. Second, they say they were denied

their right to a unanimous jury verdict when the court improp-

erly excused Juror Alfonso for cause under Fed.R.Crim.P.

23(b). We conclude Defendants are not entitled to a new

trial: the district court did not abuse its discretion.

Juror Blanton

We first briefly address, and determine that there is no

merit in, Defendants’ arguments regarding Juror Blanton.

The district court correctly noted that no factual basis exists

'’ Defendants come close to admitting as much when they say that the

affidavits would not have been very helpful to an extradition proceeding

in Colombia, because they say factual innocence is no defense to

extradition in Colombia.

PTET

24a

for the assertion that Blanton shared outside information with

the jury during trial. And Blanton’s plan to write a book

about his experiences on the jury does not constitute the kind

of allegation about outside influence that’ we have said

requires an investigation by a district court. See United States

v. Caldwell, 776 F.2d 989, 996 (11th Cir.1985) (“The more

speculative or unsubstantiated the allegation of misconduct,

the less the burden to investigate.”).

Dismissal of Juror Alfonso

We review a district court’s ultimate decision to excuse a

juror after the start of deliberations for abuse of discretion.

United States v. Register, 182 F.3d 820, 839 (11th Cir.1999).

And, in the context of other juror removal cases, we have

written that “[w]e will reverse the district court only if we

find that it discharged the juror ‘without factual support, or

for a legally irrelevant reason.”” Id. at 839 (quoting United

States v. Smith, 918 F.2d 1501, 1512 (11th Cir.1990)).

Federal Rule of Criminal Procedure 23(b) permits a district

court “to excuse a juror for just cause after the jury has retired

to consider its verdict.” “Just cause” exists to dismiss a juror

when that juror refuses to apply the law or to follow the

court’s instructions. United States v. Geffrard, 87 F.3d 448,

451-52 (11th Cir.1996) (excusing juror who expressed

inability to follow judge’s instructions on the law due to

religious beliefs).

Juror Alfonso was dismissed after other members of the

jury alleged, in a note to the district court judge, that Juror

Alfonso was not applying the law as directed. A risk exists,

however, that ten or eleven members of a jury that have

collectively reached agreement on a case’s outcome may

thereafter collectively agree that the one or two hold-outs—

instead of honestly disagreeing about the merits—are actually

refusing to apply the law as instructed by the court in an

impermissible attempt to nullify the verdict. The jury’s

25a

majority may very well further agree to request the court’s

intervention with regard to those one or two dissenting jurors

who are, according to the majority, refusing to apply the law.

Thus, judges must be careful not to dismiss jurors too lightly,

even in the face of complaints from a majority of the

jury. Federal defendants have some right (be it statutory or

perhaps constitutional) to a unanimous verdict by, normally,

twelve jurors.

Because of the danger that a dissenting juror might be

excused under the mistaken view that the juror is engaging in

impermissible nullification, we must apply a tough legal

standard. In these kind of circumstances, a juror should be

excused only when no “substantial possibility” exists that she

is basing her decision on the sufficiency of the evidence. See

United States v. Thomas, 116 F.3d 606, 621-22 (2d Cir.1997);

United States v. Brown, 823 F.2d 591, 596 (D.C.Cir.1987).'4

We mean for this standard to be basically a “beyond

reasonable doubt” standard.

We also conclude that, for example, whether a juror is

purposely not following the law is a finding of fact that we

will review for clear error.'> De novo review would under-

mine the well-established rule that the abuse of discretion

'4 In United States v. Brown, the D.C. Circuit used both the term “any

possibility” and the term “substantial possibility.” We believe the terms

are interchangeable, both meaning a tangible possibility, not just a

speculative hope. Cf. Pierce v. Underwood, 487 U.S. 552, 108 S.Ct.

2541, 2549-50, 101 L.Ed.2d 490 (1988) (noting two different meanings of

“substantial;” one meaning a high degree or great deal of something, the

other meaning in substance or in the main).

'S The Ninth Circuit explicitly applied a clearly erroneous standard of

review to a district court’s findings of fact and credibility determinations

on jury misconduct, United States v. Matta-Ballesteros, 71 F.3d 754,

765-66 (9th Cir.1995), and the Second Circuit, in a case after Thomas,

wrote that a district court’s finding regarding a juror’s misconduct “is a

finding of fact to which appropriate deference is due.” See United States

v. Baker, 262 F.3d 124 (2d Cir.2001).

26a

standard applies to a district court’s decisions involving juror

misconduct. See, e.g., United States v. Yonn, 702 F.2d 1341,

1344-45 (11th Cir.1983). Furthermore, because the demeanor

of the pertinent juror is important to juror misconduct

determinations, the district court is uniquely situated io make

the credibility determinations that must be made in cases like

this one: where a juror’s motivations and intentions are at

issue. See United States v. Gabay, 923 F.2d 1536, 1543 (11th

Cir.1991) (district judge is in a position to observe jurors on a

daily basis and listen to their pledges to deliberate fairly and

is therefore in the best position to judge demeanor of jurors).

Cf. Owens v. Wainwright, 698 F.2d 1111, 1113 (11th

Cir.1983) (“Appellate courts reviewing a cold record give

particular deference to credibility determinations of a fact

finder who had the opportunity to see live testimony”).’°

Thus, a district judge is required to apply the “substantial

possibility” standard to his own investigation and in coming

to his determination that the juror is or is not basing her

decision on the sufficiency of the evidence. But, if the trial

court applies this standard and determines as a matter of fact

that no substantial possibility exists that the pertinent juror is

basing her decision on the sufficiency of the evidence, we

will review that finding only for clear error.

In this case, the district court, after an evidentiary hearing,

found these facts: 1) Alfonso “was unwilling to follow the

law, and [ ] was engaged in-an attempt to willfully disregard

the Court’s instructions;” 2) “the record does not reveal a

‘substantial possibility’”’ that Juror Alfonso’s position was

'6 After reading the record of the district court’s inquiry in this case, we

are strengthened in our view of the need to provide deference to the

district court’s determination of facts in situations like these.

\7 The district court relied on Brown and other cases which we use here

today and put the term “substantial possibility” in quotation mars in his

order. We accept that the district court applied the same “substantial

possibility” standard that we apply today.

27a

due to her belief that the evidence was insufficient to support

a conviction as to the RICO conspiracy;” and 3) “she did not

intend to follow the Court’s instructions—that Juror Alfonso

did not intend to apply the law as set forth in those

instructions and had not changed her mind following the

Court’s instructions.”

Briefly stated, our review of the record shows the

following. All jurors agreed that early in the process Juror

Alfonso, in some way, made comments that she did not have

to follow the law and that the court’s instructions were only

advisory and not binding on the jury.'® After this information

came to light, the trial court gave more instructions about the

jury’s duty to apply the law and to obey the court’s instruc-

tions. After this additional instruction, Alfonso made no

more direct statements about her intention not to follow the

law. The majority of the jurors, however, said that she still

was not engaged in deliberations, would not consider evi-

dence nor discuss the applicable law. Some jurors indicated

that they were outraged by Alfonso’s decision to do her nails

during deliberations.'” The trial court-—sometime after having

given its additional charge on the duty to follow the law—

talked to each of the jurors, including Alfonso herself.”” Juror

'S We stress that the other jurors testified that Juror Alfonso actually

said she was not going to follow the law, not simply that they believed

Juror Alfonso was not following the law.

'? Although we are not deciding today to what degree a juror’s duty to

deliberate requires her to be actively engaged in debate, we do believe

that, when a district court is investigating the possibility of impermissible

nullification by a juror and when that juror has said at an earlier time in

deliberations that she need not follow the law or the judge’s instructions, a

later display of unwillingness to deliberate or to engage in discussion is

something the court can take into consideration in determining the

credibility of the pertinent juror’s claims that she is now applying the law

and obeying the instructions of the court.

7° We conclude that Defendants’ argument that the district court’s

inquiry so tainted the jury pool as to make a fair trial impossible is

28a

Alfonso’s own testimony on her commitment to following the

law was not certain. We accept that the record supports the

district court’s skeptical view of Juror Alfonso’s answers to

its questions and that the district court’s findings about

Alfonso’s intentions are supported by the record.

This record shows that the district court’s determina-

tion that Juror Alfonso was not basing her decision on the

sufficiency of the evidence was not clearly erroneous, even in

the light of a beyond a reasonable doubt standard. Because

the district court applied the correct standard—no substan-

tial possibility that the juror was basing her decision on

the sufficiency of the evidence—we conclude that it was

no abuse of discretion for the trial court to dismiss

Juror Alfonso.

CONCLUSION

In regard to Abbell and Moran, we have concluded that the

government presented sufficient evidence to sustain their

convictions on both money laundering conspiracy (Count IX)

and RICO conspiracy (Count I). The district court’s judg-

ment of acquittal for Defendants on the RICO conspiracy

charge must be vacated and Defendants’ convictions for

without merit. The record shows the court proceeded with extreme

caution to protect the integrity of the jury process. Moreover, the court

instructed the jury after Alfonso’s dismissal that his dismissal should not

affect their deliberations. To find much fault with the inquiry in this case

would unduly hinder a district court’s ability to detect and rectify a juror’s

refusal to obey her duty in applying the law to the case and obeying the

court’s instructions. See United States v. Harris, 908 F.2d 728, 733 (11th

Cir.1990) (district courts have broad discretion in determining the proper

investigative procedure for looking into alleged juror misconduct). We

do, however, caution district courts to be careful about invading the

secrecy of the jury’s deliberations and to err on the side of too little

inquiry as opposed to too much.

29a

RICO conspiracy must be reinstated. Defendants’ sentences

are vacated in their entirety and remanded to the district court

for resentencing.”

AFFIRMED in PART and REVERSED in PART and

REMANDED.

7! Because Defendants’ sentences have been vacated in their entirety

and remanded to the district court for resentencing consistent with this

opinion, we need not address the government’s sentencing arguments.

30a

APPENDIX B

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

[Filed May 5, 1999]

Case No: 93-0470-CR-HOEVELER

UNITED STATES OF AMERICA,

Plaintiff,

VS.

MICHAEL ABBELL, WILLIAM MORAN, et al.,

Defendants.

——

ORDER DENYING MOTIONS FOR JUDGMENT OF

ACQUITTAL AS TO COUNT IX, GRANTING

MOTIONS FOR JUDGMENT OF ACQUITTAL AS TO

COUNTS III AND IV, AND SCHEDULING HEARING

AS TO COUNT I

THIS CAUSE is before the Court on Defendant Moran's

Renewed Motions for Judgment of Acquittal, filed July 22,

1998; and Defendant Abbell’s Rule 29(c) Motion on Count

IX, filed September 18, 1998. Both Defendants also argued

oral motions under Rule 29, Federal Rules of Criminal

Procedure, at the close of the United States’ presentation of

evidence in this case in June 1998. The Court reserved ruling

on the motions, taking them under advisement.

On July 20, 1998, the jury convicted both Defendants as to

Counts I (RICO conspiracy) and IX (money laundering

conspiracy), but was unable to reach agreement as to Counts

III (conspiracy to import) and IV (conspiracy to distribute

cocaine) of the Fourth Superseding Indictment. Defendanis

renewed their Rule 29 motions as to all Counts.

3la

Upon a motion for judgment of acquittal, the Court must

view the evidence in the light most favorable to the

government, and draw all reasonable inferences in its favor,

to determine whether “the evidence is sufficient to sustain a

conviction”. Rule 29(a), Fed. R. Crim. P. In the event of a

conviction, that judgment should be affirmed if “any

reasonable construction of the evidence allowed the jury to

find [defendant] guilty beyond a reasonable doubt.” United

Stales v. McKinley, 995 F.2d 1020, 1025 (11th Cir.1993).

Having reserved the decision as to the initial motions, I must

decide those motions on the basis of the evidence at the time

the ruling was reserved. Rule 29(b). However, the renewal of

the motions at the end of the case allows the Court to consider

the full record.

This case previously was tried before a jury, during a five

month period in 1997, which resulted in acquittals as to the

substantive RICO charge against both Defendants, and a

mistrial as to Counts I, III, IV, and IX. Defendants, both of

whom are charged with conduct which allegedly occurred

while they were practicing attorneys, were tried along with

four alleged narcotics traffickers during the first trial. Prior to

commencement of the retrial, this Court denied Defendants’

motions for judgments of acquittal as to these four Counts,

Corrected Order Denying Motions for Judgment of Acquit-

tal and Denying Defendant Abbell’s Motions to Dismiss,

February 10, 1998, finding that the United States had

presented sufficient evidence during the first trial to support

the allegations in each of the four Counts. The second trial,

which began in April 1998 and concluded in July 1998,

proceeded only against these two Defendants, and dif-

fered significantly in both the quantity and quality of

evidence presented.

As the Court previously found as to Count IX, the United

States presented sufficient evidence to support the allegations

of a money laundering conspiracy under 18 U.S.C. § 1956(h).

32a

Id., at pp. 3-4. According to the verdict form, the jury found

that the Defendants each “conducted the alleged transaction

with the knowledge and intent to ‘conceal’ or disguise the

nature, the location, the source, the ownership, or the control

of the proceeds of unlawful importation and/or distribution

of cocaine”. Thus, the jury convicted the Defendants

according to the substantive violation specified in 18 U.S.C.

§ 1956(a)(1)(B)(i), i.e., the “concealment” aspect of money

laundering. Defendant Abbell specifically argues that he did

not know that the property involved in the transaction

represented the proceeds of unlawful activity. Further,

Defendants argue that the lack of evidence of concealment

and the alleged propriety of the specifically charged financial

transactions entitles them to an acquittal. The Court con-

cludes that, based upon the evidence presented, the jury could

have found the essential elements of a money laundering

conspiracy. The motions as to Count IX are hereby DENIED.

As to Counts III and IV, Defendants assert that the United

States must present specific proof to support these conspiracy

charges. They argue, convincingly, that these charges each

stand alone and that the United States is required to present

evidence which would persuade a reasonable jury that these

Defendants were complicit in planning the importation and

the distribution of approximately 200,000 kilograms of

cocaine beginning in 1983 and continuing until the date of the

indictment. No evidence was presented by the United States

which would suggest that either of the Defendants either

directly or indirectly planned to commit such crimes with the

persons actively involved in the importation or distribution.

Neither Pinkerton v. United States, 328 U.S. 640 (1946), nor

the jury findings as to Count I can be of help to the United

States. While an argument can be made that the Defendants

(both of whom are attorneys) might be responsible for the

enterprise’s drug activities because of their alleged complicity

in (participation in the conduct of the affairs of) the enterprise

under Count I, that argument must fail as to Counts III and

33a

IV—each of which stand alone and require proof of direct

participation in the alleged conspiracies. If, indeed, the

United States offered such proof and if these and other

reasonably anticipated crimes grew out of such conspiracy,

Pinkerton might well apply. That theory cannot, however, be

applied in reverse to implicate the Defendants in conspiracies

in which they had no direct or even indirect connection.

I note here that I had rejected a similar defense:argument at

the conclusion of the first trial which involved six defendants

and approximately four months of testimony. Because of the

mistrial as to Counts III and IV these Counts werestried again.

I will not attempt a comparative analysis of the evidence

presented in the two trials except to say that there was a

difference in quantity and direction. Additionally, there is a

likelihood that my view of the evidence to support Counts III

and IV as to these Defendants in the first case may well have

been in error. In any event, after careful consideration of the

evidence presented in the second trial, I conclude that Counts

III and IV should be dismissed. The Rule 29 motions made on

behalf of Defendants Abbell and Moran as to Counts III and

IV are hereby GRANTED.

As to Count I, Defendants Abbell and Moran are charged

with participating in a RICO conspiracy by operating as

advisors, not merely as lawyers, who engaged in conduct

which obstructed justice and furthered the affairs of the

enterprise. After substantial review of the caselaw, including

United States v. Salinas, 522 U.S. 52 (1997); Reves v. Ernst

& Young, 507 U.S. 170 (1993); and United States v. Starrett,

55 F.3d 1525 (11th Cir. 1995), the Court has determined that

further argument on this matter will assist the Court.

The parties shall direct their arguments toward the exis-

tence (or lack) of record support for a finding that Defendant

Abbell and Defendant Moran conspired to conduct or

participate, directly or indirectly, in the conduct of the affairs

of the enterprise. Whatever semantics are used in discussing

34a

the relationship of 18 U.S.C. § 1962(c) and (d), settled con-

spiracy law requires that the accused wilfully agree to do

what would be a violation of the substantive statute if car-

ried out. To require anything less would be to create an

anomaly—a conspiracy statute which permits conviction

where the conspirator did not intend to participate in a way

which, if carried out, would have violated the substantive

statute. Thus, it can be argued that it is essential under

§ 1962(d) that the United States must prove, among other

elements, that the Defendants intended to participate in the

management and control of the enterprise at some level and to

further its objectives. If this is not the case under § 1962(d)

then subsection (d) has been turned into an aiding and

abetting statute, and the penalties for violation should apply

only to those crimes which were committed or intended to be

committed by the particular defendant. To state it differently,

neither conspiracy theories of shared responsibility nor

Pinkerton application should have any role in considering the

proof of the enterprise’s crimes which the evidence demon-

strates are distinct from the predicate acts or intentions

attributed to the defendants.

A hearing an this matter will be held at 1:30 p.m. on

Tuesday, May 25, 1999. Prior to the hearing, the parties shall

file proposed findings supporting their respective positions on

this matter (no- joint submissions will be accepted), with

citations to the trial transcript and to specific exhibits. All

submissions are due no later than May 20, 1999. Sentenc-

ings, which shall immediately follow the hearing, shall be

scheduled by separate notice.

35a

DONE AND ORDERED in chambers in Miami, Florida,

this 5th day of May, 1999.

/s/ William M. Hoeveler

WILLIAM M. HOEVELER

SENIOR UNITED STATES DISTRICT JUDGE

Copies to:

William Pearson, AUSA

Edward Ryan, AUSA

William Asbill, Esq.

Holly Skolnick, Esq.

36a

APPENDIX C

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

[Filed May 5, 1999]

Case No: 93-0470-CR-HOEVELER

UNITED STATES OF AMERICA,

Plaintiff,

VS.

MICHAEL ABBELL, WILLIAM MORAN, et al.,

Defendants.

ORDER DENYING DEFENDANTS’

MOTIONS FOR NEW TRIAL

THIS CAUSE comes before the Court on Defendant

Abbell’s Motion for New Trial based on the dismissal of

Juror Alfonso, filed September 29, 1998 (which was adopted

by Defendant Moran), and Defendant Moran’s Motion for

New Trial based on newly discovered evidence of jury

misconduct by Juror Blanton, filed November 23, 1998

(which was adopted by Defendant Abbell). The Court held a

hearing on this matter on December 2, 1998.'

' Defendant Moran also filed a Motion for New Trial on July 23, 1998,

arguing that the United States improperly promised things of value to

witnesses in exchange for their testimony. United States v. Singleton, \44

F.3d 1343 (10th Cir.1998), vacated, reh’g en banc, 165 F.3d 1297 (10th

Cir.1999). Based on the reasoning cited by the Tenth Circuit in the

opinion vacating the panel decision in Singleton, Defendant Moran's

Motion is denied.

37a

BACKGROUND

Defendants Abbell and Moran were indicted in this case in

June 1995. Lengthy pretrial proceedings, including the

appointment of a Special Master to review thousands of

documents seized from the two Defendants’ law offices,

resulted in a substantial delay before trial commenced in

April 1997. After five months in trial, including approxi-

. mately twelve days of deliberations which ended in October

1997, a mistrial was declared as to these two Defendants

regarding Counts I (18 U.S.C. §1962(d), RICO conspiracy),

Mil (21 U.S.C. §963, conspiracy to import cocaine), IV

(21 U.S.C. §846, conspiracy to distribute cocaine), and IX (18

U.S.C. §1956(h), conspiracy to launder money). The case as

to four other Defendants was resolved during the first trial.

The retrial of Defendants Abbell and Moran commenced in

mid-April 1998, with closing arguments presented to the jury

at the end of June.

After instructing the jury on Wednesday, July 1, Transcript

(hereinafter “7r”) at 8353-8426, and following a four day

break for the July 4th holiday, deliberations commenced on

Monday morning, July 6, 1998. On Thursday morning,

July 9, the jury had been deliberating for a total of ap-

proximately 20 hours when one of the jurors presented the

Court with a note 7 requesting assistance. The note, presented

by Mr. Gooden and signed by the jury foreperson, Ms.

Sebastian, states that one of the jurors had “formed an

unwavering opinion—prior to, inspite [sic] of and irregardless

[sic] of the evidence presented” and that the indicated juror

was “unwilling or unable to review, read or view exhibits”

contrary to that juror’s opinion.’

? The notes from the jury have been made a part of the record in

this case.

> Later investigation revealed that the note may have been written the

night before and was not presented to the entire jury prior to submission to

the Court. Tr at 8942, 8946-47, 8969.

38a

Concerned about the statement that such opinion had been

formed “prior to” the presentation of evidence, and after

consultation with counsel, the Court decided to interview the

jury foreperson in chambers, on the record, with counsel and

the Defendants present. This interview took place at approxi-

mately 10:15 a.m. on Thursday, July 9. In response to the

Court’s inquiry, the foreperson indicated that the identified

juror made a statement of her opinion “right at the beginning

of deliberations”, Tr at 8545, and that, according to the

juror’s own statement during the first day of deliberations, her

mind was made up “the minute [she] walked out of the jury

box” without any deliberations. Tr at 8549-50. While -this

reported failure to deliberate was cause for concern, the

Court—without more—would have been reluctant to invade

the jury composition. However, during this same interview

with the jury foreperson, the Court was informed that the

same juror had said earlier that morning that Count I, the

RICO conspiracy charge, was a “stupid law and we don’t

have to regard it”. Tr at 8546-47.

The Court then met with counsel and the Defendants, and

discussed the difficult situation presented. Later that

afternoon, after studying the decisions in United States v.

Geffrard, 87 F.3d 448 (11th Cir.1996) (affirming lower

court’s dismissal of juror whose religious beliefs prohibited

her from following court’s instructions), and United States v.

Thomas, 116 F.3d 606 (2d Cir.1997) (reversing lower court’s

dismissal of juror since record did not establish beyond doubt

that juror’s position was result of unwillingness to apply the

law), the Court instructed the jury (including excerpts of the

decision in Thomas) regarding their duty to follow the law

and consider all of the evidence in the case. They were also

instructed to tell the Court if anyone among them was

unwilling or unable to follow the law, by sending a note

saying that “I simply cannot [follow the instructions]”—and

the jurors were assured that there would be no recrimination.

39a

Tr at 8612-17. About an hour later, the jury was dismissed for

a three day weekend (due to a juror’s scheduling problem

court was not convened on Friday, July 10).

At 8:45 a.m. on Monday, July 13, one of the jurors gave

court personnel an unsigned note stating that the jury was

“hopelessly dead locked [sic]” and “can not reach a verdict”.

The note was returned for the signature of its author and/or

the jury foreperson. The note then was signed by Ms. Alfonso

and the foreperson, Ms. Sebastian. At 10:10 a.m., ten

members of the jury (not including Ms. Alfonso and Mr.

Blanton) submitted a signed note referencing the earlier note

and stating that it was the “consensus of the rest of the jurors

that we are opposed to this statement [that we are dead-

locked]”. (It later was determined that the unsigned note had

been prepared and submitted by Juror Alfonso, the same juror

who had advised the other jurors that the RICO law was a

“stupid” law and that they need not follow it or the Court’s

instructions.) After lengthy discussions with counsel the

Court determined that a colorable basis for further investi-

gation was presented by the information the Court had

received. Both Eleventh Circuit precedent and the procedures

discussed in Thomas indicated that a more complete inves-

tigation was in order.

The Court then interviewed the foreperson again, who

reported that the identified juror still was not participating in

deliberations. Tr at 8701-8703. Thereafter, the Court

interviewed Mr. Gooden, the author of the original note who

had suggested that the juror made up her mind before

deliberating and perhaps prior to the completion of the

presentation of evidence. Juror Gooden reported that on the

prior Wednesday or Thursday the juror said that the instruc-

tions’ were a guide’ and not the law” and that after the

Court’s re-instruction on Thursday afternoon the juror said

she’s “having a hard time understanding” the law. He also

* Each juror was given a copy of the instructions.

i mal aN lie ia

40a

stated his belief that there was a language barrier. Tr at 8749-

50. He added, by way of clarification of his original note, that

the juror did not say she had discussed the case before

deliberating. Tr at 8752.

On Tuesday morning, July 14, the Court again interviewed

Ms. Sebastian, who reported that the identified juror still was

not participating in deliberations, and that the juror had been

“sitting” over the past four or five days and presently was

“(doing] her nails”. 7r at 8802. Further, Ms. Sebastian

indicated that the juror announced “blanket statements”

regarding a “decision having been made”, which applied to

all Counts of the indictment. Tr at 8803, 8808. The Court then

interviewed Mr. McSwiggan, who said that the juror in

question stated prior to the Court’s re-instruction that she

“doesn’t care what the law is, she is going to follow her

feelings”. Tr at 8813. In addition, Juror McSwiggan noted

that the juror “had her back up and really didn’t want to

participate too much after [the Court] had talked to us [on

Thursday]”. Tr at 8814.

At this point counsel for the United States suggested that

the Court interview Juror Alfonso. Counsel for Defendant

Abbell, while maintaining an objection to the process of the

investigation >’ suggested that the Court interview the other

juror, besides Juror Alfonso, who did not sign the second

note, i.e., the note disagreeing with the statement about a

deadlock. Accepting that suggestion, the Court then

interviewed Mr. Blanton, who stated that the identified juror

said on at least three occasions, starting on the first day of

deliberations, that “we didn’t have to follow instructions”. 77

at 8819. He reported that on one day “several days into it”,

the juror spoke for an hour and a half about “her whole

version of reality” without discussing any of the evidence in

the case. Tr at 8821, 8825.

5 As noted by the Court, all parties’ objections to the process were

preserved. Tr at 8817.

4la

The next juror to be interviewed was Ms. Doll, who stated

that the identified juror said she “[didn’t] have to follow those

guidelines”, and that the Court’s re-instruction on Thursday

“made no difference”, and the juror just “disregarded [the

law]”. Tr at 8828. At the conclusion of this interview, counsel

presented their arguments regarding the scope of the Court’s

proposed examination of Juror Alfonso.

At approximately 12:30 p.m. the Court interviewed Juror

Alfonso, who admitted that she sent the note about being

deadlocked without letting the other jurors know. Tr at 8848.

She advised the Cvurt that at one point she felt another juror

made “threats” to her that she would have to face the press if

she didn't vote a particular way. Juror Alfonso produced a

copy of a poem and indicated that the author, later identified

as Juror Blanton, was pushing for one result of only two

options (presumably guilt as opposed to innocence), and that

the third option (presumably a mistrial) was not even being

considered. Tr at 8854.

_ Juror Alfonso also noted that she had been accused of not

wanting to follow the instructions (which she stated were “not

everything” that must be taken into consideration). 7r at

8849. She acknowledged on several occasions that she told

the other jurors that the law wasn’t the “only” thing that the

jury must follow, and believed that she must use her

“common sense”. Tr at 8850, 8852, 8856, 8865. While she

denied ever saying that Count I represented a “stupid” law, Tr

at 8854, she volunteered that she did “have a problem with

the federal law”, perhaps as a result of having worked for

many years “with the criminal law”. Tr at 8852. (According

to the juror questionnaire she completed prior to trial, Ms.

Alfonso had served fourteen years as a correctional officer.°)

In addition, she said that “this [law] doesn’t make sense. . .

on the other hand it is not only like you say.” Tr at 8852.

° Each of the jurors completed a 33 page questionnaire prior to trial.

The questionnaires are a part of the record in this matter.

42a

Despite Juror Alfonso’s assertion that she understood that the

law must be followed and felt “like [she had] been following

the law”, Tr at 8864, when the Court asked directly whether

she said that she didn’t have to follow the law, she responded

“Okay. That’s not the only thing that I have to do. . . . that’s

not everything that I say.” Tr at 8856. Later, again in response

to the Court’s specific questioning as to whether she stated

that the law is “just advisory”, she answered “[e]xactly like

that, no, Judge. I say [sic], “This is not everything’. . - -

We have to take into consideration a lot of things here.”

Tr at 8865.

On several occasions Juror Alfonso reported that “it is not

11 to 1, or whatever” and that she was not alone. Tr at 8848,

8850, 8859. She also suggested that ihe Court interview the

rest of the jurors. Tr at 8871. Juror Alfonso indicated that the

other jurors could “speak better than [she]” and that they

could “read better than [she]”. Tr at 8859-60. Juror Alfonso

concluded with the statement that if the Court wanted to

discharge her, she was “more than happy to leave.” Tr at

8866. While at several points she asserted that she was

deliberating, when asked the direct question as to whether she

told the other jurors she did not have to follow the law, she

did not—as indicated above—answer directly. She did

concede that “[t]hat’s part of what I say [sic]”. Tr at 8856.

At the conclusion of this troubling interview I discussed

the matter with counsel and decided to give further con-

sideration to the Government’s request that Ms. Alfonso be

discharged—a request which both Defendants opposed. I also

denied the motions for mistrial which were made at the time.

The following morning, Wednesday, July 15, interviews of

the remaining six jurors commenced.

The Court first interviewed Ms. Grant, who reported

simply that “we've all been participating” in deliberations. Tr

at 8935. Juror Grant confirmed Juror Alfonso’s report that a

43a

juror had suggested that names would appear in the news-

paper, but noted that such disagreements were all resolved

and that things now were “fine”. Tr at 8937-38.

The next juror interviewed was Ms. Mandell, who began

by stating that one juror “was not willing to consider

anything” and that the juror “[had] not said anything in a

couple of days.” Tr at 8940-41. Juror Mandell didn’t know if

the juror “[understood] the language that is written on the

pages’. Tr at 8941. Juror Mandell observed further that since

the re-instruction on Thursday, the juror in question “really

has not said anything. She has voted, but she has not said

anything Monday, Tuesday or Wednesday.” Tr at 8943. Ms.

Mandell also noted that the identified juror stated that she

“couldn’t go by the way this law was written” and that she

“came in with her mind made up” and also was “very angry”

about the Thursday re-instruction. Tr at 8941-42. Juror

Mandell reported that the juror had given the others “lip

service that she is willing to [listen to the law}”, but also said

that she “did not believe the law” and “did not accept the way

it was written”. Tr at 8941, 8944.

The Court then interviewed Mr. Rosso, who noted that the

juror said at the beginning of deliberations that the instruc-

tions were “from the Judge” and were “not the law”. Tr at

8951. Juror Rosso also reported that the juror was not

participating in deliberations and was “doing her nails”, and

that he was “outraged” by what she was doing. Tr at 8953.

The next juror to be interviewed was Ms. Peralta. When

asked if the juror said, in one way or another, “that it was not

necessary to follow the Court’s instructions on the law”, Ms.

Peralta responded: “Yes”. Juror Peralta asserted that this was

said at some time “during the first week” and “[p]robably

around the second day”, “[m]aybe also the third day”. Tr at

8958. The juror “had the wrong understanding of what the

difference was between jury instructions and instructions

of how to get to I-95 [(a major interstate highway)]”, and

44a

thought that the jury instructions were more like the latter. Tr

at 8958-59. She also stated that the juror said the jury

instructions were “just the Judge’s instructions. . . . I can get

instructions from somebody on how to get to [a local

department store].” Tr at 8959. Juror Peralta also reported

that Alfonso became “‘not as talkative” after the re-instruction

the previous Thursday, 77 at 8960, and had not considered the

evidence presented by “the other side”, Tr at 8963. When

asked if the juror “[had] said at any time anything that would

indicate that she has come off that feeling that these

instructions are just like trying to find a road or a mine”,

her answer was “[f}rom what I can recall, no, not really”. Tr

at 8960.

The Court then proceeded to interview Ms. Cortes, who

said that the juror said that she “was not going to follow the

laws”. Tr at 8968-69. Juror Cortes noted that she “sat with

[Alfonso] and read it over” and didn’t know if the juror “fully

understand [sic] what she is reading”. Tr at 8972. She

reported that Juror Alfonso previously discussed the evi-

dence, although only as to one side. Tr at 8974.

Finally, the Court interviewed Mr. Butler, who stated that

the juror asserted that she “works in law enforcement” and

that “certain laws don’t apply” and that what the Court said

“was not the law”. Tr at 8977-78. He also noted the juror’s

attempt to introduce her experience in the jails system as a

corrections officer, apparently as being relevant to the delib-

erations. Tr at 8986. Juror Butler reported his impression that

Juror Alfonso was saying “that the law that [the Court] read

to us was wrong in her—you know, in her words.” Tr at

8977. He also noted that she apparently didn’t understand the

“rules of the law” that the Court provided, Tr at 8976, and

that she stated that slie “don’t [sic] need to follow the laws to

come to a unanimous or rather a reasonable verdict”, Tr at

8977, but yet she insists that she is following the law. Tr

at 8984. Juror Butler emphasized that he was “not saying that

45a

she’s a bad person, or anything”, 7r at 8976, and that the

jurors “don’t dislike anyone”, 7r at 8986. Juror Butler

thought that Juror Alfonso was “actually listening” and now

deliberating. Tr at 8980-81, 8983.

Agai. I met with counsel for lengthy discussions as to the

proper approach to the knotty problem presented, and

announced my decision to study the problem in greater detail

prior to announcing any decision. Two notes came in from

the jury shortly thereafter: 1) Does the defense have a right to

see any of the seized evidence after it is in the government’s

possession? and 2) Could we get a copy of Douglas

Hartman’s portion of the transcript? The Court addressed

these two matters with counsel.

Later that same afternoon, at approximately 3:30, the Court

received a note from Ms. Grant, stating “I quit”. The Court

met with Juror Grant, with counsel present, who stated that

she didn’t want to be “handled and mistreated”, but expressed

hope that she would feel better the next morning. Tr at 9056.

The Court then met briefly with Juror Sebastian, who asserted

her opinion that Juror Grant was tired and frustrated like all

the other jurors, and that one juror still was not participating.

Tr at 9059.

That evening and the next morning (Thursday, July 16) the

Court reviewed the transcript of Juror Alfonso’s interview

and studied the pertinent caselaw. As I announced to counsel

that morning, I concluded that Juror Alfonso “simply was not

answering my questions about her ability to follow the law or

her willingness to do so”, and that she should be removed for

just cause. Tr at 9077-80. This decision was reached only

after a consideration of the statements of all the jurors.

Defense counsel moved for a mistrial, Tr at 9088-89, which

the Court denied. The Court then advised Juror Alfonso that

she was excused from further participation. She thanked the

Court for excusing her. Tr at 9093. It was later discovered, as

46a

court personnel attempted to confirm Ms. Alfonso’s contact

information, that she was starting a family vacation in the

Florida Keys on Saturday, July 18. Tr at 9173.

Before the Court announced the decision to discharge Juror

Alfonso, a note was received from the foreperson indicating

that Juror Grant did not want to continue. After excusing

Juror Alfonso, the Court met #ith Juror Grant with counsel

present. She stated that she didn’t feel she should be “beat up

on”, and that it was as if “somevody wants to. . . wear you

down”. Tr at 9102, 9104. She asserted that no physical abuse

was occurring and no racially derogatory remarks were being

made, Tr at 9103-04, and confirmed her desire to remain with

the jury.

At approximately 10:45 a.m. on Thursday, July 16, the

Court instructed the remaining eleven jurors that Juror

Alfonso was excused because “there were certain things

about her views of the jury process and also her own

feelings” and that she was “unable to serve as a juror on this

case”. Tr at 9118-19. I instructed the jury that the dismissal of

Juror Alfonso had “absolutely nothing to do with how I may

view this case and how it should come out.” Tr at 9119.

Further, I re-instructed the jury as to reasonable doubt and

reminded them of their right to disagree and the need for

them to respect each other. 7r at 9117-18, 9122-23. The

Court also specifically inquired of each juror whether he or

she could “continue your deliberations fairly and impartially”.

Tr at 9134-35. Each juror responded affirmatively.

At this time, the foreperson indicated that the request for

the review of the Hartman testimony was made by Juror

Alfonso and, thus, was moot. However, Juror Peralta indi-

cated that she would like to hear the testimony and, accord-

ingly, the testimony was read aloud. Tr at 9130. Counsel for

Defendant Abbell then suggested that the request for testi-

mony indicated that Juror Alfonso had been participating and

that the Court’s dismissal of her was improper.

47a

At approximately 2:45 p.m. on Friday, July 17, the jury

submitted a note stating that they had “reached a unanimous

verdict on one count for both defendants”, and had made

“significant movement” but “can not come to a unanimous

decision” on the other three Counts as to both Defendants. It

subsequently became clear that they had reached a decision as

to Count RICO conspiracy—at this point. (The verdict

form accepted the following Monday indicated a date next to

each of the Counts, apparently reflecting the date on which

the specific Counts were resolved.) After discussing the

matter with counsel, the Court briefly questioned the jury

through the foreperson and determined that it would be

proper to have the jury return the following Monday to “try a

bit longer”. Tr at 9226. A formal Allen charge was not given

at the time. The verdict form was kept under seal.

On Friday, July 17, 1998, the Court was faced with the

disappearance of Defendant Moran from the courthouse. As a

result of the publicity in the media during the weekend

regarding that event, the Court questioned the jury when they

reconvened the following Monday, July 20, about whether

they had been exposed to anything in the media about this

case. The six jurors who reported that they had learned of the

event through the media were individually interviewed

(Jurors Doll, Rosso, Grant, Cortes, Blanton, and Sebastian).

Tr at 9253, 9262-72. The Court denied motions for mistrial

which were made by the Defendants, finding that the jurors

could continue to deliberate and give the Defendants and the

Unitea tates a fair trial.

That afternoon, July 20, the jury submitted a note indi-

cating that a decision had been reached as to two Counts and

that further deliberations would not result in unanimous

decisions on the remaining two Counts. The Court published

the verdict (now also finding Defendants guilty as to Count

[X—money laundering conspiracy) and declared a mistrial

as to Counts III and IV. Each of the jurors responded

48a

affirmatively to the question as to whether this was their

verdict. The jurors were discharged upon their return on

Friday, July 24, 1998, after counsel reached an agreement to

proceed before the Court as to the forfeiture allegations.

Defendants filed their motions for new trial based primarily

on the Juror Alfonso dismissal, but also arguing that Juror

Blanton was operating under a conflict of interest. Defendants

appear to suggest that Juror Blanton intended to write a book

about the trial and possibly may have been conducting

independent research regarding the Defendants during the

trial. Defendants offer a letter from Blanton to the other

jurors, dated August 15, 1998, in which he references his

book plans and a memo of the same date in which he is

providing “Updates from research”. See Exhibits D, E,

Motion for New Trial Based on Newly Discovered Evidence,

filed November 23, 1998. There has been no evidence

presented that he was doing research before or during his

service as a juror and no basis other than mere speculation to

support a post verdict investigation. Juror Blanton reported on

his jury questionnaire that he was employed as a technical

writer, and also employed by M.D.C.C. (Miami-Dade Com-

munity College). According to the memo dated August 15,

Mr. Blanton teaches part-time at MDCC. Counsel for

Defendant Moran, in an affidavit, states that Ms. Alfonso

contacted counsel’s office after the trial and provided a

copy of the above referenced letter and memorandum. See

Exhibit B, Motion for New Trial Based on Newly Discovered

Evidence, filed November 23, 1998. As explained below, I

find no basis whatsoever in this effort to disturb the verdict.

ANALYSIS

This Court must approach the jury and its deliberative

process with regard for its sanctity. “It is the historic duty of a

trial judge to safeguard the secrecy of the deliberative process

that lies at the heart of our system of justice . . . .” United

49a

States v. Thomas, 116 F.3d 606, 619 (2d Cir. 1997) (noting

constraints on court’s investigation of alleged misconduct).

Nevertheless, allegations of juror bias or misconduct must be

addressed ’ and, in the proper circumstances, a juror may be

excused for “just cause”. Fed. R. Crim. P. 23. Just cause may

be found as a result of a juror’s illness or physical unavail-

ability, United States v. Wilson, 894 F.2d 1245, 1250 (11th

Cir.1990) (affirming dismissal after first week of delib-

erations of pregnant juror who had been sick throughout trial

and had disabling dental pain at time of dismissal), or due to

the juror’s inability to perform her duties impartially, United

States v. Geffrard, 87 F.3d 448 (11th Cir. 1996) (affirming

dismissal of juror during deliberations whose r

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