# Petition for Writ of Certiorari — Abbell v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386007_1124%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2002 - **Citation:** 537 U.S. 813 ## Text ‘urement ’ ' FILED Wy) “1161 8™may =1 2002 No. 01- Se | IN THE Supreme Court of the GQnited States ~ MICHAEL ABBELL AND WILLIAM MORAN, Petitioners, V. 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 i ; ? { i { ‘ 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) il 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- I I I sa csnesacsonpssonsessndeneviansexeskesoessexns RE nc 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) 14 14 iV 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 Vv 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 vi 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. .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. 13 “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. 14 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). 15 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.] 17 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 18 596. 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 19 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”). 20 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 21 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. 22 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 23 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). 24 “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). 25 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. 26 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 27 (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. 28 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’”). 29 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”). 30 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.) la 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. 2a 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. 3a 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 4a 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). Sa 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 6a 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 7a 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. 8a 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 9a 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 © Concealing the source of funds does not need to be the only goal of 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 oth [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386007_1124%3A1. Public record. Not legal advice.