Wednesday, September 7, 2011
A Taxing Matter, Take 2: 11th Circuit Affirms District Court's Ruling Denying Wesley Snipes' Motion For A New Trial
Yesterday, the Eleventh Circuit decided United States v. Snipes, 2011 WL 3890354 (11th Cir. 2011). In the opinion, the court affirmed the opinion of the United States District Court for the Middle District of Florida, which had denied actor Wesley Snipes' motion for a new trial and his related motions for leave to interview jurors. Snipes filed these motions after he was convicted of three counts of willfully failing to file tax returns. In this post, I will explain why I think that the Eleventh Circuit got it wrong.I previously posted an entry about Snipes' case last December, and that post contains the relevant facts of the case:
After actor Wesley Snipes was convicted of three counts of misdemeanor offenses involving willful failure to file his income tax returns and sentenced to consecutive terms aggregating three years imprisonment, he, inter alia, moved for permission to interview jurors and for a new trial. Part of the basis for this motion was, inter alia, an e-mail that defense counsel received the evening after the United States Court of Appeals for the Eleventh Circuit rejected Snipes' appeal of his conviction. This e-mail, which came from one of the jurors who heard Snipes' case stated,
I served on the jury in Ocala that found him guilty on 3 counts of failing to file taxes. It was a deal that had to be made because of certain jurors that had already presumed he was guilty before the trail [sic] started and we only found this out in the last few days of deliberation. We thought we were making the right deal because we did not think he would go to jail for not filing taxes. There were 3 on the jury that felt this way and told us he was guilty before they even heard the first piece of evidence going against what the judge had said. If I can be of any help feel free to call me at....
As noted, Snipes thereafter moved for a new trial and for leave to interview jurors based upon this apparent jury misconduct, but the district court denied him relief. According to the Eleventh Circuit,
On appeal, Snipes argues that the district court abused its discretion in denying his motions, raising two distinct arguments as to why his proffered emails were admissible under Rule 606(b). He first contends that the emails fell outside the Rule's general exclusion of evidence concerning the jury's deliberative process, because they were offered to show that jurors committed perjury during voir dire by falsely indicating that they accepted the presumption of innocence. Alternatively, he contends that even if the emails fell within the Rule's exclusionary provision, they were nevertheless admissible under the enumerated exceptions for evidence concerning improper outside influence or evidence concerning the jury's use of extraneous information.
Federal Rule of Evidence 606(b) provides that
Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury’s deliberations or to the effect of anything upon that or any other juror’s mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror’s mental processes in connection therewith. But a juror may testify about (1) whether extraneous prejudicial information was improperly brought to the jury’s attention, (2) whether any outside influence was improperly brought to bear upon any juror, or (3) whether there was a mistake in entering the verdict onto the verdict form. A juror’s affidavit or evidence of any statement by the juror may not be received on a matter about which the juror would be precluded from testifying.
According to the Eleventh Circuit, the juror e-mails did not qualify for admission under an enumerated exception to Rule 606(b), and I agree with this conclusion. But what about Snipes' argument that the e-mails were admissible notwithstanding Rule 606(b) to prove that jurors lied during voir dire? The Eleventh Circuit did not even address this argument. If it did, however, I think that it would have found for Snipes. As I noted in my prior post,
The Supreme Court of North Dakota in State v. Hidanovic, 747 N.W.2d 463, 474 (N.D. 2008), noted that "[c]ourts have universally held that provisions similar to N.D.R.Ev. 606(b)...do not preclude evidence to show a juror lied during voir dire." Now, I'm not sure whether the court was quite correct that courts categorically had reached this conclusion, and at least one court since Hidanovic has reached the opposite conclusion (see here). That said, I have done extensive research into the subject and found that the court in Hidanovicwas basically correct: Almost all courts addressing the issue have held that jurors can testify about statements made during jury deliberations, not to impeach the validity of verdicts, but to prove that jurors lied during voir dire (which can lead to verdicts being overturned).
So, why did the Eleventh Circuit not even address this issue? I don't know, and this oversight makes no sense to me. What the Eleventh Circuit did cite was Tanner v. United States, 483 U.S. 107 (1987), in which the Supreme Court upheld Rule 606(b) against a Sixth Amendment challenge. Why? Well, according to the Court,
Petitioners' Sixth Amendment interests in an unimpaired jury...are protected by several aspects of the trial process. The suitability of an individual for the responsibility of jury service, of course, is examined during voir dire.
Here's the thing, though: When jurors lie during voir dire, a defendant's Sixth Amendment rights clearly are not protected. This is why the vast majority of courts allow juror testimony to prove that a juror lied during voir dire. Indeed, earlier this year, in United States v. Cooper, 2011 WL 493111 (11th Cir. 2011), the Eleventh Circuit came close to doing just that.
In Cooper, a juror knew a witness for the prosecution, and defense counsel sought a new trial because this juror allegedly lied during voir dire concerning this fact. The Eleventh Circuit noted the limitations of Rule 606(b) but also noted that a party can obtain a new trial if he can show "'that a juror failed to answer honestly a material question on voir dire, and then further show that a correct response would have provided a valid basis for a challenge for cause.'" The problem for the defendant is Cooper was simply that the juror apparently didn't lie:
Here, Cooper has not met the standard for a new trial based on juror misconduct. Because Johnson was asked during voir dire only if he knew the prosecutor, agents, defense attorneys or defendants, and was neither provided with the names of witnesses nor asked whether he knew any of the witnesses, Cooper cannot prove that Johnson failed to answer a material voir dire question untruthfully. Additionally, because Cooper's affidavits affirmed only that Johnson and Williams knew each other, and because Cooper failed to provide any proof of specific facts showing that Johnson had a "close connection" to Williams, he has not met the standard to imply that Johnson was a biased juror. Additionally, none of the affidavits alleged that Johnson improperly credited Williams's testimony or led the other members of the jury to place undue weight on Williams's testimony. Accordingly, Cooper's allegations of Johnson's misconduct were mere speculation, and the district court did not abuse its discretion in declining to conduct further investigation and denying Cooper's request for a new trial.
The clear implication of this analysis is that the defendant could have gotten a new trial if the juror did lie in response to a material question during voir dire. I am thus very surprised that the Eleventh Circuit did not even give Snipes a chance to interview jurors to uncover whether any jurors lied during voir dire.