buju latest motion

UNITED STATES DISTRICT COURTMIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

UNITED STATES OF AMERICA

VS. NO. 8:09CR572-T-30TGW

MARK ANTHONY MYRIE

REPLY TO GOVERNMENT’S RESPONSE TO DEFENDANT’SSECOND AMENDED RENEWED MOTION

COMES NOW the Defendant, Mark Anthony Myrie, hereinafter (“Myrie”),

through counsels, and files this Reply to the Government’s Response to Defendant’s

Second Amended Renewed Motion and shows the Court the following:

INTRODUCTION

1. Juror Terri Wright, hereinafter (“Wright”), credibility and conduct throughout

this proceeding has been wanting to say the least. First, during voir dire, Wright was

not forthcoming when she informed the Court that she had previously been on a

jury, a civil case where a verdict was returned, She later admitted in an interview

with reporter Chris Sweeney, hereinafter (“Sweeney”), taped recorded with her

permission, to having a passion for jury service and previously sitting on seven (7)

prior juries, both civil and criminal.

2. Second, Wright, in this same interview, admitted to Sweeney that though

she was aware of the Court’s admonition not to do any research, at the end of the

day she would write her notes in her car and go home and do her research while

the issues were fresh in her mind.

3. Third, at the post-trial hearing and in spite of her taped recorded interview,

Case 8:09-cr-00572-JSM-TGW Document 457 Filed 04/08/13 of 16 PageID 3673

recorded with her permission and played in court, Wright denied under oath that

she did any research during trial and instead testified that she did her research after

the trial. After the Court granted Myrie’s motion to examine Wright’s hard drive, the

Court expanded the search to include the two weeks after the trial due to concern

about Wright’s credibility. The Court’s concern about Wright’s credibility proved

perceptive. The hard drive Wright produced for examination showed no history of

internet use; not even for the two week period after the trial the Court expanded

due to concerns for Wright’s credibility.

4. Juror Janice Benoit’s testimony that a white female juror told two male

jurors that she did research on the Pinkerton rule is evidence that Wright is not the

lone juror guilty of juror misconduct. Benoit’s testimony is further evidence

supporting Myrie’s renewed motion that he be granted a new trial due to jury

misconduct.

5. The Government’s conduct herein has been less than laudable. Instead

of seeking justice and not convictions, the Government filed a questionable and

extraordinary motion on Wright’s behalf, after the Court notified Wright of her right

to be represented by counsel at the hearing, which Wright declined. The

Government’s motion alleged that Wright’s privacy rights were being violated by

the Court’s January 4, 2013 Order to seize her computer. On January 8, 2013 the

Court Agreed and withdrew the Order, Wright was instead Ordered to bring the

computer or hard drive that she conducted her research on to the February 19,

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2013 court hearing, Wright thereafter had the time, over a month, and opportunity

to carry out a switch-a-rue. At the February 19, 2013 hearing, Wright brought to

Court to be examined some other computer hard drive. The computer hard drive

Wright produced showed no internet use for the period in question, not even for the

Court ordered two week period after the trial. In short, the time delay in seizing

Wright’s computers enabled Wright to perpetrate a fraud upon the Court by

producing a computer hard drive other than the one the Court ordered her to

produce and which she told the Court she did her research on after the trial and

which she still possessed. Wright’s actions throughout these proceedings bring not

only her credibility into question, but her conduct is also contemptuous to this Court

and prejudicial to Myrie.

6. It is of particular note that in its Response to Defendant’s Second Amended

Renewed Motion, the Government makes only a fleeting reference of Wright’s

taped recored interview with Sweeney. Sweeney’s tape recorded interview of

Wright. The Government references this interview as the “reported statements of

juror Terri Wright” and being the basis for Myrie’s motion for new trial. Glaringly, the

Government’s Response omits any reference to the fact that the computer hard

drive Wright produced for examination had no history of internet use during the two

week Court ordered period after the trial.

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THE LAW

7. The Sixth Amendment guarantees a criminal defendant the right to a trial

by an impartial jury. See U.S. Const. Amend VI. In McDonough Power Equipment,

Inc. v. Greenwood, 464 U.S. 548, 104 S.Ct. 845, 78 L.Ed.2d 663 (1984), the Supreme

Court addressed juror dishonesty during voir dire and emphasized that “[o]ne

touchstone of a fair trial is an impartial trier of fact -‘ a jury capable and willing to

decide the case solely on the evidence before it.’”McDonough, 464 U.S. at 554

(quoting Smith v. Phillips, 455 U.S. 209, 217, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982)). Voir

dire plays an essential role in protecting the right to trial by an impartial jury.

Defendants deserve “full and fair opportunity to expose bias or prejudice on the

part of veniremen,” and “there must be sufficient information elicited on voir dire

to permit a defendant to intelligently exercise not only his challenges for cause, but

also his peremptory challenges. “ United States v. Barnes, 604 F.2d 121, 139 (2 Cir.nd

1979) (internal quotations and citations omitted).

8. The Sixth Amendment to the United States Constitution also guarantees a

criminal defendant an impartial jury to rule upon question of guilt or innocence. See

Duncan v. Louisiana, 391 US 145, 147-49, 88 S.Ct. 1444, 20 L.Ed 2d 491 (1968). The

Sixth Amendment “guarantees to the criminally accused a fair trial by a panel of

impartial, ‘indifferent’ jurors.” Irvin v. Dowd, 366 U.S. 717, 722, 81 S.Ct 1639, 6 L.Ed2d

751 (1961).

9. A juror’s dishonesty during voir dire undermines a defendant’s right to a fair

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trial. Writing for a unanimous Supreme Court, Justice Cardozo concluded: “If the

answers to the question [during voir dire] are willfully evasive or knowingly untrue,

the talesman, when accepted, is a juror in name only ... His relation to the court

and to the parties is tainted in its origin; it is mere pretense and sham.” Clark v.

United States, 289 U.Srtz . 1, 11, 53 S.Ct. 465, 77 L.Ed. 993 (1933); see also

McDonough, 464 U.S. at 554 (“The necessity of truthful answers by prospective jurors

if [voir dire] is to serve its purpose is obvious.”). Thus, a juror who lies her way onto a

jury is not really a juror at all; she is an interloper akin “to a stranger who sneaks into

the jury room.” Dyer v. Calderon, 151 F.3d 970, 983 (9 Cir. 1998) (en banc).”Justiceth

must satisfy the appearance of justice.” Offutt v. United States, 348 U.S. 11, 14, 75

S.Ct. 11, 99 L.Ed. 11 (1954). Accordingly, “courts cannot administer justice in

circumstances in which a juror can commit a federal crime in order to serve as a

juror in a criminal case and do so with no fear of sanction so long as a conviction

results.” United States v. Colombo, 869 F.2d 149, 152 (2 Cir. 1989).nd

10. In McDonough, the Supreme Court held that to obtain a new trial where,

as here, a juror lied during voir dire, “a party must first demonstrate 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 motives for concealing information may vary, but only those reasons

that affect a juror’s impartiality can truly be said to affect the fairness of a trial.”

McDonough, 464 U.S. at 556. In Colombo, the Second Circuit held that where a

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juror deliberately conceals information that, if revealed, “might thwart her desire

to sit” on the jury, and resulting conviction “cannot stand” because such conduct

“obstruct[s] the voir dire and indicate[s] an impermissible partiality on the juror’s

part.” Colombo, 869 F.2d at 151. While the Second Circuit “has never found reason

to overturn a verdict on the basis of juror nondisclosure under McDonough, “United

States v. Stewart, 433 F.3d 273, 303 (2 Cir. 2006), the exceptional circumstances-nd

deliberate lies engineered to create a fictitious, “marketable” juror– presented by

this case warrant such extraordinary relief.

11. As a matter of established law, the burden of proving prejudice does not

lie with the defendant because prejudice is presumed the moment the defendant

establishes that “extrinsic contact with the jury in fact occurred. United States v.

Martinez, 14 F.3d 543 (11 Cir. 1994),citing United States v. Caporale, 806 F.2s 1487,th

1503 (11 Cir. 1986), cert. denied, 482 U.S. 917, 107 S.Ct. 3191, 96 L.Ed.2d 679 (1987);th

United States v. Perkins, 748 F.2d 1519, 1533 (11 Cir. 1984). In a criminal case, anyth

private communication [or] contact ... directly or indirectly, with the juror during a

trial about the matter pending before the jury is, for obvious reasons, deemed

presumptively prejudicial, if not made in pursuance of known, rules of the court and

the instructions and directions of the court made during the trial, with full

knowledge of the parties. Remmer. v. United States, 347 U.s. 227, 229, 74 S.Ct. 450,

451, 98 L.Ed. 654 (1954). See United States v. Spurlock, 811 F.2d 1461, 1463 (11 Cir.th

1987) (adopting Remmer standard of presumptive prejudice).

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12. Once the defendant proves extrinsic contact, the burden shifts to the

government to demonstrate that the consideration of the evidence was harmless.

Perkins, 748 F.2d at 1533; Caporale, 806 F.2d at 1503; Spurlock, 811 F.2d at 1463.

13. An impartial jury is one in which every juror is “capable and willing to

decide the case solely on the evidence before [her].’” McDonough, 464 U.S. at 554

(quoting Smith 455 U.S. at 217). Jurors are instructed that they are to decide the

question of a defendant’s guilt based solely on the evidence presented. See United

States v. Thomas, 116 F.3d 606, 616-17 n.10 (2d Cir. 1997). A juror is biased- -i.e., not

impartial–if her experiences “would ‘prevent or substantially impair the

performance of [her] duties as a juror in accordance with [her] instructions and

[her] oath.’” Wainwright v. Witt, 469 U.S. 412, 424, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985)

(quoting Adams v. Texas, 448 U.S. 38, 45, 100 S.Ct. 2521, 65 L.Ed.2d 581 (1980)); see

also United States v. Torres, 128 F.3d 38, 43 (2d Cir. 1997) (juror properly excused for

cause who had structured financial transactions, in case involving structuring of

cash deposits). Challenge for cause can be based on actual bias, implied bias, or

inferable bias. See Torres, 128 F.3d at 43; see also United States v. Sampson, 820

F.Supp. 2d 151, 162-67 (D. Mass. 2011) (discussing at length each type of bias).

14. Bias may be implied when the case presents a relationship in which the

“potential for substantial emotional involvement, adversely affecting the

impartiality.’” is inherent, Tinsley v. Borg, 895 F.2d 520, 527 (9 Cir. 1990). In thoseth

extreme situations where the relationship between a prospective juror and some

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aspect of the litigation is such that it is highly unlikely that the average person could

remain impartial in his deliberations under the circumstances.’” Id. (Quoting Person

v. Miller, 854 F.2d 656, 664 (4 Cir. 1998). th

A. Dishonesty on voir dire

15. Convictions overturned due to dishonesty on voir dire include Green v.

White, 232 F.3d 671 (9 Cir. 2000) (jurors’s lies concerning his background, both onth

juror questionnaire and during voir dire, and juror’s attempts to cover up behavior

in post-trial proceedings-where juror attempted to distance himself from statements

in his declaration-supplied bias for presumption of actual bias and required habeas

corpus relief); United States v. Perkins, 748 F.2d 1519 (11 Cir. 1984) (conviction forth

obstruction of justice was reversed and case remanded for a new trial. The court

found that the defendant had suffered actual prejudice as a result of juror’s failure

to disclose prior associations with the defendant as well as prior involvement in

criminal cases); McCoy v. Goldston, 652 F.2d 654 (6 Cir. 1981) (in civil right caseth

grounded on alleged police misconduct, remand for hearing to determine

whether juror’s intentional failure to disclose fact that son was in training to become

parole officer, despite being asked question on point during voir dire, rendered trial

unfair based on either a resulting prejudicial impairment of right to exercise

peremptory challenge or finding that correct answer would have provided basis

for challenge for cause).

1. Actual Bias

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16. “Actual bias is ‘bias in fact.’” Torres, 128 F.3d at 43 (quoting United States

v. Wood, 299 U.S. 123, 133, 16 S.Ct. 839, 40 L.Ed. 980 (1936); see also Greer, 285 F.3d

at 171. Whether a juror is actually biased is a question of fact determined by the

trial judge. See Dyer, 151 F.3d at 973 (citing Patton v. Young, 467 U.S. 1025, 1038, 104

S.Ct. 2885, 81 L.Ed.2d 847 (1984)); see also Torres, 128 F.3d at 43 (citing Wood, 299

U.S. at 133). “A juror is found by the judge to be partial either because the juror

admits partiality. . . or the judge finds actual partiality based upon the juror’s voir

dire answers.” Torres, 128 F.3d at 43; see also Hughes v. United States, 258 F.3d 453,

456 (6 Cir. 2001) (requiring a new trial after seated juror expressed during voir direth

her bias against defense based on her relationships with law enforcement officers).

2. Implied Bias

17. Because actual bias is often difficult to detect, court imply bias when

“certain circumstances create too great a risk of affecting a juror’s decision making

process, even if the juror is not, consciously, fully aware of the impact.” Fields v.

Brown, 503 F.3d 755, 806 (9 Cir. 2007) (Berzon, J. Dissenting). As explained long agoth

by the Supreme Court:

Bias or prejudice is such an elusive condition of themind that it is most difficult, if not impossible, to alwaysrecognize its existence, and it might exist in the mind ofone (on account of his relations with one of the parties)who was quite positive that he had no bias, and said thathe was perfectly able to decide the question whollyuninfluenced by anything but the evidence. The lawtherefore most wisely says that, with regard to some of therelations which may exist between the juror and one ofthe parties, bias is implied, and evidence of its actual

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existence need not be given.

Crawford v. United States, 212 U.S. 183, 196, 29 S.Ct. 260, 53 L.Ed. 465 (1909); see also

McDonough, 464 U.S. at 556 (Blackmun, J., concurring) (recognizing implied bias as

a basis for relief); Smith, 455 U.S. at 221-22 (O’Connor, J., concurring) (same).

18. Implied bias is determined as a matter of law and “attributed to a

prospective juror regardless of actual partiality.” Torres, 128 F.3d at 45 (citing Wood,

299 U.S. 133); see also United States v. Tucker, 243 F.3d 499, 509 (8 Cir. 2001)th

(implied bias determined “without regard to [the juror’s] subjective state of mind”).

Where a juror is implicitly biased, disqualification of that juror is mandatory. See

United States v. Rhodes, 177 F.3d 963, 965 (11 Cir. 1999). Therefore, if a juror whoth

participated in rendering a verdict was impliedly biased, the moving party is

entitled to a new trial. See, e.g. Hunley v. Gonzalez, 875 F.2d 316, 319-20 (7 Cir.th

1992).

19. Courts imply bias in “extreme situations where the relationship between

a prospective juror and some aspect of the litigation is such that it is highly unlikely

that the average person could remain impartial in his deliberations under the

circumstances.” Person v. Miller, 854 F.2d 656, 664 (4 Cir. 1988); see also Fields, 503th

F.3d at 770); Sanders v. Norris, 529 F.3d 787, 792 (8 Cir. 2008). “some examplesth

might include a revelation that the juror is an actual employee of the prosecuting

agency, that the juror is a close relative of one of the participants in the trial or the

criminal transaction, or that the juror was a witness or somehow involved in the

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criminal transaction.” Smith, 455 U.S. at 222 (O’Connor, J., concurring); see also

United States v. Brazelton, 557 F.3d 750, 753-54 (7 Cir. 2009) (explaining that courtsth

must imply bias if the juror is related to one of the principals in the case, regardless

of whether the juror is objective in fact). Courts imply bias “ when there are

similarities between the personal experiences of the juror and the issues being

litigated.” See Sampson, 820 F.Supp. 2d at 153-64 (quoting Skaggs v. Otis Elevator

Co., 164 F.3d 511, 517 (10 Cir. 1998) and collecting cars where bias was impliedth

based on the juror’s experiences (internal quotation marks omitted)).

20. The issue for implied bias is whether an average person in the position of

the juror in controversy would be prejudiced.” United States v. Gonzalez, 214 F. 3d

1109, 1112 (9 Cir. 2000).th

3. Inferable Bias

21. “Inferable” or “inferred” “bias exists” “when a juror discloses a fact that

bespeaks a risk of partiality sufficiently significant to warrant granting the trial judge

discretion to excuse the juror for cause, but not so great as to make mandatory a

presumption of bias.’” Greer, 285 F.3d at 171 (quoting Torres, 128 F.3d at 47). As the

Second Circuit reasoned:

There is not actual bias because there is no findingof partiality based upon either the juror’s own admissionor the judge’s evaluation of the juror’s demeanor andcredibility following voir dire question as to bias. And thereis no implied bias because the disclosed fact does notestablish the kind of relationship between the juror andthe parties or issues in the case that mandates the juror’sexcusal for cause.

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Nonetheless, inferable bias is closely linked to bothof these traditional categories. Just as the trial court’sfinding of actual bias must derive from voir direquestioning, so the court is allowed to dismiss a juror onthe ground of inferable bias only after having receivedresponses from the juror that permit an inference that thejuror in question would not be able to decide the matterobjectively. In other words, the judge’s determinationmust be grounded in facts developed at voir dire. Andthis is so even though the juror need not be asked thespecific question of whether he or she could decide thecase impartially. Moreover, once facts are elicited thatpermit a finding of inferable bias, then just as in thesituation of implied bias, the juror’s statements as to his orher ability to be impartial become irrelevant.

Torres, 128 F.3d at 47; see also Greer, 285 F.3d at 171; United States v. Quinones, 511

F.3d 289, 301 (2 Cir. 2007).nd

22. Although declining to define the “precise scope of a trial judge’s

discretion to infer bias,” Judge Calabresi further explained:

it is enough for the present to note that cases inwhich a juror has engaged in activities that closelyapproximate those of the defendant on trial areparticularly apt. the exercise of the trial judge’s discretionto grant challenges for cause on the basis of inferred biasis especially appropriate in such situations. “Because [insuch cases] the bias of a juror will rarely be admitted bythe juror himself, partly because the juror may have aninterest in concealing his own bias and partly becausethe juror may be unaware of it, [partiality] necessarilymust be inferred from surrounding facts andcircumstances.” McDonough, 464 U.S. at 448 (Brennan,Jr., concurring) (internal quotation marks and citationomitted).

Torres, 128 F.3d at 47.

23. Therefore, the doctrine of inferable bias, which courts have long

12


“implicitly assumed to exist, “Torres, 128 F.3d at 43, permits a court in its discretion

to dismiss a juror because of an inference that the juror will not be able to decide

the case based solely on the evidence.

24. Juror’s “dishonesty, of itself, is evidence of bias”) Burton v. Johnson, 948

F.2d 1150, 1159 (10 Cir. 1991). Juror’s conscious censoring of information wasth

“hostile” to the “interest of the defense and the court,” which “in itself constitutes

bias”).Juror’s dishonest, in and of itself, is a strong indication that he was not

impartial”. United States v. Perkins, 748 F.2d 1519, 1532 (11 Cir. 1984). th

25. An appellate court may consider a juror’s deliberate concealment of

information during voir dire to be evidence of bias and grant a new trial. Green v.

White, 232 F.3d 671, 675-76 (9 Cir. 2000) (new trial required because juror lied onth

jury questionnaire and during voir dire, and pattern of lies created uncertainties

about whether he could render impartial verdict). Appellate courts may also

reverse conviction when a juror’s mistaken but honest response to a material voir

dire question prevented the trial court from discovering actual bias. See

McDonough Power Equip. v. Greenwood, 464 U.S. 548 555-56 (1984) (plurality

opinion). To establish reversible error in case involving inadvertent nondisclosure, a

defendant must demonstrate that “a juror failed to answer honestly a material

question on voir dire” and that “a correct response would have provided a valid

basis for a challenge for cause.” Id.; see e.g. U.S. v. St. Clair, 855 F.2d 518, 522-23 (8th

Cir. 1988) (new trial required in prosecution for conspiracy to construct destructive

13


device because juror admitted during deliberation to 7 years of experience with

explosive and did not speak up during voir dire).

CONCLUSION

Had this Court and Myrie known the true facts, Wright would have been

subject to a valid challenge for cause or peremptory challenged. In any event,

had the truth been known, Wright would not have served on this jury. Wright was

manifestly incapable of performing the central functions of a juror–evaluating

witness credibility and making a fair assessment of the evidence. Based on her false

voir dire answers, her research during the trial, her taking of notes outside of the

Court, and her production of some other computer hard drive for examination

instead of the one she utilized for her research. The Court can easily infer that Wright

is inherently unable to perform the crucial function of ascertaining the truth. As a

result, and in the interest of justice, this Court must order that Myrie be granted a

new trial.

This the 8 day of April 2013.th

Respectfully submitted

MARK ANTHONY MYRIE

By:

s/ Imhotep Alkebu-lan Imhotep Alkebu-lan MSB#10592

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Post Office Box 31107Jackson, Mississippi 39286-1107601-353-0450 Telephone601-353-2818 [email protected]

CHOKWE LUMUMBA MSB #8865Post Office Box 31762Jackson, Mississippi 39286-1762601-353-4455 Telephone601-353-2818 [email protected]

ATTORNEYS FOR DEFENDANT

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mailto:[email protected]

mailto:[email protected]

CERTIFICATE OF SERVICE

I hereby certify that on the below date I electronically filed the foregoing

with the Clerk of the Court using the ECF system which sent notification of such filing

to the following individual(s):

David Oscar Markus, Esq. James C. Preston, Jr.Marc David Sellers, Esq. Anita M. Cream40 N.W. 3 Street AUSArd

Penthouse One 400 N. Tampa StreetMiami, FL 33128 Tampa, FL 33602

I hereby certify that I have mailed by United States Postal Service the

document to the following non-ECF participant:

William Harold Long Jr. Lori D. PalmieriAttorney At Law Attorney At Law99 NW 183 Street 13055 W. Linebaugh Avenuerd

Suite 241D Tampa, FL 33626Miami Gardens, FL 33169-4551

This the 8 day of April 2013.th

s/ Imhotep Alkebu-lan Imhotep Alkebu-lan

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buju latest motion

Documents

imhotep alkebu

amended renewed motion

lan imhotep alkebu

computer hard drive

sixth amendment guarantees

courts imply bias

trial judges discretion

juror terri wright