USA v. Wilkerson ( 2009 )

UNITED STATES DISTRICT COURT F l L E n
FOR THE DISTRICT OF COLUMBIA
Defendant.
JUL 1 0 2009
UNITED STATES OF AMERICA ) . ' mmr
)
v. ) cr. No. 00-0157-15 (TFH)
)
LARRY WILKERSON, )
)
)
)
MEMORANDUM OPINION
Pending before the Court is defendant Lan'y Wilkerson’s Motion for a New Trial Based
on Violation of Defendant’s Sixth Amendment Right to a Unanimous Jury Based on the Court’s
Improper Removal of Juror Number 05 52 Dun`ng Deliberations ("Improper Removal Motion")
(Docket No. 2195). Finding that the removal of Juror Number 0552 from the deliberating jury
was not improper, the Court will deny the motion.
BACKGROUND
Aiter a two-month long trial, on September 22, 2()04, a jury found Wilkerson guilty on
nine counts related to narcotics conspiracy, RICO conspiracy, and the murders of Marvin
Goodman, Christopher Burton, and Scott Downing.' Wilkerson filed numerous post-trial
motions attacking the validity of the proceeding, of which the Improper Removal Motion is one.
Because of these pending post-trial motions, Wilkerson has yet to be sentenced.
’ The jury found Wilkerson not guilty of two counts related to the murder of a fourth
person, Darrell Henson.
The Improper Removal Motion concems the Court’s dismissal of Juror 05522 from the
jury in the midst of deliberations. The jury commenced deliberations on the aftemoon of
Wednesday, September 8, 2004, and continued to deliberate on the ensuing Thursday, Monday,
and Tuesday. On the morning of Wednesday, September 15, 2004, the Court received a
handwritten note from Juror 0552 bearing the time of 9:30 a.m., which read as follows:
I, juror number 05 52, request that I be replaced with an alternate in the deliberation
of Larry Wilkerson. I strongly disagree with the laws and instructions that govern
this deliberation, and I cannot follow them. Because 1 feel so strongly about this, it
may affect my decisions in this matter. In other words a possible bias decision [sic].
In addition, I am experiencing emotional and mental distress. F or this alone, 1 felt
it was enough for me to ask for a replacement. I would not be asking for this request,
if I didn’t feel that this was a serious issue. Please take this request under strong
consideration. I apologize, for the delay in this request, but if it is at all possible
please remove me from this deliberation. Sincerely, Juror 0552
Improper Removal Motion, Attach. B (copy of the note).
The Court consulted with counsel about how to proceed and reviewed the leading case
law, in particular United Stales v. Brown, 823 F.2d 591 (D.C. Cir. 1987) and Um`ted States v.
Thomas, 116 F.3d 606 (Zd Cir. 1997) (interpreting and following Brown). See Trial Tr. at 2-25,
Sept. 15, 2004. Drawing on these precedents, the Court recognized that this situation required it
to strike a delicate balance between two duties: (l) not to intrude upon the process of jury
deliberations, and (2) to discharge a juror who engages in misconduct such as not following the
law. See Thomas, 116 F.3d at 618 ("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.") Over the government’s
2 The 0552 designation represents the juror’s number from the venire. Within the
empaneled jury, this juror’s number was 9.
objection, the Court conducted a further voir dire of Juror 0552 to confirm her statements in the
note. Over defense counsel’s opposition, the Court did not ask the juror directly whether her
discomfort reflected doubts about the sufficiency of the government’s evidence. The colloquy
between the Court and Juror 0552 is reproduced in full below:
COURT: Good moming, ma’am. Thank you for coming in. 1 appreciate it. F or the
record I need to identify who you are. 1 need to ask a couple of questions of your
note. You’re Juror 0552?
JUROR: Yes.
COURT: Ma’am, you wrote me a note this morning?
JUROR: Yes.
COURT: All right. Thank you. 1n your note 1 just want to review it with you and ask
you a couple of questions about it. And 1 carmot go into your deliberations or what’s
going on in the jury room. You understand that? 1 don’t want to hear anything about
the deliberations or intrude in any way, but because of your note 1 need to ask you a
couple of questions. All ri ght. Okay. You said that you request to be replaced
because you strongly disagree with the laws and instructions that govern this
deliberation and you cannot follow them. 1n other words, 1 just need to ask you when
you make that statement you mean the instructions and the law that I’ve given to you
in this case we’re talking about?
JUROR: Yes.
COURT: And although you took an oath to follow the instructions and the law you
feel you cannot do so; is that fair?
JUROR: Yes.
COURT: And you were very fair about it. You wrote 1 feel so strongly about this it
may affect my decisions in this matter. 1n other words, 1 may have possible bias
decision. And because you’re disagreeing with the law, is that what you’re saying?
JUROR: Yes.
CGURT: You also said you’re feeling emotional and mental distress. You felt that
alone was enough to ask for replacement. ls that just because of deliberations you
mean? l don’t want to get - -
JUROR: The whole thing.
COURT: The whole case?
JUROR: The whole case.
COURT: Let me ask you about the law, You’ve read the instructions. You’ve heard
my law we’re talking about. And it’s your opinion you cannot follow the law and
apply it in this case? ls that what you’re saying?
JUROR: l cannot follow it because 1 do not agree with it.
COURT: You do not agree with the law?
JUROR: No.
COURT: l don’t want to get in your deliberations now.
JUROR: Okay.
COURT: You just don’t agree with the law?
JUROR: Uh-uh.
COURT: And you came to this belief after seriously considering you say here that
you didn’t, you know, you wouldn’t ask for this but you didn’t feel you felt it was
such a serious issue?
JUROR: lt is serious. We’re dealing with somebody’s life.
COURT: And under the law that l’ve given you you disagree with that? ls that what
you’re saying?
JUROR: Yes.
COURT: All right. Let me ask you to step back and not talk to the other jurors about
your situation and talk with counsel for a minute. Can l do that for a minute, please,
ma’am. Thank you very much.
Trial Tr. at 26-28. After further discussion with counsel, id. at 28-33, the Court decided to
dismiss Juror 0552 pursuant to FED. R. CRIM. P. 23(b)(3) based on her representation, both in the
note and during the voir dire, that she strongly disagreed with the laws goveming the deliberation
and could not follow them. Ia'. at 36-38.
Wilkerson claims that the Court erred in four ways. Improper Removal Mot. at 2. First,
he argues procedurally that Brown required the Court to ask Juror 0552 if she harbored concerns
about the evidence. Second, Wilkerson asserts that the Court applied an incorrect legal standard
to dismiss Juror 0552, as it found that there was no "substantial possibility" that the juror
harbored evidentiary concerns even though Brown commands an "any possibility" standard.
Third, Wilkerson contends on the merits that the record was ambiguous as to whether Juror 0552
had concems about the evidence, so the Court was wrong to remove her regardless of her
perceived intent to disregard the law. Fourth, Wilkerson submits that, leaving aside concems
about the evidence and assuming arguendo that Juror 05 52 intended to disregard the law, the
prospect of jury nullification is not a proper basis to dismiss a juror under Rule 23(b).
Based on these alleged errors, Wilkerson argues that the Court wrongly dismissed Juror
0552 in violation of his right to a unanimous verdict. See Unz`ted States v. Essex, 734 F.2d 832,
840-41 (D.C. Cir. l984) (finding that right to unanimous verdict derives from Sixth Amendment
and Federal Rules of Criminal Procedure). As his remedy, Wilkerson seeks a new trial. ln the
altemative, he requests that the Court summon Juror 0552 for another voir dire to explore more
conclusively whether evidentiary concems motivated her request to be discharged.
ANALYSIS
FED. R. CRIM. P. 23(b)(3) provides that "[a]fter the jury has retired to deliberate, the court
may pennit a jury of 11 persons to return a verdict, even without a stipulation by the parties, if
the court finds good cause to excuse a juror."3 The D.C. Circuit, interpreting this Rule’s "good
cause" requirement," has held that "a court may not dismiss a juror during deliberations if the
request for discharge stems from doubts the juror harbors about the sufficiency of the
govemment’s evidence." Brown, 823 F.2d at 596. "lf a court could discharge a juror on the
basis of such a request, then the right to a unanimous verdict would be illusory." Id.; see also
Thornas, 116 F.3d at 621 ("To remove a juror because he is unpersuaded by the Government’s
case is to deny the defendant his right to a unanimous verdict.").
While this rule provides a bright line conceptually, its application in practice is not
always clear-cut:
[A court] must, however, confront the problem that the reasons underlying a request
for a dismissal will often be unclear. . . . [A] court may not delve deeply into a juror’s
motivations because it may not intrude on the secrecy of the jury’s deliberations.
Thus, unless the initial request for dismissal is transparent, the court will likely prove
unable to establish conclusively the reasons underlying it. Given these
circumstances, . . . 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,
Brown, 823 F.2d at 596.
ln Brown, the D.C. Circuit held that the district court erred in dismissing a juror because
the record indicated a "substantial possibility" that the juror’s discharge request stemmed from a
3 ln this case, the Court granted Wilkerson’s unopposed request to maintain a twelve-
member deliberating jury by replacing Juror 0552 with an alternate juror, pursuant to FED. R.
CRIM. P. 24(c)(3).
4 At the time Brown was decided, Rule 23(b) used the tenn "just cause" rather than
"good cause." The distinction is immaterial. The commentary to the rule states that the wording
was changed only because "good cause" is a "more familiar term" than "just cause," and that
"[n]o change in substance is intended." See FED. R. CRIM. P. 23 Advisory Comm. notes to 2002
Amendments.
belief that the evidence offered at trial was inadequate to support a conviction. Ia’. at 596. The
juror in that case sent out a note saying that he was "not able to discharge [his] duties as a
member of this jury." Ia’. at 594. Upon questioning by the trial judge, however, the juror stated
that his difficulty was with "the way [the act is] written and the way the evidence has been
presented." Id. The juror noted further that "[i]f the evidence was presented in a fashion in
which the law is written, then, maybe, 1 would be able to discharge my duties." Ia’. The Court of
Appeals found that these statements evinced a possibility that the juror wished to quit
deliberations because of evidentiary concems, and that this ambiguity should have blocked the
district court from excusing the juror. Ia'. at 597. Accordingly, the Court of Appeals remanded
for a new trial.
With this legal framework in mind, the Court below addresses each of Wilkerson’s four
arguments for why the dismissal of Juror 0552 was improper.
I. Whether the Court was required to ask Juror 0552 if she harbored concerns about the
sufficiency of the government’s evidence
After receiving Juror 0552’s note, the Court consulted with counsel before conducting the
voir dire. During that consultation, the following exchange took place between defense counsel
and the Court:
COUNSEL: ln light of the Second Circuit’s decision that Your Honor was just
reading [Thomas] l think there should be at least one question about whether she has
some difficulty with whether the evidence is sufficient.
COURT: 1 don’t think l can do that. lf she wants to volunteer that’s one thing. The
way it reads 1 can’t do that.
Trial Tr. at 25 . ln the subsequent colloquy with Juror 0552, the Court did not ask if she had any
difficulty with the sufficiency of the evidence. After the colloquy and before the Court ruled,
defense counsel again sought unsuccessfully to have the Court ask Juror 0552 whether she had
evidentiary concerns, 1a'. at 29-33.
Revisiting this point, Wilkerson now argues that the Court was required to ask Juror 0552
whether she harbored concerns about the sufficiency of the government’s evidence. Wilkerson
stresses that he did not and does not contend that the Court should inquire into the substance of
the juror’s views on the merits of the case; rather, Wilkerson contends that a question could have
been propounded to elicit a simple "yes" or "no" answer as to whether she had concems about
the evidence. Wilkerson argues that such a question was required particularly in light of Juror
05 52’s statement that she was experiencing "emotional and mental distress" stemming from "the
whole case." According to Wilkerson, this representation possibly signaled that Juror 0552 was
struggling with the evidence,5 triggering a duty for the Court to inquire further to confirm
whether she was troubled by the evidence in the case.
The Court rejects the proposition that it was required to ask Juror 05 52 if she harbored
concems about the sufficiency of the evidence. At most, Brown and Th0mas indicate that a court
may ask such a question; nowhere do those cases suggest that a court must. To the contrary,
courts generally enjoy wide latitude in determining the type of investigation to conduct when
allegations of juror misconduct arise. See Essex, 734 F.2d at 845 ("'I`lie trial court has a great
deal of discretion in deciding to excuse a juror for cause. An appellate court ordinarily will not
second-guess such a detennination . . . ."); United States v. B00ne, 458 F.3d 321, 329 (3d Cir.
2006) ("[W]e emphasize that a district court, based on its unique perspective at the scene, is in a
5 The Court disagrees with this contention. Notwithstanding defense counsel’s wishful
speculation, see, e.g., Def.’s Mem. of P. & A. at 7 & n.7, the record before the Court indicated no
appreciable possibility that Juror 05 52 harbored concerns about the evidence. See infra Part lll.
8
far superior position than this Court to appropriately consider allegations of juror misconduct,
both during trial and during deliberations."); Unitea' States v. Baker, 262 F.3d l24, 129 (2d Cir.
2001) ("[W]e have emphasized that the questions whether and to what extent a juror should be
questioned regarding the circumstances of a need to be excused are also within the trial judge’s
sound discretion." (intemal quotation and citation omitted)); Um`ted States v. Register, 182 F.3d
820, 840 (1lth Cir. 1999) ("[T]he court also enjoys substantial discretion in choosing the
investigative procedure to be used in checking for juror misconduct." (intemal quotation
omitted)); United States v. Sears, 663 F.2d 896, 900 (9th Cir. 1981) ("The District Court has
broad discretion to decide whether to conduct an evidentiary hearing into alleged juror
misconduct, and to determine its extent and nature."). Nothing in Th0mas or Brown indicates
that this widely accepted rule trusting in a court’s sound discretion has been supplanted by an
opposite rule directing exactly what questions a court must ask.
Wilkerson’s argument demonstrates the folly of attempting "to leap a chasm in two
jumps," to borrow a phrase from British Prime Minister David Lloyd George (1863-1945).
Wilkerson makes much of the statement in Brown that a court "may not delve deeply into a
juror’s motivations." 823 F.2d at 596. While it could follow from that statement that a court
may delve shallowly, Wilkerson’s reading further jumps to the conclusion that a court must delve
shallowly. Yet, it hardly follows from the statement in Brown that a court must delve at all.
To the contrary, the dominant thrust of the reasoning of Th0mas, in which the Second
Circuit elaborated on Brown, is that inquiries into a juror’s views on the merits of a case are
highly disfavored. As between competing values of preserving the secrecy of jury deliberations
and preventing jurors from subverting the law, the secrecy of deliberations is paramount:
Where the duty and authority to prevent defiant disregard of the law or evidence
comes into conflict with the principle of secret jury deliberations, we are compelled
to err in favor of the lesser of two evils-protecting the secrecy of jury deliberations
. To open the door to the deliberation room any more widely and provide
opportunities for broad-ranging judicial inquisitions into the thought processes of
jurors would, in our view, destroy the jury system itself`.
Thomas, 116 F.3d at 623; see also ia’. at 620 ("The mental processes of a deliberating juror with
respect to the merits of the case at hand must remain largely beyond examination and second-
guessing, shielded from scrutiny by the court as much as from the eyes and ears of the parties and
the public."). Following this precept, the Court in its discretion endeavored to preserve the
sanctity of Juror 0552’s thought process in this case. Accordingly, it was not error to decline any
inquiry into the juror’s views of the evidence.
II. Whether the Court applied an incorrect legal standard to dismiss Juror 0552
Wilkerson argues that, in deciding to dismiss Juror 0552, the Court did not apply the
controlling legal standard prescribed in Brown: "[l]f the record evidence discloses any possibility
that the request to discharge stems from the juror’s view of the sufficiency of the govemment’s
evidence, the court must deny the request." 823 F.2d at 596 (emphasis added). According to
Wilkerson, rather than this "any possibility" standard, the Court erroneously applied a standard
requiring a "substantial possibility." Wilkerson bases his conclusion on part of the oral opinion
the Court delivered in dismissing Juror 0552:
[H]er only expression is she cannot follow the law and she disagrees with it and she
reaffirmed that orally. She was concemed about the case and concemed there was
a lot at stake and she said a life at stake. That does not indicate to me any substantial
possibility [of concem about the sufficiency of the evidence] using the language of
the Brown decision or in the Thomas case.
Trial Tr. at 38 (emphasis added). That language did appear in Brown, where the D.C. Circuit
10
found a "substantial possibility" that the juror "requested to be discharged because he believed
that the evidence offered at trial was inadequate to support a conviction." 823 F.2d at 596. The
Thomas opinion, however, nowhere uses the phrase "substantial possibility."
As it stated in open court while reviewing the case law, see Trial Tr. at 22, the Court
rejects a legal distinction between the "any possibility" and "substantial possibility"
fonnulations. As the Eleventh Circuit has explained, these nominally different formulations
must be treated as expressions of the same standard: "In United States v. Brown, the D.C. Circuit
used both the tenn ‘any possibility’ and the tenn ‘substantial possibility.’ We believe the tenns
are interchangeable, both meaning a tangible possibility, not just a speculative hope." United
States v. Abbell, 271 F.3d 1286, 1302 n.14 (11th Cir. 2001) (per curiam).
This reading is necessary because, if taken literally, the "any possibility" standard
announced in Brown would impose the unworkable requirement of proving a negative beyond
the slightest scintilla of wildly speculative possibility. The Ninth Circuit, in adopting a
"reasonable possibility" standard, recognized the impracticality of a true "any possibility"
approach:
We emphasize that the standard is any reasonable possibility, not any possibility
whatever. . . . [T]o prohibit juror dismissal unless there is no possibility at all that the
juror was dismissed because of her position on the merits may be to prohibit
dismissal in all cases. We believe that the standard of "reasonable possibility" in this
context, like the standard of "reasonable doubt" in the criminal law generally, is a
threshold at once appropriately high and conceivably attained.
Unitea’ States v. Symington, 195 F.3d 1080, 1087 n.5 (9th Cir. 1999) (intemal quotation omitted).
As invoked in Brown, "any possibility" must be read to refer to some kind of qualified
possibility. The Third Circuit, also adopting a "reasonable possibility" standard, reached the
11
same conclusion in its review of the approaches that various Circuits have taken:
While there is a slight difference in the standards as expressed by the D.C. and
Second Circuits ["any possibility"] as compared to the Ninth and Eleventh Circuits
["reasonable possibility" and "substantial possibility"], we believe that the difference
is one of clarification and not disagreement. To the extent that there is a difference,
we believe that the articulation of the Ninth and Eleventh Circuits is superior. That
standard will allow us to avoid abstract "anything is possible" arguments, provide
district courts with some leeway in handling difficult juror issues, and protect each
party’s right to receive a verdict rendered by a jury that follows the law. At the same
time, the standard is by no means lax: it corresponds with the burden for establishing
guilt in a criminal trial, so we are confident that it will adequately ensure that jurors
are not discharged simply because they are unimpressed by the evidence presented.
United States v. Kemp, 500 F.3d 257, 304 (3d Cir. 2007).
lt would be helpfill for the Court of Appeals to clarify the applicable standard in this
Circuit, The Court used "substantial possibility" in its oral opinion because that language
appeared in Brown.° Several other qualifiers_reasonable, appreciable, realistic, genuine,
credible, tangible-could be employed. Whatever the magic word, the Court is confident that it
correctly applied a standard of qualified possibility and that Wilkerson’s argument for a literal
"any possibility" standard must fail.
III. Whether the record was ambiguous as to Juror 0552’s concerns about the evidence and
therefore the Court was wrong to discharge her
Challenging the Court’s ruling on the merits, Wilkerson asserts that the record was
ambiguous as to whether Juror 05 52 harbored concems about the sufficiency of the govemment’s
evidence. ln light of this alleged ambiguity, Wilkerson argues that, notwithstanding what the
Court perceived as Juror 0552’s intent to disregard the law, Brown prohibited her dismissal from
the jury.
6 The Court also stated that it was "satisfied beyond a reasonable doubt" of its
conclusion. Trial Tr. at 38.
12
The Court rejects Wilkerson’s premise that the record exhibits ambiguity. As the Court
found when ruling from the bench, the evidence is clear that Juror 0552’s request to be dismissed
stemmed from her inability to follow the goveming law, not from any evidentiary concems: "l’m
satisfied beyond a reasonable doubt as a judge of her credibility from her statements in the letter
and her statements on the record that she will not follow the law, that she strongly disagrees with
them and she’ll not follow them contrary to her oath of office . . . ." Trial Tr. at 38. lndeed, the
Court had asked Juror 0552 seven times, in multiple ways, whether she was unable to follow the
law as instructed, and each time she confinned that she could not. Ia'. at 26-28. The Court found
that, in her communications, Juror 05 52 made no "reference whatsoever to any evidentiary
concems or the strength of the govemment’s evidence or the dissatisfaction with the
government’s presentation of the case making her concem[ed] about proof beyond a reasonable
doubt . . . ." Ia'. at 38. To the contrary, the Court found that both her written and oral statements
confinned repeatedly that her discharge request was motivated by disagreement with the law:
"[H]er only expression is that she cannot follow the law and she disagrees with it and she
reaffinned that orally." Ia’.
The Court’s factual findings are entitled to substantial deference. See Unitea' States v.
Taylor, 487 U.S. 326, 337 (1988) ("Factual findings of a district court are, of course, entitled to
substantial deference and will be reversed only for clear error."). Moreover, Juror 05 52’s clear-
cut statements contrast starkly with the record in Brown, where the juror traced his difficulty to
"the way [the act is] written and the way the evidence has been presented," and then suggested
that "[i]f the evidence was presented in a fashion in which the law is written, then, maybe, 1
would be able to discharge my duties." Brown, 823 F.2d at 594.
13
Despite such a straightforward record, Wilkerson attempts to divine ambiguity from Juror
05 52’s statement that she was experiencing "emotional and mental distress" stemming from "the
whole case." ln Wilkerson’s view, this representation possibly signaled that Juror 0552 was
concerned about the sufficiency of the evidence, as "the whole case" would include the evidence
in the case.
Wilkerson’s reading is simply not credible in light of all the circumstances. Two other
considerations explain what Juror 0552 meant about "the whole case" causing her distress. First,
her statement later in the colloquy_"lt is serious. We’re dealing with somebody’s life." Trial
Tr. at 28_indicates that what distressed her was the stakes involved in the whole case, not the
sufficiency of the evidence. Second, the grueling length and complexity of Wilkerson’s trial, as
described by the Court in its oral opinion, see Trial Tr. at 36, further explains how "the whole
case" caused the juror distress. On that second point, it is instructive to note that Juror 0552’s
reference to "the whole case" was prompted only in response to the Court’s inquiry into the
health concems mentioned in her note, not during any discussion of the merits of the case.
Specifically, the Court asked whether her distress was related to the jury’s deliberations:
COURT: You also said you’re feeling emotional and mental distress. You felt that
alone was enough to ask for replacement. ls that just because of deliberations you
mean‘? l don’t want to get - -
JUROR: The whole thing.
COURT: The whole case?
JUROR: The whole case.
Id. at 27. What Juror 0552 was trying to communicate was that her distress was not a product of
the deliberations specifically, but of the entire, exhausting proceeding.
14
lndeed, Juror 05 52’s clarification that her distress was not triggered in particular by the
deliberations rebuts an inference that she was struggling with the sufficiency of the evidence.
Deliberations_the stage when the jury finally evaluates the evidence in light of the controlling
law-are precisely when a juror’s dissatisfaction with the sufficiency of the evidence would
manifest itself most clearly, yet that phase of the case was not especially distressing to Juror
05 52.
Finally, Juror 0552’s implication that the deliberations were not a particular cause of
distress undercuts Wilkerson’s conjecturing, see Def.’s Mem. of P. & A. at 7 & n.7, l7, that she
was a holdout juror of the sort that Brown and Thomas seek to protect from being bullied into
seeking a discharge. See Thomas, 116 F.3d at 622 (explaining that Brown rule guards against
wronglial removal in scenario where group of jurors favoring conviction unfairly characterizes a
lone holdout juror as unwilling to follow the law). Wilkerson’s supposition of a bullied juror is
also belied by the absence, in over three days of deliberation, of any note or other indication from
the jury demonstrating that tension existed among the jurors. See Trial Tr. at 36. Juror 0552
never hinted in any way of such pressure.
ln sum, Juror 05 52’s statements very clearly identify her motivation for seeking to be
discharged from the jury: she disagreed with the goveming law and felt herself unable to follow
it. Contrary to Wilkerson’s suggestions about why "the whole case" would have caused Juror
0552 "emotional and mental distress," the record viewed in light of all the circumstances exhibits
no substantial (or reasonable, appreciable, realistic, genuine, credible, or tangible) possibility that
Juror 0552’s request for discharge stemmed from doubts about the sufficiency of the
government’s evidence.
15
IV. Whether a juror’s intent to disregard the law is a proper basis under Rule 23(b) to
dismiss that juror
ln Brown, the D.C. Circuit "specifically [left] open the question . . . whether a court may
constitutionally apply Rule 23(b) to discharge a juror for refusing to apply the relevant
substantive law." 823 F.2d at 597. Taking up this question, Wilkerson contends that, even if
Juror 0552 plainly intended to disregard the law, such jury nullification is not a proper basis to
dismiss a juror under Rule 23(b). He offers minimal substantive discussion in support of this
proposition. See Def.’s Mem. of P. & A. at 13 n.9.
This Court now answers that Rule 23(b) pennits discharge of a juror who refuses to apply
the goveming the law. Facing the same issue in Thomas, the Second Circuit, with Judge
Cabranes writing, fulminated against the theory that Wilkerson advances:
We categorically reject the idea that, in a society committed to the rule of law, jury
nullification is desirable or that courts may pennit it to occur when it is within their
authority to prevent. Accordingly, we conclude that a juror who intends to nullify the
applicable law is no less subject to dismissal than is a juror who disregards the
court’s instructions due to an event or relationship that renders him biased or
otherwise unable to render a fair and impartial verdict.
116 F.3d at 614. The Second Circuit continued that:
lnasmuch as no juror has a right to engage in nullification_and, on the contrary, is
in violation of a juror’s swom duty to follow the law as instructed by the court-trial
courts have the duty to forestall or prevent such conduct, whether by finn instruction
or admonition or, where it does not interfere with guaranteed rights or the need to
protect the secrecy of jury deliberations, by dismissal of an offending juror from the
venire or the jury.
Ia’. at 616 (intemal reference omitted). Addressing precisely the point that Wilkerson raises, the
Second Circuit held that "a juror who is detennined to ignore his duty, who refuses to follow the
court’s instructions on the law and who thus threatens to undennine the impartial detennination
16
of justice based on law, is subject to dismissal during the course of deliberations under Rule
23(b)." la'. at 617 (intemal quotation omitted); accord Kemp, 500 F.3d at 303 ("[C]ourts agree
that a district court has the authority to dismiss a juror-even during deliberations--if that juror
refuses to apply the law or to follow the court’s instructions." (intemal quotation omitted));
Abbell, 271 F.3d at 1302 ("‘Just cause’ exists to dismiss a juror when that juror refuses to apply
the law or to follow the court’s instructions."). The Court agrees with the Second, Third, and
Eleventh Circuits, and rejects Wilkerson’s claim.
CONCLUSION
The Court finds no merit in Wilkerson’s arguments that the dismissal of Juror 0552 was
improper. lt was not necessary to ask the juror whether she harbored concems about the
sufficiency of the evidence, nor did the record contain ambiguity on that point. The Court
applied the correct legal standard in reaching its decision to discharge the juror, and Rule 23 (b)
permitted it because she had expressed her intent to disregard the law. Because all of
Wilkerson’s arguments fail, the Court will deny his motion.
An order accompanies this Memorandum Opinion.
/'
Jury 11 2009
Thomas F.lib n
U.S. District J dg
17