United States v. Isa Noel , 905 F.3d 258 ( 2018 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_______________
No. 14-2042
_______________
UNITED STATES OF AMERICA
v.
ISA NOEL,
Appellant
_______________
On Appeal from the District Court
of the Virgin Islands
(D.V.I. No. 3:13-cr-00031-002)
Honorable Curtis V. Gomez, U.S. District Judge
_______________
Argued: May 22, 2018
Before: KRAUSE, ROTH, and FISHER, Circuit Judges
(Opinion Filed: September 26, 2018)
Joycelyn Hewlett
Meredith J. Edwards [Argued]
Nelson L. Jones
Office of United States Attorney
5500 Veterans Drive, Suite 260
United States Courthouse
St. Thomas, VI 00802
Counsel for Plaintiff-Appellee United States of
America
Alvin E. Entin
Entin & Della Fera, P.A.
633 South Andrews Avenue, Suite 500
Fort Lauderdale, FL 33301
John R. Howes [Argued]
633 South Andrews Avenue
Fort Lauderdale, FL 33301
Counsel for Defendant-Appellant Isa Noel
_______________
OPINION OF THE COURT
_______________
KRAUSE, Circuit Judge.
Chief among several questions presented by this
criminal appeal is what showing a defendant must make to
warrant an evidentiary hearing when moving for a new trial
on the ground of newly discovered evidence of juror
misconduct. We are also called upon to consider the extent to
which the Confrontation Clause entitles a defendant to cross-
examine government witnesses who testify pursuant to
cooperation agreements about the sentence reductions they
2
expect to receive in exchange. Because we conclude that the
Defendant’s new trial motion did not make the requisite
showing to warrant a hearing and that the District Court’s
limitation on cross-examination did not contravene the
Confrontation Clause, we will affirm.
I. Background
This appeal arises from a drug trafficking conspiracy
in which several personnel at a Virgin Islands airport
smuggled cocaine onto commercial flights bound for the
United States mainland. In August 2013, a federal grand jury
returned an indictment charging Appellant Isa Noel, a ground
services supervisor at St. Thomas’s Cyril E. King Airport,
and three of his fellow airport personnel with conspiracy to
possess with intent to distribute cocaine and related
possession offenses. After a three-day trial, the jury
convicted Noel on all charges, and the District Court
sentenced him to 151 months’ imprisonment. More than a
year later, Noel filed a motion for a new trial on the ground of
newly discovered evidence of juror misconduct, which the
District Court denied without a hearing.
Noel timely appealed, 1 challenging numerous orders
across various stages of the proceedings but focusing
1
After appealing from his convictions and sentence,
Noel filed his new trial motion. We remanded to the District
Court, which entered an order denying the motion. See Fed.
R. App. P. 27; 3d Cir. L.A.R. 27.4. Seeking to appeal that
order as well, Noel filed a motion to recall the mandate and
for leave to file supplemental briefing. We granted that
motion and now address both the merits of Noel’s original
3
primarily on the sufficiency of the evidence, the District
Court’s rulings on cross-examination, and its denial of his
motion for a new trial. Before turning to the merits, we
recount the proceedings pertinent to the challenged orders.
A. The Trial
1. Jury Selection
During the preliminary proceedings, the District Court
conducted voir dire and, over Noel’s objection, impaneled a
security officer working on a contract basis for the U.S.
Marshals Service. In response to the District Court’s
questioning, that officer—who later became Juror No. 11—
denied having a relationship by “blood, marriage[,] or
business” with Noel or having “read or heard anything about
th[e] case.” App. 66–67. But when the District Court asked
whether any juror was “involved in the criminal justice
system,” Juror No. 11 indicated that he was, which led to the
following exchange:
THE COURT: Okay. You raised your card . . .
. Tell us why.
JUROR MEMBER: I worked 26 years as a
correction[s] officer and I [have] been involved
in making the arrests and support and all that
stuff.
appeal and the denial of his new trial motion. See 3d Cir.
I.O.P. 7.2.
4
THE COURT: Were you involved in any arrest
in this case?
JUROR MEMBER: No.
THE COURT: All right. You’re currently
employed by whom?
JUROR MEMBER: I’m retired now but I have
a contract with the U.S. [M]arshal[]s office.
App. 76–77. Although it elicited assurances that Juror No. 11
could follow its instructions and remain impartial, the District
Court did not inquire further into the juror’s specific duties
with the U.S. Marshals Service, nor did Noel.
Instead, citing the juror’s involvement “in law
enforcement . . . [p]roviding security,” Noel moved to strike
him from the jury. App. 78. After soliciting the
Government’s position—that the juror “indicated he had no
dealings with the[] particular defendants in th[e] case,” App.
78—the District Court denied Noel’s motion; Juror No. 11
was impaneled; and the parties proceeded to trial.
2. The Evidence
Over the course of the trial, the Government presented
the testimony of Noel’s three former codefendants—Edisson
Peguero Ortiz, Joelvis Acosta Liz (Acosta), and Kirsten
Alexander—who had each since entered into plea agreements
with the Government. The Government also offered the
testimony of an additional cooperating witness and several
law enforcement officers as well as phone records, airport
5
surveillance footage, physical evidence, and a joint stipulation
to the amount of cocaine seized by law enforcement.
Ortiz and Acosta testified that they were involved in a
cocaine distribution venture with Noel and that, as many as
nine times, they received cocaine from a third party,
facilitated its transportation through the airport into the
baggage of ticketed passengers, and split the profits. Noel’s
role, they testified, was critical: As a ground services
supervisor, he had access to restricted doors, allowing them to
bypass TSA checkpoints. Their testimony was corroborated
by a confidential informant and his law enforcement handler.
The informant testified that, during a meeting at Acosta’s
house, Acosta and Noel agreed to transport cocaine for him
and that he twice gave them sham cocaine outside the airport,
which was then returned to him inside the airport. The
handler, who surveilled the meetings and provided the sham
cocaine, confirmed these facts.
In addition to this evidence about the conspiracy’s
structure and purpose, the jury heard about the particular
transactions underlying Noel’s two possession charges. The
first transaction, Ortiz and Acosta testified, involved a foiled
attempt to transfer six kilos of cocaine to a courier. Ortiz
gave the cocaine to Noel the night before, and Acosta and
Noel transported it, concealed in their waistbands, from the
employee locker room to the airport bathroom where they
were met by the courier. A surveilling law enforcement
officer testified that he “pursued” the courier to “the handicap
stall,” “climbed on the toilet next door and looked over,” and
ultimately discovered the courier “standing in front of the
toilet . . . on the phone,” with a “black[] suitcase sitting on the
toilet,” “unzipped but not open.” Second Addendum to App.
6
(Addendum) 373–74. Inside that suitcase the law
enforcement officer found several brick-shaped packages,
which the Government introduced as evidence and which the
parties stipulated amounted to approximately seven kilos of
cocaine. 2 The Government’s evidence also included airport
surveillance footage that showed Acosta, Noel, and the
courier walking to and from the bathroom in succession and
phone records that reflected eighty-one calls made that day
between Ortiz, Acosta, and a phone number that, although
subscribed in a different name, the Government asked the
jury to infer, “us[ing] [its] common sense,” was used by Noel.
Addendum 510.
The second transaction took a similar form but went a
step further before also being thwarted. In that instance,
according to the testimony of codefendant Alexander,
Alexander was at work at the airport in the employee break
room when Noel, his supervisor, called him on the phone.
Noel then came to the break room, asked Alexander to “take a
package to one his friends . . . in the bathroom” inside the
airport, and gave him access to do so through a restricted
door. Addendum 126.
The “friend,” a courier who testified as a cooperating
witness for the Government, explained that he received the
cocaine from Alexander in a bathroom stall and then boarded
a plane to Miami, and surveillance footage showed the pair
walking to and from the bathroom. The transaction was also
2
Although Ortiz and Acosta estimated that the cocaine
weighed six kilos, a lab analysis reflected a heavier weight to
which the parties stipulated.
7
corroborated by phone records reflecting twelve calls made
that day between Alexander and the same phone number used
in the first transaction, as well as the testimony of a
Homeland Security agent who described the courier as
“appear[ing] visibly nervous” and “sweating profusely” after
disembarking the plane in Miami. Addendum 147. Upon the
courier’s arrest, agents recovered from his luggage a brick-
shaped package that the parties eventually stipulated
amounted to about one kilo of cocaine and that was also
introduced as a government exhibit.
3. Cross-Examination Rulings
Because codefendants Ortiz, Acosta, and Alexander
each testified pursuant to cooperation agreements with the
Government, Noel attempted to undermine their credibility by
cross-examining them about the sentence reductions they
hoped to receive in exchange. The District Court allowed
some, but not all of the lines of questioning that Noel sought
to pursue.
On the one hand, the District Court permitted each
codefendant to confirm, in broad strokes, the benefits secured
by their agreements. Noel was able to question the
codefendants about the reduction of otherwise substantial
sentences, the Government’s agreement to drop or not pursue
additional charges, 3 the codefendants’ release from federal
3
Acosta pleaded guilty to a conspiracy charge as to
seven kilos, despite personally possessing thirty-two, and the
Government dropped a possession charge; Alexander pleaded
guilty to misprision of a felony, and the Government dropped
a conspiracy charge; and Ortiz pleaded guilty to conspiracy—
8
custody pending sentencing, and the possibility of a greater
sentence reduction, should their testimony be satisfactory. In
addition, each of the codefendants disclosed that they had
reviewed the Government’s case against Noel prior to trial.
On the other hand, the District Court foreclosed
inquiry as to the codefendants’ precise sentencing exposure,
explaining that this limitation was necessary to prevent the
jury from inferring the sentence Noel himself was facing:
Punishment is not ever something the jury is to
have in their mind, so I’m not going to permit
you to go into anything that gives some specific
outline about what a sentence might be. The
defendant is on trial for a drug conspiracy, and
this defendant pled guilty to a drug conspiracy. .
. . Now, if you want to suggest that he was . . .
exposed to . . . a considerable amount of time,
and he is, by his performance today he is
essentially singing for his supper, you can
certainly explore that. But I’m not going to
have you go into things like mandatory or
specific sentences like 10 years or maximum of
life . . . . Because if it’s going into anything
that deals with sentence or punishment, I don’t
want the jury to be connecting up the dots and
say: Well, here’s what Mr. Noel is facing.
Addendum 24–25.
the only charge for which he was indicted—but the
Government agreed to reduce his exposure from about ten
kilos to seven.
9
When it came time for closing arguments, Noel used
the testimony he had elicited to impugn the codefendants’
veracity and motivation for testifying. He described them, for
example, as “self-confessed crooks, liars, [and] convicts . . .
looking out for the best interests of only themselves,” and
urged the jury to discredit their testimony because they had
“one goal”—to “serve[] less jail time”—and their eyes were
on the “golden trophy”: a recommendation from the
Government “to reduce their substantial sentence[s] even
further.” Addendum 485–86.
The jury deliberated for about four hours before
reaching a guilty verdict on all counts.
B. The New Trial Motion
More than eighteen months after his convictions, Noel,
alleging that he had recently discovered evidence of
“significant juror misconduct,” filed a motion for a new trial.
App. 32. That motion explained that Noel had recently
subpoenaed records from the U.S. Marshals Service,
including a job description and time sheets that, according to
Noel, cast doubt on the veracity of Juror 11’s responses at
voir dire. The job description revealed that Juror No. 11
served as a “District Security Officer” responsible for, among
other tasks, guarding federal detainees and transporting them
to and from court. App. 51. The time sheets also indicated,
without any further detail, that Juror No. 11 worked “in court
with prisoners” on the date of Noel’s and two codefendants’
preliminary appearances and that he provided “support to the
airlift” the following day and on the day another codefendant
was arraigned. App. 59, 61 (capitalization omitted). Based
10
on those records, Noel hypothesized that Juror No. 11
attended and transported Noel and his codefendants to and
from those appearances and may have provided their
transportation to other court proceedings. Failing to disclose
that information on voir dire, Noel asserted, reflected material
dishonesty by Juror No. 11 and deprived Noel of the right to
an impartial jury.
The District Court was unconvinced. Going so far as
to “[a]ssum[e] that Juror No. 11 interacted with Noel while
Juror No. 11 worked as a contract employee with the United
States Marshals,” the District Court identified three pertinent
voir dire questions that Juror No. 11 may have answered
incorrectly: (1) whether he had a prior relationship with the
defendant; (2) whether he had read or heard anything about
the case; and (3) whether he had been involved in any arrest
in the case. Suppl. App. 34. It reasoned, however, that
because the juror “freely admitted” that he worked for the
Marshals Service and Noel did not recognize the juror at trial,
Juror No. 11 likely “did not recognize Noel either,” rendering
his answers “even if incorrect,” still “honest[] respon[ses] to
the Court’s inquiries.” Suppl. App. 33–34. The District
Court therefore denied the new trial motion without a hearing,
and this appeal followed.
II. Jurisdiction and Standard of Review
The District Court had jurisdiction under 18 U.S.C. §
3231, and we have jurisdiction under 18 U.S.C. § 3742 and
28 U.S.C. § 1291. We review for abuse of discretion the
District Court’s decision to deny a new trial motion, United
States v. Cimera, 459 F.3d 452, 458 (3d Cir. 2006), and to
limit cross-examination, United States v. Ellis, 156 F.3d 493,
11
498 (3d Cir. 1998), exercising plenary review where that
discretion turns on the scope of the Confrontation Clause,
United States v. Mitchell, 145 F.3d 572, 576 (3d Cir. 1998).
We review the sufficiency of the evidence “from the
perspective of a reasonable juror,” upholding the verdict “as
long as it does not ‘fall below the threshold of bare
rationality.’” United States v. Caraballo-Rodriguez, 726 F.3d
418, 431 (3d Cir. 2013) (en banc) (quoting Coleman v.
Johnson, 566 U.S. 650, 656 (2012) (per curiam)).
III. Discussion
Noel makes three principal arguments on appeal: (A)
that the District Court’s limitation on the cross-examination
of his codefendants violated his rights under the
Confrontation Clause; (B) that the District Court abused its
discretion in denying, without an evidentiary hearing, his new
trial motion; and (C) that the evidence was insufficient to
support the verdict. We address these issues in turn. 4
4
We will not address in detail two additional
arguments raised in Noel’s brief: (1) the introduction of
certain phone records; and (2) his sentence, which Noel had
argued should be vacated and remanded. Because the phone
records were largely cumulative of abundant properly-
admitted evidence, and counsel conceded at oral argument
that they did not have “an overall bearing on the outcome of
the trial,” Oral Arg. at 40:16–40:21, available at
http://www2.ca3.uscourts.gov/oralargument/audio/14-
2042_USAv.Noel.mp3, their admission cannot constitute
prejudicial error, see United States v. Browne, 834 F.3d 403,
416–17 (3d Cir. 2016), cert. denied, 137 S. Ct. 695 (2017).
As for his sentence, although Noel in his brief argued that we
12
A. The Cross-Examination Limitation
Noel contends that the District Court, by precluding
cross-examination on the specific details of his codefendants’
sentencing exposure, violated his rights under the
Confrontation Clause. However, because the District Court
did permit cross-examination in more general terms about the
codefendants’ sentencing reductions and other benefits of
cooperation, and we are persuaded that this information was
“sufficient . . . , without the excluded evidence, to make a
discriminating appraisal of the possible biases and motivation
of the witness[],” we perceive no error, much less
constitutional error, in the limitation on cross-examination in
this case. United States v. Chandler, 326 F.3d 210, 219 (3d
Cir. 2010) (quoting Brown v. Powell, 975 F.2d 1, 4 (1st Cir.
1992)).
The Confrontation Clause guarantees a criminal
defendant the right to “be confronted with the witnesses
against him.” U.S. Const. Amend. VI. Primary among those
rights is “the right of cross-examination,” which may include
questions “directed toward revealing possible biases,
prejudices, or ulterior motives of the witness.” Davis v.
should vacate and remand for resentencing in light of an
intervening amendment to the Sentencing Guidelines, counsel
conceded at argument that Noel already “got the benefit” of
that amendment. Oral Arg. at 41:21–41:24. And wisely so,
because the District Court, anticipating its future adoption,
sentenced Noel in accordance with the amendment. Both of
these arguments thus lack support in the record and were
essentially withdrawn by Noel.
13
Alaska, 415 U.S. 308, 315–16 (1974) (citations omitted).
Despite this guarantee, trial judges retain “wide latitude . . . to
impose reasonable limits on . . . cross examination,” which a
defendant may overcome by showing that, had the proposed
line of inquiry been permitted, the jury “might have received
a significantly different impression of [the witness’s]
credibility.” Delaware v. Van Arsdall, 475 U.S. 673, 679–80
(1986).
In light of these principles, in United States v.
Chandler, we derived from Van Arsdall a two-part test to
determine whether a particular limitation on cross-
examination violated a defendant’s rights under the
Confrontation Clause. 326 F.3d at 219. First, we determine
whether the limitation “significantly inhibited [the
defendant’s] effective exercise of her right to inquire into
[the] witness’s ‘motivation in testifying.’” Id. (quoting Van
Arsdall, 475 U.S. at 678–79). Then, if it did, we ask whether
the limitation fell within “those ‘reasonable limits’ which a
trial court, in due exercise of its discretion, has authority to
establish.” Id. Whether the trial court abused its discretion,
we explained, “depends on whether the jury had sufficient
other information before it, without the excluded evidence, to
make a discriminating appraisal of the possible biases and
motivation of the witness[],” id. (citation omitted), or,
conversely, whether without the limitation, “a reasonable jury
could have ‘reached a significantly different impression’ of
[the witness’s] credibility,” id. at 222 (quoting Van Arsdall,
475 U.S. at 680).
On the facts of Chandler, we concluded that the
district court’s limitation violated the Confrontation Clause.
There, the trial court allowed a witness to testify that he
14
pleaded guilty to carrying a smaller amount of drugs than he
had actually carried and that he received only one month of
house arrest plus probation even though the offense to which
he pleaded guilty carried a possible twelve to eighteen-month
sentence. Id. at 221–22. But the trial court did not permit
testimony that, had the witness not cooperated with the
Government, he may have faced “more than eight years in
prison.” Id. at 222. Considering the extent of that
discrepancy, we held that “the limited nature of [the
witness’s] acknowledgment that he had benefited from his
cooperation made that acknowledgment insufficient for a jury
to appreciate the strength of his incentive to provide
testimony that was satisfactory to the prosecution.” Id. At
the same time, we were careful not to resolve “whether the
Confrontation Clause entitles a defendant categorically to
inquire into the ‘concrete terms’ of a cooperating witness’s
agreement with the [G]overnment, including the specific
sentence that witness may have avoided through his
cooperation.” Id. at 221.
Two years later, in United States v. Mussare, we
explicitly “decline[d] to . . . hold” that “such a categorical
right exists.” 405 F.3d 161, 170 (3d Cir. 2005). Because
there, the trial court permitted extensive testimony regarding
the plea agreement—including that the witness “expected to
have all federal charges against him dismissed, face only state
charges, and receive no jail time” and that “absent his
cooperation, [the witness] would [have been] facing the exact
same charges as [the defendants]”—we concluded that “the
actual number of years in jail that [the witness] would
otherwise have faced was not likely to have altered the jury’s
impression of his motive for testifying.” Id.
15
And more recently in United States v. John-Baptiste,
where the district court had “allowed testimony regarding the
witnesses’ agreements to cooperate with the [G]overnment
and the fact that they expected to receive more lenient
sentences in return,” we likewise concluded that its exclusion
of testimony about “specific sentences that could have been
imposed if the witnesses had refused to cooperate—a line of
questioning that we have allowed trial courts to curtail”—was
not likely to have altered the jury’s impression of credibility.
747 F.3d 186, 212 (3d Cir. 2014) (emphasis omitted).
Together, these cases hold that there is no absolute
right to inquire into the precise sentence a government
witness might face absent his cooperation and that a district
court may limit the scope of cross-examination to more
general inquiries about his expected benefits. Such limitation
is permissible under the Confrontation Clause unless “the jury
might have ‘received a significantly different impression of
[the witness’s] credibility’” had it not been imposed, which
we assess using Chandler’s two-part test. 326 F.3d at 219. If
the reviewing court determines that the jury indeed might
have received a significantly different impression of the
witness’s credibility, the trial court has necessarily exceeded
the “‘reasonable limits’ which [it], in due exercise of its
discretion, has authority to establish.” Id. at 219. 5
5
As we make clear today, the question whether a
reasonable jury “might have received a significantly different
impression of [the witness’s] credibility,” Van Arsdall, 475
U.S. at 680, pertains at the second step of the Chandler
inquiry, i.e., whether the limitation fell within the bounds of
the trial court’s discretion, not at the first step, i.e., whether
16
Here, the limitation imposed by the District Court fell
comfortably within constitutional bounds. As in Mussare and
John-Baptiste, the District Court imposed a single narrow
restriction: It instructed defense counsel not to “go into
the limitation “significantly inhibited” the defendant’s right to
inquiry into the witness’s motivation for testifying. Our
precedent has not always been so clear on this point.
Compare, e.g., Chandler 326 F.3d at 219 (explaining that the
question whether a reasonable jury might have received a
different impression of the witness’s credibility equates to
“[w]hether a trial court has abused its discretion”), with id. at
223 (proceeding, even after having concluded “a reasonable
jury could have ‘reached a significantly different impression’
of [the witness’s] credibility,” to inquire whether the
limitation “nevertheless fell within the District Court’s
discretion”), and Mussare, 405 F.3d at 169 (interpreting
Chandler to mean “that the proper inquiry under the first
prong [i]s ‘whether . . . the jury might have received a
significantly different impression of [the witness’s]
credibility”). However, once a defendant “show[s] that . . .
[a] reasonable jury might have received a significantly
different impression of [the witness’s] credibility had
[defense] counsel been permitted to pursue his proposed line
of cross-examination,” he already has “state[d] a violation of
the Confrontation Clause.” Van Arsdall, 475 U.S. at 680.
Thus, it would hardly make sense to ask at that point whether
the limitation “nevertheless fell within the District Court’s
discretion,” Chandler 326 F.3d at 223, for the bounds of a
trial court’s discretion, broad as they may be, do not exceed
those of the Constitution.
17
things like mandatory or specific sentences like 10 years or
maximum of life, fines, or any of that sort of stuff.”
Addendum 24. But it expressly permitted counsel to explore
the codefendants’ agreements with the Government, to elicit
that they were “exposed to . . . a considerable amount of
time,” and to suggest that, “by [their] performance today
[they are] essentially singing for [their] supper.” Addendum
24. Noel’s counsel did just that, eliciting from Ortiz, Acosta,
and Alexander 6 that the Government agreed to drop charges
or significantly limit liability under existing charges, to
release them from custody pending sentencing, and, as to
Ortiz and Acosta, to refrain from bringing additional charges.
And that testimony was sufficient for counsel to argue in
closing that the codefendants were “self-confessed crooks,
liars, [and] convicts” who had “one goal,” to serve less jail
time, and would say anything to win the “golden trophy” of a
recommendation “to reduce their substantial sentence[s] even
further.” App. 485–86.
In short, even assuming the District Court’s limitation
“significantly inhibited” Noel’s exercise of his right to probe
the codefendants’ “motivation in testifying,” Chandler, 326
F.3d at 219, we cannot say on this record that the line of
inquiry barred by that limitation might have given the jury a
“significantly different impression of [the codefendants’]
credibility,” id. at 221 (quoting Van Arsdall, 475 U.S. at 680).
6
A fourth witness, Alan Pacquette, the courier who
had been detained since his arrest in Miami, denied testifying
pursuant to a cooperation agreement or in hope of a sentence
reduction.
18
The limitation therefore did not violate the Confrontation
Clause.
B. Denial of the New Trial Motion
Noel next contends that the District Court abused its
discretion by denying, without a hearing, his motion for a
new trial on the ground of newly discovered evidence of juror
misconduct—namely, that Juror No. 11 allegedly provided
false voir dire responses in view of the time sheets reflecting
his work “in court with prisoners” and providing “support to
the airlift” on dates when Noel or his codefendants had court
proceedings. App. 59, 61 (capitalization omitted). To prevail
on a motion for a new trial, the defendant must file the motion
within fourteen days of the verdict unless the motion is
grounded on “newly discovered evidence” and he must show
that a new trial is in the interest of justice. Fed. R. Crim. P.
33. But the decision whether to grant a new trial or a hearing
on that motion rests in the district court’s discretion. 7
7
We have long recognized that the broad bounds of a
district court’s discretion over a new trial motion encompass
the determination whether an evidentiary hearing is
necessary. See United States v. Herman, 614 F.2d 369, 372
(3d Cir. 1980); United States v. Iannelli, 528 F.2d 1290, 1294
(3d Cir. 1976); accord United States v. Slatten, 865 F.3d 767,
791–92 (D.C. Cir. 2017), cert. denied sub nom. Slough v.
United States, 138 S. Ct. 1990 (2018). And appellate review
of that broad discretion as to post-trial allegations of juror
misconduct—“[i]n contrast to allegations . . . made during a
trial,” United States v. Fumo, 655 F.3d 288, 306 (3d Cir.
2011) (emphasis in original)—is particularly curtailed.
Although “a call for a hearing has an inherently reasonable
19
McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548,
556 (1984). Where, as here, the motion is premised on an
allegation of juror misconduct that was “newly discovered”
more than a year after the verdict and the defendant contends
he is entitled to a hearing on that motion, he must show both
(1) that the evidence was indeed “newly discovered,” and (2)
that it meets the standard we have set for a defendant to show
that a “specific, nonspeculative impropriety has occurred.”
United States v. Claxton, 766 F.3d 280, 301 (3d Cir. 2014)
(citation omitted). If both of these criteria are satisfied, a
district court’s denial of the motion for a new trial without a
hearing will be considered an abuse of discretion. Here,
however, Noel has satisfied neither.
ring to it,” United States v. Gilsenan, 949 F.2d 90, 97 (3d Cir.
1991), one that would recall discharged jurors strikes a more
discordant note. “It is qualitatively a different thing to
conduct a voir dire during an ongoing proceeding at which
the jury is part of the adjudicative process than to recall a jury
months or years later for that purpose.” Id. at 98 (italics
added). In view of this distinction, courts “are always
reluctant to haul jurors in after they have reached a verdict in
order to probe for potential instances of bias [or]
misconduct.” Fumo, 655 F.3d at 306 (quoting Gilsenan, 949
F.2d at 97); accord United States v. Cornelius, 696 F.3d
1307, 1324–25 (10th Cir. 2012); United States v. Vitale, 459
F.3d 190, 197 (2d Cir. 2006).
20
1. No Hearing Was Warranted Because the
Evidence Cannot be Deemed “Newly
Discovered”
First, Noel was not entitled to a hearing because the
motion was not grounded on “newly discovered” evidence.
“The test to determine whether evidence is ‘newly
discovered’ is both objective and subjective . . . .” Cimera,
459 F.3d at 461. “Evidence is not ‘newly discovered’ if it
‘was [actually] known or could have been known by the
diligence of the defendant or his counsel.’” Id. (alteration in
original) (quoting United States v. Bujese, 371 F.2d 120, 125
(3d Cir. 1967)); accord United States v. DeRewal, 10 F.3d
100, 104 (3d Cir. 1993). Only the objective element of that
test is at issue here, because the Government does not contend
that Noel, at trial, was subjectively aware of the evidence
pertaining to Juror No. 11’s job duties. The question, then, is
whether this evidence would have been promptly investigated
and discovered by reasonably diligent counsel given the
juror’s disclosure of his employment with the U.S. Marshals
Service.
Diligence is a “relative term” that typically “depends
on the circumstances of the case.” Cimera, 459 F.3d at 461
(citation omitted). Time and again, we have confronted
situations where we concluded that counsel’s failure to make
further inquiry did not constitute reasonable diligence, but we
did not articulate a standard by which to judge when notice is
sufficient to require such further inquiry. We do so today, for
it cannot be that notice of any fact that could conceivably
prompt further inquiry will defeat a finding of reasonable
diligence, but without some benchmark, neither could we say
with confidence how the notice measures up here. A brief
21
review of our precedent is instructive in deriving a workable
standard.
In United States v. Iannelli, 528 F.2d 1290 (3d Cir.
1976), we held that defendants did not diligently pursue
evidence that the authorization for court-ordered electronic
surveillance, through which the Government had obtained
much of its evidence against them, was fraudulent. Id. at
1291, 1293. Because “the matter of proper authorization was
warmly contested” at trial and had the potential to render
inadmissible evidence that was central to the prosecution, we
reasoned that diligent counsel would have been prompted to
“subject[] the initials to expert handwriting analysis”
immediately, rather than waiting until after the defendants
were convicted. Id. at 1293.
In United States v. Rocco, 587 F.2d 144 (3d Cir. 1978),
we concluded that a defendant was not diligent in obtaining
statements from a witness who had appeared at trial but
invoked his privilege against self-incrimination. Id. at 145,
148. Although the witness was “the other principal
participant in the activities for which [the defendant] had been
convicted” and thus could have potentially provided powerful
exculpatory testimony, id. at 145, the defendant failed to
“pursue [the] resolution” of the asserted privilege “as part of a
sustained effort to compel [the witness’s] testimony” at the
time of trial, id. at 148. When the defendant then attempted,
after his convictions, to introduce an affidavit from that
witness as newly discovered evidence, we concluded that “the
defense never discharged its responsibility to act diligently in
procuring the evidence on which it [was] now seek[ing] to
base its motion for a new trial.” Id.
22
Next, in United States v. Kelly, 539 F.3d 172 (3d Cir.
2008), we concluded that a defendant who made no effort to
procure an acquaintance’s testimony in time for trial—
notwithstanding that the acquaintance’s presence at the
defendant’s arrest and potential ability to corroborate his
version of events gave him “every reason” to do so—did not
act diligently in discovering the acquaintance’s later,
exculpatory statement. Id. at 184. Although we recognized
that the acquaintance may have been “unable[] or unwilling”
to provide his testimony at trial, we rejected the notion that
“potential or anticipated futility” excused the defendant from
at least attempting to procure it given the realistic possibility
that he could and the significance it held for the defense,
concluding, “inaction simply does not qualify as reasonable
diligence.” Id. at 183–84.
Finally, in United States v. Napolitan, 762 F.3d 297
(3d Cir. 2014), we held that a defendant was not diligent in
his alleged discovery that two witnesses at his trial had
testified falsely. Id. at 307. We reasoned that the defense’s
limited inquiry of the witnesses while they were on the stand
and failure “to ask even a single question” regarding the
relevant statements did not justify the delay in discovering
only post-conviction that those statements were false,
particularly because the subject matter was “central to [the]
defense.” Id. at 306–07.
What we distill from these cases is that notice must
rise above a certain threshold before a defendant will be
faulted for failing to act with “reasonable diligence.” After
all, even the most zealous of counsel cannot be expected to
inquire into every remote possibility and may reasonably
prioritize the investigation of matters material to the defense
23
above those that seem peripheral. Instead, drawing on
Iannelli, Rocco, Kelly, and Napolitan, we hold that to satisfy
the diligence standard, counsel must conduct further inquiry
once the circumstances alert her to the existence of additional
information that has a reasonable possibility of proving
material to the defense. And when the defense takes no
action in the face of such notice, it has failed to “discharge[]
its responsibility to act diligently in procuring the evidence on
which it . . . seeks to base its motion for a new trial.” Rocco,
587 F.2d at 148.
We note too that this standard, and the obligation it
imposes on counsel, applies at voir dire no less than at trial.
As “[o]ne touchstone of a fair trial is an impartial trier of
fact,” McDonough, 464 U.S. at 554, juror misconduct is
highly material to the defense. And although “the obligation
to impanel an impartial jury lies in the first instance with the
trial judge,” United States v. Cunningham, 694 F.3d 372, 393
(3d Cir. 2012) (quoting Rosales-Lopez v. United States, 451
U.S. 182, 189 (1981)), advocates have obligations of their
own, see McDonough, 464 U.S. at 550 n.2 (recognizing that
defendants “would be barred from later challenging the
composition of the jury when they had chosen not to
interrogate [a juror] further upon receiving an answer which
they thought to be factually incorrect”). See generally ABA
Standards for Criminal Justice: Prosecution and Defense
Function 4–7.3(a), (f) (4th ed. 2015) (describing defense
counsel’s role in “discharg[ing] effectively the defense
function in the selection of the jury,” such as by “request[ing]
specific follow-up questions during the selection process
when necessary to ensure fair juror selection”).
24
Of course, we would not fault a defendant for failing to
inquire further into voir dire responses that raised no
potentially material concerns at the time, yet later turned out
to be demonstrably and materially false. Cf. Williams v.
Taylor, 529 U.S. 420, 440–44 (2000) (explaining, in the
habeas context, that a juror’s deliberately misleading voir dire
response excused counsel’s failure to develop a juror bias
claim in state court). But when the substance of a juror’s voir
dire responses suggest a reasonable possibility that additional
information would substantiate a potential conflict or bias, the
defense has the responsibility to inquire further. 8 It also has
tools to do so at its disposal, including the ability either to
“ask further questions that the court considers proper,” Fed.
R. Crim. P. 24(a)(2)(A), or to “submit further questions that
the court may ask if it considers them proper,” Fed. R. Crim.
P. 24(a)(2)(B), or even to subpoena documents, Fed. R. Crim.
P. 17. A juror’s own failure to volunteer additional facts in
that circumstance will “ha[ve] no bearing on the question of
whether [the defendant] took affirmative steps to discover
that testimony in the first instance.” Kelly, 539 F.3d at 186.
Rather, “the duty to conduct reasonable diligence,” at voir
dire—while perhaps differing in degree, though not in kind
from the duty at trial—“lies with the defendant and his
counsel.” Id.
8
As our colleagues on the Fourth Circuit have put it,
defendants may not “sandbag the courts by accepting jurors
onto the panel without exploring on voir dire their possible
sources of bias and then, if their gambit failed and they were
convicted, challenging their convictions by means of post-
trial evidentiary hearings based on newly discovered evidence
of possible juror bias.” Billings v. Polk, 441 F.3d 238, 246
(4th Cir. 2006).
25
We turn, then, to the question whether Noel satisfied
that responsibility in this case, and we conclude he did not.
At voir dire, Juror No. 11 openly admitted that he had a
decades-long career as a corrections officer and that he was
working at the time for the U.S. Marshals Service. As that
agency provided law enforcement and prisoner transportation
services to the very courthouse in which the jury was being
empaneled for trial, these disclosures alerted him that there
was additional information available, such as supplemental
voir dire responses, court records, and employment records
that had a reasonable possibility of showing that Juror 11 had
contact with Noel or his codefendants in the course of his job
duties. Thus, even if Noel at that point “had no reason to
know the exact substance of [Juror 11’s] potential testimony,
he had every reason to question [the juror] about [it].” Id. at
184. Indeed, Noel in effect conceded as much on appeal by
acknowledging that what prompted him to seek out Juror 11’s
job description and time sheets eighteen months later was a
“tip” that “this particular juror ha[d] a background in law
enforcement,” Oral Arg. at 10:23–10:27, 11:32–11:46—the
very same information, that is, that he had in his possession at
the time of voir dire.
In sum, Noel was on notice before Juror 11 was ever
impaneled of the existence of additional information that had
a reasonable possibility of proving material to the defense,
and in that circumstance, “[s]itting on [his] hands and
waiting” for the District Court sua sponte to inquire or for
Juror No. 11 to spontaneously say more “cannot be
considered—by any definition—reasonable diligence.” Kelly,
539 F.3d at 186. Because Noel’s motion was not filed on the
26
basis of “newly discovered” evidence, the District Court did
not err in denying it without a hearing.
2. No Hearing Was Warranted for the
Additional Reason That Noel’s Evidence
Was Insufficient
Noel was not entitled to a hearing for the additional
reason that he failed to meet the evidentiary standard we
established in United States v. Claxton for showing that a
“specific, nonspeculative impropriety has occurred.” 9 766
9
Where a defendant alleges that a juror was dishonest
at voir dire, the ultimate showing required, that is, the one
that would warrant vacating the judgment and granting a new
trial, is (1) that “a juror failed to answer honestly a material
question on voir dire”; and (2) that “a correct response would
have provided a valid basis for a challenge for cause.”
McDonough, 464 U.S. at 556; accord Warger v. Shauers, 135
S. Ct. 521, 525 (2014). That two-part test balances the right
to an impartial jury against the countervailing interest of
finality: Although “[v]oir dire . . . serves to protect” the right
to a “fair trial [by] an impartial trier of fact,” and “the
necessity of truthful answers . . . [to] this process . . . is
obvious,” “[t]o invalidate the result of a [lengthy] trial
because of a juror’s mistaken, though honest response” would
undercut the “investment of private and social resources” and
“the important end of finality.” McDonough, 464 U.S. at
554–55. But Noel does not contend that his new trial motion,
on its face, satisfied both McDonough prongs. Rather, he
argues that the District Court erred in denying that motion
without holding an evidentiary hearing to verify his
allegations that Juror No. 11 made false statements at voir
27
F.3d at 301 (citation omitted). In that case, we embraced the
formulation in United States v. Stewart, 433 F.3d 273 (2d Cir.
2006), and held that the defendant must show “clear, strong,
substantial and incontrovertible evidence that a specific,
nonspeculative impropriety has occurred” to warrant a
hearing on a motion for new trial. Claxton, 766 F.3d at 301
(quoting Stewart, 433 F.3d at 302–03). But the evidence
there “establish[ed] only that, at some unspecified time in the
past, [the juror] worked with both a government and defense
witness,” and thus it “d[id] not indicate . . . any possible basis
for bias beyond having shared a former employer” or “offer[]
. . . more than speculation that [the juror] even knew the
witnesses, much less that the juror was biased in the
[G]overnment’s favor.” Id. We had little need, therefore, to
scrutinize our formulation or to elaborate on the showing it
requires. We have such occasion today.
As a threshold matter, we clarify, as has the Second
Circuit, that the defense need not provide literally
“incontrovertible” evidence of juror misconduct, id., for if
“[t]he requirements of ‘strong, substantial and
incontrovertible evidence’ . . . demand[ed] that the allegations
be irrebuttable[,] . . . there would be no need for a hearing.”
United States v. Ianniello, 866 F.2d 540, 543 (2d Cir. 1989).
At the same time, the evidentiary standard for
obtaining a hearing on a new trial motion is necessarily a high
dire and otherwise would have been discharged for cause.
Thus, we focus here on the threshold showing required for a
hearing.
28
one given the interests at stake. On the one hand, we have the
“obvious” need for “truthful answers by prospective jurors”
in impaneling “impartial trier[s] of fact,” McDonough, 464
U.S. at 554, and the proper function of a hearing in this
context, “to determine what happened, that is to establish the
historical record,” United States v. Gilsenan, 949 F.2d 90, 97
(3d Cir. 1991). On the other hand, due respect must be
accorded a fully litigated jury trial—which involves “an
important investment of private and social resources,”
McDonough, 464 U.S. at 555, implicates “the important end
of finality,” id., and makes us “reluctant to haul jurors in after
they have reached a verdict in order to probe for potential
instances of bias,” United States v. Fumo, 655 F.3d 288, 306
(3d Cir. 2011). Thus, while the evidence of juror misconduct
need not be literally “incontrovertible” to warrant a hearing, it
still must constitute “clear, strong, [and] substantial” evidence
of a “specific, nonspeculative impropriety.” Claxton, 766
F.3d at 301 (citation omitted).
That standard can be met in a variety of ways. See,
e.g., United States v. Vitale, 459 F.3d 190, 193–94, 199–200
(2d Cir. 2006) (involving attorney correspondence confessing
previously undisclosed connections between a juror and the
prosecution); United States v. Boney, 977 F.2d 624, 628, 632–
35 (D.C. Cir. 1992) (involving a prosecution’s investigation
concluding that a juror lied at voir dire about a prior felony);
Ianniello, 866 F.2d at 543 (involving juror affidavits
“alleging specific acts of inappropriate conduct”). But
conjecture is not among them: A district court does not abuse
its discretion in denying a motion for a new trial without a
hearing where the defendant “offers nothing more than
29
speculation” of juror misconduct. 10 Claxton, 766 F.3d at 301;
accord United States v. Easter, 981 F.2d 1549, 1553 (10th
Cir. 1992) (finding a hearing unnecessary on a motion “based
on pure conjecture”).
Ultimately, however, that is all Noel has offered here.
To be sure, the records he eventually obtained show that Juror
No. 11 was working at the courthouse on certain dates when
Noel and his codefendants were transported or had court
appearances and, thus, it is indeed possible that Juror No. 11
was assigned to their matters. But Noel made no effort to
substantiate that possibility, or even to raise it from
possibility to probability. While he could have sought to do
so through a variety of means—for example, affidavits, cf.
Ianniello, 866 F.2d at 543, or credible reports, cf. Boney, 977
F.2d at 632–35, or even his own attestation based on personal
observations about the relative size of the courthouse, number
of courtrooms, or number of court proceedings—he rested his
motion instead on records showing only that Juror No. 11 was
working on some of the same days that Noel and his co-
defendants were processed and that they therefore might have
crossed paths.
10
Of course, there are also many other circumstances
when a district court might forgo a hearing, such as where the
motion is capable of resolution on the existing record, e.g.,
United States v. Richards, 241 F.3d 335, 344 (3d Cir. 2001),
grounded on evidence that is not newly discovered, e.g., id. at
343; United States v. Forbes, 790 F.3d 403, 411 (2d Cir.
2015), or based on allegations that, even if true, would not
lead to relief, e.g., Fumo, 655 F.3d at 306–07; Gilsenan, 949
F.2d at 97.
30
And more to the point, none of those records
constituted “clear, strong, [and] substantial” evidence of false
voir dire responses, Claxton, 766 F.3d at 301 (citation
omitted). In response to the District Court’s inquiries, Juror
No. 11 indicated that he did not (1) have a relationship with
the defendant, (2) read or hear anything about the case, or (3)
have any involvement with any arrest in the case. But the
“newly discovered” job description and time sheets do not
show that those responses were inaccurate, much less
dishonest, and in the context of a motion that would
undermine the finality of a jury verdict, the District Court was
within its discretion to investigate no further. 11 Having
presided over the voir dire proceeding, having observed the
prospective jurors, and having reviewed the voir dire
transcript and the purported “newly discovered evidence” on
which Noel based his new trial motion, the District Court
11
It is not unreasonable to think, as the District Court
surmised, that even if Juror No. 11 did have contact with Noel
or his codefendants, he either did not notice or did not recall
by the time of trial, about four months later. But had there
been objective evidence that the juror’s responses were not
accurate, such suppositions might not be sufficient to forgo a
hearing. As the Second Circuit observed in Stewart, “if any
significant doubt as to a juror’s impartiality remains in the
wake of objective evidence of false voir dire responses, an
evidentiary hearing generally should be held,” 433 F.3d at
306, but “[t]he inquiry should end whenever it becomes
apparent to the trial judge that reasonable grounds to suspect
prejudicial jury impropriety do not exist,” id. at 303 (citation
omitted).
31
reasonably concluded that Noel had not produced the
requisite “clear, strong, [and] substantial” evidence that a
“specific, nonspeculative impropriety ha[d] occurred,” id.
(citation omitted), and we will defer to that finding in light of
the District Court’s “intimate familiarity with the facts of
th[e] case,” Gov’t of the V.I. v. Lima, 774 F.2d 1245, 1251 (3d
Cir. 1985).
* * *
In sum, both because Noel failed to establish that his
new trial motion was grounded on newly discovered
evidence, that is, on evidence that could not have been
discovered through counsel’s reasonable diligence, and
because he failed to produce “clear, strong, [and] substantial”
evidence that a “specific, nonspeculative impropriety ha[d]
occurred,” Claxton, 766 F.3d at 301 (citation omitted), we
conclude that the District Court did not abuse its discretion
when it declined to hold a hearing and denied Noel’s motion
for a new trial.
C. Sufficiency of the Evidence
Finally, Noel’s challenge to the sufficiency of the
evidence is meritless. As for the conspiracy charge, the
Government amply demonstrated “(1) a shared unity of
purpose; (2) an intent to achieve a common illegal goal; and
(3) an agreement to work toward that goal.” Caraballo-
Rodriguez, 726 F.3d at 425. Ortiz testified that he, Acosta,
and Noel had an “agreement” to distribute cocaine for profit,
Addendum 8, and Noel’s codefendants testified to his
essential role and the sharing of profits among the
coconspirators. See United States v. Gibbs, 190 F.3d 188,
32
199–200 (3d Cir. 1999) (explaining that “repeated, familiar
dealings” support the inference of a defendant’s knowledge of
her role in a larger operation).
Likewise, the trial record is replete with evidence
supporting the substantive counts of possession with intent to
distribute. On the first count, trial testimony established that
Noel received six kilos of cocaine that he and Acosta
transferred the next day from the employee locker room to a
courier in the bathroom. As to the second, Alexander
testified that, at Noel’s direction, he delivered a package of
cocaine to Noel’s “friend,” who then flew to Miami and was
arrested after the cocaine was found in his luggage. That is to
say nothing of the testimony of the confidential informant and
law enforcement agents, as well as airport surveillance video
footage, phone records, and the parties’ stipulations to the
amount of cocaine seized by law enforcement. In sum, “[t]he
evidence was more than sufficient; it was overwhelming.”
United States v. Burnett, 773 F.3d 122, 135 (3d Cir. 2014).
IV. Conclusion
For the foregoing reasons, we will affirm Noel’s
convictions and sentence.
33