USA v. Wilkerson

IJNITEI) sTATEs 1)1s'rR1cT coURT Fl L E D
FoR THE DISTRICT oF CoLUMBIA
SEP 1 5 2009
Defendant.
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UNITED s'rATEs oF AMERICA ) NANCY'S§YEYSVQE'W)LW``CLERK
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v. ) cr. No. 00-0157-15 (TFH)
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LARRY w1LKERsoN, )
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MEMORANDUM OPINION
Pending before the Court is defendant Larry Wilkerson’s Motion for a New Trial Based
on Juror Misconduct ("Juror Misconduct Motion") (Docket No. 2405). ln September 2004, after
a two-month trial, a jury found defendant Larry Wilkerson guilty of 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 Juror Misconduct Motion is one. Because of these pending
motions, Wilkerson has yet to be sentenced.
Since Wilkerson’s trial concluded, the Court has received two letters from a juror who sat
in the case. ln these letters, Juror 0552 (also known as Juror 9),2 alleges various improprieties by
her co-jurors. To explore these allegations, the Court held a hearing on July l, 2009, at which it
' The jury found Wilkerson not guilty of two counts related to the murder of a fourth
person, Darrell Henson.
2 The 05 52 designation represents the juror’s number from the venire. Within the
empaneled jury, this juror’s number was 9. This juror sat for the entire trial, but the Court
dismissed her on the fifth day of the jury’s deliberations based on her representations that she
strongly disagreed with the law governing the case and would not follow it.
l
questioned Juror 0552 directly based upon questions submitted by both parties before and during
the hearing.3 Following that hean``ng, Wilkerson filed the Juror Misconduct Motion seeking a
new trial, or, in the altemative, a further hearing at which other jurors would be summoned to
confirm the veracity of Juror 05 52’s allegations. After careful review of the record and the
controlling law, the Court will deny the motion.
BACKGROUND
On March 17, 2005, the Court received an undated letter alleging that misconduct took
place during jury deliberations:
Dear Judge Hogan,
l was juror number 9 on the trial of United States vs. Larry Wilkerson. As I saw an
article in the paper about his co-defendants who were sentenced, it urged me to write
you this letter. I was really disturbed in regards to the trial l sat on because of the
misconduct that took place during deliberation. lt bothered me so much to the point
that I wrote you the letter asking to be dismissed. The law states that a person has a
right to a fair trial and Mr. Wilkerson, I believe did not. I’m sure that the deliberation
should be just as fair as the trial. I know it will soon be time for Mr. Wilkerson to
be sentenced and before that happens I would like to address these concems to you
in more detail if possible.
Sincerely,
Juror Number 9
See Docket No. 2288 (copy of letter). In June 2005, Wilkerson filed a motion for a hearing to
investigate the alleged jury misconduct. At status hearings in September 2006 and January 2007,
the Court discussed with counsel how to proceed in light of this letter, but never took action on
it. In June 2008, Wilkerson renewed his motion for a hearing.
3 The Court adopted this procedure from United States v. Edelin, 283 F. Supp. 2d 8(D.D.C. 2003), where the trial judge faced a similar situation.
2
On September ll, 2008_with Wilkerson still seeking a hearing to investigate the
allegations, and sentencing yet to occur-the Court received a second letter, dated September 8,
2008:
Dear Judge Hogan,
l have constructed a second letter to address my concems in regards to the
case against Larry C. Wilkerson. lt has been roughly three years since 1 last contacted
you in regards to his case. lt is quite disheartening to know that Mr. Wilkerson is still
awaiting his fate. The judicial system has failed him and me as citizens of this
country. Since l was unable to address my concems in person, l will address my
concems throughout this letter.
My first concem, lies within the trial itself. The trial was solely based on hear
say [sic] and throughout the trial, l heard more about Kevin Gray than l did about Mr.
Wilkerson. The second concern was that of the other j urors. One juror had a
personal vendetta, due to a relative being killed by a "drug dealer" and this was
expressed by the juror herself. Others did not make their decisions based off facts
but waited for the other jurors to make a decision before they decided. Another juror
made a comment, "that she wanted to convict Mr. Wilkerson of all charges whether
the evidence pointed to his guilt or not". Some jurors did not know who to believe
because of the many cooperators in this case that seemed to be cooperating for their
own benefit. Lastly, one juror claimed to have possibly sat on one of his previous
cases that were held at the Supreme Court.
Please tell me how this constitutes as [sic] justice? Mr. Wilkerson did not
have a fair trial and certainly did not have a fair deliberation. lt is definitely unfair
for Mr. Wilkerson to be sitting in limbo for four years not knowing when this
situation will come to a close. Even though he was convicted of a crime, he is still
a human being. l cannot express enough my disappointment in our court system. l
sincerely hope that l do not have to rely on this system in my lifetime. Hopefully,
justice will be served and a different perspective can be presented about the system.
l am more than willing to appear in court in the presence of you, the prosecutors, and
the defendant and his counsel if necessary. l sincerely hope you can find it in your
heart to evaluate this case from all angles.
Sincerely,
Juror 0552
See Docket No. 2373 (copy of letter).
As a preliminary matter, the Court accepts that both of these letters are genuinely from
the individual juror known both as Juror 0552 and Juror 9. See Hearing Tr. (July l, 2009) at l3,
17 (juror confirming that she wrote both letters).
ANALYSIS
The questioning at the July l, 2009 hearing and Wilkerson’s Juror Misconduct Motion
focus only on those allegations in the September 2008 letter that go to improper bias: that (l) a
juror expressed that she had a "personal vendetta" due to a relative being killed by a drug dealer;
(2) a juror had predetermined to convict Wilkerson regardless of the evidence; and (3) a juror
may previously have sat on another trial of Wilkerson. As to the second and third of these
allegations, Juror 0552 clarified during the hearing that they both related to a single juror; that is,
one juror had allegedly both predetermined to convict Wilkerson and possibly sat on a previous
trial of his. Hearing Tr. at 33.
Wilkerson argues that Juror 0552’s uncontradicted testimony proves juror bias prejudicial
to Wilkerson, requiring that his convictions be vacated and a new trial ordered to vindicate his
Sixth Amendment right to an impartial jury and Fifch Amendment right to due process. ln the
alternative, Wilkerson argues that he is entitled to a further hearing at which the Court would
question the allegedly biased jurors" directly to confirm Juror 0552’s allegations and assess
whether those jurors were dishonest during voir dire at the time of jury selection. Should such a
4 Due to the particularities of Wilkerson’s trial, it is not clear exactly which jurors are the
subject of Juror 05 52’s allegations; rather, an educated guess is the best that the Court and the
parties can do. Because of security concems, the jurors’ identities were kept confidential even
from each other. Juror 0552 therefore has no way to identify the jurors in question other than by
providing descriptive details as best she can, which she did at the July l, 2009 hearing. Based on
that testimony, Wilkerson has come up with five possible candidates for the two jurors that Juror
0552 means to implicate.
hearing take place, Wilkerson contends that a presumption should attach that he has been
prejudiced by the jurors’ alleged bias and dishonesty, with the burden on the govemment to
demonstrate that any bias was harrnless.
The Court rejects Wilkerson’s arguments on multiple grounds. First, the Court finds that
Juror 05 52 lacks credibility and thus does not accept her allegations. Second, as a supplemental
ground to the incredibility of Juror 0552’s allegations, the Court finds in its discretion that a
further hearing would unduly impose upon the jurors who would be called to testify. Lastly, the
Court finds that the claim that a juror may possibly have sat on a prior trial of Wilkerson can be
dismissed on its face as an insufficiently definite allegation. After a review of the relevant law,
these three grounds are explained more fully beloW.
I. Legal Standards
"The Supreme Court has stressed repeatedly that the touchstone of the guarantee of an
impartial jury is a protection against juror bias." United States v. Boney, 977 F.2d 624, 633 (D.C.
Cir. l992) (citing McDonough Power Equipment, Inc. v. Greenwood, 464 U.S. 548, 554 (1984)).
Generally, the remedy for alleged jury misconduct or bias is a hearing to determine if prejudice
occurred. See Smith v. Phillips, 455 U.S. 209, 215 (l982) ("This Court has long held that the
remedy for allegations of juror partiality is a hearing in which the defendant has the opportunity
to prove actual bias."); United States v. VVilliams-Davis, 90 F.3d 490, 496-97 (D.C. Cir. 1996);
but see Boney, 977 F.2d at 634 ("We do not now hold that any false statement or deliberate
concealment by a juror necessitates an evidentiary hearing.").
Notwithstanding the need to protect against juror bias, post-verdict scrutiny of juror
conduct is disfavored due to the risk of undermining "full and frank discussion in the jury room,
jurors’ willingness to retum an unpopular verdict, and the community’s trust in a system that
relies on the decisions of laypeople." Tanner v. United States, 483 U.S. 107, 120-21 (1987).
"Ordinarily, a verdict will not be upset on the basis of a juror’s post-trial report of what occurred
in the course of deliberations." United States v. Campbell, 684 F.2d l4l, l5l (D.C. Cir. l982).
"The single exception concerns ‘extraneous influences’ that may have improperly influenced the
verdict." Id. Such extraneous influences must be distinguished from intra-jury influences:
"Extraneous influence" has been construed to cover publicity received and discussed
in the jury room, consideration by the jury of evidence not admitted in court, and
communications or other contact between j urors and third persons, including contacts
with the trial judge outside the presence of defendant and his counsel. By contrast,
evidence of discussions among jurors, intimidation or harassment of one juror by
another, and other intra-jury influences on the verdict is within the rule, rather than
the exception, and is not competent to impeach a verdict.
United States v. Wilson, 534 F.2d 375, 378-79 (D.C. Cir. 1976).
The strictures of FED. R. EVID. 606(b) confine any inquiry into alleged jury misconduct.
That rule states, in relevant part:
Upon an inquiry into the validity of a verdict or indictment, a juror may not testify
as to any matter or statement occurring during the course of the jury’s deliberations
or to the effect of anything upon that or any other juror’s mind or emotions as
influencing the juror to assent to or dissent from the verdict or indictment or
conceming the juror’s mental processes in connection therewith, except that a juror
may testify on the question whether extraneous prejudicial information was
improperly brought to the jury’s attention or whether any outside influence was
improperly brought to bear upon any juror.
FED. R. EVID. 606(b). "The exception for improper outside influence allows testimony about the
fact and nature of the contact (the input, as it were), but not about the effect it produced on the
juror’s state of mind." VI/'illiams-Davis, 90 F.3d at 496.
A "trial court has wide latitude in determining the method of inquiry into possible
prejudice." Leisher v. Conrad, 41 F.3d 753, 756 (D.C. Cir. 1994). The inquiry "need not be
conducted as a full evidentiary hearing"; rather, it "need only be sufficiently detailed to permit
the judge to determine whether any prejudice is likely to result." United States v. Butler, 822
F.2d ll9l, 1196 (D.C. Cir. 1987). ln designing the inquiry, "[t]he prevention of ‘juror
harassment’ through extensive questioning and cross-examination is a legitimate reason to curtail
a hearing or not to call jurors in for questioning." United States v. Ea’elin, 283 F. Supp. 2d 8, 13
(D.D.C. 2003) (citing VVilliams-Davis, 90 F.3d at 499; United States v. Williams, 822 F.2d ll74,
1189 (D.C. Cir. 1987)). When jurors are called in for questioning, "a Court has discretion to
assess the credibility of jurors’ testimony." Ea'elin, 283 F. Supp. 2d at 15 (citing United States v.
Bertoli, 40 F.3d 1384, 1395 (3d Cir. 1994); Smith v. Phillips, 455 U.S. at 217 n.7)). Ultimately,
"where the court conducts an inquiry broad enough to lead it to a reasonable judgment that there
has been no prejudice, on an assumption as to the facts favorable to defendants’ claim, it has
fulfilled its procedural as well as its substantive duty." VVilliams-Davis, 90 F.3d at 499.
The D.C. Circuit reviews the procedures a district court employs to investigate juror
misconduct for abuse of discretion. Id. at 497. "The more ‘speculative or unsubstantiated’ the
allegation of misconduct, the less the burden to investigate." Edelin, 283 F. Supp. 2d at 14
(citing Bertoli, 40 F.3d at 1395). Likewise, a district court’s "rulings on a motion for a mistrial
[for juror bias] will be overtumed only for an abuse of discretion." Williams, 822 F.2d at 1188.
Fina1ly, a trial court’s "factua1 determinations regarding alleged misconduct are ‘entitled to great
weight, and [in the absence of new facts] ought not to be disturbed unless . . . manifestly
unreasonable."’ United States v. W?zite, 116 F.3d 903, 929-30 (D.C. Cir. 1997) (per curiam)
(quoting Hobson v. Wilson, 737 F.2d 1, 49 (D.C. Cir. 1984)).
II. Juror 0552 Lacks Credibility
ln its long experience on the bench, the Court has never before encountered a story like
that of Juror 05 52. Simply put, the juror has fallen for the defendant. lt is unclear whether their
relationship is a friendship, a romance, or something in between, but it is abundantly clear that
the relationship is personal, meaningful, and lasting. ln discussing this relationship, the Court
makes no value judgment about it and in no way intends to demean it. To adjudicate
Wilkerson’s motion, however, the relationship must be recognized for what it is: Juror 0552 is
fixated on Wilkerson. ln the Court’s judgment, this fixation--obj ectively demonstrated by the
juror’s behavior as described below_saps her allegations of credibility.
A. The Nature of the Relationship Between Juror 0552 and Wilkerson
The close relationship between Wilkerson and Juror 0552 is readily apparent from her
own testimony at the July 1, 2009 hearing. She testified that, on her own initiative, she first
visited Wilkerson at the D.C. Jail in October of 2004, shortly after the trial ended. Hearing Tr. at
19. Not having known Wilkerson or any of his friends or relatives prior to her jury service, id. at
18, this visit was her first personal contact with him. Id. at 19. lt is instructive at this point to
recall that the Court dismissed Juror 0552 in the midst of deliberations after she sent out a note
stating that she strongly disagreed with the law as instructed and could not follow it. See supra
n.2; United States v. Wilkerson, _ F. Supp. 2d _, 2009 WL 2001326, at *1-2 (D.D.C. July l0,
2009). ln that note and under subsequent questioning by the Court, Juror 0552 also expressed
that she was experiencing "emotional and mental distress" stemming from "the whole case." Ia'.
Juror 0552 testified that after the first visit in October 2004, she next visited Wilkerson at
the jail in November or December, Hearing Tr. at 21, and on a monthly basis thereaf``ter. Id. at
22, 24. Prior to the July 1, 2009 hearing, her most recent visit had been in March of 2009. la'. at
24. Extrapolating from Juror 0552’s testimony, she has visited Wilkerson at the jail roughly fifty
times since the trial.
These visits would be no small undertaking. Juror 0552 testified that she has resided in
Columbia, MD for nearly five years, ia'. at 10, a commute of about thirty miles to the DC jail.
Moreover, she testified that she is now employed, in the same job she had when she was put on
the jury. Id. at 17. Finally, the Court considers it a matter of judicial notice that visiting an
inmate at the jail typically involves significant time spent clearing security checks and waiting for
a tum. For a working person to have fifty times commuted that distance and spent those hours
shows a real commitment to the inmate being visited.
ln addition to the visits, Juror 05 52 also spoke frequently with Wilkerson on the phone.
She testified that in the first few months after leaving the jury, but before writing her March 2005
letter, she spoke with Wilkerson on the telephone "a few times." Id. at 22. Later in the hearing,
Juror 0552 testified that, as with the visits, her phone calls with Wilkerson became a regular
event, "[m]aybe on a weekly basis." Id. at 24-25. Since March of 2009, she had perhaps one
phone call with him. Ia'. at 27. Extrapolating again from this testimony, Juror 0552 has spoken
with Wilkerson on the telephone some 200 times since the trial.
Beyond the visits and calls, Juror 0552 also testified that she and Wilkerson have
exchanged "[m]aybe a few" letters, but "[n]ot many." Id. at 25. She did not keep copies of any
letters he wrote to her, however. Id.
ln addition to these numerous contacts with Wilkerson himself, Juror 0552 also mentored
Wilkerson’s daughter, who she testified is now about 17 years old. Id. at 25. Juror 0552 testified
that she and the daughter "[j]ust talked" and that "[i]t was pretty much on a mentoring basis." Id.
at 26. Apparently, Juror 0552 took it upon herself to help out alter Wilkerson told her about his
daughter’s situation: "lt was something that he just let me know, and part of my sorority we do
mentoring, so l just had, you know, a couple of conversations with her to try to keep her on track
as far as graduating from high school and things of that nature." Id. Juror 0552 elaborated that
"he told me a couple of things about her, her lifestyle, and that was something that l suggested
that l could probably help her but just talking to her." ld. at 45.
Finally, the Court finds that Juror 0552 has put money into Wilkerson’s prison account.
When questioned whether she had made such deposits, she gave hesitant answers_not fully
reflected in the transcript but very clear in the Court’s memory. As transcribed, her testimony on
this point arguably gives no conclusive answer:
THE COURT: Have you been able to bring him any presents, or gifis or anything to
prison? Were you able to put money in his prison account?
THE WITNESS: Yes, no. You are not allowed to bring anything.
THE COURT: Were you allowed to deposit money in his prison account to buy
cigarettes or anything like that?
THE WITNESS: l believe so.
Ia'. at 45-46. The Court interprets the meaning of this testimony as (l) "yes," she had put money
in his account; (2) "no," she did not bring him gilis because visitors are not allowed to bring
things into the prison; and (3) but she was allowed to deposit money in his prison account.
Admittedly, the cold transcript could be read to confirm only the second and third points, while
offering no definite answer on the first point. Acknowledging that Juror 0552’s words as
transcribed do not provide crystal clarity, the Court recalls her obvious discomfort with this line
10
of questioning, exemplified by her "[y]es, no" stumble, slow answers, and body language. This
unease left the Court with the distinct impression that Juror 0552 has put money into Wilkerson’s
account and was reluctant to admit it. Wilkerson’s own brief concedes that transfers occurred.
See Def.’s Reply Br. at 7 (stating that Juror 0552 "occasionally sent him some money").
ln summary, Juror 05 52 testified that in the period since soon after Wilkerson’s trial
ended until March of 2009, she has visited him at the jail on a monthly basis, had weekly
telephone calls with him, exchanged with him a few letters, mentored his daughter, and
contributed money to his prison account. Here is a juror who asked to be excused from the jury
essentially because she thought that the defendant was being unfairly punished and was upset
about it; soon after the trial visited the defendant in jail on her own initiative; and then continued
a steady, deepening relationship with him over the next several years. ln light of this
extraordinary background, Juror 05 52 can hardly be thought of as a neutral witness in this matter.
lndeed, these facts compellingly suggest that Wilkerson and Juror 0552 share an intense
relationship, yet at the hearing Juror 0552 would not be pinned down on how close their
relationship is. Despite all her interaction with Wilkerson, when the Court asked Juror 0552 to
describe the relationship, she resisted calling it even a fn``endship: "l don’t know if [l] could say
we were friends being as though l didn’t know him prior to all of this." Id. at 45. She also
dodged the Court’s question whether she had talked to Wilkerson about what life would be like
for them if he won his case and got released, answering only that "l really didn’t think relief was
possible." Ia'. Asked what she and Wilkerson discussed during all their visits, if not the facts of
this case, Juror 0552 gave the vaguest of responses: "lt could have been just general things." Ia'.
Juror 0552’s reticence in explaining the precise nature of her relationship with Wilkerson
11
convinces the Court that the relationship has a powerful hold on her. When testifying, Juror
0552 undoubtedly kept in mind that the more she let on about how close the relationship is, the
less credible her testimony would appear. Though she testified forthrightly in other respects, she
plainly felt that she had something to hide on the subject of how much she feels for Wilkerson.
The Court is left with no doubt that she cares for him and wants to help him. Her allegations
must be viewed through that lens.
B. Discussion Between Juror 0552 and Wilkerson of Her Allegations of Juror
Misconduct
Juror 0552’s desire to help Wilkerson is evident from her very first meeting with him in
October 2004. She testified that during that visit, she let him know her feelings about the trial,
her willingness to testify if needed for appeals, things that went on during jury deliberations, the
different jurors and their personal feelings, and her view that the conviction was based more on
personal considerations than facts. Ia'. at 19-20. While unsure whether in that first visit she
specifically discussed with Wilkerson the allegation that one juror said her relative was killed by
a drug dealer,$ she believes that she did raise with him the allegation that a juror had sat on a
prior trial of his. Id. at 20. She testified that she took no further action as a result of that meeting
in terms of researching the case, talking to other people about it, or trying to contact Wilkerson’s
counsel. Ia'. at 20-21. Nor, she testified, did she discuss or reach an understanding with
Wilkerson about whether he would do anything about her concerns. Id. at 2l. She recollects that
on her second visit, she asked Wilkerson whether he had alerted his attomeys to her concems and
5 Regarding the allegation that a juror had a relative killed by a drug dealer, Juror 0552
testified that, "l am sure at some point that l advised him of all of it," but "l am not sure when l
spoke to him about it." Ia'. at 23.
12
he indicated that he had not. Id.
Juror 0552 testified that she was prompted to write the March 2005 letter after reading an
article in the Washington Post about the sentencing of other defendants in Wilkerson’s case,
including Kevin Gray. Ia'. at l8, 23. She testified that she did not tell Wilkerson beforehand that
she was going to write the letter, and afterward did not show it to him, although she did tell him
she had written it. 1d. at 23-24.
Juror 0552 traced the genesis of her September 2008 letter to Wilkerson telling her that
he had not yet had any final resolution of his case. Id. at 26-27. She testified that in advance of
writing that letter, she did not talk to Wilkerson about the allegations raised therein, explaining
that, "lt was not necessary to continue to discuss the allegations, l know what happened, and
after that no more discussion with regard to it." Id. at 27. Nor, she testified, did she discuss with
Wilkerson the nature of the July 1, 2009 hearing and what would happen at the hearing. Id. She
testified that, more generally, she has not discussed these allegations with any family members,
fiiends, Wilkerson’s friends or associates, lawyers, or investigators. Id. at 27-28.
Were it taken at face value, this testimony would be largely innocuous. Yet, Juror 0552
admits that, at least to some degree, she has discussed her allegations with Wilkerson before
raising them with the Court, creating a possibility of collusion.° Defense counsel himself surely
6 As suggestive-though by no means conclusive_evidence of collusion, the Court notes
the evolution of Juror 05 52’s request to present her concems to the Court. ln her March 2005
letter, she states merely that "l would like to address these concerns to you in more detail if
possible." This statement implies an ex parte discussion with the Court. By contrast, in her
September 2008 letter, Juror 0552 makes a more sophisticated proposal: "l am more than willing
to appear in court in the presence of you, the prosecutors, and the defendant and his counsel if
necessary." Here, Juror 05 52 contemplates an adversarial proceeding consonant with the Ea’elin
procedure, see supra n.3, that the Court-as known to Wilkerson from discussions at the January
(cont’d)
13
had this danger in mind when, upon leaming early on of Juror 0552’s first visit with Wilkerson
and her allegations, he told Wilkerson that "it was not a good idea for Mr. Wilkerson to speak
with the juror" and "advised against meeting any further with the juror." Def.’s Renewed Mot.
for a Hr’ g to lnvestigate Alleged Jury Misconduct (Docket No. 2367) at 7 & n.8. lt bears
emphasis that the Court did not receive Juror 0552’s undated first letter to the Court until March
17, 2005, approximately five months after she started visiting Wilkerson at the jail. Moreover,
as with Juror 0552’s self-evident reluctance to acknowledge the full extent of her relationship
with Wilkerson, the Court suspects that she may not be divulging the full extent of her discussion
with him about these allegations. Their authenticity is thus all the more questionable.
C. The Court Doubts the Credibility of Juror 0552’s Allegations
"[A] Court has discretion to assess the credibility of jurors’ testimony." Edelin, 283 F.
Supp. 2d at 15 (citing Bert0li, 40 F.3d at 1395; Smith v. Phillips, 455 U.S. at 217 n.7)). Though
unable to conclude definitively that Juror 0552’s allegations are false, the Court finds ample basis
in the record to doubt her credibility. In her note to the Court asking to be excused from the jury,
see supra Part ll.A, Juror 0552 made a telling admission: "Because l feel so strongly about this, it
may affect my decisions in this matter. ln other words a possible bias decision [sic]." Wilkerson,
2009 WL 2001326, at *1. ln the years since, as Juror 0552 developed a close relationship with
Wilkerson, her self-confessed "possible bias" could only have strengthened; it is now not so
much a possibility as a certainty. After careful consideration of her history in this case, what she
2007 status conference_was contemplating. Yet, according to Wilkerson, Juror 0552 is a legal
novice who "clearly has no conception what legal remedies are available to Mr. Wilkerson."
Def.’s Reply Br. at 7. From where, then, did she get the idea that an adversarial hearing would
be more palatable to the Court?
14
admits, and what she prefers to conceal, the Court is not satisfied that Juror 0552 makes credible
allegations.
III. A Further Hearing Would Unduly Impose Upon Other Jurors
ln addition to, and in part because of, the Court’s lack of confidence in Juror 0552’s
allegations, the Court finds that a further hearing to explore the allegations would unduly impose
upon other jurors who would be called to testify. Based on Juror 0552’s description of the two
jurors who uttered the alleged prejudicial statements, Wilkerson identifies five jurors as the
possible offenders, see supra n.4, and suggests that the Court summon them for questioning to
verify Juror 0552’s allegations,
The Court rejects this proposal. With questionable allegations and only two jurors
genuinely implicated, there is inadequate justification for summoning five of them essentially to
try to get them to point fingers at each other. See Edelin, 283 F. Supp. 2d at 14 ("The more
‘speculative or unsubstantiated’ the allegation of misconduct, the less the burden to investigate."
(citing Bertoli, 40 F.3d at 1395)). Such a hearing would unduly burden these five jurors, who
have already given an arduous two months of service at trial in circumstances so dangerous that
their identities had to be concealed even from each other. Case law in this Circuit establishes
avoidance of undue burden on jurors as a valid reason for denying a hearing of the type that
Wilkerson proposes. See United States v. Morrow, 412 F. Supp. 2d 146, 173-74 (D.D.C. 2006)
("[T]he Court refuses Defendants’ invitation to conduct a further evidentiary hearing by recalling
all jurors in order to question them about their relationship with dismissed Juror # 4. Further
hearings would simply constitute a baseless ‘fishing expedition’ into an unfounded pond . . . .");
Ea'elin, 283 F. Supp. 2d at 13 ("The prevention of ‘ juror harassment’ through extensive
15
questioning and cross-examination is a legitimate reason to curtail a hearing or not to call jurors
in for questioning." (citing Williams-Davis, 90 F.3d at 499; Williams, 822 F.2d at 1189)).
The Court is not swayed by Wilkerson’s emphasis on his entitlement to a hearing to
explore Juror 05 52’s allegations, He is correct that the Supreme Court "has noted the general
principle ‘that the remedy for allegations of juror partiality is a hearing in which the defendant
has the opportunity to prove actual bias."’ Borzey, 977 F.2d at 634 (quoting Smith v. Phillips, 455
U.S. at 215). Yet, Wilkerson overlooks that the Court has already accorded him this remedy by
conducting the voir dire of Juror 0552 on July 1, 2009. What Wilkerson asks for now is a second
hearing to show what the first one did not. The law does not entitle him to that opportunity.
IV. Allegation That Juror May Possibly Have Sat on a Previous Trial of Wilkerson ls
'I``oo Uncertain to Trigger Consideration
ln her September 2008 letter, Juror 0552 wrote that, "one juror claimed to have possibly
sat on one of [Wilkerson’s] previous cases that were held at the Supreme Court."l On its face,
the allegation as written states a speculative concem, as it is only possible_not certain-that a
juror sat on a prior trial of Wilkerson. Nor did Juror 0552’s testimony on July 1, 2009 allege any
greater certainty. As Wilkerson’s brief states, "[a] complete review of the transcript fails to
reveal a single instance where Juror 0552 claimed that a juror said she ‘definitely’ remembered
having sat on a prior trial. She [Juror 0552] consistently testified that this juror indicated only
that she may have been a juror in a prior case." Def.’s Reply Br. at 6 (emphasis in original).
Given the intrinsic uncertainty of this allegation, the Court finds it unworthy of consideration.
7 Presumably, the intended reference here is to D.C. Superior Court. Wilkerson reports
that he was the subject of three trials there from 1993 to 1994. See Def.’s Proposed Questions
for Juror 0552 (Docket No. 2399) at 8 n.5.
16
See Edelin, 283 F. Supp. 2d at 14 ("The more ‘speculative or unsubstantiated’ the allegation of
misconduct, the less the burden to investigate." (citing Bert0li, 40 F.3d at 1395)).
CONCLUSl0N
The Court rejects Wilkerson’s motion for a new trial and declines to hold a further
hearing to explore Juror 0552’s allegations, The Court finds that Juror 0552 lacks credibility,
that a further hearing to question other jurors would be unduly burdensome, and that the
allegation that a juror may possibly have sat on a prior trial of Wilkerson can be dismissed out of
hand as too speculative.g
An order accompanies this Memorandum Opinion.
september /¢/, 2009
Thomas
U.S. Dist udge
8 ln the final paragraph of his motion, Wilkerson argues that the Court’s delay in
resolving this and his other post-trial motions has prejudiced him and violated his due process
right to speedy rulings and a speedy sentencing. The Court agrees that the delay is unfortunate,
but rejects the claims of prejudice and violation of due process. lndeed, Wilkerson himself is
responsible for no small part of the delay. ln the post-verdict phase, defense counsel has
repeatedly sought_and the Court has granted-extensions of time that have slowed resolution of
the case. See, e.g., Docket Nos. 2105, 2127, 2134, 2155, 2184, 2277 (Wi1kerson’s motions for
extension of time to file).
17