THIS CAUSE comes before the Court on Defendant Abbell's Motion for New Trial based on the dismissal of Juror Alfonso, filed September 29, 1998 (which was adopted by Defendant Moran), and Defendant Moran's Motion for New Trial based on newly discovered evidence of jury misconduct by Juror Blanton, filed November 23, 1998 (which was adopted by Defendant Abbell). The Court held a hearing on this matter on December 2, 1998.¹

Defendants Abbell and Moran were indicted in this case in June 1995, Lengthy pretrial proceedings, including the appointment of a Special Master to review thousands of documents seized from the two Defendants' law offices, resulted in a substantial delay before trial commenced in April 1997. After five months in trial, including approximately twelve days of deliberations which ended in October 1997, a mistrial was declared as to these two Defendants regarding Counts I (18 U.S.C. §1962(d). RICO conspiracy, III (21 U.S.C. §963, conspiracy to import cocaine), IV (21 U.S.C. §846, conspiracy to distribute cocaine), and IX (18 U.S.C. §1956(h), conspiracy to launder money). The case as to four other Defendants was resolved during the first trial. The retrial of Defendants Abbell and Moran commenced in mid-April 1998, with closing arguments presented to the jury at the end of June.

After instructing the jury on Wednesday, July 1, Transcript (hereinafter "Tr") at 8353-8426, and following a four day break for the July 4th holiday, deliberations commenced on Monday morning, July 6, 1998. On Thursday morning, July 9, the jury had been deliberating for a total of approximately 20 hours when one of the jurors presented the Court with a note² requesting assistance. The note, presented by Mr. Gooden and signed by the jury foreperson, Ms. Sebastian, stated that one of the jurors had "formed an unwavering opinion - - prior to, inspite [sic] of and irregardless [sic] of the evidence presented" and that the indicated juror was "unwilling or unable to review, read or view exhibits" contrary to that juror's opinion.³

Concerned about the statement that such opinion had been formed "prior to" the presentation of evidence, and after consultation with counsel, the Court decided to interview the jury foreperson in chambers, on the record, with counsel and the Defendants present. This interview took place at approximately 10:15 a.m. on Thursday, July 9. In response to the Court's inquiry, the foreperson indicated that the identified juror made a statement of her opinion "right at the beginning of deliberations". Tr at 8545, and that, according to the juror's own statement during the first day of deliberations, her mind was made up "the minute [she] walked out of the jury box" without any deliberations. Tr at 8549-50. While this reported failure to deliberate was cause for concern the Court - - without more - - would have been reluctant to invade the jury composition. However, during this same interview with the jury foreperson, the Court was informed that the same juror had said earlier that morning that Count I, the RICO conspiracy charge, was a "stupid law and we don't have to regard it". It at 8546-47.

The Court then met with counsel and the Defendants, and discussed the difficult situation presented. Later that afternoon, after studying the decisions in United States v. Geffrard, 87 F.3d 448 (11th Cir. 1996) (affirming lower court's dismissal of juror whose religious beliefs prohibited her from following court's instructions), and United States v. Thomas, 116 F.3d 606 (2d Cir. 1997) (reversing lower court's dismissal of juror since record did not establish beyond doubt that juror's position was result of unwillingness to apply the law), the Court instructed the jury (including excerpts of the decision in Thomas) regarding their duty to follow the law and consider all of the evidence in the case. They were also instructed to tell the Court if anyone among them was unwilling or unable to follow the law, by sending a note saying that "I simply cannot [follow the instructions]" - - and the jurors were assured that there would be no recrimination. Tr at 8612-17. About an hour later, the jury was dismissed for a three day weekend (due to a juror's scheduling problem court was not convened on Friday, July 10).

At 8:45 a.m. on Monday, July 13, one of the jurors gave court personnel an unsigned note stating that the jury was "hopelessly dead locked [sic]" and "can not reach a verdict". The note was returned for the signature of its author and/or the jury foreperson. The note then was sign by Ms. Alfonso and the foreperson, Ms. Sebastian. At 10:10 a.m., ten members of the jury (not including Ms. Alfonso and Mr. Blanton) submitted a signed note referencing the earlier note and stating that it was the "consensus of the rest of the jurors that we are opposed to this statement [that we are deadlocked". (It later was determined that the unsigned note had been prepared and submitted by Juror Alfonso, the same juror who had advised the other jurors that the RICO law was a "stupid" law and that they need not follow it or the Court's instructions.) After lengthy discussions with counsel the Court determined that a colorable basis for further investigation was presented by the information the Court had received. Both Eleventh Circuit precedent and the procedures discussed in Thomas indicated that a more complete investigation was in order.

The Court then interviewed the foreperson again, who reported that the identified juror still was participating in deliberations. Tr at 8701-8703. Thereafter, the Court interviewed Mr. Gooden, the author of the original note who had suggested that the juror made up her mind before deliberating and perhaps prior to the completion of the presentation of evidence. Juror Gooden reported that on the prior Wednesday or Thursday the juror said that the instructions⁴ were a "'guide' and not the law" and that after the Court's re-instruction on Thursday afternoon the juror said she's "having a hard time understanding" the law. He also stated his belief that there was a language barrier. Tr at 8749-50. He added, by way of clarification of his original note, that the juror did not say she had discussed the case before deliberating. Tr at 8752.

On Tuesday morning, July 14, the Court again interviewed Ms. Sebastian, who reported that the identified juror still was not participating in deliberations, and that the juror had been "sitting" over the past four or five days and presently was "[doing] her nails". Tr at 8802. Further, Ms. Sebastian indicated that the juror announced "blanket statements" regarding a "decision having been made", which applied to all Counts of the indictment. Tr at 8803, 8808. The Court then interviewed Mr. McSwiggan, who said that the juror in question stated prior to the Court's re-instruction that she "doesn't care what the law is, she is going to follow her feelings". Tr at 8813. In addition, Juror McSwiggan noted that the juror "had her back up and really didn't want to participate too much after [the Court] had talked to us [on Thursday]". Tr at 8814.

At this point counsel for the United States suggested that the Court interview Juror Alfonso. Counsel for Defendant Abbell, while maintaining an objection to the process of the investigation⁵, suggested that the Court interview the other juror, besides Juror Alfonso, who did not sign the second note, i.e., the note disagreeing with the statement about a deadlock. Accepting that suggestion, the Court then interviewed Mr. Blanton, who stated that the identified juror said on at least three occasions, starting on the first day of deliberations, that "we didn't have to follow instructions". Tr at 8819. He reported that on one day "several days into it", the juror spoke for an hour and a half about "her whole version of reality" without discussing any of the evidence in the case. Tr at 8821, 8825.

The next juror to be interviewed was Ms. Doll, who stated that the identified juror said she "[didn't] have to follow those guidelines", and that the Court's re-instruction on Thursday "made no difference", and the juror just "disregarded [the law]". Tr at 8828. At the conclusion of this interview, counsel presented their arguments regarding the scope of the Court's proposed examination of Juror Alfonso.

At approximately 12:30 p.m. the Court interviewed Juror Alfonso, who admitted that she sent the note about being deadlocked without letting the other jurors know. Tr at 8848. She advised the Court that at one point she felt another juror made "threats" to her that she would have to face the press if she didn't vote a particular way. Juror Alfonso produced a copy of a poem and indicated that the author, later identified as Juror Blanton, was pushing for one result of only two options (presumably guilt as opposed to innocence), and that the third option (presumably a mistrial) was not even being considered. Tr at 8854.

Juror Alfonso also noted that she had been accused of not wanting to follow the instructions (which she state were "not everything" that must be taken into consideration). Tr at 8849. She acknowledged on several occasions that she told the other jurors that the law wasn't the "only" thing that the jury must follow, and believed that she must use her "common sense". Tr at 8850, 8852, 8856, 8865. While she denied ever saying that Count I represented a "stupid" law, Tr at 8854, she volunteered that she did "have a problem with the federal law", perhaps as a result of having worked for many years "with the criminal law". Tr at 8852. (According to the juror questionnaire she completed prior to trial, Ms. Alfonso had served fourteen years as a correctional officer.⁶) In addition, she said that "this [law] doesn't make sense . . . on the other hand it is not only like you say." Tr at 8852. Despite Juror Alfonso's assertion that she understood that the law must be followed and felt "like [she had] been following the law", Tr at 8864, when the Court asked directly whether she said that she didn't have to follow the law, she responded "Okay. That's not the only thing that I have to do. . . . that's not everything that I say." Tr at 8856. Later, again in response to the Court's specific questioning as to whether she stated that the law is "just advisory", she answered "[e]xactly like that, no, Judge. I say [sic], 'This is not everything' . . . . We have to take into consideration a lot of things here." Tr at 8865.

On several occasions Juror Alfonso reported that "it is not 11 to 1, or whatever" and that she was not alone. Tr at 8848, 8850, 8859. She also suggested that the Court interview the rest of the jurors. Tr at 8871. Juror Alfonso indicated that the other jurors could "speak better than [she] and that they could "read better than [she]". Tr at 8859-60. Juror Alfonso concluded with the statement that if the Court wanted to discharge her, she was "more than happy to leave." Tr at 8866. While at several points she asserted that she was deliberating, when asked the direct question as to whether she told the other jurors she did not have to follow the law, she did not - - as indicated above - - answer directly. She did concede that "[t]hat's part of what I say [sic]". Tr at 8856.

At the conclusion of this troubling interview I discussed the matter with counsel and decided to give further consideration to the Government's request that Ms. Alfonso be discharged - - a request which both Defendants opposed. I also denied the motions for mistrial which were made at the time. The following morning, Wednesday, July 15, interviews of the remaining six jurors commenced.

The Court first interviewed Ms. Grant, who reported simply that "we've all been participating" in deliberations. Tr at 8935. Juror Grant confirmed Juror Alfonso's report that a juror had suggested that names would appear in the newspaper, but noted that such disagreements were all resolved and that things now were "fine". Tr at 8937-38.

The next juror interviewed was Ms. Mandell, who began by stating that one juror "was not willing to consider anything" and that the juror "[had] not said anything in a couple of days." Tr at 8940-41. Juror Mandell didn't know if the juror "[understood] the language that is written on the pages". Tr at 8941. Juror Mandell observed further that since the re-instruction on Thursday, the juror in question "really has not said anything. She has voted, but she has not said anything Monday. Tuesday or Wednesday." Tr at 8943. Ms. Mandell also noted that the identified juror stated that she "couldn't go by the way this law was written" and that she "came in with her mind made up" and also was "very angry" about the Thursday re-instruction. Tr at 8941-42. Juror Mandell reported that the juror had given the others "lip service that she is willing to [listen to the law]", but also said that she "did not believe the law" and "did not accept the way it was written". Tr at 8941, 8944.

The Court then interviewed Mr. Rosso, who noted that the juror said at the beginning of deliberations that the instructions were "from the Judge" and were "not the law". Tr at 8951. Juror Rosso also reported that the juror was not participating in deliberations and was "doing her nails", and that he was "outraged" by what she was doing. Tr at 8953.

The next juror to be interviewed was Ms. Peralta. When asked if the juror said, in one way or another, "that it was not necessary to follow the Court's instructions on the law", Ms. Peralta responded: "Yes". Juror Peralta asserted that this was said at some time "during the first week" and "[p]robably around the second day", "[m]aybe also the third day". Tr at 8958. The juror "had the wrong understanding of what the difference was between jury instructions and instructions of how to get to I-95 [(a major interstate highway)]", and thought that the jury instructions were more like the latter. Tr at 8958-59. She also stated that the juror said the jury instructions were "just the Judge's instructions . . . I can get instructions from somebody on how to get to [a local department store]." Tr at 8959. Juror Peralta also reported that Alfonso became "not as talkative" after the re-instruction the previous Thursday, Tr at 8960, and had not considered the evidence presented by "the other side", Tr at 8963. When asked if the juror "[had] said at any time anything that would indicate that she has come off that feeling that these instructions are just like trying to find a road or a mine", her answer was "[f]rom what I can recall, no, not really". Tr at 8960.

The Court then proceeded to interview Ms. Cortes, who said that the juror said that she "was not going to follow the laws". Tr at 8968-69. Juror Cortes noted that she "sat with [Alfonso] and read it over" and didn't know if the juror "fully understand [sic] what she is reading". Tr at 8972. She reported that Juror Alfonso previously discussed the evidence, although only as to one side. Tr at 8974.

Finally, the Court interviewed Mr. Butler, who stated that the juror asserted that she "works in law enforcement" and that "certain laws don't apply" and that what the Court said "was not the law". Tr at 8977-78. He also noted the juror's attempt to introduce her experience in the jails system as a corrections officer, apparently as being relevant to the deliberations. Tr at 8986. Juror Bulter reported his impression that Juror Alfonso was saying "that the law that [the Court] read to us was wrong in her - - you know, in her words." Tr at 8977. He also noted that she apparently didn't understand the "rules of the law" that the Court provided, Tr at 8976, and that she stated that she "don't [sic] need to follow the laws to come to a unanimous or rather a reasonable verdict", Tr at 8977, but yet she insists that she is following the law. Tr at 8984. Juror Butler emphasized that he was "not saying that she's a bad person, or anything". Tr at 8976, and that the jurors "don't dislike anyone", Tr at 8986. Juror Butler thought that Juror Alfonso was "actually listening" and now deliberating. Tr at 8980-81, 8983.

Again I met with counsel for lengthy discussions as to the proper approach to the knotty problem presented, and announced my decision to study the problem in greater detail prior to announcing any decision. Two notes came in from the jury shortly thereafter; 1) Does the defense have a right to see any of the seized evidence after it is in the government's possession? and 2) Could we get a copy of Douglas Hartman's portion of the transcript? The Court addressed these two matters with counsel.

Later that same afternoon, at approximately 3:30, the Court received a note from Ms. Grant, stating "I quit". The Court met with Juror Grant, with counsel present, who stated that she didn't want to be "handled and mistreated", but expressed hope that she would feel better the next morning. Tr at 9056. The Court then met briefly with Juror Sebastian, who asserted her opinion that Juror Grant was tired and frustrated like all the other jurors, and that one juror still was not participating. Tr at 9059.

That evening and the next morning (Thursday, July 16) the Court reviewed the transcript of Juror Alfonso's interview and studied the pertinent caselaw. As I announced to counsel that morning. I concluded that Juror Alfonso "simply was not answering my questions about her ability to follow the law or her willingness to do so", and that she should be removed for just cause. Tr at 9077-80. This decision was reached only after a consideration of the statements of all the jurors. Defense counsel moved for a mistrial, Tr at 9088-89, which the Court denied. The Court then advised Juror Alfonso that she was excused from further participation. She thanked the Court for excusing her. Tr at 9093. It was later discovered, as court personnel attempted to confirm Ms. Alfonso's contact information, that she was starting a family vacation in the Florida Keys on Saturday, July 18. Tr at 9173.

Before the Court announced the decision to discharge Juror Alfonso, a note was received from the foreperson indicating that Juror Grant did not want to continue. After excusing Juror Alfonso, the Court met with Juror Grant with counsel present. She stated that she didn't feel she should be "beat up on", and that it was as if "somebody wants to . . . wear you down". Tr at 9102, 9104. She asserted that no physical abuse was occurring and no racially derogatory remarks were being made, Tr at 9103-04, and confirmed her desire to remain with the jury.

At approximately 10:45 a.m. on Thursday, July 16, the Court instructed the remaining eleven jurors that Juror Alfonso was excused because "there were certain things about her views of the jury process and also her own feelings" and that she was "unable to serve as a juror on this case". Tr at 9118-19. I instructed the jury that the dismissal of Juror Alfonso had "absolutely nothing to do with how I may view this case and how it should come out." Tr at 9119. Further, I re-instructed the jury as to reasonable doubt and reminded them of their right to disagree and the need for them to respect each other. Tr at 9117-18, 9122-23. The Court also specifically inquired of each juror whether he or she could "continue your deliberations fairly and impartially". Tr at 9134-35. Each juror responded affirmatively.

At this time, the foreperson indicated that the request for the review of the Hartman testimony was made by Juror Alfonso and, thus, was moot. However, Juror Peralta indicated that she would like to hear the testimony and, accordingly, the testimony was read aloud. Tr. at 9130. Counsel for Defendant Abbell then suggested that the request for testimony indicated that Juror Alfonso had been participating and that the court's dismissal of her was improper.

At approximately 2:45 p.m. on Friday, July 17, the jury submitted a note stating that they had "reached a unanimous verdict on one count for both defendants", and had made "significant movement" but "can not come to a unanimous decision" on the other three counts as to both Defendants. It subsequently became clear that they had reached a decision as to Count I - - RICO conspiracy - - at this point. (The verdict form accepted the following Monday indicated a date next to each of the Counts, apparently reflecting the date on which the specific Counts were resolved.) After discussing the matter with counsel, the Court briefly questioned the jury through the foreperson and determined that it would be proper to have the jury return the following Monday to "try a bit longer". Tr at 9226. A formal Allen charge was not given at the time. The verdict form was kept under seal.

On Friday, July 17, 1998, the Court was faced with thee disappearance of Defendant Moran from the courthouse. As a result of the publicity in the media during the weekend regarding that event, the Court questioned the jury when they reconvened the following Monday, July 20, about whether they had been exposed to anything in the media about this case. The six jurors who reported that they had learned of the event through the media were individually interviewed (Jurors Doll, Rosso, Grant, Cortes, Blanton, and Sebastian). Tr at 9253, 9262-72. The Court denied motions for mistrial which were made by the Defendants, finding that the jurors could continue to deliberate and give the Defendants and the United States a fair trial.

That afternoon, July 20, the jury submitted a note indicating that a decision had been reached as to two Counts and that further deliberations would not result in unanimous decisions on the remaining two Counts. The Court published the verdict (now also finding Defendants guilty as to Count IX - - money laundering conspiracy) and declared a mistrial as to Counts III and IV. Each of the jurors responded affirmatively to the question as to whether this was their verdict. The jurors were discharged upon their return on Friday, July 24, 1998, after counsel reached an agreement to proceed before the Court as to the forfeiture allegations.

Defendants filed their motions for new trial based primarily on the Juror Alfonso dismissal, but also arguing that Juror Blanton was operating under a conflict of interest. Defendants appear to suggest that Juror Blanton intended to write a book about the trial and possibly may have been conducting independent research regarding the Defendants during the trial. Defendants offer a letter from Blanton to the other jurors, dated August 15, 1998, in which the references his book plans and a memo of the same date in which he is providing "Updates from research". See Exhibits D, E, Motion for New Trial Based on Newly Discovered Evidence, filed November 23, 1998. There has been no evidence presented that he was doing research before or during his service as a juror and no basis other than mere speculation to support a post verdict investigation. Juror Blanton reported on his jury questionnaire that he was employed as a technical writer, and also employed by M.D.C.C. (Miami-Dade Community College). According to the memo dated August 15, Mr. Blanton teaches part-time at MDCC. Counsel for Defendant Moran, in an affidavit, states that Ms. Alfonso contacted counsel's office after the trial and provided a copy of the above referenced letter and memorandum. See Exhibit B, Motion for New Trial Based on Newly Discovered Evidence, filed November 23, 1998. As explained below, I find no basis whatsoever in this effort to disturb the verdict.

This Court must approach the jury and its deliberative process with regard for its sanctity. "It is the historic duty of a trial judge to safeguard the secrecy of the deliberative process that lies at the heart of our system of justice . . . ." United States v. Thomas, 116 F.3d 606, 619 (2d Cir. 1997) (noting constraints on court's investigation of alleged misconduct). Nevertheless, allegations of juror bias or misconduct must be addressed⁷ and, in the proper circumstances, a juror may be excused for "just cause". Fed.R.Crim.P. 23. Just cause may be found as a result of a juror's illness or physical unavailability, United States v. Wilson, 894 F.2d 1245, 1250 (11th Cir. 1990) (affirming dismissal after first week of deliberations of pregnant juror who had been sick throughout trial and had disabling dental pain at time of dismissal), or due to the juror's inability to perform her duties impartially, United States v. Geffrard, 87 F.3d 448 (11th Cir. 1996) (affirming dismissal of juror during deliberations whose religious beliefs compelled her to write to judge expressing disagreement with case and stating her belief that defendant was entrapped - - despite instruction that entrapment did not apply).

In the Eleventh Circuit, a trial judge has "broad discretion" in determining the proper investigative procedure to be used when faced with an allegation of juror bias or misconduct. United States v. Harris, 908 F.2d 728, 733 (11th Cir. 1990). The decision of how extensively to investigate such allegations must be guided by both the seriousness of the accusation, Harris, 908 F.2d at 734 (affirming trial court decision not to investigate two ambiguous remarks made by individual jurors), and the certainty of the allegation. United States v. Caldwell, 776 F.2d 989, 997 (11th Cir. 1985) (collecting cases) (affirming decision not to conduct full investigation as to allegation made by anonymous caller).

The most serious accusations generally fall into one of two categories: allegations of bias which relate to a juror's status, e.g., as a person with some connection to the case or the parties through either an event or relationship, and those which relate to a juror's opinion or particular view, e.g., as a person who believes that marijuana should be decriminalized. The nature of the alleged misconduct dictates the scope of the court's investigation. For example, a judge clearly may inquire as to whether a particular juror engaged in a specific act, such as attending the same church as the prosecutor in the case - - without a risk of invading that juror's thoughts on the merits of the case - - to establish whether that juror can remain impartial. United States v. Barker, 735 F.2d 1280 (11th Cir. 1984) (affirming dismissal at beginning of deliberations of juror who put hand on Defendant's shoulder and smiled). On the other hand, investigation regarding a juror's allegedly biased viewpoint must proceed cautiously, for example, as the inquiry regarding a juror's reported statement that doctors are thieves might be intertwined with the merits of a case which involved doctors as defendants. "The judge's decision whether to interrogate the jury about juror misconduct is within his sound discretion, especially when the alleged prejudice results from statements made by the jurors themselves, and not from media publicity or other outside influences." Grooms v. Wainwright, 610 F.2d 344, 347 (5th Cir. 1980) (affirming decision not to fully investigate juror's biased statement allegedly overheard by mother of defendant).

There are few reported decisions addressing the proper method of investigating allegations of a juror's unwillingness to follow the law or a juror's expressed intent to disregard the court's instructions. The Court Appeals for the Second Circuit, in the decision in Thomas, expressly concluded that dismissal for refusing to follow the court's instruction is permitted under Rule 23(b), but found error in the trial judge's dismissal of juror since the juror never said he was "unwilling" to follow the law, and the record evidence raised a possibility that the juror was attempting to follow the law. In Thomas, there were a number of complaints from other jurors during deliberations regarding the subject juror's intent to acquit regardless of the evidence, but some jurors said the juror was relying on an assessment of the evidence - - including the testimony of witnesses for the prosecution. Id. at 611. The juror himself said nothing to the trial judge to indicate that he was unwilling to follow the court's instructions and, indeed, "assured the court that his vote was based on his view of the evidence". Id. at 623. The Second Circuit held that the investigation - - which should be limited if deliberations have begun - - must reveal beyond all doubt that a juror refuses to apply the law.⁸ The Second Circuit cited with approval the holding of the Eleventh Circuit in Geffrard (affirming dismissal of juror whose religious beliefs were in conflict with her duties), and explicitly adopted the rule of the Court of Appeals for the District of Columbia in United States v. Brown, 823 F.2d 591 (D.C. Cir. 1987) (finding error in dismissal of juror dissatisfied with Government's evidence). The decision in Brown addressed whether it was proper to dismiss a juror when the record reflected a "substantial possibility", 823 F.2d at 596, that the juror's request to be dismissed was due to his belief that the evidence was inadequate to support a conviction. The juror in that case expressed his concerns to the judge regarding the "way the RICO conspiracy act reads", 823 F.2d at 594, and the way in which the evidence was presented. The decision in Brown specifically did not address whether a juror who refuses to apply the law may be dismissed under Rule 23(b).

The lesson of these cases, when studied with cases regarding other types of alleged misconduct, suggests that the trial judge must carefully weigh both the type of allegation and the point in the proceedings at which allegations of juror misconduct arise. If the misconduct occurs and the allegations arise prior to deliberations, i.e., during the presentation of evidence or closing arguments, the judge may investigate the matter fully and, if necessary, can correct the problem by replacing the offending juror with an alternate juror. United States v. Yonn, 702 F.2d 1341 (11th Cir. 1983) (affirming dismissal of juror during trial who said U.S. witness was a pimp and that juror believed Defendant was innocent).⁹

Investigation of alleged juror misconduct which arises after the jury begins deliberating - - even if the conduct occurred prior to deliberations¹⁰ - - is governed by Rule 23(b), Fed.R.Crim.P., and rests within the judge's discretion, Geffrard, 87 F.3d at 452 (affirming dismissal of juror without further investigation who sent letter to the judged clearly stating an intention to disregard the court's instructions). A trial court has "considerable discretion" in determining whether to dismiss a juror on the grounds of "prejudice, misconduct or other impairment of a juror's ability to perform his duties". Barker, 735 F.2d at 1282-83. Clearly, however, the risk of invading the sanctity of the jury is significantly greater. "[A] court may not delve deeply into a juror's motivations because it may not intrude on the secrecy of the jury's deliberations." Brown, 823 F.2d at 596.

Investigation after the receipt of the verdict is circumscribed indirectly by the restrictions imposed on the use of juror testimony to impeach a verdict. Fed.R.Evid. 606(b).

The discharge of Juror Alfonso was necessitated by my determination that she was unable to perform her duties impartially. The investigation relating to her alleged misconduct revealed a person who was unwilling to follow the law, and who was engaged in an attempt to willfully disregard the Court's instructions. I came to that conclusion after interviewing each of the jurors, and as a result of the other jurors' relatively consistent allegations that she had indicated her intent to disregard the law and the Court's instructions as applied to the facts of this case. I concluded that the allegations of her misconduct were supported, and that a sufficient basis existed to discharge her for "just cause".

As the Court noted at the time, the problem was thrust upon the Court by Juror Gooden's note - - which was improvident in that it was not presented to the entire jury. The allegations of misconduct having been made, however, the Court was compelled to commence an investigation. The subject of the original investigation, i.e., whether juror had made up her mind "prior to" considering the evidence, was abandoned in light of juror Gooden's clarification of the matter. In the process of beginning the original investigation the Court learned of the juror's intent to disregard the law - - at least as to RICO. It later appeared that her statements about disregarding the Court's instructions were broader than originally anticipated. In structuring the investigation, the Court gave Careful regard to the rights of the parties to participate without unnecessarily invading the jury's deliberative process. Each interview was conducted on the record and with Defendants and their counsel present. Gabay, 923 F.2d at 1542; Caldwell, 776 F.2d at 1000 ("safer course may well have been to allow the defendants to observe the inquiry of the juror"). I cautioned the jurors each time to not discuss the investigation with the other jurors.¹¹

Three areas of misconduct by Juror Alfonso emerged from the investigation: her opinion that RICO is a "stupid" law, her intent to disregard the jury instructions, and her use of her position in law enforcement to influence the jury.¹²

As the Court stated at the time, Juror Alfonso's own statements to the Court regarding her "problem with the federal law" and her belief that the law wasn't the only thing that the jury must consider, essentially corroborated the reports of the other jurors, Juror McSwiggan reported that Juror Alfonso said that she didn't care what the law was, she was "going to follow her feelings". Jurors Cortes and Butler noted that Juror Alfonso said she did not need to follow "the laws", and Juror Doll indicated that Juror Alfonso's statements revealed that she was not going to follow the law. Jurors Sebastian and Mandell specifically confirmed that Juror Alfonso did not accept the law. Juror Gooden noted that Juror Alfonso was having a "hard time understanding" RICO.

Juror Alfonso admitted that she was having difficulty with Count I (RICO conspiracy) but at no time asked the Court for an explanation of the RICO law or for assistance in understanding the application of the instructions regarding Count I. While she indicated that she had suggested such a course of action to other members of the jury, who had rejected the idea of submitting questions to the Court, Tr at 8867, none of the other jurors reported that such events took place. Moreover, Ms. Alfonso showed her willingness to send out a note on her own when she submitted the deadlock note, and the record is clear that other notes were submitted by the jury both before and after the investigation into these allegations began.

In sum, I conclude that the record does not reveal a "substantial possibility" that Juror Alfonso's position was due to her belief that the evidence was insufficient to support a conviction as to RICO conspiracy.

Several jurors reported that Juror Alfonso was not following the Court's jury instructions. Jurors Blanton and Peralta said that Juror Alfonso said the jurors didn't have to follow the instructions, and Juror Rosso reported that she said that the instructions were "from the Judge" and were "not the law". Jurors Gooden and Doll noted that Juror Alfonso said she considered the instructions as a mere guide, and Juror Perlta stated that Juror Alfonso treated the instructions as similar to instructions to a highway or store - - implying that they need not be followed because alternative paths existed. I became convinced then and am again, after a review of the jurors' statements, that Juror Alfonso, regardless of some of their comments during her interview, was set on a course of disregarding the law set out in the instructions. Indeed, her comments - - even if they had been less equivocal - - in defense of the accusations would not be conclusive.¹³ In response to allegations that a jury had been influenced by extrinsic information, the Eleventh Circuit has confirmed that a juror's denials of misconduct are an insufficient basis on which to reject a claim of misconduct. United States v. Brantley, 733 F.2d 1429, 1440 (11th Cir. 1984) (abuse of discretion to not conduct more complete inquiry when evidence showed that one juror reported that another juror informed jury that defendant previously had been in this kind of trouble). "[T]he bias of a juror will rarely be admitted by the juror himself . . . ." McDonough Power Equipment, Inc. v. Greenwood, 464 U.S. 548, 558 (reversing decision to grant new trial based on juror's incorrect response during voir dire since there was no showing that a correct response would have been a basis for a challenge for cause). Brennan, J., concurring.

As is evident, we spent a considerable amount of time in interviewing, research and argument. I concluded, after evaluating the comments of all the jurors that she did not intend to follow the Court's instructions - - that Juror Alfonso did not intend to apply the law as set forth in those instructions and had not changed her mind following the Court's instructions on Thursday afternoon, July 9.

Juror Alfonso apparently felt that her position in law enforcement (as a corrections officer) provided her with sufficient knowledge to disregard the federal law. Juror Butler reported that Juror Alfonso made statements indicating the relevance of her experience.

Again, I felt then, and do now, that just cause had been established for the removal of Juror Alfonso pursuant to Rule 23(b). As I stated at the time, "she is apparently unwilling or incapable of following the Court's instructions". Tr at 9090. She said that "I know how things at the jail are . . . . [D]on't tell me the way at [sic] the things are in the jails." Tr at 8860.

Defense counsel were concerned throughout the proceedings that Juror Alfonso was the only juror opposing conviction. The verdicts as to Counts III and IV disprove this, and the delay in the jury reaching its verdict as to Count IX also diminishes the strength of this argument. Moreover, Juror Alfonso's own statements that she was not alone, coupled with Juror Grant's apparent position in contrast to the majority of the jury, are sufficient to satisfy the Court that this was not a situation in which the sole holdout for acquittal was dismissed. In Wilson, 894 F.2d at 1250, the Court of Appeals for the Eleventh Circuit noted that the record in that case did not present the slightest basis to believe that the excused juror was a holdout or that the jury had reached any sort of impasse. This indicates the correct concern that trial courts proceed with extreme caution if it appears that the question of dismissing a juror is related to that juror's minority view as to the merits of the case. While the record before this Court indicates that an impasse was imminent, it does not indicated that Juror Alfonso was a lone voice in that room.¹⁴ Moreover, as Juror Butler noted, the jurors didn't "dislike" anyone - - which suggests that the other jurors did not harbor ill feelings toward Juror Alfonso.

Arriving at this conclusion has been difficult. Indeed, before fully reviewing the transcripts of the juror interviews and all of the caselaw in the Eleventh Circuit. I was concerned that I might be required to grant a new trial due to the Alfonso removal. However, after a full review of the transcripts and consideration of the important cases on the subject, I am convinced that the record justifies the finding of just cause. This case began with jury selection, starting on April 13, 1998, and closing arguments were completed on July 1, 1998. Because of the complexities of the case considerable pretrial work was necessary. The time spent on the jury selection process alone, including preparation of extensive interrogatories to the jurors, was considerable. The Eleventh Circuit recently has confirmed that it is proper to consider the length of time invested in a proceeding when determining whether dismissal of a juror is necessary. United States v. Spence, 163 F.3d 1280 (11th Cir. 1998) (disapproving of dismissal of juror with temporary illness during first day of deliberations after two day trial). "[The] declaration of a mistrial would have necessitated a second expenditure of substantial prosecution, defense and court resources; the outcome Rule 23(b) was designed to alleviate". Gabay, 923 F.2d at 1543. The history of this case, I feel, demanded a thorough investigation of the charge of juror misconduct. My initial concern, of course, was the danger of invading the sanctity of jury deliberations so carefully protected by well established law. Every effort was made to limit the inquiry to the issue at hand. Did we have a juror who was determined to disregard the law and either conclude the case on her own terms or cause a mistrial? I am convinced that we did and that she attempted both.

Defendants also seek a new trial based on the allegation that Juror Blanton May have been manipulating the jury for his personal benefit in order to support his efforts to write a book about the trial. This motion merits little analysis. Rule 606 of the Federal Rules of Evidence restricts jurors from testifying as to the jury's deliberations unless such inquiry concerns the effect of extraneous information or outside influence improperly brought to bear upon any juror. Thus, the ability to investigate is very limited. The factors relevant to the Court's role in investigating serious allegations of misconduct have been outlined above. The seriousness of the alleged misconduct must be considered as well as the weight of the accusation. The alleged misconduct of Juror Blanton involves events which were discovered after the trial, and there is absolute no evidence of improper conduct prior to the end of trial. Counsel have inferred that Juror Blanton developed his ideas for a book about this case while serving as a juror. Counsel also infer, without any factual basis; that Juror Blanton may have been providing the other jurors with outside information about the Defendants at some point during the trial. This accusation is simply unsupportable, and neither of these serious allegations has any evidentiary basis. The record does not demonstrate that Juror Blanton engaged in such conduct during the trial and counsel offers only the suggestion of Ms. Alfonso (who contacted counsel with this information) to support such allegation. The Court concludes that an insufficient basis has been shown for conducting an investigation into this matter.

For all the above reasons, it is hereby

ORDERED AND ADJUGED that the motions for new trial are DENIED.

DONE AND ORDERED in chambers in Miami, Florida, this 5th day of May, 1999.

/s/WILLIAM M. HOEVELER
SENIOR UNITED STATES DISTRICT JUDGE

Copies:

William Pearson, AUSA
Edward Ryan, AUSA
William Asbill, Esq.
Holly Skolnick, Esq.

FOOTNOTES

¹Defendant Moran also filed a Motion for New Trial on July 23, 1998, arguing that the United States improperly promised things of value to witnesses in exchange for their testimony. United States v. Singleton, 144 F.3d 1343 (10th Cir. 1998), vacated, reh'g en banc, 165 F.3d 1297 (10th Cir. 1999). Based on the reasoning cited by the Tenth Circuit in the opinion vacating the panel decision in Singleton, Defendant Moran's Motion is denied.

²The notes from the jury have been made a part of the record in this case.

³Later investigation revealed that the note may have been written the night before and was not presented to the entire jury prior to submission to the Court. Tr at 8942, 8946-47, 8969.

⁴Each juror was given a copy of the instructions.

⁵As noted by the Court, all parties' objections to the process were preserved. Tr at 8817.

⁶Each of the jurors completed a 33 page questionnaire prior to trial. The questionnaires are a part of the record in this matter.

⁷"A federal judge . . . may not ignore colorable claims that a juror is acting on the basis of . . . improper considerations." Thomas, 116 F.3d at 616.

⁸There had been previous complaints from other jurors prior to deliberations regarding the subject juror's attempts to distract the jury. The judge interviewed each juror and decided against discharging the juror at that point. It was only after the complaints during deliberations that the judge decided to dismiss the juror. While it is unclear, the decision of the Second Circuit may imply that a juror who engages in conduct constituting "just cause" is in some sense capable of rehabilitation upon proper instruction by the trial judge.

⁹Alternatively, the Court could proceed with eleven jurors, if the court finds it necessary "for any just cause" to excuse a juror prior to deliberations and the parties so stipulate. Fed.R.Crim.P. 23(b).

¹⁰United States v. Gabay, 923 F.2d 1536 (11th Cir. 1991) (affirming decision to proceed with eleven jurors, after discovery of information during deliberations that twelfth juror told co-workers during trial that she thought Defendant was guilty). The Eleventh Circuit's decision in Gabay specifically did not address whether "just cause" existed for dismissal of the juror, since neither party argued that issue to the appellate court.

¹¹During the investigation deliberations were spotty at best, as the jurors were instructed to deliberate only with all twelve jurors present.

¹²In addition, it may be that Juror Alfonso's problems with comprehension and expression - - perhaps due to her difficulties with the English language - - were severe enough to disable her from serving on the juror.

¹³For example, the suggestion by several jurors that Juror Alfonso was considering only one side of the evidence demonstrates a disregard for the Court's instructions - - despite her assertions to the contrary.

¹⁴However, it necessarily must follow that even if the juror in question was a lone holdout for, e.g., acquittal, if just cause clearly existed, the result should be the same. The relevance of the juror's position would be in making the determination as to "just cause".