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United States v. Jordan

United States District Court, E.D. Texas, Sherman Division

May 2, 2019




         Defendants Laura and Mark Jordan (the “Jordans”) seek a new trial based on claims that the jury was exposed to outside influence shortly before a verdict was reached. This is a serious complaint. The Constitution promises that, when defendants are charged with a criminal offense, they will face criminal sanctions only after a jury of their peers finds them guilty beyond a reasonable doubt based solely on the evidence before them. The Court is mindful of the substantial burden a new trial poses on the Government, which, through no fault of its own, would lose a favorable verdict after a nearly month-long trial. But, after much reflection, the Court must agree with the Jordans and grant their Motion for New Trial under Rule 33 (Dkt. #174).


         Laura Jordan served as Mayor of the City of Richardson from May 2013 to April 2015. As Mayor, Ms. Jordan voted as part of the Richardson City Council on whether to approve zoning projects, among other matters. During her term, Ms. Jordan allegedly exchanged votes on apartment development projects for cash, sex, and luxury hotel stays, among other items and services from Mark Jordan, the apartment developer. The Government charged the Jordans with violating several federal bribery statutes on this basis. A nearly month-long trial followed.

         At the trial's close, the Court instructed the Jury to “decide the case for yourself, ” and “not give up your honest beliefs as to the weight or effect of the evidence solely because of the opinion of your fellow jurors, or for the mere purpose of returning a verdict.” (Dkt. #153 at p. 26). The case was then left for the Jury to decide. Over the next day-and-a-half of deliberations, the Jury sought guidance from the Court through eight written notes. Only Jury Note No. 8 (the “Note”) is at issue. According to the Note, Juror No. 11 was “very upset, ” felt she could not continue, and “ask[ed] to be excused.” (Dkt. #178, Exhibit 1 at p. 2).

         Neither the Court nor the Parties seemed sure on how to proceed. The Note did not explain why Juror No. 11 sought release from the panel, and a juror may be excused only if she is “unable to perform” her duties, or is disqualified. Fed. R. Crim. P. 24(c)(1). The Court offered to interview Juror No. 11 to further investigate, if the Parties requested. The Parties did not object. Instead, Counsel for Laura Jordan stated that “[w]e would like, your Honor, for you to talk to her” since “[w]e don't even know what we're dealing with.” (Dkt. #174, Exhibit 1 at pp. 4-5). And Counsel for Mark Jordan and the Government promptly agreed (Dkt. #174, Exhibit 1 at p. 5).

         The Court then met with Juror No. 11 in chambers, with a law clerk and court reporter, and asked why she was unable to serve on the panel (the “First Meeting”). The Court emphasized that she should not reveal how the jurors had voted. But the vote was apparently what caused her distress. Juror No. 11 explained that she could not vote because she was worried about causing a “hung jury.” (Dkt. #174 at p. 6). At this point, the Court reminded her of what is written in the Final Jury Instructions-that:

What I say in the charge is that you can't worry about the consequences. Every juror should re-examine their own views is what I say in the charge, and if you have a firmly held conviction, whatever that conviction is, that's up to you to decide. You have to make your own decision.

(Dkt. #174, Exhibit A at p. 7). The Court also stated that, if she “had a certain conviction about what the vote should be or not be, ” then she “should stay firm to [her] convictions, whether that is yes or no, whatever that vote would be.” (Dkt. #174, Exhibit A at p. 7).

         Juror No. 11 responded that it was making her “sick to my stomach to convict them.” (Dkt. #174, Exhibit A at p. 8). The Court tried to assuage those concerns. This meant reminding her that, “if your decision isn't with the rest of the group, you should stand firm on what your convictions are.” (Dkt. #174, Exhibit A at p. 8). After all, as the Court would go on to explain, jurors do not have to agree. The jury can always “send a note back saying we can't reach a unanimous verdict, ” and certain procedures would follow at that point (Dkt. #174, Exhibit 1 at p. 8). But Juror No. 11 remained unpersuaded. The Court apologized for her symptoms, dismissed her from chambers, and apprised the Parties of this conversation.

         The Court relayed that Juror No. 11 was “physically ill” out of concerns of causing a mistrial, and that it had advised her to “stand by [her] conviction, whatever [that] is, ” without regard to the consequences (Dkt. #174, Exhibit 1 at p. 8). A debate over Juror No. 11's health followed. While the Government asked the Court to take Juror No. 11 at her word and release her from the panel, the Jordans were less concerned. Counsel for Mark Jordan insisted “the deliberations continue with this juror and . . . object[ed] to her being excused, ” and Counsel for Laura Jordan urged that the Court could release her only if she was “incapacitated.” (Dkt. #174, Exhibit A at p. 11).

         The Court signaled that it would likely keep Juror No. 11 on the panel, as the Jordans requested, but was open to dismissing her based on “how she reacts when I tell her you're going to have to remain” on the jury (Dkt. #174, Exhibit 1 at p. 13). At least at the time, Counsel for Mark Jordan found this to be a “fair” way to proceed and Counsel for Laura Jordan had “no objection[s].” (Dkt. #174, Exhibit 1 at p. 13). The Court then met with Juror No. 11 a second time, with a law clerk and court reporter present (the “Second Meeting”). When told she would not be released, Juror No. 11 said she understood, committed to “go[ing] back” and “stay[ing] strong, ” and agreed when the Court said that she seemed better (Dkt. #174, Exhibit 1 at p. 14). The Court reiterated that jurors are to vote on their convictions, thanked her for her service, and apologized for her discomfort. This prompted Juror No. 11 to quip that this process had been “torture” and that she was “a nice person.” (Dkt. #174, Exhibit 1 at p. 15). The Court replied that it “[a]t least . . . gave [her] sugar”-referring to the pastries the Court baked for the jurors over the course of the month-before offering to purchase her lunch, as it had for the other jurors. But Juror No. 11 declined as she was unable to eat, and was “trying to diet anyway[].” (Dkt. #174 at p. 16). She then left chambers in “much better” spirits, as the Court reported to the Parties shortly afterward (Dkt. #174 at p. 16). At the recommendation of Counsel for Mark Jordan, the Court then responded to the Note by stating that “Juror No. [11] will continue to deliberate with the panel.” (Dkt. #174 at p. 17). This meant that an Allen charge would likely be necessary, the Court noted, just before dismissing the Parties for lunch.

         But an Allen charge was never read. Two-and-a-half hours after Juror No. 11 expressed her reluctance to convict, the jury reached a unanimous verdict. They found the Jordans guilty on nearly all counts.[1] According to the Jordans, a conversation between three of the Court's Law Clerks (the “Law Clerks”) and a Court Security Officer (the “Officer”) may provide insight into Juror No. 11's swift change of heart. The Law Clerks contend that the Officer told him that he had spoken with Juror No. 11 just thirty to forty-five minutes before a verdict was reached. Finding her in tears, which he seemingly attributed to her role as a dissenting voter, the Officer told Juror No. 11 to put her emotions aside, not worry about the sentence the Jordans might face, and decide the case solely on whether she believed they were guilty or not.

         The morning after a verdict was reached, the Officer told one law clerk of another encounter he had with an unidentified juror (the “Unidentified Juror”).[2] This juror apparently shared that, when polled, she would tell the Court her vote was cast “with reservation.” (Dkt. #169 at p. 1). As before, the Officer told this juror “that she should not be concerned about any punishment the defendants may receive.” (Dkt. #169 at p. 2). If “she did not believe the defendants were guilty, she should vote not guilty.” (Dkt. #169 at p. 2). The Officer added that the juror could not state that her vote was “with reservation” since her vote would not be believed-though it is unclear whether the Officer was explaining his rationale for speaking to the juror to the law clerk, or whether he made this comment to the juror (Dkt. #169 at p. 2). The Court informed the Parties of both conversations within twenty-four hours, filed a memorandum on the Docket containing separate statements from the Law Clerks on these events (the “Statements” or “Memorandum”), and made the Officer available for examination, on request. Defense Counsel declined the Court's offer, despite their perplexing insistence that the offer was never made (Dkt. #180 at p. 4).[3]

         The Jordans now move for a new trial and, if necessary, an evidentiary hearing to support this motion. They fault the Court for meeting with Juror No. 11 in chambers and not dismissing her from the panel-without referencing their encouragement of the meeting or their objections to excusing her (see generally Dkt. #174).[4] See supra footnote 3. They also fault the Officer for speaking with Juror No. 11, especially in light of the topic of conversation: her hesitance to convict.


         Rule 33 provides that, on request, “the court may vacate any judgment and grant a new trial if the interest of justice so requires.” Fed. R. Crim. P. 33(a). “The decision to grant or deny a motion for new trial or remittitur rests in the sound discretion of the trial judge.” Eiland v. Westinghouse Elec. Corp., 58 F.3d 176, 183 (5th Cir. 1995). This discretion allows the Court “‘to set aside a jury verdict and order a new trial based on a “miscarriage of justice” to avert the perception of a miscarriage of justice, '” which typically occurs in “extraordinary” circumstances. United States v. Scroggins, 379 F.3d 233, 253 (5th Cir. 2004) (quoting United States v. Ferguson, 246 F.3d 129, 133 (2d Cir. 2011)), vacated on other grounds, 543 U.S. 1112 (2005). As such, a new trial is proper where the defendant's “substantial rights” have been harmed-either based on a single error or the cumulative effect of multiple errors. United States v. Bowen, 799 F.3d 336, 349 (5th Cir. 2015).


         The parties dispute whether the Jordans were deprived of a fair trial based on the single or cumulative effect of three “errors:” (1) the Court's decision to allow Juror No. 11 to remain on the panel; (2) the Court's ex parte meetings with Juror No. 11; and (3) the Officer's ex parte conversations with Juror No. 11 and the Unidentified Juror.

         I. Juror No. 11's Health

         The Jordans fault the Court for requiring Juror No. 11 to stay on the panel after her reported health concerns. They note that, in the First Meeting, Juror No. 11 stated that she could not continue and was unable to eat. Federal Rule of Criminal Procedure 24 provides that an alternate juror may “replace any jurors who are unable to perform or who are disqualified from performing their duties.” Fed. R. Crim. P. 24(c)(1). The Court has broad discretion in deciding whether a person's “‘ability to perform his duty as juror is impaired.'” United States v. Rodriguez, 573 F.2d 330, 332 (5th Cir. 1978) (quoting United States v. Smith, 550 F.2d 277, 285 (5th Cir. 1977)). Legal error occurs only “on ‘a showing of bias or prejudice to the defendant,' or to any other party.” Id. (quotation omitted). A defendant can meet this standard by establishing that the court lacked any sound ...

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