UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
UNITED STATES OF AMERICA, Plaintiff-Appellee,
ANTHONY L. xxxxxxx,Defendant-Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
BRIEF FOR APPELLANT
The district court had jurisdiction over this criminal case under 18 U.S.C. § 3231. A timely notice of appeal from the final judgment of the district court having been filed on July 11, 1994, this Court has jurisdiction under 28 U.S.C. § 1291.
ISSUE PRESENTED FOR REVIEW
Whether the trial court erred in denying Mr. xxxxxxx's motion for a new trial where the foreperson of the jury concealed the fact that she knew and had an extremely acrimonious relationship with Mr. xxxxxxx's investigator, and further concealed the fact that her son-in-law, a crack cocaine addict, had been shot by a drug dealer.
STATUTES AND RULES
Pursuant to Rule 28(f), Federal Rules of Appellate Procedure, and D.C. Circuit Rule 28(a)(5), the pertinent statutes and rules are set forth in the Addendum to this brief.
STATEMENT OF THE CASE
A.Nature of the Case, Course of Proceedings, and
Disposition in the Court Below
On June 10, 1993, a federal grand jury sitting in the District of Columbia returned a two-count indictment charging Mr. Anthony L. xxxxxxx with possession with intent to distribute more than 50 grams of a substance containing cocaine base in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A)(iii) and with possession with intent to distribute marijuana in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(D). A. 12-13.
Mr. xxxxxxx's first trial ended with a hung jury. That trial began before the Honorable Thomas A. Flannery on February 7, 1994. On February 10, 1994, after deliberating for more than a day, the jury reported itself unable to reach a verdict and the court declared a mistrial. A second trial commenced before Judge
Flannery on April 18, 1994. On April 20, 1994, after deliberating for an hour and a half, the jury returned a verdict of guilty.
On April 28, 1994, Mr. xxxxxxx filed a motion for a new trial alleging that the foreperson of the jury had concealed material information during voir dire and had been biased against him in violation of his right to trial by an impartial jury. The court held an evidentiary hearing on the motion on June 10, 1994. The court denied the motion in a written Memorandum Opinion and Order on June 14, 1994.
On June 30, 1994, Mr. xxxxxxx was sentenced to 135 months imprisonment and five years of supervised release on Count One and a concurrent sentence of 60 months imprisonment and two years of supervised release on Count Two (A. 54-57). Mr. xxxxxxx filed a timely notice of appeal (A. 58).
B. Statement of Facts
1. The Evidence At Trial.
Detective Kimberly Oxendine, a member of the Interdiction Unit of the Narcotics and Special Investigation Division, testified that on May 18, 1993, at approximately 9:00 a.m., she was on plainclothes duty in the Greyhound Bus Station, working in tandem with Detective James McNamara, when she observed Mr. xxxxxxx disembarking a bus that had arrived from New York City (Tr. 65, 67-68). He was carrying a black tote bag (Tr. 70).
Detective Oxendine proceeded to conduct a four- or five-minute interview of another passenger, at the conclusion of which Mr. xxxxxxx was standing alone in the stand-by line in front of Door 7 with the black tote bag on the floor a couple of feet away (Tr. 71-73, 75-76, 78). Upon Detective McNamara's suggestion that she interview Mr. xxxxxxx, Detective Oxendine approached Mr. xxxxxxx, identified herself as a police officer and obtained permission to speak with him (Tr. 76, 92).
After examining and returning Mr. xxxxxxx's bus ticket, showing travel from New York City to Charleston, West Virginia, Detective Oxendine explained that she was looking for passengers travelling with drugs and guns in their luggage, to which Mr. xxxxxxx responded, "Gun? Guns? I don't have any guns" (Tr. 76-77). Detective Oxendine then asked whether the black tote bag belonged to Mr. xxxxxxx, to which he responded, "Yeah" (Tr. 77-78). When asked by the officer if she could search the bag, Mr. xxxxxxx again said, "Yeah" (Tr. 77). Inside the tote bag, underneath a jacket, Detective Oxendine found two bundles wrapped in black electrical tape (Tr. 77, 79-80). She cut open one of the bundles and found a green weed substance she recognized as marijuana, at which time Detective McNamara placed Mr. xxxxxxx under arrest (Tr. 77).
The bundles were unwrapped back in Detective Oxendine's office (Tr. 81, 83). The first bundle contained 99 ziplocks of marijuana (Tr. 81). The second bundle contained approximately 100 grams of a rock-like substance that she recognized as crack cocaine (id.). Detective McNamara testified that he also saw Mr. xxxxxxx disembark the bus carrying a tote bag (Tr. 107). While providing backup for Detective Oxendine's first interview, Detective McNamara observed Mr. xxxxxxx walk to the area of Door 7, where he stood for a while before putting the bag down on the floor and walking past the restrooms toward the vending machines forty to fifty feet away (Tr. 108, 113, 131, 134-135). Approximately one minute later, when the first interview was over, Detective McNamara noticed that Mr. xxxxxxx was back near the bag (Tr. 108, 112, 135). From his backup position five feet away, Detective McNamara could hear conversation but could not make out the words exchanged between Detective Oxendine and Mr. xxxxxxx (Tr. 114). After Mr. xxxxxxx's arrest, Detective McNamara seized the bus ticket, inside of which was a small scrap of paper bearing an address (Tr. 116-117). Inside the black tote bag, in addition to clothing and toiletries, was a large piece of paper with a torn section matching the paper found in Mr. xxxxxxx's bus ticket (Tr. 118-119).
Detective Ronnie Hairston testified as to how he processed the two bundles of narcotics received from Detective Oxendine (Tr. 149-151). Detective Lawrence Coates testified as a narcotics expert that the 96.85 grams of cocaine base recovered from the tote bag had a street value of approximately $10,000 ($20,000 in Charleston) (Tr. 181-182), that the 99 ziplocks of marijuana had a street value of approximately $1000 ($2000 to $4000 in Charleston) (Tr. 183-184), and that the amount of drugs recovered far exceeded the amount that might be possessed for personal use (Tr. 182, 184). Detective Coates admitted on cross-examination that it would be a bit unusual for a drug courier to walk fifty feet away from a bag containing drugs of that value in a crowded bus station (Tr. 192-193).
The defense called several witnesses. Kevin Johnson testified that he is a neighbor of Mr. xxxxxxx's in New York and saw Mr. xxxxxxx and two other people heading towards the subway station at 1:00 a.m. on the morning of his arrest and that Mr. xxxxxxx was not carrying any luggage (Tr. 199-200). Margo Taylor testified that she is a friend of Mr. xxxxxxx's and was travelling with him by bus to visit Mr. xxxxxxx's girlfriend and her good friend, Darlene Taylor, in Charleston because Darlene Taylor was having difficulties with her pregnancy (Tr. 207-209). Mr. xxxxxxx, who keeps clothing and toiletries at Darlene Taylor's apartment, was carrying no luggage (Tr. 209-210). Also travelling with them that morning were David and Perry White, who were headed to Richmond, Virginia (Tr. 211-212). On the bus to Washington, D.C., Margo Taylor saw another man hand Mr. xxxxxxx a small slip of paper that she assumed had a phone number on it (Tr. 210-211). Upon arrival in Washington, Margo Taylor and David White stood in the line for Gate 7 while Mr. xxxxxxx went to the restroom (Tr. 212-213). When Mr. xxxxxxx left the restroom, he was talking to a black woman, who said something to him about a bag, to which Mr. xxxxxxx responded, "Go ahead. It ain't my bag" (Tr. 216, 241). A white man then put handcuffs on Mr. xxxxxxx as the black woman walked over to Gate 7 and picked up a black tote bag (Tr. 217).
David White generally corroborated the testimony of Margo Taylor (Tr. 256-260). Darlene Taylor testified that Mr. xxxxxxx visited her about once every six weeks and kept clothes at her apartment (Tr. 291, 301). She demonstrated that one of the keys seized from Mr. xxxxxxx matched the key to her apartment (Tr. 291-293). On May 18, 1993, Mr. xxxxxxx was coming to visit her because she was having complications with her pregnancy that ultimately required surgery (Tr. 294-299).
The defense also called George Bonebrake, who was qualified as an expert in latent fingerprint examination (Tr. 315). He testified that he had been hired by Mr. xxxxxxx's previous attorney in December 1993 to attempt to develop fingerprints from the items in the tote bag and the small scrap of paper in Mr. xxxxxxx's bus ticket and to determine if any of the prints were made by Mr. xxxxxxx (Tr. 315-316, 331-332). The only identifiable prints he was able to develop were from the two pieces of paper. None of those prints were Mr. xxxxxxx's (Tr. 317-318, 320-321, 324).
In rebuttal, the government called Detective John Brennan to testify as to statements made by Mr. xxxxxxx in a December 1993 debriefing interview under an agreement whereby anything Mr. xxxxxxx said at the debriefing would be admissible in rebuttal if he put on contradictory evidence at trial (Tr. 357-360). At the debriefing, Mr. xxxxxxx had stated that he had been travelling on the subway alone, on the way to the bus station, carrying a plastic bag with a jacket inside, when he met up with a man he knew as Mike and an unidentified woman who also were travelling to Charleston (Tr. 361-364). Once on the bus, Mike offered to put Mr. xxxxxxx's jacket in his black tote bag (Tr. 365). When they arrived in Washington, Mr. xxxxxxx carried the black bag off the bus, left it for Mike at Gate 7, and then went to the restroom (id.). He was arrested by Detective McNamara after Detective Oxendine approached him on his way out of the restroom (Tr. 366).
The jury retired to begin deliberating at 2:32 p.m. (Tr. 486). At 4:03 p.m., the jury foreperson, Ms. Louise Blackmon-Brown, signed a note stating that the jury had reached its verdict (A. 16).
2. The Motion For A New Trial.
The defendant's new trial motion alleged that Ms. Blackmon-Brown had failed to respond truthfully to several material voir dire inquiries, depriving Mr. xxxxxxx of his right to an impartial jury and his right to full exercise of his peremptory challenges (A. 18-35). Included with the motion was an affidavit from the defense investigator, Ms. Bonnie Duffy Page, stating that she has lived a few doors down and across the street from Ms. Blackmon-Brown for 23 years, has known Ms. Blackmon-Brown for over 25 years, went to grade school with her two daughters, Sandra Blackmon and Ruth Blackmon-Fogle (aka "KK"), knows her son, Benjamin Blackmon, and her son-in-law, Orville Fogle, and that Mr. Fogle is a self-confessed crack-cocaine addict who went through drug rehabilitation with Ms. Duffy Page's brother (A. 31-32). The affidavit further stated that Ms. Duffy Page and Ms. Blackmon-Brown "don't see eye to eye on many matters and there exists animosity between us," noting specifically that Ms. Blackmon-Brown had made derogatory remarks to neighbors concerning Ms. Duffy Page's widely publicized marriage to an inmate of the D.C. Department of Corrections (A. 32). The new trial motion also alleged that Mr. Fogle had received a gun shot wound as a result of an incident with a known drug dealer (A. 18-19).
The defense called two witnesses at the hearing on the new trial motion: Ms. Duffy Page, and her sister, Princess Duffy. The government called no witnesses. Ms. Duffy Page testified that in her role as Mr. xxxxxxx's investigator, she took the pictures of the bus station used by the defense at trial, interviewed bus station employees (none of whom remembered Mr. xxxxxxx's arrest), and sat in as a third-party witness on defense counsel's interviews with Mr. xxxxxxx and others (M. Tr. 24-26, 35). She was in fact subpoenaed for trial by defense counsel (M. Tr. 35) and was certified as present in the courthouse to appear as a witness on the first and second days of trial (A. 14-14(A)). However, she was not physically present in the courtroom when she was identified to the jurors as a potential defense witness and was not ultimately called to testify (M. Tr. 8, 10).
Ms. Duffy Page testified that she learned that Ms. Blackmon-Brown was on Mr. xxxxxxx's jury when she stopped in briefly during the closing arguments on her way to an assignment in Baltimore (M. Tr. 3-4). She reached defense counsel between 6:00 and 7:00 that evening and informed him at that time of her relationship with Ms. Blackmon-Brown (M. Tr. 5).
Ms. Duffy Page testified at the hearing that her picture had been in the newspaper when she married a Lorton inmate in 1991 and that Ms. Blackmon-Brown had been seen showing the picture around the neighborhood and saying "she couldn't understand how I could do something like that but that's what she expected from a Duffy" (M. Tr. 6). With respect to drug use in the Blackmon-Brown family, Benjamin Blackmon used to smoke marijuana with Ms. Duffy Page's brother, Walter Duffy (M. Tr. 7, 12, 30-31); Orville Fogle is a self-confessed crack cocaine addict who regularly counsels other addicts and had in fact counseled Ms. Duffy Page concerning family co-dependency (M. Tr. 7, 36-37). In 1986 or 1987, Mr. Fogle was shot in the leg by a convicted drug dealer (M. Tr. 7).
Under cross-examination, Ms. Duffy Page admitted the following additional grounds for the animosity existing between herself and Ms. Blackmon-Brown:
It's comical, but it stems from approximately 30 years in duration. I attended elementary school with her oldest daughter, who was very much overweight, and unfortunately, I teased her, and her mother did not like that. So it began very early (M. Tr. 12).
Later I attended school with another of her daughters, "KK", and she was part of what was considered a rival group in junior high school from the group of friends that I associated with, and, unfortunately, I got into a fist fight with one of her friends (M. Tr. 12).
Then, my brother and her son smoked reefer together. She seemed to have -- She seemed to be under the impression that my brother was an influence over her son (M. Tr. 12). She believes my brother to be the supplier of marijuana to her son (M. Tr. 31).
[Ms. Blackmon-Brown's] husband is somewhat of a flirt in the neighborhood, and there exists a problem with almost any woman that he speaks to (M. Tr. 12-13).
[Six or seven months ago Ms. Blackmon-Brown] inquired as to how I was keeping my weight down and that I looked very well. Shortly thereafter, I learned that she told a neighbor I looked as if I was on drugs (M. Tr. 33).
When cross-examined as to how she had learned that Ms. Blackmon-Brown had read the article and had made derogatory remarks concerning her, Ms. Duffy Page explained (M. Tr. 21):
Ms. Blackmon-Brown's son-in-law's mother lives directly across the street from her. She is a personal friend of my mother's. And the information got to me as it filtered through the neighborhood that Ms. Blackmon had the article and discussed me marrying an inmate and what she expected of a Duffy. And it was relayed to my mother.
When asked whether the juror had ever made harassing phone calls or "do[ne] anything to you or your property which led you to believe that she had a strong dislike for you as a result of your marriage to this inmate," Ms. Duffy Page responded (M. Tr. 23):
A I don't believe she had a strong dislike for me as a result of my marriage. I believe she has a strong dislike for me, period, and it stems from a number of years.
Q And the Duffy family in general, based on your comment?
A Most of my family.
Ms. Duffy Page's sister, Princess Duffy, testified that she had seen Benjamin Blackmon using drugs with her brother and other neighbors (M. Tr. 39). Ms. Duffy further testified that she had an intimate relationship with Orville Fogle before he married Ms. Blackmon-Brown's daughter and that the daughter was aware of that relationship (M. Tr. 40). She recalled that the shooting of Mr. Fogle occurred nine or ten years ago (M. Tr. 41). Mr. Fogle was in a drug treatment program with Ms. Duffy's brother three or four years ago (M. Tr. 40, 46).
In the memorandum denying the new trial motion (A. 47-53), the court did not make any factual finding either crediting or discrediting the testimony of the defense witnesses. Instead, the court held that "even assuming, arguendo that the juror harbored ill feelings against the defendant's investigator and deliberately failed to acknowledge knowing her, there is neither evidence nor reason to suggest that this translates into actual bias against the defendant himself" (A. 50) (citing United States v. North, 910 F.2d 843, 904 (D.C. Cir. 1990), cert. denied, 500 U.S. 941 (1991)). The court's reasoning in this regard was as follows (id.):
Defense counsel mentioned Ms. Duffy Page's name only one time during voir dire among a list of potential witness[es], without giving her home address and without the investigator being present in the courtroom. Ms. Duffy Page never testified at trial, nor did she play any role in the trial whatsoever. Ms. Blackmon-Brown's failure to disclose that she knew Ms. Duffy Page therefore provides defendant with no grounds for a new trial.
The court held that it was "even less inclined" to grant a new trial based upon the juror's failure to answer the Ridley question, reasoning that there was no evidence that Ms. Blackmon-Brown was aware that her son-in-law had been shot by a drug dealer, and noting that it was unclear whether Mr. Fogel was married to the juror's daughter at the time he was shot (A. 51). "Even if the juror did know of the incident, though, and even if she deliberately failed to disclose that fact, there was still no evidence presented demonstrating how this made her a prohibitively prejudiced juror candidate under the North standard" (id.).
SUMMARY OF ARGUMENT
The district court abused its discretion by denying Mr. xxxxxxx's motion for a new trial where the foreperson of his jury concealed material information on voir dire, specifically failing to acknowledge both her relationship with the defense investigator and the fact that her son-in-law had been a victim of a crime within ten years. An honest answer to the court's questions on voir dire would have provided grounds for a challenge for cause. Given the extreme and long-standing personal animosity between the juror and a member of the defense team, manifested most recently by the juror's initiation of a rumor that the investigator looked like she was using drugs, and the toll that drugs had taken on the juror's own immediate family, the inference that the juror was in fact biased against the defense in this drug case is overwhelming.
STANDARD OF REVIEW
Whether the district court erred in denying appellant's motion for a new trial is a mixed question of law and fact. The district court's factual findings are reviewed for clear error. United States v. North, 910 F.2d 843 (D.C. Cir. 1990), cert. denied, 500 U.S. 941 (1991). The district court's legal conclusion is reviewed for abuse of discretion. United States v. Lafayette, 983 F.2d 1102 (D.C. Cir. 1993).
MS. BLACKMON-BROWN'S PRESENCE ON MR. xxxxxxx'S JURY, ACHIEVED THROUGH HER CONCEALMENT OF MATERIAL INFORMATION DURING VOIR DIRE, DEPRIVED MR. xxxxxxx OF A TRIAL BY AN IMPARTIAL JURY.
The Sixth Amendment to the Constitution promises that "in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury." The purpose of voir dire is to protect that important right by "exposing possible biases, both known and unknown, on the part of potential jurors." McDonough Power Equipment, Inc. v. Greenwood, 464 U.S. 548, 554 (1984). Under McDonough, 464 U.S. at 556, a new trial is necessary where a party demonstrates
that a juror failed to answer honestly a material question on voir dire, and . . . that a correct response would have provided a valid basis for a challenge for cause. The motives for concealing information may vary, but only those reasons that affect a juror's impartiality can truly be said to affect the fairness of a trial.
This Court in North, 910 F.2d at 903-905, held that "McDonough suggests that an aggrieved party must show that the juror's correct response at voir dire would have demonstrated actual bias," id. at 904, and rejected the argument that deliberate concealment of information on voir dire is per se evidence of lack of impartiality. Here, Mr. xxxxxxx can show not only that Ms. Blackmon-Brown concealed critical information on voir dire, but also that honest answers to the court's questions would have revealed actual bias that would have provided a valid basis for a challenge for cause.
A.Ms. Blackmon-Brown Failed To Answer Honestly Two Material Questions On Voir Dire When She Failed To Disclose 1) Her Relationship With The Defense Investigator, And 2) That Her Son-In-Law Had Been Shot By A Drug Dealer.
Ms. Blackmon-Brown failed to answer honestly two separate questions on voir dire. First, she concealed the fact that she "kn[e]w or ha[d] heard of" potential defense witness Bonnie Duffy Page (Tr. 10). Second, in response to the court's Ridley question, she failed to disclose that her son-in-law had been the victim of a crime within the past 10 years (Tr. 16-17).
The district court accepted for purposes of its opinion that Ms. Blackmon-Brown "harbored ill feelings against the defendant's investigator and deliberately failed to acknowledge knowing her" (A. 50). Indeed, given the duration and extent of Ms. Blackmon-Brown's relationship with Ms. Duffy Page, the only reasonable inference on this record is that the juror's failure to acknowledge that relationship was intentional.
Although Ms. Duffy Page was not in the courtroom when defense counsel identified her to the jury as a potential witness and did not take the stand during the trial, counsel's identification of "Bonnie Duffy-Page, who is an investigator who works for my office" (Tr. 10) could not have been more clear. Ms. Blackmon-Brown had known Ms. Duffy Page for 25-30 years and had lived across the street from her for 23 years (M. Tr. 4). She knew her as "Bonnie Duffy," "Bonnie Page," and "Bonnie Duffy Page" (M. Tr. 8, 36). She had spoken to Ms. Duffy Page as recently as six months before the trial (M. Tr. 33). Moreover, if there was any doubt in the juror's mind as to whether defense counsel was referring to the Bonnie Duffy Page that she had known for so many years, counsel's identification of her as a defense investigator would have removed it; in the unlikely event Ms. Blackmon-Brown had not already known her neighbor's occupation, the newspaper article the juror had shown around the neighborhood had included the information that Ms. Duffy Page was a private investigator (M. Tr. 20).
That Ms. Blackmon-Brown was paying close attention and understood the importance of responding to those questions that applied to her is demonstrated by the two responses she did give during the voir dire. First, she responded to the court's question about relatives in law enforcement as follows (Tr. 13-15):
JUROR 2119: Louise Blackmon-Brown. My husband, who has been retired for three years, trains Capitol Hill Police officers -- federal police officers -- in Glencoe, Georgia. It would not affect me.
THE COURT: And this is your husband, did you say?
JUROR 2119: Yes. He's been retired for three years.
THE COURT: Oh, he's been retired.
JUROR 2119: Yes.
THE COURT: Oh, I see. And how long did he work in law enforcement?
JUROR 2119: Thirty-seven years.
THE COURT: And would the fact that your husband had been in law enforcement work for all those years affect your ability to sit in this case and to be fair and impartial?
JUROR 2119: It does not affect my ability, no.
THE COURT: All right. Let me ask you this. There will be police officers testify in this case, and would you give the testimony of a police officer more weight than you would the testimony of any other witness?
JUROR 2119: Not at all.
THE COURT: You'd treat them equally.
JUROR 2119: Not at all.
THE COURT: All right. Thank you.
Ms. Blackmon-Brown also responded when the court asked whether any member of the venire panel ever previously sat on a grand jury or a civil trial jury (Tr. 42-43):
JUROR 2119: Louise Blackmon-Brown, Your Honor. Mine was a civil trial also.
THE COURT: Yes. How long ago was it?
JUROR 2119: Several years. Seven, eight years ago.
THE COURT: And you understand the difference between a civil trial and a criminal trial?
JUROR 2119: Yes. Yes.
THE COURT: All right. Thank you.
Clearly, Ms. Blackmon-Brown was able to understand and participate in the proceedings when she chose to do so. The only explanation for her failure to reveal her relationship with Ms. Duffy Page and the crime against her son-in-law is that she "consciously censored the information." United States v. Scott, 854 F.2d 697, 699 (5th Cir. 1988).
B. Had Ms. Blackmon-Brown Provided Honest Responses During Voir Dire, Those Responses Would Have Revealed Actual Bias And Provided A Valid Basis For A Challenge For Cause.
The testimony at the post-trial hearing demonstrated plainly that if Ms. Blackmon-Brown had been honest with the court about her relationship with Ms. Duffy-Page and the shooting of her son-in-law, that information would have provided grounds for a challenge for cause. The district court clearly erred in holding that there was "neither evidence nor reason to suggest that [the juror's deliberate concealment of her ill feelings against Mr. xxxxxxx's investigator] translates into actual bias against the defendant himself" (A. 50). In fact, on this record there was every reason
to suggest that the juror's concealment of her bias against Ms. Duffy Page translated into a bias against Mr. xxxxxxx.
First, of course, the fact that Ms. Blackmon-Brown was dishonest in her answers on voir dire is "the best initial indicator of whether the juror in fact was impartial." McDonough, 464 U.S. at 556-557 (Blackmun, J., concurring). See also Perkins, 748 F.2d at 1532 ("Goad's dishonesty, in and of itself, is a strong indication that he was not impartial"). As this Court explained in United States v. Boney, 977 F.2d 624, 634 (D.C. Cir. 1992):
[L]ying or failing to disclose relevant information during voir dire itself raises substantial questions about the juror's possible bias. While refusing to adopt a per se rule requiring a new trial in [North], we recognized the seriousness of a juror's deliberate concealment of relevant information during voir dire.
In this case, unlike in North, there is more than just the dishonesty itself pointing to the non-disclosing juror's bias against the defense. The nature of the information concealed by Ms. Blackmon-Brown distinguishes this case from the North case in a way that Judge Flannery failed to recognize. Whereas in North, the juror's dishonesty about her family's involvements with the legal system provided no basis for concluding that she favored one side over the other, and the trial court found as a fact that "she had no desire to help or to hurt North or the prosecutor," 910 F.2d at 904 (quotations omitted), the information withheld in this case pointed in only one direction: against Mr. xxxxxxx.
The North court itself relied in part upon this distinction in refusing to follow the Second Circuit's decision in United States v. Colombo, 869 F.2d 149 (2d Cir. 1989):
[T]he grounds for suspecting [the North juror] of bias are far weaker than the alleged bias in Colombo, a criminal case where the juror in question was related to a government attorney. By contrast, there was no apparent reason why [the North juror] was likely to favor one side or the other.
North, 910 F.2d at 905 n.44. If merely being related to "a government attorney" is sufficient grounds to infer favoritism toward the government, surely that inference is compelled where a juror has publicly demonstrated a personal animosity toward the defendant's own investigator. Likewise, the fact that a drug dealer shot Ms. Blackmon-Brown's son-in-law can cut only one way -- against accused drug dealer Anthony xxxxxxx.
The sheer magnitude of the animosity between Ms. Blackmon-Brown and Ms. Duffy Page is surely unique among cases concerning a juror's relationship with a trial participant. When pressed on cross-examination, Ms. Duffy Page acknowledged incident upon incident demonstrating both the source and the continuing manifestations of the juror's hostility towards her, finally admitting that the juror "despises me" (M. Tr. 33). Spanning over 25 years, the convoluted tale of all of the various wrongs and counter-wrongs between these families reads like a history of the Hatfields and the McCoys -- summed up in Ms. Blackmon-Brown's comment that the investigator's marriage to a criminal was "what she [would] expect from a Duffy" (M. Tr. 6).
Not just the amount, but the nature, of Ms. Blackmon-Brown's animosity proves her lack of fitness to serve as a juror in this case. While hard feelings over the unfortunate taunting of Ms. Blackmon-Brown's overweight daughter may seem petty in one sense, no one is more despised than she who hurts a parent's child. The human experience is that it is the petty personal hatreds that most often prompt a thirst for revenge and Ms. Blackmon-Brown unquestionably had such a thirst. A person who only six months earlier had started a rumor that Ms. Duffy Page looked like she was on drugs had no place being put in a position to harm the investigator through her client.
Mr. xxxxxxx concedes that none of the voir dire questions explicitly required Ms. Blackmon-Brown to reveal the drug usage in her family. Nevertheless, the toll that drugs have taken on her loved ones, particularly the harm crack cocaine has caused to her daughter's addicted husband, must be considered in evaluating whether Ms. Blackmon-Brown's dishonesty on voir dire reflects bias against Mr. xxxxxxx -- the accused courier of $10,000 worth of crack cocaine and $1,000 worth of marijuana. There was specific evidence at the post-trial hearing revealing Ms. Blackmon-Brown's resentment towards those who traffic in drugs. Ms. Duffy Page testified that one of the grounds for Ms. Blackmon-Brown's animosity towards her was the juror's belief that Ms. Duffy Page's brother had supplied drugs to the juror's son Benjamin. Ms. Blackmon-Brown's vicious suggestion, only six months before the trial, that Ms. Duffy Page herself was using drugs, is further evidence of her attitude toward illegal drug use.
Finally, the fact that Ms. Blackmon-Brown ultimately took on the role of foreperson of the jury is yet another factor supporting the inference that she had an undue desire to participate in the case. Indeed, it is striking that in so many of the leading cases in this area, the nondisclosing juror turns out to be the foreperson of the jury. The jurors at issue in McDonough, Boney, and Scott all served as foreperson. See also United States v. Brooks, 677 F.2d 907 (D.C. Cir. 1982). The fact that the deliberations led by Ms. Blackmon-Brown resulted in conviction in only an hour and a half, whereas Mr. xxxxxxx's first jury deliberated for more than a day before hanging 9-2 in favor of acquittal, lends credence to Justice Brennan's suggestions in McDonough that the "potential for bias could only have been exacerbated by the fact that [the nondisclosing juror] served as foreman of the jury." 464 U.S. at 558 n* (Brennan, J., concurring in the judgment).
For the foregoing reasons, the judgment against Mr. xxxxxxx must be vacated and the case remanded to the district court for a new trial.
FEDERAL PUBLIC DEFENDER
LISA D. BURGET
Assistant Federal Public Defender
625 Indiana Avenue, N.W., Suite 550
Washington, D.C. 20004
Counsel for Appellant Anthony L. xxxxxxx
CERTIFICATE OF LENGTH
I hereby certify that the foregoing Brief for Appellant Anthony L. xxxxxxx does not exceed the number of words permitted pursuant to D.C. Circuit Rule 28(d).
LISA D. BURGET
Assistant Federal Public Defender
CERTIFICATE OF SERVICE
I hereby certify that two copies of the foregoing Brief for Appellant Anthony L. xxxxxxx have been delivered by hand to the United States Attorney's Office, John R. Fisher, Esq., Appellate Division, 555 Fourth Street, N.W., Washington, D.C., 20001, this 22nd day of February, 1995.
LISA D. BURGET
Assistant Federal Public Defender