Court Affirms Drug Conviction Notwithstanding Post-Trial E-mail from Juror Raising “Several Concerns”
In United States v. Baker, the Court (Livingston, Chin, C.J.J., Koeltl, D.J.) affirmed the conviction of Raymond Baker, who after a jury trial in the Northern District of New York was convicted of participating in a conspiracy to distribute and possess with intent to distribute more than 100 grams of heroin, in violation of the Controlled Substances Act, 21 U.S.C. §§841(a)(1), 841(b)(1)(B), 846 and 851.
Baker raised two challenges on appeal. First, he claimed that the evidence presented by the government at trial was insufficient to support his conviction. Second, he challenged the district court’s denial of his request to interview jurors after trial in response to an unsolicited email from one juror to his defense counsel that raised “several concerns” with the trial proceedings. The Court rejected both challenges and affirmed Baker’s conviction.
Sufficiency of the Evidence
The Court quickly disposed of Baker’s challenge to the sufficiency of the evidence. At trial, the key witness for the government was Kandi Kennedy, who testified that Baker was the father of her only child as well as her supplier. The government’s case centered on five transactions in which Kennedy sold heroin (as well as fentanyl) to two confidential informants who were working with the DEA. At a sixth planned sale of heroin, both Baker and Kennedy were arrested. Kennedy entered a guilty plea and cooperated with the government.
On appeal, Baker characterized the government’s case as based entirely on Kennedy—who he claimed “received an extraordinarily cushy deal despite her extensive criminal history, her prior drug dealing, and her lying to the police and under oath.” However, even if that were true, “a federal conviction ‘may be supported by the uncorroborated testimony of even a single accomplice if that testimony is not incredible on its face.’” (quoting United States v. Parker, 903 F.2d 91, 97 (2d Cir. 1990)). Baker’s challenge on appeal thus boiled down to a challenge to Kennedy’s credibility—which was also, unsuccessfully, the focus the defense Baker presented to the jury at trial. The Court refused to “second-guess a jury’s credibility determination on a sufficiency challenge.” (quotation omitted).
Moreover, the government had in fact presented corroborating evidence at trial, including Baker’s presence in the vicinity of multiple drug transactions, as well as text messages and wire-tapped phone conversations between Baker and Kennedy which, despite efforts to be ambiguous and speak in “code,” were highly suggestive of nefarious conduct.
Post-Trial Juror Contact
Following his conviction, Baker filed a pro se motion for a judgment of acquittal under Rule 29 and a new trial under Rule 33. While that motion was pending, about five weeks after Baker’s conviction, one of the jurors on the panel reached out to Baker’s trial counsel by voicemail and email to raise “several concerns” that may “be helpful to you and your client.” In particular, he claimed that there “was discussion among many of the jurors during virtually every break,” in contravention of the trial court’s routine instruction not to discuss the case until deliberations begin. The juror also wrote that after the verdict was rendered, he heard one juror comment that “he knew the defendant was guilty the first time he saw him (before he was sworn in as a juror).”
Before meeting with the juror, Baker’s trial counsel notified the district court and asked for “further guidance from the Court on how to proceed.” The district court requested briefing from the parties and, following such briefing, denied Baker’s request to inquire further into the jurors’ potential premature deliberations or pre-trial biases. The court thereafter also denied Baker’s Rule 29 and 33 motions.
On appeal, Baker argued that the juror discussions during breaks amounted to impermissible premature deliberations, and further surmised that they may have also involved “extraneous materials.” With respect to the “knew the defendant was guilty” statement of one juror, Baker asserted that this statement, if true, could indicate a pre-determination of guilt “based on racial stereotypes of animus.”
Reviewing for abuse of discretion, the Court rejected both challenges and affirmed. The Court emphasized the broad discretion of a trial judge in this context, and that post-verdict inquiries into potential juror misconduct are required only when there is “‘clear, strong, substantial and incontrovertible evidence … that a specific, nonspeculative impropriety has occurred which could have prejudiced the trial of a defendant.’” (quoting United States v. Moon, 718 F.2d 1210, 1234 (2d Cir. 1983)). Neither allegation by the juror met this demanding standard.
With respect to the “discussions,” the Court noted that those discussions did not necessary amount to “deliberations,” and even if they did, Rule 606(b) of the Federal Rules of Evidence (the “no-impeachment rule”) prohibits inquiry into the jury’s deliberations in reaching a verdict. While the rule does permit inquiries into whether the jury improperly considered “extraneous evidence,” the Court held that Baker’s “speculative claims” in that regard were insufficient to require further inquiry.
The Court likewise rejected Baker’s challenge based one on juror purportedly claiming to have known from the outset that “the defendant was guilty.” On appeal, Baker claimed this statement suggested racial bias (according to the defense, Baker “appeared non-white”), and that the Supreme Court’s recent decision in Peña-Rodriquez v. Colorado, 137 S. Ct. 855 (2017) thus compelled the court to investigate whether Baker was denied his Sixth Amendment right to an impartial jury. The Court disagreed. It explained that Peña-Rodriquez represents a “narrow exception” to the no-impeachment rule, which applies only where there is “clear” or “overt” evidence of racial animus—which was not present here.
Accordingly, the trial court did not err by denying defense counsel’s request to conduct further inquiries of the jurors.
The Court’s recitation of the evidence presented at trial and its resolution of Baker’s sufficiency challenge demonstrate that the Court had no doubt at all that he was guilty of the crime. However, the post-trial proceedings present some interesting issues. As a matter of procedure, the Court commended Baker’s trial counsel for “properly notif[ying] the district court and the government prior to inquiring further” into the juror’s concerns. While this was certainly the safest approach, the Court does not delve into what rule could have prohibited a response to the juror’s voluntary post-trial outreach. Practices vary across the country about whether a trial attorney can speak with jurors after the conclusion of the case. However, we observe that NDNY Local Rule 47.5 contains a broadly worded prohibition on unauthorized contact between jurors and attorneys (“This prohibition is designed to prevent all unauthorized contact between attorneys or parties and jurors . . . [except] when otherwise authorized by the presiding judge.”). In addition, Rule 3.5(a)(5) of the New York Rules of Professional Conduct provides that an attorney may not communicate with a discharged juror in a variety of circumstances, including when such a communication is prohibited by law or when the communication might involve harassment. In light of these court and ethical rules, it is understandable that the attorney took the approach of contacting the district court before speaking with a juror.
However, some commentators have observed that rules that prohibit or deter defense counsel from meeting with jurors after a verdict could violate the Sixth Amendment, as they “burden access to an excellent source of potentially admissible evidence of juror misconduct.” See Benjamin M. Lawsky, Note: Limitations on Attorney Postverdict Contact With Jurors: Protecting The Criminal Jury and Its Verdict at the Expense of the Defendant,” 94 Colum. L. Rev. 1950, 1951 (1994). Moreover, it may be unrealistic to require a strong showing of juror misconduct in order to be permitted to interview jurors, as the best way to develop such evidence is through the interviews themselves. Id. Here, there was some evidence of misconduct based on the unusual communications from the former juror, but it was not enough to persuade the district court to permit an interview.
In any event, the Court observes that once this issue was brought to the court’s attention, it was then “within the province of the district court to take full control” of any subsequent interviews. On substance, the court finds that the limited information in the initial outreach suggested only minor issues in the deliberative process that would not be admissible to question the verdict by virtue of the “no-impeachment rule.” In short, absent specific details of concrete impropriety, a district court is not obligated to conduct further inquiry and open the potential Pandora ’s Box of underlying jury deliberations. In situations like this, where such concrete evidence is lacking, one wonders if the decision whether to permit further inquiry is influenced in part by the apparent certainty of the underlying conviction. Indeed, here even the juror who wrote to express “concerns” acknowledged that he considered certain wire-tap evidence to be conclusive proof of Baker’s guilt. The strength of the trial evidence may have been even more apparent to the Court after it considered and rejected the sufficiency claim.
-By Jason Vitullo and Harry Sandick