United States District Court, D. Maryland
K. Bredar Chief Judge
January 25, 2018, following a roughly two-month jury trial,
Gerald Johnson, Kenneth Jones, and Marquise McCants
(“Defendants”) were convicted of multiple
criminal counts, including racketeering conspiracy and
conspiracy to distribute and possess with intent to
distribute controlled substances. Now pending before the
Court is Defendants' Joint Motion for A New Trial (ECF
No. 556) pursuant to Federal Rule of Criminal Procedure 33.
The issues have been briefed (ECF Nos. 556-1, 561, &
571), and no hearing is required, Local Rule 105.6 (D. Md.
2016). For the reasons explained below, Defendants'
motion will be DENIED.
assert that the jury was subjected to multiple external
influences that affected their ability to render a fair and
impartial verdict. The alleged external influences fall under
two broad categories: (1) jury communications that were
raised with and addressed by the Court during the course of
the trial, and (2) an alleged conversation between
representatives of the Government that purportedly took place
within earshot of jurors, which was first bought to the
Court's attention in the present motion.
December 7, 2017 Jury Communications
first communication at issue occurred on December 7, 2017.
That day, the jury raised two issues with the Court. First,
multiple jurors informed the Courtroom Deputy Clerk that they
had observed that the paralegal, Ms. Panas for the
defendants, had in their judgment been passing notes among
herself, the defendants, and defense counsel. They also made
the observation that on some occasions, in their view, after
the notes had been received by the defendants, that the
defendants had then looked up and looked at the jury.
No. 556-2 at 2.) In addition, “one or more jurors,
” in the presence of “[p]retty much the entire
group, ” subsequently “raised with [the Courtroom
Deputy Clerk] the question of, well, is the judge going to
take this up in front of the defendants themselves, in which
case they will know that we brought this to the Court's
attention.” (Id. at 4.) Defendants moved for a
mistrial or, in the alternative, for voir dire of individual
jurors. The Court denied both requests and instead sent the
following communication to the jury:
Just after the jury was excused for the lunch break today,
while still in the jury room, some members of the jury raised
a concern with the Courtroom Deputy Clerk. Jurors noted that
the paralegal, Ms. Panas, from time to time seems to be
writing and exchanging notes with the Defendants and their
lawyers. They also noted that at times the Defendants appear
to be looking at the jury.
As a member of the defense team, it is entirely appropriate
that Ms. Panas communicate in this fashion with the
Defendants and their lawyers. And, it is appropriate and
normal if from time to time a Defendant looks at the jury.
You should draw no adverse inference from the fact that Ms.
Panas is exchanging notes in this fashion or that from time
to time a Defendant looks at the jury.
I remind you that each of the Defendants is presumed to be
innocent unless and until they are proven guilty beyond a
Communication No. 1, ECF No. 534 at 12.)
as the Courtroom Deputy Clerk was delivering the above
message to the jury, she was
confronted by one or more jurors with other jurors listening.
And they wanted to quiz her about the jury voir dire process
that was conducted at the start of this trial . . . . And
specifically, they raised with [the Courtroom Deputy Clerk]
the concern that during that voir dire selection process, the
lawyers for the defendants and presumably their clients, had
in their possession a jury list that showed the names and
places of residence, not the addresses right, it usually says
the city. Whatever that list is. They were concerned, they
were surmising that the lawyers had these documents and that
the defendants had access to them, and that this was a matter
of concern. …
Then the second concern was raised immediately thereafter,
which was that while they were answering questions at the
bench as potential members of this jury, they are troubled by
the fact that they recall that I told them that the
defendants, while not themselves at the bench could hear all
that was being said at the bench, including the questions
that I propounded to them, and more importantly the answers
that they supplied. And that this was a matter of concern to
(Id. at 43-44.) The jurors also sent a note to the
Court stating that “[s]everal jury candidates observed
the paralegal sharing juror info (the packet) with defendents
[sic]. We thought this info was for lawyers only. We are
concerned about the info the defendents [sic] may have about
us- from a personal safety perspective.” (Juror
Communication No. 3, ECF No. 534 at 10.) Defendants ...