Rule 33 Held Non-Jurisdictional; Due Diligence Prerequisite Rejected for Claims of Juror Misconduct Discovered Post-Trial

Poth v. United States (decided December 29, 2016).

Players: Judges Glickman and Beckwith, Senior Judge Farrell.  Opinion by Judge Beckwith. Enid Hinkes for M.P.  Trial Judge Russell F. Canan.

Facts:  Following M.P.'s conviction for voluntary manslaughter while armed, defense counsel “Googled” M.P.’s jurors and learned that Juror 061 had a prior felony conviction and that Juror 703A had been the complainant in an assault.  The government subsequently disclosed that Juror 061 had several other convictions and that Juror 703A had been the complainant in another assault.  This information was sought during voir dire but omitted from the jurors’ responses.  

Issue 1:  Whether review of M.P.’s motion for new trial was barred by extensions of time to file that did not comply with Super. Ct. Crim. R. 33? 

Holding 1:  No.  Rule 33’s time limit “is not jurisdictional,” as it is not mandated by constitution or statute.  Slip. Op. at 6. The government waived Rule 33’s protection by failing to object to all but one of the requested extensions and representing that it had no objection, as long as it was given proportional time to respond.  Id. at 8.

Issue 2:  Whether the trial court erred by denying M.P.’s motion based on defense counsel’s purported failure to exercise due diligence in discovering the alleged misconduct?

Holding 2:  Yes.  “Where, as here, the defense had no actual knowledge that jurors had omitted material information and only became aware of this circumstance after conducting an extrinsic investigation, we will not find waiver or forfeiture of the right to raise a claim of juror misconduct.”  Id. at 10.

 

Issue 3:  Whether, on remand, the trial court may grant relief without an evidentiary hearing?

Holding 3:  Yes.  If it is no longer possible to hold a fair hearing to determine whether the jurors were biased, the motion for new trial should be granted outright.  Id. at 14.  Further, in the absence of evidence satisfactorily explaining Juror 061’s failure to disclose his prior convictions, the trial court should presume that his failure was intentional and thus highly probative of his inability to render a fair and impartial verdict. Id. at 15.

Of note:

• In holding that Rule 33’s time limit is not jurisdictional, the Court of Appeals recognized that one contrary precedent – Diamen v. United States, 725 A.2d 501 (D.C. 1999) – has been undermined by subsequent Supreme Court cases and that another – Dean v. United States, 938 A.2d 751 (D.C. 2007) – did not pass upon this precise question.  See Slip. Op. at 7 & n.7.  Neither Dean nor Diamen is good law on this issue.

• The Court of Appeals rejected the argument that a “due diligence” requirement is needed to prevent sandbagging because, given the uncertain prospect of obtaining post-trial relief, a defendant is always better served by raising a claim of juror bias immediately.  Slip Op. at 12-13 n.13.  Indeed, although this opinion removes one procedural hurdle to post-trial relief (jurisdictional time bar) and prevents another from taking root (due diligence), a defendant seeking a new trial based on juror misconduct must still prove actual juror bias, a burden that should not be underestimated.  WC

Read full opinion here.

Judge Can't Wear Two Different Hats -- A Judge Ruling on a Motion To Withdraw a Guilty Plea Cannot Resolve a Factual Dispute Based on His Own Recollection of What Happened at the Plea Hearing

Jose Zalmeron v. United States (decided October 29, 2015)

Players: Associate Judges Thompson and Beckwith, Senior Judge Belson. Opinion by Judge Beckwith. PDS for Mr. Zalmeron. Trial judge: Lee Satterfield.

Facts: Mr. Zalmeron pleaded guilty before Judge Satterfield back in 1994 in a drug case. Twenty years later, he moved to withdraw his plea on the ground that he had not been advised that his conviction could cause him to be deported. Transcripts from the 1994 plea were unavailable. Without hearing from the government, Judge Satterfield denied the motion to withdraw, stating "[u]pon review of the chambers file the Court recalls" that it did advise Mr. Zalmeron of the potential immigration consequences of his plea. Mr. Zalmeron than moved for disclosure of the chambers file, both because he asserted a right to review the evidence on which the ruling was based and to allow for appellate review of the ruling. The government then chimed in, suggesting that disclosure of the chambers file was unnecessary because the court's ruling was based on the judge's own "recollection," which “exists separate and apart from the documents in the chambers file."  Judge Satterfield agreed with the government and denied the request to disclose the chambers file.  Mr. Zalmeron then moved to vacate the order and for an evidentiary hearing before an independent judicial officer, asserting that Judge Satterfield could not serve as both witness and factfinder.  And, because Judge Satterfield was now Chief Judge of the Superior Court, Mr. Zalmeron argued that all of the Superior Court judges were subject to recusal, and the hearing should be in front of a DCCA judge sitting by designation.  Judge Satterfield did not do any of that, and Mr. Zalmeron appealed.

Issue 1:  Is Mr. Zalmeron entitled to a reversal or a remand on his claim that he should be allowed to withdraw his plea?

Holding 1:  After some concessions by the government, he is entitled to a remand, but not an outright reversal.  The government did not argue that Judge Satterfield's claimed "recollection" was sufficient to support the denial of the motion to withdraw in the face of a statutory presumption that the required immigration warnings were not given.  A remand rather than a reversal was warranted, however, because the government did not waive its right to present additional evidence that Mr. Zalmeron received the required warnings.  The sequence of events in the Superior Court did not clearly put the government on notice that the failure to adduce additional evidence at that time would amount to a waiver.

If the government seeks to rely on Judge Satterfield's recollection, however, then binding precedent dictates that the hearing must be in front of a different judge because Judge Satterfield cannot be both witness and factfinder.  Apparently agreeing with Mr. Zalmeron that all the Superior Court judges would be recused given the powers the Chief Judge has over their assignments and working conditions, the DCCA would leave it up to the Superior Court to determine whether a new judge should be drawn from either the DCCA or the federal district court.

Issue 2;  Did the twenty year delay in Mr. Zalmeron seeking to withdraw his plea warrant denial of his motion?

Holding 2:  No, but any unexcused delay is a factor that the court can take into account in ruling on the motion.  The text of the statute authorizing withdrawal of guilty pleas in these circumstances, D.C. Code section 16-713, does not contain a time limitation, and it would be improper for the court to read such a limitation into the text.  Any period of unexplained delay, however, may be taken into account when the factfinder considers the credibility of Mr. Zalmeron's claim. DG

Read full opinion here.