Docket No UNITED STATES COURT OF APPEALS

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1 Case: Date Filed: 04/02/2018 Page: 1 of 22 Docket No IN THE UNITED STATES COURT OF APPEALS ELEVENTH CIRCUIT UNITED STATES OF AMERICA, v. Appellee, CORRINE BROWN, Direct Criminal Appeal Middle District of Florida Lower Case No. 3:16-cr-93-TJC-JRK-1 Appellant. BRIEF OF FLORIDA ASSOCIATION OF CRIMINAL DEFENSE LAWYERS IN SUPPORT OF APPELLANT MICHAEL UFFERMAN Michael Ufferman Law Firm, P.A Raymond Diehl Road Tallahassee, Florida (850) /fax (850) FL Bar No ufferman@uffermanlaw.com Chair, FACDL Amicus Committee

2 Case: Date Filed: 04/02/2018 Page: 2 of 22 B. CERTIFICATE OF INTERESTED PERSONS AND CORPORATE DISCLOSURE STATEMENT The following certificate of interested persons and corporate disclosure statement is provided pursuant to Federal Rule of Appellate Procedure 26.1 and Eleventh Circuit Rules , , , and 28-1(b): Andrews, Barbara; victim Andrews, John; victim Baker, John D. II; victim Bentley, A. Lee III; Former United States Attorney Birk, Edward L.; Counsel for Graham Media Group, Florida, Inc. Bittel, Stephen; victim Brown, Corrine; Defendant/Appellant Brown, Shantrel; Movant CA Florida Holdings, Inc., dba The Florida Times-Union; Movant C.A.P. Contracting, Inc.; victim Caldwell, Leslie; Former Assistant Attorney General, United States Department of Justice Charter Communications (ticker symbol: CHTR); victim Chartrand, Gary; victim ii

3 Case: Date Filed: 04/02/2018 Page: 3 of 22 Community Leadership PAC, Inc.; victim Conner, Timothy, J.; Counsel for CA Florida Holdings, Inc. & Multimedia Holdings Corporation Coolican, Michael; Assistant United States Attorney Corrigan, Honorable Timothy J.; United States District Judge Cox Media Group Jacksonville; Movant Cronon, John P.; Acting Assistant Attorney General, United States Department of Justice CSX Coirporate Citizenship (ticker symbol: CSX); victim Delaware North Companies, Inc. Buffalo, NY; victim DeMaggio, Bryan E.; Former Counsel for Ms. Brown Duva, Andrew Tysen; Assistant United States Attorney Fingate, Lonya; victim Flooring with Dimensions, dba S.L. Gresham Co.; victim Florida East Coast Industries Company, LLC; victim Fugate, Rachel E.; Counsel for Cox Media Group Jacksonville Geraghty, Pat; victim Glober, Bonnie Ames; Assistant United States Attorney Graham Media Group, Florida, Inc., dba WJXT-TV4 & News4Jax.com; Movant iii

4 Case: Date Filed: 04/02/2018 Page: 4 of 22 Greenpoint Holdings, LLC; victim Greenspoon Marder; victim Haas, David L.; Former Counsel for Ms. Brown Hall, Loretta; victim Handberg, Roger Bernard III; Assistant United States Attorney Hoppmann, Karin B.; Assistant United States Attorney Hulser, Raymond N.; Former Chief, Public Integrity Sections, United States Department of Justice Kachergus, Matthew R.; Former Counsel for Ms. Brown Kent, William Mallory; Appellant Counsel for Ms. Brown Klindt, Honorable James R.; United States Magistrate Judge Lazzara, Gaspar; victim Lipsky, Richard; victim Lopez, Maria Chapa; United States Attorney Ludwig Family Foundation; victim Mansfield, Jennifer A.; Counsel for Multimedia Holdings Corporation & CA Florida Holdings, Inc. Marta Employees Charity Club; victim McFarland, Ryan E., Esquire iv

5 Case: Date Filed: 04/02/2018 Page: 5 of 22 Mills, Harry; victim Mills, Rosa; victim Muldrow, W. Stephen; Former Acting United States Attorney Multimedia Holdings Corporation, dba WTLV/WJXX First Coast News; Movant NeJame, Mark E.; Former Counsel for Ms. Brown Olshan, Eric; Assistant United States Attorney Orange Park Mitsubishi; victim Pajcic & Pajcic; victim Picerne, John G.; victim Rhodes, David P.; Assistant United States Attorney, Chief, Appellate Division Robinson, Sue-Ann N.; Counsel for Shantrel Brown Sheppard, William J.; Former Counsel for Ms. Brown Simmons, Elias; Co-defendant Simply Healthcare Plans, Inc.; victim Simpson, Allison Kirkwood; Counsel for Cox Media Group Jacksonville Smith, Daniel Austin; Former Counsel for Mr. Elias Simmons Smith, James Wesley III; Trial Counsel for Ms. Brown Stafftime, LLC; victim Stermon, Kent; victim v

6 Case: Date Filed: 04/02/2018 Page: 6 of 22 Suarez, Anthony; Counsel for Mr. Elias Simmons Tirol, AnnaLou; Acting Chief, Public Integrity Section, United States Department of Justice USSC, LLC; victim Walker, Samuel A.; Trial Counsel for Ms. Brown Ward, Michael; victim White, Elizabeth Louise; Former Counsel for Ms. Brown Wiggins, Janet; victim Wiggins, Sidney; victim Wilkison, Jesse B.; Former Counsel for Ms. Brown CORPORATE DISCLOSURE STATEMENT Amicus curiae Florida Association of Criminal Defense Lawyers ( FACDL ) is a non-profit entity. FACDL does not have a parent corporation, and no publicly held corporation owns ten percent or more of the organization. vi

7 Case: Date Filed: 04/02/2018 Page: 7 of 22 C. TABLE OF CONTENTS Page A. TITLE PAGE i B. CERTIFICATE OF INTERESTED PERSONS AND CORPORATE DISCLOSURE STATEMENT ii C. TABLE OF CONTENTS vii D. TABLE OF CITATIONS viii 1. Cases viii 2. Other viii E. CONSENT OF THE PARTIES TO FILE AN AMICUS BRIEF F. INTEREST OF AMICUS G. STATEMENT OF THE ISSUES H. SUMMARY OF ARGUMENT I. ARGUMENT AND CITATIONS OF AUTHORITY J. CONCLUSION K. CERTIFICATE OF COMPLIANCE L. CERTIFICATE OF SERVICE vii

8 Case: Date Filed: 04/02/2018 Page: 8 of Cases D. TABLE OF CITATIONS Page Allen v. State, 21 S.W.2d 527 (Tex. Crim. App. 1929) Commonwealth v. Perez, 569 N.E.2d 836 (Mass. App. Ct. 1991) Dickson v. Sullivan, 849 F.2d 403 (9th Cir. 1988) Marino v. Vasquez, 812 F.2d 499 (9th Cir. 1987) Morgan v. Illinois, 504 U.S. 719, 112 S. Ct (1992) North v. State, 65 So. 2d 77 (Fla. 1952) People v. Hamilton, 60 Cal. 2d 105 (Cal. 1963) People v. Morse, 388 P.2d 33 (Cal. 1964) People v. Tang, 2002 WL (Cal. Ct. App. Jan. 28, 2012) People v. Williams, 940 P.2d 710 (Cal. 1997) Riggs v. State, 809 N.E.2d 322 (Ind. 2004) State v. Rios, 314 S.W.3d 414 (Mo. Ct. App. 2010) Tanner v. United States, 483 U.S. 107, 107 S. Ct (1987) United States v. Hernandez-Escarsega, 886 F.2d 1560 (9th Cir. 1989) Other 11th Cir. R ii 11th Cir. R ii viii

9 Case: Date Filed: 04/02/2018 Page: 9 of 22 11th Cir. R ii 11th Cir. R. 28-1(b) ii Fed. R. App. P ii Fed. R. App. P. 29(a)(2) Fed. R. App. P. 32(a)(7)(C) Fed. R. Evid. 606(b) ix

10 Case: Date Filed: 04/02/2018 Page: 10 of 22 E. CONSENT OF THE PARTIES TO FILE AN AMICUS BRIEF Pursuant to Federal Rule of Appellate Procedure 29(a)(2), undersigned counsel represents that both parties have consented to FACDL filing an amicus brief in this case. 1

11 Case: Date Filed: 04/02/2018 Page: 11 of 22 F. INTEREST OF AMICUS 1 FACDL is a statewide organization representing over 1,500 members, all of whom are criminal defense practitioners. FACDL s unique body of real world experience and extraordinary depth and breadth of knowledge and training in the field of criminal law places it in a position to be of assistance to the Court in the disposition of the case at hand and in the consideration of its impact on cases in the future. 1 No party s counsel authored this brief in whole or in part. No party or party s counsel contributed money that was intended to fund preparing or submitting this brief and no persons contributed money that was intended to fund preparing or submitting this brief. 2

12 Case: Date Filed: 04/02/2018 Page: 12 of 22 G. STATEMENT OF THE ISSUES The district court erred by dismissing Juror Number 13. 3

13 Case: Date Filed: 04/02/2018 Page: 13 of 22 H. SUMMARY OF ARGUMENT The district court erred by dismissing Juror Number 13. A criminal defendant has a constitutional right to a trial by an impartial jury, and the removal of a qualified juror from the jury panel violates this constitutional right. Seeking guidance from God does not amount to jury misconduct and is not a basis to remove a juror who is otherwise qualified to serve. 4

14 Case: Date Filed: 04/02/2018 Page: 14 of 22 I. ARGUMENT AND CITATIONS OF AUTHORITY The district court erred by dismissing Juror Number 13. A criminal defendant has the right to have a qualified juror serve on his or her case. The unwarranted removal of a juror from a case violates this right especially when the removal occurs after deliberations have begun. In this case, Juror Number 13 was simply doing what the vast majority of all jurors and judges do in every single case: seeking guidance from God prior to rendering a decision. Thus, as explained below, FACDL submits that the district court erred by dismissing Juror Number 13. The Constitution guarantees a criminal defendant a trial by an impartial jury. See Morgan v. Illinois, 504 U.S. 719, 727, 112 S. Ct. 2222, 2228 (1992). As one court has held, [o]nce deliberations begin, discharge of a juror is warranted only in the most extreme situations where it can be shown that the removal of the juror is necessary for the integrity of the process, does not prejudice the deliberations of the rest of the panel, and does not impair the parties right to a trial by jury. Riggs v. State, 809 N.E.2d 322, (Ind. 2004) (emphasis added). See also People v. Williams, 940 P.2d 710, 763 (Cal. 1997) ( Before a trial court may excuse a juror for inability to perform the juror s functions, that inability must appear in the record as a demonstrable reality. ) (internal quotation and citation omitted). Another court has 5

15 Case: Date Filed: 04/02/2018 Page: 15 of 22 explained that The discharge of a deliberating juror is a sensitive undertaking and is fraught with potential for error. It is to be done only in special circumstances, and with special precautions.... The trial court has at most a limited discretion to determine that the facts show an inability to perform the functions of a juror, and that inability must appear in the record as a demonstrable reality. Commonwealth v. Perez, 569 N.E.2d 836, 837 (Mass. App. Ct. 1991) (internal quotation and citation omitted). As stated above, Juror Number 13 was simply doing what the vast majority of all jurors do in every single case seeking guidance from God prior to rendering a decision. The freedom to exercise one s religion is one of the bedrock principles upon which this country was founded. The law does not require that jurists leave their faith at the courthouse doors. Every day in this country, jurors are asked to render decisions in criminal and civil trials in state and federal courtrooms, and a substantial portion of those jurors seek guidance from their Creator when making these tough decisions (just as they do when making every other important decision in their lives). Removing a juror simply because the juror seeks guidance from God violates the right of a criminal defendant to have qualified jurors resolve a case without unwarranted judicial intervention. Courts in this country have rejected the argument that error has occurred after it was discovered that jurors in a case sought guidance from God. For example, in 6

16 Case: Date Filed: 04/02/2018 Page: 16 of 22 Allen v. State, 21 S.W.2d 527, (Tex. Crim. App. 1929), the court held that there was no basis to set aside the verdict simply because the jurors prayed for divine guidance before discussing the case or taking a vote: With reference to the allegation as to the prayer, the record shows that E. B. Gude was elected foreman; that the jury finally voted ten for the death penalty and two for a penitentiary sentence and the Gude was one of these two; that immediately after Gude was elected foreman, and before any discussion of the case by the jury occurred, and long before any vote was taken, he called for a prayer. Juror O Brien described the scene as follows: You could have heard a pin drop I guess, all was quiet in a moment or two. Gude took his hands from his eyes and there were tears in his eyes. That is what occasioned the remark... and Mr. Gude called for the prayer. Mr. Gude, the words he used in calling for the prayer was, I want us to pray... The prayer was for divine guidance. This was the only prayer offered. The record not only fails altogether to sustain the allegations of the motion setting up this matter, but it was affirmatively shown that nothing of a prejudicial nature occurred during said prayer. It will be noted that Gude himself called for it. The prayer does not appear to have been used as a Pharisaical cloak to cover an argument against appellant. In the state of this record we are of the opinion that no possible injury could have happened to appellant from such proceedings. (Emphasis added). More recently, a court refused to set aside a verdict based on the allegation that a juror based her verdict on a sign from God, concluding that such a matter is intrinsic rather than extrinsic : After the verdict was returned, Hernandez filed a motion for new trial based upon the affidavit of Audrey Giles, one of the jurors in the 7

17 Case: Date Filed: 04/02/2018 Page: 17 of 22 case. In her affidavit, Giles states that on the final morning of the jury s deliberations one of the other jurors commented that she hoped a third, unnamed juror would wear his blue blazer that day. After the jury reached its verdict, Giles was told the following: (1) that one of the jurors had prayed to God that another juror, Walter Geudtner, would change his vote from not-guilty to guilty; (2) that this juror had asked for and received a sign from God that her prayers had been heard and that Mr. Geudtner would change his vote; and (3) that the sign would be that Mr. Geudtner would be wearing his blue blazer to court on a particular day. Hernandez claims that the introduction of this sign from God into the jury deliberations impermissibly tainted the verdict. He asked for an evidentiary hearing so that this matter could be explored further, but the district court denied his request. A defendant is entitled to a new trial when the jury obtains or uses evidence that has not been introduced during trial if there is a reasonable possibility that the extrinsic material could have affected the verdict. Dickson v. Sullivan, 849 F.2d 403, 405 (9th Cir. 1988) (quoting Marino v. Vasquez, 812 F.2d 499, 504 (9th Cir. 1987)). Rule 606(b) of the Federal Rules of Evidence, however, prohibits the use of juror testimony to impeach a verdict when that testimony relates to intrinsic matters that is, the internal, mental processes by which the verdict was reached. See Tanner v. United States, 483 U.S. 107, , 107 S. Ct. 2739, (1987). Whether the juror was literally inside or outside the jury room when the irregularity occurred has no bearing on the determination that a particular influence was external or internal. Id. at 117, 107 S. Ct. at In the present case, the district court did not err in refusing to hold an evidentiary hearing on the sign-from-god matter. All that has been alleged is that one of the jurors used prayer and a belief in a sign from God as part of her mental process. Nothing in the declaration indicates that any of the other jurors were told or became aware that a sign from God would be manifested in one juror s wearing a blue blazer while they were still deliberating. Thus, the affidavit does not establish that the verdict was improperly influenced by an extrinsic matter. In such circumstances, an evidentiary hearing was unnecessary. United States v. Hernandez-Escarsega, 886 F.2d 1560, 1579 (9th Cir. 1989) (emphasis added) (footnote omitted). 8

18 Case: Date Filed: 04/02/2018 Page: 18 of 22 Finally, in North v. State, 65 So. 2d 77 (Fla. 1952), the court found no juror misconduct where a preacher met with the jury at breakfast and prayed, God, give these men your divine guidance in their duties. At the conclusion of the opinion, the court stated the following: The oath of every officer of this State, from Governor to Constable, concludes with the words So help me God. The oath of the juror concludes with the same words. Those who do not believe in the existence of a Deity may affirm instead of taking the oath. To most of us, everything around us proclaims and is evidence of the existence of a Divine Being. After having taken the oath, concluding with the words, So help me God, it was natural that the jurors would, of their own free will and accord, ask a preacher to Grace the table and to read a passage from the Bible. It was not reversible error for the preacher to respond and read a Psalm and pray for Divine guidance. The scripture reading and prayer did not constitute harmful or reversible error in this case. North, 65 So. 2d at 101. As in North, in the instant case, Juror Number 13 was not guilty of misconduct for seeking Divine guidance. See also State v. Rios, 314 S.W.3d 414, 418 (Mo. Ct. App. 2010) (finding no error in a case where a juror commented that she was confident that by virtue of her prayers, God was leading her in the right direction ). While it has been said repeatedly... that a defendant is not entitled to be tried by a jury composed of any particular individuals, but only by a jury composed of qualified and impartial jurors, this does not mean that either side is entitled to have removed from the panel any qualified and acting juror who, by some act or remark 9

19 Case: Date Filed: 04/02/2018 Page: 19 of 22 made during the trial, has given the impression that he favors one side or the other. People v. Hamilton, 60 Cal. 2d 105, 128 (Cal. 1963), overruled on other grounds in People v. Morse, 388 P.2d 33 (Cal. 1964). It is obvious that it would be error to discharge a juror for such a reason, and that, if the record shows (as it does here), that, based on the evidence, that juror was inclined toward one side, the error in removing such a juror would be prejudicial to that side. Id. The erroneous removal of a juror at the behest of the prosecution and over the objections of the defense after the juror has made a comment that might be viewed as sympathetic to the defense is clearly prejudicial and requires reversal of the judgment. People v. Tang, 2002 WL at *13 (Cal. Ct. App. Jan. 28, 2012) (unreported). In the instant case, Appellant Brown was prejudiced by the erroneous removal of Juror 13. Accordingly, for the reasons set forth above, the district court erred by dismissing Juror Number

20 Case: Date Filed: 04/02/2018 Page: 20 of 22 J. CONCLUSION The appropriate remedy is reversal of Appellant Brown s conviction and sentence and a remand with directions that the district court conduct a new trial. 11

21 Case: Date Filed: 04/02/2018 Page: 21 of 22 K. CERTIFICATE OF COMPLIANCE Undersigned counsel hereby certifies pursuant to Federal Rule of Appellate Procedure 32(a)(7)(C) that this brief complies with the type-volume limitation. The number of words in this brief is approximately 3,

22 Case: Date Filed: 04/02/2018 Page: 22 of 22 L. CERTIFICATE OF SERVICE I HEREBY CERTIFY a true and correct copy of the foregoing instrument has been furnished to: Assistant United States Attorney David P. Rhodes Chief, Appellate Division 400 North Tampa Street, Suite 3200 Tampa, Florida William Mallory Kent, Esquire 24 North Market Street, Suite 300 Jacksonville, Florida by U.S. mail delivery this 2nd day of April, Respectfully submitted, /s/ Michael Ufferman MICHAEL UFFERMAN Michael Ufferman Law Firm, P.A Raymond Diehl Road Tallahassee, Florida (850) /fax (850) FL Bar No ufferman@uffermanlaw.com Chair, FACDL Amicus Committee 13