United States v. Briscoe

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UNITED STATES OF AMERICA, Plaintiff, v. JASON P. BRISCOE, Defendant.

Nos. 18-10031-EFM, 22-1116-EFM

United States District Court, D. Kansas

April 19, 2023

MEMORANDUM AND ORDER

ERIC F. MELGREN, CHIEF UNITED STATES DISTRICT JUDGE.

A jury convicted Defendant Jason P. Briscoe of multiple drug and firearm offenses, and has been sentenced to 220 months imprisonment. His conviction was affirmed on appeal. The matter is now before the Court on Defendant's Motion to Vacate his sentence under 28 U.S.C. § 2255, which argues that his constitutional rights were violated when a Court Information Technology (IT) specialist entered the jury room and showed the jury how to operate video equipment. (Doc 138). In addition, Defendant has moved for full discovery and an evidentiary hearing (Doc. 139), and has moved to strike the Government's most recent responsive pleading. (Doc 164). For the reasons explained in the present Order, the Court denies the motions.

I. Factual and Procedural Background

The Government charged Defendant Jason P. Briscoe with one count of possession of methamphetamine,^[1] two counts of possession of a firearm in furtherance of a drug trafficking crime,^[2] and six counts of possession of possession of ammunition or a firearm by a felon.^[3] On May 3, 2019 after a three-day trial, the jury convicted Defendant on all nine counts.

On appeal, the Tenth Circuit determined that Defendant could not be sentenced on more than one of the respective armed drug trafficking (§ 924(c)) and felon-in-possession charges (§ 924(g)) offenses. Accordingly, on May 5, 2021, the Court entered an Amended Judgment reflecting Defendant's conviction of Counts 1, 2 and 4, and resentenced him to a term of imprisonment of 220 months.

In his Motion to Vacate, Defendant presents the statement of the attorney who was appointed to represent him during the trial. After the trial was concluded, consistent with the usual practice of the Court, the attorneys for the parties were invited to consult with jurors as to what each might have found persuasive or unpersuasive. Defendant's former counsel states that during this session she learned that the jury at some point wished to review video evidence in slow motion, “essentially frame-by-frame,” and asked for assistance in operating the equipment in the jury room. Counsel states that she was not aware of the request, and states that the video had not been shown during the trial in such a fashion. Former counsel states that she then conducted no further investigation or research into the issue.

At trial, the Government had presented evidence relating to Defendant's March 6, 2018 arrest, including his flight from officers and the subsequent discovery of a firearm along his flight path. About three hours after the arrest, officers searching the flight path also found a maroon bag with drugs, ammunition, and another gun. The bag was found in a hole in the skirting of a trailer along the flight path.

The Government also presented a video extracted from a cellphone Defendant had during his flight. The video depicts a woman in a room containing what appear to be two firearms on a table, among other items. The Government also presented two still photos from the video, and Defendant has stipulated that his legs were the legs depicted in the bottom of one of the photos.

After the Motion, the Court conducted an extensive hearing on how to address the issues raised, seeking to balance both Defendant's interest in discovering what occurred at this stage of the trial, with the right of the jurors to avoid intrusion into their privacy of their deliberations. This concern was coupled with the strong likelihood that-unless something truly unusual or in contradiction to the Court's directions on deliberations occurred-the jurors would be unlikely to remember little of a technical explanation of how to operate video equipment some three years later.

Federal Rule of Evidence 606(b) limits the admissibility of evidence of a jury's deliberations. Under Rule 606(b)(1):

During an inquiry into the validity of a verdict or indictment, a juror may not testify about any statement made or incident that occurred during the jury's deliberations; the effect of anything on that juror's or another juror's vote; or any juror's mental processes concerning the verdict or indictment. The court may not receive a juror's affidavit or evidence of a juror's statement on these matters.

However, a juror may provide sworn testimony as to “whether . . . an outside influence was improperly brought to bear on any juror.”^[4]

The Court allowed the jurors to be contacted by letter to determine whether each would agree to be interviewed about their experiences. The jurors agreeing were then interviewed jointly by representatives for the parties.

The parties have submitted a stipulation which sets forth the results of their contacts with the six jurors who agreed to be interviewed. As to the relevant time, the parties stipulate:

8. One juror explained that there was a problem getting the video to work, but she could not recall what the specific problem was. Another juror remembered that the jury needed help with the video, but she did not remember why. Another juror remembered “a tech issue” with the video, but could not recall what the problem was. Another juror remembered the jury “having trouble” watching the video and thought the problem was that it wouldn't play at all.

9. One juror thought that the jury asked a question by writing it down and then knocking on the door to the jury room. She did not remember who took the questions from the jury or how the questions were answered. Another juror thought the jury wrote their questions and then “got ahold of court staff somehow,” though she wasn't sure if that contact was made by calling or some other way. This juror did not think that anyone was stationed outside of the jury room door. Another juror thought the jury “called someone” when it had a question and then wrote the question down. This person did not remember there being anyone seated outside the jury room door.

10. The jurors generally reported that a male “tech person” or “IT person” came into the jury room in response to their request for help to show the jurors how to work the video. One juror described the person as a different person from the bailiff. Another juror reported that he did not think anyone besides the IT person was in the room while the problem was being fixed.

11. One juror reported that a man came into the jury room and fixed the problem, and that it took 15 or 20 minutes to fix, definitely “less than thirty minutes.” He said the jury “sat around” in the jury room during this time, but he did not remember whether the jury continued to discuss the case while the video problem was being fixed.

12. Another juror reported that it took the person maybe 10 minutes to fix the problem with the video. This juror could not remember what the jury was doing while the person fixed the problem with the video but he thought the jury wasn't supposed to talk about the case.

13. Another juror reported that she didn't know if the man said anything or how long he stayed; she guessed maybe 5 minutes.

14. Another juror reported that she didn't think the person stayed very long but isn't sure how long he was in the jury room. She thought he helped the jury work the equipment and then left.

16. The jurors watched the video “many” times, “twenty times maybe.” They stopped and started it many times, and watched it frame-by-frame.

17. One juror remembered someone on the jury, possibly the foreman, worked the video system and stopped and started the video while the jury viewed it together. Another juror also reported that one of the jurors worked the video equipment.

18. Law clerk Alex Rindels served as bailiff at Mr. Briscoe's trial. Mr. Rindels was interviewed in October 2022. Mr. Rindels reported that he does not believe that he was sworn in for the Briscoe trial or any other trials he participated in for the Court as a law clerk or bailiff. Mr. Rindels did not independently recall whether or not there were any jury questions in the Briscoe trial. He did recall receiving a call to his direct line from a deliberating jury that asked for help with a video. He could not say for sure whether or not it was the Briscoe trial. Mr. Rindels recalled calling Matt Koochel, the Court's IT workleader, because he considered the request for help with a video to be an IT request. After he called Mr. Koochel, he did not hear anything further about the matter and assumed it was handled.

19. Matt Koochel, the Court's IT workleader, was interviewed in October 2022. Mr. Koochel did not have a specific memory of helping a jury slow down a video. He did not recall a time where he was ever alone with jurors in the jury room. He did not recall the Briscoe trial specifically. According to Mr. Koochel, in the normal course of events when he is contacted about a technical issue in the jury room, he would be accompanied by the clerk or someone else from chambers. He did not recall training or instruction about contact with jurors.

20. The jurors' mid-deliberations request for help viewing a video was not brought to the attention of counsel for either the government or Mr. Briscoe before the jury returned its verdict.^[5]

In his Motion to Vacate, Defendant argues that the entry of the IT technician into the jury room “during deliberations” violated his right to an impartial jury (2) violated his right to be present at critical stages of the trial, a right protected by Due Process and the Rules of Criminal Procedure^[6]; (3) violated his Sixth Amendment right to counsel; and (4) violated his Due Process right to fundamental fairness. He also argues (5) that...