United States v. Brown, 17-15470

996 F.3d 1171

UNITED STATES of America, Plaintiff-Appellee,

v.Corrine BROWN, Defendant-Appellant.

No. 17-15470

United States Court of Appeals, Eleventh Circuit.

May 6, 2021

David Paul Rhodes, U.S. Attorney Service - Middle District of Florida, U.S. Attorney's Office, TAMPA, FL, Eric G. Olshan, U.S. Department of Justice, Criminal Division, WASHINGTON, DC, for Plaintiff - Appellee.

William Mallory Kent, Kent & McFarland, JACKSONVILLE, FL, Paul D. Clement, Erin E. Murphy, Kirkland & Ellis, LLP, WASHINGTON, DC, David J. Hacker, Jeffrey Carl Mateer, Lea Patterson, Keisha Russell, Hiram S. Sasser, Kelly J. Shackelford, First Liberty Institute, PLANO, TX, James Wesley Smith, III, CPLS, PA, ORLANDO, FL, for Defendant - Appellant.

Michael Robert Ufferman, Michael Ufferman Law Firm, PA, TALLAHASSEE, FL, for Amicus Curiae FLORIDA ASSOCIATION OF CRIMINAL DEFENSE LAWYERS.

James A. Campbell, Attorney General's Office, LINCOLN, NE, for Amici Curiae STATE OF NEBRASKA, STATE OF ARKANSAS, STATE OF GEORGIA, STATE OF KENTUCKY, STATE OF LOUISIANA, STATE OF MISSISSIPPI, STATE OF SOUTH DAKOTA, and STATE OF TEXAS.

Malcolm E. Whittaker, Whittaker Law Firm, HOUSTON, TX, for Amicus Curiae TANYA MARIE LUHRMANN.

Benjamin Paul Sisney, American Center for Law & Justice, WASHINGTON, DC, for Amicus Curiae AMERICAN CENTER FOR LAW AND JUSTICE.

Before WILLIAM PRYOR, Chief Judge, WILSON, MARTIN, JORDAN, ROSENBAUM, NEWSOM, BRANCH, GRANT, LUCK, LAGOA, and BRASHER, Circuit Judges.^*

WILLIAM PRYOR, Chief Judge, delivered the opinion of the Court, in which NEWSOM, BRANCH, GRANT, LUCK, LAGOA, and BRASHER, Circuit Judges, joined.

NEWSOM, Circuit Judge, filed a concurring opinion, in which GRANT, Circuit Judge, joined.

BRASHER, Circuit Judge, filed a concurring opinion, in which BRANCH, Circuit Judge, joined.

WILSON, Circuit Judge, filed a dissenting opinion, in which MARTIN, JORDAN, and ROSENBAUM, Circuit Judges, joined.

ROSENBAUM, Circuit Judge, filed a dissenting opinion, in which WILSON and MARTIN, Circuit Judges, joined.

WILLIAM PRYOR, Chief Judge:

This appeal requires us to decide whether a district judge abused his discretion by removing a juror who expressed, after the start of deliberations, that the Holy Spirit told him that the defendant, Corrine Brown, was not guilty on all charges. The juror also repeatedly assured the district judge that he was following the jury instructions and basing his decision on the evidence admitted at trial, and the district judge found him to be sincere and credible. But the district judge concluded that the juror's statements about receiving divine guidance were categorically disqualifying. Because the record establishes a substantial possibility that the juror was rendering proper jury service, the district judge abused his discretion by dismissing the juror. The removal violated Brown's right under the Sixth Amendment to a unanimous jury verdict. We vacate Brown's convictions and sentence and remand for a new trial.

I. BACKGROUND

In 2016, a federal grand jury indicted former Congresswoman Corrine Brown for several fraud, ethics, and tax offenses. It charged that Brown and two others conspired to defraud donors of more than $800,000 in contributions to a charitable organization that purported to provide scholarships to poor students. And it charged that Brown misused her position as a member of the United States House of Representatives in furtherance of the conspiracy. Brown demanded a trial by jury.

In 2017, ordinary citizens residing throughout the Jacksonville Jury Division of the Middle District of Florida assembled in the federal courthouse in Jacksonville and constituted a venire. For nearly three days, a magistrate judge and the parties selected jurors from the venire for Brown's trial. During voir dire, the magistrate judge asked the prospective jurors several questions about their qualifications to serve. Among these questions he asked, "Do any of you have any political, religious, or moral beliefs that would preclude you from serving as a fair, impartial juror in this case?" Juror No. 13 did not raise his hand. The magistrate judge also asked, "Do any of you have any religious or moral beliefs that you believe would preclude you from serving as a juror because ... it would involve sitting in judgment of another person?" Again, Juror No. 13 did not raise his hand.

When jurors were selected and seated, the courtroom deputy administered the traditional oath to the jury: "Do each of you solemnly swear that you will well and truly try the case now before this court and render a true verdict, according to the law, evidence, and instructions of this court, so help you God?" Juror No. 13 swore he would.

Trial began. The parties presented witnesses and evidence for eight days. The jury heard closing arguments for and against conviction.

The district judge next delivered the charge to the jury. He instructed the jurors that their decision "must be based only on the evidence presented during the trial." By "evidence," he meant "the testimony of witnesses and the exhibits admitted." And it was incumbent upon the jurors to decide whether each piece of evidence was "true or accurate" and whether to "believe what each witness had to say."

The district judge instructed each juror that he was required to "follow the law as [he] explain[ed] it—even if [the juror did] not agree with the law." No juror could "single out or disregard any of the court's instructions on the law." The jury had to "follow all of [the] instructions as a whole."

"The law presumes every defendant is innocent," the judge reminded these jurors. And he explained that the government bore the burden of proving Brown's "guilt beyond a reasonable doubt" as to each of the charges against her. He clarified what that familiar phrase meant: that the government's proof "ha[d] to exclude any ‘reasonable doubt’ "—that is, "a real doubt, based on [each juror's] reason and common sense after [he had] carefully and impartially considered all the evidence in the case"—of her guilt. The proof had to be "so convincing that [each juror] would be willing to rely and act on it without hesitation in the most important of [his] own affairs." "If you are not convinced," the judge told the jurors, "say so."

Each juror had to "decide the case for [himself]," the judge continued, "but only after fully considering the evidence with ... the other jurors." The jurors were required to "discuss the case with one another and try to reach an agreement." The judge told each juror not to "hesitate to reexamine your own opinion and change your mind if you become convinced that you were wrong" as the jurors deliberated. "But," he said, "don't give up your honest beliefs just because others think differently." Each juror was a judge of the facts whose task was "to seek the truth from the evidence in the case."

The jury left the courtroom to begin its deliberations that afternoon. Deliberations, as far as the judge could tell, "progress[ed] smoothly." But an unusual situation arose the next day.

On the evening of the second day of deliberations, Juror No. 8 called the courtroom deputy to express concerns that another juror was talking about "higher beings." Juror No. 8 "said that she was calling on her own behalf, but thought that other jurors were concerned as well." The deputy promised to inform the judge, who brought the issue to the parties’ attention overnight.

The next morning, the judge conferred with the parties about how to proceed. He observed that, unlike in cases where a dismissal of a deliberating juror was affirmed, there was no suggestion of any problems with deliberations. The parties thought more information was needed, and the judge reluctantly agreed. So he followed their suggestion to interview Juror No. 8.

In a sealed courtroom, Juror No. 8 identified Juror No. 13 as the subject of her concerns. She offered the judge a letter that expressed her concerns about Juror No. 13's speaking of divine guidance regarding Brown's innocence:

Your Honor

With all due respect, I'm a little concerned about a statement made by Juror #13 when we began deliberation. He said "A Higher Being told me Corrine Brown was Not Guilty on all charges". He later went on to say he "trusted the Holy Ghost". We all asked that he base his verdict on the evidence provided, the testimony of the witnesses and the laws of the United States court. Other members of the Jury share my concern.

Thank You,

Juror #8

The judge asked Juror No. 8 to elaborate on Juror No. 13's statements, and Juror No. 8 explained that the statements were made only at the beginning of deliberations:

THE COURT: When were those comments made?

JUROR [No. 8]: The first one was when we first went into deliberation. ... And the second one, shortly after, maybe within a few hours after.

But Juror No. 8 then explained that the jury had been deliberating without any problem afterward:

THE COURT: Has this juror expressed that view again?

JUROR [No. 8]: No, sir.

THE COURT: To your observation, has that juror been deliberating?

JUROR [No. 8]: Yes.

THE COURT: Is there anything about the situation as it stands right now that's interfering with your ability to deliberate in the way that the court has directed in the instructions?

JUROR [No. 8]: No, sir. Not at all. I was more concerned that it was going to interfere in his ability to do that.

After the government asked for clarification about the timing of the second comment, the judge confirmed the timing and similarity of Juror No. 13's statements:

THE COURT: Okay. Ma'am, you said that this comment was made twice. Was the comment similar both times?

JUROR [No. 8]: Yes. And it was—yes.

THE COURT: Okay. All right. And when was the—the first comment you said was shortly after deliberations began; is that correct?

JUROR [No. 8]: The first comment is basically right when deliberation began.

THE COURT: And then when in point of time was the second comment?

JUROR [No. 8]: That same day, just maybe a couple of hours after.

THE COURT:

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