United States v. Diaz

UNITED STATES OF AMERICA v. ALBERT DIAZ

CRIMINAL NO. 2:17-CR-31-KS-JCG

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF MISSISSIPPI EASTERN DIVISION

June 5, 2018

MEMORANDUM OPINION AND ORDER

For the reasons below, the Court denies Defendant's Motion for New Trial [100] and likewise denies Defendant's Motion for Revocation or Amendment [97] of the Magistrate Judge's Order [86] denying bond pending sentencing.

I. BACKGROUND

Defendant was indicted on sixteen counts of various crimes related to a conspiracy to defraud Tricare, a federal health care benefit program. Specifically, Defendant was charged with 1) conspiring to commit wire fraud; 2) conspiring to defraud Tricare; 3) four counts of wire fraud; 4) conspiring to distribute a Schedule III controlled substance outside the scope of professional practice and without a legitimate medical purpose; 5) four counts of distributing a Schedule III controlled substance outside the scope of professional practice and without a legitimate medical purpose; 6) conspiring to falsify entries in patient files and/or Tricare audit forms with the intent of impeding or obstructing a federal grand jury investigation; and 7) five counts of falsifying entries in patient files and/or Tricare audit forms with the intent of impeding or obstructing a federal grand jury investigation. On March 2, 2018, a jury of Defendant's peers found him guilty on all sixteen counts.

On March 6, 2018, Defendant filed a Motion for Bond [79] pending sentencing, which the Government opposed. The Magistrate Judge held a bond hearing, and on March 13, 2018, he denied [86] Defendant Motion for Bond [79]. The Magistrate Judge found that Defendant had not presented sufficient evidence to overcome the presumption against granting bond after conviction. Specifically, he found that Defendant had not established that there was a substantial likelihood that a motion for new trial would be granted, or presented clear and convincing evidence that he was neither a flight risk nor a danger to the community.

On March 23, 2018, Defendant filed a Motion for Revocation or Amendment [97] of the Magistrate Judge's order denying his Motion for Bond. The Court construed the motion as seeking the District Judge's review of the Magistrate Judge's Order [86] denying bond pending sentencing. On April 5, 2018, Defendant filed a Motion for New Trial [100]. Both motions are ripe for the Court's review.

II. MOTION FOR NEW TRIAL [100]

"Upon the defendant's motion, the court may vacate any judgment and grant a new trial if the interest of justice so requires." FED. R. CRIM. P. 33(a). Rule 33 "goes to the fairness of the trial rather than to the question of guilt or innocence." United States v. McRae, 795 F.3d 471, 481 (5th Cir. 2015). "[D]istrict courts have wide discretion with respect to Rule 33 motions." United States v. Mahmood, 820 F.3d 177, 190 (5th Cir. 2016). However, "Rule 33 motions are disfavored and reviewed with great caution." United States v. Pratt, 807 F.3d 641, 645 (5th Cir. 2015). "Generally, . . . the trial court should not grant a motion for new trial unless there would be a miscarriage of justiceor the weight of evidence preponderates against the verdict." United States v. Wall, 389 F.3d 457, 466 (5th Cir. 2004).

A. Implied Juror Bias

First, Defendant argues that the Court should have imputed bias to the jury and declared a mistrial. Specifically, Defendant contends that the events on the final day of trial related to Juror 1 created in every other juror a substantial emotional involvement in the case which adversely affected their impartiality. But the facts do not support Defendant's argument.

1. What Happened

After the jury instruction conference on the final day of trial, the Court Security Officer ("CSO") informed the undersigned judge's staff that one of the jurors - Juror 1 - was upset and crying in the bathroom because she believed she had been threatened by the Defendant's family. The Court immediately sequestered Juror 1 from the rest of the jury and began an inquiry. Transcript of Jury Trial Vol. V at 42, United States v. Diaz, No. 2:17-CR-31-KS-JCG (S.D. Miss. May 2, 2018), ECF No. 110. Juror 1 stated that when she went through the security checkpoint on Thursday, two ladies who had been sitting behind Defendant were in line ahead of her. Id. at 42-43. The CSO did not recognize Juror 1 until she had already gone through the metal detector. Id. at 43-44. He explained, "I thought you were with them," referring to the two ladies in line ahead of Juror 1. Id. at 44. Juror 1 answered, "No," but according to her, one of the ladies said, "Yes, she is. She's with us." Id.

This comment made Juror 1 uncomfortable because she recognized them from the courtroom. Id. She explained:

So I thought about it all day yesterday and just kind of said, well, maybe, you know, it's nothing. But I had just an uneasy instinct . . . about it. And I just felt like y'all needed to know. But I held off yesterday. But this morning I did mention it to some of the ones in there, . . . and I said, I'm going to hang with y'all. I wasn't discussing anything; I was just saying I felt uncomfortable coming in the building.

Id. But she specifically denied having attributed her discomfort to the Defendant when speaking with the other jurors. Id. at 44-45. Juror 1 then told the Court that two of the other jurors waited for her outside the courthouse, and one of them said to her as she walked up, "We were waiting on you." Id. at 45. She mistook the other jurors for the ladies from the security checkpoint the day before, and she reported it to the CSO because she "felt very uncomfortable." Id. at 46. However, she admitted that nobody actually threatened her. Id. at 47, 51. In the end, Juror 1 claimed that she had told the other jurors that she felt "uncomfortable going out of the courthouse," id. at 47, 49, but she denied having attributed her discomfort to the Defendant. Id. at 44-45, 49. The Court then excused Juror 1 from jury service. Id. at 49-50.

To determine whether the jury had been tainted, the Court continued its inquiry by speaking with the rest of the jury as a group. Id. at 53. When the Court asked whether Juror 1 had spoken with anyone about her reason for being upset, multiple jurors nodded affirmatively. Id. One juror answered: "She said . . . that she thought that Diaz and I guess his wife came up behind her. . . . And we, we picked at her a little bit." Id. Juror 4, one of the ladies who waited outside the courthouse for Juror 1,answered:

We . . . were waiting in the parking lot because we didn't want her to be paranoid like she was yesterday. So we waited in the parking lot for her to get out of her truck . . . . As she come by and I said, we were waiting on you to walk in, and she didn't even say anything to us. She just went by us. . . . I guess she thought I was somebody - one of the dark-haired ladies on Diaz's side or something. And she didn't wait for us or anything.

Id. at 53-54. According to the other jurors, Juror 1 did not realize that the two ladies waiting for her outside the courthouse were, in fact, other jurors. Id. at 55.

Juror 6 then told the Court that Juror 1 had described "a man, a gray-headed man . . . in the stairwell." Id. at 57. Another Juror continued: "[S]he said somebody entered the stairwell, . . . and it was a man . . . . She told us it was yesterday morning and night before last, . . . and they came up from behind her from the stairwell." Id. According to the jurors, Juror 1 never said it was the Defendant, but they "felt like that's what she was leading on about." Id.

The Court then informed the attorneys of what the jurors had said. Id. at 58-59. Defendant's counsel immediately moved for a mistrial, but the Court deferred ruling. Id. at 59. Instead, the Court spoke with each remaining juror individually, on the record, with one attorney from each side present. Id. at 61. The Court also took recommendations from each side's attorneys regarding what questions to ask. Id. at 61-65. After the Court examined each juror individually, Defendant's counsel again moved for a mistrial, and the Court denied the motion. Id. at 100-01. The Court ruled that Juror 1 would be released from service and escorted from the courthouse to ensure no further contact with the remaining jurors. Id. at 101.

After a brief recess, Defendant's counsel brought to the Court's attention precedent requiring the Court to examine each juror under oath, and to permit the attorneys to examine them. Id. at 102-04; see United States v. Sylvester, 143 F.3d 923, 935 (5th Cir. 1998) ("Counsel for both sides shall be given the opportunity to examine the jurors on the record, under oath.").¹ Therefore, the Court re-examined each juror under oath² and gave counsel for the Government and Defendant an opportunity to question each of them. Transcript Vol. V [110], at 108-61. After the additional examination had concluded, Defendant's counsel renewed the motion for a mistrial, and the Court denied it. Id. at 160-61. The Court held: "There's been nothing that shows anything other than this lady was, unfortunately, . . . just overly anxious and paranoid, and she jumped to some conclusions . . . that were baseless." Id. at 161.

2. What the Other Jurors Said

Rather than provide a full account of each juror's testimony, the Court will provide relevant highlights:

• Juror 2 said that Juror 1 "thought that somebody was trying to follow her up the stairs or something. She kept saying a man with white hair . . . ," but she did not identify the person as Defendant. Id. at 122. But Juror 2 denied that she had felt any intimidationor that anyone had tried to intimidate her. Id. at 72. She said that all the other jurors "thought that [Juror 1] was being a little paranoid because . . . she was nervous about the case." Id. at 73. She said that Juror 1 was embarrassed at having believed that two of the other jurors were other persons trying to follow her.

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