UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

UNITED STATES, )

APPELLEE, )

)

v. ) Case No: 03-3369

) Dist/AG

WILLIAM LEONARD PICKARD, ) docket: 00-CR-40104-01-RDR

and CLYDE APPERSON, )

APPELLANTS, ) Case No: 03-3368

) Dist/AG

) docket: 00-CR-40104-02-RDR

SUPPLEMENTAL MOTION TO REMAND TO TRIAL COURT FOR THE LIMITED PURPOSE OF GRANTING A NEW TRIAL BASED ON NEWLY DISCOVERED EVIDENCE OF JUROR MISCONDUCT PURSUANT TO FEDERAL RULE OF CRIMINAL PROCEDURE 33

COMES NOW, the Appellants, William Leonard Pickard, by and through his counsel, William K. Rork, of RORK LAW OFFICE, and also joining in this motion, Appellant, Clyde Apperson, by and through his counsel, Mark L. Bennett, and in support of this “SUPPLEMNTAL MOTION TO REMAND TO TRIAL COURT FOR THE LIMITED PURPOSE OF GRANTIG A NEW TRIAL...” incorporating herein the same facts and authorities as stated in their original motion, would additionally, advise the Court as follows:

SUPPLEMENTAL FACTS

During voir dire examination conducted by Gregory Hough, (AUSA), of Clyde Cochran, potential juror, immediately before the voir dire examination of Scott Lowry (jury foreperson), Mr. Hough asks Cochran about his children and grand children, and whether any of them are studying to be in the legal profession or law enforcement, and he responds, “no.” (ROA, Vol. 59, page 308, L. 11-12). Hough asks Cochran a question regarding his

experience with negotiating contracts for the Kansas Children’s Services League, and when negotiating contracts, if he has legal background, and Cochran responds in the negative. (ROA, Vol. 59, page 323, L. 5-7).

In the ROA, Vol. 60, page 429, beginning on line 5, during the voir dire examination by Hough, of potential juror Janet Wehrley, the question is posed “You recall the questions and were you able to hear the questions that have been asked to the other panel members over the last two days?” and Wehrley responds, “yes.” Hough inquires on line 9, “you’re smiling?” and she responds, “It’s because I think I know them by heart.” This question and answer portion, conducted right after the examination of Lowry exemplifies the fact that jurors heard the kinds of questions that were being asked, and as such, Lowry must have known when questioned immediately before, that he should indicate that he is in fact an attorney and went to Washburn University Law School.

The same question “Do you have any or does anyone in your family have any legal training or background,” was posed to other potential jurors, Anita McLean and James Mason, during voir dire examination by Bennett, immediately after the voir dire examination of Juror Lowry. (ROA, Vol. 60, page 444, L. 14-15, and ROA, Vol. 60, page 455, L. 2-3). At this point, Lowry must have known that he was required to come forward with the fact that he was an attorney. Lowry was prompted several times, both before and after his examination to indicate that he had legal training and experience, yet he kept this information to himself, and did not reveal his qualifications.

The questions were posed to the above named potential jurors immediately after Hough asks, foreperson Lowry, “Now, sir, the questions that have been asked today and yesterday, did you hear the questions that I have asked and the two defense attorneys have asked?” Lowry responds, “Yes.” Hough asks, “Any of those that would require any explanation?” Lowry responds, “No. (ROA, Vol. 59, page 295, L. 1-23). Based on the questions immediately following Lowry’s examination, he must have known, as an attorney and officer of the court, that he should then have at least come forward with the fact that he was an attorney.

SUPPLEMENTAL ARGUMENTS AND AUTHORITIES

The Sixth Amendment, made applicable to the states through the Fourteenth Amendment, requires that a state provide an impartial jury in all criminal prosecutions. Jones v. Cooper, 311 F.3d 306, 310, (4^th Cir. 2002), citing Irvin v. Dowd, 366 U.S. 717, 722, 6 L.Ed. 2d 751, 81 S.Ct. 1639 (1961). Due process alone has long demanded that, if a jury is to be provided the defendant, regardless of whether the Sixth Amendment requires it, the jury must stand impartial and indifferent to the extent commanded by the Sixth Amendment. Id. at 310, citing Morgan v. Illinois, 504 U.S. 719, 727, 119 L.Ed. 2d 492, 112 S.Ct. 2222 (1992). In Morgan, the court determined if even one [partial] juror is empaneled and the death sentence is imposed, the state is disentitled to execute the sentence. Id. at 728.

“The test for determining whether a new trial is required in the context of juror deceit during voir dire or on jury questionnaires is: the defendant must first demonstrate that a juror failed to answer honestly a material question...and then further show that a correct response would have provided a valid basis for a challenge for cause.” Jones, 311 F.3d at 310, citing McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548, 78 L.Ed. 2d 663, 104 S.Ct. 845 (1984). In Jones, the court observed, “The McDonough test is not the exclusive test for determining whether a new trial is warranted: a showing that a juror was actually biased, regardless of whether the juror was truthful or deceitful, can also entitle a defendant to a new trial.” Id. at 310, citing Fitzgerald v. Greene, 150 F.3d 357, 363 (4^th Cir. 1998). Here, Lowry failed to disclose upon several prompts by counsel both immediately before and after his voir dire examination, that he was an attorney and graduated from Washburn University Law School, which would have provided a valid basis for a challenge for cause as evidenced in the record on appeal. Here, the elements of the McDonough test are met and the Appellants’ are entitled to a new trial, or at the very least, a hearing upon remand on this issue.

Although in McDonough the juror’s incorrect response in voir dire was an honest mistake, the test applies equally to deliberate concealment and to innocent non-disclosure, as our sister circuits have held. Jones, 311 F.3d at 310, citing Zerka v. Green, 49 F.3d 1181, 1185 (6^th Cir. 1995); United States v. Langford, 990 F.2d 65, 68 (2^nd Cir. 1993); Artis v. Hitachi Zosen Clearing, Inc., 967 F.2d 1132, 1141-42 (7^th Cir. 1992); Burton v. Johnson, 948 F.2d 1150, 1158 (10^th Cir. 1991); United States v. St. Clair, 855 F.2d 518, 522-23 (8^th Cir. 1988); United States v. Scott, 854 F.2d 697, 698, (5^th Cir. 1988). Here, the test applies to both deliberate and innocent non-disclosure. Even if jury foreman Lowry (an attorney who must abide by the Model Rules of Profession Rules of Conduct), argues that he did not know he had to disclose the fact that he had legal training, his innocent non-disclosure would be enough to satisfy the first prong of the McDonough test. It is questionable however, that he did not know that he must disclose this material fact, given the fact that several other jurors were asked the same question, and that he indicated he heard all the questions asked of the other jurors and there was nothing he needed to talk about. Supra. In any event, the Appellants’, at the very least, should be entitled to a remand to the trial court, for the limited purpose of a hearing to resolve this issue, without losing jurisdiction over the pending appeal on its merits.

As observed in Fitzgerald, “Failure to satisfy the requirements of the McDonough test does not end the court’s inquiry, however, when the petitioner also asserts a general Sixth Amendment claim challenging the partiality of a juror based upon additional evidence occurring outside voir dire.” Fitzgerald, 150 F.3d at 362. Regardless of whether a juror’s answer is honest or dishonest, it remains within a trial court’s option, in determining whether a jury was biased, to order a post-trial hearing at which the movant has the opportunity to demonstrate actual bias, or in exceptional circumstances, that the facts are such that bias is to be inferred. Fitzgerald, 150 F.3d at 363, citing McDonough, 464 U.S. at 556-57. See also Smith 455 U.S. at 215, (holding that ‘the remedy for allegations of jury partiality is a hearing in which the defendant has the opportunity to prove actual bias.’) Indeed, a trial judge might find that a juror is biased even in a situation where, when specifically asked, the juror professes that he or she could be impartial. United State v.Torres, 128 F.3d 38, 44, 1997 U.S. App. LEXIS 27765 (2^nd Cir. 1997). Here, based on the severity of the failure of jury foreman Scott Lowry, an attorney and officer of the court, to disclose material information, that if disclosed, would have given counsel the ability to challenge his presence on the jury for cause, the appellants should be granted an opportunity to demonstrate actual bias, or that bias is to be inferred.

Implied or presumed bias is “bias conclusively presumed as a matter of law.” Torres, 128 F.3d at 45, citing United States v. Wood, 299 U.S. 123, 81 L.Ed. 78, 57 S.Ct. 177 (1936). It is attributed to a prospective juror regardless of actual partiality. In contrast to the inquiry for actual bias, which focuses on whether the record at voir dire supports a finding that the juror was in fact partial, the issue for implied bias is whether an average person in the position of the juror in controversy would be prejudiced. Id. at 45, citing United States v. Haynes, 398 F.2d 980, 984 (2^nd Cir. 1968). Blackstone states that exclusion of a prospective juror for implied bias is appropriate when it is shown:

“that he is of kin to either party within the ninth degree; that he has been arbitrator on either side; that he has an interest in the cause; that there is an action pending between him and the party; that he has taken money for his verdict; that he has formerly been a juror in the same cause; that he is the party’s master, servant, counselor, steward, or attorney, or of the same society or corporation with him.” Torres, 128 F.3d at 45, citing 3 W. Blackstone, Commentaries 480-481 (W. Hammond ed. 1890).

In the instant case, foreman Lowry was selected by the jurors to lead their deliberations. In a jury consisting in part of manual workers, homemakers, and secretaries, foreman Lowry’s position as an attorney more than likely influenced both his election and his influence upon deliberations. The fact that he went to Washburn University Law School and associated himself while there with various students of the small campus, is enough by itself to show implied bias, that he was of the same “society,” as the AUSA. Attached as an exhibit is an excerpt from a Washburn University School of Law Catalog, referencing the fact that the law school’s size makes it possible for every student to know every administrator, every student, and every professor. (See attached exhibit 1). Also attached is a brochure referencing the fact that the law school’s classrooms, library, clinic, study areas, computer labs, and administrative offices are all housed in one building. (See attached Exhibit 2). The information evidences the fact that the school is a small school, where more than likely all students at the very least, recognize each other, and demonstrates the close interaction of students that attend. Lowry deceived the court and attorneys about his qualifications to serve on the jury. To determine what occurred, and to further examine the probability of actual, implied or inferred bias, a hearing is necessary in which the entire panel is questioned.

Dishonesty, of itself is evidence of bias. Burton v. Johnson, 948 F.2d 1150, 1158-59 (10^th Cir. 1991), citing United State v. Colombo, 869 F.2d 149, 152 (2^nd Cir. 1989); Consolidated Gas & Equipment Co. of American V. Carver, 257 F.2d 111, 115 (10^th Cir. 1958); United States v. Scott, 854 F.2d 697, 699 (5^th Cir. 1988). Here, upon several prompts by each counsel during voir dire examination, Lowry was dishonest in his failure to disclose the material fact that he was an attorney who graduated from Washburn University Law School, which is material to his qualification to be a jury member.

In Scott, it was noted, “the juror did not simply misunderstand the question asked. Nor did he simply forget the question that his brother was a deputy sheriff in a law enforcement agency involved in the investigation. Rather, the juror consciously censored the information. He believed it was his place, and not the place of the court or defense counsel, to determine whether his relations were a bar to jury service in this case. There is a strong inference that the juror wanted to serve on the jury and thought it unlikely that the court or defense counsel would permit him to do so. The juror was hostile to what he correctly perceived to be the interests of the defense and the court. This in itself, constitutes bias. Id. at 699.

The instant case is analogous to Scott. Here, Lowry consciously censored questions from the Judge, defense attorneys and prosecution and did not come forward with the information that he had legal training and in fact graduated within one year of the AUSA handling the case, and a classmate of another AUSA in the same office. He heard questions presented to other juror members both immediately before and after his examination, consisting of whether any of the jurors had legal training. The only inference to be made is that he wanted to serve on the jury and believed if he disclosed this information, the judge or defense counsel would not have allowed him to sit on the jury.

As other circuits have recognized, “certainly, when possible non-objectivity is secreted and compounded by the untruthfulness of a potential juror’s answer on voir dire, the result is a deprivation of the defendant’s right to a fair trial.” Id. at 699. The district court found the juror’s failure to respond unreasonable. On the other hand, the court found that his belief that he was unaffected by his brother’s employment with a policy agency involved in the investigation in the case was sincere. Id. at 699. The court opined, the record of voir dire strongly suggests that he wanted to serve on the jury and feared that he would not be allowed to do so if he disclosed his brother’s employment. He contends that, despite the summary excusal of two prior venire members with close relatives in law enforcement, he understood his brother’s employment would be grounds for excusal only if he believed that it would affect his judgment. Id. at 699. Here, Lowry’s failure to disclose his legal training and where he attended law school evidences that he wanted to serve on the jury. The question, “for what reason?” remains to be answered. For whatever reason that Lowry wanted to serve on the jury, his failure to disclose material information with regard to his qualifications to serve on the jury, resulted in the deprivation of the Appellants’ right to a fair trial, required by the Sixth Amendment.

“A juror may not conceal material facts disqualifying him because he sincerely believes that he can be fair in spite of them.” Id. at 699. As Justice O’Conner observed in Smith v. Phillips: “Determining whether a juror is biased or has prejudiced a case is difficult, partly because the juror may be unaware of it. The problem may be compounded when a charge of bias arises from juror misconduct, and not simply from attempts of third parties to influence a juror.” Id., citing Smith v. Phillips, 455 U.S. 209, 221-22, 102 S.Ct. 940, 71 L.Ed. 2d 78 (1982).

“A juror who lies materially and repeatedly in response to legitimate inquiries about her background introduces destructive uncertainties into the process...A perjured juror is unfit to serve even in the absence of such vindictive bias.” Dyer v. Calderon, 151 F.3d 970, 983, 1998 U.S. App. LEXIS 18171 (9^th Cir. 1998). If a juror treats with contempt the court’s admonition to answer voir dire questions truthfully, she can be expected to treat her responsibilities as a juror - to listen to the evidence, not to consider extrinsic facts, to follow the judge’s instructions - with equal scorn. Id. at 983. How can someone who herself does not comply with the duty to tell the truth stand in judgment of other people’s veracity? Id. at 983. Having committed perjury, she may believe that the witnesses also feel no obligation to tell the truth and decide the case based on her prejudices rather than the testimony. Id. at 983.

“More is at stake here than the rights of petitioner, ‘justice must satisfy the appearance of justice.’” Id. at 983, citing Offut v. United States, 348 U.S. 11, 14, 99 L.Ed. 11, 75 S.Ct. 11 (1954). “An irregularity in the selection of those who will sit in judgment ‘casts a very long shadow.’” Id. at 983, citing Cruz v. Abbate, 812 F.2d 571, 574 (9^th Cir. 1987). A perjured juror is as incompatible with our truth-seeking process as a judge who accepts bribes. Id. at 983, citing Bracy v. Gramley, 520 U.S. 899, 117 S.Ct. 1793, 1797, 138 L.Ed. 2d 97 (1997). The court in Dyer, agreed with Chief Judge Winter:

“Courts cannot administer justice in circumstances in which a juror can commit a federal crime in order to serve as a juror in a criminal case and do so with no fear of sanction so long as a conviction results. The government’s brief exhibits no concern over the possible criminality of the juror’s conduct and asks us to affirm without further inquiry... Whether the government chooses to prosecute such cases is not for us to decide. We need not reduce its incentives to take such conduct seriously, however, by giving the government cause to believe that overlooking juror misconduct will preserve tainted convictions. Id. at 984, citing United States v. Colombo, 869 F.2d 149, 152 (2^nd Cir. 1989).

In Columbo, the court observed, “the point is not that the

fact that the juror’s brother-in-law was a government attorney tainted the proceedings, but that her willingness to lie about it exhibited an interest strongly suggesting partiality. The deliberateness distinguishes this case from McDonough and Smith, (‘mistaken, though honest response to a question in McDonough, not deliberate in Smith’). Columbo. 869 F.2d at 152.

The court in Colombo found that if in fact the juror’s brother-in-law was a government attorney, that is sufficient corroboration of the Kennedy affidavit to call for Klan’s conviction to be vacated. Id. at 152. “Inquiry into a juror’s state of mind by way of partial denial, explanation or protestations of impartiality would not reveal evidence that was under these conditions either trustworthy or sufficient to offset the deliberate violation of the oath. Id. at 152. We trust the juror will, if called to testify, be advised to seek counsel.” Id. at 152.

In the interests of justice, Lowry must not be allowed to lie or conceal his qualifications to sit on the jury. The fact that he is an officer of the court, deems his non-disclosure of a material fact even more serious than the non-disclosure of a material fact by a lay person, who may be completely ignorant. Here, the court cannot administer justice because Lowry has perjured himself in order to serve as jury foreman in this case. The fact that a guilty verdict was reached does not change the fact that misconduct occurred and the Appellants’ were denied a right to a fair trial. The Appellants merely ask for a remand for an evidentiary hearing on this matter for the limited purpose of determining whether a new trial is warranted, without losing jurisdiction over the pending appeal on its merits.

WHEREFORE, in line with the above and foregoing, these Appellants pray, in further consideration of this Appellant’s “SUPPLEMENTAL MOTION TO REMAND TO TRIAL COURT FOR THE LIMITED PURPOSE OF GRANTING A NEW TRIAL...” that this Honorable Court grant Appellants’ original “MOTION TO REMAND TO TRIAL COURT FOR THE LIMITED PURPOSE OF GRANTING A NEW TRIAL...” for the limited purpose of an evidentiary hearing for a new trial, concerning jury foreman misconduct, and additionally request this Honorable Court stay the proceedings pending in the appeal process, but only if remand will not deprive this Honorable Court of jurisdiction of the pending appeal on the merits and consistent with the second and third procedures stated in Garcia herein.

Respectfully submitted,

_______________________

WILLIAM K. RORK

RORK LAW OFFICE

Attorney for Pickard

and

________________________

MARK L. BENNETT

BENNETT, HENDRIX, L.L.P.

Attorney for Apperson

CERTIFICATE OF SERVICE

I, the undersigned, do hereby certify that on the 14^th day of June, 2004, I caused the original and seven copies of the above and foregoing “SUPPLEMENTAL MOTION TO REMAND TO TRIAL COURT FOR THE LIMITED PURPOSE OF GRANTING A NEW TRIAL...” to be filed with the Clerk of the United States Court of Appeals for the Tenth Circuit, by depositing the same in the U.S. mail, addressed to the Clerk, Mr. Patrick J. Fisher, and a conformed copy was hand delivered to Gregory G. Hough, (AUSA), at 444 S.E. Quincy, Suite 290, Topeka, KS 66683.

_________________________

ROBIN ALVAREZ

Administrative Assistant

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