PITTSBURGH -- IN THE UNITED STATES DISTRICT COURTFOR THE WESTERN DISTRICT OF PENNSYLVANIA UNITED STATES OF AMERICA ) Criminal No. 06-26)
v. ) Electronic Filing)
CYRIL H. WECHT )
GOVERNMENT'S BRIEF IN OPPOSITION TODEFENDANT'S EMERGENCY MOTION TO VACATE ORDER DISMISSING JUROR #1 AT DOCKET NO. 845
AND NOW comes the United States of America, by and through its attorneys, Mary Beth Buchanan, United States Attorney for the Western District of Pennsylvania, and Stephen S. Stallings and James R. Wilson, Assistant United States Attorneys for said district, and submits this Brief in Opposition to Defendant's Emergency Motion to Vacate Order Dismissing Juror #1 at Docket No. 845.
Defendant's motion, filed at the very minute when the 11 remaining jurors had already finished a full day's worth of deliberations, should be denied because it is based upon a misleading recitation of events and a misreading of the applicable law.
Because defendant's motion mis-characterizes the events, it is necessary to set forth briefly what actually happened. At approximately 1:30 p.m. on Tuesday, April 1, 2008, on the seventh day of deliberations, the Court learned that a juror was experiencing a medical condition in the jury room. The nurse stationed in the courthouse was brought to the jury deliberation room in order to evaluate the medical situation. The nurse recommended that the juror should immediately proceed to the hospital for evaluation. Accordingly, the juror was transported to the hospital and admitted for testing. The testing continued throughout the evening and was scheduled to continue throughout the morning of April 2, 2008. As a result of the juror's serious medical condition and the pendency of his tests, both the juror and his physician requested that the juror be excused from further jury service.
On Tuesday morning, April 2, 2008, at 7:47 a.m., the Court notified the parties to appear in Court at 8:30 a.m. (the time previously set for resumption of the jury's deliberations). Lead counsel for the defendant arrived at 8:35 a.m., five minutes late. The Court advised the parties of the facts as set forth above, and recessed for well over ten minutes to permit the parties to consult internally and with the other party regarding the appropriate course of action. At 8:54 a.m., following the recess, the Court heard argument from both parties, and answered the defendant's inquiries regarding whether the juror was the foreperson. The Court then issued the following ruling from the bench:
The Court rules that there's good cause to excuse this juror. The juror has a serious medical condition. It's just not a matter that they have a cold or some flu like a previous juror we patiently waited for prior to deliberations. This gentleman has also some other medicalconditions we discussed here and have taken breaks for here in trial. He has conveyed he wants leave of the stress of the trial, and I think it's unfair to keep him during this time ofimportant testing under the possibility that he might have to return despite his desire not to return.
The Court documented the events at the April 2, 2008, hearing in the minute entry of proceedings at Docket No. 847:
Court informs parties of status of the juror with a serious medical condition. The juror, who sits at seatnumber one, underwent overnight and afternoon testing, has requested to be excused from deliberations, because of additional tests today, doctor's recommendation, and additional stress of continuing as a juror. Court requests that parties discuss a stipulation for deliberations to continue with 11 jurors pursuant to Fed. R. Crim. P. 23(b)(3) and relevant case law. After brief recess,government agrees that said juror may be dismissed for good cause and that remaining 11 jurors should continue deliberations. Defendant requests to know whether sick juror is the foreman - Court answers that, from the questions previously provided to the Court by the jury, he is not. Defendant requests that the Court delay any decision forat least a day until the Court has obtained supporting medical documentation and/or a medical opinion. The Court rules that based upon the record and pursuant to Fed.R. Crim. P. 23(b)(3) and the Commentary thereto, there is good cause to excuse juror now because said juror has a serious medical condition, and it would unfair and unkindnot to excuse said juror under the circumstances so he can focus on his medical tests without the stress of the possibility that he would have to return. Court directs bailiffsto tell jury to continue deliberations pursuant to Fed. R. Crim. P. 23(b)(3) as a jury of 11 persons, and to tell jurors if they wish to deliberate longer hours today and tomorrowand/or on Friday, the Court will accommodate their requests. Court directs bailiffs to contact excused juror and thank him for his service.
It is certainly fair to question the motives behind the timing of this motion; but whatever1defendant's motives, his decision to wait until the jury had deliberated with 11 members for a full day undermines the notion that it is an "emergency." [Emphasis supplied].
The jury, now consisting of 11 members, deliberated for the entire day on April 2, 2008. The jury ended its deliberations for the day at 2:00 p.m. consistent with the Court's previously announced schedule. At no time during the April 2d deliberations did the defendant register any objections or file any motion directed to the 11 member jury's continued deliberations. Instead, defendant filed the instant motion at precisely 2:00 p.m., after the 11-member jury had already completed a day's worth of deliberations.
The Court's decision to excuse the juror because of his admission to the hospital and his request, joined by his physician, to excuse him from further deliberations on medical grounds, was proper under Federal Rule Criminal Procedure 23(b)(3), which provides:
Court Order for a Jury of 11. After the jury has retired to deliberate, the court maypermit a jury of 11 persons to return a verdict, even without a stipulation by the parties, if the court finds good cause to excuse a juror.
Unsurprisingly, courts have frequently held that illness constitutes good cause to excuse a juror. In United States v. Paulino, 445 F.3d 211 (2d Cir. 2006), for example, the court approved the trial judge's decision to excuse a juror who had flu-like symptoms based upon that juror's description of her illness to court personnel. And in United States v. Gibson, 135 F.3d 257, 260 (2d Cir. 1998), the court approved excusing a juror in a situation very similar to the events of this case:
The dismissal of Juror No. 10 was clearly within the court's discretion. The judge knew that the elderly juror had collapsed in the subway, that she had been hospitalized, and that the weather was bitterly cold. He also learned that the juror had a history of illnessand that her daughter requested that she not be required to return to the proceedings. This was "sufficient information to make an informed decision," id., and the judge acted comfortably within his discretion.
If defendant's source is a report from a member of the media who sits immediately outside the2jury room during deliberations, the government respectfully suggests that the Court consider reevaluating the current seating arrangements.
Title 18, United States Code, Section 1508(b) provides that: Whoever knowingly and willfully, by any means or device whatsoever -- listens to or observes, or attempts to listen to or observe, the proceedings of any grand or petit jury of which he is not a member in any court of the United States while such is deliberatingor voting . . . [shall be guilty of a federal crime].
To be clear, the government is not accusing anyone of intentionally violating this statute, but merely pointing out that defendant bases his motion on information that is either irrelevant or inappropriate. These are but two of many cases that are in accord. Defendant's motion is simply without substantive merit.
In addition, defendant's motion contains some very troubling statements, and includes profoundly misleading assertions. For example, defendant states in his supporting brief that:
Moreover, all reports are that the jury is getting along well despite the stress ofdeliberations, including countless reports of laughter coming from the jury room, both before the situation yesterday with Juror No. 1, after being attended to medically, andeven today after his removal.
Defendant provides no exhibit and cites to no support for this statement, yet asserts that this information is somehow relevant to understanding what is happening during deliberations. We must assume, therefore, that defendant is referring to information about ongoing jury deliberations from a source who has overheard what is transpiring in the jury room. One of two things is true: either defendant is asserting irrelevant information gleaned from overhearing the jury's laughter after deliberations as they left for the day (for example, on Thursday, March 27, 2008), or defendant is relying on inappropriately obtained information. Either way, defendant's assertion cannot support his motion.
The motion also misleads when it suggests that the government sought to remove a juror in order to prevent a deadlock, and when it implies that the government has taken inconsistent positions regarding juror illnesses: The jury has been deliberating several days; the specter of a hung jury on some or all ofthe counts is a distinct possibility; and the removal of Juror No. 1 may well serve to remove from the jury a juror who was not voting to convict Dr. Wecht on any charges.Indeed, the Government could hardly wait to have him removed, in sharp distinction to the way a prior juror illness was handled by the Court, where the juror was given afull day to return. See Defendant's Supporting Brief at Docket No. 846. The passage seeks to convey the false impression that the government hurried to "have [Juror 1] removed" because "he was not voting to convict Dr. Wecht on any charges." This is utterly and completely false, and without any support whatsoever. No one outside of that jury room knows what positions that juror took in deliberations. There is no information anywhere on which the government or anyone else could determine what position the juror had taken during deliberations. There is absolutely no evidence of any position taken by this juror, much less a hold-out position against conviction. Moreover, defendant is well aware that the previous one-day recess for another juror's flu-like symptoms took place during trial, not during deliberations, and that juror expressed a desire to return to serve -- exactly unlike the situation now where this juror and his physician have requested he be excused. In sum, there is nothing on which defendant could base a good faith belief that the government took an inconsistent position regarding excusing this juror in order to remove an impediment to deadlock; simply put, defendant is making it up.
Defendant argues that dismissal of a juror when the length of incapacity is uncertain is error.
First, as a factual matter, the juror in this case has indicated his medical condition requires his excuse regardless of the length of his current hospitalization. But defendant also misreads the law. Rule 23(b) gives the Court discretion to excuse a juror for good cause, and even a temporary condition preventing deliberations can constitute good cause. In United States v. Stratton, 779 F.2d 820, 832 (2d Cir. 1985), for example, the court discussed the nature of a trial court's discretion to excuse a jury for temporary incapacity to serve:
We do not agree with appellants that Rule 23(b) is to be used only where a juror sufferspermanent or at least lengthy incapacitation. We read the "just cause" standard more broadly to encompass a variety of temporary problems that may arise during jurydeliberations, confronting the trial judge with the need to exercise sound discretion as to the procedure to be followed at a particularly sensitive stage of the trial. Theappellants suggest that it was not "necessary to excuse [Juror No. 10] for just cause" since her absence due to religious observance would have lasted only 4 days.However, the trial judge was entitled to conclude that an adjournment of 4 days would be less desirable than an eleven-juror verdict. Adjournment would have riskeddulling the jurors' recollections of the evidence and summations and heightened the danger that the jurors would discuss the case with outside persons. We note that therecord does not present even the slightest basis to believe that Juror No. 10 was excused on a pretext to remove an obstacle to reaching a unanimous verdict. Under thecircumstances of this case, the trial judge did not abuse her discretion in accepting an eleven-juror verdict.
Similarly, in United States v. Hilliard, 701 F.2d 1052 (2d Cir. 1983), a juror became ill after 2 days of deliberations followed by a three-day recess. The trial judge refused to accept the suggestion that he order a one-day adjournment to see if the ill juror recovered. Instead, fearful of the hazards of further delay, the trial court empaneled an alternate, which the Second Circuit approved. Indeed, in Stratton, the Second Circuit commented that accepting an eleven person jury in Hilliard would have been an even better approach. See also United States v. Gambino, 788 F.2d 938, 949 (3d Cir. 1986)(approving use of 11 person jury under Rule 23(b) as preferable to use of alternates).
Defendant cites just two cases in support of his motion -- United States v. Araujo, 62 F.3d 930 (7th Cir. 1995) and United States v. Patterson, 26 F.3d 1127 (D.C. Cir. 1994)-- but neither supports his position. In Araujo a juror telephoned on a morning several days into deliberations to say he was stranded by the side of the road. The Court excused him under Rule 23(b) and the eleven person jury reached a verdict. The Araujo court found this to be an abuse of discretion. Araujo is nothing like this case. There was no indication in Araujo that the juror would be unable to deliberate; he merely had car trouble and couldn't get in that morning. In the instant case, the juror and his physician recommend he not deliberate further because of his medical condition and because of the pendency of the testing regarding that medical condition; indeed, the juror and his physician requested that he be excused. Patterson is similarly unavailing -- in that case the trial court heard that a juror was going to see a physician for chest pain, but did not receive any request from the juror or her physician to be excused. Here, in contrast, both the juror and his physician specifically recommended that the juror be excused for his medical condition. In sum, defendant's motion is unsupported by fact or law, and should be denied.

MARY BETH BUCHANANUnited States Attorney
By: S/STEPHEN S. STALLINGS STEPHEN S. STALLINGS
Assistant U.S. AttorneyFla. Bar No. 958859
JAMES R. WILSONAssistant U.S. Attorney
PA ID No. 27648
Case 2:06-cr-00026-AJS Document 848 Filed 04/03/2008