United States v. Leung, No. 13-10242 (McKeown with Thomas and Kendall (DJ, N.D. Ill.)) --- The Ninth Circuit affirmed the denial of a motion for a new trial, holding that a juror's affidavit explaining that some other jurors had decided the defendant was guilty before deliberations began was not admissible under Fed. R. Evid. 606(b).
The defendant was on trial for price fixing, in violation of the Sherman Act, after a previous jury had failed to return any verdict on the charges. The second jury returned a guilty verdict. Just before sentencing, the defendant filed a motion for a new trial, attaching an affidavit from one of the jurors that explained that other jurors had violated the admonition not to discuss the case before deliberating and, as part of those pre-deliberation discussions, settled on a guilty verdict. The district court ruled the affidavit inadmissible under Rule 606(b), and denied the motion for a new trial.
The court first held that the new-trial motion was timely. Although Fed. R. Crim. P. 33 sets a 14-day deadline for filing those motions, that deadline is not jurisdictional, see Eberhart v. United States, 546 U.S. 12 (2005), and here the judge had told the parties, "Go ahead and file your new trial motions whenever you want to." This effectively was an open-ended extension of time, permitted under Fed. R. Crim. P. 45(b)(2).
On the merits, the court affirmed the denial of the new-trial motion. The finality of jury verdicts is sacrosanct, and jurors should not feel that their deliberative processes are open to constant post-trial scrutiny. That is the purpose of Rule 606(b). Here, the defendant argued that the affidavit was proof that the jurors had lied during voir dire when they said they would follow the court's instructions not to deliberate before the trial was over. The court instead saw the affidavit as embodying nothing more than broken promises, not willful deceit during voir dire, and lamented the parade of horribles that would result from accepting the defendant's characterization of the affidavit's import.
It looks like Judge Kozinski will have to champion his proposed jury reforms from the wilderness for now.
The decision is here: