UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF TENNESSEE

AT GREENEVILLE

UNITED STATES OF AMERICA,

)
)
Plaintiff,
)
) Case No.: 2:14-CR-083
vs.
)
)
RICKY LANIER,
)
)
Defendant.
)
__________________________________________________________________
DEFENDANTS REPLY TO THE GOVERNMENTS RESPONSE TO
DEFENDANTS MOTION FOR NEW TRIAL & RENEWED MOTION
FOR PERMISSION TO INTERVIEW JURORS
__________________________________________________________________
Defendant, through undersigned counsel, respectfully submits the following
Reply to the Governments Response to Defendants Motion for New Trial:

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MEMORANDUM OF POINTS AND AUTHORITIES

ARGUMENT
I.
Defendant Should Be Permitted to Interview the Jurors to Determine
Whether any Outside Influence was Improperly Brought to Bear Upon any
Juror
...[w]hen possible juror misconduct is brought to the trial judge's attention
he has a duty to investigate and to determine whether there may have been a
violation of the [constitutional guarantee]. Davis, 177 F.3d at 552 quoting
United States v. Shackelford, 777 F.2d 1141, 1145 (6th Cir.1985). An abuse of
discretion may be found when a district court refuses to permit an evidentiary
hearing ... when the alleged jury misconduct involves extrinsic influences.
Davis, 177 F.3d at 552 quoting United States v. Shackelford, 777 F.2d 1141, 1145
(6th Cir.1985).
Here, Juror No. 11 had external communications on more than one occasion
regarding matters pending before the jury with Theresa Nelson, an assistant
district attorney from the Sullivan County District Attorneys Office and a third
party to this matter, at the time of trial and during jury deliberations. Juror No. 11
contacted Ms. Nelson on the eve of the jury verdict in this case to get advice from
Ms. Nelson about a problem that was occurring during deliberations. At some
point on December 17, 2015, this communication was disclosed to this Court by

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Ms. Nelson. The Court investigated the extrinsic communication by having a

telephone call with Ms. Nelson outside the presence of counsel. Presumably, the
communication was also not transcribed by a court reporter, nor was it recorded.
Following the verdict, and significantly, after this Court denied defense counsels
motion for a mistrial as a result of the third party communication and potential
misconduct, the Court proceeded to contact Ms. Nelson by telephone to inform her
that a verdict had been reached in this case. The Court contacted Ms. Nelson and
provided her, a non-party to the proceedings, an almost immediate real-time
update on the proceedings and outcome of the trial.
The Court has not indicated that its investigation also included any sort of
examination or discussion with Juror No. 11 herself. The Court has also precluded
defense counsel from interviewing Juror No. 11. Juror No. 11 had a significant
enough problem by December 16, 2015 to feel inclined to reach out to a third
party despite this Courts twice daily admonishments against that specific conduct
and at the risk of violating the courts rules by initiating the impermissible
communication with a local prosecutor. It is also known that the next day, on the
morning of December 17, the jury happened to reach a verdict after three days of
deliberations after indicating they were hung on three counts.
In United States v. Herndon, 156 F.3d 629, 636-37 (6th Cir. 1998), the Sixth
Circuit abused its discretion by failing to investigate an alleged extraneous

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influence on a juror. The Sixth Circuit quoting United States v. Shackelford, 777
F.2d 1141, 1145 (6th Cir.1985) stated: When possible juror misconduct is
brought to the trial judge's attention he has a duty to investigate and to determine
whether there may have been a violation of the sixth amendment. Citing
Shackelford the Circuit Court explained that the trial court's refusal to permit an
evidentiary hearing may constitute abuse of discretion when the alleged jury
misconduct involves extrinsic influences. The Sixth Circuit quoting United
States v. Brantley, 733 F.2d 1429, 1439 (11th Cir.1984) the court stated: A party
claiming that an improperly influenced jury returned a verdict against him must be
given an opportunity to prove that claim. (citation omitted.) Thus in Herndon the
Sixth Circuit agreed with Petitioner that the district court abused its discretion by
refusing to allow him to question a juror who was potentially influenced by
extraneous information. Id. The Sixth Circuit held that simply allowing the
defendant to make a record during the sentencing hearing for purposes of appeal
was insufficient. Id. The Circuit court held that the defendant was entitled to a
meaningful opportunity to prove actual bias. Id. citing United States v. Walker, 1
F.3d 423 (6th Cir.1993) (remanding the case for a new trial and finding that the
defendants were deprived of the opportunity to meet their burden of proving
actual juror bias because the judge did not ask the jurors whether their exposure
to a transcript containing unredacted portions of video depositions would affect

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their ability to be impartial, even though the judge interviewed each juror to find
out how the transcript was used). The Sixth Circuit reiterated that the the district
court has a duty to investigate this type of claim, and if the allegation is of an
extraneous influence, then the district court should have conducted a Remmer
hearing. Id. The Herndon court explained that while the Circuit Court affords
broad discretion to the district court in determining the type of investigation
necessary to determine juror bias, the district court must provide the defendant a
meaningful opportunity to prove the same. Id citing United States v. Shackelford,
777 F.2d 1141, 1145 (6th Cir.1985).
Although Ms. Nelson claims that she immediately explained to Juror No. 11
that she could not discuss jury deliberations with her, there have been no
assurances from the outcome of the Courts investigation that Juror No. 11 did not
contact any additional third parties to discuss the problem she was anxious to
discuss with Ms. Nelson on the evening of December 16. It may be assumed that
Juror No. 11 contacted Ms. Nelson because Ms. Nelson is a local prosecutor and is
familiar with court proceedings and has knowledge of the law and the deliberation
process. However even if that were the case, to reach the conclusion that Juror
No. 11 is not acquainted with any other person in the legal profession, or simply
did not discuss the problems in deliberations with any other third party is mere
guess work that was not resolved by the Courts investigation. This is an inquiry

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that can otherwise be addressed by defense counsel being permitted to interview

Juror No. 11.
Moreover, in the various Sixth Circuit cases cited by the defense, the trial
courts have conducted its investigation in the presence of counsel or have allowed
defense counsel to interview the jurors. For instance, in United States v.
Shackelford, 777 F.2d 1141, 114445 (6th Cir.1985), the District Court permitted
the defense to conduct the interviews pursuant to the local rule, and after allowing
the defense to conduct its own investigation denied a Remmer hearing. In United
States v. Davis, 177 F.3d 552, (6th Cir. 1999), although the Sixth Circuit held that
the trial court should have allowed a Remmer hearing to question all remaining
jurors, at a minimum, the trial court did question the juror in question in chambers
about the jurors unauthorized communication with his employee. United States v.
Davis, 177 F.3d 552, 557 (6th Cir. 1999). In United States v. Pennell, 737 F.2d
521 (6th Cir. 1984), when notified that five jurors had received threatening
telephone calls from an anonymous caller, the court immediately conducted a
Remmer hearing in order to determine whether the impartiality of the five
contacted jurors had been compromised and whether the other jurors had learned
of the telephone calls. United States v. Pennell, 737 F.2d 521, 534 (6th Cir. 1984).
The court thoroughly questioned the contacted jurors on an individual basis and
concluded that their assertions of unimpaired impartiality were worthy of belief.

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Id. After questioning the jurors that actually received the phone calls, the court, in
the presence of counsel, questioned the entire panel about whether their
impartiality had been impacted by the telephone calls received by the five jurors.
Id. In United States v. Griffith, 756 F.2d 1244 (6th Cir. 1985), where the jury was
exposed to a dictionary definition of a legal term, the Sixth Circuit held that the
method used in Pennell may be adopted to determine the propriety of a new
trial. Applying these principles to the present case, we find that Judge Newblatt
did not abuse his discretion in denying the motion for a new trial. United States v.
Griffith, 756 F.2d 1244, 1252 (6th Cir. 1985) [When the judge learned that the
jury had been given a dictionary, he quickly had it retrieved. After determining
what use was made of the dictionary, he immediately sent a curative instruction to
the jury. Judge Newblatt also conducted a voir dire of each member of the jury.
He found that none of the jurors gave the slightest indication that they had been
influenced by the dictionary and did other than rely on the instructions.]
The Sixth Amendment's right to trial by jury is designed to ensure criminal
defendants a fair trial by a panel of impartial, indifferent jurors. United States
v. Davis, 177 F.3d 552, 556-57 (6th Cir. 1999). Thus, [w]hen possible juror
misconduct is brought to the trial judge's attention he has a duty to investigate and
to determine whether there may have been a violation of the [constitutional
guarantee]. Davis, 177 F.3d at 552 quoting United States v. Shackelford, 777

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F.2d 1141, 1145 (6th Cir.1985). Here, Juror No. 11 has demonstrated her
willingness to violate this courts admonishments not to communicate with third
parties about the trial or deliberations while the trial in this matter was in progress.
The courts investigation into the third-party communications involving Juror No.
11 was cursory and remains inconclusive. Consequently, Defendants Sixth
Amendment right to a fair trial with an impartial jury and particularly, indifferent
jurors, remain compromised.

II.
Defendants Were Deprived of Their Constitutional Right to a Jury of Their
Peers and Made a Timely Objection to the Jury Venire
Defendants, Ricky and Katrina Lanier, were denied their Sixth Amendment
Right to an impartial jury because of the exclusion of members of their race from
the jury venire. Defense counsel made a timely objection to the panel upon seeing
the composition of the panel which consisted of an all white jury venire
responsible for trying two African American defendants.
The Governments Response reiterates the notion that somehow arbitrary
and capricious pretrial motion deadlines preclude the defense from making a
contemporaneous objection to the jury venire upon seeing the composition of the
panel. In Ambrose v. Booker, 684 F.3d 638, 646 (6th Cir. 2012), the Sixth Circuit
stated that even a contemporaneous objection requirement was overly burdensome

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on the defense. To also suggest that an effective defense attorney must

investigate the jury assembly process in every case conditioned upon his client's
loss of the right is unnecessary and wasteful. Id. The Sixth Circuit has held [i]n
the ordinary case, fair cross-section claims should be raised at jury selection. Id.
at 649. ...where the underrepresentation is as obscure as the one in this
casedue to a small minority population and a small absolute disparitya failure
to object must be excused. Id. at 649. The Defendants motion for a new venire
panel or otherwise a change of venue was timely. The motion was made prior to
the commencement of voir dire examinations after defense counsel, observed an
exclusively white jury panel.
III.
CONCLUSION
For the foregoing reasons, Defendant Ricky Lanier, seeks Rule 33 relief for
the reasons set for above.
DATE: April 26, 2016

Respectfully submitted,

/s/Mark J. Geragos
MARK J. GERAGOS
GERAGOS & GERAGOS, APC
Attorney for Defendant, Ricky Lanier

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DATE: April 26, 2016

/s/Walter Bussart
WALTER BUSSART
BUSSART LAW FIRM
Attorney for Defendant, Ricky Lanier
DATE: April 26, 2016
/s/David Leonard
LEONARD & KERSHAW
Attorney for Defendant, Katrina Lanier
CERTIFICATE OF SERVICE
I hereby certify that on the 26thth day of April, 2016, a copy of the foregoing
Motion was filed electronically. Notice of this filing will be sent by operation of
the Courts electronic filing system to all parties indicated on the electronic filing
receipt. All other parties will be served by regular U.S. mail. Parties may access
this filing through the Courts electronic filing system.

/s/Mark J. Geragos

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