United States District Court, E.D. Tennessee, Greeneville
MEMORANDUM OPINION AND ORDER
RONNIE GREER UNITED STATES DISTRICT JUDGE
matter is before the Court to consider the defendants'
joint motion to issue a subpoena to Juror 11 for certain text
message and internet browser history, [Doc. 335]. The
government responded in opposition, [Doc. 338], and the
matter is now ripe for review. For the reasons stated herein,
the defendants' motion, [Doc. 335], is
to the Sixth Circuit's instructions on remand, [Doc.
307], this Court held a Remmer hearing on January
11, 2018 to determine if any extraneous influence on the jury
led to bias or prejudice against the defendants and impacted
the jury's verdict. See Remmer v. United States,
347 U.S. 227, 229-30 (1954). The Sixth Circuit determined
that a Remmer hearing was necessary because, during
the final day of deliberations, the Court became aware that
Juror 11 placed a phone call to her personal friend Assistant
District Attorney Teresa Nelson (“ADA Nelson”).
ADA Nelson contacted the Court to report this call, which the
undersigned communicated to the parties on the record. [Doc.
212, pgs. 3-5]. ADA Nelson reported that Juror 11 called and
mentioned that there was “a problem with the
deliberations.” [Id. at 3]. ADA Nelson stated
that she advised Juror 11 that they could not discuss the
case, and that Juror 11 should contact the Judge with any
problems, and ended the conversation without discussing the
case. [Id.]. The Sixth Circuit remanded the case for
a Remmer hearing, directing that the parties should
have the opportunity to question ADA Nelson, Juror 11, and
the rest of the jury “to determine whether any external
influence affected the jury's deliberations.” [Doc.
addition to the subpoenas issued to compel the appearance of
the jurors at the Remmer hearing, each juror
received an Order Regarding Attendance of Jurors from this
Court, which included the following language:
2. Although the Court recognizes that you may have questions
about this subpoena and Order, you must not discuss your jury
service or this case with any other person between now and
the date of the forthcoming hearing on January 11, 2018.
3. In addition, you must not contact (i) any other jurors who
may have served with you in this case, or (ii) any other
individual who has knowledge about the case.
4. Similarly, you must not conduct any research into this
case or seek out any information about this case or the
defendants. This prohibition against research includes
searching the internet or attempting to obtain information
about the case through any other means. If you are exposed to
any news articles or other information about this case or the
defendants, you should not read or view such information.
[Doc. 322]. During the Remmer proceedings, the
parties had the opportunity to examine each juror and ADA
Nelson. Counsel questioned each juror regarding his or her
knowledge of any outside influence during deliberations.
Juror 11 was questioned in more detail regarding the phone
call that she placed to ADA Nelson.
examination of ADA Nelson, she reported that Juror 11 had
sent her a text message on Sunday, January 7, 2018, in which
Juror 11 included the case name and citation, and the phrase
“Remmer Hearing, ” and asked: “Does any of
that lead you to know what in the world this is about two
years later?” [Doc. 333, pg. 88]. Juror 11 was examined
later in the proceedings about this text message. When asked
by defense counsel whether she reached out to ADA Nelson to
ask what the upcoming hearing was about, she responded,
“No, I did not say that.” [Id.]. When
confronted with the text of her communication, she stated the
she did not recall saying that. [Id. at 88-89].
Juror 11 testified that she lost the court paperwork
temporarily, and searched “Greeneville federal
court” in her web browser to find the court calendar to
ensure she had the correct date and time for the hearing.
[Id. at 78-80]. She testified that she had not done
any other research on the case, neither during the 2015 trial
nor in relation to the Remmer hearing. [Id.
at 49, 79].
well established that trial court judges are granted
“considerable discretion in determining the amount of
inquiry necessary, if any, in response to allegations of jury
misconduct.” United States v. Logan, 250 F.3d
350, 378 (6th Cir. 2001). As a general rule, however, federal
courts are reluctant to allow post-trial contact with
discharged jurors. “Proper functioning of the jury
system requires that jurors be free of post-trial inquisition
and harassment.” United States v. Dye, 508
F.2d 1226, 1232 (6th Cir. 1974) (finding that post-trial
contact by a juror concerning the verdict was “not of
sufficient gravity to impair the verdict of the jury or to
justify further inquiry.” (citing Stein v. New
York, 346 U.S. 156, 178 (1953))); Haeberle v. Texas
Intern. Airlines, 739 F.2d 1019, 1021 (5th Cir. 1984)
(“Prohibiting post-verdict interviews protects the jury
from an effort to find grounds for post-verdict charges of
misconduct, reduces the ‘chances and temptations'
for tampering with the jury, increases the certainty of civil
trials, and spares the district courts time-consuming and
futile proceedings.” (citing O'Rear v. Fruehauf
Corp., 554 F.2d 1304, 1310 n.4 (5th Cir. 1977))). In
determining when to allow post-verdict jury contact, courts
have balanced the interests set forth by the parties against
the jurors' privacy interests, as well as the public
interest in well-administered justice. Id.
while authority regarding the issuance of post-trial
subpoenas on jurors is limited, the available authority seems
to indicate that courts are unwilling to allow such action
absent a strong showing of necessity. For instance, the Fifth
Circuit Court of Appeals found that the trial court properly
denied defendant's request to subpoena jurors after the
trial when there were “no claims that these jurors had
demonstrated or admitted to any prejudice against appellant
or his attorney, ” and when “both the defendant
and the government has an ample opportunity to present their
contentions.” United States v. Johnston 685
F.2d 934, 941 (5th Cir. 1982); see also Polymer Dynamics,
Inc. v. Bayer Corp., 2007 WL 2343796 at *3-4 (E.D. Pa.
Aug. 1, 2017), vacated in part on other grounds, 341
Fed. App'x 771 (3rd Cir. 2009) (granting motion to quash
a subpoena delivered to a juror post-trial because there had
been “no proof of illegality.”). Similarly, in
Honken v. United States, a trial court concluded
that the movant was not entitled to further interview a juror
regarding external influence and bias when the
“existing record regarding [the juror] is already
extensive, ” and the “testimony already elicited
from the jurors is sufficient to resolve the movant's
… claim.” Honken v. United States, 2011
WL 4527573 at *12 (N.D. Iowa Sept. 28, 2011); United
States v. Eagle, 539 F.2d 1166, 1170-71 (8th Cir. 1976)
(holding that the trial court properly denied a motion to
subpoena jurors when there was no contention that the juror
in question voiced the potential extraneous influence in the
jury room, and “alleged no overt acts susceptible to
the other jurors' knowledge.”).
defendants seek production of Juror 11's web browser
search history between December 27, 2017 and January 11,
2018, and all text messages sent or received between January
3, 2018 and January 11, 2018 containing certain search terms.
[Doc. 335-1]. The defendants also request “[a]ll text
messages on any phone or device that you regularly use for
communication purposes sent to or received from ADA Nelson,
” which, the Court notes, is outside of the scope of
what they requested at the Remmer hearing. [Doc.
333, pgs. 96-102]. The defendants claim that the issuance of
such a subpoena is necessary to determine whether Juror 11
violated the Court's Order Regarding Attendance of Jurors