SUPERIOR COURT OF THE DISTRICT OF COLUMBIA CRIMINAL DIVISION - FELONY BRANCH

UNITED STATES OF AMERICA

Case No. 2009-CFI-9230

v.

Judge Gerald 1. Fisher

INGMAR GUANDIQUE

Sentencing: February 11,2011

GOVERNMENT'S OPPOSITION TO MOTION FOR NEW TRIAL FILED BY DEFENDANT INGMAR GUANDIQUE

The United States, by and through its attorney, the United States Attorney for the District of

Columbia, respectfully submits this opposition to defendant Ingmar Guandique's Motion for New

Trial, filed on February 1,2011 (hereinafter "Defendant's Motion"), which raises two alleged errors

over the course of a four week trial: (1) that the Court committed error in supervising closing

arguments by not sua sponte correcting alleged misstatements by the government during its initial

closing; and (2) that one member of the jury improperly considered the notes of the other jurors

during deliberations. As grounds for its opposition, the government relies on the following points

and authorities, as well as such additional points and authorities that may be raised at a hearing on

this motion.

FACTUAL BACKGROUND

This prosecution stems from the murder of Ms. Chandra Levy. After lengthy and substantial

pretrial litigation, trial began with the selection of a jury on October 18,2010. During the course of

the prosecution, the government called over forty witnesses to testify in its case in chief and rebuttal

case; the defense called two witnesses. Closing arguments and the Court's instructions were given

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on November 16,2010, at which time the case went to the jury. Jury deliberations lasted over the course of roughly three days. On Monday, November 22, 2010, the jury returned guilty verdicts as to two counts: Felony Murder (kidnapping) and Felony Murder (attempted robbery). On November 23,2010, the Court granted defendant's request for an extension oftime in which to file a motion for a new trial, until February 1, 2011. Sentencing is scheduled for Friday, February 11, 2011.

ARGUMENT

I. Standard of Review

In his motion seeking a new trial, defendant raises two points: (1) that the Court committed error in supervising the government's initial closing argument in that it failed to sua sponte detect and then cure arguments that allegedly (a) discussed propensity evidence; (b) elicited sympathy for the decedent; and ( c) asked the jury to speculate about facts not in the evidence; and (2) that based upon an article published by the Washington Post, the jury did not follow the Court's instruction with respect to the use it made of notes. As an initial matter, in determining whether or not the Court should grant a defendant a new trial in the "interests of justice," the Court of Appeals has noted that "it is only under exceptional circumstances where, considering the evidence, the defendant did not receive a fair trial, that a new trial will be ordered." Huggins v. United States, 333 A.2d 385,387 (D.C. 1975). To meet this exacting standard, a defendant "must demonstrate that acquittal would necessarily have followed" had the alleged error not occurred. See Gale v. United States, 391 A.2d 230,236 (D.C. 1978), cert. denied, 439 U.S. 1133 (1979); Huggins v. United States, 333 A.2d at 387. Here, the defendant's burden is compounded by the fact that defense counsel failed to object or seek any remedy, including a curative instruction or mistrial, during trial. Accordingly, on appeal,

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this claim of alleged error will be reviewed pursuant to a plain error standard. I Under the plain error

standard, the error must be (1) obvious or readily apparent, and clear under current law; and (2) so

clearly prejudicial to substantial rights as to jeopardize the very fairness and integrity of the trial.

Coates v. United States, 705 A.2d 1100, 1004 (D.C. 1998); see also Hunter v. United States, 606

A.2d 139, 144 (D.C.) (noting that the plain error burden is "a formidable one"), cert. denied, 506

U.S. 991 (1992). The government submits that such exceptional circumstances, warranting a new

trial, do not exist in this case.

l/Defendant now contends that he recognized the error during trial and nevertheless decided for tactical or strategic reasons not to object until he filed his motion for a new trial. Defendant fails to explain why he did not approach the bench and preserve the objections for review, seek a curative instruction, or ask for a mistrial outside the presence of the juror and while the Court had an opportunity to correct any error without the specter of a duplicative trial. Nonetheless, defendant's argument is without moment. As he failed to raise any contemporaneous objection to the closing argument, and regardless of the fact that he has subsequently raised the issue in his motion for a new trial, the plain error standard applies on appeal. United States v. Bentley, 376 U.S. App. D.C. 352,489 F.3d 360,364 (D.C. Cir.), cert. denied 552 U.S. 1001 (2007), ; see United States v. Saro, 306 U.S. App. D.C. 277, 281, 24 F.3d 283,287 (D.C. Cir. 1994) (to review claims raised for the first time in a new trial motion as if a timely objection had been made at trial would invite strategic behavior by defense counsel), cert. denied, 534 U.S. 1149 (2002). Accordingly, this claim raised for the first time in a post-trial motion for a new trial is deemed not preserved and thus, reviewed on appeal under the plain-error standard.

3.

n. The Court Did Not Commit Error by Failing to Sua Sponte Intervene During the Government's Initial Closing Argument2

A. As the government did not argue propensity. no error occurred.

Referencing only the first thirty seconds of what was an hour-long closing argument,

defendant claims in his motion that the Court committed error when it failed to interject itself, sua

sponte, during the government's initial closing argument and correct what defendant characterizes

as an impermissible discussion of "other crimes evidence" as propensity evidence. Defendant's

Motion at 3,10 ("trial courts have the duty to correct improper comments made during closing

argument sua sponte."). Defendant then fails to point to any instance where the prosecutor

improperly argued propensity, that is, that Mr. Guandique' s prior criminal acts could be used to infer

his propensity to commit the charged offense, which would be impermissible, as opposed to what

in fact was argued, that the evidence could be used to prove identity, a permissible purpose. As a

result, this argument fails to highlight an exceptional circumstance warranting a new trial.

As an initial matter, and despite defendant's oft-repeated refrain that the prosecutor's remarks

were improper, the "real issue in cases such as this is not whether the prosecutor engaged in some

kind of misconduct but whether the [ Court] should have intervened if and when the prosecutor went

beyond the limits of permissible argument." McGrier v. United States, 597 A.2d at 40 (citing Irick

v. United States, 565 A.2d 26,33 (D.C. 1986)). When a claim is made that the closing argument was

21 Although defendant argues throughout his motion that the prosecutor acted improperly and engaged in misconduct in her argument to the jury, the Court of Appeals has long remarked that in cases such as this, the word "misconduct" is not appropriate, as it connotes adverse ethical implications and improper motivation. See McGrier v. United States, 597 A.2d 36, 40-41(D.C. 1991) (noting that the word "misconduct" has been applied all too freely, and without serious reflection, to statements made by attorneys - prosecutors and defenders alike - in the heat of trial, when semantic and stylistic precision are not uppermost in their minds").

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objectionable, the Court's first determination is whether any or all of the challenged comments were improper. Najafi v. United States, 886 A.2d 103, 107 (D.C. 2005) (quoting Irick v. United States, 565 A.2d at 33). If the Court determines that the comments were improper, it will view the comments in context to determine whether the defendant suffered an error "so clearly prejudicial to substantial rights as to jeopardize the very fairness and integrity of the trial," McGrier v. United States, 597 A.2d at 40 (quoting Watts v. United States, 362 A.2d 706, 709 (D.C. 1979) (en bane)), for "a criminal conviction is not to be lightly overturned on the basis of a prosecutor's comments standing alone." Irick v. United States, 565 A.2d at 32; see also McGriffv. United States, 705 A.2d 282, 288 (D. C. 1997) (considering whether "the judge compromised the fundamental fairness of the trial, and permitted a clear miscarriage of justice, by not intervening, sua sponte, when the

prosecutor made [the challenged] remarks"), cert. denied, 523 U.S. 1086 (1998). After all, "[w]e are all mere mortals, and no prosecutor can spontaneously deliver a perfect closing argument." Dixon v. United States, 565 A.2d 72,81 (D.C. 1989).

Viewed in context, the portion ofthe prosecutor's closing argument, which is alleged to have argued propensity evidence, was not error at all as it was prefaced with a verbatim recitation of the jury instruction regarding the permissible use of other crimes evidence. See Transcript Excerpt from United States v. Ingmar Guandique, 2009 CFl 9230, November 16,2010, attached hereto as Exhibit "A." The prosecutor then proceeded to note all the similarities between the three crimes with respect to similar (1) victims, (2) timing; (3) location; and (4) modus operandi. Id. At no point did the prosecutor argue propensity as opposed to the similarities which proved identity. Id. at 48 ("If you conclude that the evidence of the other two assaults is so similar ... that is it likely that the same person committed both of them, you may use this evidence in determining whether the Government

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has proved beyond a reasonable doubt that Mr. Guandique is the person who committed the offenses charged in this case. So let's talk about how similar these other crimes are .... How are these three crimes all completely similar?"); id. at 50 ("How do you know that all three of these crimes are point by point similar ... "); id. at 52 ("Again, all three crimes are exactly similar"); id. at 55 ("What else did the three attacks have in common?"); id. at 56 ("All three crimes have that in common").

Thus, this argument, which was properly framed in terms of the law with respect to "other crimes" evidence, cannot be characterized as an error, much less an exceptional circumstance justifying a new triaL Indeed, neither the defense nor the Court noted any error as to these statements, at the time, that warranted either an objection or a curative instruction. Moreover, the Court instructed the jury as to the proper use of the other crimes evidence. See Transcript of United States v. Ingmar Guandique, 2009 CF1 9230, November 16, 2010, at 159. Furthermore, the Court gave appropriate instructions regarding the purpose of closing arguments just prior to the presentation of summations, noting that "[t]he closing arguments, just like opening statements, are not evidence. It's the evidence that's been presented that you must base your decisions upon." Id. at 39. The Court also instructed the jury that (1) they are "the sole judge of the facts ... and what weight, if any, to give to that evidence" including the credibility of witnesses; (2) the case should be decided without prejudice, fear, sympathy or favoritism; and (3) the jurors' memory, as opposed to the attorneys' statements, controls during deliberations. Thus, defendant's claim that the Court committed error in supervising closing arguments when it permitted the prosecutor to improperly argue propensity evidence is not only without merit, but would, in any event, have been cured by the Court's instructions.

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B. As the government argued permissible inferences as opposed to facts not in evidence. no error occurred.

Defendant also argues that the Court failed to interject itself, sua sponte, during the

government's initial closing argument when the prosecutor allegedly asked the jury to speculate

about the end of Chandra Levy's life. In ~upport, defendant points to a reported comment that ajuror

"want [ ed] to know if [Ms. Levy] tried to fight him. Did she ever stop fighting? Did she ever see him

or know what was happening ... Ijust can't imagine." Defendant's Motion at 8 citing a November

23,2010 Washington Post article by Keith Alexander, attached to Def. Mot. as Exhibit "A." Again,

when viewed in the context of the case and the closing as a whole, these remarks as they were

actually delivered were not error requiring the Court's sua sponte intervention.

The prosecution of Chandra Levy's murderer had unique challenges, namely, that Ms. Levy's

cause of death, given the condition of her remains, was unknown. Thus, unlike a routine homicide

prosecution where a medical examiner would testify as to cause and manner of death, the jury in this

case could only speculate as to what caused Ms. Levy to die and whether her death was even a

homicide, as opposed to an accident, as Mr. Guandique had confided to Armando Morales. Indeed,

the jury heard testimony that although defendant admitted that he robbed Ms. Levy when he dragged

her from the jogging trail, he claimed that she was merely unconscious or pretending to be

unconscious when he left her alive in the woods. And as there were no eyewitnesses to the murder,

the prosecutor properly concluded that based on the evidence "we don't know [what happened to

her]."

Given that the government was unable to prove how Ms. Levy died, the prosecutor then

turned to all the evidence and the fair inferences that could be drawn from the evidence in arguing

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that Ms. Levy's death was not an accident:

[b ]ecause you know from all these pictures and the crime scene that you've heard so much about that she was chased off of that trail ... she was either made to take off her clothes or he took them off for her. She was completely disrobed, because all of her clothes are inside out ... he tied her up. He tied her up with her own tights. Those are ligatures. We don't know how he did that ... We don't know .... But according to him, she didn't die immediately.

See Transcript Excerpt from United States v. Ingmar Guandique, 2009 CFl 9230, November 16,

2010, attached hereto as Exhibit "B," This argument was a fair inference given the evidence in this

case that Ms. Levy's personal possessions were strewn 180 feet from the jogging path into the

woods, indicative of a violent struggle; that her clothing was found turned inside out and scattered

about, as if it had been forcefully removed; that the laces of her shoes were untied, consistent with

having been removed; and that her running tights, with her underwear still attached, were double

knotted into what appeared to be restraints. The crime scene, as the prosecutor argued, was

inconsistent with an accidental death or a mere robbery as defendant claimed. See Tuckson v.

United States, 364 A.2d 138, 142 (D.C. 1976) (holding that a "prosecutor is entitled to make

reasonable comments on the evidence and draw such inferences from the testimony as will support

his theory of the case").

But in addition to making a fair argument based on evidentiary inferences, the prosecutor

repeated that despite what the government could not prove, despite what a lay person might believe

was necessary to show that a murder had been committed, and despite what defendant claimed as

far as his own culpability, it was this jury's function not to speculate as to what caused Ms. Levy's

death, but rather, to be controlled by the law in deciding whether a felony murder had occurred. See

Exhibit "B" at 56 ("We know that something terrible happened to her, maybe it's best not even to

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try to imagine. It certainly doesn't have to factor into your decision, into your verdict."); id. at 57

("we don't know and its best not to think about it"); id. ("we don't know for sure, and it's best not

to think about, because it doesn't have to factor into your-decision"). The prosecutor then answered

its own rhetorical question - whether the jury could conclude a murder had occurred when they had

no definitive answer as to how Ms. Levy died - with a recitation of the law:

And is that a murder? Now, again, this is where the law is going to help you. Because Judge Fisher is going to instruct you as follows: You don't have to find that Mr. Guandique shot her or stabbed her or bludgeoned her or strangled her. You don't have to find any of those things. The government, according to the law, as Judge Fisher will tell you, the government need not prove that Mr. Guandique intended to kill Ms. Levy. Any killing, even if done without the intent to kill, even if accidental, is murder in the first degree if done while committing or attempting to commit a kidnapping, or while committing or attempting to commit a robbery.

Id. This argument, urging the jurors not to speculate about Ms. Levy's final moments, but rather

directing them to what the law required them to decide, was not improper such that it required the

Court to intervene sua sponte.

Nor does this argument bare any resemblance to the cases of Tyree v. United States, 942

A.2d 629 (D.C. 2008), cert. denied, _U.S. _' 129 S. Ct. 1612 (2009) and Hawthorne v. United

States, 476 A.2d 164 (D.C. 1984), cited in Defendant's Motion as being. directly on point.

Specifically, in Tyree v. United States, the Court of Appeals held that the prosecutor's improper

emotional appeals to the jury by referring to the victim as having been "tortured" and ending up in

a "cold grave," by referring to the murder as a "horrific inhumane crime," and a "horrific act against

another human being," and by telling the jury that "it's very difficult for us, as we sit here, to even

imagine what this was like for [the victim] the fear, the total shock of what was happening to him,"

was not sufficient to overturn the verdict. 942 A.2d at 642-43. Noting that the language appeared

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in some respects to have "definite emotional appeal that may have overdramatized the facts in the jurors' minds," the court held that "such language, generally without more, will not warrant reversal." Id. at 643 (internal quotations and citations omitted). The same reasoning, applied to the closing argument here, is grounds to deny Defendant's Motion.

Nor does Hawthorne v. United States, 476 A.2d 164 (D.C. 1984), change the analysis. In Hawthorne, the prosecutor delivered most of his closing argument in the first-person voice of the deceased: rambling through aspects of his good works for the community's youth, his planned trip to visit his parents, his hopes to live to be 60 years old and to die from natural causes, how he felt when he was being stabbed, how he could not believe what was happening to him, and how his throat was cut as if in a sacrificial slaughter. Id. at 170. The prosecutor then told the jury, still acting as the victim, that he thought it wasn't fair that he died that way, that his eyes were open as he was being stabbed, what he knew after he was dead, and his thoughts about his killers, leaving the court to conclude, applying a standard less stringent than plain error, that the prosecutor had committed reversible error. Id. at 170-71.

But Hawthorne is not remotely on point. Nowhere did the prosecutor in this case use a "first person singular rhetorical device [that] had the dual effect of placing the prosecutor in the victim's shoes and turning the prosecutor into [the victim's] personal representative." Hawthorne v. United States, 476 A.2d at 172. And the government's isolated comment regarding the fact that Ms. Levy was wearing headphones and sunglasses, a fair inference from the personal effects recovered on the crime scene, and mentally preparing for her trip home, her graduation and her job search, as described by the testimony of two witnesses (her father, Dr. Robert Levy, and Gary Condit), in no way reached the level of reversible error committed in Hawthorne.

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Defendant's additional argument, that the prosecutor improperly highlighted defendant's

failure to testify and improperly suggested that the defense had some burden of proof, see

Defendant's Motion at 7, is simply not supported by the record. Accordingly, no error occurred with

respect to burden shifting either. Simply put, defendant has failed to highlight any exceptional

circumstances whereby he did not receive a fair trial or any errors in the closing argument such that

an acquittal would have necessarily followed. As a result, his motion for a new trial should be

denied on this basis as well.

C. As to defendant's remaining claims, there is no error, much less error warranting reversal.

Defendant contends that the prosecutor's repeated pleas for sympathy for Chandra Levy

inflamed the jurors' passions requiring sua sponte intervention by the Court.' Relying on an article

from the Washington Post, in which ajuror expressed empathy for Ms. Levy as well as other tidbits

about jury deliberations, the defendant then makes the quantum leap that the jury's ability to judge

the evidence fairly was "substantially prejudiced'" by the prosecutor's improper remarks in closing.

The government disagrees.

Despite defendant's characterization of the government's closing argument as a "horror

movie, with its tricks of foreshadowing to whip up fear in the audience," defendant never objected

~/In support of his argument, defendant maintains, contrary to the government's recollection of its own closing argument and without record support, that "throughout" closing argument, the government displayed an enlarged poster-sized photo of Ms. Levy as well as her clothing as its backdrop diorama. See Defendant's Motion at 8.

lIDefendant's "substantial prejudice" standard is incorrect in this case. "The rule is far more stringent when the defendant has failed to object to the prosecutor's supposedly improper remarks" and when there has been no objection, reversal is warranted only in a "particularly egregious" case when a "miscarriage of justice would otherwise result." McGrier v. United States, 597 A.2d at 41.

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to any of the alleged improprieties, which he now contends so improperly inflamed the prejudices and passions of the jury that his conviction must be thrown out. Indeed, defendant did not ask the Court for any relief, including a mistrial on this basis, at the time that the remarks were made and still capable of being addressed. In the absence of a defense objection, the Court did not perceive a need to sua sponte intervene in the prosecutor's closing argument. Furthermore, because all of the challenged remarks occurred in the government's initial summation as opposed to rebuttal argument, defense counsel had ample opportunity to respond in its own closing arguments to any alleged misstatements or improprieties. And moreover, the Court gave appropriate instructions as to the purpose of closing arguments designed to cure any potential misuse or prejudice.

In addition, this case is clearly distinguishable from those cited in Defendant's Motion in which the court found prosecutorial error warranting reversal and is more on point with case law in which the court found insufficient grounds to reverse. Compare Powell v. United States, 455 A.2d 405 (D.C. 1983) (finding reversible error as to one defendant only where government expressed his personal opinion as to the credibility of the witnesses, including the defendant; insinuated that the defendant's own lawyer did not believe him; expressed his personal opinion as to the validity of the intoxication defense; and urged the jury to "send a message" as the conscience ofthe community) with Hart v. United States, 538 A.2d 1146,1150 (D.C. 1988)(decliningto reverse where prosecutor insinuated that defendant's testimony was fabricated, used inflammatory language, and appealed to the jury to render a verdict based upon a larger policy and upon their own fears of being victimized); Hammill v. United States, 498 A.2d 551 (D.C. 1985) (no reversal despite over twenty alleged instances of misconduct including appealing to jury sympathy, testifying to facts not in evidence, making a missing witness instruction, and imputing thoughts and poor judgment to defense counsel).

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And finally, the emotional impact of this case is derived mainly from its facts. The

summation certainly used forceful and vivid language. But it cannot be said that the use of forceful

and vivid language, unchallenged at trial by experienced defense counsel, should have justified either

spontaneous intervention by this Court or three months later, reversal. It is impossible to believe that

the prosecutor's description of Ms. Levy's death was responsible for any humane juror's sympathy.

On a record like the present one, it was surely the events, rather than how the prosecutor rendered

them, that precipitated any feelings of compassion that the jury may have had. And in fact, the news

article so heavily favored by defendant as proof of improper argument reveals just the opposite.

Therein, the jurors were quoted as saying that it was the evidence in the case, namely the testimony

of Armando Morales, Iris Portillo, Maria Mendez and the two surviving victims that convinced them

to convict. Nowhere is any part of the government's closing argument so much as mentioned.

Accordingly, defendant has failed to show that this Court committed error in supervising closing

arguments.

III. Defendant's Claim that Jurors Did Not Follow Instructions Does Not Warrant aNew Trial

Next, defendant also argues that he is entitled to an evidentiary hearing "to ascertain whether

any extrinsic information" influenced the jury's deliberations in rendering its verdict. Defendant's

Motion at 12. In support of this request, the defense points only to a Washington Post article

reporting that, according to one juror, some jurors shared notes with another juror during

deliberations on the issue of whether there was any evidence "that Guandique had tried to rob

Levy.?' The defendant's request for an evidentiary hearing runs contrary to this jurisdiction'S

1'Given that the only evidence that defendant proffers for his new trial motion is limited to whether jurors shared notes regarding evidence of a robbery, defendant's request for a new trial

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well-settled precedent that "ajury's final verdict may not be impeached by matters that inhere in the verdict." Boykins v. United States, 702 A.2d 1242, 1247 (D:C. 1997). Even if this Court assumes that some jurors in fact shared their notes with another juror, the defendant still is not entitled to an evidentiary hearing for at least three independent reasons. First, because juror notes are not extrinsic or external influences, they may not be used to impeach the jury's verdict. Second, even if juror notes could somehow be considered an extrinsic influence, the defendant falls far short of meeting the high threshold required for jurors to be brought before the Court for an inquiry. Third, even if the defendant had met such a threshold, a jury's failure to follow instructions is not grounds for impeachment of the verdict. For all these reasons, the defendant's request for an evidentiary hearing should be denied.

A. Legal Background

"It is well settled that a jury's final verdict may not be impeached by matters that inhere in the verdict." Boykins v. United States, 702 A.2d at 1247 (citing Sellars v. United States, 401 A.2d 974,981 (D.C. 1979». "Under this non-impeachment rule, even when information about the jury's decisional processes is volunteered by a juror, it is incompetent to impeach a final verdict on matters such as mistake of law, misapprehension of the testimony, and unsound reasoning by the jurors." Boykins v. United States, 702 A.2d at 1247. "Suchjuryreasoning is regarded as inhering in a verdict and for sound policy reasons may not be used to impeach a verdict duly rendered." Id. Among the reasons for the rule are: "(1) discouraging harassment of jurors by losing parties eager to have the verdict set aside; (2) encouraging free and open discussion among jurors; (3) reducing incentives for jury tampering; (4) promoting verdict finality; [and] (5) maintaining the viability of the jury as a

on this ground would not implicate defendant's conviction for Felony-Murder (kidnapping). 14

judicial decision making body." Sellars v. United States, 401 A.2d at 981. Federal Rule of Evidence

606(b) codifies this "near-universal and firmly established common-law rule" that prohibits the

admission of juror testimony to impeach ajury verdict. Tanner v. United States, 483 U.S. 107, 117

(1987).

Rule 606(b) does, however, create a narrow exception to the common-law rule in situations

where "extraneous prejudicial information" or "outside influence" is improperly brought to the jury's

attention. Fed. R. Evid. 606(b). Although this jurisdiction does not appear to have expressly

adopted this exception under Rule 606(b), it has nevertheless recognized that the non-impeachment

rule "is subject to an exception permitting ajury to testify about influence, external to the jury, which

affected the verdict." Khaalis v. United States, 408 A.2d 313, 359 (D.C. 1979), cert. denied, 444

u. S. 1092 (1980). Accordingly, in deciding whether an evidentiary hearing is necessary, a court first

must decide if there is any evidence of extrinsic or extraneous influence. Even where external

influences are present, a court should only conduct such an inquiry when "there is clear, strong,

substantial and incontrovertible evidence that a specific, nonspeculative impropriety has occurred

which could have prejudiced the trial of the defendant." United States v. Moon, 718 F.2d 1210,

1234 (2d Cir. 1983), cert. denied, 466 U.S. 971 (1984).

B. Because juror notes are not extrinsic or extraneous influences, they may not be used to impeach the jury's verdict.

On the basis of a Washington Post article reporting that some jurors shared notes with

another juror, the defendant argues that the jury should be brought before the Court for an inquisition

regarding "this reliance on extrinsic evidence." Defendant's Motion at 11. Defendant's entire

argument, however, fatally rests on the faulty premise that juror notes are an "extrinsic" influence.

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In his motion, defendant provides no legal support for the premise that notes of other jurors are an

extrinsic or extraneous influence, and the government is not aware of a single court that has ruled

consistently with that position. In fact, the opposite is true. Courts have consistently found that juror

notes are not an extrinsic or extraneous influence, and accordingly, the law precludes any inquiry

into the jury's verdict as to what, if any, role juror notes played in a jury's deliberations.

For example, in United States v. Connolly, 341 F.3d 16 (lst Cir. 2003), the United States

Court of Appeals for the First Circuit was faced with circumstances nearly mirroring those present

here. Before the trial, the trial judge informed the jury that it was not permitted to take notes, and

that it was to rely on its "collective memories" during deliberations. 341 F.3d at 43. After the jury

returned its guilty verdict and the trial ended, the Boston Globe printed an article reporting an

interview oftwo jurors who had told the reporter that "a couple of jurors took notes at night, which

was very helpful during deliberations." Id. at 44. Defendant filed a motion requesting an evidentiary

hearing for an inquiry into whether jurors in fact had taken notes and to what extent they were used

during deliberations, which was denied. Id. On appeal, the First Circuit - which assumed that the

note-taking "actually happened," and further assumed that these notes "actually made their way into

the jury room during deliberations" - held that "the [juror] notes cannot be considered an 'extraneous

or extrinsic influence. '" Id. at 47. In its reasoning, the First Circuit adopted the reasoning of United

States v. Bassler, 651 F.2d 600 (8th Cir.), cert.denied, 454 U.S. 944 (1981),where the Eighth Circuit

had been faced with the same issue:

In Bassler, the district court instructed the the jury at the beginning of the trial that note-taking was not permitted. Like the two jurors in [appellant's] trial, one of the jurors ... took notes at the end of each day, and these notes eventually found their way into the jury room during deliberations. The Bassler court held that the juror's daily

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notes could not be considered an improper "extrinsic influence" because they were, in fact, intrinsic.

United States v. Connolly, 341 F.3d at 34-35 (citing Bassler, 651 F.2d at 602) (emphasis in original).

The First Circuit agreed with the Bassler Court, and held that because "intrinsic influences are not

competent to impeach a verdict," the juror notes could not be relied upon to demonstrate prejudice

to a defendant. United States v. Connolly, 341 F.3d at 34-35. Cf. United States v. Balsam, 203 F.3d

72,86 (1st Cir.) (indicating that sharing of notes in open court by jurors does "not raise the same

specter of prejudice as improper outside influences") (emphasis added), cert. denied, 531 U.S. 852

(2000).

As applied to this case, even if this Court assumes that some jurors in fact shared their notes

with another juror, the jurors' notes are intrinsic and any testimony regarding their influence is not

competent to impeach the verdict. "Delving into the intrinsic influences which shaped the jury's

decision would expose thoughts of the jury which were intended to remain private." Boykins v.

United States, 702 A.2d at 1248. Because any evidentiary hearing would not warrant interference

with the jury's verdict, defendant's request for a hearing should be denied. See Wilson v. United

States, 663 A.2d 558,562 (D.C. 1995) (holding that "a judge surely does not abuse her discretion

by refusing to hold an evidentiary hearing on ... allegations which, even if true, would not warrant

interference with the jury's verdict").

C. Even if another juror's notes were extrinsic, the defendant falls far short of the standard required for an evidentiary hearing.

Even if another juror's notes were categorized as an extrinsic influence, defendant's request

for a hearing falls far short of the showing required for a hearing. Even where external influences

were present, "[ a] court should only conduct such an inquiry when 'there is clear, strong, substantial

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and incontrovertible evidence that a specific, nonspeculative impropriety has occurred which could

have prejudiced the trial of the defendant." United States v. Connolly, 341 F.3d at 49 (citing United

States v. Moon, 718 F.2d at 1234). In Connolly, discussed supra, the First Circuit held in the

alternative that, even if juror notes were extrinsic, an appellant must show more than speculation to

obtain an evidentiary hearing:

Even if the [juror] notes could, somehow, be considered 'extrinsic,' [appellant] falls far short of providing specifics regarding any prejudice. Instead, he only insists that the district court should have conducted 'an inquiry.' ... Tellingly, he does not suggest what form this inquiry should take. Rather, he simply asks that we remand with instructions to the district court to 'do what has to be done to ferret out the truth.' He does not identify any witnesses he would call at an evidentiary hearing, or what the substance of any testimony could possibly be. Indeed, [appellant] has made no proffer of any evidence other than the Boston Globe article. Instead, there is only speculation, and mere speculation can hardly be considered 'clear, strong, substantial, and incontrovertible evidence.'

United States v. Connolly, 341 F.3d at 48-49. Here,just as in Connolly, the only evidence defendant

has proffered is a Washington Post article. Defendant does not identify what form any inquiry

should take and cites no specifics as to prejudice. Instead, he simply wishes "to ascertain whether

extrinsic information was provided." Defendant's Motion at 12. Defendant has only provided

speculation that the note-sharing improperly prejudiced him, and such speculation "can be hardly

be considered 'clear, strong, substantial, and incontrovertible evidence" that is required for an

evidentiary hearing. United States v. Connolly, 341 F.3d at 49.

D. A jury's failure to follow instructions is not grounds for impeachment of the verdict.

Defendant also appears to argue that, because the jurors shared notes and because this

violates the Court's instructions, a new trial should be granted. Even assuming the Court's

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instructions were violated, the D.C. Court of Appeals has consistently rejected requests to interfere

with a verdict where a jury has failed to follow the Court's instructions, even under circumstances

far more prejudicial to a defendant than the instant case. For example, ajury's verdict may not be

impeached on the grounds that:

[The jury] had agreed to a compromise verdicts; that they had bargained to acquit some defendants in order to reach unanimity in convicting others; that they had agreed to abide by majority vote, that they had returned a quotient verdict; that they had failed to follow instructions; that some jurors had pressured others; that some jurors made improper remarks during deliberations; that a juror who assented to a guilty verdict did not fundamentally believe in defendant's guilt; [n]or may jurors impeach their verdict on the ground that they had been confused, or [] that they did not understand their instructions.

Sellars v. United States, 401 A.2d at 982 (citations omitted) (emphasis added). In Sellars, after being

instructed that they must find the defendant not guilty if they believe he acted in self-defense, the

jury rendered a guilty verdict on manslaughter. 401 A.2d at 974. After the trial, the jury foreperson

contacted the trial judge and informed him that "the jurors had agreed that appellant acted in self-

defense, but that the verdict did not convey that agreement." Id. at 977. The D.C. Court of Appeals

affirmed the conviction, finding that the jury had been properly instructed and citing "the well-

established rule that jurors may not impeach their verdict." Id. at 982. If verdicts may not be

impeached under circumstances where a jury has undisputably failed to follow a court's instructions

thereby resulting in unquestionable prejudice to a defendant, it would defeatcommon sense to allow

a verdict to be impeached here, where the alleged violation is a comparatively-administrative

instruction regarding note-taking and the defendant has shown no specific prejudice."

Q/ The instructions given to the jury regarding note-taking certainly could be considered ambiguous and open to interpretation by the jury. Assuming the truth and accuracy of the

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In sum, because juror notes are intrinsic, not extrinsic, any testimony regarding their

influence during deliberations may not impeach the jury's verdict, and thus, an evidentiary hearing

is not required. Second, even if they could be considered an extrinsic influence, defendant has not

met the high threshold required to obtain an evidentiary hearing. Third, even if it is presumed that

the jury failed to follow the court's instructions, a jury's failure to follow instructions is not grounds

for impeachment of a verdict. Accordingly, the government respectfully requests that this Court

deny the defendant's request for an evidentiary hearing.

WHEREFORE, for the foregoing reasons, and for any other reasons that may become

apparent to the Court, the government respectfully requests that the Court deny defendant's motion

for a new trial.

Respectfully submitted,

RONALD C. MACHEN JR. UNITED STATES ATTORNEY

Amanda Haines

Fernando Campoamor-Sanchez Chris Kavanaugh

Assistant United States Attorneys United States Attorney's Office 555 4th Street N.W.

Washington, DC 20530

Washington Post article, there is no indication that the non-notetaking juror did not "rely" on his own memory even though his recollection may have been refreshed by the notes of another juror. Additionally, it would seem that - as written - the instruction regarding note-taking may allow a deliberating juror to state to a fellow juror: "I remember evidence of X, and I recorded it here in my notes" but the juror may not be allowed to show another that in fact it had been recorded in his notes. This would appear to be a distinction without difference that does not prejudice one party over another.

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CERTIFICATE OF SERVICE

I HEREB Y CERTIFY that on February 8, 2011, I caused a copy of the foregoing to be served by first class mail and electronic mailing upon counsel for the defense, Santha Sonenberg and Maria Hawilo, Public Defender Service, 633 Indiana Avenue, NW, Washington, D.C. 20004.

Amanda Haines

Assistant United States Attorney

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