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UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION UNITED STATES OF AMERICA VS. MARK ANTHONY MYRIE REPLY TO GOVERNMENTS RESPONSE TO DEFENDANTS SECOND AMENDED RENEWED MOTION COMES NOW the Defendant, Mark Anthony Myrie, hereinafter (Myrie), through counsels, and files this Reply to the Governments Response to Defendants Second Amended Renewed Motion and shows the Court the following: INTRODUCTION 1. Juror Terri Wright, hereinafter (Wright), credibility and conduct throughout this proceeding has been wanting to say the least. First, during voir dire, Wright was not forthcoming when she informed the Court that she had previously been on a jury, a civil case where a verdict was returned, She later admitted in an interview with reporter Chris Sweeney, hereinafter (Sweeney), taped recorded with her permission, to having a passion for jury service and previously sitting on seven (7) prior juries, both civil and criminal. 2. Second, Wright, in this same interview, admitted to Sweeney that though she was aware of the Courts admonition not to do any research, at the end of the day she would write her notes in her car and go home and do her research while the issues were fresh in her mind. 3. Third, at the post-trial hearing and in spite of her taped recorded interview, NO. 8:09CR572-T-30TGW

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recorded with her permission and played in court, Wright denied under oath that she did any research during trial and instead testified that she did her research after the trial. After the Court granted Myries motion to examine Wrights hard drive, the Court expanded the search to include the two weeks after the trial due to concern about Wrights credibility. The Courts concern about Wrights credibility proved perceptive. The hard drive Wright produced for examination showed no history of internet use; not even for the two week period after the trial the Court expanded due to concerns for Wrights credibility. 4. Juror Janice Benoits testimony that a white female juror told two male jurors that she did research on the Pinkerton rule is evidence that Wright is not the lone juror guilty of juror misconduct. Benoits testimony is further evidence supporting Myries renewed motion that he be granted a new trial due to jury misconduct. 5. The Governments conduct herein has been less than laudable. Instead of seeking justice and not convictions, the Government filed a questionable and extraordinary motion on Wrights behalf, after the Court notified Wright of her right to be represented by counsel at the hearing, which Wright declined. The Governments motion alleged that Wrights privacy rights were being violated by the Courts January 4, 2013 Order to seize her computer. On January 8, 2013 the Court Agreed and withdrew the Order, Wright was instead Ordered to bring the computer or hard drive that she conducted her research on to the February 19,

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2013 court hearing, Wright thereafter had the time, over a month, and opportunity to carry out a switch-a-rue. At the February 19, 2013 hearing, Wright brought to Court to be examined some other computer hard drive. The computer hard drive Wright produced showed no internet use for the period in question, not even for the Court ordered two week period after the trial. In short, the time delay in seizing Wrights computers enabled Wright to perpetrate a fraud upon the Court by producing a computer hard drive other than the one the Court ordered her to produce and which she told the Court she did her research on after the trial and which she still possessed. Wrights actions throughout these proceedings bring not only her credibility into question, but her conduct is also contemptuous to this Court and prejudicial to Myrie. 6. It is of particular note that in its Response to Defendants Second Amended Renewed Motion, the Government makes only a fleeting reference of Wrights taped recored interview with Sweeney. Sweeneys tape recorded interview of Wright. The Government references this interview as the reported statements of juror Terri Wright and being the basis for Myries motion for new trial. Glaringly, the Governments Response omits any reference to the fact that the computer hard drive Wright produced for examination had no history of internet use during the two week Court ordered period after the trial.

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THE LAW 7. The Sixth Amendment guarantees a criminal defendant the right to a trial by an impartial jury. See U.S. Const. Amend VI. In McDonough Power Equipment, Inc. v. Greenwood, 464 U.S. 548, 104 S.Ct. 845, 78 L.Ed.2d 663 (1984), the Supreme Court addressed juror dishonesty during voir dire and emphasized that [o]ne touchstone of a fair trial is an impartial trier of fact - a jury capable and willing to decide the case solely on the evidence before it.McDonough, 464 U.S. at 554 (quoting Smith v. Phillips, 455 U.S. 209, 217, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982)). Voir dire plays an essential role in protecting the right to trial by an impartial jury. Defendants deserve full and fair opportunity to expose bias or prejudice on the part of veniremen, and there must be sufficient information elicited on voir dire to permit a defendant to intelligently exercise not only his challenges for cause, but also his peremptory challenges. United States v. Barnes, 604 F.2d 121, 139 (2nd Cir. 1979) (internal quotations and citations omitted). 8. The Sixth Amendment to the United States Constitution also guarantees a criminal defendant an impartial jury to rule upon question of guilt or innocence. See Duncan v. Louisiana, 391 US 145, 147-49, 88 S.Ct. 1444, 20 L.Ed 2d 491 (1968). The Sixth Amendment guarantees to the criminally accused a fair trial by a panel of impartial, indifferent jurors. Irvin v. Dowd, 366 U.S. 717, 722, 81 S.Ct 1639, 6 L.Ed2d 751 (1961). 9. A jurors dishonesty during voir dire undermines a defendants right to a fair

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trial. Writing for a unanimous Supreme Court, Justice Cardozo concluded: If the answers to the question [during voir dire] are willfully evasive or knowingly untrue, the talesman, when accepted, is a juror in name only ... His relation to the court and to the parties is tainted in its origin; it is mere pretense and sham. Clark v. United States, 289 U.Srtz . 1, 11, 53 S.Ct. 465, 77 L.Ed. 993 (1933); see also McDonough, 464 U.S. at 554 (The necessity of truthful answers by prospective jurors if [voir dire] is to serve its purpose is obvious.). Thus, a juror who lies her way onto a jury is not really a juror at all; she is an interloper akin to a stranger who sneaks into the jury room. Dyer v. Calderon, 151 F.3d 970, 983 (9th Cir. 1998) (en banc).Justice must satisfy the appearance of justice. Offutt v. United States, 348 U.S. 11, 14, 75 S.Ct. 11, 99 L.Ed. 11 (1954). Accordingly, courts cannot administer justice in circumstances in which a juror can commit a federal crime in order to serve as a juror in a criminal case and do so with no fear of sanction so long as a conviction results. United States v. Colombo, 869 F.2d 149, 152 (2nd Cir. 1989). 10. In McDonough, the Supreme Court held that to obtain a new trial where, as here, a juror lied during voir dire, a party must first demonstrate that a juror failed to answer honestly a material question on voir dire, and then further show that a correct response would have provided a valid basis for a challenge for cause. The motives for concealing information may vary, but only those reasons that affect a jurors impartiality can truly be said to affect the fairness of a trial. McDonough, 464 U.S. at 556. In Colombo, the Second Circuit held that where a

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juror deliberately conceals information that, if revealed, might thwart her desire to sit on the jury, and resulting conviction cannot stand because such conduct obstruct[s] the voir dire and indicate[s] an impermissible partiality on the jurors part. Colombo, 869 F.2d at 151. While the Second Circuit has never found reason to overturn a verdict on the basis of juror nondisclosure under McDonough, United States v. Stewart, 433 F.3d 273, 303 (2nd Cir. 2006), the exceptional circumstancesdeliberate lies engineered to create a fictitious, marketable juror presented by this case warrant such extraordinary relief. 11. As a matter of established law, the burden of proving prejudice does not lie with the defendant because prejudice is presumed the moment the defendant establishes that extrinsic contact with the jury in fact occurred. United States v. Martinez, 14 F.3d 543 (11th Cir. 1994),citing United States v. Caporale, 806 F.2s 1487, 1503 (11th Cir. 1986), cert. denied, 482 U.S. 917, 107 S.Ct. 3191, 96 L.Ed.2d 679 (1987); United States v. Perkins, 748 F.2d 1519, 1533 (11th Cir. 1984). In a criminal case, any private communication [or] contact ... directly or indirectly, with the juror during a trial about the matter pending before the jury is, for obvious reasons, deemed presumptively prejudicial, if not made in pursuance of known, rules of the court and the instructions and directions of the court made during the trial, with full knowledge of the parties. Remmer. v. United States, 347 U.s. 227, 229, 74 S.Ct. 450, 451, 98 L.Ed. 654 (1954). See United States v. Spurlock, 811 F.2d 1461, 1463 (11th Cir. 1987) (adopting Remmer standard of presumptive prejudice).

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12. Once the defendant proves extrinsic contact, the burden shifts to the government to demonstrate that the consideration of the evidence was harmless. Perkins, 748 F.2d at 1533; Caporale, 806 F.2d at 1503; Spurlock, 811 F.2d at 1463. 13. An impartial jury is one in which every juror is capable and willing to decide the case solely on the evidence before [her]. McDonough, 464 U.S. at 554 (quoting Smith 455 U.S. at 217). Jurors are instructed that they are to decide the question of a defendants guilt based solely on the evidence presented. See United States v. Thomas, 116 F.3d 606, 616-17 n.10 (2d Cir. 1997). A juror is biased- -i.e., not impartialif her experiences would prevent or substantially impair the performance of [her] duties as a juror in accordance with [her] instructions and [her] oath. Wainwright v. Witt, 469 U.S. 412, 424, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985) (quoting Adams v. Texas, 448 U.S. 38, 45, 100 S.Ct. 2521, 65 L.Ed.2d 581 (1980)); see also United States v. Torres, 128 F.3d 38, 43 (2d Cir. 1997) (juror properly excused for cause who had structured financial transactions, in case involving structuring of cash deposits). Challenge for cause can be based on actual bias, implied bias, or inferable bias. See Torres, 128 F.3d at 43; see also United States v. Sampson, 820 F.Supp. 2d 151, 162-67 (D. Mass. 2011) (discussing at length each type of bias). 14. Bias may be implied when the case presents a relationship in which the potential for substantial emotional involvement, adversely affecting the impartiality. is inherent, Tinsley v. Borg, 895 F.2d 520, 527 (9th Cir. 1990). In those extreme situations where the relationship between a prospective juror and some

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aspect of the litigation is such that it is highly unlikely that the average person could remain impartial in his deliberations under the circumstances. Id. (Quoting Person v. Miller, 854 F.2d 656, 664 (4th Cir. 1998). A. Dishonesty on voir dire 15. Convictions overturned due to dishonesty on voir dire include Green v. White, 232 F.3d 671 (9th Cir. 2000) (jurorss lies concerning his background, both on juror questionnaire and during voir dire, and jurors attempts to cover up behavior in post-trial proceedings-where juror attempted to distance himself from statements in his declaration-supplied bias for presumption of actual bias and required habeas corpus relief); United States v. Perkins, 748 F.2d 1519 (11th Cir. 1984) (conviction for obstruction of justice was reversed and case remanded for a new trial. The court found that the defendant had suffered actual prejudice as a result of jurors failure to disclose prior associations with the defendant as well as prior involvement in criminal cases); McCoy v. Goldston, 652 F.2d 654 (6th Cir. 1981) (in civil right case grounded on alleged police misconduct, remand for hearing to determine whether jurors intentional failure to disclose fact that son was in training to become parole officer, despite being asked question on point during voir dire, rendered trial unfair based on either a resulting prejudicial impairment of right to exercise peremptory challenge or finding that correct answer would have provided basis for challenge for cause). 1. Actual Bias

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16. Actual bias is bias in fact. Torres, 128 F.3d at 43 (quoting United States v. Wood, 299 U.S. 123, 133, 16 S.Ct. 839, 40 L.Ed. 980 (1936); see also Greer, 285 F.3d at 171. Whether a juror is actually biased is a question of fact determined by the trial judge. See Dyer, 151 F.3d at 973 (citing Patton v. Young, 467 U.S. 1025, 1038, 104 S.Ct. 2885, 81 L.Ed.2d 847 (1984)); see also Torres, 128 F.3d at 43 (citing Wood, 299 U.S. at 133). A juror is found by the judge to be partial either because the juror admits partiality. . . or the judge finds actual partiality based upon the jurors voir dire answers. Torres, 128 F.3d at 43; see also Hughes v. United States, 258 F.3d 453, 456 (6th Cir. 2001) (requiring a new trial after seated juror expressed during voir dire her bias against defense based on her relationships with law enforcement officers). 2. Implied Bias

17. Because actual bias is often difficult to detect, court imply bias when certain circumstances create too great a risk of affecting a jurors decision making process, even if the juror is not, consciously, fully aware of the impact. Fields v. Brown, 503 F.3d 755, 806 (9th Cir. 2007) (Berzon, J. Dissenting). As explained long ago by the Supreme Court: Bias or prejudice is such an elusive condition of the mind that it is most difficult, if not impossible, to always recognize its existence, and it might exist in the mind of one (on account of his relations with one of the parties) who was quite positive that he had no bias, and said that he was perfectly able to decide the question wholly uninfluenced by anything but the evidence. The law therefore most wisely says that, with regard to some of the relations which may exist between the juror and one of the parties, bias is implied, and evidence of its actual 9

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existence need not be given. Crawford v. United States, 212 U.S. 183, 196, 29 S.Ct. 260, 53 L.Ed. 465 (1909); see also McDonough, 464 U.S. at 556 (Blackmun, J., concurring) (recognizing implied bias as a basis for relief); Smith, 455 U.S. at 221-22 (OConnor, J., concurring) (same). 18. Implied bias is determined as a matter of law and attributed to a prospective juror regardless of actual partiality. Torres, 128 F.3d at 45 (citing Wood, 299 U.S. 133); see also United States v. Tucker, 243 F.3d 499, 509 (8th Cir. 2001) (implied bias determined without regard to [the jurors] subjective state of mind). Where a juror is implicitly biased, disqualification of that juror is mandatory. See United States v. Rhodes, 177 F.3d 963, 965 (11th Cir. 1999). Therefore, if a juror who participated in rendering a verdict was impliedly biased, the moving party is entitled to a new trial. See, e.g. Hunley v. Gonzalez, 875 F.2d 316, 319-20 (7th Cir. 1992). 19. Courts imply bias in extreme situations where the relationship between a prospective juror and some aspect of the litigation is such that it is highly unlikely that the average person could remain impartial in his deliberations under the circumstances. Person v. Miller, 854 F.2d 656, 664 (4th Cir. 1988); see also Fields, 503 F.3d at 770); Sanders v. Norris, 529 F.3d 787, 792 (8th Cir. 2008). some examples might include a revelation that the juror is an actual employee of the prosecuting agency, that the juror is a close relative of one of the participants in the trial or the criminal transaction, or that the juror was a witness or somehow involved in the

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criminal transaction. Smith, 455 U.S. at 222 (OConnor, J., concurring); see also United States v. Brazelton, 557 F.3d 750, 753-54 (7th Cir. 2009) (explaining that courts must imply bias if the juror is related to one of the principals in the case, regardless of whether the juror is objective in fact). Courts imply bias when there are similarities between the personal experiences of the juror and the issues being litigated. See Sampson, 820 F.Supp. 2d at 153-64 (quoting Skaggs v. Otis Elevator Co., 164 F.3d 511, 517 (10th Cir. 1998) and collecting cars where bias was implied based on the jurors experiences (internal quotation marks omitted)). 20. The issue for implied bias is whether an average person in the position of the juror in controversy would be prejudiced. United States v. Gonzalez, 214 F. 3d 1109, 1112 (9th Cir. 2000). 3. Inferable Bias 21. Inferable or inferred bias exists when a juror discloses a fact that bespeaks a risk of partiality sufficiently significant to warrant granting the trial judge discretion to excuse the juror for cause, but not so great as to make mandatory a presumption of bias. Greer, 285 F.3d at 171 (quoting Torres, 128 F.3d at 47). As the Second Circuit reasoned: There is not actual bias because there is no finding of partiality based upon either the jurors own admission or the judges evaluation of the jurors demeanor and credibility following voir dire question as to bias. And there is no implied bias because the disclosed fact does not establish the kind of relationship between the juror and the parties or issues in the case that mandates the jurors excusal for cause. 11

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Nonetheless, inferable bias is closely linked to both of these traditional categories. Just as the trial courts finding of actual bias must derive from voir dire questioning, so the court is allowed to dismiss a juror on the ground of inferable bias only after having received responses from the juror that permit an inference that the juror in question would not be able to decide the matter objectively. In other words, the judges determination must be grounded in facts developed at voir dire. And this is so even though the juror need not be asked the specific question of whether he or she could decide the case impartially. Moreover, once facts are elicited that permit a finding of inferable bias, then just as in the situation of implied bias, the jurors statements as to his or her ability to be impartial become irrelevant. Torres, 128 F.3d at 47; see also Greer, 285 F.3d at 171; United States v. Quinones, 511 F.3d 289, 301 (2nd Cir. 2007). 22. Although declining to define the precise scope of a trial judges discretion to infer bias, Judge Calabresi further explained: it is enough for the present to note that cases in which a juror has engaged in activities that closely approximate those of the defendant on trial are particularly apt. the exercise of the trial judges discretion to grant challenges for cause on the basis of inferred bias is especially appropriate in such situations. Because [in such cases] the bias of a juror will rarely be admitted by the juror himself, partly because the juror may have an interest in concealing his own bias and partly because the juror may be unaware of it, [partiality] necessarily must be inferred from surrounding facts and circumstances. McDonough, 464 U.S. at 448 (Brennan, Jr., concurring) (internal quotation marks and citation omitted). Torres, 128 F.3d at 47. 23. Therefore, the doctrine of inferable bias, which courts have long

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implicitly assumed to exist, Torres, 128 F.3d at 43, permits a court in its discretion to dismiss a juror because of an inference that the juror will not be able to decide the case based solely on the evidence. 24. Jurors dishonesty, of itself, is evidence of bias) Burton v. Johnson, 948 F.2d 1150, 1159 (10th Cir. 1991). Jurors conscious censoring of information was hostile to the interest of the defense and the court, which in itself constitutes bias).Jurors dishonest, in and of itself, is a strong indication that he was not impartial. United States v. Perkins, 748 F.2d 1519, 1532 (11th Cir. 1984). 25. An appellate court may consider a jurors deliberate concealment of information during voir dire to be evidence of bias and grant a new trial. Green v. White, 232 F.3d 671, 675-76 (9th Cir. 2000) (new trial required because juror lied on jury questionnaire and during voir dire, and pattern of lies created uncertainties about whether he could render impartial verdict). Appellate courts may also reverse conviction when a jurors mistaken but honest response to a material voir dire question prevented the trial court from discovering actual bias. See McDonough Power Equip. v. Greenwood, 464 U.S. 548 555-56 (1984) (plurality opinion). To establish reversible error in case involving inadvertent nondisclosure, a defendant must demonstrate that a juror failed to answer honestly a material question on voir dire and that a correct response would have provided a valid basis for a challenge for cause. Id.; see e.g. U.S. v. St. Clair, 855 F.2d 518, 522-23 (8th Cir. 1988) (new trial required in prosecution for conspiracy to construct destructive

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device because juror admitted during deliberation to 7 years of experience with explosive and did not speak up during voir dire). CONCLUSION Had this Court and Myrie known the true facts, Wright would have been subject to a valid challenge for cause or peremptory challenged. In any event, had the truth been known, Wright would not have served on this jury. Wright was manifestly incapable of performing the central functions of a jurorevaluating witness credibility and making a fair assessment of the evidence. Based on her false voir dire answers, her research during the trial, her taking of notes outside of the Court, and her production of some other computer hard drive for examination instead of the one she utilized for her research. The Court can easily infer that Wright is inherently unable to perform the crucial function of ascertaining the truth. As a result, and in the interest of justice, this Court must order that Myrie be granted a new trial. This the 8th day of April 2013. Respectfully submitted MARK ANTHONY MYRIE By: s/ Imhotep Alkebu-lan Imhotep Alkebu-lan MSB#10592

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Post Office Box 31107 Jackson, Mississippi 39286-1107 601-353-0450 Telephone 601-353-2818 Telecopier Ialkebulan@aol.com CHOKWE LUMUMBA MSB #8865 Post Office Box 31762 Jackson, Mississippi 39286-1762 601-353-4455 Telephone 601-353-2818 Telecopier clumumbafreelon@aol.com ATTORNEYS FOR DEFENDANT

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CERTIFICATE OF SERVICE I hereby certify that on the below date I electronically filed the foregoing with the Clerk of the Court using the ECF system which sent notification of such filing to the following individual(s): David Oscar Markus, Esq. Marc David Sellers, Esq. 40 N.W. 3rd Street Penthouse One Miami, FL 33128 James C. Preston, Jr. Anita M. Cream AUSA 400 N. Tampa Street Tampa, FL 33602

I hereby certify that I have mailed by United States Postal Service the document to the following non-ECF participant: William Harold Long Jr. Attorney At Law 99 NW 183rd Street Suite 241D Miami Gardens, FL 33169-4551 This the 8th day of April 2013. s/ Imhotep Alkebu-lan Imhotep Alkebu-lan Lori D. Palmieri Attorney At Law 13055 W. Linebaugh Avenue Tampa, FL 33626

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