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USDC IN/ND case 2:14-cr-00071-PPS-APR document 155 filed 08/14/15 page 1 of 7




No.: 2:14-CR-71 PS

Defendant Samuel Bradbury was convicted by a jury on one count of violating
18 U.S.C. 844(e) by maliciously conveying false information about a threat to kill or
injure persons or destroy or damage property using fire or explosives. He has now filed
a motion arguing that the interests of justice require a new trial [DE 149]. Bradbury
makes two arguments for a new trial. First that the jury deliberations began too late in
the day and thus deprived him of his right to a full and robust comparison of views
among the jurors. Second, that I improperly excluded evidence concerning an unrelated
threat made by a Lafayette police officer. For the following reasons, Bradburys motion
Federal Rule of Criminal Procedure 33(a) allows the court to vacate any
judgment and grant a new trial if the interest of justice so requires. Fed.R.Crim.P. 33(a).
A jury verdict in a criminal case is not to be overturned lightly, and therefore a Rule 33
motion is not to be granted lightly. United States v. Morales, 902 F.2d 604, 605 (7th
Cir.1990). As such, the rule is reserved for only the most extreme cases. United States
v. Linwood, 142 F.3d 418, 422 (7th Cir.1998). But if the judge believes there is a serious
danger that a miscarriage of justice has occurredthat is, that an innocent person has

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been convictedhe has the power to set the verdict aside ... even if he does not think
that he made any erroneous rulings at the trial. Morales, 902 F.2d at 605. (citation
Bradbury argues that I made a mistake in submitting the case to the jury just
after 5:00 p.m. on Thursday, July 2, 2015. Bradbury argues that the late start combined
with the pending federal holidaythe courthouse was closed Friday in observance of
the July 4 holidayled to a mentally fatigued jury rushing to reach a verdict. He argues
that this situation deprived him of his right to a robust comparison of views and
arguments among the jurors. See Allen v. United States, 164 U.S. 492, 501 (1896).
I disagree. The Seventh Circuit has long held that a district court has wide
discretion in the scheduling of a trial and that this discretion should not be disturbed in
the absence of manifest abuse. United States v. Murvine, 743 F.2d 511, 514 (7th Cir.
1984); Harsham v. California State Bd. Of Equalization, 200 F.3d 1035, 1050 (7th Cir. 2000) .
In Murvine, the Seventh Circuit declined to order a new trial when jury deliberations
began at 9:30 p.m. on a Friday night. The court declined to hold that deliberations
begun on a Friday night are incapable of producing a fair verdict without clear
indications that the jury was exhausted, hungry, confused or otherwise uncomfortable.
Id. at 515. The court pointed out that the defendant was able to put on all his evidence,
the final day of trial had been liberally peppered with rest periods, and that the jury
was fed and generally cared for. Murvine, 743 F.2d at 515.
Likewise, here, there was no indication that the jury was fatigued, rushed or

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uncomfortable. Deliberations started at the relatively early hour of 5:00 p.m, and the
jury had plenty of breaks throughout the day. The jurys day started around 9 a.m. They
took a 15 minute recess at mid-morning, an hour lunch break, and a 45 minute break for
the instruction conference.
The timing of the deliberations further undermines Bradburys claim. This was
not a rush to judgment. Far from it. The evidence at trial took a little more than three
days to put on. That includes a lot of time that was wasted while the court and the jury
patiently waited on defense witnesses. (The court adjourned early in the afternoon on
Wednesday because an expert witness for the defense was not available). Despite the
brief trial, the jury nonetheless deliberated for over four hours. They received the case
around 5 p.m. and indicated that they had reached a verdict at approximately 9:20 p.m.
Four hours is more than a reasonable amount of time to deliberate on a straightforward,
one-count case that took less than four days to try. During deliberations, the jury never
indicated that it was fatigued. Nor did they send a note asking to go home or take a
break. If they had, I would have let them. Instead, around 6 p.m., they asked for food
and more coffee, indicating their desire to press on. Both were provided. It seems to me
that a jury that deliberates well into the evening before a holiday is the sign of a jury
that is taking things seriously, not one that is trying to rush to a decision to get on with
their weekend. I made it very clear to the jury throughout the trial that there was a
good chance that proceedings would spill over into the week of July 6th. In fact, that
was the very last thing I told the jury when I dismissed them on Wednesday afternoon,

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the day before the final trial day. So without any clear signor any sign at allthat the
jury was fatigued or exhausted, I decline to overturn their verdict.
Next, Bradbury argues that he deserves a new trial because I failed to admit
evidence regarding a threat allegedly made by a Lafayette police officer to a Lafayette
resident in January 2012. According to Bradbury, Officer Charles Williams of the
Lafayette Police left a threatening message on Timothy Vander Plaatss answering
machine because Williams thought Vander Plaats had hit on Williams girlfriend. The
Lafayette Police Department was apparently less than diligent in investigating this
threat, which led to Vander Plaats filing a lawsuit.
Bradburys counsel sought to introduce evidence regarding this unrelated
incident in a pre-trial motion [DE 99]. She argued that the evidence would show that the
forceful police response to Bradburys statement was not the result of ordinary police
policy, but resulted from the fact that Bradbury threatened police officers. Second,
counsel argued that it went to Bradburys intent. If Bradbury saw that the police did not
take Williams threat seriously, he was less likely to believe that they would take his
At a pre-trial hearing, I excluded this evidence on the grounds that it was
irrelevant. The evidence concerned a completely unrelated threat that was investigated
by an unrelated police department. Bradburys statement was political and aimed at
public figures. Officer Williams threat was purely personal. Bradburys statement was
primarily investigated by the West Lafayette Police Department and the Tippecanoe

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County Sheriffs Department. The Vander Plaats incident was handled by the Lafayette
Police Department. The fact that different police departments investigated different
threats differently does not help prove anything with respect to Bradbury.
As to evidence of Bradburys intent, counsel never proffered that Bradbury
actually knew about the Vander Plaats incident. It was on the news, but there was no
indication that Bradbury saw it. In my ruling excluding the evidence, I indicated to
counsel that, if Bradbury chose to testify, he would of course be free to testify regarding
the Vander Plaats incident if it influenced his decision to post on Facebook. But, absent
evidence that Bradbury knew about the incident, I was not going to allow counsel to
confuse the jury with evidence about an unrelated threat.
At the motions hearing, I did state that my ruling was conditional. Indeed, all of
my rulings on motions in limine are conditional. Sometimes surprising things happen at
trial allowing evidence conditionally excluded to suddenly become relevant. I invited
counsel to renew the motion if, in the course of the trial, evidence was introduced or
testimony elicited that somehow rendered the Vander Plaats incident relevant. I
suggested, as an example, that the incident might be relevant if a police officer were to
testify that his or her police department takes every single threat seriously and
investigates every single threat. If a Lafayette officer were to make such a statement, it
could possibly open the door to testimony regarding the lack of investigation into the
Vander Plaats threat.
Inspired by my suggestion, Bradburys counsel asked Officer Troy Harris of the

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West Lafayette Police Department the following question at trial: Its fair to say that
your department, the Tippecanoe County Sheriffs Department, and the Lafayette Police
Department are trained to take and do in fact take and investigate every reported threat
equally seriously, right? Officer Harris answered, Yes. Counsel then moved for
permission to question Harris about the Vander Plaats incident. I denied the request on
the grounds that counsel had not laid the proper foundation. For this, Bradbury seeks a
new trial.
My refusal to reconsider the exclusion of the Vander Plaats evidence was correct.
The evidence was irrelevant and counsels question did not change that fact. Harris was
not a member of the Lafayette Police Department and did not investigate the Vander
Plaats threat. Allowing counsel to question him about it would have been a confusing
waste of time. Moreover, it would have required a trial-within-a-trial to establish the
facts of the incident which would have thoroughly confused the jury in exchange for
evidence with little probative value. Under these circumstances, the balance required by
Rule 403 needless consumption of time, confusion of the issues etc. on one side of the
scale versus very little probative value on the other made exclusion of the evidence
the correct decision.
Further, even if my decision to exclude this evidence was wrongand I firmly
believe it wasntan incorrect ruling on an ancillary evidentiary issue is leagues away
from the type of extreme cases or miscarriages of justice that justify a new trial. See
Linwood, 142 F.3d at 422.

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Accordingly, Defendants motion [DE 149] is DENIED.

ENTERED: August 14, 2015
s/ Philip P. Simon