Free Sealed Motion - District Court of Connecticut - Connecticut

Case 3:02-cr-00264-AHN

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UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT

UNITED STATES OF AMERICA

v.

WALTER A. FORBES

: : : : : : : : :

No. 3:02CR00264 (AWT)

February 8, 2006

MOTION OF THE UNITED STATES TO SUBSTITUTE ALTERNATE JUROR FOR EXCUSED JUROR In a carefully worded submission, the defendant states that he would be "willing to stipulate to a jury of less than twelve." Meg Keeley E-mail, 2/7/06, 5:42 p.m. The defendant then "notes

that the Second Circuit has long stated a preference for proceeding with eleven jurors rather than substituting an alternate juror for an excused juror." Id. Based on the

defendant's e-mail, it appears that the defendant would be willing to proceed with eleven, but not with ten or fewer jurors. Indeed, Federal Rule of Criminal Procedure 23(b)(3) does not expressly authorize a district court to accept a verdict from fewer than 11 jurors without a stipulation by the parties. Fed. R. Crim. P. 23(b)(3) ("After the jury has retired to deliberate, the court may permit a jury of 11 persons to return a verdict, even without a stipulation by the parties, if the court finds good cause to excuse a juror."). Therefore, if another See

Case 3:02-cr-00264-AHN

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juror were excused for any reason, then the defendant's proposal would put this Court in the position of declaring a mistrial or substituting an alternate juror (or jurors) in the event that the alternate jurors were not already dismissed. The possibility of

another juror being excused is not fanciful, as a juror at the end of today's session communicated to the Court that she was considering asking to be excused. The United States objects to the defendant's proposal of proceeding with 11 jurors. Instead, the United States proposes

that this Court substitute an alternate juror in accordance with Federal Rule of Criminal Procedure 24(c)(3). Rule 24(c)(3)

provides that a "court may retain alternate jurors after the jury retires to deliberate" and that "[i]f an alternate replaces a juror after deliberations have begun, the court must instruct the jury to begin its deliberations anew." This Court would properly

exercise its discretion by following Rule 24's requirements. See, e.g., United States v. Williams, 283 F.Supp.2d 850, 857 (E.D.N.Y. 2003) (rejecting defendant's challenge to substitution of two alternate jurors following start of jury deliberations where "all the requirements of Rule 24 were complied with strictly"). The defendant cites cases to support the proposition that the Second Circuit's preference is to proceed with only 11 jurors. The difficulty with the defendant's reliance on those

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cases is that they were decided before Rule 24 was explicitly amended to provide for substituting alternate jurors after jury deliberations commenced. Before the 1999 amendments to Rule

24(c), the rule required courts to excuse all alternate jurors (who had not been selected to replace other jurors) when the jury retired to deliberate. See Fed. R. Crim. P. 24, Advisory In support of the amendment,

Committee Notes, 1999 Amendments.

the Advisory Committee explained that "there may be cases where it is better to retain the alternates when the jury retires, insulate them from the deliberation process[, a]nd have them available should one or more vacancies occur in the jury." Id.

Specifically, the Advisory Committee noted that "[t]hat might be especially appropriate in a long, costly, and complicated case." Id. As this Court is well aware, this case clearly qualifies as In light of the tremendous time

"long, costly, and complicated."

and resources that this Court and the parties have invested in this case, this Court would properly exercise its discretion by substituting an alternate juror in accordance with Rule 24(c)(3),

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rather than proceeding with 11 jurors and running the serious risk of a mistrial should one additional juror be excused. Respectfully submitted, CHRISTOPHER J. CHRISTIE Special Attorney U.S. Department of Justice /s/ Michael Martinez By: MICHAEL MARTINEZ NORMAN GROSS CRAIG CARPENITO Special Attorneys U.S. Department of Justice 970 Broad Street, Suite 700 Newark, New Jersey 07102

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CERTIFICATE OF SERVICE The undersigned certifies that on this day I caused to be served copies of the foregoing upon the following via Federal Express and e-mail: Barry S. Simon, Esq. Williams & Connolly, LLP Residence Inn 924 Main Street Hartford, CT 06103 I declare under penalty of perjury that the foregoing is true and correct.

/s/ Debra M. Elliott DEBRA M. ELLIOT Sr. Paralegal Specialist U.S. Department of Justice

Dated: February 8, 2006 Hartford, Connecticut