Sunday, January 15th, 2012

Ex Parte Line

United States v. Collins, No. 10-1048-cr (2d Cir. January 9, 2012) (Calabresi, Chin, Carney, CJJ)

A jury convicted defendant Collins of several counts of fraud. The circuit ordered a new trial based on the district court’s handling of a series of jury notes relating to difficulties in deliberations.


Something about this trial inspired great turmoil during jury deliberations. It began with a report, after five days of trying, of difficulty reaching a verdict. The district judge gave a tepid reply, but later that day a CSO heard a disruption in the jury room and, when he entered, one juror told him that another had threatened him. The judge brought the jury in and urged civility.

The next day brought two more notes. One, from Juror 4, indicated that Juror 9 had threatened to “cut off [his] finger” and have her “husband take care of [him].” The second, from the foreperson, indicated that both Juror 4 and Juror 9 were at fault. The judge responded by note, although that note did not reach that jury until the next morning.

The next afternoon, the judge received two more notes. One was a routine request for exhibits and testimony. The second was another from the foreperson, decsribing Juror 4’s “odd behavior” during deliberations. It accused of him of bartering his vote on one count for a vote on another, suggested that this was the cause of the altercation between him and Juror 9, and also suggested that Juror 4 was refusing to deliberate further. The district judge did not disclose the content of this note to the attorneys, and simply indicated, over objection, that he would be speaking with Juror 4 privately. A court reporter took down the judge’s interview with the juror and, once the interview concluded, the judge read the note and the interview into the record. This prompted defense counsel to move for a mistrial.

The court denied this, and the next day the jury indicated that it could not reach a unanimous verdict on all counts. The court took a partial verdict – guilty of five counts – and eventually sentenced Collins to eight-four months’ imprisonment, which was stayed pending appeal.

The Circuit’s Opinion

The appellate court ordered a new trial, concluding that the district court’s handling of the situation violated Collin’s right to be present, and was not harmless error.

The circuit began with a warning against responding to jury notes ex parte; such communications are “pregnant with possibilities for error.” Of particular concern is that the judge will give a supplemental instruction, for which the defendant should always be present, or will “generate unintended and misleading impressions of the judge’s subjective personal views.”

The district court first deprived Collins of his right to be present when it chose note to disclose the contents of the note that prompted the private conference with Juror 4. The court should have “instructed the jury to stop deliberating while it read the Note into the record and consulted counsel on how to proceed.”

The court also violated Collins’ right to be present by interviewing Juror 4 ex parte because some of what the court told the juror constituted supplemental instruction. The judge stressed the importance of reaching a resolution. This was a “direct supplemental instruction,” a staple of the modified Allen charge.

Finally, the circuit concluded that Collins was prejudiced. “Because of the delicate nature of jury deliberations, even seemingly innocuous ex parte communications between the court and the jury can amount to reversible error.” Here, the court could not say with “fair assurance” that the district court’s errors “did not substantially affect the verdict. The court singled out a dissenting juror, and emphasized to him the importance of reaching a verdict. We cannot ignore the possibility that Juror 4 walked out of the ex parte conference with the impression that he should not stand in the way of a prompt resolution of the case.” The district judge also failed to acknowledge Juror 4’s complaints of harassment; this “exacerbated the potential for prejudice” by possibly giving Juror 4 the impression that the judge “was taking sides against him” and by sending “a signal to the rest of the jurors that the court condoned their behavior towards Juror 4.”

Nor did the fact that the jury deliberated for another full day after the ex parte conference render the error harmless. In the context of a “highly complex fraud case involving fourteen counts, one day of deliberations is not a significant amount of time.”

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