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U.S. v. AYENI
United States District Court, District of Columbia
February 25, 2003
UNITED STATES OF AMERICA,
SHOLA AYENI, DEFENDANTS.
The opinion of the court was delivered by: Richard W. Roberts, United States District Judge
MEMORANDUM OPINION AND ORDER
Defendant Shola Ayeni was convicted by a jury of conspiracy, wire
fraud, theft from a program receiving federal funds, and first degree
fraud. The defendant has filed a motion for a new trial,*fn1 arguing
the defendant's right to a fair trial was violated by a contact
between a government witness and a member of the jury, and by the Court
granting the parties time for additional closing arguments to address
questions posed by the deliberating jury. Because the defendant has not
shown that the contact between the government witness and the juror
affected the jury in any way and it was within the Court's discretion to
allow supplemental closing arguments, and because the defendant has
failed to show that a miscarriage of justice will result if the verdict
is not overturned, the defendant's motion will be denied.
Ayeni was a licensed attorney often appointed by the Superior Court of
the District of Columbia to represent indigent defendants. He and
co-defendant Troy Robinson were charged in an indictment with conspiracy
and related substantive offenses in connection with an alleged scheme to
defraud the Superior Court by obtaining payment from the Superior Court
for fraudulent witness fee vouchers. Robinson pled guilty to the
indictment but Ayeni proceeded to trial. Ayeni's first trial ended in a
mistrial, after the jury in that case was unable to reach a unanimous
Robinson testified for the government at Ayeni's second trial. After
the jury began deliberating, the jury sent a note which said that one of
the jurors had disclosed to the others that he had encountered Robinson
during a recess in the proceedings. In response to the note, I
instructed the jury to stop deliberating and to have the juror in
question come into the courtroom. I thereafter questioned the juror. He
said Robinson had asked him whether he knew where Robinson could obtain
vouchers. The juror replied to Robinson that he was new to the
courthouse and did not know what Robinson was talking about. In response
to my questions, the juror vowed that despite the incident, he would
still be able to follow my earlier instruction to consider as evidence
during deliberations only the evidence introduced in the courtroom during
the trial, and not events he may have seen outside the courtroom.
Because the juror had mentioned the incident to the other members of
the jury, each juror was brought into the courtroom and questioned
individually regarding what he or she knew about the incident and whether
the juror could still follow the instruction to consider as evidence
during deliberations only the evidence introduced in the courtroom during
the trial. No other juror witnessed the incident or had heard more about
it. Each juror vowed that the incident would in no way interfere with
his or her ability to abide by the instruction to consider as evidence
only the evidence introduced in court. Having credited the jurors'
responses, I denied the defendant's motion for a mistrial.
In another note, the jury announced that it was unable to reach a
unanimous verdict. In response, I proposed to the jury that it return to
the jury room, identify areas of agreement and areas of disagreement, and
discuss the law and the evidence as they relate to the areas of
disagreement. I instructed the jurors that if, after doing this, they
were still having disagreements, they were welcome, but not required, to
identify for the Court any questions they had about the evidence or the
instructions regarding which they would like assistance from the Court or
counsel. I suggested that if they chose this option, they should list,
in writing, what further
assistance might help them in reaching a
After receiving these instructions, the jury continued its
deliberations. A short time later, the jury sent out a note that asked
why the government's handwriting expert was called to testify, and
whether the parties agreed that the defendant's signatures in Superior
Court witness voucher log books were authentic. After counsel submitted
briefs on this development, I chose to allow the parties to deliver
supplemental closing arguments to address the jury's questions. Each
side did so. The defendant now challenges the responses to both jury
notes and seeks a new trial.
A motion for a new trial may be granted if the court concludes "it
would be a miscarriage of justice to let the verdict stand." United
States v. Walker, 899 F. Supp. 14, 15 (D.D.C. 1995) (internal quotation
marks omitted). It is within the trial court's sound discretion to
determine whether a new trial is warranted. See id. For a verdict to be
set aside, the moving party must show that an error has occurred, that
the error "was substantial, not harmless, and that the error `affected
the defendant's substantial rights.'" Id. (quoting United States v.
Johnson, 769 F. Supp. 389, 395-96 (D.D.C. 1991)).
When a motion for a new trial is based on improper juror contact, the
ultimate inquiry is whether the contact resulted in prejudice to the
defendant. United States v. Gartmon, 146 F.3d 1015, 1028-29 (D.C. Cir.
1998). In determining whether the defendant was prejudiced, the court
considers the nature of the communication, the length of the contact,
whether possible juror taint would have been removed by any limiting
instruction, and the impact of the communication on both the juror
involved and the rest of the jury. United States v. Williams,
822 F.2d 1174, 1188-89 (D.C. Cir. 1987), superseded by rule on other
grounds as stated in United States v. Caballero, 936 F.2d 1292, 1298-99
(D.C. Cir. 1991).
The defendant argues that I improperly denied his motion for a mistrial
after the encounter between Robinson and the juror was revealed. The
defendant's argument in support of his claim consists only of a brief
description of the facts underlying the claim followed by a conclusory
statement that his "rights to a fair and impartial trial were violated
and the only remedy is to set aside the jury's verdict and give [the
defendant] a new trial."
The defendant cites no law in support of his argument and provides no
analysis of his claim. More importantly, nowhere in the defendant's
motion does he set forth an argument that he was prejudiced by the
incident in question. Nor is any prejudice apparent. The juror's
testimony regarding the encounter established that the encounter was
brief, that Robinson did not attempt to coerce or intimidate the juror,
and that Robinson did not try to discuss the merits of the case with
him. In addition, each juror was questioned individually outside the
presence of the other jurors, and each juror assured the parties and me
that she or he would consider as evidence during deliberations only the
evidence introduced in court. Moreover, in light of the substantial
evidence of guilt before the jury, it cannot reasonably be argued that
the incident contributed in any meaningful way to the verdict against the
defendant. See Gartmon, 146 F.3d at 1029. In sum, the defendant's claim
that the encounter between a member of the jury and Robinson deprived the
defendant of a fair and impartial trial lacks support in the record.
The defendant also seeks a new trial claiming that it was improper to
allow supplemental closing arguments, reasserting the arguments set forth
in his earlier brief on this issue. He cites no cases in support of his
argument, though. Rather, both in his earlier brief on the issue and in
the present motion, the defendant concedes that courts in other
jurisdictions have allowed supplemental closing arguments under varying
circumstances. See e.g., United States v. Horton, 921 F.2d 540, 547 (4th
Cir. 1990) (stating that "where a new theory is presented to the jury in
a supplemental instruction after closing argument, the court generally
should give counsel time for additional argument"); United States v.
Owens, 453 F.2d 355, 355 (5th Cir. 1971) (holding that the district court
did not abuse its discretion in granting each party additional closing
arguments). See also Hon. B. Michael Dann, "Learning Lessons" and
"Speaking Rights": Creating Educated and Democratic Juries, 68 Ind. L.J.
1229, 1269, 1271-72 (1993) (proposing that courts follow the practice of
allowing supplemental arguments and presenting a study of a case in which
that practice was followed). Indeed, in defendant's earlier brief, he
conceded as applicable the legal precedent cited by the government in
support of allowing supplemental argument and agreed that the
government's memorandum on the issue was accurate. See Def.'s Resp. to
Government's Mem. Concerning (I) Propriety of Providing Supplemental Jury
Instruction for Second Degree Fraud and (II) Propriety of Providing
Supplemental Closing Argument in Resp. to Specific Jury Request at 1.
With no caselaw to support his claim that supplemental closing
arguments are improper, the defendant states only that it has not been
the practice of courts in this jurisdiction to allow such supplemental
arguments to the jury. I fully considered and rejected defendant's
argument when I denied the defendant's earlier motion for a mistrial.
I had invited the jurors to say what assistance might help them reach a
verdict. They did so, asking why a witness was called and whether the
parties agreed about the authenticity of signatures. The jury was
entitled at that point to the help it was invited to seek. I could have
attempted to fashion an answer that characterized the government's
position concerning the importance of the handwriting expert's testimony,
and the parties' positions about the questioned signatures. The risk was
that such an instruction from the Court, worded so as to avoid lapsing
into advocacy, might not sufficiently or fairly capture the parties'
nuanced positions and would be unresponsive. Alternatively, I could have
simply instructed the jurors that they had to rely upon their
recollection of the evidence and arguments. That would have been of no
help. Helpful and responsive answers required advocacy. The jury's
questions were precisely the types of questions to which supplemental
argument was well-suited.
The defendant has not offered any new arguments that warrant vacating
my earlier ruling. The defendant has failed to demonstrate that he was
unfairly prejudiced by the supplemental closing arguments or that a
miscarriage of justice will result if the verdict is not overturned.
Accordingly, the defendant's motion for a new trial will be denied.
Because the defendant has failed to present any evidence that he was
prejudiced by the contact between a member of the jury and Robinson, and
because the defendant has failed to carry his burden of
a miscarriage of justice will result if the verdict is allowed to stand,
the defendant's motion for a new trial will be denied. Accordingly, it is
ORDERED that the defendant's motion for new trial  be, and hereby
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