Free Response to Motion - District Court of Arizona - Arizona

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 A. PROCEDURAL HISTORY On September 8, 2005, following a three-month trial, and approximately five days of deliberations, the jury returned a mixed verdict, finding defendant Dennis Poseley guilty on counts 1, Defendants. Plaintiff, United States of America, by and through its counsel of record, Larry J. Wszalek and Mark T. Odulio, Trial Attorneys, Department of Justice, Tax Division, files its Response to Defendant Dennis Poseley's Motion for Mistrial Due to Jury Misconduct. v. 1. Dennis O. Poseley; 2. Patricia Ann Ensign; 5. David W. Trepas aka David Morningstar; 6. Rachel McElhinney; 8. Keith D. Priest; Government's Response to Defendant Dennis Poseley's Motion For Mistrial Due to Jury Misconduct United States of America, Plaintiff, CR03-344-PHX
LARRY W SZALEK State of W isconsin Bar No. 1003722 MARK T. ODULIO District of Maryland Bar No. 26348 Trial Attorneys U.S. Department of Justice Tax Division Two Renaissance Square 40 N. Central Avenue, Suite 1200 Phoenix, Arizona 85004-4408 Telephone (602) 514-7661 PAUL K. CHARLTON United States Attorney District of Arizona

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA

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2, 3, 4, 5, and 6; Defendant Patricia Ensign not guilty on counts 1, 7, 8, 9, and guilty on counts 10 and 11; Defendant David Trepas guilty on counts 1, 16, 17, 18, and 19; Defendant Keith Priest not guilty on counts 1, 24, 25, and guilty on counts 26 and 27; and Defendant Rachel McElhinney guilty on counts

4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 September 16, 2005 (Dkt. No. 695). The present motion is not. Fed. R. Crim. P. 33 states in pertinent 24 25 26 27 28 2 part: the Court's instructions on the law. II. ARGUMENT A. Defendants' New Trial Motion Is Untimely And The Court Is Without Jurisdiction To Consider It thresholds constitutes extraneous prejudicial information requiring a mistrial. The government opposes this motion. First, the motion is untimely and this Court is without jurisdiction to consider it under Fed. R. Crim. P. 33. Second, the allegations lack credibility because the motion is based on two levels of unsubstantiated hearsay (an attorney relaying information from two convicted defendants about an alleged conversation they had with Juror 3). Third, any alleged misconduct was not prejudicial given 20, 21, 22, and 23. The jury could not reach a verdict on Count 1 against Defendant Rachel McElhinney. In his instant pleading, Defendant Dennis Poseley alleges juror misconduct and requests a new trial based on the claim that jurors conducted outside research on the tax filing thresholds. All codefendants join in this motion. Defendants argue that any outside research on the issue of filing

Initially, the Government notes that the alleged juror misconduct came to the attention of the defendants on the day of the verdict- September 8, 2005, and the instant motion was filed on January 3, 2006, nearly four months later. Defendants original Motion for new Trial was timely filed on

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On a defendant's motion, the court may grant a new trial to that defendant if the interests of justice so require . . . A motion for new trial based on newly discovered evidence may be made only within three years after the verdict or finding of guilty . . . A motion for new trial based on any other grounds may be made within 7 days after the verdict or finding of guilty or within any further time as the court may fix during the 7-day period.

Fed. R. Crim. P. 33 (emphasis added). The time limitations of Fed. R. Crim. P. 33 are jurisdictional. United States v. Smith, 331 U.S. 469 (1947); United States v. Lara-Hernandez, 588 F.2d 272, 275 (9th Cir. 1978). See also Wright, Federal Practice and Procedure: Criminal 2d § 558. The Court is without power to consider an untimely motion for a new trial. Id. See United States v. Dukes, 727 F.2d 34, 37 (1984); United States v. Bowler, 252 F.3d 741, 743 (5th Cir. 2001). See also Carlisle v. United States, 517 U.S. 416 (1996) (holding that district court had no jurisdiction to grant motion for judgment of acquittal filed one day after the time period provided for in Fed. R. Crim. P. 29(c)); United States v. Washington, 184 F.3d 653, 659 (7th Cir. 1999) (district court was without jurisdiction to consider motion for new trial filed eleven days after verdict). In the instant case, Defendants failed to file a new trial motion within the 7-day period prescribed under Rule 33. The Court did not enlarge the time in which to file post-trial briefs. Id. According to Rule 33, the Court can only extend the time to file a new trial motion based on "other grounds" if such extension is made within the 7-day time period. See Fed. R. Crim. P. 33; United States v. Hall, 214 F.3d 175, 178 (D.C. Cir. 2000). Defendants cannot now claim excusable neglect which might allow the Court to enlarge the time for filing a motion for new trial based on "other grounds." See Fed. R. Crim. P. 45(b) ("the court may not extend the time for taking any action under Rules 29, 33, 34 and 35, except to the

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extent and under the conditions state in them"). Further, Defendants cannot rely on the 3-year filing period for new trial motions based on newly discovered evidence. Clearly, Defendants' instant motion ­ which is based on alleged juror bias, misconduct, or

4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 among other things, the "credibility of the source" when reviewing a claim of juror misconduct or bias. 21 22 23 24 25 26 27 28 Obviously, if the Court properly rules that it is without jurisdiction to consider Defendants' new trial motion, further analysis is unnecessary. 4
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exposure to extraneous material ­ does not constitute a new trial motion based on "newly discovered evidence." See United States v. Kulczyk, 931 F.2d 542 (9th Cir. 1991). By their own admission, Defendant McElhinney became aware of the alleged misconduct on the day of the verdict. Defendants did not raise this issue in their original Motion for New Trial on September 16, 2005 and now, four months later, cry foul. The untimeliness of the present motion heightens its dubiousness. This case has seen its share of meritless motions with tax protestor leanings. One can only speculate why it took Defendants four months to raise these new allegations. Based on the foregoing, this Court is without jurisdiction to consider Defendants' mistrial motion. Allegations of Juror Misconduct are Unsubstantiated 1/

B.

The present motion is based on alleged conversations Defendant McElhinney had with Juror Three following the verdict on September 8, 2005. Neither Defendant McElhinney nor Juror Three have offered affidavits in support of these allegations. The Ninth Circuit has ruled that a Court must consider,

United States v. Smith, 424 F.3d 992, 1011 (9th Cir. 2005) (ruling that District Court did not abuse its discretion in denying evidentiary hearing and new trial stemming from allegation of juror misconduct

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and bias). As set forth in the motion, the Defendant's allegations are unsubstantiated and, considering the source, not credible. Each of the allegations are considered below. First, "Juror Three related, in essence, that some of the jurors had done some research because

4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 defendants were guilty, and in turn, convinced the remaining jurors that there was no basis for the 21 22 23 24 25 26 outside the courthouse challenging Juror Five with slanted information that "the Government's 27 28 5
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they (the jurors) could not come up with a filing threshold number when they reviewed the exhibits and the law." (Defendant's Motion for Mistrial at pg. 5). The government finds this to be non-credible since the jury was instructed on the law as to what the filing thresholds were. Second, "Juror Three indicated that one specific juror (Juror Five) informed the other jurors that he had learned of the filing threshold and explained it to the collective jurors." (Defendant's Motion for Mistrial at pg. 5). This is similarly incredible in light of the Court's explicit instruction to the jury about the filing thresholds. Third, "Juror Three understood that the filing threshold, among other matters concerning the defendants' collective good faith belief, did not exist in the law." (Defendant's Motion for Mistrial at pg. 5). The Court instructed the jury on what the law was and instructed the jury that they must follow the law in their deliberations. Fourth, "Nonetheless, this specific juror-Juror Five- and a few other jurors, indicated that they had looked into the issue with outside materials, and references, and had satisfied themselves the

defendants beliefs, and that the defendants were guilty." (Defendant's Motion for Mistrial at pg. 5). These vague, unsupported declarations stem from a convicted defendant whose testimony at trial was wholly unbelievable. Something more than two levels of hearsay is needed to support this allegation. Lastly, the admissions in the motion are telling. The co-defendants descended on Juror Five

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prosecutor admitted there was no filing threshold number in the tax code." Debating the law with jurors on the courthouse steps after their verdict resembles the same tired tactic employed by Attorney Oscar Stilly at the arraignment in this case. Indeed, the allegations in the present motion resemble nothing

4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 (emphasis in original). 21 22 23 24 25 26 filing thresholds. There were video tape excerpts admitted into evidence showing the Defendants with 27 28 6
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more than an extension of those baseless arguments. The present motion should be viewed in the context of the frivolous arguments set forth in defendants' earlier pleadings and rejected as a meritless attempt to circumvent the decision of the jury in this case. C. There Exists No Reasonable Possibility of Affecting the Verdict

An evidentiary hearing or new trial is not warranted unless there exists "a reasonable possibility that the extrinsic material could have affected the verdict." United States v. Bussell , 414 F.3d 1048, 1056 (9th Cir. 2005); See also United States v. Vasquez, 597 F.2d 192, 193 (9th Cir. 1979) (holding that defendant entitled to a new trial only if "there existed a reasonable possibility that the extrinsic material could have affected the verdict"); United States v. Bagnariol, 665 F.2d 877 (9th Cir. 1981) (same). The Ninth Circuit has ruled that "an evidentiary hearing is not mandated every time there is an allegation of jury misconduct or bias. Rather, in determining whether a hearing must be held, the court must consider the content of the allegations, the seriousness of the alleged misconduct or bias, and the credibility of the source." United States v. Smith, 424 F.3d 992, 1011 (9th Cir. 2005) (internal citations omitted)

Here, several factors weigh heavily in finding that any independent research by jurors into filing thresholds does not raise a reasonable probability of affecting the verdict. First, the Court explicitly instructed the jury on the filing threshold for each relevant tax year. Second, there was a significant amount of evidence admitted at trial of both the existence of and knowledge by the Defendants of the

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an IRS publication detailing the tax filing thresholds (Trial Exhibit 61). The IRS publication itself, which was included in the Defendant's promotional materials, was admitted into evidence (Trial Exhibit 41). Moreover, as pointed out by the Defendants, the tax code itself, which sets forth the formula for

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the computation of the tax tables was admitted into evidence (Trial Exhibits 1020, 1021). Last, the fact that the jury acquitted the Defendants on some counts but convicted on others indicate that any alleged extraneous research did not rise to a level of prejudice. The verdict clearly reflects that the jurors were able to render a verdict untainted by extraneous information. Given the explicit nature of the jury instruction and the significant amount of evidence introduced establishing that the defendants were on notice of the existence of the filing requirement, any alleged research done by jurors on this topic was harmless, not prejudicial, and could not have a reasonable possibility of affecting the verdict. IV. CONCLUSION

The Court should deny the Defendant's Motion for Mistrial Due to Jury Misconduct because it is baseless and the Court lacks jurisdiction due to the untimely nature of the filing pursuant to Fed. R. Crim P. 33. Further, assuming arguendo that the Court accepts as true the substance of the claim, any alleged research is harmless because it does not raise a reasonable possibility of affecting the verdict. Respectfully submitted this 13 th day of January, 2006. PAUL K. CHARLTON United States Attorney District of Arizona /s/ LARRY J. WSZALEK MARK T. ODULIO Trial Attorneys

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I hereby certify that on January 13, 2006, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF system for filing and transmittal of a Notice of Electronic Filing to the following CM /ECF registrants:: Stephen Kunkle 111 W . Monroe, Suite 1212 Phoenix, AZ 85003 Counsel for Dennis Poseley Alex Gonzalez 1811 S. Alma School Road, Suite 230 Mesa, AZ 85210 Counsel for Patricia Ensign Rena P. Glitsos 45 W . Jefferson Luhrs Tower - Suite 512 Phoenix, AZ 85003 Counsel for David W . Trepas Richard L. Juarez 331 North 1 st Avenue, Suite 107 Phoenix, AZ 85003-4528 Counsel for Rachel McElhinney Gregory T. Parzych 1811 South Alma School, Suite 200 Mesa, AZ 85210-3005 Counsel for Keith D. Priest

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