United States District Court, E.D. Arkansas, Western Division
KRISTINE G. BAKER UNITED STATES DISTRICT JUDGE
On February 29, 2016, this Court granted the United States of America’s motion for permission to contact jurors (Dkt. No. 43). The motion represented to the Court that defendant Antuan Gaines did not oppose the request. Since that time, the Court has had multiple jurors respond and indicate their willingness to be contacted by counsel. The Court has requested, through informal communications with counsel, that counsel not proceed with contacting those jurors due to informal communications the Court has received since the jury trial was conducted and the jury rendered its verdict. The Court will outline those informal communications in this Order.
On February 17, 2016, the jury returned a guilty verdict against Mr. Gaines on the charge of felon in possession of a firearm. On February 18, 2016, the Court received a phone call from a woman purporting to be Mr. Gaines’s mother. The caller stated that she wanted the Court to know that one of the jurors, whom she identified by name, knew her son from prison. The Court instructed her to contact Christophe Tarver, counsel for Mr. Gaines, about this matter.
The Court sent an email to all counsel on February 18, 2016, informing all counsel of the phone call and the conversation that transpired between the Court and the woman purporting to be Mr. Gaines’s mother. The Court disclosed to counsel the name of the juror provided by the woman. In the February 18, 2016, email to all counsel, the Court also informed counsel that the Court was researching what duty concerning the juror allegation, if any, the Court had at that time. The Court also reminded counsel of the Local Rule governing juror contact and noted that counsel could not reach out to jurors without abiding by this Local Rule. Further, the Court informed counsel that, based on the Court’s preliminary research, the Court had identified United States v. Tucker, 137 F.3d 1016 (8th Cir. 1998), as at least one controlling case addressing issues that might arise in such a situation.
On February 18, 2016, that same day, a motion for permission to contact jurors was filed by the United States (Dkt. No. 39). The Court granted that motion, as there was no objection from Mr. Gaines. On March 2, 2016, and March 3, 2016, the Court exchanged a series of emails with all counsel in which counsel for the United States proposed questions to submit to the jurors who indicated they wished to be contacted. Based on a series of communications with all counsel, the Court understands that the United States intends to ask the following questions of those jurors who consent to contact:
1. How did you find your experience as a juror?
2. Was there anything about the attorneys’ performance that you found was particularly effective, ineffective, or distracting?
3. Was the testimony of the expert witnesses helpful to your determination of the issues in this case?
4. Is there anything the attorneys could have done to better present the evidence or argue the case?
5. Were there any witnesses whose credibility you questioned or doubted and why?
6. Is there anything we have not asked you that you would like to share with us about your jury experience or the case?
7. Do you have any questions for us?
On March 7, 2016, the Court sent another email to all counsel asking whether either party requested that the Court inquire into the issue of the juror allegation. The Court noted in that email that it was continuing to study whether, regardless of the parties’ intent, the Court had a duty to inquire. The Court received an email response from counsel for the United States stating that the United States objected to further inquiry by the Court at that time, citing the fact that there had been no formal allegation of juror misconduct from the defendant and that the defendant had filed no motion for a new trial pursuant to Federal Rule of Criminal Procedure 33.
Counsel for the United States noted in the response email that, during voir dire, the potential jurors were asked if they knew Mr. Gaines, and the juror at issue did not respond to that question. The email went on to add that there was no allegation before the Court that the juror’s response was dishonest or even mistaken. Counsel for the United States informed the Court that their notes reflected that the juror in question had responded to the Court’s question about law enforcement experience, disclosing that he had worked for the Arkansas Department of Corrections for 27.5 years. In ...