The opinion of the court was delivered by: ASPEN
MARVIN E. ASPEN, UNITED STATES DISTRICT JUDGE
The United States, pursuant to Federal Rule of Criminal Procedure 24(c), has moved to replace a juror with an alternate. Defendant Noah Robinson and his co-defendants (collectively, "Robinson")
have filed a memorandum in opposition. For the reasons set forth below, we grant the government's motion.
Government witness Carolyn Harris notified government attorneys on June 19, 1991 that she knew Juror No. 104
as a regular customer at the Why Not Lounge in Chicago, Illinois. The Lounge is located directly across the street from defendant Robinson's home on South Michigan Avenue. The government's lawyers relayed Harris' statements to the court before trial resumed on June 20, and we conducted an individual voir dire of the juror later that same day.
Juror No. 104's answers to our questions reveal several significant areas of concern -- areas that, given his failure to candidly answer the initial voir dire questions,
might never have come to light but for Harris' disclosures to the government. After more than two months of trial, the juror first admitted that he had seen defendant Robinson around the neighborhood for "eight or ten years," Transcript at 4814 (June 20, 1991), although he had not seen him for "over a year, close to two." Id. at 4810. He denied knowing Robinson; we asked "How long have you known Mr. Robinson?," to which the juror replied "I never knew him. I just saw him." Id. at 4814. Notwithstanding this representation, Juror No. 104 admitted to having followed the newspaper coverage of Robinson's state court trial in South Carolina and Robinson's more recent federal trial in this district (although only "slightly"). Id. at 4816. He even knew details about Robinson's personal habits -- asked if he had ever had drinks with Robinson, the juror allowed as to how he did not think that Noah drank alcohol. Id. at 4809. He gleaned this knowledge from a conversation with Holandus "Jake" Oliver, a man whom he thought to be a relative of Robinson's.
Id. at 4810, 4815.
The juror further admitted that he remembered seeing a woman with a limp in the neighborhood around 109th and South Michigan Avenue. Id. at 4807. We take judicial notice of the fact that the government's witness, Carolyn Harris, walks with a pronounced limp. Juror No. 104 denied, however, that he had ever seen Harris behind the bar at the Why Not Lounge, or that he had ever shared a drink with her. Id. at 4810. Further, Juror No. 104 stated that the name "Mr. Barber" meant something to him, and that he had seen a Mr. Barber on South Michigan Avenue. Id. at 4809. The murder of a Leroy Barber is alleged by the government in Count II of the indictment. Id. at 6-7 (summarizing charges in the indictment for jury venire members). Asked "how long had you . . . known [Barber] in the neighborhood," Juror No. 104 answered "A short time. The reason I remember it so well is because a friend of mine retired from the fire department, he owed him $ 50. When we found out that he was dead -- [answer cut off by court's next question]." Id. at 4815. Asked if he was aware of Barber's reputation in the neighborhood, the juror replied, "I never heard nobody say anything about him. Broke most of the time. He never asked me for anything." Id. at 4816.
The multiple problems evident in Juror No. 104's answers were not alleviated by Carolyn Harris' testimony, although we are certainly not interested in creating a credibility contest between a witness and a juror. Cf. id. at 4806 (credibility concern voiced by Robinson's attorney). For what it is worth, Harris testified that Juror No. 104 was "practically an every-day frequenter" at the Why Not Lounge when she worked there, id. at 4818, that she personally had cocktails with him, id. at 4821, and that Juror No. 104 was at the Lounge on at least one occasion when the Barber murder was being discussed. Id. at 4827.
A juror may be removed from the jury under Federal Rule of Criminal Procedure 24(c) at the trial judge's discretion. United States v. Doerr, 886 F.2d 944, 970 (7th Cir. 1989) (citing United States v. Peters, 617 F.2d 503, 505 (7th Cir. 1980)). Rule 24(c) permits a district court judge to replace with an alternate any juror who becomes or is found to be unable or disqualified to perform his duties. Fed. R. Crim. P. 24(c).
A decision to replace a juror with an alternate is subject to an "'abuse of discretion'" review standard, and will not be overturned "'if the record shows some legitimate basis for [the] decision.'" Doerr, 886 F.2d at 970-71 (emphasis added) (quoting Peters, 617 F.2d at 505).
Judges have validly refused to disqualify a juror in a variety of circumstances. See, e.g., United States v. Allred, 867 F.2d 856, 870 (5th Cir. 1989) (juror who had "social contact with an investigatory agent [through their] children's skating club" not disqualified); Howard v. Davis, 815 F.2d 1429, 1431 (11th Cir.) (homicide victim's "close friend" retained as juror; court accepted juror's representation "that he could be an impartial juror in spite of his relationship with the victim"), cert. denied, 484 U.S. 864, 108 S. Ct. 184, 98 L. Ed. 2d 136 (1987); United States v. Tutt, 704 F.2d 1567, 1569 (11th Cir.) (juror failed to disclose at voir dire his prior affiliation with law enforcement agency or his acquaintance with key government witness; judge's decision to retain juror based on defendant's failure to show actual prejudice), cert. denied, 464 U.S. 855, 104 S. Ct. 174, 78 L. Ed. 2d 156 (1983); United States v. Young, 553 F.2d 1132, 1135-36 (8th Cir.) (judge's decision to retain two jurors -- one a bank vice-president, the other the father of a robbery/rape victim -- in bank robbery trial upheld; both jurors maintained that they "could be fair and impartial"), cert. denied, 431 U.S. 959, 97 S. Ct. 2686, 53 L. Ed. 2d 278 (1977); Ryan v. United States, 89 U.S. App. D.C. 328, 191 F.2d 779, 782 (D.C. Cir. 1951) (juror's private conversation with prosecuting attorney during trial does not rise to Rule 24(c) disqualification level), cert. denied, 342 U.S. 928, 72 S. Ct. 368, 96 L. Ed. 691 (1952).
On the other hand, disqualification of a juror has been upheld in as many circumstances. See, e.g., Doerr, 886 F.2d at 970-71 (judge acted within his discretion in dismissing two ill jurors and replacing them with alternates); Peters, 617 F.2d at 505 (no abuse of discretion in replacing juror who was five minutes late on final day of three-day trial); United States v. Makres, 598 F.2d 1072, 1073 (7th Cir. 1979) (no abuse of discretion in waiting only twenty-five minutes before dismissing tardy juror); see also, e.g., United States v. Colkley, 899 F.2d 297, 303 (4th Cir. 1990) (no abuse of discretion in replacing juror who "failed to appear for thirty minutes of testimony"); United States v. Campbell, 845 F.2d 782, 786 (8th Cir.) (juror whose parents-in-law knew defendant properly excused), cert. denied, 488 U.S. 965, 109 S. Ct. 490, 102 L. Ed. 2d 527 (1988); United States v. Fajardo, 787 F.2d 1523, 1525-26 (11th Cir. 1986) (juror experiencing "sinus problems" and distracting other jurors by "gagging, sniffling, snorting, blowing his nose, and wiping his nose on his sleeve" properly disqualified); United States v. Lewis, 759 F.2d 1316, 1350 (8th Cir.) (juror who did not candidly answer initial voir dire question regarding her child's employment properly replaced with an alternate), cert. denied, 474 U.S. 994, 106 S. Ct. 406, 88 L. Ed. 2d 357 (1985); United States v. Barker, 735 F.2d 1280, 1282-83 (11th Cir.) (no abuse of discretion in disqualifying juror who, on her way to the jury room to begin deliberations, "went over to where the defendant was standing, placed her hand on the defendant's shoulder, smiled, and moved on"; "no conversation occurred"), cert. denied, 469 U.S. 933, 105 S. Ct. 329, 83 L. Ed. 2d 266 (1984).
Here, in contrast to the cases cited above, Juror No. 104 has not one or two potential "disqualifying connections," but five (or more) such connections.
He has or had at least: (1) a passing acquaintance with Carolyn Harris, a government witness; (2) a somewhat more intimate relationship with defendant Robinson, spanning perhaps a decade; (3) a passing familiarity with a man allegedly murdered by Robinson and co-defendant Cooksey; (4) a passing acquaintance with unindicted co-conspirator Jake Oliver; and, finally, (5) he followed, with varying degrees of closeness, media accounts of Robinson's prior legal battles. Not even Juror No. 104's representation that he "could be a fair and impartial juror to both sides," Transcript at 4817 (June 20, 1991) is sufficient to counterbalance these five significant concerns, although such a representation might ordinarily be sufficient if there was only one or two such concerns. See Murphy v. Florida, 421 U.S. 794, 799, 95 S. ...