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U.S. v. HODGES
February 20, 2002
UNITED STATES OF AMERICA, PLAINTIFF,
CARLAN D. HODGES, DEFENDANT.
The opinion of the court was delivered by: Richard Mills United States District Judge.
The late Paul E. Riley, United States District Judge for the Southern
District of Illinois, had a penchant for communicating ex parte with
jurors in cases in which he was the presiding judge.,*fn1
Sometimes the communications involved benign subjects such as the
weather or televisions programs, but sometimes he commented upon the
evidence presented at trial. Such conduct reflects poorly, not only upon
the judge who engages in ex parte contacts with jurors, but upon the
court in which that judge sits and upon the judicial system as a whole.
While Carlan D. Hodges' appeal of his convictions and sentence was
pending before the United States Court of Appeals for the Seventh
Circuit, some information came to light that Judge Riley may have had ex
parte communications with the jurors during Hodges' trial. Based upon
this newly discovered evidence, Hodges filed a motion for a new trial
pursuant to Federal Rule of Criminal Procedure 33.*fn2 After considering
the parties' briefing on the motion, the Court allowed Hodges' motion and
granted his request for a new trial. United States v. Hodges,
110 F. Supp.2d 768 (S.D.Ill. 2000). The Government moved for
reconsideration, and after the Court denied its motion, the Government
appealed the Court's ruling.
On appeal, the Seventh Circuit vacated and remanded for further
proceedings. United States v. Bishawi, 272 F.3d 458 (7th Cir. 2001).
Specifically, the Seventh Circuit opined:
The holding of an evidentiary hearing in this case
would have afforded the parties an opportunity to
interview jurors and determine "whether extraneous
prejudicial information was improperly brought to the
jury's attention or whether any outside influence was
improperly brought to bear upon any juror."
Fed.R.Evid. 606. Once these factual determinations
were made, the trial court would have been equipped to
adequately assess the impact of any ex parte contacts
on the juries before whom appellees' cases were tried
and decided whether or not such communications were
harmless error. . . . The trial court abused its
discretion in failing to hold such a hearing.
Id. at 462-63. Accordingly, the Seventh Circuit remanded Hodges' case
"to hold an evidentiary hearing to determine what ex parte contact
occurred and whether such contact was prejudicial to the appellees." Id.
After receiving the mandate, the Court conducted an evidentiary
hearing as directed by the Seventh Circuit. At this hearing, the Court
heard testimony from the jurors who deliberated and found Hodges guilty
of being a felon in possession of a firearm in violation of
18 U.S.C. § 922(g)(1) and guilty of receiving stolen firearms in
violation of 18 U.S.C. § 922(j) and § 924(a)(2). In addition,
the parties asked the Court to re-evaluate and re-consider the affidavits
of court personnel which had been previously submitted to the Court.
Hodges argues that, after hearing the jurors' testimony and
re-considering the affidavits of the court personnel, nothing has changed
and that the Court should again allow his motion for a new trial. Hodges
contends that the jurors' testimony clearly establishes that Judge Riley
had ex parte communications with some, if not all, of the jurors in this
case. Specifically, Hodges points to the testimony of one juror who
recalled that Judge Riley entered the jury room during the jury's
deliberations and the testimony of two jurors who testified that Judge
Riley was present in the courtroom while the jury viewed the evidence
(i.e., the guns).
Furthermore, Hodges asserts that the Court should give him the benefit
of the doubt and grant him a new trial based upon the court personnel's
affidavits. Specifically, Hodges relies upon David Agay's (i.e., Judge
Riley's law clerk) affidavit in which he stated that Judge Riley entered
the jury room in three of the four cases to which he was assigned during
his tenure with Judge Riley. Hodges argues that, when the Court
considers the jurors' testimony along with the court personnel's
affidavits and Judge Riley's habit of communicating with jurors, the
Court should grant his request for a new trial in order to uphold the
integrity of the judicial system and to avoid the appearance of
The Government argues that Hodges did not meet his burden of
establishing that an ex parte communication occurred between the jury and
Judge Riley. As for Judge Riley's presence in the courtroom while the
jury viewed the guns, the Government notes that no juror testified that
Judge Riley said or did anything while they viewed the guns. In any
event, the Government contends that Hodges has waived any objection which
he might have had to Judge Riley's presence in the courtroom while the
jurors viewed the guns.
Moreover, as for the juror who testified that Judge Riley entered the
jury room during the deliberations, the Government asserts that he was
the only juror who recalled this incident. More importantly, the
Government notes that the juror testified that Judge Riley did not say
anything while he was in the jury room. Finally, the Government claims
that the court personnel's affidavits support the juror's testimony-no
improper communication occurred between Judge Riley ...
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