The opinion of the court was delivered by: Herndon, Chief Judge
Before the Court is defendant Walter C. Smith, III's Motion for a New Trial, made pursuant to FEDERAL RULE OF CRIMINAL PROCEDURE 33 (Doc. 156). The Government has filed its opposing Response (Doc. 157) and the issues are now ripe for determination. Defendant was charged, in a Superseding Indictment, with eight separate counts as follows: Count 1 - conspiracy to distribute and possess with intent to distribute 50 grams or more of "crack" from on or about January 1, 2004 through at least May 17, 2006; Count 2 -possession with intent to distribute 43 grams of cocaine on or about January 21, 2005; Count 3 - possession with intent to distribute 8.4 grams of "crack" on or about January 21, 2005; Count 4 - distribution of 5 grams or less of "crack" on or about August 18, 2005; Count 5 - distribution of 5 grams or less of "crack" on or about August 22, 2005; Count 6 - distribution of 5 grams or less of "crack" on or about March 6, 2006; Count 7 - distribution of 5 grams or less of "crack" on or about May 17, 2006; and Count 8 - possession with intent to distribute 15.7 grams of "crack" on or about May 17, 2006.
On October 22, 2007, the jury returned a verdict of guilty as to all Counts against Defendant (Docs. 145-153). In his Motion, Defendant raises several issues he believes are legally sufficient grounds for granting a new trial. However, the Court does not agree and for reasons discussed herein, denies the Motion. Further, although Defendant requests a hearing, one is not needed for the Court to rule on the Motion.
Under FEDERAL RULE OF CRIMINAL PROCEDURE 33, a defendant may move for a new trial. Upon review, the Court "may vacate any judgment and grant a new trial if the interest of justice so requires." FED.R.CRIM. P. 33(a). If the basis for seeking a new trial is not due to new evidence, then the Court must determine if a new trial is warranted because there exists a "reasonable possibility that a trial error had a prejudicialeffect upon the jury's verdict." United States v. Van Eyl, 468 F.3d 428, 436 (7th Cir. 2006) (citing United States v. Berry, 92 F.3d 597, 600 (7th Cir. 1996)). A new trial may also be warranted where a "trial errors or omissions have jeopardized the defendant's substantial rights." United States v. Reed, 875 F.2d 107, 113 (7th Cir. 1989) (citing United States v. Kuzniar, 881 F.2d 466, 470 (7th Cir. 1989)). Such a determination is completely within the Court's sound discretion . Id. (citing United States v. Nero, 733 F.2d 1197, 1202 (7th Cir. 1984)). However, the Court should be mindful that the power bestowed by Rule 33 to grant a new trial should only be done in the "most 'extreme cases.'" United States v. Linwood, 142 F.3d 418, 422 (7th Cir. 1998) (quoting United States v. Morales, 902 F.2d 604, 605 (7th Cir. 1990)).
1. Failure to Declare a Mistrial - Extraneous Comment of Juror A
During the trial, one juror ("Juror A") brought it to the Court's attention that he no longer felt he could serve on the jury because he was concerned for the safety of his family. The Court conducted the appropriate inquiry with Juror A, asking him whether he felt he could remain impartial in rendering a verdict. Juror A did not feel that was possible and so the Court replaced Juror A with an alternate juror. During this voir dire, Juror A told the Court he had only made one comment to another juror ("Juror X"), stating that this case was hitting too close to home, but that he could not recall the identity of the juror.
The Court memorialized its voir dire with Juror A on the record, in the presence of the Government and Defendant's counsel. When Defendant's counsel moved for a mistrial, voicing his concern that there was no way to tell what effect Juror A's comment to Juror X had on the jury, the Court responded that it was unable to voir dire Juror X because Juror A was unable to identify him or her.
Further, the Court explained that the statement "It's getting close to home," was "so innocuous" that "it could have meant anything." No other jurors lived near Juror A, so the Court did not believe that Juror A's comment would have a negative impact on Juror X or the remaining jurors. Therefore, the Court denied Defendant's motion for mistrial.
Defendant, as grounds for a new trial, argues that because the Court was unable to ascertain the identity of Juror X, there was no way to tell if Juror A's statement had any effect on Juror X or other negative impact on the remaining jurors. In sum, the Court should have granted a mistrial and its failure to do so had a prejudicial effect upon the jury's verdict, The Government opposes Defendant's assertion that Juror A's statement to Juror X negatively impacted the jury to Defendant's prejudice. First, the Government points out that at the close of the case, the jury went through lengthy deliberations, which negates the assumption that Juror X was negatively impacted by Juror A's statement and, as a result, was able to lead the jury to reach a quick verdict. Next, the Government points out that the statement itself, "hitting close to home," made by Juror A, is "innocuous" and thus should not require further inquiry. In support, the Government cites the Seventh Circuit cases of Wisehart v. Davis, 408 F.3d 321, 326 (7th Cir. 2005) and Evans v. Young, 854 F.2d 1081, 1083-84 (7th Cir. 1988).
In Wisehart, the Seventh Circuit held that "the extraneous communication to the juror must be of a character that creates a reasonable suspicion that further inquiry is necessary to determine whether the defendant was deprived of his right to an impartial jury. How much inquiry is necessary (perhaps very little, or even none) depends on how likely was the extraneous communication to contaminate the jury's deliberations." 408 F.3d at 326. Previously, in Evans, the Seventh Circuit advised that the trial court has substantial discretion in determining the potential ...