The opinion of the court was delivered by: Hon. Harry D. Leinenweber
MEMORANDUM OPINION AND ORDER
Before the Court are the Motion for a New Trial filed by Defendant Mariano Morales ("Morales"), a Motion by Defendant Miguel Rodriguez ("Rodriguez") for Attorney Review of the Jury's Trial Notes and for an Evidentiary Hearing, and the Government's Response. For the reasons stated herein, the Motions filed by Defendants Morales and Rodriguez are denied.
On October 6, 2008, the Court selected twelve anonymous jurors and six alternate jurors to serve in the prosecution of this multi-defendant gang racketeering case. After a two-month trial, on December 10, 2008, the jury convicted Defendants Mariano Morales, Arturo Barbosa, Harold Crowder, Miguel Rodriguez, Brian Hernandez, Romel Handley, and Lionel Lechuga on multiple criminal counts. The jury was unable to reach a verdict as to Defendant Stephen Perez. After polling the jurors in open court, the general verdict was entered against all Defendants, except Perez who agreed to a mistrial.
While the trial was proceeding and during jury deliberations, the Court received several notes from the jurors, some of which are the basis for Defendants' current motions and are discussed below. Each of the notes received by the Court from the jurors was preserved, as was the Court's response.
On October 8, 2008, early in the trial, the Court received a note from Juror 107, which read as follows:
"This is just a matter of jury protocol and not specifically about the case, but a specific juror is continually speaking about what lawyers do not like in terms of jurors and this juror specifically states that 'Teachers are Liberal' usually they throw 'teachers' off the jury. Other inappropriate conversation also includes discussing what people wear, suits or professional attire. While these comments, ostensibly are not directed at any specific juror, our professions are listed on the sign in sheet and these types of comments related to how a juror might make a decision regarding the case are inappropriate and for the jurors who are the profession the juror is speaking of could be overheard or believed to be intimidation, coercion or alienation. The statements were made before the (overheard) jury had been selected in the courtroom (washing area) and now that the jury has been selected they are being repeated and made in the jury room. Can you address this inappropriateness? Thank you."
After receiving this note, the Court orally instructed the jury not to discuss the case with one another or others until the evidence concluded and they received further instructions. The Court also instructed the jury to refrain from evaluating "witnesses, the facts of the case, the jury selection, the lawyers, the judges" and that each juror keep opinions to himself or herself. After this instruction, the case continued for several weeks without further similar notes. After final arguments and the Court's instructions, the alternate jurors were dismissed, and the jury began its deliberations.
During deliberations, the Court received a handful of notes from the foreperson requesting assistance from the Court. At the end of the day on December 9, 2008, the Court received the following note from the foreperson:
"We had several incidents today where one juror became verbally abusive to the other members of the jury and especially aggressive to one particular juror. I have tried to restore a professional atmosphere in the jury room but I have not been successful in doing that. I need help in dealing with this situation if the jury is to continue to work effectively."
After discussion with counsel, the Court sent the following written response:
"It is important that jurors function together as a whole. While it is healthy to have spirited exchanges of ideas, it is, however, most important that each individual juror respect the views of the other jurors and discuss the issues without aggression.
Please work together with the aim of arriving at a decision compatible with the ...