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In Re Scott C. Enke

May 23, 2012

IN RE SCOTT C. ENKE, A JUROR IN A CRIMINAL TRIAL,
RESPONDENT.



The opinion of the court was delivered by: James F. Holderman, Chief Judge:

CORRECTED MEMORANDUM OPINION AND ORDER

The law governing this proceeding is 28 U.S.C. § 1866(g), which states: Any person summoned for jury service who fails to appear as directed may be ordered by the district court to appear forthwith and show cause for failure to comply with the summons. Any person who fails to show good cause for noncompliance with a summons may be fined not more than $1,000, imprisoned not more than three days, ordered to perform community service, or any combination thereof.

Scott Enke was summoned to appear for a two-week term of jury service beginning on Monday February 27, 2012. (Ct. Ex. 1.) He was selected by the parties on March 1 and swore under oath to "well and truly try the matters in issue now on trial, and render a true verdict" in the criminal trial of United States v. Chhibber, 11 CR 119, before District Judge Suzanne B. Conlon. Mr. Enke served as the trial proceeded on March 1, 2, 5, 6 and 7, but did not appear for jury service on March 8, even though the trial had not finished and Judge Conlon had ordered the jury to return on March 8, 2012.

The matter was referred to this court, which ordered Mr. Enke, a representative of his employer Covidien PLC, and Enke's supervisor, Bob Bushok, to attend a show cause hearing. (Dkt. No. 1.) The show cause hearing was held on April 20, 2012. (Dkt. No. 12.) For the reasons explained below, the court finds that Enke has failed to establish good cause for his intentional absence from his jury service on March 8, 2012.

BACKGROUND

According to the testimony at the show cause hearing, Enke works as a neurovascular clinical sales representative for Covidien PLC, a medical device supplier that operates throughout the United States. In that role, Enke travels around the Midwest selling medical devices to hospitals and supporting doctors in the use of Covidien's products. Often, Enke's job requires his presence in the operating room to assist the treating physician. The pay received by Covidien's sales representatives, including Enke, depends on the extent to which their clients use Covidien's products, but they do not necessarily need to attend a procedure to receive credit. Instead, sales representatives routinely ask other Covidien employees to cover for them if they cannot attend a scheduled procedure for one of their clients.

In January of 2012, Enke was scheduled to travel to Iowa City, Iowa, to support a doctor at the University of Iowa Hospitals and Clinics in the use of one of Covidien's products. The University of Iowa Hospitals and Clinics is Enke's biggest client. The doctor, Dr. David Hasan, was scheduled to perform several procedures each using a particular Covidien product that had only recently received approval from the FDA. To meet FDA regulations for the use of the product, Covidien planned to supply a "proctoring physician" to assist Dr. Hasan. Just prior to the first procedure, however, Covidien's proctoring physician cancelled, and the procedures were rescheduled for March 8 and 9, 2012.

Several weeks later, the hospital held a meeting attended by Enke and his supervisor, Bob Bushok, which Bushok described as "a show cause hearing" with the hospital. At the meeting, the hospital and Dr. Hasan demanded an explanation for the failure of Covidien's proctoring physician to attend the January 2012 scheduled procedures. The hospital then expressed its dissatisfaction with Covidien and stated that if the March 2012 rescheduled procedures did not go forward as planned, Covidien, and Enke, could lose the account. Enke felt that the hospital's threat meant that if he was not present at the rescheduled procedure, he and Covidien would lose the University of Iowa Hospitals and Clinics account.

When Enke received the jury summons in early February, he was aware that the rescheduled procedures in Iowa were to take place on March 8 and 9. He did not, however, ask to be excused from his jury service obligations or inform anyone associated with the court of his potential scheduling conflict. Also, he did not ask Bushok to assist him in finding a replacement to cover the procedures. After being selected to serve on the Chhibber criminal trial jury on March 1, Enke asked for and received leave from his work at Covidien to serve as a juror. He did not, however, do anything to avert the potential conflict between his jury service and the March 8 trip to Iowa. Enke testified at the show cause hearing that because of his conversations with his fellow jurors and a form he received from the court, he believed that the trial to which he was assigned would last only three to five days. Enke did not produce the "form" he said he received. In fact, no such form exists. The transcript of the trial reflects that Judge Conlon told the jury on March 1 that the trial was "expected to take approximately one week." (Covidien Ex. E, at 5.)

On Thursday, March 1, Enke reported in an e-mail to Bushok that he had been selected to serve on a jury. Enke also testified at the show cause hearing that he spoke to Bushok on the evening of Friday, March 2, told him that the trial would continue into the next week, and brought up his scheduled trip to Iowa. According to Enke, Bushok commented that the trip to Iowa would be an "interesting situation," which Enke understood to mean that the University of Iowa hospital would not like it if Enke did not attend the scheduled procedures. Enke then told Bushok that the procedures in Iowa would not go well if he was not there. Enke still did not ask for a substitute to cover for him on the Iowa trip, nor did Bushok offer to assist him in finding one. Bushok testified that he did not remember this conversation, although he recalled discussing the Iowa case in general with Enke many times during Enke's jury service, and he stated that he was under the assumption from Enke that the trial would be over before March 8.

On the evening of March 7, the day before Enke intentionally failed to appear for his jury service, Enke telephoned Alberta Rone, Judge Conlon's courtroom deputy clerk. He explained to her that he had to travel to Iowa for work the next day and that there was no one to take his place. He then stated that he did not know if he would be able to appear for his jury service in the trial the next day. At that point, Enke's account of the conversation diverges from that of Rone. According to Enke, Rone told him that he was excused from jury service. Rone reported, however, that she told Enke that she did not have authority to excuse him but that she would tell Judge Conlon. Rone stated that Enke then repeatedly asked to speak with Judge Conlon. Rone told Enke that Judge Conlon had left for the day and that she would report his message to Judge Conlon. Enke then insisted on speaking to someone else. After that, Rone transferred Enke to Judge Conlon's voice mail. Enke left the message that he could not be in court the next day. Then, Enke called Bushok and informed him that he was excused.

The next morning at about 8 a.m., Rone, after talking with Judge Conlon, called Enke and told him that Judge Conlon had said that he needed to report for jury duty, and that he had not been excused. At that point, however, Enke was several hours away from Chicago on his way to Iowa. He responded to Rone that he had understood that he was excused and that he could not make it back to Chicago in time for the trial at 9 a.m. Rone reported that Enke was "agitated" during the conversation. Enke then gave Rone Bushok's contact information and told her that Bushok would explain his absence. Rone spoke to Bushok, who confirmed that he knew Enke was on jury duty but stated that Covidien now needed him to go to Iowa.

Because Enke had not heard back from the court, he called Judge Conlon's judicial assistant shortly after 9 a.m. to check on his status. He was told that he need not do anything, and that Chief Judge Holderman would be contacting him. Enke then continued on his business trip to Iowa to ...


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