Eleventh Circuit Affirms Conviction of Another Congressman (1/14/20; 1/16/20)

In United States v. Brown, ___ F.3d ___, 2020 U.S. App. LEXIS 556 (11th Cir. 2020), 11th Cir. here and CL here, Brown, a former congresswoman, was charged with 24 counts for a melange of crimes, including mail and wire fraud and conspiracy to commit, false statements, tax obstruction (§ 7212(a), one count) and tax perjury (§ 7206(1), three counts).  The jury convicted of all except 4 of the fraud counts.  On appeal, Brown argued that the trial judge had improperly dismissed a juror who, another juror reported, stated to the jurors at the beginning of deliberations that (Slip Op. 12-15):

"A Higher Being told me Corrine Brown was Not Guilty on all charges". He later went on to say he "trusted the Holy Ghost". 

The judge then questioned the juror outside the hearing of the other jury members.

Court: Okay. That's fine. So let me get a little more specific with you. Have you expressed to any of your fellow jurors any religious sentiment, to the effect that a higher being is telling you how—is guiding you on these—on these decisions, or that you are trusting in your religion to—to base your decisions on? Have you made any—can you think of any kind of statements that you may have made to any of your fellow jurors along those lines? 

Juror: I did, yes. 

Court: Okay. Can you tell me, as best you can, what you said? 

Juror: Absolutely. I told them that in all of this, in listening to all the information, taking it all down, I listen for the truth, and I know the truth when the truth is spoken. So I expressed that to them, and how I came to that conclusion. 

Court: Okay. And in doing so, have you invoked a higher power or a higher being? I mean, have you used those terms to them in expressing yourself? 

Juror: Absolutely. I told—I told them that—that I prayed about this, I have looked at the information, and that I received information as to what I was told to do in relation to what I heard here today—or this past two weeks. 

Court: Sure. When you say you received information, from what source? I mean, are you saying you received information from— 

Juror: My Father in Heaven.

Court: Okay. Is it a fair statement—I don't want to put words in your mouth. But are you saying that you have prayed about this and that you have received guidance from the Father in Heaven about how you should proceed? 

Juror: Since we've been here, [S]ir. 

Court: Do you view that in any way—as you know, when I instructed you, I, as I do for—for all juries—you had told [the judge] that you had no religious or any—you did not have any religious or moral beliefs that would preclude you from serving as a fair and impartial juror, nor did you have any religious or moral beliefs that would preclude you from sitting in judgment of another [*16]  person. So you told [the judge] that. And then you also—of course, you heard my instruction, where you have to base your decision only on the evidence presented during the trial and follow the law as I explained it. Do you feel that you have been doing that? 

Juror: Yes, [S]ir, I do. 

Court: Do you feel that there is any inconsistency in the prayer that you've had or the guidance you're receiving and your duty to base your decision on the evidence and the law? 

Juror: You said a few—you said a few things. Repeat, please. 

Court: Do you feel that there's any religious tension, or is your religion and your obvious sincere religious beliefs—do you believe it at all to be interfering or impeding your ability to base your decision solely on the evidence in the case and following the law that I've explained to you? 

Juror: No, [S]ir. I followed all the things that you presented. My religious beliefs are going by the testimonies of people given here, which I believe that's what we're supposed to do, and then render a decision on those testimonies, and the evidence presented in the room. 

* * * * 

Court: If you could just have a seat again, [S]ir. And I appreciate your patience with us. And I—I want you to understand I am not criticizing you or saying you did anything wrong. We're just trying to figure some things out here. So what I want to ask you is a fairly direct question:

Did you ever say to your fellow jurors or to a fellow juror during your—during the time that y'all worked together, when the 12 started, something to this effect, A higher being told me that Corrine Brown was not guilty on all charges? Did you say something like that? Did you say that or something like that to any of your fellow jurors? 

Juror: When we were giving why we were—insight, as far as not guilty or whatever for the first charge, yes. 

Court: Did you say the words, A higher being told me that Corrine Brown was not guilty on all charges? 

Juror: No. I said the Holy Spirit told me that. 

Court: Okay. And you—and I don't want to get into your deliberations. But at what point in the deliberations was that? Was it at the beginning? Was it early in the deliberations? When was it? 

Juror: I mentioned it in the very beginning when we were on the first charge.

The Court of Appeals determined that, on the basis of this exchange, the juror had been properly dismissed.  Obviously, the defendant was not happy because a single juror not willing to convict would result in at least a hung jury.

JAT Comment:

1. This is not per se a tax case, other than that it involved conviction on 4 tax counts (one count of tax obstruction and three counts of tax perjury).  Still it is an interesting issue and the opinion is an important one for being sensitive to the fact that religious citizens do bring their religion into the jury room and deliberations.  I highly recommend the opinion for how the courts (both trial and appellate) dealt with that reality in this circumstance.

2.  (Added 1/16/20 3:00 pm)  Politico has this article on the dissenting opinion, Andrew W. Cohen, This Trump Supreme Court Short-Lister Says God Can Instruct Juries on Guilt and Innocence (Slate 1/16/20), here.  I suppose this is just another instance of Circuit Court judges preening for Trump and the evangelical base to secure a Supreme Court appointment.  See my comments on Judge Thapar of the Sixth Circuit.  CIC Servs Petition for Rehearing En Banc Petition Denied with Hyperbolic Concurring and Dissenting Opinions (Federal Tax Procedure Blog 8/29/19; 8/31/19), here.