[00:00:06] Speaker 01:
Good morning and may it please the court.

[00:00:07] Speaker 01:
Sonam Henderson for the appellant, Antonio Montajano.

[00:00:11] Speaker 01:
I plan to reserve two minutes for rebuttal and I'll watch my clock accordingly.

[00:00:16] Speaker 01:
Here the district court erroneously denied Mr. Montajano's new trial motion because it misread section 1867A to say that a JSSA motion must be filed before voir dire begins, even when a defendant has no way to know before voir dire that the clerk has violated the jury plan.

[00:00:33] Speaker 00:
Well, doesn't the statute itself provide a way to know in subsection F?

[00:00:39] Speaker 01:
Sorry?

[00:00:40] Speaker 00:
So 1867 F provides pretty broad rights of discovery if it's necessary for a motion such as the one your client brought.

[00:00:50] Speaker 00:
Why doesn't that allow?

[00:00:53] Speaker 01:
So your suggestion, Your Honor, is that every defendant could come in and immediately demand to interview the jury clerk to make sure that the jury plan's been followed without some sort of prima facie showing beforehand?

[00:01:09] Speaker 00:
I guess my question is whether that was Congress's contemplation.

[00:01:15] Speaker 01:
Must say I didn't read it.

[00:01:16] Speaker 01:
I didn't read it that way.

[00:01:17] Speaker 01:
I think it would be I mean certainly we if that was the system.

[00:01:22] Speaker 01:
We'd be you know happy with that system, and we would You know in every case file a motion and demand to talk to the jury I wonder what the whether you could share any of the practice.

[00:01:33] Speaker 00:
I mean is it Does that happen and do people avail themselves of the the right I mean 1867f is quite a

[00:01:42] Speaker 00:
broad that you can't disclose these records unless it's necessary in the preparation or presentation of a motion under this section.

[00:01:53] Speaker 01:
I will say, I don't, I mean in terms of from practice, I can say that it doesn't, it's not something that happens very often.

[00:02:01] Speaker 01:
I can say that after this case where we had, you know, we could say to the court, we know there have been, there's been at least one problem.

[00:02:12] Speaker 04:
Council, it seems to me there are several other avenues for you to raise this issue.

[00:02:18] Speaker 04:
For example, under the Sixth Amendment, a Batson challenge, a fair cross-section challenge, an equal protection challenge, a habeas petition.

[00:02:28] Speaker 04:
There are other avenues.

[00:02:32] Speaker 04:
I guess from your perspective the problem with those avenues may be that they require a showing of prejudice and the jury pool issue is a different animal so I'm wondering whether you have preserved any of those other potential avenues of relief so your honor I mean in well

[00:02:59] Speaker 01:
I'm not sure how available some of those are.

[00:03:02] Speaker 01:
Certainly, we preserved the Fifth and Sixth Amendment fair cross-section.

[00:03:05] Speaker 01:
We made those arguments and they were denied.

[00:03:09] Speaker 01:
And the problem with making them in a case like this, a one-off, right?

[00:03:12] Speaker 04:
This is a case where we... He said he can't show prejudice because he had a fair jury.

[00:03:16] Speaker 01:
No, it's that you can't make out a fair cross-section claim from one jury.

[00:03:25] Speaker 01:
That's what this court's case law says.

[00:03:27] Speaker 01:
You need to show it over multiple juries.

[00:03:30] Speaker 01:
For the Fifth Amendment, you need to show under-representation over a significant period of time.

[00:03:35] Speaker 01:
We have a one-off that we know of that we can't, you know, we can't make a showing across multiple veneers.

[00:03:43] Speaker 01:
So the Fair Cross Section case law doesn't seem to help us here.

[00:03:47] Speaker 02:
Your counsel, this is how I look at this case.

[00:03:50] Speaker 02:
I don't think Section 1867A applies at all because it would be impossible for you to know of this irregularity

[00:04:01] Speaker 02:
before Voydeur.

[00:04:02] Speaker 02:
It's just an impossibility.

[00:04:04] Speaker 02:
And none of the cases under this section or that are cited by either side really talk about a case such as this one where you just, there was no way to know unless the veneer person, the clerk, had not come forward and admitted it to the judge.

[00:04:26] Speaker 02:
Judge Gutierrez and so and then he felt because you know obviously this implicates due process and all sorts of other rights he came forward and told you and you did make a rule 33 motion right we did and you get a new trial if it's in the interest of justice we do so you why do you need this 1867 you had you had a jury clerk acting

[00:04:55] Speaker 02:
you know, out of her line of authority and tampering, basically, with the jury.

[00:05:03] Speaker 02:
And then the question is, is it in the interest of justice for your client to have a jury that's been untampered with?

[00:05:13] Speaker 01:
Right.

[00:05:14] Speaker 01:
And we used, I think, 1867

[00:05:17] Speaker 01:
Well, the jury plan, the JSSA more broadly came up as a, I think I'd put it as proof, as a demonstration that the interests of justice.

[00:05:27] Speaker 01:
This is something that, you know, Congress, everyone agrees is having a fair jury that's selected.

[00:05:33] Speaker 01:
without the clerk just taking discretion on themselves to kick people off.

[00:05:38] Speaker 01:
Everyone agrees that's necessary for justice.

[00:05:41] Speaker 01:
The JSSA shows that, and so we invoke it kind of as the proof of the interest of justice.

[00:05:48] Speaker 02:
So what did Judge Gutierrez

[00:05:53] Speaker 02:
He called it an end run.

[00:05:58] Speaker 01:
In his mind, 1867A, we have to go through 1867A and he read it to be before voir dire begins.

[00:06:09] Speaker 02:
Well, I think that's true.

[00:06:11] Speaker 02:
I think that is the way the statute, if you look at the legislative history,

[00:06:15] Speaker 01:
I mean, obviously we can test that.

[00:06:18] Speaker 01:
Legislative history only comes in if it's ambiguous.

[00:06:20] Speaker 01:
I don't know that the government's even argued it's ambiguous.

[00:06:22] Speaker 02:
No, but I mean, 1867, it contemplates a situation where you're really attacking a planet.

[00:06:30] Speaker 02:
It was enacted at a time when you'd look at the veneer and you'd say, it's all white.

[00:06:35] Speaker 02:
And so you could make it before Vordia, right?

[00:06:38] Speaker 01:
Yeah, I mean, I think it, you know,

[00:06:42] Speaker 01:
Certainly, one reading of it would be that it's more focused on the plan itself.

[00:06:45] Speaker 01:
I mean, if the court is correct that it's before what year begins, I think that's really telling people to go read the jury plan.

[00:06:54] Speaker 04:
I'm just thinking here about whether you have brought to us the Pure Rule 33 question.

[00:07:03] Speaker 04:
I read your brief as relying entirely on the JSSA.

[00:07:08] Speaker 01:
I, without having the brief in front of you to cite the exact page, I can do it on rebuttal.

[00:07:16] Speaker 01:
We certainly discussed Rule 33 and talk about this as, I think, in the terms that I've described it, that we've made a Rule 33 motion.

[00:07:27] Speaker 01:
in the interests of justice and the JSSA violations were the proof that there were interests of justice.

[00:07:33] Speaker 04:
The other question I have is this.

[00:07:35] Speaker 04:
The legislative history, not the parts cited by the parties, there is some material in there that talks about harmless error that a jury pool doesn't have to be perfect.

[00:07:50] Speaker 04:
And they use an example like there are 10,000 people and there's a problem with

[00:07:55] Speaker 04:
a hundred of them.

[00:07:58] Speaker 04:
Why wouldn't that sort of thinking carry over even in the Rule 33 context?

[00:08:05] Speaker 01:
I'm not sure I remember that provision, but in terms of harmless error, I think it makes sense, you know, if you're talking about sort of a statistical examination of this and like, you know, is the jury statistically a perfect cross-section, it makes sense to me that you would have some play in there and some harmlessness.

[00:08:27] Speaker 01:
But if you're talking about a jury clerk actually... We're dealing with distance, right?

[00:08:33] Speaker 04:
I mean, that was the issue here.

[00:08:34] Speaker 01:
No, I mean, distance was the first cut, because they're dealing with these subsistence jurors, but it's not distance alone, because there were seven subsistence jurors.

[00:08:44] Speaker 01:
If it was just distance, you would have cut all seven.

[00:08:47] Speaker 01:
There is some reason they cut four and not the other three.

[00:08:50] Speaker 01:
And then when you see the stuff that came out in discovery later about it being four minorities, that's, I think, even more troubling than just, I mean, the clerk took discretion to choose which four of the seven.

[00:09:02] Speaker 01:
Without further discovery, without knowing more, we can't say exactly why the clerk did that, but it is troubling, and I think it's something that should be addressed.

[00:09:11] Speaker 01:
I'm very much almost out of time.

[00:09:13] Speaker 01:
I'd like to hold on to my minute if I can.

[00:09:30] Speaker 03:
Good morning, Your Honors.

[00:09:32] Speaker 03:
Ronnie Katzenstein for the United States, and may it please the Court.

[00:09:37] Speaker 03:
The District Court's interpretation of the time limit in the Jury Service and Selection Act has been affirmed by this Court

[00:09:46] Speaker 03:
in Handy and in James and every other circuit that has looked at the question.

[00:09:52] Speaker 03:
It is consistent with the act as a whole, in particular the exclusive remedy provision, and it's consistent

[00:10:02] Speaker 03:
with the policy underlying the Act, namely to promote efficiency and safeguard judicial resources.

[00:10:10] Speaker 03:
And finally, it is explicitly endorsed by the Act's legislative history.

[00:10:16] Speaker 02:
Right.

[00:10:17] Speaker 02:
Are there any cases that talk about a situation where there is no way of knowing what the jury had somehow been tampered with before?

[00:10:27] Speaker 02:
I mean, I honestly do not think this is the correct avenue.

[00:10:31] Speaker 02:
I mean, I understand why it was raised in this way, but it is inconsistent with the jury plan for the central district.

[00:10:43] Speaker 02:
But in a case, and none of the cases that are cited or deal with this section talk about the situation that occurred here, where there is no way to know that some

[00:10:56] Speaker 02:
jury clerk is off on a frolic and detour of her own and just eliminating for minority subsistence potential jury members from the jury.

[00:11:10] Speaker 02:
That's kind of concerning.

[00:11:13] Speaker 03:
Well, Your Honor, the case, the 11th Circuit case parodies, I hope I'm pronouncing that correctly, specifically deals with the situation in which the information on which the claim is made is known only after the fact.

[00:11:29] Speaker 03:
And it says once voir dire begins, the Jury Selection Act challenges are barred, even where the grounds for the challenge are discovered only later.

[00:11:40] Speaker 03:
And beyond that,

[00:11:42] Speaker 03:
In the Handy case, although my colleague suggests that we can't know when the information came to the attention of the court, to the parties in the court.

[00:11:52] Speaker 03:
In fact, if you read this court's decision in Handy, it's very clear that the triggering act which brought about the challenges was the affidavit of a juror which was submitted after the verdict was entered.

[00:12:09] Speaker 03:
affidavit saying that another juror was mentally incompetent.

[00:12:14] Speaker 03:
The decision makes clear that having received that affidavit, the court then looked at the questionnaire and provided the questionnaire to the parties.

[00:12:26] Speaker 03:
So again, in that case, we have the situation where the information only becomes known

[00:12:32] Speaker 03:
after the time to bring the jury selection act.

[00:12:36] Speaker 04:
So what are the avenues of relief for a person in this situation?

[00:12:41] Speaker 03:
I think, Your Honor, hit them right on the head.

[00:12:45] Speaker 03:
If you can meet the time qualifications and the other requirements of Rule 33, you can present a constitutional claim.

[00:12:55] Speaker 03:
In that way, you have mechanisms through collateral attacks to present

[00:13:02] Speaker 03:
a claim that way.

[00:13:05] Speaker 04:
I also... On habeas, for example?

[00:13:09] Speaker 04:
I'm sorry?

[00:13:10] Speaker 04:
On a habeas claim?

[00:13:11] Speaker 04:
You could bring it on a habeas claim?

[00:13:13] Speaker 04:
So do you agree or disagree with counsel's statement that this is also an appeal concerning Rule 33?

[00:13:21] Speaker 04:
I don't agree with that.

[00:13:23] Speaker 03:
There is the brief, clearly is a brief about the interpretation of 1867.

[00:13:30] Speaker 03:
But I want to address rule 33, defendant's rule 33 claim even so, because I

[00:13:39] Speaker 03:
The government's position, of course, is what the court has just indicated, that those have to go through 1837, 1867, excuse me.

[00:13:49] Speaker 03:
But even if it didn't, even a standalone Rule 33 claim would have to satisfy the requirements of Rule 33.

[00:13:56] Speaker 03:
Rule 33 has two components, one based on newly discovered evidence and one other grounds.

[00:14:04] Speaker 03:
An other grounds claim has to be brought within 14 days of the verdict.

[00:14:08] Speaker 03:
That's not what happened here.

[00:14:09] Speaker 03:
That's why a defendant is asserting that he had newly discovered evidence.

[00:14:15] Speaker 03:
But this court has said explicitly that newly discovered evidence for purposes of Rule 33 must go to the elements of the offense.

[00:14:24] Speaker 03:
It must be the type of evidence that would likely result in an acquittal.

[00:14:29] Speaker 03:
That's not what you have here.

[00:14:31] Speaker 03:
And in Hanoum,

[00:14:32] Speaker 03:
This court's case, Hanoum, ineffective assistance of counsel information was made available to the defendant only after the verdict.

[00:14:44] Speaker 03:
The defendant there said, that's newly discovered evidence.

[00:14:48] Speaker 03:
I should be able to come within the strictures of that component of Rule 33.

[00:14:53] Speaker 03:
This court said no.

[00:14:55] Speaker 03:
in Hanum.

[00:14:56] Speaker 03:
That's not the type of evidence that satisfies rule 33.

[00:14:59] Speaker 03:
I also wanted to address what I inferred was a concern of the court

[00:15:06] Speaker 03:
that there may be, and I inferred this from Judge Graber's reference to the more stringent requirements for a constitutional claim, there may be cases that fall in the middle.

[00:15:18] Speaker 03:
That's right.

[00:15:19] Speaker 03:
There may be cases where you can't bring a Jury Selection Act claim because the time has passed and you're showing for a Sixth Amendment or Fifth Amendment claim

[00:15:31] Speaker 03:
isn't sufficient.

[00:15:32] Speaker 03:
We're in the middle ground.

[00:15:34] Speaker 03:
And there may be a question, you can't address that.

[00:15:37] Speaker 03:
And I would suggest that that is analogous to what happens in cases involving juror misconduct.

[00:15:44] Speaker 03:
If there is juror misconduct, even egregious juror misconduct, Rule 606B prohibits the court from basing a decision

[00:15:55] Speaker 03:
in validating a verdict just on an affidavit from a juror, even if the misconduct involves being drunk in the jury room or dealing drugs in the jury room.

[00:16:08] Speaker 03:
That's the Tanner case from the Supreme Court.

[00:16:11] Speaker 03:
The Court has also recognized that some cases rise to the level of a constitutional violation involving

[00:16:20] Speaker 03:
racial bias, and that is so significant that we will make an exception.

[00:16:25] Speaker 03:
We make an exception to Rule 606B.

[00:16:27] Speaker 03:
So in that context as well, we have that same situation.

[00:16:33] Speaker 03:
Some claims come in, but some will not come in because there are other concerns, finality, and those sorts of things.

[00:16:41] Speaker 03:
But if they are sufficiently egregious as here, sufficiently egregious to bring a Sixth Amendment claim,

[00:16:47] Speaker 03:
the defendant may do that.

[00:16:49] Speaker 03:
The defendant has access to that.

[00:16:51] Speaker 03:
That's a way to address the defendant's concerns.

[00:16:54] Speaker 02:
I'm concerned about the district court's reasons for disallowing the deposition of the jury clerk.

[00:17:08] Speaker 02:
It just seems to me that if we were going to

[00:17:15] Speaker 02:
determine whether there was prejudice in any way, we would need to understand what the jury clerk was doing and why they were doing it.

[00:17:24] Speaker 03:
Understood, Your Honor.

[00:17:26] Speaker 03:
Of course, the parties were allowed to propound questions and didn't do that.

[00:17:33] Speaker 03:
So it was just the question of, I believe it was merely the question of live testimony from the jury clerk, but they were afforded the opportunity to propound questions

[00:17:43] Speaker 03:
to the clerk and I would also point out that it is also the case that the forgive me just one moment

[00:17:56] Speaker 03:
Here, after receiving discovery, and there was abundant discovery, I think over 500 pages of discovery under 1867f, it was provided, over 500 pages were filed with the court.

[00:18:10] Speaker 03:
Here, the defendant conceded the produced records in this case reveal no direct evidence of discriminatory intent, and therefore defendant has no basis to allege that any person acted with discriminatory intent.

[00:18:24] Speaker 03:
and that's at ER 46.

[00:18:29] Speaker 03:
I think the court here afforded the defendant all kinds of processes.

[00:18:34] Speaker 03:
The court is certainly to be commended for bringing this deviation to the attention of the parties.

[00:18:41] Speaker 03:
Everybody recognized it was a deviation.

[00:18:44] Speaker 03:
The parties were given an opportunity to address it.

[00:18:47] Speaker 03:
When the court denied it on procedural grounds, he made sure that the parties received discovery so they could bring constitutional claims if those were warranted.

[00:18:57] Speaker 03:
They were all denied, but there's no error here, Your Honor.

[00:19:06] Speaker 03:
I think if there are no other questions, not for me.

[00:19:11] Speaker 03:
Thank you.

[00:19:12] Speaker 03:
Thank you, Counsel.

[00:19:22] Speaker 01:
Just quickly, Your Honors, in terms of Judge Graber's questions on Rule 33, at AOB 27 and at the reply brief at 15 through 17, we talk about Rule 33, if you want to see what we've done there.

[00:19:35] Speaker 01:
In terms of the government's claim just now that we were permitted to propound questions to the jury clerk,

[00:19:41] Speaker 01:
That is incorrect.

[00:19:43] Speaker 01:
We were allowed to present questions to the Chief Deputy of Operations, who is not the jury clerk.

[00:19:49] Speaker 01:
But our requests to question the jury clerk were specifically denied.

[00:19:53] Speaker 01:
And then in terms of us admitting there was no direct evidence of racial discrimination, I mean, we hadn't talked to someone we couldn't say this person has admitted there's racial discrimination.

[00:20:06] Speaker 01:
We did in the same

[00:20:08] Speaker 01:
of the same ER talk about how there was indirect evidence and that should be enough for the court to go forward with.

[00:20:15] Speaker 01:
So there... I have a question.

[00:20:17] Speaker 02:
The district court did an alternative hold and you said when it was procedurally barred.

[00:20:25] Speaker 01:
Right.

[00:20:25] Speaker 02:
Alternatively, even if the court were to consider the merits of the JSA challenge, the result would be the same.

[00:20:34] Speaker 02:
Montejano has not shown

[00:20:36] Speaker 02:
that the wrongful exclusion of the subsistence jurors was qualitatively or quantitatively substantial.

[00:20:43] Speaker 02:
And what I'm wondering is whether quantitatively substantial is akin to kind of harmlessness notion that he gets built into the analysis of whether this jury actually was tampered with.

[00:21:06] Speaker 01:
I took the court to be referring to the numbers and just some sense that if it's less than seven percent, it's not quantitatively.

[00:21:15] Speaker 02:
He said qualitatively or quantitatively.

[00:21:17] Speaker 01:
Yeah, and then in terms of qualitatively, I think that's based on his

[00:21:24] Speaker 01:
Incorrect finding that the subjective criteria used by the jury clerk were a geographic relationship to the courthouse that that there was no basis for that finding at the court if you look at Er 99 through 101 you can see the court discussing at an earlier hearing how it couldn't Accept the government's claim that this was geographic because how could we know without how could we know and then the government?

[00:21:48] Speaker 01:
Yes, we couldn't know without discovery and there'd been no discovery would you address like what are

[00:21:54] Speaker 02:
Why is this a prejudicial error in your view?

[00:21:59] Speaker 01:
I think this court has treated jury plan violations as per se prejudicial, and I think it's akin to structural error.

[00:22:10] Speaker 01:
If you don't have a fair draw on your jury, you don't have a fair jury, you didn't have a fair trial.

[00:22:17] Speaker 02:
They wouldn't have any further – no further questions.

[00:22:20] Speaker 02:
Okay.

[00:22:21] Speaker 02:
Thank you very much, counsel.