Court documents: Motion for re-trial rejected

UNITED STATES DISTRICT COURTNORTHERN DISTRICT OF INDIANA

HAMMOND DIVISION

UNITED STATES OF AMERICA ))

v. ) No.: 2:14-CR-71 PS )SAMUEL BRADBURY )

ORDER

Defendant Samuel Bradbury was convicted by a jury on one count of violating

18 U.S.C. § 844(e) by maliciously conveying false information about a threat to kill or

injure persons or destroy or damage property using fire or explosives. He has now filed

a motion arguing that the interests of justice require a new trial [DE 149]. Bradbury

makes two arguments for a new trial. First that the jury deliberations began too late in

the day and thus deprived him of his right to a full and robust comparison of views

among the jurors. Second, that I improperly excluded evidence concerning an unrelated

threat made by a Lafayette police officer. For the following reasons, Bradbury’s motion

is DENIED.

Federal Rule of Criminal Procedure 33(a) allows the court to “vacate any

judgment and grant a new trial if the interest of justice so requires.” Fed.R.Crim.P. 33(a).

“A jury verdict in a criminal case is not to be overturned lightly, and therefore a Rule 33

motion is not to be granted lightly.” United States v. Morales, 902 F.2d 604, 605 (7th

Cir.1990). As such, the rule is “reserved for only the most extreme cases.” United States

v. Linwood, 142 F.3d 418, 422 (7th Cir.1998). “But if the judge believes there is a serious

danger that a miscarriage of justice has occurred—that is, that an innocent person has

USDC IN/ND case 2:14-cr-00071-PPS-APR document 155 filed 08/14/15 page 1 of 7

been convicted—he has the power to set the verdict aside ... even if he does not think

that he made any erroneous rulings at the trial.” Morales, 902 F.2d at 605. (citation

omitted).

Bradbury argues that I made a mistake in submitting the case to the jury just

after 5:00 p.m. on Thursday, July 2, 2015. Bradbury argues that the late start combined

with the pending federal holiday—the courthouse was closed Friday in observance of

the July 4 holiday—led to a mentally fatigued jury rushing to reach a verdict. He argues

that this situation deprived him of his right to a robust comparison of views and

arguments among the jurors. See Allen v. United States, 164 U.S. 492, 501 (1896).

I disagree. The Seventh Circuit has long held that a district court “has wide

discretion in the scheduling of a trial and that this discretion should not be disturbed in

the absence of manifest abuse.” United States v. Murvine, 743 F.2d 511, 514 (7th Cir.

1984); Harsham v. California State Bd. Of Equalization, 200 F.3d 1035, 1050 (7th Cir. 2000) .

In Murvine, the Seventh Circuit declined to order a new trial when jury deliberations

began at 9:30 p.m. on a Friday night. The court declined to hold that deliberations

begun on a Friday night are incapable of producing a fair verdict “without clear

indications that the jury was exhausted, hungry, confused or otherwise uncomfortable.”

Id. at 515. The court pointed out that the defendant was able to put on all his evidence,

the final day of trial had been “liberally peppered with rest periods”, and that the jury

“was fed and generally cared for.” Murvine, 743 F.2d at 515.

Likewise, here, there was no indication that the jury was fatigued, rushed or

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uncomfortable. Deliberations started at the relatively early hour of 5:00 p.m, and the

jury had plenty of breaks throughout the day. The jury’s day started around 9 a.m. They

took a 15 minute recess at mid-morning, an hour lunch break, and a 45 minute break for

the instruction conference.

The timing of the deliberations further undermines Bradbury’s claim. This was

not a rush to judgment. Far from it. The evidence at trial took a little more than three

days to put on. That includes a lot of time that was wasted while the court and the jury

patiently waited on defense witnesses. (The court adjourned early in the afternoon on

Wednesday because an expert witness for the defense was not available). Despite the

brief trial, the jury nonetheless deliberated for over four hours. They received the case

around 5 p.m. and indicated that they had reached a verdict at approximately 9:20 p.m.

Four hours is more than a reasonable amount of time to deliberate on a straightforward,

one-count case that took less than four days to try. During deliberations, the jury never

indicated that it was fatigued. Nor did they send a note asking to go home or take a

break. If they had, I would have let them. Instead, around 6 p.m., they asked for food

and more coffee, indicating their desire to press on. Both were provided. It seems to me

that a jury that deliberates well into the evening before a holiday is the sign of a jury

that is taking things seriously, not one that is trying to rush to a decision to get on with

their weekend. I made it very clear to the jury throughout the trial that there was a

good chance that proceedings would spill over into the week of July 6th. In fact, that

was the very last thing I told the jury when I dismissed them on Wednesday afternoon,

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the day before the final trial day. So without any clear sign—or any sign at all—that the

jury was fatigued or exhausted, I decline to overturn their verdict.

Next, Bradbury argues that he deserves a new trial because I failed to admit

evidence regarding a threat allegedly made by a Lafayette police officer to a Lafayette

resident in January 2012. According to Bradbury, Officer Charles Williams of the

Lafayette Police left a threatening message on Timothy Vander Plaats’s answering

machine because Williams thought Vander Plaats had hit on Williams’ girlfriend. The

Lafayette Police Department was apparently less than diligent in investigating this

threat, which led to Vander Plaats filing a lawsuit.

Bradbury’s counsel sought to introduce evidence regarding this unrelated

incident in a pre-trial motion [DE 99]. She argued that the evidence would show that the

forceful police response to Bradbury’s statement was not the result of ordinary police

policy, but resulted from the fact that Bradbury threatened police officers. Second,

counsel argued that it went to Bradbury’s intent. If Bradbury saw that the police did not

take William’s threat seriously, he was less likely to believe that they would take his

seriously.

At a pre-trial hearing, I excluded this evidence on the grounds that it was

irrelevant. The evidence concerned a completely unrelated threat that was investigated

by an unrelated police department. Bradbury’s statement was political and aimed at

public figures. Officer Williams’ threat was purely personal. Bradbury’s statement was

primarily investigated by the West Lafayette Police Department and the Tippecanoe

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County Sheriff’s Department. The Vander Plaats incident was handled by the Lafayette

Police Department. The fact that different police departments investigated different

threats differently does not help prove anything with respect to Bradbury.

As to evidence of Bradbury’s intent, counsel never proffered that Bradbury

actually knew about the Vander Plaats incident. It was on the news, but there was no

indication that Bradbury saw it. In my ruling excluding the evidence, I indicated to

counsel that, if Bradbury chose to testify, he would of course be free to testify regarding

the Vander Plaats incident if it influenced his decision to post on Facebook. But, absent

evidence that Bradbury knew about the incident, I was not going to allow counsel to

confuse the jury with evidence about an unrelated threat.

At the motions hearing, I did state that my ruling was conditional. Indeed, all of

my rulings on motions in limine are conditional. Sometimes surprising things happen at

trial allowing evidence conditionally excluded to suddenly become relevant. I invited

counsel to renew the motion if, in the course of the trial, evidence was introduced or

testimony elicited that somehow rendered the Vander Plaats incident relevant. I

suggested, as an example, that the incident might be relevant if a police officer were to

testify that his or her police department takes every single threat seriously and

investigates every single threat. If a Lafayette officer were to make such a statement, it

could possibly open the door to testimony regarding the lack of investigation into the

Vander Plaats threat.

Inspired by my suggestion, Bradbury’s counsel asked Officer Troy Harris of the

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West Lafayette Police Department the following question at trial: “It’s fair to say that

your department, the Tippecanoe County Sheriff’s Department, and the Lafayette Police

Department are trained to take and do in fact take and investigate every reported threat

equally seriously, right?” Officer Harris answered, “Yes.” Counsel then moved for

permission to question Harris about the Vander Plaats incident. I denied the request on

the grounds that counsel had not laid the proper foundation. For this, Bradbury seeks a

new trial.

My refusal to reconsider the exclusion of the Vander Plaats evidence was correct.

The evidence was irrelevant and counsel’s question did not change that fact. Harris was

not a member of the Lafayette Police Department and did not investigate the Vander

Plaats threat. Allowing counsel to question him about it would have been a confusing

waste of time. Moreover, it would have required a trial-within-a-trial to establish the

facts of the incident which would have thoroughly confused the jury in exchange for

evidence with little probative value. Under these circumstances, the balance required by

Rule 403 — needless consumption of time, confusion of the issues etc. on one side of the

scale versus very little probative value on the other — made exclusion of the evidence

the correct decision.

Further, even if my decision to exclude this evidence was wrong—and I firmly

believe it wasn’t—an incorrect ruling on an ancillary evidentiary issue is leagues away

from the type of extreme cases or miscarriages of justice that justify a new trial. See

Linwood, 142 F.3d at 422.

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Accordingly, Defendant’s motion [DE 149] is DENIED.

SO ORDERED.

ENTERED: August 14, 2015

s/ Philip P. SimonPHILIP P. SIMON, CHIEF JUDGEUNITED STATES DISTRICT COURT

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Documents

Court documents: Motion for re-trial rejected