Douglas J. Carpa, Pro Per
Morgan Street Jail
1301 N. Morgan St.
Tampa, FL 33602
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
Case No: 96-64-CR-T-23(E)
United States Government,
v.
Douglas J. Carpa,
Amended and Supplemental Motion for Protection Under Certain Treaties; Motion for Mistrial "With Prejudice and Release from Custody; Motion for Dismissal of Indictment, or : in the Alternative, a New Trial.
FACTS
7. If communication with the juror by his probation officer is confirmed, the Court is required to presume prejudice. United States v. Remer, 347 US 227 (1954) at 229, for the burden rests heavily on the government to establish such government contact with the juror was harmless to defendants. The government has the ultimate burden of disproving prejudice.
"The more obviously serious and credible the allegations, the more extensive an inquiry is required." State v. Brown, 668 A.2d at 1305.
‘The trial court is vested with very broad discretion, and its decision on the types of process to be used and whether to grant relief is reviewed for abuse." United States v. Martinez, 14 F3d 543 (11th Cir. 1994).
"As a matter of established law, the burden of proving prejudice does not lie with the defendant because prejudice is presumed the moment the defendant establishes that ‘extrinsic contact with the juror in fact occurred.’" (emphasis mine) Martinez, supra at 550.
10. "Some right, title, privilege, or immunity dependent on treaty had to be so set up or claimed as to require the court to pass on the question of validity or construction in disposing of right asserted." (emphasis mine) Muse v. Arlington Hotel Co., (1897) 168 US 430, 42 L Ed 531, 81 S Ct 109, 28 U.S.C. § 1331, n 115.
"For purposes of jurisdiction of United States Courts, cases arise under constitution or laws of United States whenever its decision depends upon correct construction of either; and cases arising from or growing out of treaty is one involving rights given or protected by treaty. (emphasis mine) United States v. Old Settlers (1893) 148 US 427, 37 L Ed 509, 13 S Ct 650, 28 U.S.C. § 1331, n 65.
"Cases arising from or growing out of treaty was one involving rights given or protected by treaty." Owings v. Norwood’s Lesssee (1809) 9 US 344, 3 L Ed 30, 28 U.S.C. § 1331, n 115.
GROUNDS FOR MISTRIAL "WITH PREJUDICE" AND DISMISSAL OF INDICTMENT
1. Deliberate concealment or purposefully incorrect or misleading responses impairs a party’ s right to meaningfully exercise challenges for cause or peremptory challenges.
"Knowingly make false statements during voir dire is a serious crime (18 U.S.C. § 1621) and may subject the juror to criminal contempt (18 U.S.C. § 401) as well as substantial restitution claims by the government." United States v. Colombo, 869 F2d 149, 151 (2d Cir. 1989); United States v. Hand, 863 F2d 1100 (3d Cir. 1988).
2. To the extent that untruthful answers strongly suggest lack of impartiality, a defendant may obtain a new trial by establishing actual or implied bias. United States v. Columbo, supra at 149 (dishonest responses strongly suggest bias); United States v. Perkins, 748 F2d 1519, 1531-33 (11th Cir. 1984) ( false answers give rise to presumption of bias); Mc Coy v. Goldston, 652 F2d 654, 659 (6th Cir. 1981) (deliberate concealment raises presumption of bias.
3. Apart from establishing actual or presumptive bias, a defendant may also obtain a new trial according to Mc Donough Power Equipment, inc. v. Greenwood, 464 US 548, 556 (1984) by demonstrating that a juror
"failed to answer honestly a material question on voir dire," and further, "that a correct response would have provided a valid basis for a challenge for cause. "
"There is a presumption that a juror’s failure to respond honestly during voir dire is indicative of bias." United States v. North, 910 F2d 843, 903-04 (D.C. Cir. 1990); United States v. Brown, 913 F. Supp at 1332.
"Under the Mc Donough test, only "intentionally incorrect responses" provide a basis for relief." Gonzales v. Thomas, 99 F3d 978, 984 (10th Cir. 1996).
Failure of this juror to disclose his criminal record and contact with a government probation officer was dishonest, particularly in this circumstance, "strongly suggesting the juror wanted to sit on this case." Colombo, The Court needs to ask several questions. First, why did he want to sit? Second, was he under instruction from the prosecution to sit?
This stunning revelation, if confirmed, that the juror was on probation, certainly proves he is under the direct supervision and control of the prosecution This extreme situation qualifies for relief.
"Whether a juror’s bias may be implied from the circumstances is a question of law for a court, and doubts regarding bias should be resolved against the juror." (emphasis mine) Burton v. Johnson, 948 F2d 1150, 1158 (10th Cir. 1991).
4. The Motion for Mistrial is now expanded to Mistrial "With Prejudice."
"The Double Jeopardy Clause does protect a defendant against actions intended to... subject defendants to substantial burdens imposed by multiple prosecutions. It bars retrial where "bad faith conduct by judge or prosecutor threatens harassment of an accused by successive prosecutions... "United States v. Jorn, 400 US 470, 27 L Ed 2d 543, 91 5 Ct 547; Downum v. United States, 372 US at 736, 10 L Ed 2d 100, 83 5 Ct 1033.
"[Any doubt] to discharge a jury in a criminal prosecution must be resolved in favor of the liberty of the citizen, rather then left to the exercise of an unlimited, uncertain, and arbitrary judicial discretion." (emphasis mine) Downum, supra.
"[A] violation of his right to a fair trial under the Fourteenth Amendment, is entitled to be freed from detention under the void conviction..." Irvin v. Dowd, 366 US 717, 6 LEd 2d 751, 81 SCt 1639.
"A defendant who moves for a mistrial "with prejudice" may successfully prevent retrial after the trial judge grants the mistrial motion without prejudice to defendant"s being retried." United States v. Singleterry, 683 F 2d 122 (5th Cir. 1982).
CONCLUSION
Based on the findings of the Court and for all the above reasons and in the interest of justice, the motion should be granted with immediate release from custody.
Respectfully submitted this 1st day of December 1997.
/s/
Douglas J. Carpa, Pro Per
Return to Tainted Jury
