Case 8:09-cr-00572-JSM-TGW Document 424

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UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION

UNITED STATES OF AMERICA v. MARK ANTHONY MYRIE CASE NO. 8:09-CR-572-T-30TGW

GOVERNMENTS MOTION FOR RECONSIDERATION The United States respectfully urges this Honorable Court to reconsider and set aside its January 4, 2013, Order granting the defendants request for the seizure of a jurors computers and further states: Following an evidentiary hearing on the defendants Motion for New Trial, the defendant requested the Court, without citing any authority in support, to examine juror Terri Wrights computer(s). The question before the Court at the time was essentially whether and to what extent extrinsic evidence was introduced into and affected deliberations in this case. Although an internet article had suggested that Ms. Wright had conducted research during the jurys deliberations regarding the concept of Pinkerton liability, Ms. Wright testified before this Court that she had conducted such research only after the trial had concluded and that her post-trial research had not affected her deliberations. The Court has now ordered he United States Marshal to seize Ms. Wrights computers for a forensic examination by defense experts.

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This Courts inquiries thus far have appropriately focused on whether the jury was exposed to any extrinsic evidence. See United States v. Rowe 906 F2d 654, 656-57 (11th Cir. 1990). Subject only to Federal Rule of Evidence 606(b), the court may use whatever inquisitorial tools are (sic) necessary and appropriate to determine prejudice. Id. (citing United States v. Savage, 701 F.2d 867,871 (11th Cir. 1983)). An in-court examination of Ms. Wright and other jurors regarding their possible exposure to extrinsic evidence is such an appropriate inquisitorial tool. See, United States v. Wheaton, 517 F.3d 350 (6th Cir. 2008). The United States, however, believes that the seizure of Ms. Wrights computer and a search of that computer by a private investigator under the circumstances presently known does not comport with constitutional restrictions and due process. Such actions would extend beyond inquiry and invite an invasion of privacy. The Fourth Amendment to the United States Constitution, of course, protects citizens from unreasonable searches and seizures. In the context of a criminal investigation, law enforcement authorities ordinarily must have a courtauthorized warrant, supported by probable cause, to seize the property of a citizen, including computers. The search of the contents of a computer in this context also requires a specific probable cause determination. Although this Court did not order the seizure and search of Ms. Wrights computers in the context of a criminal investigation, the United States contends that the Court

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should consider Ms. Wrights right to privacy and the constitutional implications of the ordered seizure and search. 1 As noted above, the Court conducted an evidentiary hearing on December 20, 2012. The Court heard the testimony of Ms. Wright, the testimony of Chris Sweeney (the author of the blog article concerning Ms. Wright), and the testimony of three other jurors. None of that testimony suggested, much less showed, that extrinsic evidence influenced the verdicts in the case. The Court has now determined that other jurors should likewise be questioned in this matter. This inquisitorial tool may ferret out any jury exposure to extrinsic influence. If so, the Court may be able to resolve Myries motion without conducting a warrantless search and seizure. Moreover, this Courts Order directs the United States Marshal to seize Ms. Wrights computers without any direction as to how this is to be accomplished. The order theoretically would permit the Marshal to enter the jurors home, business, or vehicle and take any computer device (desktop, laptop, tablet, smart phone) found therein. The Order allows for these devices to be held indefinitely, without any regard for the disruption the loss of personal computers might have on Ms. Wrights personal or business affairs. See, United States v. Mitchell, 565 F.3d 1347 (11th Cir. 2009).

If the Court intends to examine Ms. Wrights computer to resolve any credibility concerns which the defendant raises, this Court should further consider Ms. Wrights Fifth and Sixth Amendment rights. 3

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The order also would allow a private investigator, during the course of the inspection, to view all of the internet searches that Juror Wright or any of the members of her household conducted on any computer in her possession during the trial, regardless of whether those searches pertained to any trial issue. In addition, the Order establishes no guidelines for the methods and means of the search, potentially subjecting Ms. Wrights private information to review by strangers and exposing her stored data to the risk of damage or loss. See, Andresen v. Maryland, 427 U.S. 463, 482 n.11 (1976) (when search warrants authorize the seizure of documents, responsible officials, including judicial officials, must take care to assure that they are conducted in a manner that minimizes unwarranted intrusions upon privacy.) This extremely broad directive is surely not what the Eleventh Circuit contemplated as an appropriate inquisitorial tool. Consequently, the United States urges this Court to revisit and to set aside its order pending in-court examination of the remaining jurors. If, after questioning the jurors, the Court still has concerns about the computers, it should then determine an appropriate means to resolve those concerns while ensuring that any examination of Ms. Wrights computer(s) is conducted within

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constitutional parameters. Appointment of counsel for Ms. Wright likely would be appropriate at that time. Respectfully submitted, ROBERT E. ONEILL United States Attorney

By:

s/James C. Preston, Jr. JAMES C. PRESTON, JR. Assistant United States Attorney Florida Bar No. 0383155 400 North Tampa Street, Suite 3200 Tampa, Florida 33602 Telephone: (813) 274-6000 Facsimile: (813) 274-6125 Email: james.preston@usdoj.gov

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U.S. v. MARK ANTHONY MYRIE

CASE NO. 8:09-CR-572-T-30TGW

CERTIFICATE OF SERVICE I hereby certify that on January 7, 2013, I electronically filed the foregoing with the Clerk of the Court by using the CM/ECF system which will send a notice of electronic filing to the following:

Imhotep Alkebu-Ian, Esquire Chokwe Lumumba, Esquire

s/James C. Preston, Jr. JAMES C. PRESTON, JR. Assistant United States Attorney Florida Bar No. 0383155 400 North Tampa Street, Suite 3200 Tampa, Florida 33602 Telephone: (813) 274-6000 Facsimile: (813) 274-6125 Email: james.preston@usdoj.gov

L:\_Criminal Cases\M\Myrie, Mark, et al._2009R03389_jcp\p_governments Motion for reconsideration_juror_computer.wpd