MICHAEL POTH v. UNITED STATES

District of Columbia
Court of Appeals
No. 14-CF-987
DEC 29 2016
MICHAEL POTH,
Appellant,

v. CF1-7029-12

UNITED STATES,
Appellee.

On Appeal from the Superior Court of the District of Columbia
Criminal Division

BEFORE: GLICKMAN and BECKWITH, Associate Judges; and FARRELL, Senior
Judge.

JUDGMENT

This case came to be heard on the transcript of record and the briefs filed,
and was argued by counsel. On consideration whereof, and as set forth in the opinion
filed this date, it is now hereby

ORDERED and ADJUDGED that the matter is remanded to the trial court
for further proceedings consistent with this opinion, as the trial court erred in denying
appellant an evidentiary hearing on his juror-misconduct claim.

For the Court:

Dated: December 29, 2016.

Opinion by Associate Judge Corinne Beckwith.
Notice: This opinion is subject to formal revision before publication in the
Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the
Court of any formal errors so that corrections may be made before the bound
volumes go to press.

DISTRICT OF COLUMBIA COURT OF APPEALS

No. 14-CF-987 12/29/16

MICHAEL POTH, APPELLANT,

V.

UNITED STATES, APPELLEE.
Appeal from the Superior Court
of the District of Columbia
(CF1-7029-12)

(Hon. Russell F. Canan, Associate Judge)
(Argued November 10, 2016 Decided December 29, 2016)

Enid Hinkes, for appellant.

Valinda Jones, Assistant United States Attorney, with whom Channing D.
Phillips, United States Attorney, Elizabeth Trosman, Chrisellen R. Kolb, and
Michael Liebman, Assistant United States Attorneys, were on the brief, for
appellee.

Before GLICKMAN and BECKWITH, Associate Judges, and FARRELL, Senior
Judge.

BECKWITH, Associate Judge: A jury acquitted appellant Michael Poth of

second-degree murder while armed1 for the stabbing death of Philip Bushong, but

found him guilty of the lesser included offense of voluntary manslaughter while

1
D.C. Code §§ 22-2103, -4502 (2012 Repl.).
 2

armed.2 After trial, defense counsel discovered that two of the jurors had omitted

material information in their voir dire responses and filed a motion for new trial

under Super. Ct. Crim. R. 33. The trial court denied the motion on the ground that

Mr. Poth had forfeited the juror-misconduct claim by failing to exercise diligence

in discovering the claim’s factual basis and bringing it to the court’s attention prior

to the jury’s verdict. We conclude that the trial court erred in rejecting Mr. Poth’s

juror-misconduct claim on lack-of-diligence grounds, and we remand to allow the

trial court to decide the merits of Mr. Poth’s claim.

I.

After trial, defense counsel conducted a “general Google search” of all of the

jurors’ names3 and discovered that one of the jurors, Juror 061, was a registered

sex offender with a felony record and that another juror, Juror 703A, had been a

2
D.C. Code §§ 22-2105, -4502 (2012 Repl.).
3
Defense counsel had been given a list of the jurors’ names at the beginning
of voir dire. He copied the names into his notebook before returning the list at the
end of voir dire. When the issue of juror misconduct later arose, the trial court
noted that pursuant to Super. Ct. Admin. Order 95-11, the jurors’ names were
public information. The court also noted that the administrative order required the
parties to be provided during voir dire with a confidential “Juror Panel Roster” that
contained the jurors’ addresses, ages, occupations, and work addresses, but that the
roster provided to the parties in this case lacked the jurors’ home and work
addresses.
 3

complainant in an assault case in 1999. The government subsequently discovered

and disclosed that Juror 061 had several additional convictions and that Juror 703A

had also been a complainant in a 2000 assault case.

This information was significant because it was inconsistent with Juror

061’s and Juror 703A’s responses during jury selection. At voir dire, the

prospective jurors had sworn an oath to tell the truth. They were given a form

listing eighteen questions, which the court also read aloud to them. One of the

questions was whether the juror, “a close family member or a close friend . . . ha[d]

ever been a victim of a crime, a witness to a crime or charged, arrested, brought to

court for a crime.” Neither Juror 061 nor Juror 703A circled “yes” for this

question or any other question on the form. The court also called the jurors

individually to the bench for further questioning by the court and counsel. The

court inquired of Juror 703A as follows:

Q. Yes, ma’am, I noticed that like many other panel
members you didn’t answer any questions. Were
my questions clear enough for you?

A. Yes.

Q. Do you have any questions about any of my
questions?

A. None at all.
 4

The court questioned Juror 061 similarly and received the same responses.4

Mr. Poth subsequently filed a motion for a new trial. At a hearing on Mr.

Poth’s motion, counsel for Juror 703A represented that her client had forgotten

about being a complainant in the two assault cases. According to counsel, those

assaults “happened a long time ago,” and the perpetrator—“[i]t was someone that

she had a relationship with”—was deceased. Counsel also represented that the two

assaults “did not in any way [a]ffect her deliberations.” Counsel for Juror 061

stated that Juror 061 would assert his Fifth Amendment privilege against self-

incrimination if he were called to testify about his failure to disclose his criminal

history.

The trial court declined to hold an evidentiary hearing on the motion, ruling

that Mr. Poth’s claim was barred due to his counsel’s failure to exercise due

diligence. The court reasoned that although “defense attorneys are [not], generally

speaking, required to conduct pre-verdict juror investigations, . . . [i]t is the Court’s

view . . . that if such an investigation is conducted, it must be done in such a

4
Juror 061 did disclose a felony conviction on a juror-qualification
questionnaire, but this questionnaire was not provided to the trial court or the
parties.
 5

manner that will allow the trial judge time to take appropriate corrective action.”5

II.

Before addressing whether the court erred in imposing a due-diligence

requirement on Mr. Poth, we turn first to a threshold procedural matter. The

government argues that Mr. Poth’s motion for a new trial was time-barred by

Super. Ct. Crim. R. 33, which, at the time of the 2013 trial, provided that a motion

for a new trial based on grounds other than newly discovered evidence “may be

made only within 7 days after the verdict or finding of guilty or within such further

time as the Court may fix during the 7-day period” (emphasis added).6 Defense

5
The trial court noted that the question whether a defendant must
demonstrate due diligence in order to bring a motion for a new trial based on
evidence of juror misconduct discovered post-verdict through an internet
investigation has not yet been addressed by our court. The trial court gave the
issue careful consideration, relying heavily on relevant case law from other
jurisdictions. See, e.g., Burden v. CSX Transp., Inc., No. 08-CV-04-DRH, 2011
WL 3793664, at *5–14 (S.D. Ill. Aug. 24, 2011); Johnson v. McCullough, 306
S.W.3d 551 (Mo. 2010).
6
Super. Ct. Crim. R. 33 has since been amended to say that a “motion for a
new trial grounded on any reason other than newly discovered evidence must be
filed within 7 days after the verdict or finding of guilty.” The provision requiring
the trial court to fix the filing date within seven days of the verdict has been
deleted to conform with Fed. R. Crim. P. 33. See Fed. R. Crim. P. 33 advisory
committee’s note to 2005 amendment (“[T]he amendment deletes the language
regarding the court’s acting within seven days to set the time for filing. . . . [T]he
court itself is not required to act on [a] motion [for an extension] within any
(continued…)
 6

counsel did not file the motion for a new trial within seven days of the jury’s

verdict. Counsel did move for an extension of time within seven days of the

verdict, but the court did not grant the motion until after the seven-day period had

lapsed. The government did not object at that time; nor did it oppose the defense’s

second motion for an extension, which the court granted. The government

objected to the defense’s third and final request for more time, but the court

overruled the objection and granted that motion as well. When Mr. Poth finally

filed the motion for a new trial, the government argued that Super. Ct. Crim. R.

33’s time limit was jurisdictional and could not be forfeited and that even if the

time limit could be forfeited, the government’s opposition to the third extension

had been sufficient to preserve its right. The trial court rejected both arguments,

and the government renews them in this appeal.

The time limit in Super. Ct. Crim. R. 33 is not jurisdictional. Jurisdictional

rules, “when not constitutionally mandated, are an exercise of legislative power

and so must be grounded in statutes or other legislative acts.” Neill v. D.C. Pub.

Employee Relations Bd., 93 A.3d 229, 238 (D.C. 2014). Rule 33 lacks such a

statutory basis. It is instead a “claim-processing” rule—a rule devised by the court

(…continued)
particular time.”).
 7

“to promote the orderly process of litigation by requiring that the parties take

certain procedural steps at certain times”—and thus its requirements can be

forfeited or waived. Id. (quoting Henderson v. Shinseki, 562 U.S. 428, 435

(2011)). And while this court previously held that Rule 33’s time limit was

jurisdictional, see Diamen v. United States, 725 A.2d 501, 506 (D.C. 1999),

subsequent legal developments have cast doubt upon that holding. In Smith v.

United States, 984 A.2d 196 (D.C. 2009), we explained that “the jurisprudential

basis” of our cases holding that Super. Ct. Crim. R. 35 (b)’s time limit was

jurisdictional had been “‘substantially undermined’ by subsequent decisions of the

Supreme Court”—namely, Eberhart v. United States, 546 U.S. 12 (2005), and

Bowles v. Russell, 551 U.S. 205 (2007). Smith, 984 A.2d at 200 (quoting Lee v.

United States, 668 A.2d 822, 828 (D.C. 1995)). We adopt this reasoning,7 which

7
In Dean v. United States, 938 A.2d 751 (D.C. 2007), a case that postdates
Eberhart and Bowles, the court quoted the holding from Diamen, 725 A.2d at 506,
that Super. Ct. Crim. R. 33’s time limits are jurisdictional. Dean, 938 A.2d at 767.
But as the court explained in Smith, the Dean court did not “cite to any of the
recent Supreme Court precedent in making [its] ruling, nor was the issue of
‘jurisdictional vs. claim-processing’ directly before [the court], because the
objection to the time-limit violation was preserved at trial.” 984 A.2d at 201 n.5.
“The rule of stare decisis is never properly invoked unless in the decision put
forward as precedent the judicial mind has been applied to and passed upon the
precise question,” Murphy v. McCloud, 650 A.2d 202, 205 (D.C. 1994) (quoting
Fletcher v. Scott, 277 N.W. 270, 272 (Minn. 1938)), and we therefore are not
bound by Dean.
 8

applies here with even more strength, given that Eberhart’s holding directly

concerned Fed. R. Crim. P. 33, see 546 U.S. at 13, on which Super. Ct. Crim. R. 33

is patterned.

Because Super. Ct. Crim. R. 33’s time limit is not jurisdictional, the

government can forfeit or waive it. The government cites a number of federal

cases that it contends stand for the proposition that “the government . . . preserve[s]

its objection to an untimely filing under a claim-processing rule if the objection is

raised in the government’s response to the challenged pleading.” See United States

v. Felder, 529 F. App’x 111 (3d Cir. 2013); United States v. Foster, 623 F.3d 605,

607–08 (8th Cir. 2010); United States v. Miranda, 220 F. App’x 965 (11th Cir.

2007). But these cases indicate that where a defendant fails to request an extension

and then subsequently files an untimely motion for a new trial, the government

does not forfeit its objection so long as it includes that objection in its response to

the motion. That rule has no application here, where Mr. Poth requested and was

granted an extension without any objection by the government, and—more

fundamentally—where Mr. Poth’s initial request for an extension contained the

following representation, which the government did not contradict: “Government

counsel has no objection provided that the government is given a proportional
 9

extension to respond.” The government has waived8 its right to assert the seven-

day time limit.

III.

A defendant is entitled to a new trial in “the interests of justice” if

“‘exceptional circumstances’ prevented the defendant from receiving a fair trial.”

Super. Ct. Crim. R. 33; Tyer v. United States, 912 A.2d 1150, 1167 (D.C. 2006)

(quoting Huggins v. United States, 333 A.2d 385, 387 (D.C. 1975)). It is beyond

question that a defendant who was deprived of his or her Sixth Amendment right to

trial “by an impartial jury” was prevented from receiving a fair trial. Violation of

this right is a “structural defect affecting the framework within which the trial

proceeds,” and without an impartial jury, “a criminal trial cannot reliably serve its

function as a vehicle for determination of guilt or innocence.” Hughes v. United

States, 689 A.2d 1206, 1210 (D.C. 1997) (quoting Arizona v. Fulminante, 499 U.S.

279, 310 (1991)). The presence of even a single actually biased juror on the jury

violates the defendant’s right to an impartial jury. Young v. United States, 694

8
“Waiver is different from forfeiture. Whereas forfeiture is the failure to
make the timely assertion of a right, waiver is the ‘intentional relinquishment or
abandonment of a known right.’” United States v. Olano, 507 U.S. 725, 733
(1993) (quoting Johnson v. Zerbst, 304 U.S. 458, 464 (1938)).
 10

A.2d 891, 894 (D.C. 1997).

In Young, the court explained the procedure for investigating juror-bias

claims based on allegations of misrepresentations during voir dire. When a

defendant shows that a juror responded falsely or omitted material information in

his or her voir dire responses, the defendant is entitled to “a hearing in which the

defendant has the opportunity to prove actual bias” on the part of the juror. Young,

694 A.2d at 894 (quoting Smith v. Phillips, 455 U.S. 209, 215 (1982)). The

defendant is entitled to a new trial if he or she demonstrates at the hearing that the

“juror failed to answer honestly a material question” and that “a correct response

would have provided a valid basis for a challenge for cause.” McDonough Power

Equip., Inc. v. Greenwood, 464 U.S. 548, 556 (1984); accord Young, 694 A.2d at

894. The second requirement is satisfied if “‘the [trial] court . . . would have

granted the hypothetical challenge’ if it had known the true facts.” United States v.

Daugerdas, 867 F. Supp. 2d 445, 470 (S.D.N.Y. 2012) (quoting United States v.

Stewart, 433 F.3d 273, 304 (2d Cir. 2006)), rev’d in part on other grounds sub

nom. United States v. Parse, 789 F.3d 83 (2d Cir. 2015); see also Young, 694 A.2d

at 894 (stating that “the juror’s failure to disclose this information, particularly if

deliberate, may indicate a desire to serve on [the] jury for some improper purpose,”

or “the information the juror failed to disclose may indicate some bias against” the
 11

defendant).

Here, Mr. Poth proffered evidence that Juror 061 and Juror 703A had

omitted material information9 during voir dire. It is possible that these omissions

were inadvertent or were not motivated by prejudice. It is also possible that one or

both of the jurors were biased against Mr. Poth. Such a prospect, if realized, would

have deprived Mr. Poth of a fundamental right in our criminal justice system, and

Mr. Poth was therefore entitled under Young to an evidentiary hearing to probe the

jurors’ bias.

The trial court’s denial of this hearing on the ground that Mr. Poth’s counsel

had failed to exercise due diligence was an error of law.10 It may be that where a

“defendant knows of possible juror misconduct during trial but does not bring it to

the attention of the trial court before the verdict is returned, he waives the right to a

new trial on that ground.”11 Peña v. State, 294 P.3d 13, 23 (Wyo. 2013) (emphasis

9
Alternatively, the jurors’ failure to circle “yes” on the list of eighteen
questions beside the question about experience with the criminal justice system
could be characterized as an affirmative misrepresentation.
10
“We review the denial of a Rule 33 motion for abuse of discretion.”
Jones v. United States, 124 A.3d 127, 129 (D.C. 2015). A court abuses its
discretion when it relies on an erroneous legal principle. D.C. Office of Tax &
Revenue v. ExxonMobil Oil Corp., 141 A.3d 1088, 1095 (D.C. 2016).
11
Some courts have also held that where defense counsel fails to follow up
(continued…)
 12

added); see also United States v. Costa, 890 F.2d 480, 482 (1st Cir. 1989); United

States v. Edwards, 696 F.2d 1277, 1282 (11th Cir. 1983). But a defendant

otherwise has a right to rely on jurors’ responses under oath.12 See McDonough,

464 U.S. at 554 (“The necessity of truthful answers by prospective jurors if th[e

voir dire] process is to serve its purpose is obvious.”). Where, as here, the defense

had no actual knowledge that jurors had omitted material information and only

became aware of this circumstance after conducting an extrinsic investigation, we

will not find waiver or forfeiture of the right to raise a claim of juror misconduct.13

(…continued)
on voir dire responses that reasonably suggest the possibility of bias, the defendant
cannot raise the issue of juror bias post-trial. United States v. Johnson, 688 F.3d
494, 501 (8th Cir. 2012); In re Nash, 614 A.2d 367, 372 (Vt. 1991); but see United
States v. Parse, 789 F.3d 83, 118 (2d Cir. 2015) (“A ruling that a litigant has
waived a right because he failed to acquire sufficient information to make an
informed decision is based on an erroneous view of the law.” (brackets, internal
quotation marks, and citation omitted)).
12
The government argues that defense counsel should be expected to
consult “readily available online public” information and that counsel’s failure to
do so during trial precludes the assertion of a juror-misconduct claim based on
such information after trial. Although it is becoming increasingly common for
attorneys to conduct internet investigations of jurors and potential jurors, see
generally Eric P. Robinson, Virtual Voir Dire: The Law and Ethics of Investigating
Jurors Online, 36 Am. J. Trial Advoc. 597 (2013), this court has not previously
held that attorneys have a duty to conduct an external investigation of the jurors or
potential jurors during trial or voir dire, and we do not do so now.
13
We are not persuaded by the government’s argument that we must impose
(continued…)
 13

We therefore remand this matter to the trial court.14

(…continued)
a due-diligence requirement to discourage sandbagging. The existence of an
actually biased juror on the jury creates immediate and unquestionable prejudice
for the defendant. Given the defendant’s uncertain prospects post-trial of
satisfying his or her burden under Young and obtaining a remedy for this prejudice,
it is improbable that a defendant who, during trial, acquires information furnishing
a reason to believe that a juror is actually biased would sit on this information
rather than immediately seek to have the juror removed. See Henderson v. United
States, 133 S. Ct. 1121, 1128 (2013) (“[I]t is normally to the advantage of counsel
and his client to get the error speedily corrected.”).
14
Mr. Poth has failed to convince us that the government violated his right
to due process under Brady v. Maryland, 373 U.S. 83 (1963). Mr. Poth argues that
the United States Navy’s failure to respond to a subpoena for Mr. Bushong’s
medical records until after the trial was finished constituted the suppression of
material, exculpatory information by the government. See Vaughn v. United
States, 93 A.3d 1237, 1254 (D.C. 2014). The records would have shown that over
the course of his military service, Mr. Bushong was treated for injuries resulting
from two different assaults, and Mr. Poth asserts that these records would therefore
have supported his self-defense theory. We conclude that these records were not
material to the defense. The records would perhaps have been relevant to who was
the initial aggressor in the confrontation between Mr. Poth and Mr. Bushong. See
Shepherd v. United States, 144 A.3d 554, 558 (D.C. 2016). But the records’
probative value was very low given that they did not reveal whether Mr. Bushong
was the aggressor in the prior assaults, and there was already substantial evidence
in the trial record showing that Mr. Bushong was the aggressor. In fact, all of the
eyewitnesses agreed on this point. There is thus not a reasonable probability that
the alleged suppression of these records affected the trial outcome.

Mr. Poth also argues that the government violated Brady by failing to
disclose a witness statement and the grand jury testimony of two witnesses prior to
trial. While the government undoubtedly “has an obligation to disclose [Brady]
information to the defense in a timely and complete manner,” Vaughn, 93 A.3d at
1256, Mr. Poth was not prejudiced by the late disclosures in this case. Defense
(continued…)
 14

IV.

More than three years have passed since Mr. Poth’s trial, and it may be that

“the passage of time” has “impair[ed the] trial court’s ability to make a reasoned

determination of” Juror 061’s and Juror 703A’s bias against Mr. Poth, and that it

will be impossible to afford Mr. Poth the hearing to which he was entitled.

Robinson v. United States, 878 A.2d 1273, 1291 (D.C. 2005) (quoting Brown v.

Kelly, 973 F.2d 116, 121 (2d Cir. 1992)). We leave it to the trial court to decide in

the first instance whether it is possible to hold a fair evidentiary hearing or whether

Mr. Poth’s new-trial motion must be granted outright. See id. If it is possible to

have a proper evidentiary hearing on Mr. Poth’s juror-misconduct claim, the trial

court should—in evaluating the evidence developed at such a hearing—

(…continued)
counsel made effective use of the statement and grand jury testimony in his cross-
examination of the government’s witnesses, and he was sufficiently aware of the
gist of the statement and the testimony to include a summary in his opening
statement. Mr. Poth has not claimed with any specificity that earlier disclosure
would have assisted his counsel in investigating the case or preparing for trial, and
on the record in this case we see no basis for concluding it would have.

Finally, because we accept Mr. Poth’s argument that the trial court erred in
denying his juror-misconduct claim on the ground that his trial counsel failed to
exercise due diligence, we do not need to decide Mr. Poth’s claim that his trial
counsel rendered ineffective assistance, see Strickland v. Washington, 466 U.S.
668 (1984), by failing to investigate and raise his juror-misconduct claim pre-
verdict.
 15

nonetheless be cognizant of “the usual risks of imprecision and distortion from the

passage of time.” Miller-El v. Cockrell, 537 U.S. 322, 343 (2003).

Another issue that may arise on remand is that one or both jurors may be

unavailable to testify. This is not a speculative concern: Juror 061’s counsel stated

that Juror 061 would invoke his Fifth Amendment right against self-incrimination

if called to testify. In the absence of testimony by Juror 061, in particular—or in

the absence of other evidence satisfactorily explaining his omission of significant

information—the most reasonable inference would be that Juror 061’s omission

was knowing or intentional. Cf. Jackson v. Ala. State Tenure Comm’n, 405 F.3d

1276, 1288–89 (11th Cir. 2005) (explaining that although “[i]n some

circumstances a juror may have forgotten about a conviction or . . . not realized

that her conviction was covered by [a] question,” there was no “reasonable

possibility” that a juror who had been convicted of murder and spent three years in

prison “could have honestly doubted that she was covered by the question”). As

other courts have concluded, intentional misrepresentations and omissions, in the

absence of countervailing evidence demonstrating a non-bias motive, are strong

“evidence that the juror was likely incapable of rendering a fair and impartial

verdict.” People v. Dunoyair, 660 P.2d 890, 895 (Colo. 1983); see also United

States v. Colombo, 869 F.2d 149, 151–52 (2d Cir. 1989) (“[Lying] exhibited a
 16

personal interest in th[e] . . . case that was so powerful as to cause the juror to

commit [perjury,] a serious crime.”); In re Hitchings, 860 P.2d 466, 479 (Cal.

1993) (“[W]hen a juror conceals material information on voir dire, ‘that

information establish[es] substantial grounds for inferring that [the juror] was

biased . . . despite . . . protestations to the contrary.’” (quoting People v. Price, 821

P.2d 610, 650 (Cal. 1991)) (alterations and omissions in original)).15

V.

For the foregoing reasons, we conclude that the trial court erred in denying

Mr. Poth an evidentiary hearing on his juror-misconduct claim. We remand to the

trial court for further proceedings consistent with this opinion.

15
The government, quoting Young, 694 A.2d at 895, argues, with respect to
Juror 061, that “[s]omeone previously convicted of a crime is not necessarily more
likely to be biased against the defendant; ‘the opposite is more intuitive.’” But in
Young, the trial court credited the juror’s testimony that his omission of his
criminal history was inadvertent. Id. at 893. Accordingly, the Young appellant
raised the argument that even though the juror did not lie, the court should
“presume . . . bias[]” because the juror’s felony conviction rendered him statutorily
ineligible to serve on a jury. Id. at 894. The language quoted by the government
comes from the court’s analysis disposing of that argument. See id. at 894–95. In
the present case, by contrast, Mr. Poth has not had an opportunity to put Juror 061
on the stand and there would be no basis for the trial court to infer that Juror 061’s
omissions were unintentional. At the same time, if Juror 061 can be questioned,
then that juror’s disclosure of a prior felony conviction on the juror-qualification
form, see supra note 4, may be a factor relevant to the determination of bias.
17

So ordered.