In complex white-collar trials, it’s not uncommon for the court to send written questionnaires to potential jurors ahead of the start of trial. The questionnaires are generally mailed to the potential jurors by the court a few weeks before trial. Having jurors complete the questionnaires allows both sides to review them thoroughly and prepare for voir dire. The court can also ask numerous questions to weed out jurors who should be excused for cause without having to take up hours of court time.
Both the prosecution and defense will suggest questions for the questionnaire. One great trial lawyer I worked with liked to request the question: “what bumper stickers are on your car?” When you think about it, it’s a deceptively simple question. You can learn a lot about someone from what she puts on her bumper for the world to see: she is a Democrat or Republican, she is a member of the NRA or the WWF, she has honor roll kids in school. (Or, perhaps, her kids can beat up other people’s honor roll kids.)
All in all, the questionnaires are a big help. But they can also set a trap for the unwary defense counsel thinking of making a Speedy Trial Act motion. A recent decision from the Eleventh Circuit in a securities fraud case demonstrates how.
In United Sates v. Isaacson, the Eleventh Circuit heard the appeal of Laurence Isaacson, who had been convicted by a jury of conspiracy to commit securities fraud. He was sentenced to 36 months in prison and ordered to pay $8 million in restitution. On appeal, the Eleventh Circuit affirmed Mr. Isaacson’s conviction but remanded the case for resentencing.
Mr. Isaacson allegedly participated in a complex scheme to defraud investors through a group of hedge funds called the “Lancer Fund.” The government alleged that the Lancer Fund would buy shares of shell companies that had little intrinsic value. The Fund would then artificially inflate the share price of those companies to make the companies appear more valuable than they actually were and therefore make the Fund’s value appear higher.
Investors in the Lancer Fund relied on valuations of the Fund’s value by the Fund itself and could not independently verify those valuations.
Mr. Isaacson did not have an ownership interest in the Lancer Fund but he allegedly helped prepare the fraudulent valuations.
Mr. Isaacson was indicted, along with several other co-conspirators, in January 2008. After several continuances, the case went to trial in the spring of 2010.
Sometime in early spring 2010, the court sent jury questionnaires to potential jurors. On March 18, 2010, the trial court in the Southern District of Florida “began discussing with counsel the responses of to the juror questionnaires . . . and the parties identified several jurors they jointly agreed should be struck for cause or hardship.” The court apparently agreed that day to strike some of the jurors for cause.
On March 23, 2010, the court again excused some jurors for cause and at least one juror over the objection of the government.
On April 19, 2010, Mr. Isaacson filed his Speedy Trial Act motion.
On April 26, 2010, the jurors appeared in court for “oral examination” — traditional voir dire.
The trial court denied the Speedy Trial Act motion on its merits, not based on its timeliness.
The Speedy Trial Act
The Speedy Trial Act requires that a federal criminal trial must “commence within seventh days” of the defendant’s indictment or initial appearance, whichever is later. 18 U.S.C. § 3161(c)(1).
There are some ways by which the government can extend the time to begin trial under the Act. Id. § 3161(h). For example, if the judge grants a continuance “on the basis of his findings that the ends of justice served by taking such action outweigh the best interest of the public and the defendant in a speedy trial.” Id. § 3161(j)(7)(A). The Act contains a list of these exceptions to the 70-day rule.
Winning a Speedy Trial Act motion is no joke. The remedy is dismissal of the indictment. Id. § 3161(a)(2). But there is a catch. The motion must be filed “prior to trial” or else the indictment cannot be dismissed; the defendant can waive his Speedy Trial Act rights by waiting too long to make a motion. Id.
When Does Voir Dire Begin?
On appeal, Mr. Isaacson argued that the district court improperly denied his Speedy Trial Act motion to dismiss. The Eleventh Circuit did not address the merits of his motion, only the timeliness.
Eleventh Circuit precedent makes clear that trial commences “when the court begins the voir dire.” United States v. Gonzalez, 671 F.2d 441, 443 (11th Cir. 1982). But as the Court of Appeals stated
this begs the question now before us—when (again, for purposes of the Speedy Trial Act) does voir dire begin?
[Side-note: Other circuits have similarly held that trial begins with voir dire. See, e.g., United States v. Young, 657 F.3d 408 (6th Cir. 2011); United States v. Jones, 23 F.3d 1307 (8th Cir. 1994); Gov’t of Virgin Islands v. Duberry, 923 F.2d 317 (3d Cir. 1991); United States v. Howell, 719 F.2d 1258 (5th Cir. 1983).]
The court agreed that the “common understanding” of jury selection is when the jurors are in court, answering questions under oath. However, district courts have broad discretion to decide how a jury will be picked, and “[w]ritten questionnaires are now a common complement to oral examination when selecting an effective and impartial jury.”
The court reasoned that the questionnaires ask questions similar to those asked during traditional voir dire and the jurors were likewise sworn to tell the truth. In the end, “written questionnaires facilitate jury selection in ways not unlike traditional oral examination.”
The opinion rejected Mr. Isaacson’s contention that written questionnaires “can never constitute voir dire for purposes of the Speedy Trial Act.”
Mr. Isaacson argued that the clock started on March 6, 2008, when one of his co-defendants made his initial appearance.
The problem for Mr. Isaacson, however, was not when the clock for the 70-day period began, it was when the trial began.
The Eleventh Circuit affirmed the district court because Mr. Isaacson had filed his motion to dismiss “after his trial had already begun.” The court articulated the following rule:
Where, as here, the District Court relies on written questionnaires to aid in jury selection, voir dire and thus the trial begins when the Court starts to rule on opposed juror challenges based on those written questionnaires.
As a result, jury selection in Mr. Isaacson’s case began on March 23, and his motion on April 19 was untimely.
In other words, he lost. (He did win on his sentencing argument, so there was a silver lining here. The loss amount used by the lower court was too high.)
So, Should You Still Ask For a Jury Questionnaire?
Heck yes. Using a jury questionnaire is still a good idea in complex cases (or even simpler cases, if your client has the means to pay you to draft and analyze them). Defense counsel, however, should fully understand how using a questionnaire may affect a Speedy Trial Act motion.
The Eleventh Circuit appears to be the first circuit to have dealt with written questionnaires in a Speedy Trial Act case, but it seems very possible that other circuits will follow its reasoning.
So, lesson learned: “trial” may begin earlier than you think. Get those Speedy Trial Act motions filed early.