UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

United States of America

v. Case No. 16-cr-162-12-PB Opinion No.

Alfredo Gonzalez

AMENDED MEMORANDUM AND ORDER

A New Hampshire jury convicted Alfredo Gonzalez of

conspiracy to distribute heroin. Although the court was not

aware of it at the time, one of the jurors who participated in

Gonzalez’s trial was not a New Hampshire resident. Gonzalez

argues in a motion for new trial that the court’s failure to

provide him with a jury consisting only of New Hampshire

residents violated his rights under both the Jury Selection and

Service Act,

, et seq., and the Sixth Amendment.

I. BACKGROUND 1

A. The Juror

Jonathan Hatch was 26 years old when he was selected to

1 The background facts are based on factual findings I made following an evidentiary hearing on Gonzalez’s motion for new trial. Except where I have noted otherwise, the background facts are undisputed. serve as a juror on the Gonzalez case. He grew up in Derry, New

Hampshire, where he lived with his parents until he left to

attend graduate school in 2013. Thereafter, except for a brief

period in 2016, when Hatch moved back in with his parents, he

lived at several different addresses in Massachusetts. In 2016,

Hatch completed graduate school and took a job working for the

Boston School System.

Hatch’s parents sold their home in the summer of 2017. At

approximately the same time, Hatch’s sister purchased a

condominium in Derry. After Hatch’s sister purchased her

condominium, Hatch shifted his mailing address from his parents’

home to his sister’s condominium. He continues to receive his

mail at that address. Hatch also is registered to vote in New

Hampshire, has a New Hampshire driver’s license, and registers

his car here.

B. The Jury Selection Process

The court has adopted a Juror Selection Plan that requires

the clerk to prepare a “Qualified Jury Wheel” by randomly

selecting names from a “Master Jury Wheel.” Each prospective

juror selected from the Master Jury Wheel is instructed to

complete a “Juror Selection Questionnaire.” The electronic

version of the questionnaire provides a “permanent address” for

each juror and asks “[a]re your name and permanent address

2 correct as displayed? If not, please enter any corrections.”

Jurors are also asked a series of questions, including “[h]as

your primary residence for the past year been in New Hampshire?”

and “[h]as your primary residence for the past year been [in the

county of the juror’s listed permanent address]?” Any juror who

answers “no” to either question is instructed to list the “name

of the county and/or state of your primary residence during the

past year and include dates.”

Jury panels are randomly drawn from the Qualified Juror

Wheel. Jurors selected to participate on a panel are instructed

to complete both a “Juror Information Form” and a “Supplemental

Attorney Questionnaire.” The Juror Information Form asks each

juror to confirm their “permanent address.” Among the

additional questions asked are “[h]ow long have you lived in New

Hampshire?” and “[h]ow long have you lived in [the county listed

by the juror as his permanent address]?”

The Supplemental Attorney Questionnaire asks each juror:

“Please list (a) the city/town and county of your current

residence; (b) whether you own or rent; and (c) how long you

have lived there in years/months.” Jurors are also asked

“[w]here did you live prior to this address? Please list (a)

the city/town; (b) the county and state; and (c) [h]ow long you

lived at your prior address in years/months.”

3 Hatch’s name was drawn from the Master Jury Wheel and he

was instructed to complete a Qualified Juror Questionnaire in

June 2017. The electronic version of the Questionnaire, which

Hatch chose to complete, listed Hatch’s parents’ former home

address as his “permanent address,” but Hatch changed his

address to the address of his sister’s condominium. Hatch

answered “no” to the questions asking if he had been a resident

of New Hampshire and Rockingham County for the past year and

Hatch responded “Massachusetts, Norfolk County” when prompted to

disclose his state and county of residence. Hatch also added “I

have been living in Massachusetts for work.” Based on Hatch’s

answers to these questions, he should have been disqualified

from jury service, but, for reasons that are not disclosed in

the record, he was deemed qualified and his name was added to

the Qualified Juror Wheel.

Hatch was summoned to serve on the Gonzalez jury panel on

November 7, 2017. At that time, he completed both a Juror

Information Questionnaire and a Supplemental Attorney

Questionnaire. Hatch did not change his “permanent address” on

the Juror Information Questionnaire and he stated that he had

lived in New Hampshire for 22 years and in Rockingham County for

21 years. When responding to the Supplemental Attorney

Questionnaire, Hatch stated that the city and town of his

4 “current residence” was “Jamaica Plain, Boston (3 months).” He

answered “Quincy, Massachusetts (1 year)” to the question asking

for his prior address. Hatch’s responses to the Supplemental

Attorney Questionnaire should have disqualified him from jury

service.

Information drawn from jurors’ responses to the Juror

Information Form and the Supplemental Attorney Questionnaire are

used to produce two documents that are provided to counsel to

assist them in the jury selection process. The first is a “Jury

Selection List.” The Jury Selection List is a summary document

that provides each juror’s number, name, age, “City & State,”

occupation, marital status, and spouse’s occupation. The “City

& State” provided for each juror is taken from the “permanent

address” listed by the juror on the Juror Information Form. The

second document is a printout of each juror’s responses to the

Supplemental Attorney Questionnaire. As I have explained,

Hatch’s answers to the Supplemental Attorney Questionnaire

clearly stated that his current residence was “Jamaica Plain,

Boston (3 months)” and that his prior address was “Quincy,

Massachusetts (1 year).”

On the morning of jury selection, Hatch approached a member

of the court’s jury staff and stated that he “kind of lives in

New Hampshire and kind of not.” He also explained that he votes

5 in New Hampshire and he has a New Hampshire driver’s license.

He may also have said that he registers his car in the state.

The staff member instructed Hatch that he should raise the issue

with the judge during jury selection if his name was called.

When Hatch later reported to the Jury Administrator for the

selection of the Gonzalez jury, he told her that he was “all

set” with what he had been talking to the staff member about and

he also stated “I am keeping my New Hampshire residence.” The

Jury Administrator did not instruct Hatch to take any additional

action with respect to the residency issue. 2

Although counsel were provided with Hatch’s responses to

the Supplemental Attorney Questionnaire, which should have

alerted them to the residency issue, neither party raised the

issue with the court during the jury selection process. Nor did

Hatch. As a result, Hatch was seated as a member of the

Gonzalez jury without objection from either side. Defense

counsel later explained that he did not become aware of the

2 The facts in this paragraph are drawn from a memorandum prepared by the Deputy Clerk concerning her investigation of the issue. Although Hatch has a different recollection of his conversation with the Jury Administrator and her assistant, and I have no reason to doubt Hatch’s testimony on this point, I have adopted the version of these events depicted in the Deputy Clerk’s memorandum for purposes of analysis because the Jury Administrator was not available to testify and Gonzalez’s counsel argues that the Deputy Clerk’s version is more favorable to Gonzalez. 6 residency issue during the jury selection process because he

relied exclusively on the Jury Selection List, which identified

Hatch’s “City & State” as Derry, New Hampshire.

Hatch stayed with his sister in Derry for the duration of

the trial. At one point, he parked his car in a parking spot

reserved for residents of her condominium and his car was towed.

Shortly after the trial ended, Hatch contacted a member of the

clerk’s office, explained that his car had been towed from his

sister’s condominium during the trial, and asked if the court

would pay the towing fee. At some point after Hatch made his

request, the Deputy Clerk learned of a potential issue regarding

Hatch’s residency status and notified me. I directed her to

prepare a memorandum of her findings and provide the memorandum

to counsel. Gonzalez responded by filing his Motion for New

Trial (Doc. No. 237).

II. STANDARD OF REVIEW

Rule 33 of the Federal Rules of Criminal Procedure

authorizes a court to grant a new trial on a defendant’s motion

“if the interest of justice so requires.” New trial motions

filed more than 14 days after a jury verdict is returned, as is

the case here, must be based on newly discovered evidence. See

Fed. R. Crim. P. 33(b)(2) (“[a]ny motion for new trial grounded

7 on any reason other than newly discovered evidence must be filed

within 14 days after the verdict or finding of guilty”). To

obtain a new trial based on newly discovered evidence, a

defendant ordinarily must prove: “(1) the newly discovered

evidence was unknown or unavailable at the time of trial; (2)

the defendant was duly diligent in trying to discover it; (3)

the evidence was material; and (4) the evidence was such that it

would probably result in an acquittal upon retrial.” United

State v. Desir,

(1st Cir. 2001). 3

III. ANALYSIS

Gonzalez grounds his motion on both the Jury Selection and

Service Act (“Jury Selection Act” or “Act”) and the Sixth

Amendment. I address his argument under each provision in turn.

A. Jury Selection Act

The Jury Selection Act provides that a person is ineligible

3 The Court of Appeals has not determined whether a motion for new trial based upon newly discovered evidence of a juror’s nonresidency status can be granted if the defendant cannot prove that an acquittal would probably result on retrial. In the present case, although the government produced substantial evidence at trial to support the guilty verdict, and an acquittal on retrial would be unlikely, I need not determine whether Gonzalez’s motion should be denied on this basis because I determine he is not entitled to a new trial for reasons that are unrelated to the strength of the government’s evidence against him. 8 to serve on a federal jury unless, among other things, he “has

resided for a period of one year within the judicial district.”

(b)(1). A defendant must present any argument

that a juror is ineligible to serve under the Act “before the

voir dire examination begins, or within seven days after the

defendant discovered or could have discovered, by the exercise

of diligence, the grounds [for the challenge] . . . .”

(a). This process is “the exclusive means” by

which a defendant can challenge a jury on the ground that it was

not selected in the manner required by the Act.

(e).

In light of the Jury Selection Act’s plain language, the

First Circuit has refused to adopt a per se rule that a new

trial is required whenever an ineligible juror is seated.

United States v. Uribe,

, 562 n.7 (1st Cir. 1989).

Instead, to succeed on a claim for a new trial based on a

violation of the Act, a defendant must both present his

challenge within the time period specified in the Act and prove

that the improperly seated juror was biased against the

defendant. See

; see also United States v. Cepeda

Peres,

, 759 (1st Cir. 1978). Gonzalez cannot

satisfy either requirement.

As a preliminary matter, Gonzalez is in no position to

9 claim that he satisfied the Jury Selection Act’s timeliness

requirement because he failed to challenge Hatch’s eligibility

during the voir dire process, even though Hatch had disclosed

the fact that he was not a New Hampshire resident in his answers

to the Supplemental Attorney Questionnaire that were provided to

Gonzalez before the jury was selected.

Gonzalez nevertheless defends his failure to challenge

Hatch’s eligibility during the voir dire process by claiming

that he was misled by the Jury Selection List, which identified

Hatch’s “City & State” as “Derry, New Hampshire.” Although I

can understand how Gonzalez may have incorrectly concluded from

the Jury Selection List alone that Hatch had met the Jury

Selection Act’s residency requirement, I cannot excuse his

failure to review the Supplemental Attorney Questionnaire, which

would have clearly revealed the fact that Hatch was ineligible

to serve. The Jury Selection List reported the city and state

of Hatch’s “permanent address” rather than the city and state of

his residence. Although Gonzalez had no way to know this from

the Jury Selection List alone, the list did not provide Gonzalez

with sufficient information to determine whether Hatch had met

the Act’s residency requirement because the List does not reveal

whether Hatch had been a resident of the district for at least a

year, as the Act requires. Diligence required Gonzalez to

10 review the Supplemental Attorney Questionnaire during the voir

dire process if a juror’s residence was an important factor to

Gonzalez when selecting his jury. If he had reviewed Hatch’s

answers to the Questionnaire, he would have had all of the

information he needed to challenge Hatch’s eligibility to serve.

His failure to raise his challenge within the time period

specified in the Act thus bars him from raising the issue now.

More fundamentally, Gonzalez’s bid for a new trial based on

a violation of the Jury Selection Act could not possibly succeed

even if his failure to raise his challenge to Hatch’s

eligibility earlier could somehow be excused. To succeed with

his claim, Gonzalez must also prove that Hatch was biased

against him. As the court explained in Uribe, “[t]he fact that

a juror technically should have been disqualified, and was not,

does not automatically require a new trial. Rather, even if the

problem had been unknowable at an earlier date, [the defendant]

would still have to shoulder the burden of establishing harm.”

. In this context, the harm the court was

referring to is juror bias. See

In Sampson v United States,

(1st Cir. 2013),

the First Circuit addressed the issue of juror bias when

examining a claim that a new trial was warranted because a juror

11 had been dishonest during the voir dire process. 4 When

discussing juror bias in that context, the court explained

[a]ny inquiry into potential bias in the event of juror dishonesty must be both context specific and fact specific. The outcome of the inquiry depends on whether a reasonable judge, armed with the information that the dishonest juror failed to disclose and the reason behind the juror’s dishonesty, would conclude under the totality of the circumstances that the juror lacked the capacity and the will to decide the case based on the evidence (and that, therefore, a valid basis for excusal for cause existed).

. I apply the same test in examining Gonzalez’s

challenge to Hatch’s impartiality.

This is not a case in which the evidence suggests that a

juror intentionally provided false information to the court in

an effort to lie his way onto the jury. Nor am I aware of any

other reason to question Hatch’s impartiality. Gonzalez argues

that the fact that Hatch registers his car in New Hampshire even

though he is not a New Hampshire resident somehow makes Hatch

biased against him, but the reasoning underlying his conclusory

argument is not spelled out. Because Gonzalez cannot

demonstrate that Hatch was biased against him, he is not

4 A claim for a new trial based on dishonesty by a juror during the voir dire process is subject to the test announced in McDonough Power Equip., Inc. v. Greenwood,

(1984). Gonzalez does not make a claim under McDonough and any such claim would fail because Hatch was not dishonest with the court during the voir dire process. 12 entitled to a new trial based on his claim under the Jury

Selection Act.

B. Sixth Amendment

The Sixth Amendment provides in pertinent part that an

accused in federal court has a right to a trial “by an impartial

jury of the State and district wherein the crime shall have been

committed . . . .” U.S. CONST. amend. VI. Gonzalez argues that

this provision gives him a constitutional right to be tried by a

jury made up entirely of New Hampshire residents. Assuming

without deciding that the Sixth Amendment gives Gonzalez this

right, I nevertheless reject his argument for the same reasons

that I rejected his claim under the Jury Selection Act.

Although the First Circuit has yet to address this specific

issue, the Second Circuit was called upon to analyze a Sixth

Amendment challenge based on a juror’s non-resident status in

United States v. Novod,

(2nd Cir. 1991). In

that case, one of the jurors was a resident of the state, but

not the district in which the crime had been committed. Defense

counsel did not challenge the juror’s eligibility to sit until

after a guilty verdict had been returned even though he had good

grounds to know of the residency issue before the jury began its

deliberations. In rejecting the defendant’s Sixth Amendment

challenge based on the juror’s residency status, the court

13 concluded that absent some “showing of prejudice, the failure of

Novod’s counsel to recognize the residence issue and make a

timely objection prevents Novod from raising the issue after

trial and a jury verdict.”

.

Gonzalez has failed to present a persuasive argument as to

why a different result is warranted in this case. Accordingly,

I reject Gonzalez’s Sixth Amendment challenge for the same

reasons that I am unpersuaded by his challenge under the Jury

Selection Act.

IV. CONCLUSION

For the aforementioned reasons, I deny Gonzalez’s motion

for a new trial (Doc. No. 237).

SO ORDERED.

/s/ Paul Barbadoro__________ Paul Barbadoro United States District Judge

April 24, 2018

cc: Donald A. Feith, Esq. Georgiana L. Konesky, Esq. Scott F. Gleason, Esq. Thomas J. Gleason, Esq.

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