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UNITED STATES DISTRICT COURT¶
SOUTHERN DISTRICT OF NEW YORK¶
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UNITED STATES OF AMERICA,¶
20 CR 330 (AJN)¶
Before:¶
District Judge¶
APPEARANCES¶
DAMIAN WILLIAMS¶
United States Attorney for the Southern District of New York¶
HADDON MORGAN AND FOREMAN¶
Attorneys for Defendant¶
BY: JEFFREY S. PAGLIUCA¶
CHRISTIAN R. EVERDELL¶
LAURA A. MENNINGER¶
-and-¶
BOBBI C. STERNHEIM¶
-and-¶
RENATO STABILE¶
Also Present:¶
Paralegal, U.S. Attorney’s Office¶
Ann Lundberg,¶
Paralegal, Haddon Morgan and Foreman¶
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(In open court)¶
(Voir dire resumed)¶
THE COURT: I have an update. So the one juror on the fifth floor, who’s not here, we’ve not been able to reach and left a message. The two jurors in 110, here, are not here. One we’ve not been able to reach and left a message and the other forgot and is not on the way.¶
So I propose, counsel, that we take the next available juror in on the first floor.¶
That’s fine with the government, your Honor.¶
MR. EVERDELL: That’s fine with defense, as well, your Honor.¶
THE COURT: I will note that the first available juror on the first floor on the list is the individual who is one of the two who are not here, the one who we haven’t reached, and left a message.¶
So let me tell you where we are.¶
On the fifth floor, it’s 117 who’s not here. Then on the first floor, it’s 169 and 273. So we would move 170 to the fifth floor.¶
Would your Honor mind repeating those numbers, please, one more time?¶
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THE COURT: Of course. Not present are 117, 169, and 273. So, by my count, the next juror from the first floor that we would move to the fifth floor is 170.¶
THE COURT: I’ll direct my staff to have 170 move to the fifth floor. Once they’re settled, we’ll get the live feed going and I’ll ask the questions.¶
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feed to the juror rooms on the fifth floor and the first floor.¶
We’ve confirmed that they’ve got the feed.¶
Apologies, your Honor. If the second pool of jurors is on the first floor — I went down to the first floor to observe and court security told me I was not permitted to enter the courtroom. If that’s the Court’s preference —¶
THE COURT: Of course. We’ll take care of it.¶
THE COURT: You have your government credentials, I suppose?¶
THE COURT: You can head back down, . We’ll ensure that you’re permitted in. I apologize. Good to know we have security, but — ()¶
Good morning, everyone. I’m told that the live feed now is working in the courtroom where our jurors are. Thank you so much.¶
Ladies and gentlemen of the jury, welcome back to the Southern District of New York and thank you again for your time and service. I’m just going to pause for a moment to make sure that we get confirmation that we have counsel in both rooms and that the audio/video is working.¶
We have confirmation, so we can proceed.¶
As I said, welcome back to the Southern District of New York. Ladies and gentlemen, we are here for the third and¶
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final step of selecting a jury to serve in this case.¶
Members of the jury panel, I’m going to ask two questions for everyone. If your answer to either question is yes, please just raise your hand.¶
My first question is, since you were here for individual questioning by me, have you read, heard, seen, or researched anything about the case or discussed the case with anybody.¶
My second question is, do you feel, for any reason, that you could not be a fair and impartial juror in this case. Now is the final opportunity to say so.¶
If your answer to either question is yes, please raise your hand, otherwise please sit quietly until I give you further direction. Thank you so much.¶
We have one juror who we’ll bring up to speak to and I’ll ask the audio/video feed to the jury rooms to please be turned off at this time. I’ll give you further instruction shortly. Thank you so much for your patience. ()¶
Counsel, so we have just one hand, I understand, in both rooms, and that’s a juror on the fifth floor, number 87.¶
Just trying to get clarification on whether there were any hands in 110. Sounds like we did have some hands in 110, but just the one in 506.¶
Can I ask counsel in the room if that’s in 506, the one hand?¶
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Okay. Juror number 87, you had a “yes” response to one of my questions. Go ahead.¶
JUROR: Yes. So you had asked if I had discussed this case. Well, the answer is unfortunately yes. Just based on the timeline I provided the people that I work with, as well as the extensive media coverage, people I work with were pretty able to easily piece together what case this was. As such, they wanted to express their opinions and were pretty adamant and compassionate about the case. So I wanted to be fully¶
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transparent and disclose that I discussed the case.¶
THE COURT: Did you cut them off when they were talking to you or discuss back?¶
JUROR: I tried to, to be honest, but some of the people that were speaking to me, I didn’t feel comfortable doing that with. So in some cases, I did not.¶
THE COURT: Counsel, without objection?¶
■■■■: No objection, your Honor.¶
MR. PAGLIUCA: No, your Honor. Thank you.¶
THE COURT: Thank you for your candid response. I will excuse you. Thank you. The jury department will tell you how to check out. Thank you.¶
(Juror not present)¶
Counsel, I think then we can move — there were some hands in 110, but not the next juror, which is 181. So I think we can move juror 181 to the fifth floor and you can exercise your peremptories with 181 as the final juror in the room.¶
Everybody agree with that?¶
■■■■: Yes, your Honor.¶
MR. PAGLIUCA: Yes, your Honor.¶
MS. STERNHEIM: Yes.¶
THE COURT: So I will ask that juror 181 be brought to the fifth floor, please.¶
Just going to get confirmation when 181 is on the fifth floor and then I’ll bring you up for alternating¶
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2, number 7, 26, 29, 37, 48, 49, 50, 58, 70, 89, 119, 124, 125, 149, 151, 152, and 170. I’ll read those numbers again as¶
is going to escort the selected jurors to the jury room. Everyone else please remain quietly in your seats until I give further instruction.¶
So again, the selected jurors are 2, 7, 26, 29, 37, 48, 49, 50, 58, 70, 89, 119, 124, 125, 149, 151, 152, and 170.¶
Thank you so much, ladies and gentlemen. I’ll ask you to please remain quietly in your seats if your number was not called until I give you further instruction. If your number was called, I’ll ask you to gather your belongings and follow instruction of the jury staff and my courtroom deputy,¶
who will take you to the jury room.¶
We can stop the feed for the moment.¶
Counsel, the feed is off to the jury rooms. We’re bringing the selected jurors down to the jury room.¶
Let me ask counsel if there is any reason why the remaining jurors on the panel cannot be excused at this time.¶
: No, your Honor.¶
MR. PAGLIUCA: No, your Honor.¶
THE COURT: As soon as I have confirmation that the 18 jurors are in the jury room, I’ll go back on the live feed and thank the jurors who are going to be excused.¶
Let me ask, who will do the opening for the government?¶
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THE COURT: What is your time approximation?¶
Honor.¶
THE COURT: Who will do the opening for the defense?¶
THE COURT: And how long?¶
MS. STERNHEIM: I will, Judge.¶
MS. STERNHEIM: I hope to keep it under an hour.¶
THE COURT: Thank you. What I anticipate, as I said, as soon as we get the jurors in the jury room, I’ll go back on and thank and excuse the remaining jurors. We’ll get them settled in the jury room, the bathroom and the like, and then bring them out, swear them in, preliminary instructions. We’ll see if we can do both or if it makes sense to break for lunch at the time after the government opens. We’ll see where we are.¶
Ms. Sternheim.¶
MS. STERNHEIM: Judge, after the jury is sworn and taken to the jury room, may we have just a quick break?¶
THE COURT: The jury is going to the jury room now, then I’ll bring them in, swear them, and we’ll go straight to openings. So would you like a break now?¶
MS. STERNHEIM: I would.¶
THE COURT: Let me see if I can excuse our other jurors and then we’ll break.¶
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MS. STERNHEIM: Of course.¶
THE COURT: Counsel, will there be any visuals during openings?¶
No, your Honor.¶
MS. STERNHEIM: Just me.¶
THE COURT: So for the overflow rooms, we’re sorting out cameras. So after I instruct the jury, we’ll have the overflow room cameras on the podium box, but we wanted to see if we needed to show any visuals, as well, and it sounds like no. Great.¶
Just, it takes some time, given distancing, to move 18 people between the floors. So as soon as I get confirmation that they are in the jury room, as I said, I’ll excuse the other jurors.¶
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THE COURT: Counsel, we have all the jurors down. There’s one juror indicating that they’d like to speak to me about their employer. If you’re comfortable, I would have the court reporter and I go into the robing room and speak to them and then report back, if that’s okay.¶
THE COURT: All right. We’ll do that.¶
No objection, your Honor.¶
MS. STERNHEIM: No objection.¶
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(In the robing room)¶
(Counsel not present)¶
(Juror present )¶
THE COURT: You have a concern with your employer?¶
JUROR: Yes. So last we spoke, I knew that there would be some issue with me being out for six weeks. So I spoke with HR; and they mentioned that the company policy states that they would cover two weeks of jury duty paid time off. And then after the two weeks, they would use, like, my personal time off, like vacation. Currently now I don’t have enough to cover for the four weeks remaining. And if I were out for four weeks, that’s unpaid time. So that would be a financial hardship on my end, which just doesn’t — I wouldn’t be able to, you know, pay bills and stuff like that. So, you know, that financial hardship I wouldn’t be able to take on. And the company’s policy just states that they cover the two weeks of paid time. And then after that’s done, they would go into my PTO for the remaining time, and I don’t have that amount of PTO currently. So then that accounts to four weeks of unpaid time.¶
THE COURT: And tell me about what that means in terms of hardship. Given where we are at this stage and everybody’s going to face some difficulty, tell me what it means to you in terms of hardship.¶
JUROR: That means like my rent, loans, car payment,¶
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you know, just living expenses in New York, it means a lot.¶
THE COURT: Tell me who your employer is.¶
That’s the corporate umbrella. And then¶
the local brand is¶
THE COURT: So you get two weeks for jury duty, and then it’s into your paid time off. And how much do you have of that remaining?¶
JUROR: Yeah. So two weeks for paid time off, but I’ve used four days so far for coming in for jury duty. So that would be a balance of six by way of the company’s policy. And then — six days by way of the company’s policy. And then after that, they would use my accrued paid time off, which I believe through the calculations that they mentioned through the end of the year, I would have about five days. And then once that’s completed, they would — I would be placed on unpaid leave, which that’s about three and a half weeks or so. So three and a half weeks, my salary, that’s essentially a month, which would put me behind with car payments, my school loans, my rent, etc., especially since it’s the holiday season, so —¶
THE COURT: All right. I’m going to send you back to the jury room. I’ll let you know.¶
(Juror not present)¶
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THE COURT: Okay. We have a juror indicating financial hardship. The juror has further conferred with their employer, was told that they get two weeks of paid time for jury duty, four days of which have been used up. After that, they can go to their paid time off. They only have about five days remaining, and unpaid leave after that. And the juror has indicated that that is a substantial financial hardship.¶
And I’ll tell you, I also have another juror who has indicated that their spouse surprised them with a trip. I’m getting the dates of the trip. That’s where we are.¶
How would you like to proceed, ?¶
Your Honor, I believe the juror who expressed financial hardship should be struck for cause.¶
MR. PAGLIUCA: I think I’d like to know what juror number we’re talking about here, your Honor.¶
THE COURT: Well, I think that not matters to the analysis.¶
MR. PAGLIUCA: I think it does, to the extent that we exercised peremptory challenges already and accepted this jury and excused the remaining jurors.¶
THE COURT: Well, I haven’t excused remaining jurors yet. So I think the question is whether anybody wants to try to do anything with the remaining jurors if this juror needs to be struck for cause.¶
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One option, counsel, we had an unstruck juror. There was a juror on whom nobody exercised a peremptory who has not been excused. We could sub in that person since nobody exercised a peremptory.¶
MS. STERNHEIM: Judge, may I offer a suggestion that has been done by colleagues of yours in years past? Depending on who the employer is, if it’s a large employer, judges have contacted the employer and inquired whether they would be willing to expand their policy. And it has been successful.¶
THE COURT: I can try that.¶
The government would have no objection to at, your Honor.¶
THE COURT: Okay. So I’ll try that now.¶
The other juror has indicated that the spouse surprised them with a trip December 24th through 28th. So we are to be sitting two of those days. I have not spoken to that juror yet, but can, and see if there’s any flexibility there. So I’ll call — I’ll try calling the employer of the juror who’s indicated hardship.¶
In the meantime, perhaps think about my suggestion, which is that there is an unstruck juror who, because the government waived a peremptory — now, I recognize the defense, knowing that the government waived the peremptory, knew that that juror would drop off, if not. But nonetheless, it’s an unstruck juror, so we could potentially pick that person up if¶
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we need to.¶
I will see about calling the employer. And then I would also suggest I’ll speak to the other juror with the trip with the court reporter and find out if there’s any potential flexibility there.¶
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MS. STERNHEIM: Thank you.¶
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(In the robing room) (Counsel not present) (Juror present)¶
THE COURT: Juror 58. How are you?¶
Please have a seat.¶
So I’ve been told that you have a surprise trip planned.¶
JUROR: Yes, my wife surprised me with a trip.¶
THE COURT: And that was the kind of information I was looking for, for any reason you can’t serve. Now that we’re at this point in the process, I need to ask whether it’s possible to move that trip?¶
JUROR: It’s possible to move? I believe we can. I think we’ve got insurance on there. I will speak to her again afterwards and see if we can move it.¶
THE COURT: If you can, if she can move it, are you able to serve?¶
JUROR: Yes. If she’s able to move it, I will be able to serve.¶
THE COURT: Okay. Can I let you use a phone and you can call her if I give you some privacy?¶
JUROR: Sure.¶
THE COURT: If you know her number. I don’t know anybody’s number.¶
(Pause)¶
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JUROR: She said unfortunately it can’t be moved, but she will try. But I’m not sure if you guys could wait that long anyway.¶
When you asked that question earlier, I just figured, you know, you said, you know, if you saw something or if you know you were still going to be unfair, had I known, I would have said something then. But she said unfortunately, right now she don’t think it could be changed. Because she’s in school right now. So when we get home, she’s going to see if it could be changed.¶
THE COURT: Well, okay.¶
I’m going to hope that it can be changed.¶
JUROR: Okay.¶
THE COURT: I’ll talk to the lawyers about how they want to proceed, but I’m going to assume for now you’re going to stay on the jury.¶
JUROR: Okay.¶
THE COURT: And hopefully it can be moved or we can accommodate in some way.¶
JUROR: Okay.¶
THE COURT: But at this stage we need you to stay, unless it’s impossible.¶
JUROR: Okay.¶
THE COURT: Okay? All right. Thank you.¶
JUROR: All right. So I’ll be back again —¶
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THE COURT: Well, you’re going to go back to the jury room now and then I’ll let you know —¶
JUROR: Okay.¶
THE COURT: — what’s next.¶
JUROR: Okay.¶
THE COURT: Okay?¶
JUROR: Thank you.¶
THE COURT: Thank you. But for now, you’re staying.¶
JUROR: All right. Thank you.¶
(Juror not present)¶
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THE COURT: Okay. Here’s my update: We’re still gathering the employer information on the juror. They needed to go get their phone and get the contact information. So we’re working on that. So I haven’t called yet.¶
In the meantime, I did speak to the other juror whose spouse surprised them with a trip from the 24th to the 28th. They weren’t sure if it was movable, tried calling the spouse, and basically just isn’t sure at this point if it’s movable.¶
My view is we charge ahead with that juror, hope that it’s movable. I suppose, worst-case scenario, we could arrange when we sit, but I’m not inclined to not sit that week. But I’m going to hope it’s movable. That’s my view. You tell me.¶
MS. STERNHEIM: I’ll speak first.¶
That’s fine with the government, your¶
That’s fine.¶
Honor.¶
THE COURT: All right.¶
So I’m going to let that juror know to keep pressing to see what options are moving, and that my intention is to keep them on the jury.¶
With that, I’ll step down in order to try to call the employer. Once I get that information, in the meantime, any thoughts on whether to — if this doesn’t work, to keep the unstruck juror?¶
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THE COURT: Okay. Why don’t you work on that. But let me actually — I think we might run into where we had some hands.¶
Your Honor, my list would be that that would be we have Juror 181, 189, and 195 as the next three.¶
THE COURT: I believe we had hands raised for 189 and 195. So perhaps we could go —¶
MS. STERNHEIM: Judge, would you please repeat those two numbers, the jurors that you believe had issues?¶
THE COURT: So this was what — I didn’t follow up on this because it was preliminary, but I got a note that the following jurors in 110 had raised their hand: 189, 195, 198, 235, 239, and 261.¶
I will step down while you think about how you want to proceed if we do go down one — the other option is to proceed with five alternates. Just not what I’d hoped to do out of the gate. But let me make this call and you think about if we lose somebody, how you want to proceed. I’ll hear your requests.¶
MS. STERNHEIM: Thank you.¶
(Recess)¶
THE COURT: All right. Here’s my update:¶
I just spoke to the human resources person at the entity where the juror works. The policy is two weeks paid. But I urged consideration of some — whether there might be an ability to do more on that, and she said she would check. And¶
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I said I could give her about ten minutes. So we will wait and see what the word is there.¶
I would also like to just bring back the juror who had the trip plan with the court reporter and just let that juror know that I do intend to keep them on the jury and urge efforts to move the trip plans in light of where we are in this process. I’ll let you know if anything further develops with that.¶
Your Honor, I believe the parties have reached agreement on what to do if one of these jurors cannot proceed.¶
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So let me speak to the juror with the trip planned, wait the ten minutes that I’ve given this human resources person to respond, and then we’ll get underway.¶
: Thank you, your Honor.¶
THE COURT: Thank you.¶
MS. STERNHEIM: Judge, will we still be given a break?¶
THE COURT: Yes.¶
MS. STERNHEIM: Thank you.¶
THE COURT: Let me suggest that you take a break now also.¶
MS. STERNHEIM: Okay.¶
THE COURT: Because I think it will be at least 10 to 15 minutes before I return.¶
MS. STERNHEIM: All right. Thank you.¶
THE COURT: Thank you.¶
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(In robing room)¶
(Counsel not present)¶
(Juror present)¶
THE COURT: Hi, Juror 58.¶
JUROR: Hi.¶
THE COURT: Just wanted to let you know we are going to keep you on the jury.¶
JUROR: Okay.¶
THE COURT: Want you to do everything you can to try to move that.¶
JUROR: Okay.¶
THE COURT: I’m happy to call the airline or the travel agent if that would be helpful or write a letter.¶
JUROR: Okay.¶
THE COURT: See what you can do. And you can let me know down the road, hopefully, that you’re able to move it. But let me know that you’re not and we’ll take it one step at a time. We might not be able to sit for those days, if it’s necessary.¶
JUROR: Okay.¶
THE COURT: But my hope is that you guys can move it and enjoy the trip when this is done.¶
JUROR: Okay. Yeah, I’ll definitely go home and call all the necessary parties.¶
THE COURT: That would be great. Let me know if a¶
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letter or phone call from me would be helpful.¶
JUROR: Okay.¶
THE COURT: Thank you very much.¶
You can return to the jury room.¶
JUROR: Thank you so much.¶
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THE COURT: The update is that I don’t have the information yet. The employer of this juror, they are working on it, but because it’s a deviation from an existing policy, they have to work it up the chain. They understand the urgency, and the person I spoke to anticipated an answer within an hour, but trying to do it as soon as possible.¶
I think there are a couple of options. One, we can move to the juror that you agreed as our sixth alternate. The other, I think, on consent, you could agree to seven alternates and we could bring that juror and we proceed, and if it turns out this is a hardship because this company is not able to make the exception, then I will obviously, after conferring with you, dismiss that juror for cause, but we could get underway or we could, not knowing, dismiss the juror and move to the other juror or we could simply wait until we get more information.¶
Your Honor, the government would adopt your Honor’s proposal that we seat the seventh alternate and proceed.¶
MS. STERNHEIM: We would prefer to wait.¶
THE COURT: And wait altogether, I presume, you mean, Ms. Sternheim?¶
MS. STERNHEIM: Yes, your Honor.¶
THE COURT: I think we’ll give it a cutoff, a reasonable cutoff. Of course, I have two courtrooms full of jurors who are waiting and maybe what it makes sense to do is¶
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for me to Zoom in and let them know that the process is ongoing, we may still need them, and that I appreciate their patience.¶
Any concerns with that?¶
No concerns with that, your Honor, but given that we may be waiting an hour, would it make sense to move the lunch break a little earlier, break for lunch now and then have more time this afternoon?¶
THE COURT: I will check with . I believe the jurors’ lunch is anticipated at 1:00, so that may not be possible.¶
Can I get the feed to 506 and 110, please. Let me know when we’re live.¶
Okay, I understand that the feed is working again with the jurors in 506 and 110.¶
I want to thank you so much for your patience. The reason I haven’t excused you yet is because the process is still ongoing. It remains possible that we would call on some of you to serve jury duty, and that’s why I ask you to continue to wait patiently. I will provide additional information as soon as I have it. Thank you very much.¶
I’ll step down. Thank you.¶
(Recess)¶
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