UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

ORLANDO DIVISION

UNITED STATES OF AMERICA

CASE NO.: 6:98-cr-52-Orl 19C

Plaintiff

  vs.

CHANTAL McCORKLE, et al., Defendants.

CHANTAL McCORKLE'S MOTION AND MEMORANDUM FOR NEW TRIAL AND EVIDENTIARY HEARING

The Defendant, CHANTAL McCORKLE, by and through her undersigned attorney, files this Motion for New Trial and Evidentiary Hearing, pursuant to Fed. R. Crim. P. 33. This motion is based upon the development of information indicating that members of the jury were subjected to improper prejudicial extraneous information that deprived Chantal McCorkle of a fair trial, in violation of the Sixth Amendment.

Factual Basis for Motion

The undersigned counsel has recently been supplied with copies of two affidavits by Mr. William Kent, attorney for William McCorkle.

These affidavits were created by private investigators Mr. Fred Roberts and Mr. William Porter. It is the belief of the undersigned that Mr. Fred Roberts was requested to interview members of the jury by Mr. McCorkle's family.

The undersigned attorney pursuant to local rules, had not caused the interviews of any jury members and learned of the interviews after the fact.

The affidavit of Fred Roberts sets forth his interview with Mark McDaniel, who served on the jury in this case. The significant portion of the interview sets for that Mr. McDaniel was told the following by a bailiff identified as Lou:

(a) One of McCorkle witnesses was a witness for defense attorney Bailey in the "son of Sam" case.

(b) The witness asked why he was a witness because he had never bought into the McCorkle plan.

(c) The jury would not have any trouble convicting McCorkle if they knew what he knew.

In addition, an affidavit from William Porter concerns a statement by the fiancée of Mr. Hart, another jury member. This information indicates Mr. Hart improperly discussed the case during the trial.

While the conduct of Mr. Hart does not directly relate to the jury being subjected to extraneous matters, it reveals a juror who did not reveal pertinent information during voir dire, held a bias against the Defendants and one of defense counsel, and openly spoke of the case throughout the trial. Such conduct was in itself improper.

The law is well established that private communications which are possibly prejudicial between jurors and third persons is forbidden and will invalidate the verdict unless the harmlessness is made to appear. Mattox v. United States, 146 U.S. 140, 150 (892).

The Eleventh Circuit in the case of United States v. Martinez, 14 F.3d 543, 550 (11^th cir. 1994) summarizes the law in this circuit by stating:

As a matter of established law, the burden of proving prejudice does not lie with the defendant because prejudice is presumed the moment the defendant establishes that "extrinsic contact with the jury in fact occurred." United States v. Caporale, 806 F.2d 1487, 1503 (llth Cir. 1986), cert. denied, 482 U.S. 917, 107 S. Ct. 3191, 96 L.Ed.2d. 679 (1987); United States v. Perkins, 748 F.2d 1519, 1533 (11th Cir. 1984).

The inherent prejudice from a disclosure by a bailiff has been recognized by The Supreme Court in Parker v. Gladden, 385 U.S. 363 (1966).

In Parker the bailiff stated to a juror:

`Oh, that wicked fellow (petitioner) he is guilty'; and `If there is anything wrong (in finding petitioner guilty) the Supreme Court will correct it.'

Parker, 385 U.S. at 364.

The Supreme Court recognized that the bailiff, as an officer of court and of the state held an "official character" which carried great weight with the jury. The court went on to state:

[W]e believe that the unauthorized conduct of the bailiff 'involves such a probability that prejudice will result that it is deemed inherently lacking in due process', Estes v. State of Texas, 38I U.S. 532, 542-543, 85 S. Ct. 1628, 1633, 14 L.Ed.2d 543 ( 1965). As we said in Turner v. State of Louisiana, supra, `it would be blinking reality not to recognize the extreme prejudice inherent' in such statements that reached at least three members of the jury and one alternate member. 379 U.S., at 473, 85 S. Ct., at 550.

Id. at 365.

The extrinsic contact by the bailiff is sufficient to raise the presumption of prejudice and require the government to demonstrate that the contact and statements were harmless.

See, United States v. Martinez, Supra at 550.

The evidence concerning conspiracy, wire fraud, and money laundering against Chantal McCorkle was not overwhelming. Rather, the evidence showed that Mr. McCorkle developed the products, controlled the infomercials, and ran the business. Mrs. McCorkle's appearance in the infomercials was at the direction of Mr. McCorkle and not inconsistent with a good faith belief in her husband and the general nature of the products sold by the company. Likewise, as to the money laundering accounts, the accounts in the Cayman Islands were in Mr. McCorkle's name and in the name of a company he found. The evidence was not overwhelming that Mrs. McCorkle's transfer of funds from business accounts to offshore accounts was done with the intent necessary to sustain a verdict of guilt under 18 U.S.C. §§ 1956 and 1957.

The statements by the bailiff revealed in the affidavit were highly prejudicial to Defendant Chantal McCorkle. A new trial is required when jurors consider extrinsic evidence if that evidence poses a reasonable possibility of prejudice to the defendant. United States v. Perkins, 748 F.2d 1519 (1lth Cir. 1984). Given the Supreme Court's decision in Parker v. Gladden, 87 S. Ct. 468 (1966), it is submitted that the statements of the bailiff here are legally prejudicial.

The defendant bears the burden that the extrinsic contact with the jury occurred.

United States v. Caporale, 806 F.2d 1487, 1504 (11th Cir. 1986). The affidavits here raise the issue sufficiently to require a hearing on this motion during which the jurors should be examined. pursuant to Fed. R. Evid. 606(b) to determine the extent of extrinsic evidence each juror heard. The affidavit by Mr. Roberts raises a colorable showing of extrinsic influence sufficient to require an evidentiary hearing. See, Remmer v. United States, 347 U.S. 227 (1954). United States v. Awan, 966 F.2d 1415, 1432-32 {1lth Cir. 1992); United States v. Perkins, 748 F.2d 1519, 1533 ( 1 1 th Cir. 1984). It is. the Court's duty "to ensure that the jury verdict is in no way tainted by improper outside influences." Perkins, 748 F.2d at 1533.

The Defendant submits that she has made a sufficient showing to require an evidentiary hearing on this motion for new trial. At the hearing, the extent and nature of the extrinsic contact with each juror should be explored.

A new trial is required if extrinsic evidence posed a reasonable possibility of prejudice. United States v. Awan, 966 F.2d 1415, 1432 (11th Cir. 1992); United States v. Pessefall, 27 F.3d 511 (11th Cir. l 994). The Defendant submits that the contact by the bailiff revealed in the affidavit of Roberts justifies an evidentiary hearing and a new trial upon developing from the jurors that such extrinsic contact occurred.

WHEREFORE, the Defendant, CHANTAL McCORKLE, requests this Court hold an evidentiary hearing to elicit information from the jurors and thereafter grant a new trial.

Respectfully submitted,

LAW OFFICES OF HORWITZ & FUSSELL
a Professional Association

By:

MARK L. HORWITZ, ESQUIRE
Florida Bar No.: 147442,
17 East Pine Street
Orlando, Florida 32801
(407) 843-7733
Fax No.: (407) 849-1321

Attorneys for Defendant Chantal McCorkle.