(Recess pending verdict)
THE COURT: So we have a note from the jury received at 11:40 a.m. today. We will mark it as a Court Exhibit.
The note reads: We have elected Juror No. 5 as our foreperson, and it is signed by Juror No. 5.
We will make a that a Court Exhibit. I will also put on the record that we have agreement on the laptop. As to the laptop, my understanding is that both sides have reviewed what is on it, and it only contains the exhibits admitted into evidence; is that correct?
MS. JOHNSON: I believe so, yes.
MS. GERAGOS: That's correct, your Honor.
THE COURT: We have two exhibit lists. Both sides have reviewed both of those lits and have no objection to it being provided to the jury?
MS. JOHNSON: That's correct.
MS. GERAGOS: That's correct.
THE COURT: We have those materials. When the laptop is done, provide it to the courtroom deputy. He will provide it to the marshals, so they will have those materials. If the jury requires any AV assistance in terms of hooking it up to the screen, we will get them appropriate assistance. I think we will probably have a good break in terms of the next note.
Ms. Comey, anything from the government?
MS. COMEY: No. Thank you, your Honor.
THE COURT: Anything from the defense?
MS. GERAGOS: No, your Honor.
THE COURT: Very good. We're adjourned for the moment.
(Recess pending verdict)
THE COURT: We received a note from the jury. The note reads that: We have a Juror No. 25 who we are concerned cannot follow your Honor's instructions. May I please speak with your Honor or may you please interview him.
Signed by the jury foreperson, Juror No. 5.
Having reviewed the note and some of the applicable authorities, in the Court's view, there's some further information needed concerning the nature of the issue. And so what the Court would propose is to write back to the jury with the following note: Without advising the Court of any juror's view of the case or the substance of the deliberations, please explain what the nature of the concern is that Juror No. 25 cannot follow your Honor's instructions. Is it based on a lack of understanding of the Court's instructions, unwillingness to follow the instructions or something else?
That would be the Court's proposal, but I'll obviously hear from both sides as to anything they have in mind or that they would wish to address.
I would note that among the authorities that the Court reviewed was United States v. Thomas, 116 F.3d 606 (2d Cir. 1997), which provides some of the framework for addressing issues that come up during deliberations concerning juror issues of this nature.
Ms. Comey?
MS. COMEY: Yes, your Honor. Thank you. If it's all right with your Honor, may we have a minute to digest your Honor's proposal? We've also looked at Thomas and some of the related cases, and given how delicate this particular matter is, we'd like to be very careful before we give your Honor our position.
THE COURT: Agreed.
MS. COMEY: We'd like to take a moment at what your Honor has proposed, take a look at the cases one more time, and give you our position.
THE COURT: Very good.
MR. AGNIFILO: Yes, Judge. We have a proposal of our own, which is similar, but I think different.
I received your note. You have only recently started your deliberation. Please resume. If an issue arises, please have your foreperson send me a further note.
The reason why I think we prefer our proposal is -- it certainly invites -- I think it points out something important: They're just getting started. We don't know what the nature of the issue is, and I'm hesitant to lay out possibilities as though that is either all the possibilities or that by laying out possibilities, we're asking them to, you know, kind of agree or disagree with certain things that the Court has said.
THE COURT: Meaning that your proposal is; you just got started, so try to work through it.
MR. AGNIFILO: Yes.
THE COURT: If there's a further issue, let us know, at which point if we the wanted to go down the route that I suggested, we could do that at that time.
MR. AGNIFILO: Exactly. Because we can always ratchet it up. We can't ratchet it back. I think this is benign. It acknowledges that there's a note. I think it points out a very important principle that they're only just getting started, and if there is a further issue, please let us know by way of a note.
THE COURT: Does the government have an immediate reaction to that.
MS. COMEY: Yes, your Honor. I think we might want to be a little more specific. If that is the note that your Honor ends up sending in, giving instructions reminding the jury not to put anything in any future note about where the vote stands or any juror's view on the evidence or the merits of the case. I am very concerned about not crossing a line into getting any information about what's happening in the jury room.
THE COURT: What I'll ask the parties to do -- Mr. Agnifilo, you had that note written on some kind of piece of paper or greeting card or something.
MR. AGNIFILO: Exactly.
THE COURT: Whatever it is, could you share it with Ms. Comey. And if the parties can agree on an appropriate response, I'm happy to provide that.
MS. COMEY: Your Honor for the other cases, the other cases we're reviewing are United States v. Baker, 262 F.3d 124 and United States v. Spruill, 808 F.3d 585.
We're continuing to research, but we're trying to read as many cases as we can as we think about this issue.
THE COURT: Very good. We will break. I'm going to stay here and read those cases, but you can do what you need to do.
MS. COMEY: Thank you, your Honor.
(Pause)
MS. COMEY: Ms. Comey have you had a chance to --
MS. COMEY: Yes, your Honor. I provided our proposed revised language of a note back to the jury to defense counsel. I don't know their view on it. I'm happy to read it for the record, your Honor.
Our proposal would be a slightly different version of the note. It would be to say -- to write a note back saying: I received your note. I remind every juror of their duty to deliberate and to their obligation to follow my instructions on the law. With that instruction in mind, please resume your deliberations. If any further issue on this topic arises, please have your foreperson send a further note. Please ensure that any notes do not reference or reveal any juror's view of the evidence, the merits of the case, or the breakdown of the vote.
THE COURT: All right. So what I will ask the parties to do.
MR. AGNIFILO: I'm sorry, we're not -- the government removed, I think, the language that is the most important part our proposal.
THE COURT: I'm not doing the note right now. What I was going to say, it's 1:48. So take the next ten minutes, meet and confer and see if you can come to an agreed-upon note to respond with, and I'll come back at 2:00, and we'll figure this out.
MR. AGNIFILO: Sounds good, your Honor.
(Pause)
THE COURT: Do we have an agreed upon response to the juror's note?
MR. AGNIFILO: We, unfortunately, do not, your Honor. We do not.
THE COURT: What do we have written down? The parties' competing proposals?
MS. COMEY: Yes, your Honor. Ms. Slavik can send it to chambers via email.
THE COURT: Do we have the defense's proposal?
MS COMEY: It will be in Ms. Slavik's email, yes.
THE COURT: Okay.
All right. Having received both parties' proposals, I would note that, in large part, they are the same. There are minor variations between the two proposals.
The issue that I have with the defense's proposal is that it suggests in the second and third sentences that the issue raised is not an issue that is of any concern, and that the jury should return to their deliberations.
I would prefer — and I think it's appropriate — to have a neutral response, and so the government's proposal simply reminds jurors of their duties to deliberate and obligation to follow the Court's instructions. That's the only difference.
In the other respects, the two proposals are the same so I will provide the government's proposal back, so we'll put that on a court letterhead and send that back to the jury, and we will see if there are any issues to address.
MR. AGNIFILO: Your Honor, can I very briefly --
THE COURT: Yes.
MR. AGNIFILO: I think the reason for our proposal is there's no suggestion that the juror will not follow the instructions or is refusing to. And the word "cannot" is tricky, and so we don't know what the nature of the issue is, which is why we did everything in our power not to assume that it's an issue of his willingness to deliberate or anything like that. Because it might not be that at all.
And so while our proposal is somewhat more, I don't know, inert, but doesn't make any factual assertion, that's really by design because we really don't know what the issue is because what the note is that the juror -- the foreperson expresses his concern that he cannot, not that he's concerned that he refuses to or will not. And cannot is a term that I think throws open possibilities that might not be aligned with what the government is recommending.
Now, I don't want to suggest that the issue is not an issue. What I do want to convey to the jury is, you know, they're just getting started, and, without giving them any kind of guidance as to what the issue might be, because we don't know, allow them to come back to us with the same sort of fresh slate that we started with, but with these additional warnings of what the note should not say. So that's the reason for that -- and it really is a one-sentence difference, I agree with the Court.
THE COURT: Right. And the government's proposal does not reference any direction or instruction to any juror in particular. It simply reminds every juror of their duty to deliberate and their obligation to follow my instructions on the law. It does not reference the juror's note in any way in terms of the "cannot" language that you identified.
However, the defense proposal gives a signal to the jury that they have only recently started their deliberations, suggesting that there is some required duration to the jury's deliberations. I don't believe that's appropriate. And, as I noted, it gives a -- it sends a message to the jury that a particular concern that was raised, at least at this juncture, is not an issue to be considered.
The government's proposal doesn't address that. It doesn't take a position one way or another. It simply reminds every juror of their duty to deliberate and obligation to follow the instructions on the law. And in other respects, the two proposals are the same.
So I hear you, Mr. Agnifilo, but I think the government's proposal is the appropriate one, so we'll provide that to the jury. And we'll see if there are any other issues that arise.
Are we able to print that out? Yes. Okay. Good. If there is anything else from the government --
MS. COMEY: No, your Honor.
THE COURT: Anything else from defense?
MR. AGNIFILO: No, your Honor.
THE COURT: All right. We'll print that out.
I'm going to ask the Court's law clerk to print out the letter. If you need -- there should be a signature on there. So provide it for the parties just to review briefly, and then we'll send it back to the jury.
Thank you very much. We're adjourned.
(Recess pending verdict)
THE COURT: We have two letters from the jury that I believe the parties have seen.
The first one reads: Referring to page 37 of the jury charge: If a recipient wants, requests, or asks for controlled substances, and an individual hands over controlled substances to the requester, has the individual who hands over the controlled substances distributed?
That's the letter from 4:30 p.m.
The second letter which was sent five minutes later says: We will end at 5:00 p.m. today and resume at 9:00 a.m. tomorrow.
So those are the two notes. We will make those court exhibits.
Just, logistically, given the time, I think we can respond to the first letter at the beginning of the day tomorrow to afford the parties to determine what an appropriate response would be.
The Court's suggestion to the parties is that the response would be: In response to the jury's question, the Court refers the jury to page 37, lines 1 through 3 of its jury charge, which reads -- and then to quote the relevant language from those three lines of the jury charge.
That would be the Court's proposal, but I'll hear from the parties if they have any different views.
Why don't we table -- if you have an immediate reaction, you can give it to me, but other than that, I think at this time we can bring the jury out and dismiss them for the day. I will give them some logistical instructions about starting their deliberations in the morning, not communicating with anyone about the case, continuing to keep an open mind, et cetera. And then they can be dismissed and we can discuss anything that we have to discuss with regard to the first note.
Any issues with that approach?
MS. COMEY: No, your Honor. I do have a response to your proposal, but I think since we're going to give that response tomorrow morning, it can wait until after we've dismissed the jurors.
THE COURT: Mr. Agnifilo?
MR. AGNIFILO: That's fine with us. We'll wait until tomorrow morning.
THE COURT: Then I will tell the jurors we've received their other note, and we'll respond tomorrow morning.
With that, I'll ask the deputy to bring out our jury.
(Jury present)
THE COURT: Per the jury's request, it is now 5:00 p.m., so we will excuse you for today. We have received your other note, and we'll respond to you in the morning.
Thank you for all your hard work. Let me give you some closing instructions.
First of all, tomorrow you should arrive before 9:00 a.m., same thing as we've been doing. By 8:45 if you can, so that you can resume your deliberations. You can continue through lunch, just as you did today. You can obviously take a break if you'd like, it's up to you, during lunch, but bottom line is that you will be in the jury room to continue your deliberations throughout the course of tomorrow.
I am not going to bring you into the courtroom tomorrow morning. You can resume your deliberations when you are all present, but let me stress that you all must be present. That is to say, you should not resume discussing the case with one another until all 12 of you are there. Unless all 12 of you are there, you cannot deliberate. You need to deliberate as a whole. So for that reason, you can talk about the weather, sports, but not about this case until all 12 of you are there.
Once all 12 of you are there, you may resume your deliberations. For that reason, please be in the jury room, try to get there at the 8:45 time that you've been trying to get here throughout the trial so that you can resume no later than 9:00 a.m.
In the meantime, as I have instructed you time and again, do not discuss the case with each other, or with anyone else until you resume your deliberations when all 12 of you have arrived tomorrow.
Do not do any research about the case. All of the instructions that I've given you previously about not having discussions or conversations about the case and not researching or reading about the case, please follow those instructions. And you should continue to keep an open mind to ensure that you have an open mind when you resume your deliberations with one another.
Leave your notebooks, as well as the laptop, exhibit lists, jury instructions, all of those materials in the jury room. My staff and the court security officer will secure it when you are not using the materials in deliberations.
With that, I wish you a very pleasant evening, and we will see you tomorrow.
If we get a note from you during the day we may see you earlier. If not, I will bring you out at the end of the day tomorrow as I have today.
With that, have an excellent evening. We'll see you tomorrow.
(Jury in the present)
THE COURT: Please be seated.
Ms. Comey.
MS. COMEY: Yes, your Honor.
So while I agree that the instruction that your Honor is pointing the jury to is the correct one, my concern is that because the jury's question points to that page, that they are confused about that specific instruction.
So I think a more helpful answer, and an accurate answer, would be to say yes at the beginning, and then point them back to those three lines because I think they've clearly read page 37. There is clearly some confusion about whether it matters what the recipient thought or did, which clearly doesn't under the law, and so I think the clearest way to be accurate and helpful to the jury is to start by saying: Yes is the answer to their question.
THE COURT: All right. Mr. Agnifilo, is there he -- you just heard the proposal, so...
MR. AGNIFILO: Where I heard the proposal. I would like a little more time to discuss it with the team. My initial reaction is that's not going to be our answer. The instruction is set among other instructions. I don't want -- I think that the instruction on this subject has to be in context, but before I offer a counterproposal, I do want the chance to speak to everybody and we'll come up with a counterproposal as soon as possible and fairly soon.
THE COURT: Let me ask you to speak with the government, see if you can come up with an agreed-upon response to the jury, and inform the Court of the parties' positions by no later than 6:00 p.m. It's 5:10 now. It shouldn't take you more than that time to inform the Court. That way we can have a proposal ready when we begin tomorrow morning, and we can address any further issues that we need to at the beginning of the day tomorrow.
MR. AGNIFILO: Very good.
THE COURT: Anything further from the government before we adjourn?
MS. COMEY: No. Thank you, your Honor.
THE COURT: Defense?
MR. AGNIFILO: No.
THE COURT: Let's plan on if there's any dispute, we'll know by 6:00 p.m., and if so, we should plan to be here at 9:00 a.m., just to be sure we can get a response back.
(Trial continued July 1, 2025 at 9:00 a.m.)