United States v. Luisi

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UNITED STATES OF AMERICA, v. ROBERT C. LUISI, Defendant.

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

2008 U.S. Dist. LEXIS 56145

July 25, 2008

YOUNG, D.J.

In September of 2002, a federal jury convicted Robert C. Luisi on three counts of possession with intent to distribute and distribution of cocaine in violation of 21 U.S.C. § 841(a)(1). . In this first trial, Luisi, "an admitted member of the La Cosa Nostra crime family," presented a complex entrapment defense. United States v. Luisi, 482 F.3d 43, 45 (1st Cir. 2007). He averred that Ron Previte, a fellow La Cosa Nostra member who was also a government informant, had worked in concert with an FBI agent, Michael McGowan, to "improperly induce him to commit drug crimes." Luisi maintained that when their initial inducements :failed, the informant and agent convinced Joe Merlino, Luisi's superior in La Cosa Nostra, to order Luisi to commit the charged offenses. Preveti and McGowan, Luisi posited, knew that this was an order he could not refuse.

The First Circuit vacated Luisi's conviction because the district court refused to give an entrapment instruction. Id. On remand, the case was assigned to this session of the Court. On March 12, 2008, a second jury convicted Luisi on the same three drug-related counts. Although Luisi's en-trapment defense at times lent the proceedings the air of The God-father, the trial was otherwise unremarkable.

Jury deliberations, however, presented the Court with two issues. First, after only an hour of deliberations, the jury sent a note indicating that one juror refused to accept the legitimacy of the drug laws at issue. After it became clear that deliberations could not move forward, the Court conducted individual juror voir dire. The Court dismissed Juror No. 2 because he was unwilling to set aside his belief that the Commerce Clause does not give Congress the authority to proscribe mere possession of narcotics. ...

I. BACKGROUND

Luisi's case went to the jury just before noon on March 11. At approximately 1:00, the Court received the following note:

One juror is asking: Where - if two-thirds of both houses of congress voted in 1919 that it was necessary 'to amend the constitution to give congress the power to ban mere possession of a substance (prohibition of alcohol in that case) - is the constitutional grant of authority to ban mere possession of cocaine today?

The Court instructed the jury that they were not free "to determine any constitutional questions about [the] law."

At 3:00, the jury sent two more questions. The first inquired, "If a juror denies on constitutional grounds the validity of the trial, charges, and jurisdiction thus preempting consideration of the facts in question, is he an ineligible juror?" The second asked, "Are we, given these objections, a legally constituted jury?"

After speaking with counsel, the Court convened and again instructed the jurors that the laws at issue were constitutional and that they were not free to substitute their own views. The Court then told the jury they were to take the rest of the day off and to reflect on the Court's instructions. The next day, after researching the issue and consulting the attorneys, the Court determined that if the problem persisted each juror should be brought into the lobby in the presence of counsel and the Court should inquire 1) whether he or she believed he or she could faithfully apply the law as instructed to the facts of the case; and 2) whether he or she could begin their deliberations afresh if a juror had to be removed and replaced by an alternate.

When the jury arrived, the Court instructed them to continue deliberations, but told them that they should send another note if the problem persisted. Within ten minutes, the foreperson passed a note indicating that one juror still refused to engage in deliberations. The Court instructed the jurors to suspend deliberations and began questioning each juror in the lobby. The Court first spoke with the foreperson, who answered both of the aforementioned questions in the affirmative. Juror No. 2 was the second juror questioned. He immediately informed the Court that he was the juror who had asked the first juror question and who was the subject of the second and third questions. He then explained:

My question was where, if, . . . as every schoolboy knows, the highest law in the land is the United States Constitution, and if [C]ongress had to go to amend the [C]onstitution in, actually it was ratified in 1919, the 18th Amendment, in order to have the power to ban not interstate commerce but mere possession, where is [Congress' authority to ban mere possession of drugs] in the [C]onstitution(?)

• * *

Congress is empowered by Article I, in a list of about 17 specific empowerments, I'm unaware, and it was never made clear to me, where [banning mere possession of drugs] is authorized in the Constitution.

The Court then informed Juror No. 2 that the Supreme Court had interpreted the Commerce Clause "to extend to enacting laws with respect to contraband, including contraband drugs." When asked if he could accept that interpretation and apply the law passed by Congress to Luisi's case, Juror No. 2 stated that he could "only accept the words that have been given to [him], and [he could] only accept the fact that [the Commerce Clause] is written as it is written." Juror No. 2 also took exception to the Court's reference to the Supreme Court interpreting the Constitution. In his words, "[I]nterpret is a word I associate with reading a foreign language. The [C]onstitution as . . . you know, is written in English." He pontificated:

As an educator, I know that [the Constitution is] writ-ten to the eleventh grade vocabulary level. And "among the several states" is a reference to, is basically the plural between. It's more than two. And I know that if a plane crashes between North America and Europe it did not crash in Denver. I know that there's a specific meaning to those words.

At one point during the exchange, the Court asked Juror No. 2 whether he believed he had the authority to "decide whether the law is valid." He responded:

No, I don't decide. . . . I am familiar with the philosophy known as a fully informed juror, but I disagree with it. What I'm saying is that the interstate commerce clause . . . those words have a specific meaning; that words have meaning.

The Court spent several minutes attempting to explain how Congress had the authority to ban drug possession but continued to receive evasive responses. The Court then asked Juror No. 2 to step out in the hallway in order to confer with counsel. The Court informed counsel of its opinion that Juror No. 2 was "engaged in juror nullification and [the Court believed] it was within [its] power to dismiss him." But before dismissing Juror No. 2, the Court wanted to hear argument. The government did not object to the dismissal. Luisi's counsel objected on the ground that Juror No. 2 had stated he did not agree with the Fully Informed Juror, which "is essentially a study of juror nullification."

Notwithstanding Juror No. 2's professed disagreement with the "philosophy known as a fully informed juror," it was clear he believed the Commerce Clause did not permit Congress to pass laws related to drugs that did not cross "more than two" state lines and that he did not accept the power of the judiciary to interpret the Clause to embrace any additional power. It was equally clear that he was unable to set aside his personal beliefs and apply the law as instructed. Notwithstanding defense counsel's argument, the Court was convinced that this was a form of juror misconduct that could be classified as nullification. See United States v. Thomas, 116 F.3d 606, 614 (2d Cir. 1997) ("'[N]ullification' can cover a number of distinct, though related, phenomena, encompassing in one word conduct that takes place for a variety of different reasons; jurors may nullify, for example, because of . . . [a] general opposition to the applicable criminal law or laws."). At bottom, Juror No. 2's insistence on applying his own law was grounds for dismissal. The Court therefore dismissed Juror No. 2 and replaced him with the first alternate, who up until that point had been isolated from the deliberating jury.

After questioning each of the remaining jurors, the Court brought the newly constituted jury into the courtroom and explained that they were to begin their deliberations afresh. ...

II. ANALYSIS

No other country has placed so much faith in the ability of ordinary citizens directly to participate in the function of the justice system. William G. Young, Vanishing Trials, Vanishing Juries, Vanishing Constitution, 40 SUFFOLK U. L. REV. 67, 68 (2006) ("Nearly all civil jury trials and ninety percent of criminal jury trials on the planet take place in the United States."). The men and women that fill jury boxes in courthouses across the country inject our judicial system with the conscience of their communities, provide a check against tyranny, and legitimize our justice system. See United States v. Green, 346 F. Supp. 2d 259, 316 (D. Mass. 2004). Along with trial court constitutional interpretation, the jury is "one of two defining features of our legal system." Young, Vanishing Trials, supra, at 68.

The jury in this case confirmed this Court's faith in the jury system. They were unswayed by Juror No. 2's attempts to convince them that they need not follow the law as instructed. Yet, Juror No. 2's nullification effort strikes at the heart of the delicate division of labor between judge and jury that has been critical to their survival. Before explaining the specific reasons for dismissing Juror No. 2, the Court chronicles the evolution of these roles and discusses how the jury, operating within its sphere, has been critical to the maintenance of an empowered, independent judiciary. Nullification, as shall be explained, threatens to undermine the jury system, and with it the rule of law and judicial independence.

'A. NULLIFICATION THREATENS TO FURTHER THE DECLINE OF THE JURY SYSTEM AND ERODE JUDICIAL INDEPENDENCE '

1. "The Constitutional Judges of Facts"

Judges and juries play familiar roles in modern courtrooms. Judges, assisted by lawyers, interpret the jargon and terms of art packed into the array of statutes and caselaw governing a given case. Within the legal framework the judge outlines, juries apply their collective experience to the facts of a case to determine the truth. Within its sphere, the jury is equal to any other constitutional officer. Their power, however, has a critical limitation: they must follow the law as the judge instructs. The discrete roles for judge and jury were not, however, settled until nearly two decades after the birth of the Republic as jurists embraced instrumentalism along with a need for legal certainty that would enable private actors, particularly commercial interests, to order their affairs according to the rule of law.

Given the common law tradition inherited from England, there was never any serious question that the jury would play a central role in the American legal system. See AKIL REED AMAR, AMERICA'S CONSTITUTION: A BIOGRAPHY 233 (2005). Nevertheless, the power that ought be ascribed to juries was a matter of debate in the early Republic. Some advocated that the jury should have the power "to follow the Constitution as they understood it." Id. at 239. Others recognized that "[w]ithout limits, a sweeping right of jury review might well have given eccentric localities too much power to frustrate - essentially to nullify - federal laws strongly supported by the national citizenry." Id. at 241.

One reason the jury's powers were still a matter of debate was that in the late eighteenth century the legal profession was in its nascent stage. Because there were no law schools, judges and lawyers had little in the way of formal legal training that would enable them to interpret laws any more artfully than the ordinary citizens called to serve on a jury. Id. at 240. Thus, there appeared to be little justification for divesting juries of the ability to have their say about the law. Id. Perhaps more importantly, the undeveloped legal profession and the uncertainty about the function of juries reflected an ambivalence about the role courts would play in shaping relationships between private actors.

In the 1780s, instrumentalism had yet to emerge as the dominant conception of American law. See MORTON J HOROWITZ, THE TRANSFORMATION OF AMERICAN LAW, 1780-1860 1-2 (1977). That is, in 1787, judges and lawyers had yet to fully embrace a formal role in establishing the rule of law, and they had yet come to terms with the role that their rules would play in ordering society. See id. In the final decade of the eighteenth century, however, "lawyers and judges can be found with some regularity to reason about the social consequences of particular legal rules." Id. at 2.

These developments in legal thought were prodded by the rapid development of the American economy that transformed law into a profitable, even lucrative profession. Up until the twilight of the eighteenth century, most cases involved disputes over relatively small amounts of money. Id. By the late eighteenth and early nineteenth centuries, however, industrialization had brought about larger, more sophisticated commercial enterprises, and these commercial interests looked to courts to resolve disputes. Id. at 140. It soon became apparent that law would have a significant role in fashioning rules for the growing economy and that a lawyer's involvement in the process could translate into significant legal fees. Id. For example, Alexander Hamilton, who had left a fairly mundane law practice to become Secretary of the Treasury, returned to New York to find business booming. Id. at 141. "One of Hamilton's first cases terminated in an astronomical damage judgment of $ 120,000." Id.

At the same time the legal profession began to embrace instrumentalism, and as commercial interests turned to the law to resolve disputes, courts came under fire for their failure to fashion clear rules that would "enable[] individuals to plan their affairs more rationally." Id. at 26. While judges shouldered a good deal of the blame for the lack of legal certainty, id. at 4-6, allowing juries to follow their own law led to ad hoc decisions and undermined uniformity and predictability. Id. at 28. Influential legal thinkers of the day recognized that establishing a predictable rule of law was critical to the growth of America's fledgling economy. The future chief justice of Connecticut, Zephaniah Swift, observed the "relationship between 'uniformity of decision' in England and 'the immense wealth and commercial prosperity of that nation.'" Id. at 26.

The commercial interests, which in most cases were "not very fond of juries," id. at 141, along with lawyers and judges, saw that a greater degree of legal certainty could be achieved if judges assumed responsibility for determining the law in each case. Nevertheless, the use of juries, which was embedded in no fewer than three places in the Constitution, was not negotiable. Thus, lawyers and judges became the primary guardians of the law, and juries became, as the Constitutional Court of Appeals of South Carolina observed in 1798, "the constitutional judges of facts." Brown, 2 S.C.L. 126.

The permanent change in the relationship between judges and juries came about in three ways. First, looking to Lord Mansfield's example, American judges began accepting lawyer's motions to have certain matters determined as a "special case" or a "case reserved." HOROWITZ, supra, at 142. In these procedures, parties asked judges to resolve issues of law without submission to the jury. Id. Second, judges began granting new trials for verdicts "contrary to the clear weight of the evidence." Id. These procedural mechanisms curbed the juries' ability to generate outcomes that were contrary to the law the court had fashioned.

Third, and most importantly, "[d]uring the first decade of the nineteenth century . . . the Bar rapidly promoted the view that there existed a sharp distinction between law and fact and a correspondingly clear separation between judge and jury." Id. at 143. The idea quickly gained traction, and state supreme courts began requiring trial judges to instruct juries on the law. Id. In Massachusetts, for example,

[b]y 1810, it was clear that the instructions of the court, originally advisory, had become mandatory and therefore juries no longer possessed the power to determine the law. Courts and litigants quickly perceived the transformation that had occurred and soon began to articulate a new principle -- that "point[s] of law . . . should . . . be . . . decided by the Court," while points of fact ought to be decided by the jury.

Id. (quoting W. NELSON, AMERICANIZATION OF THE COMMON LAW: THE IMPACT OF LEGAL CHANGE ON MASSACHUSETTS SOCIETY, 1760-1830 169 (1975)).

The division of labor between judge and jury that emerged in the beginning of the nineteenth century applied in civil as well as criminal cases. As one lawyer explained before the New York Supreme Court:

The certainty of the criminal law is as important as that of the civil, and that can only be preserved by leaving it to be expounded by judges, to whom education and habit have rendered it familiar, and who join knowledge of its theory to the aptitude which practice gives.

People v. Melvin, 1 Yates Sel. Cas. 112 (N.Y. Sup. Ct. 1809).

It was equally clear that juries could not apply their own understanding of the Constitution. In United States v. Callender, 25 F. Cas. 239, F. Cas. No. 14709 (Circuit Court, D. Va. 1800), James Thompson Callender was indicted for "maliciously designing and intending to defame the president[, John Adams,]" in violation of the Sedition Act, 1 Stat. 597. In rejecting Callender's counsel's plea to put the question of the statute's constitutionality to the jury, Justice Samuel Chase, an associate justice of the Supreme Court of the United States who was riding circuit, stated unequivocally:

I cannot conceive that a right is given to the petit jury to determine whether the statute . . . is constitutional or not. To determine the validity of the statute, the constitution of the United States must necessarily be resorted to and considered, and its provisions inquired into. It must be determined whether the statute alleged to be void, because contrary to the constitution, is prohibited by it expressly, or by necessary implication. Was it ever intended, by the framers of the constitution, or by the people of America, that it should ever be submitted to the examination of a jury, to decide what restrictions are expressly or impliedly imposed by it on the national legislature?

Callender, 25 F. Cas. at 255 (Chase, J.).

The Chief Justice of the United States may as well have been answering the Callender court's rhetorical question when he declared, "It is emphatically the province and duty of the judicial department to say what the law is." Marbury v. Madison, 5 U.S. 137, 1 Cranch 137, 177, 2 L. Ed. 60 (1803). At no time since Marbury has the fundamental principle in Justice Chase's declaration been seriously questioned.

...

3. Nullification threatens further to undermine the jury system and to contribute to the collapse of the separation of powers Despite the clearly defined roles for judges and juries, there are those who believe that jurors possess an "unalienable right" to set aside the court's instructions and to apply the law as they see fit. See History of the Fully Informed Jury Association, About FIJA - The History of FIJA, available at http://www.fija.org/index.php?page=staticpage&id=1 (last visited June 2, 2008). In a recent Time Magazine article, writers for The Wire, a popular fictional television show about cops and criminals in Baltimore, advocated nullification as a way to bring an end to "the drug war," a term that refers to the enforcement of drug laws in low-income communities. See Ed Burns, et al., "The Wire's War on the Drug War," TIME (March 5, 2008), available at http://www.time.com/time/nation/article/ 0,8599,1719872,00.html. This call for nullification was by no means a cry in the wilder-ness. Paul Butler, a professor at The George Washington University Law School, published an famous article in the Yale Law Journal advocating jury nullification in drug cases with black defendants. See Paul Butler, Racially Based Jury Nullification: Black Power in the Criminal Justice System, 105 YALE L.J. 677, 680 (1995). Websites such as the "Fully Informed Juror," which Juror No. 2 referenced during voir dire, advocate jury nullification for a variety of reasons. See Fully Informed Jury Association, available at http://www.fija.org/ (last visited June 3, 2008); see also Clay Conrad, Medical Marijuana: Is Jury Nullification the Next Step? COUNTERPUNCH (June 17, 2005), available at http://www.counterpunch.org/conrad06172005.html.

Over the course of thirty years on the bench, this is the first time that the Court has encountered a juror who has attempted to arrogate to himself the power that our Constitution places in the elected branches of government. Thankfully, the citizens who occupy jury boxes across the country do not share such views. Nullification has no basis in law, but if citizens felt free to nullify, it would undermine not only the rule of law, but also the values at the core of our democracy. Moreover, nullification would fan the flames of anti-jury sentiment and contribute to the demise of the jury trial along with the independent judiciary.

i. Juries Do Not Have a Right to Disregard the Judge's Instructions on the Law Courts have long recognized that defendants have no right to an instruction on jury nullification. See United States v. Boardman, 419 F.2d 110, 116 (1st Cir. 1969). A court may "block defense attorneys' attempts to serenade a jury with the siren song of nulli-fication . . . and . . . may instruct the jury on the dimensions of their duty to the exclusion of jury nullification." United States v. Sepulveda, 15 F.3d 1161, 1190 (1st Cir. 1993).

Just as defendants have no right to an instruction on nullification, jurors have no right to nullify. As a D.C. Circuit panel comprised of Chief Judge Spottswood W. Robinson, III, Judge George E. MacKinnon, and then-Judge Ruth Bader Ginsburg explained:

A jury has no more "right" to find a "guilty" defendant "not guilty" than it has to find a "not guilty" defendant "guilty," and the fact that the former cannot be corrected by a court, while the latter can be, does not create a right out of the power to misapply the law. Such verdicts are lawless, a denial of due process and constitute an exercise of erroneously seized power.

United States v. Washington, 227 U.S. App. D.C. 184, 705 F.2d 489, 494 (D.C. Cir.1983) (per curiam). ii. If Taken Seriously, Jury Nullification Threatens to Undermine the Democratic Process and the Rule of Law If it were taken seriously by mainstream Americans, jury nullification would threaten to unravel the fabric of our democracy. The impropriety of nullification emanates from the notion that ours is "a government of laws and not of men." See Mass. Const. Part I. This means simply that no citizen is above the law, and none is free to make his own law. As Thomas Paine stated in Common Sense, "For as in absolute governments the king is law, so in free countries the law ought to be king; and there ought to be no other." Thomas Paine, Common Sense (1776), available at http://www.mtholyoke.edu/acad/intrel/paine.htm.

It is a testament to the liberties afforded our citizens that Juror No. 2 is free to express his beliefs about the meaning of the Constitution. He is not, however, free to implement his views at his pleasure. Those who would change the law must work through democratic channels. Juror No. 2 and others who feel Congress does not have the authority to ban possession of narcotics may attempt to win the hearts and minds of the American people. Should the people tire of drug laws, they may elect representatives who will repeal them; they may elect a president who will not enforce them; they may amend the Constitution to abolish them. They may work to change the law, but they are not free to disregard it.

The notion that nullification will change the law is drivel. Those who would characterize it as a noble form of civil disobedience are deeply delusional. Under the theory of civil disobedience followed by Gandhi and Dr. Martin Luther King, Jr., it is only appropriate to disobey the law if one does so publicly, in an effort to change the law, and then accepts the punishment. As Dr. King explained in his Letter from Birmingham Jail, "In no sense do I advocate evading or defying the law . . . . That would lead to anarchy. One who breaks an unjust law must do so openly, lovingly, and with a willingness to accept the penalty." An Open Letter from Dr. Martin Luther King, Jr. to Alabama Clergymen (April 16, 1963), available at http://www.stanford.edu/group/King/popular_requests/frequentdocs/ birmingham.pdf (last visited June 18, 2008). Nullifiers do not openly disobey the law in order to change it. They conspire behind closed doors and cast the law aside at their caprice. This is not civil disobedience; it is anarchy. One who engages in such a practice cannot hope to change the law, but only displace laws altogether.

History has not vindicated nullification. To be sure, there have been isolated instances of "benevolent" nullification that "some may regard as tolerable." United States v. Thomas, 116 F.3d 606, 614 (2d Cir. 1997). Proponents of nullification often cite the acquittal of William Penn in 1670, "John Peter Zenger, the publisher of the New York Weekly Journal [who was] acquitted of criminal libel in 1735, and the nineteenth-century acquittals in prosecutions under the fugitive slave laws." Id. at 614. But these examples, culled from bygone centuries, are exceptions to an otherwise abhorrent strain of lawlessness.

By and large, when juries have felt free to apply their own law the result was what Professor Randall Kennedy has described as a "sabotage of justice." Id. at 616. "Consider, for example, the two hung juries in the 1964 trials of Byron De La Beckwith in Mississippi for the murder of NAACP field secretary Medgar Evers, or the 1955 acquittal of J.W. Millam and Roy Bryant for the murder of fourteen-year-old Emmett Till." Id. History is replete with such "shameful examples of how nullification has been used to sanction murder and lynching." Id. 9

Far from achieving the desired change in law, nullification may even create a political backlash that will undermine the nullifier's efforts. In Race, Crime, and the Law, Professor Randall Kennedy highlights two instances where the threat of nullification led policymakers to intervene. First, in the wake of the Civil War, when Southern whites indicated they would nullify the prosecutions of redeemers who resorted to violence to resist Reconstruction, "the ascendant political party in the national government responded with an unprece-dented intervention of federal power in support of actions -- the elevation of blacks to formal equality with whites -- that the nullifiers abhorred." RANDALL KENNEDY, RACE, CRIME, AND THE LAW 301 (1997); but see NICHOLAS LEMANN, REDEMPTION: THE LAST BATTLE OF THE CIVIL WAR (2006) (describing the federal government's failure to intervene on behalf of African Ameri-cans when southern "redeemers" resorted to violence to intimi-date Republican voters in Louisiana and Mississippi). In the other instance, "large and powerful blocks of society again intervened in unprecedented ways" to prevent Southern "segre-gationist diehards" from nullifying criminal prosecutions of white criminals who attempted to use violence to impede the Civil Rights Movement. KENNEDY, supra, at 301.

iii. By contributing to anti-jury sentiment, nullification poses a threat to the jury system and judicial independence

Nullification frustrates the sole purpose of the jury. As this Court has instructed juries for some thirty years now, the word verdict comes from two Latin words meaning roughly "to speak the truth." Black's Law Dictionary 1593 (8th ed. 2004) (defining a verdict as "a declaration of the truth of the matter . . ."). Nullifiers, however, would render verdicts without regard to the truth. Once juries begin to deviate from this core function, our justice system has no more legitimacy than a Kangaroo court. If juries were to persist in making their own law, they would confirm the stereotype that the business interests and skeptics within the profession promulgate. There are undoubtedly well-intentioned would-be nullifiers who believe that they are aiding the cause of justice. In fact, they are undermining the jury's core function. By adding fuel to the flames of anti-jury sentiment, nullification threatens to erode the jury system and along with it the rule of law and the independent judiciary.

III. CONCLUSION Based on the foregoing, the Court concluded that Juror No. 2's express representation that he would not follow the law as instructed constituted good cause for removal....