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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON
UNITED STATES OF AMERICA,
v.

Case No. 2:18-cr-00134

ALLEN H. LOUGHRY, II,
MEMORANDUM OPINION AND ORDER
Pending is the defendant Allen H. Loughry, II’s motion
for a new trial, filed under seal October 26, 2018, seeking a
new trial pursuant to Rule 33 for the alleged violation of the
defendant’s Sixth Amendment right to trial by an impartial jury.
The focus of the motion is on Juror A, whose anonymity the court
strives to preserve.

The defendant supplemented his motion on

November 13, 2018, to all of which the government has responded,
followed by the defendant’s reply and the government’s surreply.
I.

Factual and Procedural Background

Beginning in October 2017, the Justices of the Supreme
Court of Appeals of West Virginia came under media scrutiny for
alleged corruption.

The defendant, then-Chief Justice Allen H.

Loughry, II, was one of those at the core of this scrutiny, with
the allegations against him relating to lavish office

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renovations, the taking of a so-called “Cass Gilbert desk” and
Supreme Court couch to his home, and the improper use of state
vehicles and of state credit cards for the purchase of fuel.
Amidst the media investigation, the defendant himself alerted
the Office of the United States Attorney to alleged improper
spending, attributing the blame to a Supreme Court employee.

A

federal investigation into the Supreme Court ensued, and
eventually turned its attention to the defendant and Justice
Menis E. Ketchum II individually.

Concurrent with the federal

and media investigation, the West Virginia Judicial
Investigation Commission and the West Virginia House Judiciary
Committee were also conducting investigations.
On June 6, 2018, the West Virginia Judicial
Investigation Commission filed a 32-count judicial complaint
against Loughry, alleging that he violated several parts of the
state’s Code of Judicial Conduct.

Subsequently, on June 19,

2018, a federal criminal indictment of Loughry was returned by
the grand jury.

That was followed by the resignation of Ketchum

as of July 27, 2018, and the filing in this court on July 31,
2018, of an Information charging Ketchum with a wire fraud
offense for improper use of a state credit card for the purchase
of fuel, to which a guilty plea would be filed.

Thereafter, on

August 7, 2018, the West Virginia House Judiciary Committee

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approved articles of impeachment against four sitting justices
on the Supreme Court (then-Justices Loughry, Workman, Davis and
Walker; with Ketchum having already resigned as of July 27th).1
Each of these events was highly publicized in the media
throughout West Virginia.
On October 2, 2018, the court conducted jury selection
for the defendant’s federal criminal trial.

Due to the pretrial

publicity, a larger than normal venire was drawn, consisting of
approximately seventy potential jurors, split into a morning
group and an afternoon group.

In an effort to remove the taint

of any negative pretrial publicity from the trial, a thorough
voir dire was conducted.

The court questioned the venire, inter

alia, of their knowledge of this case or the impeachment
proceedings, and whether those jurors having such knowledge were
able to set that aside and render a verdict based solely on the
evidence presented in the courtroom.

The parties were permitted

to conduct individual voir dire, at the bench out of the hearing
of the jury panel, of prospective jurors selected by each of
them.

Particularly, the defendant followed up with several

individuals who indicated their awareness of the case and the
impeachment proceedings.

1

The defendant ultimately resigned from the Supreme Court on
November 12, 2018.
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Specifically, in the morning session, three
prospective jurors stated that they had heard about the case in
the news media (prospective jurors J.W., C.C. and R.F.), all
three of whom were questioned individually at the bench.
Following questioning, prospective juror J.W. was excused by
agreement of the parties because he was the primary caretaker
for his wife who had a disability; prospective juror C.C. was
the subject of a defense challenge for cause that was denied;
and prospective juror R.F. was not the subject of a challenge.
The court denied the defendant’s for-cause challenge
to prospective juror C.C. because, although he indicated during
his individual voir dire that he had been following the case
“pretty closely” in the media, had discussed it with “friends or
family,” and had “opinions . . . about the facts and
circumstances as [he] underst[ood] them from the news[,]” he was
“completely confident” that he could set aside any pretrial
knowledge and base a verdict solely upon what would be presented
in the courtroom.

Transcript of Voir Dire at 76-81.

The court

“with respect to [C.C. was] satisfied that he [could] serve as a
fair and impartial juror in the trial of the case.”

Id. at 236.

In the afternoon session, eleven jurors stated that
they had read or heard about this case in the news media, of
which ten stated that they had also heard something about the
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impeachment proceedings.

Three additional jurors stated that

they had heard about the impeachment proceedings, bringing the
total number of those aware of either proceeding to fourteen.
Of those ten who stated awareness of both proceedings, two were
struck by agreement of the parties without further questioning
(P.K. and J.P.), six were brought to the bench for individual
voir dire and two were not, with one of the two, juror J.A.,
being empaneled on the jury.

None of the three who said they

had heard only of the impeachment proceedings were called to the
bench for individual voir dire, one of whom, Juror A, was
empaneled on the jury.
Of those six brought to the bench, the parties agreed
to excuse one, prospective juror M.J., after he responded that
he could “[p]robably” make a judgment about the guilt or
innocence of the defendant based solely on what he sees in the
courtroom, but could not affirm with certainty because he held
negative feelings towards the United States judicial system as a
whole.

Id. at 214-20.

The defendant made a for-cause challenge

of prospective juror D.S. that was granted, and the remaining
four (B.D., B.H., J.F. and J.W.) were not the subject of forcause challenges.

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The court granted the for-cause challenge of
prospective juror D.S. because the court found his responses to
the questions posed at the bench “indicative that he is one who
comes in with an opinion that in this case [the court]
believe[s] is deleterious to the defendant[,]” after he stated
that he had “possibly” formed an opinion as to the guilt or
innocence of the defendant, but that he “would try to go in with
an open mind.”

Id. at 208-10, 236.

A jury of twelve with three alternates was empaneled.
In summary, of those fifteen, two had stated awareness either of
this case or the impeachment proceedings: juror J.A. of the
afternoon session stated that the juror had read or heard about
this case in the news media and had heard about the impeachment
proceedings, id. at 151 and 156; and Juror A of the afternoon
session stated that the juror had heard about the impeachment
proceedings, id. at 155.
On October 12, 2018, after a six-day trial and two
days of deliberation, the jury rendered a verdict finding the
defendant, Allen H. Loughry, II, guilty of eleven counts of the
second superseding indictment, consisting of one count of mail
fraud (Count 3), seven counts of wire fraud (Counts 5, 6, 10,
11, 12, 15, and 18), one count of witness tampering (Count 20),
and two counts of making false statements (Counts 23 and 25).
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He was found not guilty of ten counts, consisting of nine counts
of wire fraud (Counts 1, 4, 7, 9, 13, 14, 16, 17, and 21) and
one count of mail fraud (Count 2); the jury was unable to reach
a verdict on one count of wire fraud (Count 8).

Notably, the

defendant was not federally indicted on any claims relating to
office expenditures, and the jury returned a verdict of not
guilty on the wire fraud claim related to the Cass Gilbert desk
(Count 21), two of the more highly publicized allegations
against the defendant.

By order entered January 11, 2019, the

court granted a judgment of acquittal as to Count 20 (witness
tampering) for insufficient evidence.
a. Juror A
As indicated in the defendant’s motion, on October 23,
2018, the defendant’s counsel, John Carr, was approached by an
individual on the street who instructed him to look at the
Twitter account of Juror A.

Defense counsel did so and found

what was thought by the defendant to be potentially troublesome
activity from Juror A’s Twitter account.
Twitter is a social media platform whereby people may
publish information to be shared with other members on the
platform.

A person with a Twitter account may “follow” other

Twitter accountholders, and conversely, be “followed.”

On the

Twitter homepage, a Twitter accountholder sees the “tweets” of
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each of the accounts that the accountholder follows.

A “tweet”

is essentially a short statement, occasionally accompanied by
photographs or links to news articles, that is shared with a
Twitter accountholder’s followers, such that it appears on the
followers’ homepages.

The followers who see this tweet on their

homepage may then “retweet” it, whereby it will be posted to the
retweeter’s twitter profile and be shared with the retweeter’s
followers on their homepages.

Followers may also “like” a

tweet, an action which does not necessarily share the tweet with
others but nonetheless makes the tweet visible to the liker’s
followers.
The defendant brings to the court’s attention the
following activities from Juror A’s Twitter account.2

2

The defendant also points to a Facebook post on August 15,
2018, wherein Juror A shared the Facebook page for Judge Will
Thompson’s Supreme Court campaign and noted that he was a
personal friend of Juror A’s. Judge Thompson is a judge on the
Twenty-Fifth Judicial Circuit of West Virginia, sitting in Boone
County, Juror A’s home county. He was running for the seat
vacated by Justice Robin Davis, who had resigned the day after
the West Virginia House of Delegates had voted to impeach her as
well as Loughry, Workman and Walker; at that time, Justice
Loughry had not yet resigned. Accordingly, this post appears
wholly unrelated to the defendant and the facts of this case.
The court therefore disregards it, and only addresses the
Twitter posts. It is noted that Juror A also retweeted two
other unrelated matters involving Boone County Schools.
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First, on June 7, 2018, Juror A liked and retweeted a
tweet from West Virginia House Delegate Mike Pushkin that read:
‘When the soundness of the judiciary is questioned,
coupled with the corrupt activities of the other
branches of government, how is the public ever to have
any faith in State government?’
Defendant’s motion, ECF # 89, Ex. 1 at 15.

Pushkin’s statement

is a quote, without attribution, from the book authored by the
defendant entitled “Don’t Buy Another Vote, I Won’t Pay for a
Landslide: The Sordid and Continuing History of Political
Corruption in West Virginia.”
16.

See Government’s Trial Exhibit

In addition to the quote, the Pushkin tweet and Juror A’s

retweet thereof contained a photo of the defendant and a link to
a Charleston Gazette-Mail news article, written June 6, 2018,
entitled “WV Supreme Court Justice Loughry named in 32-count
judicial complaint.”

ECF # 89, Ex. 1 at 17.

The article

details the Judicial Investigation Commission’s allegations
against then-Justice Loughry, including the cost of his office
renovations, his personal possession of the Cass Gilbert desk
and other Supreme Court property, and his alleged improper
personal use of state-owned vehicles.

9

Id.

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Second, on June 26, 2018, Juror A liked a tweet by
West Virginia House Delegate Rodney Miller, which read:
Legis Special Session begins at noon today looking at
Supreme Court impeachments: more state employees
quitting/fired: DHHR $1 million overspending for
nothing: RISE program dysfunctional until Gen. Hoyer
gets involved. My goodness we’ve got issues to take
care of!
ECF # 89, Ex. 2 at 7.
Third, that same day, Juror A liked another tweet by
Mike Pushkin, which read:
Justice Loughry should resign. The people of WV
already paid for his couch, he should spare them the
cost of his impeachment.
Id. at 5.

The tweet contained a link to an opinion article by

Ken Hall published June 25, 2018 in the Charleston Gazette-Mail
entitled “WV justices who take advantage of public funds should
resign.”

Id. at 10.

The article mentioned the defendant’s

suspension from the Supreme Court and the complaint from the
Judicial Investigations Commission; it did not mention the
federal indictment nor contain any details on the facts
surrounding the federal criminal case.

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Fourth, on August 7, 2018, the day the Judiciary
Committee adopted the articles of impeachment against Loughry
and the other Justices, Juror A liked a tweet by James Parker,
which read:
Yes, it is a sad day in WV to think these individuals
who are supposed to be the pillars of what is right,
just and truthful would become overcome with such an
attitude of self importance that they thought the
lavish spending was appropriate!
Id. at 5.
Fifth, following the defendant’s trial, Juror A
tweeted on October 13, 2018:
Grateful to have had a chance to serve as a juror for
a Criminal trial this week. It was emotionally
draining & I’m glad it’s Over. #Juror #ThisisAmerica
#Justiceserved #Loughry3
ECF #89, Ex. 1 at 11.

On October 14, 2018, Delegate Miller

replied to this tweet, stating: “Thank you for your service.
can be draining at times, but so important.”

It

ECF #89, Ex. 2 at

20.

3

The “#” symbol in a tweet, called a “hashtag,” works as a type
of tag, categorizing the tweet by the term following the “#” and
making it searchable by that term. Here, for instance, if one
were to search for “Loughry” on Twitter, Juror A’s tweet could
appear in the search results.
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Finally4, the defendant accuses Juror A of accessing
social media throughout the trial.

Specifically, he claims that

Juror A accessed Twitter on October 3 and October 6, Instagram5
on October 7, and Facebook on October 8.

Aside from a single

Twitter like by Juror A on October 3, wholly unrelated to this
case, the defendant does not state the source of his knowledge
of Juror A’s contact with social media during trial, nor does he
set forth the extent or nature of any such contact.

Indeed,

there is no evidence or allegation that Juror A posted anything
related to the case during that time.

Although Juror A follows

a number of West Virginia elected officials and members of the
media -- including Kennie Bass of WCHS-TV and Brad McElhinny of
West Virginia MetroNews, who reported on the evidence admitted
at trial -- there is no evidence that Juror A was exposed to any
content related to the case.

As will be further fully

developed, the court had instructed the jurors to refrain from
using social media or the internet to obtain information on the
case or communicate with anyone about the case, and Juror A has
not been shown to have violated that admonition.

4

In his supplemental motion, the defendant also states that
“[u]pon information and belief,” Juror A contacted the media
hours after rendering a verdict to give a telephone interview to
“WCHS.” The defendant does not state the content of this
interview or the source of his information and belief.
5 Instagram is another social media platform, intended primarily
for sharing photographs.
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The defendant notes that during the four months prior
to trial, Juror A liked eleven tweets, four of which related to
the defendant or the Supreme Court.

These four consist, as

outlined above, of Mike Pushkin’s tweet on June 7, Rodney
Miller’s tweet on June 26, Mike Pushkin’s tweet that same day,
and James Parker’s tweet on August 7; the remaining seven likes
during that four-month period prior to trial were wholly
unrelated to the case.
During voir dire, Juror A expressed having heard about
the impeachment proceedings in the state legislature, but
affirmed having the ability to set that aside and listen to the
evidence and base a verdict solely upon the evidence received in
the courtroom.

Transcript of Voir Dire at 155, 157.

Potentially relevant to this motion, Juror A answered
the following questions in the negative:
Question 1: Do any of you have any personal knowledge
of the facts of this case? Id. at 144.
Question 2: Have you heard this case discussed at any
time by anyone in your presence? Id.
Question 3: Have any of you read or heard anything
about this case in the news media or
television or radio? Id. at 146.
Question 4: Is there anything further that any of you
would want to relate to the Court about your
knowledge of this case that goes beyond what
we’ve already covered? Id. at 157.
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Question 5: Do any of you now have an opinion or have
you at any time expressed an opinion as to
the guilt or innocence of the defendant of
the charge or charges contained in this
indictment in this case? Id. at 158.
Question 6: Have you heard anything at all from any
source about the facts of this case from
social networking websites, such as Twitter,
Facebook, Instagram, any of you? Id. at
163.
Question 7: Are you sensible to any bias or prejudice
in this matter or can you think of anything
that may prevent you from rendering a fair
and impartial verdict based solely upon the
evidence and my instructions to you as to
the law applicable to that evidence? Id. at
184-85.
Question 8: Whether reflecting on all the questions
that I’ve asked you so far, are there any of
them to which you would wish to change or
supplement your answer that you’ve already
given me? Have you thought of anything
later that you believe you should have told
me? Do any of you have anything further to
add? Id.
Defendant contends that Juror A lied during voir dire
by answering these questions in the negative.

Juror A was not

questioned individually on voir dire and was placed on the jury.
The defendant now moves for a new trial under Federal
Rule of Criminal Procedure 33 for deprivation of his sixth
amendment right to trial by an impartial jury.

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II.

Discussion

Under Rule 33, a court may “vacate any judgment and
grant a new trial if the interest of justice so requires.”
R. Crim. P. 33.

Fed.

The Sixth Amendment of the United States

Constitution commands juror impartiality in criminal
prosecutions.

As stated by the Fourth Circuit:

The Sixth Amendment . . . affords an accused the right
to trial by an impartial jury. As the Supreme Court
has observed, a “touchstone of a fair trial is an
impartial trier of fact -- ‘a jury capable and willing
to decide the case solely on the evidence before it.’”
Conaway v. Polk, 453 F.3d 567, 582–83 (4th Cir.2006) (citations
omitted).

The defendant raises several theories of juror bias,

each discussed in turn.
A. McDonough Claim
The defendant’s primary claim for a new trial is that
Juror A was dishonest during voir dire.

In McDonough Power

Equip., Inc. v. Greenwood, 464 U.S. 548 (1984), the Supreme
Court set forth a particularized test for determining whether a
new trial is warranted in such scenarios.

The Court held:

to obtain a new trial in such a situation, a party
must first demonstrate that a juror failed to answer
honestly a material question on voir dire, and then
further show that a correct response would have
provided a valid basis for a challenge for cause. The
motives for concealing information may vary, but only
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those reasons that affect a juror's impartiality can
truly be said to affect the fairness of a trial.
McDonough, 464 U.S. at 556.

The Court noted, “it ill serves the

important end of finality to wipe the slate clean simply to
recreate the peremptory challenge process because counsel lacked
an item of information which objectively he should have obtained
from a juror on voir dire examination.”
555.

McDonough, 464 U.S. at

Accordingly, “[u]nder th[e McDonough] test, the bar for

juror misconduct is set high.”

Porter v. Zook, 803 F.3d 694,

697 (4th Cir. 2015).
Under the first prong, the Fourth Circuit has noted
that “the [McDonough] test applies equally to deliberate
concealment and to innocent non-disclosure[.]”

Jones v. Cooper,

311 F.3d 306, 310 (4th Cir. 2002), see also Porter v. Zook, 898
F.3d 408, 431 (4th Cir. 2018) (“we have viewed the ‘honesty’
aspect of the first McDonough prong as encompassing not just
straight lies, but also failures to disclose.”).

Additionally,

answers to voir dire questions that are technically true but
“misleading, disingenuously technical, or otherwise indicative
of an unwillingness to be forthcoming” may suffice.
Polk, 441 F.3d 238, 245 (4th Cir. 2006).

Billings v.

However, failing to

disclose a fact will not give rise to a McDonough claim if
counsel had the opportunity to elicit the information but failed

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to do so: “McDonough provides for relief only where a juror
gives a dishonest response to a question actually posed, not
where a juror innocently fails to disclose information that
might have been elicited by questions counsel did not ask.”
Billings, 441 F.3d at 245, see also Porter, 803 F.3d at 697 (“a
juror's failure to elaborate on a response that is factually
correct but less than comprehensive may not meet this standard
where no follow-up question is asked.”).
As for the second prong, “‘[t]he category of
challenges for cause is limited,’ and traditionally, a challenge
for cause is granted only in the case of actual bias or implied
bias (although a third category, inferred bias, might also be
available).”

Jones, 311 F.3d at 312 (citing United States v.

Torres, 128 F. 3d 38, 43 (2d Cir. 1997)).
Additionally, “a litigant must show that the fairness
of his trial was affected either by the juror's ‘motives for
concealing [the] information’ or the ‘reasons that affect [the]
juror's impartiality.’”

Conaway, 453 F.3d at 585 (quoting

McDonough, 464 U.S. at 556).
For the first prong, the defendant contends that Juror
A’s social media activity prior to trial indicates that Juror A
had knowledge of the case and thus should have answered in the
affirmative several questions answered in the negative.
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review of that activity and the questions asked, however,
demonstrates otherwise.
First, there is no reason to believe that Juror A was
anything but truthful in answering questions 2, 3, 4, and 5.
Each of these questions asked the jurors about their knowledge
of “this case,” the facts of which were briefly described to the
venire before voir dire.

The social media activity of Juror A

demonstrates that Juror A had knowledge of the impeachment
proceedings and the investigation by the West Virginia Judicial
Investigation Commission.
during voir dire.

Indeed, Juror A admitted as much

None of the four tweets or their

corresponding articles mention this case nor the federal
indictment at all, and they each occurred two to four months
before the trial began.

The first tweet at issue, and the

corresponding article that contains the most detail into the
various allegations against Loughry, was retweeted by Juror A
before any indictment had been filed.

The article noted that “a

federal investigation regarding the Supreme Court has been
underway at least since December 2017[,]” but it does not state
the details of that investigation, or even that Loughry,
individually, was a focus of that investigation.

Juror A may

have had a preconceived notion that Loughry should resign from
his seat on the Supreme Court of West Virginia, as indicated by

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the juror’s “like” of the June 26, 2018 tweet from Mike Pushkin,
but that does not indicate any preconceived notion towards his
guilt or innocence in this case.

Nor do Juror A’s answers to

these questions suggest an unwillingness to be forthcoming.
Billings, 441 F. 3d at 253.

See

Those answers were not inherently

misleading or disingenuously technical; rather, Juror A
indicated a willingness to be forthcoming by alerting the court
and the parties of Juror A’s knowledge of the impeachment
proceedings.

Accordingly, the defendant fails to meet the first

McDonough prong for questions 2, 3, 4, and 5.
Second, as for questions 7 and 8, the court finds no
dishonesty.

These generic questions were not asked to elicit

specific information but were rather meant to allow the
prospective jurors the opportunity to volunteer any additional
information.

At most, Juror A could be said to have failed to

volunteer information regarding the extent of Juror A’s
knowledge of the impeachment proceedings in response to these
questions.

But a juror’s “fail[ure] to volunteer certain

information when questioned about her ability to be impartial .
. . does not amount to a dishonest response to the questions
posed.”

Billings, 441 F.3d at 244.

Juror A’s failure to

elaborate on the extent of Juror A’s knowledge of the
impeachment proceedings when asked if one had any additional

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information to disclose is not a dishonest response, but a
simple innocent failure to disclose information that could have
been elicited by questions counsel chose not to ask.
Third, questions 1 and 6 differ from the others
because they do not simply ask about “this case,” but rather ask
about “the facts of this case.”

The court notes the importance

of this distinction because the facts of the federal indictment
overlap slightly with the facts contained in the judicial
complaint and the articles of impeachment.

Specifically, here,

the article retweeted by Juror A on June 7, 2018, contains
information about Loughry’s possession of a Cass Gilbert desk
and his use of state-owned vehicles for personal trips to Tucker
County and the Greenbrier.

Assuming Juror A read and remembered

the detailed contents of this article, Juror A may have failed
to answer fully when responding that Juror A had no personal
knowledge of “the facts of this case” and had not heard anything
on any social media platform about “the facts of this case.”
The court has little difficulty, however, finding that
the McDonough claim for those two questions fail on the second
prong.
It is doubtful, first, that positive answers to those
questions would have warranted a dismissal for cause.

“[I]t is

a long-settled proposition that mere knowledge of a case is
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insufficient to support a finding of actual prejudice.”
States v. Higgs, 353 F.3d 281, 309 (4th Cir. 2003).

United

Many of the

potential jurors with pre-existing knowledge of the case
remained in the venire.

Indeed, the court denied the

defendant’s for-cause challenge to prospective juror C.C.
because, although he had somewhat extensive knowledge of the
case from pretrial publicity, he confidently confirmed that he
could remain impartial.

Moreover, the court granted the

defendant’s for-cause challenge to prospective juror D.S. only
after he failed to assure the court that he could set aside his
knowledge and decide the case based solely on the evidence
presented.

Juror J.A., who stated pretrial knowledge of both

the case and the impeachment proceedings, was seated on the
jury.
Moreover, the defendant cannot show that the fairness
of his trial was affected by Juror A’s non-disclosure of such
knowledge as Juror A may have had.

The overlapping facts of

this case and the facts contained in the pertinent news articles
relate to the Cass Gilbert desk and the vehicle usage.

The

defendant was acquitted, however, of wire fraud in relation to
the Cass Gilbert desk (Count 21) and was acquitted of seven of
the wire fraud counts pertaining to his use of state-owned
vehicles (Counts 4, 7, 9, 13, 14, 16, and 17) for which he

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allegedly made personal use of a state credit card to buy fuel.
As for those wire fraud counts pertaining to his use of the
state credit card for fuel on which he was convicted, there was
ample evidence from which a jury could have convicted him, and
the court has affirmed those convictions accordingly.
Memorandum Opinion and Order, ECF # 119 at 6-15.

See

Juror A thus

apparently set aside any preconceived notions, as Juror A
affirmed under oath would be done, and judged the defendant
fairly and impartially.
Accordingly, the motion is denied as to the McDonough
claim.
B. Actual Bias
Apart from the McDonough claim, the defendant has
failed to demonstrate that Juror A was actually biased against
him.

A claim of actual bias requires an analysis distinct from

a McDonough claim.

Jones, 311 F. 3d at 310 (“The McDonough test

is not the exclusive test for determining whether a new trial is
warranted: a showing that a juror was actually biased,
regardless of whether the juror was truthful or deceitful, can
also entitle a defendant to a new trial.”).

To succeed on an

actual bias claim, the defendant “must prove that a juror,
because of his or her partiality or bias, was not ‘capable and
willing to decide the case solely on the evidence before it.’”
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Porter, 898 F.3d at 423 (quoting Smith v. Phillips, 455 U.S.
209, 217 (1982)).
For many of the same reasons that the McDonough claim
fails, so too does this one.

As previously noted, it is well

settled that mere knowledge of a case is insufficient to support
a finding of actual prejudice.

See Higgs, 353 F.3d at 309.

Further, “the requirement of impartiality does not mean that
jurors need to be ‘totally ignorant of the facts and issues
involved.’ Thus, for example, in the context of pretrial
publicity, ‘the mere existence of any preconceived notion as to
the guilt or innocence of an accused, without more, is [not]
sufficient to rebut the presumption of a prospective juror's
impartiality.’”

United States v. Powell, 850 F.3d 145, 149 (4th

Cir.), cert. denied, 138 S. Ct. 142, 199 L. Ed. 2d 188 (2017)
(quoting Irvin v. Dowd, 366 U.S. 717, 722 (1961)).
Even assuming that Juror A was aware of some of the
facts and issues involved in the case at the start of trial, and
even assuming Juror A had a preconceived notion that the
defendant was guilty of something, there is simply no evidence
that Juror A was not capable and willing to set that aside and
decide the case solely on the evidence presented.

Rather, there

is evidence that after a thorough deliberation, the jury found
the evidence to be insufficient in several instances, and
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therefore ruled in the defendant’s favor on those counts.

The

defendant points to Juror A’s tweet following the trial as
evidence of bias.

A juror’s willingness to sit on a jury,

however, and relief when it is finished, is surely not
indicative of any bias against the defendant.
Accordingly, the motion is denied as to the actual
bias claim.
C. Social Media Access During Trial
The defendant also claims that his right to trial by
an impartial jury was violated because Juror A and allegedly
five other jurors, unnamed in the defendant’s motion, accessed
their social media accounts on days when the trial was ongoing.
He does not allege that any of the jurors posted anything
related to the case on those days, nor that anyone contacted the
jurors on social media regarding the case.

Rather, the

defendant claims that because Juror A follows certain media
reporters on social media, Juror A could have seen information
related to the case.6

6

The court notes the policy concerns with counsel prying into
jurors’ personal social media accounts. As stated recently by
the United States District Court for the Southern District of
New York: “There are also serious policy concerns regarding the
appropriateness of counsel delving into jurors' social media
accounts, after the conclusion of trial, to potentially uncover
juror statements made out of court and unrelated to the
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The Supreme Court has noted that “it is virtually
impossible to shield jurors from every contact or influence that
might theoretically affect their vote.”
217.

Phillips, 455 U.S. at

Under Remmer v. U.S., 347 U.S. 227 (1954), any outside

contact with a juror during trial is presumed prejudicial and
resolved at a hearing to determine if such contact was
prejudicial.

However, “[t]o be sure, ‘due process does not

require a new trial every time a juror has been placed in a
potentially compromising situation[.]’”

Barnes v. Joyner, 751

F.3d 229, 244 (4th Cir. 2014) (quoting Phillips, 455 U.S. at
217).

Rather, “to be entitled to the Remmer presumption and a

Remmer hearing, a ‘defendant must first establish both that an
unauthorized contact was made and that it was of such a
character as to reasonably draw into question the integrity of
the verdict.’”

Barnes, 751 F.3d at 244 (quoting Stockton v.

Com. of Va., 852 F.2d 740, 743 (4th Cir. 1988)).
Other courts faced with the issue of a juror’s social
media use during trial have found it not necessarily
prejudicial.

See e.g., United States v. Feng Li, 630 F. App'x

proceedings, and use any discovered statements as evidence of
purported juror bias or inability to be fair. Such a practice
may decrease willingness to serve on juries or dampen private
citizens' ability to engage in civil discourse.” Lewis v. Am.
Sugar Ref., Inc., 325 F. Supp. 3d 321, 335, n. 3 (S.D.N.Y.
2018).
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29, 33 (2d Cir. 2015) (district court did not abuse its
discretion in denying request for new trial after a juror posted
on social media regarding “the duration of the trial, courtroom
temperature, future creative writing projects, and whether it
would be appropriate to speak to certain trial participants
about her career as a crime fiction writer when the trial
concluded[,]” because the “social media postings did not violate
the spirit of the court's social media instruction, which ‘was
concerned with comments concerning “the facts or circumstances
of the case.”’”) (emphasis in original), and United States v.
Fumo, 655 F.3d 288, 306 (3d Cir. 2011), as amended (Sept. 15,
2011) (district court did not abuse its discretion in denying
request for new trial when juror posted on Facebook about the
trial because the posts were “nothing more than harmless
ramblings having no prejudicial effect[,] raised no specific
facts dealing with the trial[, and did not] indicate[] any
disposition toward anyone involved in the suit.”)
The defendant asserts both in his motion and his
briefing that the jurors were admonished by the court not to
make any use of social media during the course of the trial.
The defendant, who fails to support that assertion with any
citation of the record, is incorrect.

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Rather, the jury was informed repeatedly that the
jurors were not to use social media to learn or discuss anything
about “this case,” a term which at times was referred to by use
of the pronoun “it.”

Indeed, the jurors were not told that they

could make no use of their cell phones, landline telephones,
iPhones, or the tools of social media.

The following

instructions were given, all in the context of this case.
At the close of the first day of trial, on October 2,
2018, once the jury of twelve members and three alternates were
chosen, they were instructed as follows:
I want to mention to you one thing that is so very
important at the outset, and that is, of course, as
jurors, you must decide this case solely upon the
evidence that you hear from the witness stand and the
exhibits as they’re offered and introduced into
evidence in the case.
This means that during the trial, you must not conduct
any independent research about this case, the matters
in this case, or the individuals involved in this
case.
You must not consult dictionaries or reference
materials; you must not search the Internet, websites,
blogs, or use any other tools, electronic or
otherwise, to obtain information about this case or to
help you to decide the case.
Do not try to find out information from any source
outside the confines of this courtroom.
Until you retire and deliberate, you may not discuss
this case with anyone, not even your fellow jurors.

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You may not communicate with anyone about the case, on
your cell phone, your iPhone, through e-mail, text
messaging, Twitter, through any blog or website,
including Facebook, Google, Myspace, LinkedIn,
YouTube, anything imaginable. It’s all out. You must
not use it in any sense.
The next morning on October 3, 2018, just before
opening statements, the jury was asked and it answered as
follows:
Well, all of you have safely returned. And my first
question of you is, whether or not you had any
difficulty observing the Court’s instructions so
far –
THE JURY:

No, Your Honor.

THE COURT: -- that you not speak to anyone about this
case, and avoid all media coverage about it, and you
not let anyone speak to you about it.
Have you been successful in that regard?
THE JURY:

Yes.

When the jury was excused that evening, the court stated:
You’re going to hear me say this more than once, but,
continue to be guarded, that is, do not expose
yourself to any media coverage of any kind; avoid all
social media, as well, and avoid discussing this or
letting anyone draw you into discussion about the
case.
When, at the close of October 4, 2018, the jury was
released for the evening, the jurors were given a similar
instruction.
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THE COURT: Once again, I’ll remind you, it’s better
for you to have someone else review the newspapers,
and they can filter what you can see. And you know,
of course, when the newscasts come on television,
because that’s pretty well fixed, you need to avoid
that, of course. And radio is a little different, it
gives the news at any moment, so you have to be very
cautious about that. And if you happen to have it on
and something is coming on about this case -- and I’m
not sure that that will happen, but it could very well
happen -- then click it off.
And continue to observe the Court’s direction that you
not let anyone speak to you about this case nor [are]
you to engage anyone else, and avoid all social
networking with respect to it, as well.
On October 5, 2018, at the point at which the jury was
being excused for the weekend, the jury was instructed in
significant part as follows:
Avoid all social networking having to do with the
case.
The jury returned on Monday, October 8, 2018, at the close of
which the jury was instructed:
It continues to be especially
observe the Court’s directive
coverage about this case, and
do with radio, television and
social networking, as well.

important that you
that you avoid all media
that, of course, has to
newspapers, and all

So continue to observe those same directions and avoid
all contact. Don’t let anyone contact you about it,
whether it is through social networking or otherwise,
and you, of course, would not be contacting those as
well.

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Let me ask you, once again, have any of you had any
difficulty observing those directions so far?
THE JURY:

No.

The presentation of evidence in this case concluded on
October 9, 2018, at which time the jury was excused until the
next morning when closing arguments and instructions to the jury
would begin.

The jury was instructed at that time as follows:

Avoid all news media and social networking having to
do with this case.
The jury in due course began its deliberations in late afternoon
on October 10, 2019, by which time Juror A’s October 3rd “like”
on an unrelated matter and three other alleged but unspecified
social media contacts during trial would have concluded.

The

jury was instructed as follows just before it was excused for
that evening:
And I will just say briefly that, as you can
understand, under no circumstances are you to discuss
the case with anyone or let anyone discuss it with
you. Continue to avoid all news media and social
networking exposure of any kind until you’re back in
here in the morning in the jury room, at 9:30, with
deliberations starting only after all 12 of you are
present.
The jury returned the next day, October 11, 2018, and,
after a day of deliberation, was excused overnight with the
following instruction:
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Well, I gather you’ve had a hard day’s work and you’re
ready to go home and come back in the morning at 9:30.
And I’m not going to go over all this with you again,
but I just want to impress upon you, continuing the
necessity of your seeing to it that no one is in touch
with you about this case, not even among yourselves
until all 12 of you are back in the jury room tomorrow
morning at 9:30.
The jury reached a verdict the next afternoon on
Friday, October 12, 2018.
Thus, aside from the fact that there was no request
that the court ban the jury from all access to social media, nor
any voir dire questions regarding whom the jurors followed on
social media, the court’s instructions, just as those in Feng
Li, were limited to avoiding social media contacts concerning
this case.

The defendant has not shown that any such

unauthorized contact was made.

Furthermore, the defendant has

not shown that accidental glimpses of a tweet regarding the
defendant’s trial, if any should ever be shown to exist, would
reasonably call into question the integrity of the verdict.

The

jury was not expected to live in a vacuum during trial but was
instructed to avoid all contacts pertaining to the trial so that
their verdict would be based solely on the evidence presented
and not by any outside influence or contact.
Accordingly, the motion is denied as to this claim.

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D. Post-Trial Evidentiary Hearing
The court pauses to address its decision not to
conduct an evidentiary hearing.

In his reply, the defendant

states: “If the Court determines that the record is
insufficient, the Defendant further respectfully requests that
an evidentiary hearing be held to further develop the record
concerning the issues raised by this motion.”

ECF # 108-1 at 4.

Because the request was first raised in the reply, the court
directed the government to file a sur-reply addressing the
request.

See ECF # 109 and 110, filed under seal.

It is

apparent to the court that the record is sufficient and that no
hearing is warranted.
The Supreme Court “has long held that the remedy for
allegations of juror partiality is a hearing in which the
defendant has the opportunity to prove actual bias.”
455 U.S. at 215.

Phillips,

“A court is not, however, ‘obliged to hold an

evidentiary hearing any time that a defendant alleges juror
bias.’”

Porter v. Zook, 898 F.3d 408, 426 (4th Cir. 2018)

(quoting Billings, 441 F.3d at 245).

The Fourth Circuit has not

set forth a specific test for determining when a post-trial
evidentiary hearing is mandated for allegations of jury
impartiality.

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In Billings, the Fourth Circuit stated that it does
not require courts “to hold a post-trial evidentiary hearing
about matters that the defendant could have explored on voir
dire but, whether by reason of neglect or strategy, did not.”
Billings, 441 F. 3d at 245.
Further, in Jones v. Cooper, 311 F. 3d 306, the Fourth
Circuit affirmed the district court’s denial of a juror bias
claim without holding an evidentiary hearing.

There, after a

careful review of the questions asked in voir dire and juror
questionnaires, the court found it sufficient that “even
truthful answers to the questions on the questionnaire could not
have formed the basis for a challenge for cause.”
F.3d at 313.

Jones, 311

The court further noted that although the

“[m]isstatements on [the] jury questionnaire” were troubling,
they “d[id] not, standing alone, indicate juror bias.”

Id.

On the other hand, in Porter v. Zook, the Fourth
Circuit found that a district court abused its discretion when
it dismissed a defendant’s actual bias claim without holding a
hearing.

898 F. 3d 408.

In that case, the defendant faced the

death penalty for killing a law enforcement officer in order to
interfere with the performance of his official duties.

Id.

During voir dire, the juror at issue answered positively the
question of whether he has any family members in law
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enforcement; he confirmed that his nephew was a police officer,
but omitted the fact that his brother was also a police officer
in the jurisdiction adjacent to that of the victim police
officer.

Id.

In finding that an evidentiary hearing was

necessary in that instance, the Fourth Circuit relied on
Williams v. Taylor, U.S. 420 (2000).

In Williams, a juror, when

asked on voir dire if she was related to any of the witnesses,
answered “no” because she did not consider herself “technically
related” to her ex-husband, who was listed as a witness; she
also failed to mention that the prosecutor in the case had
represented her in her divorce.

Id. at 440-442.

The Court

found that even if the juror was not technically related to her
ex-husband, “her silence . . . could suggest to the finder of
fact an unwillingness to be forthcoming; this in turn could bear
on the veracity of her explanation for not disclosing that [the
prosecutor] had been her attorney.”

Id. at 441.

The Court

stated: “these omissions as a whole disclose the need for an
evidentiary hearing. It may be that petitioner could establish
that [the juror] was not impartial . . .

or that [the

prosecutor’s] silence so infected the trial as to deny due
process.”

Id. at 442.

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The Fourth Circuit found this language in Williams to
mandate a hearing in Porter:
To withhold information that one's brother was an
officer in the adjacent jurisdiction certainly
“suggest[s] ... an unwillingness to be forthcoming,”
and at the very least, “disclose[s] the need for an
evidentiary hearing.” Williams, 529 U.S. at 441–42,
120 S.Ct. 1479. The district court failed to recognize
the applicability of Williams and therefore erred in
dismissing Appellant's actual bias claim as a matter
of law without a hearing.
Porter at 426.

The court did not set forth a particularized

standard for determining when, in other cases, a hearing is
mandated.
Other circuits, however, have affirmed the broad
discretion given to trial courts faced with juror bias claims.
As stated by the Tenth Circuit:
A court confronted with such a claim “has wide
discretion in deciding how to proceed” and
appropriately denies a hearing when a party presents
“only thin allegations of jury misconduct.” A hearing
is not required when it would not be “useful or
necessary” in determining whether a defendant's rights
were violated.
United States v. Brooks, 569 F.3d 1284, 1288 (10th Cir. 2009)
(internal citations omitted).

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The Second Circuit further notes policy concerns with
holding such post-trial hearings:
We are always reluctant to “haul jurors in after they
have reached a verdict in order to probe for potential
instances of bias, misconduct or extraneous
influences.” As we have said before, post-verdict
inquiries may lead to evil consequences: subjecting
juries to harassment, inhibiting juryroom
deliberation, burdening courts with meritless
applications, increasing temptation for jury tampering
and creating uncertainty in jury verdicts.
United States v. Ianniello, 866 F.2d 540, 543 (2d Cir. 1989)
(internal citations omitted).

The Second Circuit thus only

requires a hearing “when a party comes forward with ‘clear,
strong, substantial and incontrovertible evidence ... that a
specific, non-speculative impropriety has occurred[.]’”

Id.

The Eighth Circuit also provides trial courts with
broad discretion, only requiring a hearing upon a sufficient
showing of bias:
The district court has broad discretion in handling
allegations that jurors have not answered voir dire
questions honestly, and we defer to its discretion in
deciding whether a post-trial hearing is necessary.
That discretion is not unlimited, however, and a
movant who makes a sufficient showing of McDonoughtype irregularities is entitled to the court's help in
getting to the bottom of the matter.
United States v. Tucker, 137 F.3d 1016, 1026 (8th Cir. 1998)
(internal citation omitted).
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In exercising its discretion not to hold a hearing
here, the court has carefully considered the merits of the
defendant’s claims as well as the consequences of holding such a
hearing, and finds that the latter far outweighs the former.
The facts here simply do not rise to the level of Porter and
Williams.

Juror A’s potential knowledge stemming from pretrial

publicity relating to facts of the case, and alleged failure to
disclose it, while of modest concern, does not indicate bias at
the level of Porter, where the juror failed to disclose that his
brother, like the victim, was a police officer, or Williams,
where the juror failed to disclose that her ex-husband was a
witness and that the prosecutor had previously represented her.
Rather, here, there are mere thin allegations that Juror A came
into the case with allegedly prejudicial pretrial knowledge.
The defendant does not present “‘clear, strong, substantial and
incontrovertible evidence ... that a specific, non-speculative
impropriety has occurred,’” Ianniello, 866 F.2d at 543, but
rather speculates that Juror A may have lied on voir dire
because Juror A could have remembered facts from an article
retweeted months prior, and that Juror A may have seen
information related to the case when accessing Twitter during
the trial.

As discussed supra, those facts, without more, do

not demonstrate that the defendant’s Sixth Amendment right was
violated.

Without even a threshold showing of juror misconduct,
37

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the court declines to expend its resources to allow the
defendant to pry into a juror’s pretrial conduct and fish for
evidence of bias.
It has always “remain[ed] within a trial court's
option, in determining whether a jury was biased, to order a
post-trial hearing at which the movant has the opportunity to
demonstrate actual bias, or in exceptional circumstances, that
the facts are such that bias is to be inferred.”

McDonough, 464

U.S. at 556–57, 104 S.Ct. 845 (Blackmun, J., concurring)
(emphasis added).

The court finds it wholly unnecessary to

exercise such option here.
III.

Conclusion

Based on the foregoing discussion, it is ORDERED that
the defendant’s motion for a new trial on the basis of the
alleged deprivation of his Sixth Amendment right to trial by an
impartial jury be, and it hereby is, denied.
The Clerk is directed to transmit copies of this order
to all counsel of record and any unrepresented parties.
ENTER:

38

February 8, 2019