53 Convictions Set Aside Because the Judge Answered Jury Notes in Secret

The Eleventh Circuit set aside 53 of Martin Bradley III's federal convictions because the trial judge answered jury notes without telling the defense. At Bradley's trial for racketeering, mail fraud, wire fraud, and money laundering, the judge answered two jury notes ex parte, meaning without the defense present or told. Bradley's lawyers did not learn about the notes until after his appeal.

Bradley then filed a § 2255 motion, a request asking the sentencing court to throw out a federal conviction or sentence. Among other things, he argued the judge violated Federal Rule of Criminal Procedure 43(a). Under that rule, a defendant has the right to be present at every stage of trial, including when the court responds to jury notes.

Procedural Default

The Eleventh Circuit agreed the judge erred, but the government argued Bradley's claim was "procedurally defaulted." That rule generally bars a § 2255 claim you could have raised at trial or on direct appeal, unless you show "cause" for not raising it and "prejudice" from the error.

(A tip: the reverse is also a problem. If you raise a claim on direct appeal and lose, you generally cannot raise it again in a § 2255 motion.)

The court found cause. The notes were put on the docket after trial, but defense counsel "had no reason to suspect substantive ex parte communications by the district court as a result of non-disclosed jury notes and therefore had no reason to scour the docket for evidence of such communications."

In many ways, the court gave Bradley's lawyers "a pass" for a lack of diligence. That kind of pass is rarely given to federal prisoners who file without a lawyer (pro se).

The Result

The court found prejudice only for Counts 1 through 53 and set aside those convictions. The government could retry Bradley on those counts; if it chose not to, the district court had to resentence him on the remaining counts. United States v. Bradley, No. 14-10463 (11th Cir. 2017).

Practical Takeaways

Review the full docket, not just the transcripts. Here, the jury notes were on the docket all along. Also keep the deadline in mind: a § 2255 motion generally must be filed within one year of one of several trigger dates, including the date the conviction became final or the date new facts could have been discovered with due diligence. 28 U.S.C. § 2255(f).

Facing a federal sentence? Book a consultation to talk it through with Brandon Sample.