Ex Parte Communications By Judge With Jury Required Reversal Of Convictions

At Martin Bradley III’s trial for racketeering, mail fraud, wire fraud, and money laundering, the district court had two ex parte communications with the jury. Bradley’s defense lawyers did not become aware of notes until after his appeal. Bradley filed a 2255 motion arguing, in addition to other things, that the court had violated Rule 43(a) of the Federal Rules of Criminal Procedure by communicating with the jury without his knowledge. Under Rule 43(a) “a criminal defendant is entitled to be present at all stages of his trial, including the stage when the court responds to notes from the jury.” Fed. R. Crim. P. 43(a).

The Eleventh Circuit agreed with Bradley that the court had erred in communicating with the jury ex parte. However, the Government countered that Bradley’s claim was procedurally defaulted because he could not “cause” and “prejudice” for not raising the claim earlier. Under the "procedural default" rule, a defendant is required to raise claim at sentencing and on direct appeal for the claim to be considered later in a habeas proceeding (tip: if a claim is raised and decided on direct appeal, however, the claim will likely be barred from consideration in habeas on "relitigation" grounds).

The court of appeals disagreed and found “cause” because, while the jury notes were filed on the docket after trial, 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 attorney "a pass" for lack of diligence that is rarely afforded to pro se federal prisoners.

Nevertheless, the appeals court only found “prejudice” with respect to Counts 1-53 of the charges. The court ordered that Bradley be re-sentenced if the Government chose not to retry these counts. United States v. Bradley III, No. 14-10463 (11th Cir. 2017).