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).

About Brandon Sample

Brandon Sample is an attorney, author, and criminal justice reform activist. Brandon’s law practice is focused on federal criminal defense, federal appeals, federal post-conviction relief, federal civil rights litigation, federal administrative law, and the Freedom of Information Act (FOIA).

1 Comment

  1. Betty Smith on June 9, 2019 at 10:46 pm

    My husband has gotten into
    My money market account and one of the times it was $5000.00 while I was in the hospital. He threw a huge party on March 31, 2018 then with drew the money from my account,the day before I came home, there’s many more dirty tricks he took all the funds ( this is the third time , and won’t put my name on the trust account he put in his own name .
    Is there any thing I can do to force him to put my name on all the accounts he has.
    Apparently he’s purchased something on line for $220000.00 but he denies that it ever happened . All my neibors saw numerals cars here the 31st day of March. He says there lying but they are not.
    He even wrote letters for my two Dr. wanting them to sign a paper he wanted to have them say I was crazy.
    The two Dr. have put the letters in my medical records. He wanted them to sign the letters, then he could have me committed. What if anything can I do to have my name put in all the legal papers?

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