18 U.S.C. § 401, states in relevant part:
"A court of the United States shall have power to punish by fine or imprisonment, at its discretion, such contempt of its authority, and none other, as . . . (3) Disobedience or resistance to its lawful writ, process, order, rule, decree, or command."
The court's authority extends to jurors who disobey a court's order. In one case in which a juror was found to have disobeyed a court order, the juror was sentenced to probation but ordered to pay the costs of prosecution as restitution (not a fine, the court can't order both.) See, United States v. Hand, 863 F.2d 1100, 1103 (3d Cir. 1988)holding that the United States Attorney's office was entitled to restitution for time and resources wasted in light of the defendant's impermissible conduct as a juror at trial. I can't even begin to guess how many millions of dollars the El Chapo juror could be ordered to pay.
Criminal contempt differs from civil contempt because it is a punitive sanction, designed to vindicate the dignity and authority of the court by punishing past acts of disobedience. When charged as a federal crime,it has to be proved beyond a reasonable doubt. It seems like that wouldn't be too hard in this case, if as VICE reports, the interview was conducted via video on Skype and video of the juror's admissions of willfully violating the court's orders was preserved.
Interestingly, since the criminal contempt statute does not provide a specific term of imprisonment and Congress never assigned a letter grade to the crime of contempt, which effectively renders it a "Class A" felony, the maximum term could be life in prison, so long as the person charged with contempt gets a jury trial. (While some circuits have labeled such a finding absurd, in the Second Circuit, where the El Chapo trial took place, courts have found otherwise. See, United States v. Ware, 2009 U.S. Dist. LEXIS 5627 (S.D.N.Y. Jan. 26, 2009). In any contempt proceeding in which the person is not given a jury trial, the maximum sentence is 6 months.
The sentencing guidelines don't have a guideline range for criminal contempt but suggest the court should use the guideline for the offense most closely matching the juror's misconduct (one example is Obstruction of Justice). The Application Note to the Obstruction Guideline states:
Because misconduct constituting contempt varies significantly and the nature of the contemptuous conduct, the circumstances under which the contempt was committed, the effect the misconduct had on the administration of justice, and the need to vindicate the authority of the court are highly context-dependent, the Commission has not provided a specific guideline for this offense. In certain cases, the offense conduct will be sufficiently analogous to § 2J1.2 (Obstruction of Justice) for that guideline to apply.
El Chapo's lawyer Eduardo Balarezo put out a statement:
“The juror’s allegations of the jury’s repeated and widespread disregard and contempt for the Court’s instructions, if true, make it clear that Joaquín did not get a fair trial,” Balarezo said in a statement. “The information apparently accessed by the jury is highly prejudicial, uncorroborated and inadmissible — all reasons why the Court repeatedly warned the jury against using social media and the internet to investigate the case.”
The scope of the juror's claimed misconduct which s/he alleges was joined in by at least 7 other jurors and alternates is pretty breath-taking, particularly the admission they lied directly to the judge when asked if they had read coverage of incriminating information about El Chapo the Court had ruled inadmissible.
Asked why they didn’t fess up to the judge when asked about being exposed to media coverage, the juror said they were worried about the repercussions. The punishment likely would have been a dismissal from the jury, but they feared something more serious.
“I thought we would get arrested,” the juror said. “I thought they were going to hold me in contempt.… I didn't want to say anything or rat out my fellow jurors. I didn't want to be that person. I just kept it to myself, and I just kept on looking at your Twitter feed.”
This makes little sense:The weekend before deliberations begin, the juror is concerned about getting held in contempt for accessing external information and doesn't want to "rat out" other jurors, but the day after the verdict, s/he calls VICE and confesses not only his/her own contemptuous conduct but that of his/her fellow jurors?
And the juror says another time when the judge asked jurors individually if they'd seen a prejudicial article about one of El Chapo's lawyers that appeared on a weekend, the juror says they all really hadn't seen it, but as soon as they got out from being questioned, one juror looked it up on a smartwatch and shared it with the others. (Which jurors had smartwatches?)
The juror being interviewed by VICE also says he/she stuck up for lawy
