United States District Court, S.D. Mississippi, Eastern Division
MEMORANDUM OPINION AND ORDER
STARRETT UNITED STATES DISTRICT JUDGE
reasons below, the Court denies
Defendant's Motion for New Trial  and likewise
denies Defendant's Motion for Revocation
or Amendment  of the Magistrate Judge's Order 
denying bond pending sentencing.
was indicted on sixteen counts of various crimes related to a
conspiracy to defraud Tricare, a federal health care benefit
program. Specifically, Defendant was charged with 1)
conspiring to commit wire fraud; 2) conspiring to defraud
Tricare; 3) four counts of wire fraud; 4) conspiring to
distribute a Schedule III controlled substance outside the
scope of professional practice and without a legitimate
medical purpose; 5) four counts of distributing a Schedule
III controlled substance outside the scope of professional
practice and without a legitimate medical purpose; 6)
conspiring to falsify entries in patient files and/or Tricare
audit forms with the intent of impeding or obstructing a
federal grand jury investigation; and 7) five counts of
falsifying entries in patient files and/or Tricare audit
forms with the intent of impeding or obstructing a federal
grand jury investigation. On March 2, 2018, a jury of
Defendant's peers found him guilty on all sixteen counts.
March 6, 2018, Defendant filed a Motion for Bond  pending
sentencing, which the Government opposed. The Magistrate
Judge held a bond hearing, and on March 13, 2018, he denied
 Defendant Motion for Bond . The Magistrate Judge
found that Defendant had not presented sufficient evidence to
overcome the presumption against granting bond after
conviction. Specifically, he found that Defendant had not
established that there was a substantial likelihood that a
motion for new trial would be granted, or presented clear and
convincing evidence that he was neither a flight risk nor a
danger to the community.
March 23, 2018, Defendant filed a Motion for Revocation or
Amendment  of the Magistrate Judge's order denying
his Motion for Bond. The Court construed the motion as
seeking the District Judge's review of the Magistrate
Judge's Order  denying bond pending sentencing. On
April 5, 2018, Defendant filed a Motion for New Trial .
Both motions are ripe for the Court's review.
Motion for New Trial 
the defendant's motion, the court may vacate any judgment
and grant a new trial if the interest of justice so
requires.” Fed. R. Crim. P. 33(a). Rule 33 “goes
to the fairness of the trial rather than to the question of
guilt or innocence.” United States v. McRae,
795 F.3d 471, 481 (5th Cir. 2015). “[D]istrict courts
have wide discretion with respect to Rule 33 motions.”
United States v. Mahmood, 820 F.3d 177, 190 (5th
Cir. 2016). However, “Rule 33 motions are disfavored
and reviewed with great caution.” United States v.
Pratt, 807 F.3d 641, 645 (5th Cir. 2015).
“Generally, . . . the trial court should not grant a
motion for new trial unless there would be a miscarriage of
justice or the weight of evidence preponderates against the
verdict.” United States v. Wall, 389 F.3d 457,
466 (5th Cir. 2004).
Implied Juror Bias
Defendant argues that the Court should have imputed bias to
the jury and declared a mistrial. Specifically, Defendant
contends that the events on the final day of trial related to
Juror 1 created in every other juror a substantial emotional
involvement in the case which adversely affected their
impartiality. But the facts do not support Defendant's
the jury instruction conference on the final day of trial,
the Court Security Officer (“CSO”) informed the
undersigned judge's staff that one of the jurors - Juror
1 - was upset and crying in the bathroom because she believed
she had been threatened by the Defendant's family. The
Court immediately sequestered Juror 1 from the rest of the
jury and began an inquiry. Transcript of Jury Trial Vol. V at
42, United States v. Diaz, No. 2:17-CR-31-KS-JCG
(S.D.Miss. May 2, 2018), ECF No. 110. Juror 1 stated that
when she went through the security checkpoint on Thursday,
two ladies who had been sitting behind Defendant were in line
ahead of her. Id. at 42-43. The CSO did not
recognize Juror 1 until she had already gone through the
metal detector. Id. at 43-44. He explained, “I
thought you were with them, ” referring to the two
ladies in line ahead of Juror 1. Id. at 44. Juror 1
answered, “No, ” but according to her, one of the
ladies said, “Yes, she is. She's with us.”
comment made Juror 1 uncomfortable because she recognized
them from the courtroom. Id. She explained:
So I thought about it all day yesterday and just kind of
said, well, maybe, you know, it's nothing. But I had just
an uneasy instinct . . . about it. And I just felt like
y'all needed to know. But I held off yesterday. But this
morning I did mention it to some of the ones in there, . . .
and I said, I'm going to hang with y'all. I
wasn't discussing anything; I was just saying I felt
uncomfortable coming in the building.
Id. But she specifically denied having attributed
her discomfort to the Defendant when speaking with the other
jurors. Id. at 44-45. Juror 1 then told the Court
that two of the other jurors waited for her outside the
courthouse, and one of them said to her as she walked up,
“We were waiting on you.” Id. at 45. She
mistook the other jurors for the ladies from the security
checkpoint the day before, and she reported it to the CSO
because she “felt very uncomfortable.”
Id. at 46. However, she admitted that nobody
actually threatened her. Id. at 47, 51. In the end,
Juror 1 claimed that she had told the other jurors that she
felt “uncomfortable going out of the courthouse,
” id. at 47, 49, but she denied having
attributed her discomfort to the Defendant. Id. at
44-45, 49. The Court then excused Juror 1 from jury service.
Id. at 49-50.
determine whether the jury had been tainted, the Court
continued its inquiry by speaking with the rest of the jury
as a group. Id. at 53. When the Court asked whether
Juror 1 had spoken with anyone about her reason for being
upset, multiple jurors nodded affirmatively. Id. One
juror answered: “She said . . . that she thought that
Diaz and I guess his wife came up behind her. . . . And we,
we picked at her a little bit.” Id. Juror 4,
one of the ladies who waited outside the courthouse for Juror
We . . . were waiting in the parking lot because we
didn't want her to be paranoid like she was yesterday. So
we waited in the parking lot for her to get out of her truck
. . . . As she come by and I said, we were waiting on you to
walk in, and she didn't even say anything to us. She just
went by us. . . . I guess she thought I was somebody - one of
the dark-haired ladies on Diaz's side or something. And
she didn't wait for us or anything.
Id. at 53-54. According to the other jurors, Juror 1
did not realize that the two ladies waiting for her outside
the courthouse were, in fact, other jurors. Id. at
then told the Court that Juror 1 had described “a man,
a gray-headed man . . . in the stairwell.” Id.
at 57. Another Juror continued: “[S]he said somebody
entered the stairwell, . . . and it was a man . . . . She
told us it was yesterday morning and night before last, . . .
and they came up from behind her from the stairwell.”
Id. According to the jurors, Juror 1 never said it
was the Defendant, but they “felt like that's what
she was leading on about.” Id.
Court then informed the attorneys of what the jurors had
said. Id. at 58-59. Defendant's counsel
immediately moved for a mistrial, but the Court deferred
ruling. Id. at 59. Instead, the Court spoke with
each remaining juror individually, on the record, with one
attorney from each side present. Id. at 61. The
Court also took recommendations from each side's
attorneys regarding what questions to ask. Id. at
61-65. After the Court examined each juror individually,
Defendant's counsel again moved for a mistrial, and the
Court denied the motion. Id. at 100-01. The Court
ruled that Juror 1 would be released from service and
escorted from the courthouse to ensure no further contact
with the remaining jurors. Id. at 101.
brief recess, Defendant's counsel brought to the
Court's attention precedent requiring the Court to
examine each juror under oath, and to permit the attorneys to
examine them. Id. at 102-04; see United States
v. Sylvester, 143 F.3d 923, 935 (5th Cir. 1998)
(“Counsel for both sides shall be given the opportunity
to examine the jurors on the record, under
oath.”). Therefore, the Court re-examined each
juror under oath and gave counsel for the Government and
Defendant an opportunity to question each of them. Transcript
Vol. V , at 108-61. After the additional examination had
concluded, Defendant's counsel renewed the motion for a
mistrial, and the Court denied it. Id. at 160-61.
The Court held: “There's been nothing that shows
anything other than this lady was, unfortunately, . . . just
overly anxious and paranoid, and she jumped to some
conclusions . . . that were baseless.” Id. at
the Other Jurors Said
than provide a full account of each juror's testimony,
the Court will provide relevant highlights:
• Juror 2 said that Juror 1 “thought that somebody
was trying to follow her up the stairs or something. She kept
saying a man with white hair . . ., ” but she did not
identify the person as Defendant. Id. at 122. But
Juror 2 denied that she had felt any intimidation or that
anyone had tried to intimidate her. Id. at 72. She
said that all the other jurors “thought that [Juror 1]
was being a little paranoid because . . . she was nervous
about the case.” Id. at 73. She said that
Juror 1 was embarrassed at having believed that two of the
other jurors were other persons trying to follow her.
Id. at 73, 123. But Juror 1 did not identify the
other persons as associated with Defendant. Id. at
123-24. In Juror 2's opinion, Juror 1 overreacted.
Id. at 74.
• Juror 3 was one of the jurors who attempted to meet
Juror 1 in the parking lot on the final day of trial.
Id. at 81-82. She said that Juror 1 had “said
something about a white-headed man in a stairwell, ”
and had acted “a little paranoid about it.”
Id. at 81, 134. Juror 1 did not indicate that the
man was Defendant. Id. at 135. The other jurors
walked to lunch with her “to make her feel more
comfortable, ” and three jurors, including Juror 3,
waited in the parking lot for her on the final morning of
trial to help her “feel comfortable walking up . . .
.” Id. at 81, 136. Juror 1 walked past the
three other jurors in the parking lot, not acknowledging
them. Id. at 136-37. When she arrived in the jury
room, Juror 1 said that people had tried to contact her.
Id. at 137. Juror 3 corrected her, identifying the
three jurors who had waited for her, and Juror 1 “went
into the bathroom and got upset.” Id.
Juror 3 denied that anyone had attempted to contact her, and
that she had felt intimidated in any way. Id. at 82.
In her opinion, Juror 1 had overreacted because “maybe
she's a paranoid person and this has gotten to
her.” Id. at 82, 138. Juror 3 affirmed that
she could be fair to each side. Id. at 83. She
specifically testified that she did not attribute these
events to Defendant or his family. Id. at 137-38.
• Juror 4 came in after Juror 1 was already crying in
the bathroom. Id. at 95. He said, “Yesterday
she had been saying that she was . . . concerned, but we . .
. told her that she needed to talk to someone, and she
didn't, so we assumed that she . . . recognized it as her
own paranoia.” Id. He said no one “other
than her ha[d] been concerned or felt threatened in any way,
so [the other jurors] all thought it was kind of
humorous.” Id. They “didn't think
[Juror 1] took it as seriously as . . . she apparently
did.” Id. In fact, Juror 4 said that he
“didn't give it a whole lot of credence because her
story was not consistent.” Id. at 156.
He denied that these events would have any effect on his
ability to be fair. Id. at 95. And he specifically
testified that he did not attribute any of these events to
Defendant or his family. Id. at 156.
• Juror 5 said that Juror 1 believed that “a
gray-headed fellow” had come “up behind her, got
close behind her in the hall.” Id. at 109-10.
But the other jurors had “shrugged . . . off”
Juror 1's issues as “just her being paranoid . . .
.” Id. at 66-67. He believed that she was
overreacting. Id. at 66.
He denied that any person had tried to intimidate the jury,
and he said that nothing had occurred that would prevent him
from giving Defendant a fair trial. Id. at 67, 110.
He also specifically denied that the events were “in
any way connected to” Defendant or his family.
Id. at 110.
• Juror 6 said that Juror 1 was “shook up”
because she believed that “some of maybe the defense
side” or “a gray-haired man” came into the
stairwell with her and spoke to her. Id. at 75, 126.
In an effort to ease Juror 1's distress, other jurors
walked out with her. Id. at 75.
Juror 6 denied having felt any type of intimidation or
discomfort, and she affirmed that she could continue to be
fair to each side in the case. Id. at 76, 127. She
specifically testified that she did not associate these
events with Defendant or his family. Id. at 127. In
her opinion, Juror 1 overreacted. Id. at 76.
• Juror 7 said that Juror 1 had been “paranoid all
day” on the next to last day of trial. Id. at
77-78, 129. According to Juror 7, Juror 1 had mistakenly told
the CSO that she was with other people who were not jurors,
and Juror 1 believed that she had been followed in the
stairwell by a “gray-headed person.” Id.
at 130. She said that the jurors all “went to lunch
together . . . and stayed with [Juror 1] because she was so
paranoid.” Id. at 78. On the final day of
trial, Juror 1 had not recognized three other jurors waiting
for her in the parking lot and believed they were other
persons attempting to contact her. Id. at 131. The
other jurors were “just picking, you know, laughing
about” it, and “all of a sudden she got
embarrassed, . . . and . . . started crying and went to the
bathroom . . . .” Id. at 78, 131. According to
Juror 7, Juror 1 overreacted. Id. at 79.
• Juror 7 denied that she had been intimidated, and that
anyone had attempted to contact her. Id. at 79. She
affirmed that she could continue to be fair in the case, and
she specifically testified that she did not associated any of
these events with Defendant or his family. Id. at
• Juror 8 came in after Juror 1 was already crying in
the bathroom. Id. at 85. But he said she had been
“very distraught yesterday because she said . . . a man
had said ‘good morning' to her and then followed
her up the stairs.” Id. at 86. Juror 8
believed “it was harmless, ” and that Juror 1 had
no reason “to be afraid or paranoid.”
Id. He said, “She's a little bit more
emotional when it comes to this kind of stuff, I guess.
Because yesterday she just seemed really distraught and so I
guess it was just a little too much for her.”
Id. at 87. Juror 8 believed that Juror 1 was
“just a little nervous, and it was getting to her . . .
.” Id. at 144.
He denied that he had felt intimidated, and that he had
noticed anything which would give anyone a reason to be
concerned for their safety. Id. at 86. He affirmed
that he could continue to be fair to each side in the case.
Id. He also specifically testified that he did not
attribute these events to Defendant or his family.
Id. at 144.
• Juror 9 said that Juror 1 had “felt that
somebody was coming in behind her in the stairs . . .,
” and that three of the ladies on the jury waited on
her in the parking lot “just because they felt that she
felt uncomfortable . . . .” Id. at 89-90, 149.
Juror 9 said that Juror 1 implied that the person following
her up the stairs was Defendant. Id. at 150. He said
that he had advised her to tell the Court if she felt
uncomfortable, but that “she laughed it off, and . . .
was just carrying on.” Id. at 90. Therefore,
the rest of the jury “thought it was . . . no big deal,
” and that she was “over it . . . .”
Juror 9 denied that any of these events would impact his
ability to be fair to both sides of the case. Id. He
specifically testified that he did not attribute any of these
events to Defendant or his family. Id. at 151.
• Juror 10 said that Juror 1 had mentioned that she
“felt like somebody was behind her in the stairwell . .
., ” and that the person told her, “Good
morning.” Id. at 83, 139-40. Juror 10 said
that “the idea that [he] got” was that Juror 1
believed it was Defendant or someone associated with him.
Id. at 140. On the final morning of trial, she came
into the jury room and said someone had been waiting for her
in the parking lot. Id. at 84. Juror 3 responded,
“That was me, ” and “everybody started
laughing.” Id. at 84, 140. According to Juror
10, “it was more of a case that [Juror 1] had her
feelings hurt than anything. She went to the bathroom and you
could tell that she was upset.” Id. at 84.
Juror 10 denied having felt any intimidation, and that anyone
had tried to contact him. He affirmed that these events would
have no effect on his ability to be fair to each side.
Id. He specifically testified that he did not
believe that any person associated with Defendant tried to
contact Juror 1, and ...