District of Columbia

Court of Appeals

No. 14-CF-987

MICHAEL POTH,

Appellant, 

v. CF1-7029-12

 

UNITED STATES,

Appellee.

 

On Appeal from the Superior Court of the District of Columbia

Criminal Division

BEFORE: GLICKMAN and BECKWITH, Associate Judges; and FARRELL, Senior 

Judge.

J U D G M E N T

 

This case came to be heard on the transcript of record and the briefs filed, 

and was argued by counsel. On consideration whereof, and as set forth in the opinion 

filed this date, it is now hereby 

ORDERED and ADJUDGED that the matter is remanded to the trial court 

for further proceedings consistent with this opinion, as the trial court erred in denying 

appellant an evidentiary hearing on his juror-misconduct claim.

For the Court:

 

Dated: December 29, 2016.

Opinion by Associate Judge Corinne Beckwith.

DEC 29 2016
Notice: This opinion is subject to formal revision before publication in the 

Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the 

Court of any formal errors so that corrections may be made before the bound 

volumes go to press. 

DISTRICT OF COLUMBIA COURT OF APPEALS

No. 14-CF-987

MICHAEL POTH, APPELLANT, 

V.

UNITED STATES, APPELLEE. 

Appeal from the Superior Court

of the District of Columbia

(CF1-7029-12)

(Hon. Russell F. Canan, Associate Judge)

(Argued November 10, 2016 Decided December 29, 2016)

Enid Hinkes, for appellant.

Valinda Jones, Assistant United States Attorney, with whom Channing D. 

Phillips, United States Attorney, Elizabeth Trosman, Chrisellen R. Kolb, and 

Michael Liebman, Assistant United States Attorneys, were on the brief, for 

appellee. 

Before GLICKMAN and BECKWITH, Associate Judges, and FARRELL, Senior 

Judge.

BECKWITH, Associate Judge: A jury acquitted appellant Michael Poth of

second-degree murder while armed1for the stabbing death of Philip Bushong, but 

found him guilty of the lesser included offense of voluntary manslaughter while 

 

1

 D.C. Code §§ 22-2103, -4502 (2012 Repl.).

12/29/16
2

armed.2 After trial, defense counsel discovered that two of the jurors had omitted 

material information in their voir dire responses and filed a motion for new trial 

under Super. Ct. Crim. R. 33. The trial court denied the motion on the ground that 

Mr. Poth had forfeited the juror-misconduct claim by failing to exercise diligence 

in discovering the claim’s factual basis and bringing it to the court’s attention prior 

to the jury’s verdict. We conclude that the trial court erred in rejecting Mr. Poth’s 

juror-misconduct claim on lack-of-diligence grounds, and we remand to allow the 

trial court to decide the merits of Mr. Poth’s claim.

I.

After trial, defense counsel conducted a “general Google search” of all of the 

jurors’ names3and discovered that one of the jurors, Juror 061, was a registered 

sex offender with a felony record and that another juror, Juror 703A, had been a 

 

2

 D.C. Code §§ 22-2105, -4502 (2012 Repl.).

3

 Defense counsel had been given a list of the jurors’ names at the beginning 

of voir dire. He copied the names into his notebook before returning the list at the 

end of voir dire. When the issue of juror misconduct later arose, the trial court 

noted that pursuant to Super. Ct. Admin. Order 95-11, the jurors’ names were 

public information. The court also noted that the administrative order required the 

parties to be provided during voir dire with a confidential “Juror Panel Roster” that 

contained the jurors’ addresses, ages, occupations, and work addresses, but that the 

roster provided to the parties in this case lacked the jurors’ home and work 

addresses.
3

complainant in an assault case in 1999. The government subsequently discovered 

and disclosed that Juror 061 had several additional convictions and that Juror 703A 

had also been a complainant in a 2000 assault case.

This information was significant because it was inconsistent with Juror 

061’s and Juror 703A’s responses during jury selection. At voir dire, the 

prospective jurors had sworn an oath to tell the truth. They were given a form 

listing eighteen questions, which the court also read aloud to them. One of the

questions was whether the juror, “a close family member or a close friend . . . ha[d] 

ever been a victim of a crime, a witness to a crime or charged, arrested, brought to 

court for a crime.” Neither Juror 061 nor Juror 703A circled “yes” for this 

question or any other question on the form. The court also called the jurors 

individually to the bench for further questioning by the court and counsel. The 

court inquired of Juror 703A as follows:

Q. Yes, ma’am, I noticed that like many other panel 

members you didn’t answer any questions. Were 

my questions clear enough for you?

A. Yes.

Q. Do you have any questions about any of my 

questions?

A. None at all.
4

The court questioned Juror 061 similarly and received the same responses.4

Mr. Poth subsequently filed a motion for a new trial. At a hearing on Mr. 

Poth’s motion, counsel for Juror 703A represented that her client had forgotten 

about being a complainant in the two assault cases. According to counsel, those 

assaults “happened a long time ago,” and the perpetrator—“[i]t was someone that 

she had a relationship with”—was deceased. Counsel also represented that the two 

assaults “did not in any way [a]ffect her deliberations.” Counsel for Juror 061 

stated that Juror 061 would assert his Fifth Amendment privilege against selfincrimination if he were called to testify about his failure to disclose his criminal 

history. 

The trial court declined to hold an evidentiary hearing on the motion, ruling 

that Mr. Poth’s claim was barred due to his counsel’s failure to exercise due 

diligence. The court reasoned that although “defense attorneys are [not], generally 

speaking, required to conduct pre-verdict juror investigations, . . . [i]t is the Court’s 

view . . . that if such an investigation is conducted, it must be done in such a 

 

4

 Juror 061 did disclose a felony conviction on a juror-qualification 

questionnaire, but this questionnaire was not provided to the trial court or the 

parties.
5

manner that will allow the trial judge time to take appropriate corrective action.”5

II.

Before addressing whether the court erred in imposing a due-diligence 

requirement on Mr. Poth, we turn first to a threshold procedural matter. The 

government argues that Mr. Poth’s motion for a new trial was time-barred by 

Super. Ct. Crim. R. 33, which, at the time of the 2013 trial, provided that a motion 

for a new trial based on grounds other than newly discovered evidence “may be 

made only within 7 days after the verdict or finding of guilty or within such further 

time as the Court may fix during the 7-day period” (emphasis added).6 Defense 

 

5

 The trial court noted that the question whether a defendant must 

demonstrate due diligence in order to bring a motion for a new trial based on 

evidence of juror misconduct discovered post-verdict through an internet 

investigation has not yet been addressed by our court. The trial court gave the 

issue careful consideration, relying heavily on relevant case law from other 

jurisdictions. See, e.g., Burden v. CSX Transp., Inc., No. 08-CV-04-DRH, 2011 

WL 3793664, at *5–14 (S.D. Ill. Aug. 24, 2011); Johnson v. McCullough, 306 

S.W.3d 551 (Mo. 2010).

6

 Super. Ct. Crim. R. 33 has since been amended to say that a “motion for a 

new trial grounded on any reason other than newly discovered evidence must be 

filed within 7 days after the verdict or finding of guilty.” The provision requiring 

the trial court to fix the filing date within seven days of the verdict has been 

deleted to conform with Fed. R. Crim. P. 33. See Fed. R. Crim. P. 33 advisory 

committee’s note to 2005 amendment (“[T]he amendment deletes the language 

regarding the court’s acting within seven days to set the time for filing. . . . [T]he 

court itself is not required to act on [a] motion [for an extension] within any 

(continued...)
6

counsel did not file the motion for a new trial within seven days of the jury’s 

verdict. Counsel did move for an extension of time within seven days of the 

verdict, but the court did not grant the motion until after the seven-day period had 

lapsed. The government did not object at that time; nor did it oppose the defense’s

second motion for an extension, which the court granted. The government 

objected to the defense’s third and final request for more time, but the court 

overruled the objection and granted that motion as well. When Mr. Poth finally 

filed the motion for a new trial, the government argued that Super. Ct. Crim. R. 

33’s time limit was jurisdictional and could not be forfeited and that even if the 

time limit could be forfeited, the government’s opposition to the third extension 

had been sufficient to preserve its right. The trial court rejected both arguments, 

and the government renews them in this appeal.

The time limit in Super. Ct. Crim. R. 33 is not jurisdictional. Jurisdictional 

rules, “when not constitutionally mandated, are an exercise of legislative power 

and so must be grounded in statutes or other legislative acts.” Neill v. D.C. Pub. 

Employee Relations Bd., 93 A.3d 229, 238 (D.C. 2014). Rule 33 lacks such a 

statutory basis. It is instead a “claim-processing” rule—a rule devised by the court

 

(...continued)

particular time.”).
7

“to promote the orderly process of litigation by requiring that the parties take 

certain procedural steps at certain times”—and thus its requirements can be 

forfeited or waived. Id. (quoting Henderson v. Shinseki, 562 U.S. 428, 435

(2011)). And while this court previously held that Rule 33’s time limit was

jurisdictional, see Diamen v. United States, 725 A.2d 501, 506 (D.C. 1999),

subsequent legal developments have cast doubt upon that holding. In Smith v. 

United States, 984 A.2d 196 (D.C. 2009), we explained that “the jurisprudential 

basis” of our cases holding that Super. Ct. Crim. R. 35 (b)’s time limit was 

jurisdictional had been “‘substantially undermined’ by subsequent decisions of the 

Supreme Court”—namely, Eberhart v. United States, 546 U.S. 12 (2005), and 

Bowles v. Russell, 551 U.S. 205 (2007). Smith, 984 A.2d at 200 (quoting Lee v. 

United States, 668 A.2d 822, 828 (D.C. 1995)). We adopt this reasoning,

7 which 

 

7

 In Dean v. United States, 938 A.2d 751 (D.C. 2007), a case that postdates 

Eberhart and Bowles, the court quoted the holding from Diamen, 725 A.2d at 506, 

that Super. Ct. Crim. R. 33’s time limits are jurisdictional. Dean, 938 A.2d at 767. 

But as the court explained in Smith, the Dean court did not “cite to any of the 

recent Supreme Court precedent in making [its] ruling, nor was the issue of 

‘jurisdictional vs. claim-processing’ directly before [the court], because the 

objection to the time-limit violation was preserved at trial.” 984 A.2d at 201 n.5. 

“The rule of stare decisis is never properly invoked unless in the decision put 

forward as precedent the judicial mind has been applied to and passed upon the 

precise question,” Murphy v. McCloud, 650 A.2d 202, 205 (D.C. 1994) (quoting 

Fletcher v. Scott, 277 N.W. 270, 272 (Minn. 1938)), and we therefore are not 

bound by Dean.
8

applies here with even more strength, given that Eberhart’s holding directly 

concerned Fed. R. Crim. P. 33, see 546 U.S. at 13, on which Super. Ct. Crim. R. 33 

is patterned.

Because Super. Ct. Crim. R. 33’s time limit is not jurisdictional, the 

government can forfeit or waive it. The government cites a number of federal 

cases that it contends stand for the proposition that “the government . . . preserve[s] 

its objection to an untimely filing under a claim-processing rule if the objection is 

raised in the government’s response to the challenged pleading.” See United States 

v. Felder, 529 F. App’x 111 (3d Cir. 2013); United States v. Foster, 623 F.3d 605, 

607–08 (8th Cir. 2010); United States v. Miranda, 220 F. App’x 965 (11th Cir. 

2007). But these cases indicate that where a defendant fails to request an extension 

and then subsequently files an untimely motion for a new trial, the government 

does not forfeit its objection so long as it includes that objection in its response to 

the motion. That rule has no application here, where Mr. Poth requested and was 

granted an extension without any objection by the government, and—more 

fundamentally—where Mr. Poth’s initial request for an extension contained the 

following representation, which the government did not contradict: “Government 

counsel has no objection provided that the government is given a proportional 
9

extension to respond.” The government has waived8its right to assert the sevenday time limit. 

III.

A defendant is entitled to a new trial in “the interests of justice” if 

“‘exceptional circumstances’ prevented the defendant from receiving a fair trial.”

Super. Ct. Crim. R. 33; Tyer v. United States, 912 A.2d 1150, 1167 (D.C. 2006)

(quoting Huggins v. United States, 333 A.2d 385, 387 (D.C. 1975)). It is beyond 

question that a defendant who was deprived of his or her Sixth Amendment right to 

trial “by an impartial jury” was prevented from receiving a fair trial. Violation of 

this right is a “structural defect affecting the framework within which the trial 

proceeds,” and without an impartial jury, “a criminal trial cannot reliably serve its 

function as a vehicle for determination of guilt or innocence.” Hughes v. United 

States, 689 A.2d 1206, 1210 (D.C. 1997) (quoting Arizona v. Fulminante, 499 U.S. 

279, 310 (1991)). The presence of even a single actually biased juror on the jury 

violates the defendant’s right to an impartial jury. Young v. United States, 694 

 

8

 “Waiver is different from forfeiture. Whereas forfeiture is the failure to 

make the timely assertion of a right, waiver is the ‘intentional relinquishment or 

abandonment of a known right.’” United States v. Olano, 507 U.S. 725, 733 

(1993) (quoting Johnson v. Zerbst, 304 U.S. 458, 464 (1938)).
10

A.2d 891, 894 (D.C. 1997). 

In Young, the court explained the procedure for investigating juror-bias 

claims based on allegations of misrepresentations during voir dire. When a 

defendant shows that a juror responded falsely or omitted material information in 

his or her voir dire responses, the defendant is entitled to “a hearing in which the 

defendant has the opportunity to prove actual bias” on the part of the juror. Young, 

694 A.2d at 894 (quoting Smith v. Phillips, 455 U.S. 209, 215 (1982)). The 

defendant is entitled to a new trial if he or she demonstrates at the hearing that the 

“juror failed to answer honestly a material question” and that “a correct response 

would have provided a valid basis for a challenge for cause.” McDonough Power 

Equip., Inc. v. Greenwood, 464 U.S. 548, 556 (1984); accord Young, 694 A.2d at 

894. The second requirement is satisfied if “‘the [trial] court . . . would have 

granted the hypothetical challenge’ if it had known the true facts.” United States v. 

Daugerdas, 867 F. Supp. 2d 445, 470 (S.D.N.Y. 2012) (quoting United States v. 

Stewart, 433 F.3d 273, 304 (2d Cir. 2006)), rev’d in part on other grounds sub 

nom. United States v. Parse, 789 F.3d 83 (2d Cir. 2015); see also Young, 694 A.2d 

at 894 (stating that “the juror’s failure to disclose this information, particularly if 

deliberate, may indicate a desire to serve on [the] jury for some improper purpose,” 

or “the information the juror failed to disclose may indicate some bias against” the 
11

defendant).

Here, Mr. Poth proffered evidence that Juror 061 and Juror 703A had 

omitted material information9during voir dire. It is possible that these omissions 

were inadvertent or were not motivated by prejudice. It is also possible that one or 

both of the jurors were biased against Mr. Poth. Such a prospect, if realized, would 

have deprived Mr. Poth of a fundamental right in our criminal justice system, and 

Mr. Poth was therefore entitled under Young to an evidentiary hearing to probe the 

jurors’ bias.

The trial court’s denial of this hearing on the ground that Mr. Poth’s counsel 

had failed to exercise due diligence was an error of law.

10

 It may be that where a

“defendant knows of possible juror misconduct during trial but does not bring it to 

the attention of the trial court before the verdict is returned, he waives the right to a 

new trial on that ground.”11 Peña v. State, 294 P.3d 13, 23 (Wyo. 2013) (emphasis 

 

9

 Alternatively, the jurors’ failure to circle “yes” on the list of eighteen 

questions beside the question about experience with the criminal justice system 

could be characterized as an affirmative misrepresentation. 

10

 “We review the denial of a Rule 33 motion for abuse of discretion.” 

Jones v. United States, 124 A.3d 127, 129 (D.C. 2015). A court abuses its 

discretion when it relies on an erroneous legal principle. D.C. Office of Tax & 

Revenue v. ExxonMobil Oil Corp., 141 A.3d 1088, 1095 (D.C. 2016).

11

 Some courts have also held that where defense counsel fails to follow up 

(continued...)
12

added); see also United States v. Costa, 890 F.2d 480, 482 (1st Cir. 1989); United 

States v. Edwards, 696 F.2d 1277, 1282 (11th Cir. 1983). But a defendant 

otherwise has a right to rely on jurors’ responses under oath.12 See McDonough, 

464 U.S. at 554 (“The necessity of truthful answers by prospective jurors if th[e 

voir dire] process is to serve its purpose is obvious.”). Where, as here, the defense 

had no actual knowledge that jurors had omitted material information and only 

became aware of this circumstance after conducting an extrinsic investigation, we 

will not find waiver or forfeiture of the right to raise a claim of juror misconduct.13 

 

(...continued)

on voir dire responses that reasonably suggest the possibility of bias, the defendant 

cannot raise the issue of juror bias post-trial. United States v. Johnson, 688 F.3d 

494, 501 (8th Cir. 2012); In re Nash, 614 A.2d 367, 372 (Vt. 1991); but see United 

States v. Parse, 789 F.3d 83, 118 (2d Cir. 2015) (“A ruling that a litigant has 

waived a right because he failed to acquire sufficient information to make an 

informed decision is based on an erroneous view of the law.” (brackets, internal 

quotation marks, and citation omitted)). 

12

 The government argues that defense counsel should be expected to 

consult “readily available online public” information and that counsel’s failure to 

do so during trial precludes the assertion of a juror-misconduct claim based on 

such information after trial. Although it is becoming increasingly common for 

attorneys to conduct internet investigations of jurors and potential jurors, see 

generally Eric P. Robinson, Virtual Voir Dire: The Law and Ethics of Investigating 

Jurors Online, 36 Am. J. Trial Advoc. 597 (2013), this court has not previously 

held that attorneys have a duty to conduct an external investigation of the jurors or 

potential jurors during trial or voir dire, and we do not do so now. 

13

 We are not persuaded by the government’s argument that we must impose 

(continued...)
13

We therefore remand this matter to the trial court.14

 

(...continued)

a due-diligence requirement to discourage sandbagging. The existence of an 

actually biased juror on the jury creates immediate and unquestionable prejudice 

for the defendant. Given the defendant’s uncertain prospects post-trial of 

satisfying his or her burden under Young and obtaining a remedy for this prejudice, 

it is improbable that a defendant who, during trial, acquires information furnishing 

a reason to believe that a juror is actually biased would sit on this information 

rather than immediately seek to have the juror removed. See Henderson v. United 

States, 133 S. Ct. 1121, 1128 (2013) (“[I]t is normally to the advantage of counsel 

and his client to get the error speedily corrected.”).

14

 Mr. Poth has failed to convince us that the government violated his right 

to due process under Brady v. Maryland, 373 U.S. 83 (1963). Mr. Poth argues that 

the United States Navy’s failure to respond to a subpoena for Mr. Bushong’s 

medical records until after the trial was finished constituted the suppression of 

material, exculpatory information by the government. See Vaughn v. United 

States, 93 A.3d 1237, 1254 (D.C. 2014). The records would have shown that over 

the course of his military service, Mr. Bushong was treated for injuries resulting 

from two different assaults, and Mr. Poth asserts that these records would therefore 

have supported his self-defense theory. We conclude that these records were not 

material to the defense. The records would perhaps have been relevant to who was 

the initial aggressor in the confrontation between Mr. Poth and Mr. Bushong. See 

Shepherd v. United States, 144 A.3d 554, 558 (D.C. 2016). But the records’ 

probative value was very low given that they did not reveal whether Mr. Bushong 

was the aggressor in the prior assaults, and there was already substantial evidence 

in the trial record showing that Mr. Bushong was the aggressor. In fact, all of the 

eyewitnesses agreed on this point. There is thus not a reasonable probability that 

the alleged suppression of these records affected the trial outcome. 

Mr. Poth also argues that the government violated Brady by failing to 

disclose a witness statement and the grand jury testimony of two witnesses prior to 

trial. While the government undoubtedly “has an obligation to disclose [Brady] 

information to the defense in a timely and complete manner,” Vaughn, 93 A.3d at 

1256, Mr. Poth was not prejudiced by the late disclosures in this case. Defense 

(continued...)
14

IV.

 More than three years have passed since Mr. Poth’s trial, and it may be that 

“the passage of time” has “impair[ed the] trial court’s ability to make a reasoned 

determination of” Juror 061’s and Juror 703A’s bias against Mr. Poth, and that it 

will be impossible to afford Mr. Poth the hearing to which he was entitled. 

Robinson v. United States, 878 A.2d 1273, 1291 (D.C. 2005) (quoting Brown v. 

Kelly, 973 F.2d 116, 121 (2d Cir. 1992)). We leave it to the trial court to decide in 

the first instance whether it is possible to hold a fair evidentiary hearing or whether 

Mr. Poth’s new-trial motion must be granted outright. See id. If it is possible to 

have a proper evidentiary hearing on Mr. Poth’s juror-misconduct claim, the trial 

court should—in evaluating the evidence developed at such a hearing—

 

(...continued)

counsel made effective use of the statement and grand jury testimony in his crossexamination of the government’s witnesses, and he was sufficiently aware of the 

gist of the statement and the testimony to include a summary in his opening 

statement. Mr. Poth has not claimed with any specificity that earlier disclosure 

would have assisted his counsel in investigating the case or preparing for trial, and 

on the record in this case we see no basis for concluding it would have.

Finally, because we accept Mr. Poth’s argument that the trial court erred in 

denying his juror-misconduct claim on the ground that his trial counsel failed to 

exercise due diligence, we do not need to decide Mr. Poth’s claim that his trial 

counsel rendered ineffective assistance, see Strickland v. Washington, 466 U.S. 

668 (1984), by failing to investigate and raise his juror-misconduct claim preverdict.
15

nonetheless be cognizant of “the usual risks of imprecision and distortion from the 

passage of time.” Miller-El v. Cockrell, 537 U.S. 322, 343 (2003).

Another issue that may arise on remand is that one or both jurors may be 

unavailable to testify. This is not a speculative concern: Juror 061’s counsel stated 

that Juror 061 would invoke his Fifth Amendment right against self-incrimination 

if called to testify. In the absence of testimony by Juror 061, in particular—or in 

the absence of other evidence satisfactorily explaining his omission of significant 

information—the most reasonable inference would be that Juror 061’s omission 

was knowing or intentional. Cf. Jackson v. Ala. State Tenure Comm’n, 405 F.3d 

1276, 1288–89 (11th Cir. 2005) (explaining that although “[i]n some 

circumstances a juror may have forgotten about a conviction or . . . not realized 

that her conviction was covered by [a] question,” there was no “reasonable 

possibility” that a juror who had been convicted of murder and spent three years in 

prison “could have honestly doubted that she was covered by the question”). As 

other courts have concluded, intentional misrepresentations and omissions, in the 

absence of countervailing evidence demonstrating a non-bias motive, are strong

“evidence that the juror was likely incapable of rendering a fair and impartial 

verdict.” People v. Dunoyair, 660 P.2d 890, 895 (Colo. 1983); see also United 

States v. Colombo, 869 F.2d 149, 151–52 (2d Cir. 1989) (“[Lying] exhibited a 
16

personal interest in th[e] . . . case that was so powerful as to cause the juror to 

commit [perjury,] a serious crime.”); In re Hitchings, 860 P.2d 466, 479 (Cal. 

1993) (“[W]hen a juror conceals material information on voir dire, ‘that 

information establish[es] substantial grounds for inferring that [the juror] was 

biased . . . despite . . . protestations to the contrary.’” (quoting People v. Price, 821 

P.2d 610, 650 (Cal. 1991)) (alterations and omissions in original)).

15

 

V.

For the foregoing reasons, we conclude that the trial court erred in denying 

Mr. Poth an evidentiary hearing on his juror-misconduct claim. We remand to the 

trial court for further proceedings consistent with this opinion.

 

15

 The government, quoting Young, 694 A.2d at 895, argues, with respect to 

Juror 061, that “[s]omeone previously convicted of a crime is not necessarily more 

likely to be biased against the defendant; ‘the opposite is more intuitive.’” But in 

Young, the trial court credited the juror’s testimony that his omission of his 

criminal history was inadvertent. Id. at 893. Accordingly, the Young appellant 

raised the argument that even though the juror did not lie, the court should 

“presume . . . bias[]” because the juror’s felony conviction rendered him statutorily 

ineligible to serve on a jury. Id. at 894. The language quoted by the government 

comes from the court’s analysis disposing of that argument. See id. at 894–95. In 

the present case, by contrast, Mr. Poth has not had an opportunity to put Juror 061 

on the stand and there would be no basis for the trial court to infer that Juror 061’s 

omissions were unintentional. At the same time, if Juror 061 can be questioned, 

then that juror’s disclosure of a prior felony conviction on the juror-qualification 

form, see supra note 4, may be a factor relevant to the determination of bias.
17

So ordered.