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United States of America v. Sharpe James

October 25, 2011

UNITED STATES OF AMERICA,
v.
SHARPE JAMES,
DEFENDANT.



The opinion of the court was delivered by: William J. Martini, U.S.D.J.:

HON. WILLIAM J. MARTINI

OPINION

This matter comes before the Court on Defendant Sharpe James's second motion for a new trial, pursuant to Federal Rule of Criminal Procedure 33(a). For the reasons that follow, Defendant's second motion for a new trial will be DENIED.

I. FACTUAL AND PROCEDURAL BACKGROUND

On July 12, 2007, a federal Grand Jury indicted Defendant Sharpe James on 25 Counts related to misuse of his authority as Newark's then-Mayor and a New Jersey State Senator. The Indictment alleged Defendant (1) improperly used City of Newark-funded credit cards and (2) improperly steered sales of discounted City-property to a companion; and while a Senator, shepherded legislation to increase his power as Mayor to cede property in this manner.

Prior to trial, the Court severed the credit card fraud charges, as reflected in the five-count Redacted Indictment filed on February 11, 2008. Trial commenced with jury selection on February 26, 2008. Seven weeks later, on April 16, 2008, the jury convicted Defendant of Mail Fraud (Counts 1 to 3); Fraud Involving Local Government Receiving Federal Funds (Count 4); and Conspiracy to Defraud the Public of Honest Services (Count 5) in violation of Title 18, United States Code, Sections 1341, 666(a)(1)(A), and 371, respectively.

After trial, Defendant moved for a judgment of acquittal and new trial pursuant to Rules 29 and 33 of the Federal Rules of Criminal Procedure. On July 24, 2008, this Court denied both motions, and on July 29, 2008, sentenced Defendant to 27 months imprisonment plus three years supervised release. Thereafter Defendant appealed his conviction.

On September 16, 2010, the United States Court of Appeals for the Third Circuit affirmed the conviction on all counts, except reversing the honest services conspiracy count in light of the Supreme Court's June 2010 decision in Skilling v. United States, 130 S. Ct. 2896 (2010). The parties agreed a re-sentencing hearing was not required as the Third Circuit substantially affirmed Defendant's conviction.

A. Defendant's Present Rule 33 Motion

Presently, Defendant moves for retrial claiming that newly discovered evidence shows one of the jurors, Kenneth Asuquo, should have been excused for cause, and because he was not, Defendant did not receive a fair trial. Specifically, Defendant claims that during voir dire, Mr. Asuquo failed to disclose that his mother and step-father were employees of the City of Newark at the time of trial,*fn1 and that this fact was material to Mr. Asuquo's impartiality and fitness to serve. (Def. R. 33 Mot. Br., at 2-3, 6, ECF No. 199.)

B. Jury Selection Prior to Trial

The Court took careful steps to ensure a fair and impartial jury. Jury selection in this matter involved a two-step voir dire process ("Phase-One" and "Phase-Two"). In Phase-One, prospective jurors completed a questionnaire drafted by the parties and the Court consisting of 38 questions, which probed prospective jurors' knowledge of and any interactions with Defendant James and the City of Newark. The pertinent Phase-One questions and Mr. Asquo's responses follow:

11(a). Do you personally know, or do you have any immediate family members or close friends who know, either of the defendants or any members of their families?

A: No

16. Have you or any member of your immediate family ever had any business or other dealings ...


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