Juror's lies, creating false persona, causes a new criminal trial to be ordered
Parse was charged with one count of conspiracy to defraud the U.S., to commit mail and wire fraud and tax evasion. "Following a three-month trial at which 41 witnesses testified and some 1,300 exhibits were admitted, the jury on May 24 returned a split verdict. It found Parse guilty on two counts--the substantive mail fraud and obstruction charges described above--and found him not guilty on the other four counts against him…." A juror, a disbarred attorney, lied to sit on the jury. She tainted the outcome and a new trial was issued at the district court level for all except Parse. On appeal, Parse argues he should have been awarded a new trial albeit that his defense attorneys had reason to know that this juror was a disbarred attorney who lied during voir dire.
During voir dire, a potential juror lied about her education and the background of her husband. Specifically, a lawyer, the juror (Conrad) lied about being admitted to practice law and lied about where she lived (allowing her to collect extra in travel expenses.) She also, by virtue of her failing to conceal her education and license to practice law, that she was the subject of an investigation and disciplinary proceeding. Her disciplinary proceeding and subsequent reapplication to the profession were also riddled with all sorts of misrepresentations. At an evidentiary hearing, the court found that her lies
"directly affected her qualifications to serve as a juror. Her arrests and suspensions from the practice of law were not the result of youthful indiscretions or errors on the part of police or courts. . . . There is no dispute that Conrad was aware of her prior convictions, her attorney disciplinary problems, and her personal injury suit at the time she answered the Court's questions under oath. There is also no question that she made a conscious decision to hide them from the Court."
Why did she lie? Because she wanted to make herself "marketable" as a juror; and that she was. After the trial, she wrote a letter to the prosecution commending their efforts and informing them of what occurred behind closed doors. After a lengthy evidentiary hearing, the issue became whether or not Parse's attorneys knew of the rogue juror and failed to raise the objection, thereby waiving it, after their investigation of this juror (Conrad).
Parse "challenges the district court's denial of his posttrial motion pursuant to Rule 33 of the Federal Rules of Criminal Procedure for that relief, made jointly with his codefendants against whom the jury had returned verdicts of guilty, in light of postverdict evidence establishing that one of the jurors had lied on voir dire, concealed relevant information, and was actually biased against the defendants." His two challenges are that (1) he was denied a fair and impartial jury; and (2) ineffective assistance of counsel. Although the District Court granted a co-defendant a new trial, it denied Parse's, finding that his attorneys either knew of the juror misconduct or failed to act and, therfore, waived Parse's right to an impartial jury.
Rule of Law: "Voir dire plays an essential role in protecting the right to a trial by an impartial jury," and as questioning on voir dire seeks to ferret out actual or potential biases on the part of potential jurors, a "juror's dishonesty during voir dire undermines a defendant's right to a fair trial." Daugerdas, 867 F.Supp.2d at 468; ("where a juror deliberately conceals information that,if revealed, 'might thwart her desire to sit' on the jury, any resulting conviction 'cannot stand' because such conduct 'obstruct[s] the voir dire and indicate[s] an impermissible partiality on the juror's part'" (quoting United States v. Colombo, 869 F.2d 149, 151 (2d Cir. 1989) ("Colombo"))
Std: Rule 33 of the Federal Rules of Criminal Procedure provides, in pertinent part, that "[u]pon 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). Under the federal rules, newly discovered evidence can be one of these grounds. Evidence is not new if the defendant knew of it prior to trial, see, e.g., United States v. Mayo, 14 F.3d 128, 132 (2d Cir. 1994) ("Mayo"), and is not considered "newly discovered" if, with the exercise of reasonable diligence, it could have been discovered before or during the trial, see, e.g., United States v. Siddiqi, 959 F.2d 1167, 1173 (2d Cir. 1992) ("Siddiqi") (the defendant must "make[] a showing that the evidence is in fact 'new', i.e., it could not have been discovered, exercising due diligence, before or during trial"); Spencer, 4 F.3d at 119. A defendant is not entitled to remain silent while having knowledge of facts of an impropriety that would entitle him to relief and to invoke that impropriety only later if the result of the proceeding is unsatisfactory to him. See generally Puckett v. United States, 556 U.S. 129, 134 (2009) ("If a litigant believes that an error has occurred (to his detriment) during a federal judicial proceeding, he must object in order to preserve the issue. . . . [T]he contemporaneous-objection rule prevents a litigant from 'sandbagging' the court--remaining silent about his objection and belatedly raising the error only if the case does not conclude in his favor." (other internal quotation marks omitted)).
The denial of a Rule 33 motion for a new trial at the district court level is reviewed (2d Cir) for an abuse of discretion here. "A court abuses its discretion if (1) it takes an erroneous view of the law, (2) its decision rests on a clearly erroneous finding of fact, or (3) its decision--though not necessarily the product of a legal error or a clearly erroneous factual finding--cannot be located within the range of permissible decisions." Pp. 39-40 (citing Owen, 500 F.3d at 87-88; United States v. Thorn, 446 F.3d 378, 391 (2d Cir. 2006)). Waiver here must be intentional relinquishment of a known right.
Application: Voir dire here could not have ferreted out this attorney-juror. Reviewing the case of Parse's codefendant, the Court there concluded that "[t]he principle of implied bias applies with particular force here. Not only did Conrad lie, she created a totally fictitious persona in her drive to get on the jury." Daugerdas, supra. The difference with Parse was whether his attorneys knew of the problems and failed to raise them to the court, thus allowing this debacle to take place and the new trial of three codefendants to be granted. The District Court concluded that Parse waived his right to a new trial: his trial counsel knew, suspected and/or had reason to know that juror-Conrad was a disbarred attorney.
"[I]f the defendant knew prior to the end of trial that a prospective juror had given false voir dire responses and did not then reveal the disqualifying falsehoods or nondisclosures to the court, the "interest of justice," Fed. R. Crim. P. 33(a), generally will not require a new trial." However, "[w]here the newly discovered evidence concerns materially false information provided by a prospective juror in response to clear and unambiguous questions on voir dire, the court should grant the new-trial motion where the juror's false responses "obstructed the voir dire and indicated an impermissible partiality on the juror's part," Colombo, 869 F.2d at 151. "We conclude that to the extent the district court found that Parse's attorneys knew Conrad had lied, that finding is not supported by the record; and to the extent that the court ruled that Parse's right was waived because his attorneys failed to exercise due diligence to learn the facts, that ruling was based on an error of law." Pp. 42.
Indeed, " [v]irtually everything that came to light about Catherine M. Conrad the suspended lawyer was inconsistent with Conrad's voir dire responses given under oath. Although Parse's attorneys of course could have asked the court to pose additional questions to Conrad, we conclude that their failure to do so, or otherwise to pursue additional information sufficient to reveal that Conrad had pervasively lied despite her oath, did not provide an appropriate basis for the court's finding that they did in fact know the truth." Pp. 53. In reviewing the (very) lengthy record of the district court, the Second Circuit does not agree with the findings regarding Parse's attorneys. " Rule 33 gave the district court discretion to grant a new trial in the interest of justice. The court's refusal to exercise that discretion on the ground that Parse had waived his right to complain of juror bias was based on errors of law and erroneous findings of fact." Pp. 55.
Conclusion: "In these circumstances--in which a juror aligned herself with the government, lied pervasively in voir dire for the purpose of avoiding dismissal for cause, believed prior to the presentation of any evidence that the defendants were 'crooks,' and expressly mentioned Parse as a target of her efforts to persuade the other jurors to convict--a refusal to order a new trial for Parse would seriously affect the fairness, integrity, and public reputation of judicial proceedings." Pp. 57.
The Case is USA v. Parse, 13-1388 (2d Cir. Jun. 8, 2015), http://www.ca2.uscourts.gov/decisions/isysquery/f434d171-9ccc-49d7-a3eb-71c1cfaf1cc4/1/doc/13-1388_complete_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/f434d171-9ccc-49d7-a3eb-71c1cfaf1cc4/1/hilite/ .
