555 F. App'x 581
6th Cir.2014Background
- Defendant Gjokaj convicted of bank fraud in a multi-defendant mortgage fraud scheme in the Eastern District of Michigan.
- Wiese and Dokaj allegedly helped funnel funds for down payments and earnests to obtain fraudulent mortgages for twelve Detroit-area homes; Veraldi connected the brokers.
- Jury acquitted others on wire fraud; Wiese acquitted of bank fraud and money laundering; Gjokaj alone convicted of bank fraud after trial.
- During investigation, Wiese informed FBI about Veraldi’s criminal background and threats; the FBI Memorandum was prepared.
- Juror No. 3 reported a stranger warning of government deception; juror was dismissed; Remmer hearing found remaining jurors unaffected by tampering; retrial and severance decisions followed.
- Defendant challenged juror dismissal, prejudicial joinder/ severance issues, and the admissibility of parts of the FBI Memorandum; the district court’s rulings were reviewed for abuse of discretion and harmless error.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Juror impartiality post-tampering | Remmer standards required hearing if credibility questioned | Juror dismissal without hearing breached impartiality | No abuse; dismissal upheld as sound discretion |
| Prejudicial joinder and severance | Joinder proper under Rule 8(b); severance not required | Severance needed due to antagonistic defenses | No reversible prejudice; no abuse of discretion; severance reserved for Wiese alone |
| New trial under Rule 33 premised on joinder/jury tampering/evidence | Remains of joinder/jury tampering and evidentiary issues could warrant new trial | Joinder, tampering, and evidence harmed fairness | No abuse; harmless error; evidence issue not outcome-determinative |
| Admissibility of FBI Memorandum excerpts | Possible exculpatory value if admissible | Statements were exculpatory or could be under exceptions | Even if error, harmless; does not affect verdict |
Key Cases Cited
- Remmer v. United States, 347 U.S. 227 (1954) (trial court must examine impact of tampering and curative measures)
- Gabrion, 648 F.3d 307 (6th Cir. 2011) (removal of tainted juror appropriate when impartiality in doubt)
- Cameron, 464 F.2d 333 (3d Cir.1972) (juror removal within district court discretion; no hearing required)
- Coleman, 997 F.2d 1101 (5th Cir. 1993) (no evidentiary hearing necessary to remove a juror with impaired duties)
- Domenech, 476 F.2d 1229 (2d Cir.1973) (district court not abusefully when removing a juror over objection)
- Lustig, 555 F.2d 737 (9th Cir.1977) (alternate juror can be impartial; prejudice not inherent to replacement)
- Zafiro v. United States, 506 U.S. 534 (1993) (severance not mandatory for antagonistic defenses; remedies modest)
- Driver, 535 F.3d 424 (6th Cir. 2008) (no automatic reversal for lack of severance; must show compelling prejudice)
- Rigsby, 45 F.3d 120 (6th Cir. 1995) (remedy for improper joinder or tainting requires careful consideration)
- Smith v. Phillips, 455 U.S. 209 (1982) (post-trial Remmer-type remedy available; impartiality can be cured by hearing)
- United States v. Corrado, 227 F.3d 528 (6th Cir. 2000) (juries and evidentiary disputes are evaluated under standard of prejudice)
- Pugh, 405 F.3d 390 (6th Cir. 2005) (harmless-error standard for evidentiary mistakes; more probable than not affected verdict)