*1 delay, the mandate minimize additional issue forthwith.
shall America,
UNITED STATES
Appellee,
v. PARSE, Defendant-Appellant.
David 13-1388.
Docket No. Appeals, Court of
United States Circuit.
Second 16, 2014.
Argued: Oct. 8, 2015.
Decided: June *2 Attorney, York, N.Y.,
States New brief), Appellee. York,
Alexandra A.E. Shapiro, New (Marc Isserles, Darrow, N.Y. E. James Patil, Isserles, A. Shapiro, Chetan Arato & *3 York, N.Y., brief), New for Defen- dant-Appellant.
Gibson, Crutcher, York, Dunn & New (Lawrence Zweifach, Kim, N.Y. J. Jane of counsel), Porter, York, and Arnold & New Stewart, A. (Craig N.Y. Alexandra L. Mit- ter, counsel), of filed a brief for Amicus Curiae New York Council of Defense Law- yers, in support Defendant-Appellant. of KEARSE, STRAUB, Before: and WESLEY, Judges. Circuit STRAUB, in Judge separate opinion, in judgment concurs and in the majority opinion part.
KEARSE, Judge: Circuit Defendant appeals David Parse from a judgment entered the United States District the Southern District of following New York trial before III, Pauley Judge, convicting William H. fraud, him on one count of mail in violation §§ of 18 U.S.C. 1341 and and on one corruptly endeavoring count of to obstruct impede and the administration of the inter- laws, nal revenue in violation of 26 U.S.C. 7212(a). § principal- Parse was sentenced ly imprisonment, to 42 months’ to be fol- release, years supervised lowed three $1,000,000 forfeit was ordered to $115,830,267in pay ap- restitution. On peal, principally he contends he trial granted should have been new on ground newly discovered evidence of Okula, Jr., bias; Stanley challenges J. Assistant United he the district (Preet York, Attorney, posttrial pursu- States New N.Y. court’s denial of his motion Bharara, Attorney ant United States for the to Rule 33 of the Federal Rules York, relief, Southern District of New Brian A. Criminal Procedure for that made Jacobs, Attorney, jointly against Assistant whom United States with his codefendants Davis, guilty, Nanette L. verdicts of Special Assistant United had returned Brubaker, light postverdict establishing evidence a broker at the investment bank jurors dire, that one of the had lied on voir that employed Following Parse. a three- information, concealed relevant month trial at which 41 witnesses testified actually against 1,300 admitted, biased the defendants. and some exhibits were granted jury May The district court the new-trial on split returned a verdict. codefendants; motion of Parse’s it guilty but de- It found Parse on two counts—the Parse, motion finding nied the that his mail substantive fraud and obstruction juror’s either knew of the mis- charges described above—and him found guilty conduct to the verdict or failed to act not against the other four counts (See (“Tr.”) diligence with reasonable based on the in- him. Transcript Trial 9153- 9159-63.) had, formation and that Parse had It Daugerdas guilty found right impartial jury. him; thus waived his to an against on all counts found Guerin *4 Parse guilty her; also contends the evidence was on all 12 against counts found insufficient to support jury’s guilty him; verdicts Field against on all 7 counts him, against challenges and he certain of guilty any and found Brubaker not of (See given jury. the instructions to the Finding against the counts him. id. at 9153- 63.) challenge merit in Parse’s to the denial of motion,
his Rule 33 but not in his sufficien- cy challenges, we judgment vacate the and A. The District Findings Court’s Ju- remand for a new trial of the counts on ror Misconduct which Parse was convicted. 2011, Parse, July Guerin, In Daugerdas, and Field pursuant moved to Fed. I. BACKGROUND 33(a) R.Crim.P. for a new trial on the Parse and several others indicted were ground that one jurors, of the Catherine ultimately 2009 and charged were with (or M. Conrad—“Juror No. 1” “Con conspiracy one count of to defraud the rad”) lied and withheld material in —had commit fraud, United States and to mail during formation voir dire and was biased fraud, evasion, wire and tax in violation of against defendants. The motion was made § multiple U.S.C. and with sub- some government two weeks after the dis stantive counts of tax evasion and other closed to defendants and the district judge tax-related offenses in connection with the a letter it had received from Conrad short creation of a series of tax shelters “de- (See ly after the return of the verdict. signed and marketed law firm and an [a below.) Part I.A.2. Following completion accounting to take advantage firm] of In- parties’ motion, of the submissions on the ternal Revenue ... loopholes Code tax- so including information from Parse’s attor payers could claim non-economic tax losses neys as to their earlier suspicions about to avoid taxes otherwise would have (see below) Conrad Part I.B. and an evi- (Parse 7). owed” brief on appeal at Parse court, dentiary hearing, the district in a was a broker employed by an investment thorough opinion, see United States v. banking firm that executed transactions (S.D.N.Y. Daugerdas, for implementation of the shelters. 2012) ”), (“Daugerdas “undisputed found it spring Parse was tried extensively that Conrad lied during voir along with four of his codefendants: Paul important dire and concealed information Daugerdas Guerin, and Donna who were background,” about her id. at .451. firm; Field, at the law Denis a district description court’s of the voir dire firm; member of accounting Craig proceedings concerning Conrad and the or planning unearthed authorities boards?” about her information (Trial 107.) Tr. attorneys’ investigations, as in Parse’s dispute, material includ- there is no which any you 4. “Have ever been a following. ed the complainant any witness or a hear- trial, it ing or whether be the state Voir Dire 1.Conrad’s (Trial 108.) or federal courts?” Tr. selection, an initial venire of For you 5. or member “[H]ave jurors had been assem- prospective your family any very person- close bled; Jury Department provided “the charged al friend ever been arrested or identifying roll counsel with ” (Trial 118.) a crime? Tr. venire, listing jurors in the prospective responded affirmatively M. with a Bronxville a ‘Catherine Conrad’ only these In re- questions. two of F.Supp.2d at residence.” sponse question, Conrad of- first winnowed Preliminary procedures 449. fered that her father “works for DOJ jurors prospective from 450 the number immigration the street” as “an across 175; panel of 175 was approximately (Trial officer.” Tr. She then as- In discussing in for voir dire. de- sworn position this that his would sured motion, the district fendants’ new-trial ability not affect her fair and be stated, quoting transcript *5 (Trial 85.) impartial. response Tr. proceedings, that the court had voir dire question, to the second Conrad stated pan- posed questions a number of personal “was a in a plaintiff that she whole, are including a five that el as ... in injury negligence pending” case to this motion: relevant (Trial 105.) Tr. Supreme Bronx Court. any you 1. “Do know or have Again, represented person- that her she association, you any professional, had injury al action would not interfere with social, indirect, business, direct or (Trial ability juror. her to a serve as any with member of the staff of the 106.) provide any Tr. Conrad did not Attorney’s for States Office United any or other additional information af- York, District of New Southern questions posed answers to firmative Department the United States of Jus- group. tice, or the Internal Revenue Service? (em- Daugerdas, F.Supp.2d at 449-50 any dealings anybody Has had with ours). phases Office, Attorney’s the De- the U.S. Justice, or the IRS?” partment proceeded district court had ask (Trial 84-85.) further, detailed, Tr. questions of the more individually. prospective jurors member you any
2. “Are or [has] your family party [a] ever been a .... THE .... Ms. Conrad COURT: lawsuit, is, plaintiff that a or a neighborhood you defen- you would tell us what dant in a civil case or a criminal in? reside (Trial Tr. case? Village Bronx [sic] CONRAD: any you 3. “Have or a close in Westchester. [Bronxville] ap- been involved or relative ever you long THE How have COURT: any investiga- peared as witness in current your lived at address? by grand tion a federal or state My whole CONRAD: life. any congressional or committees or licensing legislative state bodies and lived on Bark- you apartment Do work outside rented
THE COURT: years. er Avenue in the Bronx the home? for stay-at-home I’m No. CONRAD: (emphas- at 452 wife. ours); (finding at 458 es see also id. juror qualification questionnaire dire, high- .... completed
THE What is the under oath to voir COURT: you’ve attained? stating perma- est level education in that “her Conrad “lied” Bronxville, in New nent address was English I BA have a CONRAD: York,” classics, thereby enabling her to collect “col- I literature studied [and] expenses in travel additional lect[ ] $765 archeology abroad. zip of a based on her use Westchester transcript dire (quoting Id. at 450-51 voir code”). ours)). (emphases The court 203-04 ju- prospective it offered noted that had As to the concealment Conrad of the to come to the bench opportunity rors the been educated as and fact she had respect informa- sidebar attorney, the court practiced as an noted they preferred give public- tion that not to ly. prospective jurors took advan- Several also hid the fact that she was Conrad offer, tage sought of that but Conrad no investigation subject of an and disci- infor- provided such sidebar and no other by the plinary proceedings conducted questions. to these response mation Departmental Disciplinary Committee id. at 450.
See Committee”) (the “Disciplinary
The court found voir dire Appellate In December Division. about, matters, among other lied Appellate suspended Division Con- background own and that of her husband. practice failing of law for rad from educational, cooperate [Disciplinary] “to with the
Conrad lied about her
*6
investigation into two com-
professional,
personal background.
and
Committee’s
plaints alleging professional
her
misconduct
While she
the Court that
informed
highest
public
level
education was a bache-
which threatens the
interest.” In
degree,
in
her
the Matter
Catherine M. Conrad
lor’s
she
obtained
fact
(“2007
Order”),
juris
Brooklyn
Suspension
doctorate
Law
48 A.D.3d
from
(1st
187, 188,
Dep’t
School in 1997 and was admitted to
was riddled with falsehoods. She failed Conrad, complaining of a domestic dis- report paid that she had not a fine pute Rosa, at a motel with who she had imposed on her the Eastern District married six weeks earlier.... As the York, though applica- of New even police investigated, she highly dis- (See required tion that disclosure. ... ruptive, disturbed guests, other hotel Jorge Dopico Letter from Chief Counsel ignored the responding officers’ re- Committee, Disciplinary dated quests quiet down. Ultimately, the Letter”), Aug. (“Dopico placed officers Conrad under arrest and stated, response She also to a direct Navajo County booked her at the Jail application, that she had question charges disorderly on conduct. On names, not used though other even 7, 2007, August Conrad was released on she had used name “Catherine recognizance her own and ordered to in May Rosa” when arrested 2009. appear arraignment August 5). Letter, (Dopico Finally, she stat- appear She and an H.... failed ed she no arrests or convictions ap- arrest warrant was issued.... It since suspension when in pears that warrant remains outstand- *7 fact pleaded guilty shoplifting she had ing. charges in (Dopico October 2009. Let- 2009, May In Conrad was arrested ter, at separate New York on two occasions for Daugerdas, at 454. shoplifting.... May ar- On she was The court went on to recount other in- shoplifting gro- rested for worth of $47 misrepresentations stances of Conrad’s as supermarket.... ceries from a Yonkers history: to her criminal later, II, Days May on she was arrested According to New York and Arizona again for shoplifting approximately $27 records, criminal Conrad was arrested goods worth of from a New Rochelle charged and with crimes on at least supermarket_Both charges were re- five occasions.... by plea single petit solved count of 17, 1998, April larceny....
On was plea agreement, Conrad arrest- Under her charged ed in New York and placed probation with driv- Conrad was on for years.... July probation Attorney three A Assistant United States who led (the report government’s “May noted that was in an out- the trial team Conrad Letter”), patient praising performance for alcohol- its at trial program treatment probation report .lamenting acquittals ism. ... An October but of Parse. outpatient program indicated that The district court described the letter as of her expelled because continued follows: use of alcohol and recommended a four- authored a two-page type- Conrad inpatient program.... week While it is May written letter dated 2011 to participated unclear whether she in that Assistant United Attorney States Stan- program, probation Conrad was on dur- (“Okula”) Okula, ley praising J. Jr. ing throughout voir dire and the entire prosecution Government’s of the case trial this case. (the Letter”). “May May Letter (em- F.Supp.2d at 454-55 postmarked May was 28. On June added). phases the Government May forwarded the dire, In Conrad’s voir she had been Letter to the Court and defense coun- asked whether there were other members letter, wrote, sel.... In her Conrad “I responded of her household and had [i.e., thought you Okula], Ms. Davis husband, she lived with her whom she and Mr. Hernandez [other members of being described as retired. When the Government’s trial did an out- team] court asked “What is he retired from?” standing job on behalf of Our Govern- responded, “He owns some bus role, describing ment.” jury’s (internal companies.” Id. at 450 quotation she “I stated that did feel that we omitted). marks The district court found just reached a fair and verdict based on husband, that in fact “Conrad’s Frank J. case, facts and evidence presented (‘Rosa’), criminal,” Rosa is a career id. at us.” explained She that “we did further response and that her was a “fabrica- qualms have with Mr. I David Parse. ... designed tion to conceal his criminal solely days held out two on the con- for past,” id. 455: spiracy charge I him to con- wanted for (not records, 100%, According public from only vict charge)— 1990s, through 21, 2011, the late Rosa con- Tuesday, May but on we had victed of at least nine criminal Judge’s of- asked clarification of crimes, .... Among believe, fenses other ‘willfully’ ‘knowingly’, he was I convicted of receiving property, stolen and I had to throw in the towel. Con- criminal contempt, possession of a con- rad went on for an additional para- two substance, trolled forgery, illegal graphs discussing strengths possession of a firearm.... He has been weaknesses of the Government’s case Parse, incarcerated on against numerous occasions and the effectiveness of ex- year a seven pert testimony, served sentence North- persuasive- witness ern Jersey. evidence, State Prison in New ness of certain and the credi- bility of fact witnesses. She concluded *8 Id. learned, her “I writing, letter have 2. Conrad’s Posttrial Letter to the Gov- saying a ‘federal case’ is REALLY a ernment case’, ‘federal I privileged and feel to jury’s The verdict in present case have opportunity had the to observe la was May returned on 2011. May On creme de la you creme—KUDOS to and 25, 2011, your Conrad wrote a letter team! ! !” they jail fricken crooks and F.Supp.2d (capitali- at 452 should be Daugerdas, 867 (12/20 17.) Letter) (italics ours). you know that.” Tr. She May {See zation in (“Mr. on, opine: on to May present- Letter at 2 Parse went “come this is also me, anything for the favor of the defendants.... ed a conundrum —not for but eleven.”).) they brought And the motion against the other (12/20 prosecution.... It’s ridiculous.” motion for a new trial stat- Defendants’ 17.) Tr. May prompt- ed that Letter had Conrad’s investigate to Conrad and that ed them Daugerdas, F.Supp.2d at 455-56. thereby disciplinary of her they learned 15, 2012, February .On Conrad refused suspended her a proceedings and status as present evidentiary to herself at the hear- The lawyer by searching public records. ing. only She attended after the court eventually evidentiary scheduled arrest, issued a warrant for her immediate conduct hearing respect to Conrad’s and the U.S. Marshals took her into custo- below) (see respect Part I.A.3. and with to dy brought her to court. See id. timing parties’ knowledge of her February (“Hearing” 475. At the hearing (see below). misconduct Part I.B. “Hr’g”), or Fifth Conrad invoked her privilege against Amendment self-incrimi- Evidentiary Hearings The on Con- 3. but, government, n’ation on motion of the rad’s Conduct granted immunity. use See id. at 456 evidentiary hearing was scheduled (immunity “testimony n. from use of her 15-16, February 2012. In the mean- for compelled or other information under this time, appear the court ordered Conrad to Order, directly or information or indi- person on December 2011—with the rectly testimony derived from such or oth- parties agreeing participate by tele- information, ... except prosecution er phone order for the court to instruct —in statement, perjury, giving a false rights as to her constitutional Conrad failing comply otherwise with this Or- attorney for her if she could appoint (internal omitted)). quotation der.” marks not afford one: Hearing, At the Conrad admitted that The Court directed U.S. Marshals she lied to the Court to make herself copy with a of the order to serve Conrad juror.... more “marketable” as She appear. The marshals served Conrad at that if the also testified she believed Bronx, apartment in the and on known, truth “the defense counsel were order, stated, receiving the she “I think would be wild to have me” about, I I failed to know what this is jury.... Conrad reasoned that Defen- I’m lawyer, they disclose that but nev- want “crooks” on the dants would asked, recog- I er so didn’t lie.” Conrad because themselves were “crooks.” that the photograph nized a of herself Indeed, .... Conrad admitted that she said, picture marshals carried and “that had used this to rationalize her conduct (GX my rap must be from sheet.” 3500- (Hr’g to herself at the time of voir dire. Report Marshals dated Dec. U.S. (“Q. yourself Tr. You told at the it the defen- time that was OK from at 455. At the because, anything, if perspective dants’ hearing, December somebody was married to a criminal who criminals, advised the there would tend to favor other Conrad I it can character- evidentiary hearing right? guess was no reason for an A. be that.”).) because, acknowledged in her view ized as “[Defendants are] *9 learning her true parties conscious decision to and the made the that she from prevented have identity, and sec- which would between perjure herself first hearing jury. This is serving dire. After her on the day ond voir from voir dire prospec- to the first two not a case where the relevant questions posed or am- conjured up personal vague a somehow jurors, questions tive she were thought biguous, particularly given would be attrac- Conrad’s sta- that she profile attorney.... tus as an Court’s tive .... clear, simple, were questions to Conrad opined that Hearing, Conrad At the and direct. are “career criminals.” attorneys” “most and Guerin are attor- Daugerdas .... recent, about were The events she lied neys, Parse is licensed [sic] and while significant, directly and personally af- law, an investment banker. he is practice qualifications her to serve as fected She twice underlined suspensions and juror. Her arrests difference success between practice of law were not the from herself financial if she had Daugerdas. When asked youthful result of indiscretions or errors $14,000 assets, Conrad retort- about part police or courts.... There your Much less than ed: “Correct. aware dispute is no that Conrad was client.”.... When asked whether she convictions, attorney her dis- her lawyer, financially successful as a ciplinary problems, personal and her “I don’t live an extrav- Conrad testified: injury suit at the time she answered the lifestyle Daugerdas.” like Mr. agant questions Court’s under oath. There is (footnote a con- question at also no that she made Daugerdas, 867 F.Supp.2d omitted) ours). them scious decision to hide (emphases and brackets from Court. given explain a chance to her
When all declaration that the Defendants were added). (emphases Id. at 468-69 “crooks” and that their motion for a new she could have testified she knew “ridiculous,” she claimed re- trial was nonpublic made disclosures to the court that she did not recall what she peatedly sidebar; and the at but she “ convey. also claimed she meant She my definitely said T know disclosures why did not know she made those state- not have allowed me to sit as a would psychologist.” ments “I’m not a because 237). juror.’ (quoting Hr’g Tr. Id. responses inquiries Her to other into Id. an- The court concluded Conrad’s similarly past statements were evasive. concealing swers material facts were at- (“She 456-57; id. at 457 claimed See id. to avoid tributable neither to desire em- repeatedly that she could neither under- nor to honest mistakes: barrassment questions stand the nor remember They and intentional were deliberate facts.”) pur- lies. Conrad confessed she The court concluded Conrad was “a posefully lied and omitted material infor- utterly pathological liar and untrustwor- testimony in her dire mation voir thy.” Id. at 470. make herself more “marketable” as a breathtaking. juror. yearned professional lies are In re- She re-
Conrad’s sponse unambiguous ques- demption psychic to direct and or some satisfaction: tions, intentionally provided having suspended long, numer- “And been for so she maybe I misleading guess mentally ous I would think false answers swing things now.” omitted material information. Conrad’s I’m back prevent (Hr’g Tr. It is evident that Con- lies were calculated
93 only can be under- to the Court’s Conrad’s statement responses rad’s untruthful premeditated reflecting pre-existing as bias questions were stood voir dire innocent There is no against lawyers. and deliberate.
explanation. ours). (emphases Id. at 469. Daugerdas, F.Supp.2d 867 B. or Knowledge Suspicions Defendants’ “that was actu- The court found Conrad as to Conrad’s Misconduct Id. at ally against Defendants.” biased support The memorandum of law in of 471. It also observed motion, defendants’ new-trial which had May Letter to Okula but- Conrad’s largely by attorneys, drafted been was actu- the conclusion that she tresses n. Daugerdas, F.Supp.2d see day ally biased. Written after suggested that had in- defendants had no concluded, May Letter indi- trial any kling of misconduct Conrad cates that Conrad identified posttrial government. her letter that bias expressed She Government. The district court noted that the memoran- emphasis in on “Our Government”— her dum stated that explain. (Hr’g phrase she could not 202.) through bias also bled Tr. at Her tone and content of “[t]he' [Conrad’s fight wrote that she “did Letter], when she May in sharp which were con- Parse on good fight” against acquitting image projected trast Conrad had eventually to “throw any counts but down, through (‘always the trial head towel.” Her choice words in the notes!’), taking caused defendants con- not as a shows that Conrad saw prompted investigate.” cern and them to herself fact-finder, partisan but as a “Our (Memorandum Support in De- of Law addition, -In in- Government.” Trial, fendants’ for a New dated Motion phone cluded her cell number (“Def. Br.”) July (emphasis at 9 Letter, May return address of the added) Letter).) (quoting May De- “very she testified that'she was anxious” of, they fendants also stated learned in- prosecutors to talk to the after the ver- alia, suspended ter status as a Conrad’s 194.) contrast, By Tr. at (Hr’g dict. lawyer disciplinary pro- pending and the that there was “no reason” she testified by “conducting ceedings against her lawyers. for her to talk to the defense the wake public records searches in 196.) (Hr’g Tr. at May post-verdict Conrad’s let- ” (Def. Br. at (emphas- government^] at 471 ter to the Daugerdas, 867 added).) ours). They further stated (emphasis es responses voir dire did that “Conrad’s The court Conrad’s self-serv- discredited provide not a hint of bias and she even unbiased, ing crediting claims that she was signs any men- exhibited no outward overtly instead her biased statements: (Def. instability!.]” tal emotional Br. and demeanor Conrad’s own statements 8.) they represented And ani- impartiality. belie her claim of Her inquire “had no basis to whether Conrad lawyers mus toward Defendants —like to each of the lying response only com- here —was evident not questions [during voir dire].” Court’s that most are criminals ment (Def. Br. at 32 n. but also in her attitude at the evidentia- F.Supp.2d at 458. The ry hearing. Her comment that all attor- that, infor- found absent other neys are “crooks” was a direct state- mation, implication “the clear of these against ment bias Defendants. *11 July Bruñe submitted a letter they had no idea of On statements revealing prior for the first time that identity background un- true and Conrad’s dire, had con- voir Bruñe & Richard investigation following post-verdict til their Google ducted a search the terms May of Letter.” Id. receipt the Conrad’s of “New York” “Catherine Conrad” and sought additional information The Suspension the 2010 Or- and discovered the July in a 2011 conference call with der, suspending a Catherine M. Conrad call, 'government In that said parties. (Bruñe practice law. & from any it had been facts set unaware July Richard Letter dated 2011 motion, ques- and it out in defendants’ Letter”)....) 21 (“July But because rights to chal- tioned whether defendants’ during Conrad stated voir dire that The court lenge Conrad had been waived. was a B.A. in highest level education any whether of the defendants asked Literature, English the Bruñe & Rich- previously been aware of the facts set out ard trial team concluded attorneys for in the new-trial motion. The suspended lawyer. could not be the Guerin, promptly and Field re- 2.) Letter, (July Despite 21 at the exact they sponded had had no knowl- match of Conrad’s name with the middle had' edge of of the facts that come jury initial “M.” roll and on both light about Conrad’s nondisclosures and Order, Suspension 2010 Bruñe & Rich- misrepresentations. See id. at 459. possibility ard ruled out the that Conrad responses The of Parse’s counsel were dire, during they lied voir and did not unequivocal prompted far less and discovery Suspen- raise their of the 2010 court to information from request further (July sion with the 21 Order Court. that firm: 2.) Letter, at counsel, Theresa Trzaskoma Daugerdas, (emphas- at 460 (“Trzaskoma”), Honor, responded, “Your ours). es we were not of the that have aware facts Letter, July In the Bruñe & Rich- your I think that if light come to ard also disclosed for the first time that it can appropriate, Honor deems we sub- they had conducted additional research mit a letter.”.... This Court invited following about Conrad her submission from submission Parse’s counsel May a note to the Court on make certain that no consultant had (the Note”), “Juror in the midst of clos- any information about Conrad before 2.) Letter, ing arguments. (July 21 at colloquy the verdict.... The concluded The Court shared the contents of the with a seemingly innocuous feint Juror Note with counsel at the end of only thing Parse’s counsel: “The addi- day closing arguments after conclud- offer, Honor, your tional that I would (Trial 8832.) Note, ed. Tr. In the Juror well, we can this in the let- address is— Conrad asked whether the Court would ter. I appropriate.” think it’s more legal instruct doctrine of Id. respondeat ques- superior posed (Trial liability. tion about vicarious Tr. Thereafter, Trzaskoma, Theresa Susan 8832.) party No had raised either term Bruñe, Edelstein, partners and Laurie trial, during ger- neither term was (or R”), Bruñe & LLP “B Richard & questions mane to the at issue. attorneys, “began Parse’s trial to disclose in stages investiga- prompted the full extent of their The Juror Note Trzaskoma tion background.” paralegal into Id. to direct a to conduct Conrad’s further Letter, 2-3.) early (July on Conrad the next research After reaching conclusion, morning. paralegal The conducted they did not bring any Google search and located the 2007 and underlying information to the at- Orders, Suspension which suspend- tention of the Court or the Government. ed “Catherine M. Conrad” from the Nor question did revisit be- practice (July of law in New York. 21*, May May tween 12 and when the Letter, paralegal also jury returned its verdict. *12 searched Westlaw for information on After receiving post-verdict Conrad’s Conrad,” generated “Catherine M. a re- Letter, May conducted (the port Report”), pro- “Westlaw Google another search of Conrad and Letter, (July vided it to Trzaskoma. 21 again once located Suspension the 2010 1.) 2; at Ex. Report The Westlaw —in 3.) (July Letter, time, 21 Order. at This just Bruñe & Richard’s hands after the they telephone matched a number Con- freight- start of deliberations —was provided rad in May Letter with a revealing ed with information Juror No. telephone number associated with Con- identity. l’s hidden The Westlaw Re- rad on the New York State Unified port previous lists a address Cather- for System’s attorney registration ine M. Conrad Bronxville —the same 3.) Letter, (July website. 21 at At this exact name and town listed for point, Parse’s purportedly trial team re- on the roll—and also shows that alized, time, that it was no for first suspended attorney Conrad was a with longer “inconceivable” that Conrad was a Bronx address. It lists Robert J. not who she claimed to be during voir Conrad as a member Conrad’s house- 3.) Letter, (July dire. 21 at Bruñe & hold and indicates that Conrad was in- Richard then conducted a two-week in- volved in a civil lawsuit in Bronx Su- vestigation, which unearthed Conrad’s preme Report Court. The Westlaw personal injury filings, lawsuit prop- her links the Bronx civil suit to Conrad— records, erty records, her criminal suspended attorney a—with “Confi- records, husband’s criminal and their dence Level” 99%. marriage Letter, 21 (July records. at 3- (foot-
Daugerdas, F.Supp.2d 867 at 460-61 4.) Only they then did apparently con- omitted) ours). note (emphases they clude that had the metaphysical Letter, According July 21 after certainty necessary to alert this Court receiving Report, the Westlaw “Trzasko- juror to Conrad’s misconduct and to thought ma had the initial that the law- seek a (July new trial Parse. yer juror potentially and the were one 3-4.). Letter, at same, and the but she reviewed the re- (emphas- port internally and found it confusing, ours). es inconsistent and (July not reliable.” 2.) Upon receiving July Letter, Letter, Trzaskoma then conferred this Bruñe Court scheduled another conference They and Edelstein. be- parties call lieved with the and counsel. Dur- legal Conrad’s use terms call, ing questioned Juror Note was this Court consistent with her in- discrepancies volvement Bruñe about the personal injury in a action between thought provided that it was the version of events “inconceivable” during papers July Conrad lied voir dire. motion and the 21 Letter. Thus, (“7/22Tr.”) collectively July concluded 2011 Transcript 0See attorney. she could not be the suspended explain: Bruñe endeavored to Honor, Your we when submitted Bruñe & Richard would never have dis- the brief that we did we were submit- investigation closed of their into (“[HERNAN- ting lawyers with the other three (Hr’g Conrad. Tr. 79 Trzaskoma, as demonstrated the statements govern- Ms. if the DEZ:] that three of the firms made on the inquired your ment had not about firm’s phone Friday [July you con- knowledge 15th] about certain facts that ference, knowledge Conrad, their you level had about Catherine were apparently non-existent and our situa- going ever to disclose that information tion is different and it is for that to the Court? I don’t [TRZASKOMA:] reason that Ms. Trzaskoma proposed I know can answer that.... It didn’t to file the op- said, letter which we did as occur to me to disclose it. I I As just posed responding on the call. regret say that. But I can’t it We did not know that this up wouldn’t have come subsequently.”); (“COURT: essentially posing as a per- Bruñe, different Tr. Hr’g Ms. ... *13 at point during son no the trial. your would firm in- have disclosed the your July formation firm’s letter certainly anticipated We that investigation and the into Juror No. 1 if government going was to raise the inquired the Court had not gov- waiver, issue of it prominent- features ernment failed to raise the waiver issue? ly in Supreme Court case that I think don’t we would have here, [BRUÑE]: anticipated controls and we (“OKU- Honor[.]”); your Hr’g Tr. at 357 inquired, when he he inevitably which you saying you LA: [A]re would do, going was to going lay we were you have felt ful- comfortable accurately out the facts as we have. your obligations filled all if the Court my And sense of what we trying are learning had decided this motion without to accomplish your of course —but concerning your the facts what firm Honor guide will me on this—is that knew to receiving [May Let- Mr. Okula needed the facts so that he Yes or no. ter]? [EDELSTEIN]: can argument make whatever waiver Yes.”).) proposes he to make in his brief. And mind, it is with that in I and of course Daugerdas, 867 F.Supp.2d 459-60. Court, also responded to the that I testimony addition to the from laid this out. attorneys February Parse’s at the But, certainly I sug- didn’t mean to hearing, the district court a had before it gest by our opening brief that we had series of internal firm produced by emails no information about Ms. Conrad. pursuant Bruñe & August Richard to an
We had the information that I’ve laid granting 2011 order gov- a motion out but at no point did we know that ernment discovery of documents relat- perpetrating she was a fraud on this ing to prior investigations the firm’s Court and unfortunately harming Mr. Conrad. Emails discussing information way Parse in the that she did. (“Nar- gathered by jury a consultant firm (7/22 5-6.) Tr. dello”) system reflected the B & R grading at 461-62. The jurors, for prospective sig- in which a “D” district February court stated that at the unlikely pro-defense nified somewhat to be 2012 Hearing, and a “Z” meaningful meant that no infor-
acknowledged candidly that had the mation was available. The district court Court or the inquired, Government not noted that the following emails were ex- among personnel May B & R on changed lawyer able become a going without 2011, i.e., school.)” day on which delib- to law began, day erations which was the after - Benhamou, 11:15 a.m.: at Trzasko- in- parties were informed of Conrad’s request, Trzaskoma, Kim, ma’s sends quiry respondeat supe- to the court about and Stapp excerpt of Conrad’s voir liability: rior and vicarious testimony. dire requests 7:25 a.m.: Trzaskoma 11:17 a.m.: reviewing After Conrad’s her team “send all of our [her] intelli- voir dire testimony, Trzaskoma instructs gence # including pre-voir Benhamou, Kim, and Stapp keep thought dire info we we had.” Conrad, by “Ok, dossier on noting: un- Paralegal 7:54 a.m.: David Benhamou totally less Conrad lied about high- summary e-mails Trzaskoma a of Con- education, est level of it can’t be the during rad’s answers voir dire. person samé suspended as the lawyer. Stapp, 8:02 a.m.: Vivian associate But keep let’s a little dossier on her.” Richard, & responds Bruñe to Ben- 11:22 a.m.: Benhamou asks Trzasko- regarding hamou’s email the lack of in- ma if she him wants a people “do formation their files. She observes: Westlaw,” search on responds she .and don’t have Nardello info gathered “We later, less than one minute “Sure.” initially for her. She ‘Z’ given grade p.m.: and then it looks 2:24 gave like we Benhamou sends Trzasko- ‘D’ at ma the point, probably Report some because we Westlaw with the follow- *14 thought ing lawyer. message: she was that Unfortu- “Attachéd is a Westlaw nately I anything report. picked we don’t have else Catherine M. Con- I’ll keep looking Bronxville, her. but rad who has an in that’s what address spreadsheet A which showing. testimony. little seemed to match her plaintiff pending more: ‘is a in a Westlaw thinks person- this is the same sus- injury pended Bronx, al lawyer case South Bronx Division.’ from the per- but haps confusing people it’s two or I 10:55 a.m.: Trzaskoma advises Ben- picked wrong you really one. If hamou, “What we found before voir dire this, care about I suggest you have Nar- maybe was that a suspended she was dello run I’m this down as not too sure lawyer.” what I’m doing here.” Benhamou then Kim, 11:06 a.m.: Randall an associate went on to describe some of the informa- Richard, at Bruñe & replies Stapp: to Report, tion including Westlaw (I [Trzaskoma]) thought ‘We TT found the reference to a “Robert J. Conrad.” more, something clearly which more suggested she has and alco- [sic] been/is p.m.: responds 2:32 Trzaskoma holic.” Benhamou: “I think Robert Conrad is n Kim, 11:07 a.m.: Benhamou sends her an immigration judge.” father —he is Stapp, and Trzaskoma the link to the p.m.: 2:36 Trzaskoma shares with Suspension Order. “Jesus, Benhamou: I do think that it’s Stapp 11:13 a.m.: then observes to you please her. Can track down that Kim, have We Conrad down as a ‘Do added). (Emphasis lawsuit?” Not Search.’ I don’t think she’s that (foot- F.Supp.2d at 463-64 lawyer, blatantly unless she omitted in- omitted). *15 1, for correlations to Juror No. she “did attorneys’ Parse’s any particulars about ” not focus on the ‘M’ and [middle initial] in
thought processes the wake the way help she “didn’t think of it” as a newly acquired Report, Ben- Westlaw narrow down the in information the uncertainty professed hamou’s with his 50). 24, Tr. Report. (Hr’g Westlaw and, importantly, research most Trzas- Daugerdas, F.Supp.2d at 465. 867 just epiphany koma’s hours earlier that The court noted that Trzaskoma said suspended attorney No. 1 was Juror the (“Jesus, partners briefly May she and her met with alcohol issues I do think her”). Moreover, Plaza, Foley Square just that it’s Brune’s Affi- 12 in outside provides davit no details about whether courthouse but did not discuss the new alerting Parse’s discussed information: investigation, to their nor does it Notwithstanding her Eureka e-mail a why explain they did not ask the Nardel- “Jesus, few hours I do think earlier— investigate lo firm to No. 1 imme- Juror that it’s her”—Trzaskoma claimed that diately. partners, met with her she did when she Daugerdas, F.Supp.2d 867 at 464-65. suspend- not think that Conrad and the thereafter, attorney person, ed were the same but
The district court noted that February Hearing, only “possibility” at the 2012 raised that there
99
58, 92,
“An
(Hr’g
impartial jury
every
Tr.
is one which
a connection.
might be
280.)
juror
willing
never shared the exis-
‘capable
Trzaskoma
is
decide the
con-
Report
or its
solely
tence of Westlaw
case
on the evidence before [her].’
Indeed,
with Bruñe or Edelstein.
F.Supp.2d
tents
at 470
Daugerdas,
(quoting
partners
Richard
tes-
554,
all three Bruñe &
McDonough,
Daugerdas, 867 (“where juror deliberately a conceals id. revealed, Granting that, C. The a New Trial to Dau- ‘might information if thwart of Guerin, gerdas, Field jury, any resulting her desire to sit’ on ‘cannot stand’ because such con- conviction court, discussing the The district rele the voir dire and indi- duct ‘obstructs] eases, including Mc Supreme vant Court partiality on the impermissible an cate[s] Donough Equipment, Inc. v. Green Power v. juror’s part’” (quoting United States wood, 845, 78 464 U.S. 104 S.Ct. (2d Cir.1989) Colombo, 149, 151 869 F.2d (1984) (“McDonough”), L.Ed.2d 663 (“Colombo”))). cases, appeals courts of noted potential court noted that a guarantees an accused The district Sixth Amendment when there is jury. juror discharged trial should be right impartial to a to subject prose- themselves bias, knowingly bias, implied or inferable bias. actual strong per- a case, perjury, cution for without catego- found all three bias In this it of the case. in the outcome serving sonal interest to bar Conrad from applicable ries Colombo, F.2d at 151. Conrad juror actually See jury. a is on the “Whether Rath- lie or two. fact,” did not tell a discrete Daugerdas, question is a biased er, entirely 470; and, presented herself as described in she as F.Supp.2d virtually and lied about above, person different the court found Part I.A.3. And as a of her life.... every these detail against' in biased Conrad was fact bias,” the conse- defendants, lawyer, appreciate she had to “Implied at 471. see id. Anyone lying under oath.... contrast, quences of she serve on a so anxious to a matter of law and is determined as is, and risk misrepresent who she would prospective juror regard- to a attributed so, by doing see 18 criminal prosecution partiality.... actual less of § be considered im- cannot U.S.C. imply bias in extreme situa- Courts commits who partial. Someone fraud relationship between a tions where a cannot evaluate get juror aspect and some prospective witnesses, much less sit in credibility of unlikely litigation highly is such-that it is others who are accused judgment average person could remain fraud. impartial in his deliberations under the F.Supp.2d (emphas- at 473 Daugerdas, 867
circumstances.... added). The court concluded: es where Significantly, imply courts bias The brazenness of Conrad’s deliberate imply lies in voir dire that the repeated inability to lies and her demonstrated juror concealed material facts in order added distinguish truth from falsehood spot particular a secure uncertainty the fact-find- destructive ... jury.... juror A who lies material- this ing process.... Accordingly, repeatedly response legiti- ly and impliedly that Conrad was bi- concludes background inquiries mate about her ased. introduces destructive uncertainties process.
into the
(internal quotation
marks omit-
Id. at
ted).
(internal
at 472
omitted)
ours).
quotation
(emphases
marks
may
Finally,
juror
the court noted that a
“
nature,
scope
“The
and extent of the lies
”:
discharged when bias is
‘inferred’
be
“
themselves,
juror
may,
tells
and of
dem-
‘inferred’ bias
exists
‘Inferable’
“
partiality
onstrate- an undue
or bias....
juror
‘when a
discloses a fact that be
Therefore,
are a factor
dishonest answers
sufficiently sig
speaks
partiality
a risk of
finding
implied
that can contribute to a
judge
the trial
granting
nificant to warrant
juror
impli-
Id. at
is
bias.”
473. “Where
cause,
juror for
discretion to excuse the
biased,
edly
disqualification
of that
great
mandatory
make
but not so
as to
mandatory.”
at 472.
court con-
Id.
The
presumption
(quoting
.
of bias.’
Id.
United
cluded:
(2d
Greer,
158, 171
v.
285 F.3d
States
(“Greer ”)
Cir.2002)
(quoting United States
principle
implied
applies
bias
Cir.1997)
(2d
Torres,
only
v.
128 F.3d
particular
force here. Not
did
*17
(“Torres
denied,
1065, 118
lie,
”),
totally
created a
cert.
523 U.S.
she
ficti-
(1998))).
And
get
in her drive to
tious S.Ct. “ Few, permit that a find jury. any, prospective jurors if ‘once facts are elicited bias, then, oath, just as in the willfully ing violate their of inferable would
101
bias,
juror’s
implied
posttrial proceedings).
of
state-
situation
The court con-
ability
impar-
to his or her
to be
ments as
cluded:
” Daugerdas,
tial become irrelevant.’
867
person
Such a
has no
sitting
business
Torres,
F.Supp.2d
(quoting
at 474
128 F.3d
a
in judgment of others. Accord-
Greer,
47);
at
see also
Had this Court known the
Con-
it would have exercised its discretion
subject
rad would
been
to a valid
have
and inferred that she was biased.
challenge
manifestly
for cause. She was
that,
Id. at
It
although
476.
noted
incapable
performing
the central func- Second Circuit had never found reason to
tions of a juror evaluating witness
—
overturn
a verdict on the basis of
credibility and
a fair
making
assessment
nondisclosure under McDonough, here
Solely
of the evidence.
on the basis of
exceptional
“the
circumstances—deliberate
testimony,
her false voir dire
the Court
fictitious,
engineered
lies
a
create
‘mar-
easily
could
inherently
infer
she is
juror presented by
ketable’
this case
—
to perform
unable
the crucial function of
extraordinary
warrant such
relief.” Dau-
is,
ascertaining the truth. The fact
how- gerdas,
F.Supp.2d
at 468.
ever, that there is a mountain of other
Having seen no reason to believe that
showing
only
evidence
that not
did she
Guerin,
Daugerdas,
Field, or
respec-
their
dire,
lie to this Court on voir
but that
tive
knowledge
suspicions
pathological
she is a
liar who does not
as to
Conrad’s misconduct
to the end
know the difference between truth and
trial,
see id. at
462 n.
presence
lie. The
ju-
such
tainted
Guerin,
court concluded that Daugerdas,
ror,
appreciate
meaning
who cannot
and Field were entitled to a new trial.
simply
an oath is
intolerable.
D. The Denial
a New Trial
Daugerdas,
F.Supp.2d at 475
Parse
(empha-
added).
sis
contrast,
the district court concluded
case,
Conrad’s actions in this
well
as
right
that Parse had
his
waived
to a new
as in other lawsuits in which she has
trial. Despite
argument
that Parse
participated,
shocking
“evinces a
disre-
knowledge
himself had had no
of Conrad’s
judicial
gard
system[.]”
for the
2007 falsehoods, the court stated that it “bears
Order,
Suspension
As Johnson and neglect cases Trzaskoma would to tie off such clear, litigants make and their counsel a glaring loose end. must act diligence with reasonable based Acting on Brune’s instruction to on information about misconduct it,” “leave Trzaskoma directed Benham- in their possession, they will be ou to “stand down” on his efforts to deemed to have waived their to an right obtain records of the civil lawsuit refer- impartial jury based on the challenged Report. enced in the (Hr’g Westlaw Tr.
juror misconduct. she, Bruñe, Edelstein added that 480; see also specifically and Trzaskoma discussed id. at (discussing 476-80 additional cases bring whether should the issue to circuits). from other attention, the Court’s and decided case, present the district court against thought it because she it was found that knew that “inconceivable” that Conrad had lied. *19 354-55.) another that counsel for Parse be- This was sures show (Hr’g Tr. misjudgment. lieved that Juror No. 1 was the tragic sus- pended attorney New York named Schoeman, counsel, Paul Brubaker’s First, Catherine M. Conrad. Trzasko- receipt after the that some time testified ma, partner the Bruñe & Richard likely who May on and of the Juror Note research, thereafter, oversaw and coordinated Trzaskoma told Monday knowledge attorney through demonstrated suspended him that there was a Conrad, simple, language but declarative of her named Catherine “Jesus, May e-mail I attorneys Parse’s had concluded Ju- 2011: do person. (Hr’g ror 1 was not that think that it’s her.” Trzaskoma based No. 362-65.) not men- body Tr. Trzaskoma did her declaration on a considerable (1) infor- Report or other Appellate tion Westlaw of evidence: Division’s mation Bruñe & Richard unearthed. 2010 Suspension suspending Order at- Berke, Barry attorney torney another for Bru- “Catherine M. Conrad” for alco- (2) baker, issues; a conversation testified to similar hol-related and the Westlaw 368-69.) Tr. (Hr’g Report describing with Bruñe. a M. “Catherine Con- (i) Bronxville, rad” in who resided dire, sum, prior In to the start of voir (ii) among forty-one other (1) places; attorneys knew that Juror Parse’s (iii) years age; participated in a law- Bronxville, plaintiff 1 lived in was a No. Ltd., involving suit Foods “Saranta Uni- lawsuit, injury in a and pending personal Coffee,” ty pending Supreme Bronx immigration a who was an father (iv) Court; was associated with a Robert (2) officer; a with the identi- and woman Conrad, J. Trzaskoma identified whom cal name of “Catherine M. Conrad” was immigration judge” email as “an an[ ] attorney suspended a New York (v) 46-47); (Hr’g Tr. and was a sus- dependency. alcohol pended attorney. New York This infor- began, deliberations Before mation —which Trzaskoma reviewed (1) knew that Juror sustained back-and-forth with her col- No. 1 had submitted a note to leagues amply at Bruñe & referencing legal concepts several not Richard — supports her vivid declaration that Ju- (2) trial; the sus- during mentioned suspended attorney Cath- ror No. was attorney by pended New York the name erine M. Conrad. a Bronx- of Catherine M. Conrad used address, village giv- ville the same small Daugerdas, F.Supp.2d (emphas- at 480 roll, en for Juror No. on the ours). es and brackets (3) living in the same household was lawyers Bruñe & Richard ac- Other Conrad, whom Trzaskoma Robert J. knowledged that Trzaskoma had drawn father, the im- believed to be Conrad’s strong link between the Catherine M. migration And Trzaskoma had judge. Suspen- described in the 2010 concluded that the Catherine M. Conrad and the M. Conrad sion Order Catherine Report in the Westlaw was the same particular, seated as Juror No. 1. 1. person as Juror No. attorney Randy Kim Bruñe & Richard (emphas- at 466 May noted in a 12 e-mail that Trzasko- ours). es previously ma had reviewed data Thus, the court concluded that “clearly suggested” that Conrad was alcoholic, Trzaskoma’s Hearing which reflects the facts adduced Suspen- the 2010 pre-voir serial disclo- dire review of from Bruñe & Richard’s at Trzaskoma’s be- Bruñe Aff. Ex. J at 86: ered reviewed sion Order. CSee hest. Randy Kim to 2011 E-mail from May *20 (I (“We TT thought Similarly, Brief, which Stapp
Vivian Defendants’ Trzaskoma]) something Bruñe found Trzaskoma [Theresa drafted edited, signifi- two more; clearly suggested she Edelstein contained more which alcoholic.”).) pertaining misstatements And cant and [sic] has been/is factual First, knowledge about Conrad. e-mail, to their Trzasko- May 12 yet in another description in its of how the Defendants acknowledged pre-voir ma herself identity, true Defen- learned Conrad’s between she had drawn dire connection they began that suggests dants’ Brief person depicted and the in Conrad collect and review documents and infor- (See Bruñe Suspension Order. 2010 pertaining mation to Conrad’s back- Ex. at 86: E-mail from Trzasko- Aff. J ground only receiving after Conrad’s David Benhamou paralegal ma to (See (“The May Def. Br. at 9 Letter. (“What dire was we found before voir May tone and content of Let- [Conrad’s maybe suspended that she was a law- ter], ... caused defendants concern and yer.”).) investigate^]”).) prompted them Sec- (emphas- 480 ond, represented they “had n Defendants ours). es inquire no basis to whether Conrad was' that inconsisten- The court also stated lying response to each the Court’s positions made and representations cies (Def. [during voir Br. questions dire].” attorneys evinced a lack by taken Parse’s 13.) at 32 n. But those statements are at suggested they actually of candor that emerged odds with the facts that after suspended that was the known inquired this and the Governmént attorney: minimum, discovery. At a pursued attorneys in The actions of Parse’s Trzaskoma had reviewed the Sus- trial connection with the new motion pension prior Order to voir dire and that support further the conclusion possessed indicating thus information subject knew that Conrad was the that a M. Conrad” was a “Catherine First, Suspension Order. Trzasko- suspended attorney. That alone was a July ma’s statement to the Court on inquire basis to whether Conrad was were 2011 that “we not aware lying during voir dire. light” come to was not that have addition, resisted
facts entirely candid. One of the facts that the Court’s and the at- Government’s purportedly light” “came to was the tempt to discover the full extent of their Order, Suspension which Defen- In resisting research into Conrad. dants identified as one basis for their discovery, legal argu- Bruñe raised a attorneys pos- new trial motion. Parse’s directly contradicted her ear- ment dire, and, prior sessed those to voir lier Dur- representations Court. facts indeed, Trzaskoma admitted that she conference, ing August Suspension had reviewed the 2010 Or- argued against Bruñe well-settled law der, and discussed it with Bruñe and split that “there is a the federal cir- consultant, their to Conrad’s whether the fundamental cuits about more, individual voir dire. is can right impartial What to an ever be n Trzaskoma’s waived,” purported ignorance cannot and asked the Court to address legal allowing be reconciled with the additional evi- issue before dis- (8/8 11.) Yet, in covery. attempting dence that Tr. Parse’s defense team uncov- explain why Bruñe & 43, 59, 62.) Richard omitted (Hr’g Tr. Trzaskoma’s their pre-verdict investigation extensive knowledge of identity Conrad’s was far Brief, of Conrad from Defendants’ deeper than mere “possibility,” as Bruñe that “we stated antici- certainly shown her review of the 2007 and pated the government was going to Suspension Orders and the West- waiver, raise the issue of it features Report. law That report, as noted prominently in the Supreme Court case above, contained a number of connec- (7/15 that controls Tr. here[.]” Such tions to Juror No. including a Bronx- cognitive dissonance unsettling. It address, ville age, Conrad’s the pen- *21 also belies Brune’s characterization of dency a lawsuit in Supreme Bronx of their not decision to disclose pre- their Court, and a person to a reference investigation verdict in their This brief. recognized Trzaskoma as Conrad’s fa- to declines credit Brune’s dismis- ther. sive claims that her law firm “kind of Moreover, Benhamou presented missed it” and that she imagined “never Trzaskoma with the information from ... going [it] was to assume the just Report Westlaw four minutes prominence debate level that it has here. declared, “Jesus, before she I do think I missed the issue and I regret really immediate, that it’s her.” Her unvar- 292-93.) that.” (Hr’g Tr. nished reaction tantamount to an Only after this Court directed Parse’s excited usually utterance. While em- to attorneys comply with the Govern- ployed exception as an hearsay discovery ment’s requests and after this rule, the well-recognized reliability of Court advised counsel that it would con- excited applies utterances equally in this duct an in camera review of their as- Tocco, context. See United States v. of attorney sertions work product (2d Cir.1998) (“The F.3d ratio- privilege, did Bruñe & produce Richard nale hearsay exception this is that relating documents to their research of the excitement of the event limits the Conrad, including Trzaskoma’s May 12 declarant’s capacity to fabricate a state- “Jesus” import e-mail. The Parse’s of thereby ment and offers guarantee some attorneys’ conduct is they attempt- of its reliability.”). Trzaskoma made ed to an inquiry into their foreclose statement reaction to explo- pre-verdict knowledge Conrad and sive information contained the West- ward any anticipated “due dili- off law Report and without the benefit of gence” argument by the Government. time to deliberate and reflect on the Ultimately, post-hoc their explanations consequences Thus, of her statement. suggest an acute concern about the im- her spontaneous declaration is a reli- plications to legal their client’s position able indication her state mind if the Court were to learn the true precisely when the sending Court was facts. instructions, exhibits, its a list of and a Finally, atteippt during Trzaskoma’s redacted copy' indictment into the the Hearing to distance herself from the Conrad, room that so and her fel- language May of her own e-mail was jurors, low could begin their delibera- unpersuasive. There is simply no con- tions. vincing way to morph her vivid affirma- “Jesus, tion of sum, I do think that it’s fully support belief— facts Trzaskoma, her”—into “possibility,” Parse, statement of on behalf of possibility,” “remote or “potentiality].” during aware trial that Juror No. was ridding the by trial salvage the to attorney Cath- New York suspended sim- Stated influences.... prejudicial knowledge, pos- That M. Conrad. erine waiver, Parse’s acted as avoid attorney ply, who Parse’s sessed with reasonable Richard’s to act required in Bruñe & were person point about they learned Parse’s diligence waives both process, jury research after voir prior to Order Suspension juror misconduct. the 2010 claim of the West- they obtained dire and (foot- F.Supp.2d at 480-82 after Daugerdas, 867 day May 2011—the Report law ours). omitted) (emphases note they But did started. jury deliberations even alternatively, that court found on suffi- attorneys were not. knowledge actual have B R not if & did have raised they should cient notice attorney, suspended that Conrad was at voir the Court concerns their exercised known they would have beginning again and then dire diligence: due least, very At jury deliberations. conclude were this Court Even if steps additional have taken they should know that did not Parse’s counsel acquire information sufficient suspended New 1 was the No. Juror *22 Their fail- decision. an make informed Conrad, M. attorney Catherine York a waiver. so constitutes to do ure ap- would still waiver this Court find (internal marks quotation Id. 482-83 overwhelm- the propriate because facts ours). omitted) (emphases lack glaring a paint picture ingly of of attor- diligence by Parse’s reasonable attorneys’ ex- rejected Parse’s The court neys. on Conrad’s they had relied planation matter, conten- Parse’s
As
initial
rejecting
possibili-
in
the
answers
voir dire
diligence
a lack of reasonable
lawyer:
tion that
suspended
the
ty that Conrad
wrong
is
as
a waiver
cannot constitute
they rea-
attorneys argue
Parse’s
law,
comport
does
not
matter
voir dire an-
sonably relied on Conrad’s
fairly function-
of a
principles
with basic
unpersuasive.
swers,
is
but this excuse
doc-
The waiver
ing judicial process.
First,
Suspension Order
the 2010
with
the Court
to ensure that
trine exists
dire, they
during voir
could
hand
in
time to make
in
receives
a direct
pose
information
asked the Court
have
remedy potential prejudices,
inquiries,
1 about whether
No.
question to Juror
time, ex-
concerned the
and save all
M. Conrad”
was the “Catherine
she
ref-
a retrial.
pense, and
Indeed,
efforts of
Bruñe
the order.
erenced
added).
(emphases
person
at 482
acknowledged
Id.
that if
per-
continued:
the same
opinion
suspension
were
“very
would be
No.
son as Juror
solely on
predicated
A
standard
waiver
“it was cer-
information”
certainty,
significant
knowledge, to a 100%
actual
Judge
significant
to be
tainly going
in retrials where
would result
defense
person.”
it was the same
Pauley if
substantial
attorneys had
information
265).
attorneys
Parse’s
But
(Hr’g Tr.
put them on
juror
misconduct
inquire
not to ask
the Court should
chose
reasonable notice that
Suspension
1 about the
No.
un-
Juror
inquiry
and additional
be notified
face of
flies
That decision
Order.
inconsis-
position
dertaken. Parse’s
confer-
pretrial
argument at
Brune’s
imperative
tent with the institutional
extensive
the need
about
given
trial court is
ence
ensuring that
the harm
“What’s
attempt
questionnaire:
every
opportunity
available
(Dec.
in asking
questions?”
additional
were,
There
course,
some simple
Transcript
That Parse’s attor-
steps that
easily
could
have
light
shed
neys
to heed their own advice
on whether Juror No. 1 was the sus
failed
when it
speaks
mattered most
volumes.
pended attorney.
Parse’s attorneys
could have compared Conrad’s name on
Second,
May
attorneys
Parse’s
panel
selection
report with the
to exercise
diligence
reasonable
failed
name listed in the Suspension Orders,
by deciding
not to do
additional
which showed that Juror
1No.
shared
research or investigation
deciding
the same middle initial as
suspended
notify
not to
the Court when
faced
attorney. They could have visited the
mounting evidence that Juror No. 1 was
New York State Bar’s website and locat
a suspended New
attorney.
York
Bruñe
ed Catherine Conrad’s listing, which
that,
time,
claims
at that point in
she did
would have shown that she had the same
not know
way
one
other whether
address as one of the addresses listed in
Juror No. 1 was the suspended attorney.
Report.
Westlaw
They could have
283-84). But,
Tr.
(Hr’g
minimum,
at a
Government,
consulted with the
whom
possessed information
Bruñe
acknowledged
“pretty good
that could not be reconciled without ad-
investigators and ...
access to more
ditional investigation. Trzaskoma rec-
information than I
(Hr’g Tr.
do[.]”
320-
ognized this on May 12 when she ex-
21.) They could have requested that
claimed, “Jesus, I do think that
it’s
Nardello,
their private
investigator,
her, and she reasonably concluded that
make further
inquiry.
See United
investigation
additional
was needed.
(2d
States v. Rodriguez,
109 Evidence is not new if the defen (1968); L.Ed.2d 987 United States v. trial, see, dant of it prior Diaz-Albertini, knew to e.g., 654, (10th 772 F.2d 656 Cir.1985) 128, (where v. Mayo, United States 14 F.3d 132 failed to disclose (2d Cir.1994) ”), (“Mayo and is not consid his close ties with law enforcement officials “newly if, ered discovered” and a with the exer new trial granted was to the defen diligence, cise of reasonable dant it wife who could have had no knowledge of that nondisclosure, trial, been during discovered before or affirming the denial of a see, e.g., new trial husband, United States v. Siddiqi, 959 F.2d defendant whose (2d Cir.1992) 1167, (the attorney 1173 testified that (“Siddiqi”) when he was in formed of the defendant must a showing prior trial, “make[] nondisclosure “he ‘new’, i.e., decided at is in fact time” evidence it that he th[at] could would discovered, later raise the not been issue “should have we have exercising due omitted)), (internal conviction” quotation diligence, trial”); before or during marks Spenc denied, er, rt. 822, 484 U.S. 108 F.3d 119. A defendant is not S.Ct. ce 82, 98 (1987); (a L.Ed.2d 45 entitled to id. at 657 remain having silent while “litigant cannot transform a knowledge of tactical deci facts of an impropriety that sion to withhold the information from the would him to entitle relief and to invoke court’s attention a trump into card to be impropriety only later if the result of played only if it expedient”); becomes the proceeding unsatisfactory to him. United States v. Bolinger, 436, 837 F.2d States, generally See Puckett v. United (11th Cir.) (affirming denial of a 129, new 134, 1423, U.S. 129 S.Ct. 173 L.Ed.2d trial where defendant’s attorney (2009) (“If learned of a litigant believes that an juror misconduct during “gam trial and (to detriment) error has occurred his dur ble[d] rather than inform[ing] ing judicial a federal proceeding, he must the court of problem in time to allow object preserve in order to the issue.... if determine corrective action contemporaneous-objection [T]he pre rule possible prior verdict”), cert. de vents litigant from ‘sandbagging’ the nied, 486 U.S. 108 S.Ct. remaining silent objection his about court— (1988); L.Ed.2d 200 United States v. Mor belatedly raising the only error if the ris, (1st Cir.1992) (“We 977 F.2d (other case does not conclude in his favor.” will not allow to stand quietly counsel omitted)). quotation internal marks gamble verdict, on a only favorable Thus, a motion for a new trial otherwise.”), complain when it turns out to be based aon claim of newly discovered evi denied, t. 507 U.S. cer dence generally granted should not be un 1588, 123 (1993). S.Ct. L.Ed.2d 155 less, alia, inter the evidence was in fact sum, if the defendant knew newly trial, discovered after and facts are *25 to the end of trial that prospective juror a alleged from which the court can infer the given false voir responses dire and did of diligence exercise due part on the not then reveal disqualifying the false movant to obtain the evidence court; hoods or nondisclosures to the the See, end of trial. e.g., the v. United States justice,” 33(a), “interest of Fed.R.Crim.P. (2d Ragland, 471, Cir.1967) 375 F.2d 475 generally will not a require new trial. (“To give an accused a second trial each doubts, time he after an unfavorable ver addition, In even if the evidence dict, objectivity jurors, the of would seri newly meaning discovered within the ously impede processes justice.”), the of 33(b), must, of Rule that evidence in order denied, 925, cert. 390 860, U.S. trial, “material,” 88 S.Ct. 19 warrant a new to be not
110
Greer,
(quoting
at 170
McDon-
285 F.3d
Per
States v.
United
cumulative.
merely
(other
554,
845
104 S.Ct.
Cir.) (“Persico ”),
464 U.S. at
(2d
ough,
85,
sico,
109
F.3d
645
omitted)).
—
We
marks
quotation
593,
internal
U.S.-,
denied,
132 S.Ct.
cert.
a
McDonough
out
set
noted Greer
(2011);
v.
States
United
L.Ed.2d 435
181
a
grant
test” for whether
Cir.2007) “two-part
(2d
83,
Owen,
87-88
F.3d
500
juror
trial based on
“for a new
motion
1237,
denied,
128
(“Owen”),
552 U.S.
cert.
First,
misstatements....
or
nondisclosure
(2008); see,
1459,
287
170 L.Ed.2d
S.Ct.
juror failed to
that ‘a
must show
party
the
Diaz,
998,
922 F.2d
v.
States
e.g., United
question on
honestly a material
answer
denied,
(2d Cir.1990),
500 U.S.
cert.
1006
556,
at
[McDonough, 464 U.S.
dire.’
voir
L.Ed.2d 119
114
925, 111 S.Ct.
Second,
must
party
845.]
104 S.Ct.
Parker, 903 F.2d
(1991);
v.
States
United
have
response would
that ‘a correct
show
Cir.)
(2d
(“Parker”), cert. de
91, 102-03
challenge for
for a
a
basis
provided
valid
112
nied,
111 S.Ct.
498 U.S.
Greer,
at 170.
F.3d
Id.”
285
cause.’
(1990).
the most common
L.Ed.2d 158
33(b) situation, which the new evi
of a
reviews the denial
Rule
This Court
the defen
concerns the conduct
a new trial for abuse
dence
33 motion for
Rule
See,
which he is
285
at
e.g.,
crime with
Greer
F.3d
or the
discretion.
dant
109; Owen,
Persico,
170;
the new-
at
500
grant
is
645 F.3d
charged, the court
not
132;
87-88;
14
at
Mayo,
F.3d
evidence would like F.3d at
unless the
trial motion
Parker,
Pérsico,
1173;
See,
at
959 F.2d
e.g.,
Siddiqi,
acquittal.
in an
ly result
its
Owen,
87-88;
A court abuses
discretion
109;
F.2d at 103.
lied for purpose securing a seat on mission apparently power “so We have difficulty, considerable howev- —a ful as to cause the er, commit a with the district court’s denial of serious crime”—it impermis- “reflects] Parse’s Rule 33 motion for a new trial on
112
re-
ordinarily an intentional
A
is
waiver
his claim
Parse “waived
that
premise
the
a
of
or abandonment
linquishment
alleged
on Conrad’s
trial based
for a new
The determi-
right
privilege.
or
known
because,
according
misconduct”
has
an
there
been
nation
whether
of
knew—or with
court,
attorneys
“Parse’s
to counsel
right
of
intelligent waiver
known—
diligence would have
of
modicum
case,
the
upon
in each
depend,
must
testimony was false
dire
that
voir
Conrad’s
sur-
circumstances
facts and
particular
867
misleading.”
that case....
rounding
Preliminarily, we note
at 476.
district
464,
out
that
the
points
Zerbst,
58
that Parse
304 U.S.
Johnson v.
had
added).
that he
finding
himself
A
is
right
no
(emphasis
court made
1019
S.Ct.
only
about Conrad’s
knowledge whatever
unless one not
right”
a “known
not
dire, and he
but
legal principle,
in voir
of
abstract
misrepresentations
aware
the
princi
in rul-
that
facts that make
district court erred
also
the
that the
knows
argues
See,
Brady v.
e.g.,
him.
impar-
applicable
right
ple
to trial before
ing
his
that
742, 748,
States,
90 S.Ct.
397 U.S.
by
United
waivable
his
tial
was
(1970) (“Waivers of
1463,
747
25 L.Ed.2d
acquies-
or
knowledge
personal
without his
be vol
43-46).
rights
only
not
must
constitutional
(see
appeal
brief on
Parse
cence
knowing, intelligent
must be
untary but
However,
reach this issue
need not
we
with sufficient awareness
acts done
Hill,
York
here,
New
v.
generally
see
likely
conse
circumstances
relevant
659,
110, 114,
L.Ed.2d
120 S.Ct.
U.S.
added)). Waiver is
(emphasis
quences.”
(“[f]or
(2000)
certain fundamental
“[tjhere
Indeed,
ais
presumed.
not
be
personally
must
the defendant
rights,
of consti
against
waiver
presumption
For other
waiver....
make
informed
”
Janis,
v.
rights....
Brookhart
tutional
by
however,
may be effected
waiver
rights,
1245,16
4,
L.Ed.2d 314
1, 86 S.Ct.
384 U.S.
counsel”),
we conclude
because
action of
see,
(1966)
added)';
e.g., Glasser
(emphasis
principal
erred in its
that
district court
70-71,
States,
60,
315 U.S.
v. United
attorneys.
to Parse’s
rulings
regard
(1942) (“To pre
457,
donment of a
right.”
known
added).
If
es
this
intended
was
as a find-
U.S.
1770 (quoting
S.Ct.
ing that Parse’s attorneys had sufficient
Zerbst,
Johnson
v.
304 U.S. at
knowledge that Conrad was the suspended
ours)).
(emphasis
S.Ct. 1019
“Deviation
attorney
trial,
even
to
it has several
from a legal rule is ‘error’ unless the rule
flaws.
Olano,
has
waived.”
been
a. The District Findings Court’s to voir dire did not contain sufficient detail Knowledge permit the attorneys determine that The district court appears to have found Juror No. 1 suspended was the New York Parse’s knowledge attorney. suf- Although they might have ficient to waive right to an unbi- the suspended attorney’s learned street ased at at least stages: two critical telephone address and through number first, prior dire, to the start of the voir the New York Sys- State Unified Court second, prior to the end trial. The attorney website, registration tem’s court found that jury roll only stated the borough or munic- (cid:127) breathtaking,” as lived; [we]re “lies Conrad’s potential each in which
ipality unambigu- to direct response “[i]n street ad- not disclose did jury roll intentionally pro- questions, she Further, ous telephone numbers. dresses *29 misleading false and numerous vided law- suspended for the address shown the informa- material and omitted answers attorney the M. Conrad on yer Catherine 468; tion,” that id. at Bronx, not in the website registration (cid:127) “[ajfter posed hearing questions the Bronxville. jurors, she prospective two the first found, the Third, district court as the that she personal profile a conjured up pending a juror Conrad had that the facts at attractive,” id. be thought would immi- father was an that her and lawsuit 456; that in by Conrad were revealed officer gration (cid:127) engi- [were] lies “deliberate Conrad’s questions general court’s response fictitious, ‘market- create a neered voir dire. See 468; that juror,” id. at able’ tran- (citing dire at 450 voir F.Supp.2d (cid:127) lie or not tell a discrete did “Conrad 85). seen no evi- We have at script instead, virtually two”; she “lied about attorneys that Parse’s in the record dence 473; life,” at every of her id. detail of voir “prior facts to the start those knew that at 466. dire,” F.Supp.2d Daugerdas, 867 (cid:127) pre- lies were calculated “Conrad’s Fourth, attorneys had although the from parties the the and vent there was prior to voir dire that learned identity,” id. at 468- her true learning M. attorney named Catherine suspended 69; and that Conrad, voir dire given the answers in (cid:127) jury” on the Con- get “in drive to her juror under oath Conrad potential perso- totally fictitious rad “created juror Conrad’s inconsistent with were na,” at id. 473. having been attorney or having been supported amply and the the record Given alia, stated, that inter suspended. Conrad comprehensively lied findings Conrad home, that not work outside the she did as an “presented in voir herself dire wife, and that her stay-at-home she was id., any finding person,” entirely different a B.A. And degree was highest educational to trial attorneys knew that Parse’s ever been denied that she had Conrad person as No. 1 was the same that Juror licens- investigation by in state involved clear- suspended attorney New York ing authorities. ly erroneous. court, consider The district after that be- on further information Based her misrepresentations as to ing Conrad’s attorneys subse- came available to Parse’s education, residence, profession, her her court also found quently, the district as her false suspension, her as well the' sus- attorneys knew Conrad was those as to responses questions negative jury’s just prior to the lawyer pended family of her member whether she That in- of deliberations. commencement crime, found that convicted of a had been (1) that, day before formation was a note to (cid:127) sent began, Conrad “startling dishon- deliberations engaged Conrad would asking whether at esty,” Daugerdas, 867 respondeat theories instructed on and be perjury,” “serial id. liability and vicarious superior extensively during voir dire and “lied —terms trial; during not been raised that had about important concealed information (2) that, peculiar as a result 451; background,” id. inquiry, immediately lawyer Bronxville, ed “resided among some investigation conducted additional other places,” Daugerdas, 867 F.Supp.2d (or Report and obtained the Westlaw “Re- added). at 480 (emphasis listing port”) on Catherine M. Conrad the sus- four different addresses for suspended pended lawyer. Although the Parse at- lawyer Catherine M. though Conrad —even torneys immediately conducted additional one inwas Bronxville—did not reveal that investigation persons into named Cather- juror suspended was the law- Conrad, they ine said did not think yer, given that Conrad stated on voir dire “ inquiry by Conrad indicated that that she had ‘lived at current ad- [her] ” “ attorney she was an concepts because the dress’ life,’ Bronxville ‘[her] whole *30 she mentioned were not relevant to crimi- id. at 450 (quoting voir dire transcript at law; nal thought might she have 203). exposed concepts been to those aas result Nor did the Report Westlaw state that pending personal injury of the action she Robert J. Conrad was the father of Cath- had mentioned in respect voir dire. With erine M. Rather, Conrad attorney. the it however, to the Report, Westlaw court the described “Robert J. Conrad” “Spouse.” as found that attorneys the principal- learned And even if that Robert J. Conrad was an (a) ly suspended lawyer that the Cather- immigration judge, the Report’s Westlaw address, ine M. Conrad “used Bronxville indication that he was the husband of the the same small village given for Juror No. suspended lawyer Catherine M. Conrad (b) roll,” 1 on jury the “that living in would have meant that that Catherine M. the same household was a Robert J. Con- Conrad was not juror. Conrad the rad,” The F.Supp.2d at 466. husband juror, of Conrad the according court stated that “Trzaskoma had dire, her retired; statements on voir was concluded that the Catherine M. Conrad “ and he had retired Report owning the Westlaw from per- was the same ‘bus ” companies,’ Daugerdas, son as (emphases Juror No. 1.” Id. 867 F.Supp.2d add- at ed). 203). 450 (quoting voir dire transcript at We cannot agree that these or other addition, In Report the Westlaw said aspects of Report the Westlaw the —about that the head of the household in which Catherine M. Report Conrad whom the Robert J. suspended Conrad and the law- stated it was “99%” sure an attorney was yer Catherine M. Conrad lived was “Ms. whose practice license to was “SUSPEND- dire, Edwina C. Conrad.” In voir Conrad ED ... CURRENTLY” —furnished suffi- was asked with whom she gave lived. She cient carry government’s evidence to the no father, indication that she lived with her burden of proving that Parse’s or that she lived in a household that in- juror knew that the Conrad was that law- anyone cluded other than her husband. yer. Although Report the listed Bronx- Finally, in concluding ville street that address for the Parse’s suspended law- attor- (which neys yer knew based of course could Report not be verified Westlaw that by comparison because, Conrad and suspended lawyer roll the as above, indicated the Catherine M. Conrad provided per- roll no were the same son, addresses), street the Report also district court also showed referred to the two street addresses for the fact that suspended Report said that Catherine lawyer in the Bronx and one for in M. “participated her Conrad in a lawsuit in- Brooklyn; Ltd., district court itself volving noted ‘Saranta Unity Foods Cof- ” Report fee,’ that the showed that the suspend- which “pending was in Bronx Su- 12 B added), May & that (emphasis Daugerdas, 867 Court.”
preme expressed “Trzaskoma e-mails R internal dire, had stated Conrad In voir 480. attorney suspended that her in a pending plaintiff she was the belief No. 1 and Juror M. Conrad Catherine But Westlaw that court. lawsuit (empha- at 463 person,” id. weré the same Ltd., mentioning “Saranta Foods Report for Parse added), “that counsel sis as a company identified Unity Coffee” suspend- was the No. 1 that Juror believed “Creditor”; and- none judgment named Catherine attorney York ed New identified Cath- Report by the listed cases added). Conrad,” (emphasis id. M. plaintiff. aas M. Conrad erine ultimately concluded that But the court stated sum, although “Trzaskoma, partner Richard the Bruñe & Juror “suspicion that attorneys’ re- coordinated who oversaw represented she person 1 was not the No. ” knowledge that search, her demonstrated .... leav- during voir dire to be herself lawyer suspended was that Conrad evidence tangible into ened language simple, declarative “through liar,” (emphasis id. at 484 a monstrous ‘Jesus, I do May 2011: e-mail until not occur added), leavening did added). her,’ (emphasis that it’s id. think *31 gov- May Letter sent Conrad by Trzaskoma that reaction Repeating verdicts were returned. after the ernment Report, see in the Westlaw information first letter that postverdict was that It 465, 467, 465, at F.Supp.2d Daugerdas, 867 (claimed) juror Conrad’s the disclosed 483, 482, 482, court con- 480, the district one of the (against which address street that declaration that cluded that “vivid be Report could in the Westlaw addresses attorney Cath- suspended 1 was Juror No. matched) telephone number and her Conrad,” (emphasis id. erine M. number telephone the which (against added), proof that Parse’s at- was reliable lawyer the Catherine suspended shown id., “knew,” the Conrad was sus- torneys reg- attorney York on the New Conrad M. was “tantamount lawyer because it pended matched). And be website could istration utterance,” which id. excited pur- monstrosity her deliberate the of her state of was reliable indication “a light in her came to voir dire deceit poseful mind,” have difficulties We several id. hearings in the the statements Trzaskoma excit- with this reliance As Conrad thereafter. conducted “knew” Con- to show she ed utterance that of her virtually every detail about “lied lawyer. suspended rad was the of West- life,” none id. at almost context, First, from its it was divorced by cited dis- Report information law above; “Jesus, I do in Part I.B. quoted lawyer suspended court about trict immediately fol- it’s her” was think that pro- Conrad had the information matched exploration: by request for further lowed The during voir dire. under oath vided that lawsuit?” track down you please “Can support did not Report in that information (internal at 464 F.Supp.2d Daugerdas, 867 that attorneys knew that Parse’s finding omitted). Although a marks re- quotation as person same juror was the Conrad does not additional information quest for law- suspended M. Conrad Catherine the fact that knowledge, necessarily belie yer. grapple with the continued to Trzaskoma and attorney variously that that Conrad possibility noted The district court person the same dis- were J. Conrad Conrad Robert “Trzaskoma believed —and with her general possibility in father, cussed that immigration “to be Conrad’s the conclusion coming to before partners at 466 Daugerdas, 867 judge,” they were not person— the same spouse. profile different of suspended indicates that “I Trzaskoma’s think” attorney utter- Conrad profile and the of the exhibited ance short of something prospective actual juror who lied comprehen- so knowledge. sively to, alia, as residence, inter level of education, occupation, and criminal or in- Second, . importantly, more Trzasko- vestigatory charges, thereby presenting say ma did not she knew Conrad was the as, herself in the words of the district lawyer. suspended The rationale for con- court, “entirely different person,” id. at sidering an “excited utterance” to be suffi- 473, were simply too disparate to support ciently rehable to be admissible in evi- the imputation to Parse’s attorneys of truth, dence for its id. at does not knowledge that those were profiles justify attributing to the utterance a fact same person. is different from what was uttered. Belief, surmise, opinion are not Finally, finding court’s that Trzasko- same knowledge. as Neither in context ma’s “I do think that it’s her” excited nor on “Jesus, its face did I Trzaskoma’s utterance meant that Trzaskoma “knew” do think that it’s her” exclamation (empha- was the suspended attorney is also added) sis express knowledge. undercut the court’s finding that Trzas- koma “never shared the existence of the
Third, the court’s statement that “Trzas- Report Westlaw or its quotes contents” — koma’s knowledge of identity Conrad’s from which had prompted utterance— deeper far than a ‘possibility,’ mere as “with [her law partners] Bruñe or Edel- by her shown review of the 2007 and 2010 stein” in “Foley Square their conversation” Suspension Orders and the Westlaw Re- day, Daugerdas, 867 F.Supp.2d at port,” Daugerdas, 867 F.Supp.2d at *32 465. All partners three testified that they supported not by those documents. The thought had it inconceivable that an attor- suspension orders only themselves showed ney would so extensively lie during voir attorney that the Catherine M. Conrad dire order to hide identity, her true and disciplined, been not that she was the they that thought Conrad’s note to the person described in No. Juror l’s voir dire court on previous day the inquiring about responses. Further, the Report Westlaw possible instruction legal on principles awas document that Trzaskoma testified that were irrelevant to a criminal case yet she had not read when she said “I do indicated that Juror No. 1 was not an her”; that think it’s she only had read the attorney. Although the district court stat- paralegal’s email quoting parts of the re- ed that attorneys the should have exer- port suggested that also differences be- cised a “modicum of diligence” pursue suspended the attorney tween and Juror matter, the id. at and termed their Moreover, No. 1. even had she read the “tragic failure a misjudgment,” id. at itself, report its contents could not justify the record indicates that Trzaskoma’s “I the court’s attribution her of actual think” utterance did knowledge. not reflect knowledge that the suspended attorney Conrad was Juror No. 1. As discussed The district court stated that its conclu- above, the Report Westlaw was rife with sion that Parse’s attorneys “knew” Conrad information that was inconsistent with the suspended lawyer was the Catherine M. voir sworn dire statements of Conrad the prior Conrad to commencement of the potential juror, including jury’s different number deliberations supported by was its residences, places residence, different that attorneys view Parse’s had been “not household, different members of the entirely and a candid” in cataloguing their that the district sum, extent to the light’ ‘came to purportedly “facts that right his that waived ruled Parse court motion. new-trial rise gave his jury impartial because trial before at 480-81. had lied dur- attorneys knew that Conrad prior they learned that emphasized court ruling that dire, that we conclude ing voir attorney named Cath- that to voir dire finding of clearly on a erroneous rested suspended had been erine M. Conrad fact. main- attorneys although the 2010; and they the voir dire light that
tained Ruling that Court’s The District b. attorney and suspended that the concluded Necessary Knowledge Was Not the same were not prospective ruled, alterna The district “unpersuasive” found the court person, right to an his Parse waived tively, that “they reason- attorneys’ contention attorneys failed his jury because impartial answers.” voir dire on Conrad’s ably relied to discover that diligence due to exercise answers, “about Yet Conrad’s Id. at 483. It lawyer. suspended life,” id. every detail of virtually stated the court oath. As under given were waiver, attorneys were Parse’s to avoid sanctity opinion, “[t]he in its noted earlier act with reasonable dili- required adminis- to the sound is central of an oath about the they after learned gence both on impresses An oath justice. tration of to voir dire Suspension Order testify truth- duty to conscience one’s they obtained Westlaw after indeed, And before Id. at 448. fully.” day jury 2011—the May on Report counsel dire, defense when of voir start not. they But did started. deliberations inquire should the court suggested no- on sufficient were jurors excusing prospective further before their have raised they should tice and expected serving on claimed that who at voir dire with the Court concerns eco- would cause them trial three-month de- beginning again at then “when the court said hardship, nomic least, very At liberations. per- penalties under somebody declares steps to additional have taken should they rely commissions to make acquire information sufficient ques- income, ask another I their wouldn’t *33 Their to decision. failure an informed (Voir at transcript beyond dire tion that.” do so constitutes waiver. (emphas- F.Supp.2d at 483 Daugerdas, however, added). above, light As discussed that to es Virtually everything came acts, intelligent knowing, must be suspend- waivers M. Conrad about Catherine of the rele- done with sufficient awareness Conrad’s lawyer ed was inconsistent litigant has ruling A that a facts. vant Al- given under responses oath. voir dire he failed “to right because “waive[d]” attorneys of course could Parse’s though to make information acquire sufficient additional pose the court to have asked id., decision,” on an is based informed Conrad, to we conclude questions of the law. view erroneous so, to failure to do otherwise their to its sought justify information sufficient pursue additional district concept ie., lied pervasively of the waiver that Conrad modification reveal — circumstances ap- encompass it to oath, provide not expanding did despite ac- diligently not litigant did finding for the where basis court’s propriate stating knowledge by requisite quire know the truth. they did in fact — expansion that such an is justice. needed order The court’s refusal to exercise judicial system for the operate properly. that discretion on ground that Parse It said: had waived his right to complain juror of
A bias was predicated waiver standard based on solely on errors of law and erro- knowledge, findings actual to a neous certainty, 100% fact.
would result in retrials where defense 3. Plainr-Error Review
attorneys had substantial information put misconduct them on Parse and the amicus council of defense reasonable notice that the Court should lawyers urge us to adopt general rule be and additional inquiry un- lawyers need bring not concerns notified dertaken. position is inconsis- about possible juror including misconduct— tent with the imperative institutional concerns possible about misstatements ensuring that the trial court given is made during voir dire—to the attention of every opportunity available attempt the trial court unless counsel actually know to salvage the trial ridding that such misconduct has occurred. We prejudicial influences. doubt that such a sweeping and absolute rule appropriate; event, but in (in- we 482-83 need not attempt to fashion an omitted) appropriate quotation ternal marks (emphases general rule in added). order to pres- resolve the explanation This reflects a fur- ent appeal. Assuming that the district misapprehension ther of the law. court was correct in its view that Parse’s The district court’s notion that “waiv- attorneys should have alerted the court to imputed must be er[s]” order to avoid suspicions whatever they had about Con- unnecessary judicial waste of time and re- rad to the conclusion of jury’s related, ignored sources rigid, and less deliberations, we conclude that improp- principles of forfeiture. Supreme As the presence er Conrad on the for- Olano, —a explained a litigant who feited plain-error error —warrants review merely timely fails to make a assertion of a and warrants reversal under that stan- right, and does not knowingly and inten- dard. tionally relinquish that right, forfeits his
right
complain
error;
of that
52(b),
but a
Under Fed.R.Crim.P.
pro-
which
forfeiture does not bar
plain
the court from vides that “[a]
error that affects sub-
exercising discretion
rights
to correct the
if
stantial
may
error
be considered even
it affected the litigant’s
though
substantial
it
rights.
brought
was not
to the court’s
733-35,
attention,”
See 507
U.S.
That facet of the forfeiture concept exists
before an appellate court can correct an
rigid
because
and undeviating judicial-
“[a]
trial,
error not raised at
there must be
ly
practice
declared
under which
(1)
courts of
(2)
“error,”
(3)
“plain,”
that is
*34
invariably
review would
and under
cir-
all
that
rights.”....
substantial
“affectfs]
cumstances decline to
ques-
consider all
If
met,
all three conditions are
an appel-
tions which
previously
had not
specif-
been
late court may then exercise its discre-
ically urged would
harmony
be out of
with
error,
tion to notice a forfeited
only
but
...
the rules of
justice.”
fundamental
(4)
Id.
if
the
“seriously
error
the
affect[s]
(internal
732,
at
(1997) U.S. at 113 507 (quoting jury affected on the (other seating marks of Conrad quotation internal 1770 S.Ct. as “Conrad was omitted)). rights, substantial “[d]e- is an unwaived An “error” Olano, Defendants.” actually against 507 U.S. biased legal rule.” from a viation (internal at 471. In the 732-33, quota Daugerdas, at 113 S.Ct. revealed, omitted). if “plain” posttrial investigation, An is error tion marks alia, lied on voir dire at that she had or “obvious.” Id. inter it is “clear” “[djefendants (internal ... were believing omit that the quotation marks S.Ct. Hr’g Tr. ted). (quoting at 456 affects substantial ‘crooks’.” Id. And an error 229). is, And, in respect partic- to Parse when prejudicial when it is rights —that ular, May in found that Conrad’s probability” that the the court is a “reasonable there Letter, through when bias ... bled proceed “[h]er the outcome of the error affected Benitez, fight good fight’ Dominguez wrote that she ‘did States v. she ing. United 74, 81-82, any Parse on counts against acquitting 124 S.Ct. U.S. ’ (2004) (internal the towel. quotation eventually had to ‘throw in but L.Ed.2d 157 omitted). shows that Conrad meeting The burden of Her choice of words marks fact-finder, review, and, if a but as a saw not as plain-error these criteria for herself ” met, Id. at 471 partisan the court ‘Our Government’ persuading are of for ours). grant (emphases relief based exercise its discretion factor, fourth is on the defendant. ju- a In these circumstances—in which See, Olano, 734-35, e.g., 507 U.S. government, aligned ror herself with the Benitez, 1770; 542 U.S. Dominguez S.Ct. pur- for the pervasively lied voir dire 82, 124 S.Ct. 2333. cause, for be- pose avoiding dismissal difficulty no conclud presentation We have lieved in the meets his burden ing Parse defendants were evidence “ proceed ‘crooks,’ present expressly case. Here the relevant mentioned Parse ing The Sixth Amend target persuade selection. of her efforts to as right him the to be tried before gave jurors ment to convict—a refusal to order other Conrad, jury. who lied exten impartial seriously trial would affect a new for Parse dire, sively precisely fairness, order during integrity, public reputa- voir jury, was seated on gain place judicial reverse proceedings. tion of We in Parts II.A.1. jury. As discussed of Parse’s motion the district court’s denial above, statements indi and I.C. such false for new trial. partiality, and the impermissible
cate Sufficiency Challenges B. Parse’s found that Conrad was actu district court inferably biased. The ally, impliedly, and guilty Parse was found of two offenses: that, it of those court concluded had known fraud, mail in violation of 18 U.S.C. falsehoods, it would have dismissed Con endeavoring corruptly §§ 1341 and beyond dispute It rad cause. is of the inter- to obstruct the administration meaning there was “error” within the laws, nal in violation of 26 U.S.C. revenue 52(b) “plain” Rule and that the error 7212(a). that he was entitled argues § He meaning and Johnson. within Olano acquittal on both judgment to a trial —on the obviating any new present It record— is also clear on counts— failed to May ground government which both the remarkable includes *35 intent elements of prove knowledge or government Letter that sent the those offenses. after trial and Conrad’s statements
h-1 The mail fraud section makes
Parse contends that
government
it a crime to use the mails in furtherance
failed to establish
specific
intent ele
defraud,
of a “scheme or artifice to
or for
i.e.,
1341,
§
ment of
his intent to defraud
obtaining money
property by
or
means of
(“IRS”)
the Internal Revenue
Service
or
pretenses, representa
false
fraudulent
depriving it
owed,
of taxes
because the
tions,
promises.”
§
or
18 U.S.C.
1341. government did not show that he had un
The “essential
of a
elements
mail fraud
derstood
impropriety
claiming
tax
“(1)
(2)
charge”
defraud,
are
a scheme to
losses
based
the tax shelter transac
money or property
object
as the
(see
tions in question
appeal
Parse brief on
(3)
scheme, and
use of the mails to further
74),
similarly
that it failed to estab
“
Vilar,
the scheme.” United States v.
729
7212(a)”
lish the
‘corruptly’
§
element of
(2d Cir.2013) (internal
62,
F.3d
91 n. 26
because it did not
that he
show
had “acted
—
quotation
omitted),
denied,
marks
cert.
with the requisite ‘consciousness of unlaw
U.S.-,
2684,
134 S.Ct.
189 L.Ed.2d
230
(Parse
fulness’
95).
brief on appeal at
(2014).
specific
Because mail fraud is a
Viewing the evidence in
light
most
crime,
intent
government
“prove
must
government,
favorable to the
and crediting
beyond a reasonable doubt that the defen
every
fairly
inference that could
have been
guilty
dant was
of a
knowing
conscious
government’s favor, see,
drawn
e.g.,
defraud,”
intent to
Regan,
United States v.
Vilar,
United
91;
States v.
729 F.3d at
(2d
823,
Cir.1991) (internal
937 F.2d
827
United
Biaggi,
89,
States v.
853 F.2d
99
quotation
omitted),
denied,
marks
cert.
504
(2d Cir.1988),
denied,
1052,
cert.
489 U.S.
940,
2273,
U.S.
112 S.Ct.
Section makes it unlawful to possibility reasonable that the transaction “corruptly ], ... or impede[ obstruet[ ] or would profit,” result United States v. impede, endeavor[ ] obstruct or the due. (2d Cir.2012) (in Coplan, 703 F.3d administration of’ the Internal Revenue quotation omitted), ternal marks 7212(a). cert. de § Code. 26 U.S.C. To act or en- —nied, -, U.S. 134 S.Ct. “corruptly,” deavor within the meaning of (2013), section, L.Ed.2d 29 or it if “can not [sic] this means to act or endeavor with reason be said to purpose, “with the intent have sub to secure an unlawful ad- stance, vantage utility apart or benefit either from antici [its] for one’s self or pated consequences,” another.” United tax Kelly, States v. Lee v. Commis (2d Cir.1998) (internal sioner, (2d Cir.1998) F.3d quota- 155 F.3d omitted). (internal omitted). tion marks quotation marks *36 a I think “gave Parse me rency options, evidence included record here The trial pick “to irom. foreign currencies couple” of the economic- familiar with Parse was that like, mean, pick it was a certi- And it’s whether —I He was requirement. substance (Tr. one, matter.” going to accountant, a master’s either it’s not with de- public fied very “a him there was years and Parse told in business administration gree investment could financial institu- chance” that the working in extreme experience it’s generally speaking, money, a tax shelter “but He himself used make tions. (Id.) An- opinion big loss.” here and received to amount to going at issue type use, the from law with personal for his described conversations letter other witness and the shelters em- in the partner that marketed he as a firm Parse that had codefendants. tax some of his firm that marketed the ployed accounting the described eco- explained letter to Parse Parse various opinion at issue. shelters detail; it not- in options substance doctrine transac- nomic of the use of short aspects alia, ed, monetary “a transaction must tions, and, potential that inter as to respected very to be outcomes, have economic substance was a minute said there lotto,” “a and that purposes” tax “hit a for federal client could possibility that a lacks economic sub- i.e., transaction which on his investment. huge profit make a of tax benefits beyond the creation stance had asked whether the witness When tax-indepen- lotto,” is not with and which imbued Parse “hit[] client had ever substance, “no, is an economic sham dent considerations in watch responded, pur- tax for federal income closely, anybody without effect things pretty these if 54-1, (Government close, Exhibit M- the mar- poses.” they would move ever came added)). added).) (Tr. (emphasis (emphasis ket.” 6939-41 the record was suffi- conclude that We a ration The evidence from which that rational to find permit cient to Parse knew that juror could infer that al was economic substance Parse knew that to execute for the helped transactions he of the tax acceptance to the essential IRS’s any profit lacked mo tax shelters issue that legitimate, as shelter transactions testimony from several wit tive included in participate to specific had the intent he attended that he ness. One client testified objective genuine had no transactions that Daugerdas meeting which a tax shelter government depriving other than designed to avoid investments described taxes. pay to taxes on his having the client’s stock. In that on the sale of certain gains C. Other Contentions (see 6242), Tr. by Parse
meeting, attended that the district Parse also contends Daugerdas stated that re- to the with court’s instructions very low and profit potential defense spect to his statute-of-limitations forward, choose going should we to 7212(a) charge were § obstruction forward, questioned if about go we were erroneous, respect to both and that with matter, in fact intent was our charge, fraud charge and the mail this tax profit, make a but in order for deprived incomplete instructions were be, work, effect, shelter there implemented he him his defense gains a loss to balance off from good transactions the tax-shelter-related stock sale. disagree. largely faith. We added)). (Tr. (emphasis Another defense, that, As to the statute-of-limitations respect tax client testified “ jury that ‘[i]n the court instructed involving foreign cur- shelter transaction *37 you order to find guilty for defendant requested by Parse and included in the obstruction], government the [of must at instructions Parse’s retrial. prove you that the defendant are consider- To the that extent Parse argues also ing or someone involved in the offense that, law, as a matter of the conduct committed caused to be committed other persons as coconspirators or —such act of obstruction related to obstruc- the taxpayers filing returns that calculated tion count on or February after’ 2003” their taxes based on losses generated by (Parse appeal brief at 101 (quoting Tr. illegitimate tax shelters —cannot be consid- 8907) brief)). (emphases in argues Parse ered determining whether the statute of that was in part this erroneous because it limitations run has on a charge of corrupt- jury allowed the to find the prosecution ly obstructing the administration of the tax timely as to him on the basis of an act laws, we that question resolution, leave for caused or by committed someone else “no if necessary, basis of the evidence matter how remote from the defendant.” presented, made, arguments and instruc- (Parse appeal However, brief on given tions at Parse’s new trial.
the language on which Parse was focuses prefaced by the instruction you “[i]f that As to complaints, Parse’s other con- we find government that the proven has all instructions, clude that the read as a the charge elements the a count be- whole, see, e.g., Cupp Naughten, v. yond a reasonable respect doubt tvith to a 141, 146-47, U.S. 94 S.Ct. 38 L.Ed.2d defendant, you must also then for consider (1973), were not erroneous. They certain counts whether the statute of limi- dealt painstakingly with each element of tations for that count has been satisfied each category of the charged; offenses the (Tr. with respect to that defendant” instructed, alia, inter “[g]ood added)). (emphasis Thus, jury the was faith complete is a defense to each of the instructed that it could (Tr. find the statute of charges in 8905); the indictment” by limitations satisfied an act by caused that, the court instructed as to each defen- (Tr. 8907) who dant, someone was “involved in” the government had the burden of the jury, by offense that hypothesis, proving willfully that he or she committed already found Parse committed. The charged crimes and did good not act in government argues whole, (see 8905). as a 8897-98, faith Tr. The trial court’s instructions told see, find that was complex, conducted was e.g., was crime within the period (“the limitations at 467 if an was act committed within period largest prosecution tax fraud in U.S. histo- the act “whether by ry”); committed against 25 counts one or more of five defendant or acting someone together (re- with defendants were submitted to the (government ap- brief on quiring verdicts), the return of 58 and the defendant” peal added)), i.e., (emphasis that that correspondingly were compli- instructions someone “must have been co-schemer cated. court was not required The to in- together with the charged being defendant troduce by further intricacies discussing (id.). considered” No doubt the court’s scenarios which there was no evidence instruction would have been clearer had in the charges against record. these characterizations been added. We Parse’s codefendants have since re- been assume that government, having urged solved; any potential engen- confusion interpretation Court, upon this should dered catering instructions to the com- objection have no if such a plexity clarification is of the first trial unlikely recur Therefore, trial. new right his in waive at issue two counts respect majority’s II.A of the join I in all but Part alone. of Parse retrial only section, I concur to that As opinion. in the result.1
CONCLUSION
*38
recog-
trial has been
to a
right
The
parties’
all of
considered
have
We
price-
“most
as our
by our courts
nized
respective
their
support
in
arguments
717,
Dowd,
721-
366 U.S.
Irvin v.
less.”
and, except as
appeal,
this
on
positions
(1961).
1639,
751
6 L.Ed.2d
22, 81 S.Ct.
be
above,
them to
have found
indicated
criminally
“guarantees
right
That
judg-
merit.
or without
moot
either
impartial,
by panel
a
fair trial
accused a
is vacat-
against Parse
conviction
ment
“only jurors,” since
‘indifferent’
for a new
is remanded
ed,
the matter
liberty or his life.”
man of his
strip a
can
foregoing.
in accordance
trial
juror who
a biased
seating of
Id. The
cause re-
for
been dismissed
should have
concurring:
STRAUB,
Judge,
Circuit
v.
States
United
reversal. See
quires
trial.
I
to a new
is entitled
David Parse
316-17,
304,
Martinez-Salazar,
528 U.S.
I
he is
believe
because
separately
write
(2000).
774,
L.Ed.2d 792
145
120 S.Ct.
or not his
trial whether
to a new
entitled
sure,
who
a
defendant
To be
criminal
juror misconduct
of the
attorneys knew
juror
to a
timely objection
make a
fails to
case.
this
challenge that
to later
may
right
his
waive
by
ap-
this
presented
The circumstances
v.
States
See United
juror’s impartiality.
majority
As the
extraordinary.
are
peal
Cir.2002)
(2d
Nelson,
164, 219
277 F.3d
one of the
which
it, this is a case in
put
/.,
v.
(Straub,
States
dissenting); United
Conrad,
jurors, Catherine
empaneled
(2d Cir.1967);
471, 475
F.2d
Ragland, 375
Brazelton,
see,
v.
e.g., United States
government,
herself with
aligned
Cir.2009)
(7th
(finding
750, 752-55
F.3d
pur-
dire for the
in voir
pervasively
lied
juror
objection to biased
cause,
waived
defendant
for
be-
avoiding dismissal
pose of
court’s invita-
declined
expressly
he
when
presentation
prior to
lieved
cause).
juror for
challenge the
tion to
were
the defendants
evidence
“ ‘crooks,’
expressly mentioned
its limits.
without
But waiver is not
per-
target
her efforts
as a
Parse
fundamental
rights are “so
Some
convict.
jurors to
the other
suade
factfinding process that
reliability of the
without
here,
may never be waived
Where,
there is
irrepa-
as
at 120.
Maj. Op.
federal courts.”
discrediting the
rably
finding by the District
uncontroverted
196,
Mezzanatto, 513 U.S.
States v.
verdict United
juror who rendered
that a
Court
(1995)
797,
204,
130 L.Ed.2d
and, indeed,
115 S.Ct.
perjured
actually biased
was
(internal
and brackets
marks
quotation
that she was
to ensure
order
herself
in-
omitted).
independent
Courts have
defendant cannot
jury,
seated
Cir.2002) ("We
127,
(2d
Lean,
F.3d
majority’s
by the
con
persuaded
I
not
1.
am
clearly
findings
as to the credi-
give
erred
the District
a district court's
clusion that
attorneys
”).
that Con
finding
knew
that Parse’s
Nev-
'strong
bility
deference.'
of witnesses
Maj. Op.
during
dire. See
had lied
voir
rad
ertheless,
Parse could not
I believe
because
in the best
The District Court
113-18.
impartial jury
right to an
waived his
have
credibility, and
position to assess Trzaskoma's
juror’s
mis-
knew
even if his
that the Dis
does not
the record
demonstrate
conduct,
unnecessary to address the
it
I find
were
determinations
Court’s factual
trict
issue.
States v. Mc-
clearly
United
erroneous. See
in ensuring
integri-
terest
the fairness and
that a criminal
right
defendant’s
to an
ty
process,
of the criminal
both
impartial jury
with re-
subject
to waiver have so
spect to each
concluded on
grounds
individual defendant
also
but
that a contrary
n rule
“legal
permit
so that
would
proceedings appear fair to
“gamble
defendant to
on a
all who
favorable verdict by
silent,
observe them.” Wheat v.
remaining
United
States,
and then
complain in
post-verdict
486 U.S.
108 S.Ct.
motion
(1988)
the verdict was
that,
prejudicially
influ
(holding
L.Ed.2d 140
enced
that misconduct.”
reason,
this
United States
may
courts
accept
refuse to
Bolinger,
(11th
v.
837 F.2d
Cir.
attorney’s
defendant’s waiver of
conflict of
1988) (finding waiver
interest).
without
reaching
claim);
merits of
bias
see United
holding
waived
right
Parse
his
*39
Dean,
(8th
States v.
779,
647 F.2d
782
impartial jury,
an
the District Court relied
Cir.1981),
(8th
on reh’g,
729,
667 F.2d
734
applications
on
of the waiver doctrine in
Cir.1982) (en banc) (“[AJppellant, by not
McDonough Power Equipment,
Inc. v.
bringing the question
juror
misconduct
Greenwood,
548,
845,
464 U.S.
104 S.Ct.
78
to
attention of the trial court before
(1984)
Marshall,
L.Ed.2d 663
Stern v.
returned,
the verdict was
thereby waived
— U.S.-,
2594,
131 S.Ct.
180 L.Ed.2d
trial.”).
right
his
to a new
The Sixth
(2011).
475
juror’s
McDonough involved
Circuit,
hand,
on the other
has taken the
“mistaken, though
response
honest”
to a
criminal
view that a
right
defendant’s
to
question
voir dire
in a
product liability
civil
by
trial
an impartial
jury cannot be
footnote,
action.
In a
the Court remarked waived, explaining that the “presence of a
that if
juror
the information about the
juror,
biased
presence
like the
of a biased
been known to defendants or their counsel
judge,
ais
structural
defect
the constitu
dire,
during
voir
“would be barred
tion of the trial
Hughes
mechanism.”
v.
from later challenging the composition of
States,
(6th
United
258 F.3d
Cir.
when they had chosen not to 2001) (internal
omitted).
quotation marks
interrogate
juror.” 464
[the]
U.S. at 550
yet
We have not
precise
defined the
Stem,
n.
However,
the District
rightly
Nelson,
States v.
we
found
the defen-
pointed out that the
reflect
cases
the “dis-
validly
dants did not
right
waive their
favor of litigants who fail to act on infor-
impartial jury
they agreed
when
to the
mation in
possession
their
only to claim empaneling
juror
of a
in order to accede to
later that such information
resulted
the district court’s improper scheme to
violation of
rights.”
their
United
v.
Nelson,
States
a racially
achieve
mixed jury.
ly trial. in that case indicated criminal the record because only potential juror demonstrated that the and the defendants during voir dire
bias seating. juror’s
expressly consented juror presence explained
I was not improper, jury, however “fun- it did not because error
unwaivable validity and
damentally undermined trial.” Id. at of the defendants’ fairness MAKDESSI, Ramez Adib Eddie (Straub, J., dissenting). Plaintiff-Appellant, involving potential a case But is not this bias, a voir answered or which v. dishonestly of embar- out question dire FIELDS; Capt. Gallihar; Sgt. King; Lt. shame, merely expressed
rassment or Doe; Bellamy; Boyd; David Glen Jane ability to serve about his or doubts Defendants-Appellees, Hall, Thomas actually biased Conrad was impartially. *40 As the District the defendant. against and found, “not as a Conrad saw herself Virginia fact-finder, Clarke, pros- for the Director of partisan” but as Harold W. Corrections; Timothy Sumpter; efforts to Bran- who characterized her ecution Woodward; Shupe; jurors against acquitting persuade other don Clarence “ Sluss, Tightfing] good fight.’ as Defendants. Parse Dennis Al- Dcmgerdas, 470-71. No. 13-7606. biased, though Conrad denied she was “patho- found she was a the District Court Appeals, United States Court untrustworthy” and utterly liar logical Fourth Circuit. pre-exist- that her statements “reflected a Argued 2014. Oct. I am the defendants. Id. ing against bias” involving egre- more not aware of a case 12, 2015. Decided March than that found gious juror misconduct here, finding undisputed which is upheld a verdict
appeal. We have never circumstances, these
rendered under to make a farce of our
to do so would be
system justice.
I am to concerns the risk sensitive about “sandbagging” part of defense
counsel, as articulated the District
Court, F.Supp.2d at see Nelson,
476-85, cases, our see (Straub, /., dissenting).
But where there has been bias, concerns,
actual however such
legitimate, yield preservation must notes during formation voir dire when describ- (or ing her educational background was The district court concluded: layer Richard offered another ex- Bruñe & reading of these e-mail fair Any 12. attorneys May that Parse’s the events of shows of detail about changes intelligence that Conrad actionable acknowledged reviewing had Trzaskoma knowledge That de- imposter. was an Report after Benhamou sent it Westlaw the matter bring action to (See manded swift morning. Hr’g Tr. 49- to her Further attention. inves- to the Court’s (“It cow, holy struck me that it’s easy pru- have and would been tigation I person, that it’s the same possible to do But Parse’s chose dent. try looking report was at the Westlaw neither. way there some that this figure out is affidavit, Bruñe September 15 In her other, way that gives tells me one or the p.m., after 2:36 that sometime asserts information.”).) me more But she testi- Edel- shared with her and Trzaskoma not look at the fied that she did Westlaw suspended that the possibility stein the sending until after the “Jesus” e- Report and Juror No. were same lawyer significance mail and she minimized its ¶ 12.) (Bruñe Aff. now While person. thought process. (Hr’g Tr. 55- on her Bruñe, Report, armed with Westlaw 56.) Citing inexperience reading Trzaskoma, and Edelstein nevertheless reports, such Trzaskoma claimed that their earlier conclusion dur- adhered to ac- questioned Report’s she the Westlaw dire, namely that “Ms. Conrad ing voir curacy it aggregated and whether lawyer only if she suspended be a could multiple about information Catherine dire, during voir repeatedly had lied 49-55.) (Hr’g Tr. Trzaskoma Conrads. any juror, it inconceivable .seemed explanation offered no for her failure to lawyer, perjure would her- much less colleagues. seek assistance from her ' ¶ (Bruñe 12.) brazenly.” Aff. self so quibbled whether She also over Juror rationalization, at- Through that physically appeared No. be wom- torneys convinced themselves that “no early (maintaining an in her forties warranted, was additional research she believed Juror No. 1 to “close to be ¶ (Bruñe Aff. none was conducted.” 50”). though looking And even she Missing from the Bruñe Affidavit are