White Collar Criminal Defense Update: Second Circuit Emphasizes Constitutional Right to Impartial Jury, Upholds High Standard to Prove Waiver
June 23rd, 2015
The Government must prove by a preponderance of the evidence that a defendant has waived his Sixth Amendment right to an impartial jury, which is a heavier burden than one might expect after the Second Circuit’s decision in United States v. Parse, available here. In Parse, after a juror revealed her hidden agenda, the District Court and the parties discovered multiple lies she concealed during voir dire and the trial. However, the District Court found that the criminal defendant’s (David Parse) attorneys knew, or should have known, about the lies based on previous research on the juror, and therefore concluded that Parse waived his right to an impartial jury. The District Court refused to grant his motion for a new trial despite granting it for his codefendants. The Second Circuit reversed and held that the District Court clearly erred when it refused to order a new trial after the juror’s strategic manipulation because such a refusal would seriously affect the “fairness, integrity, and public reputation of judicial proceedings” when there was no evidence proving the lawyers or Parse knew the juror was lying.
Parse was a broker employed by an investment banking firm. He and others were indicted and charged with conspiracy to defraud the U.S. and to commit mail fraud, wire fraud, and tax evasion in violation of 18 U.S.C. § 371, among other tax-related offenses. He was tried along with his codefendants, and following the three-month trial the jury returned a split verdict for Parse. Parse was found guilty on substantive mail fraud and obstruction charges but not guilty on the four other counts against him.
Months after the verdict, all four codefendants moved under Federal Rule of Criminal Procedure 33for a new trial on the ground that Catherine M. Conrad, Juror No. 1, had lied and withheld information in voir dire and during the trial. These motions were sparked by a letter Conrad sent to the Government praising its work in the trial. She also told the Government that she had been holding out for days during deliberation trying to convince other jurors to convict Parse. After this letter, the subsequent motions, and an evidentiary hearing, the District Court released an opinion finding Conrad had “lied extensively during voir dire and concealed important information about her background.”
To begin, the only information Conrad revealed to the voir dire survey questions was that her father works as an immigration officer and that she was a plaintiff in a personal injury negligence case. She was silent as to questions about criminal history, relatives who are attorneys, and many other basic questions that would indicate bias. During individual questioning she also stated that she had lived at the same address her whole life and she was currently a stay-at-home wife with a college education. Among the lies the District Court discovered: Conrad’s occupation as a lawyer and subsequent suspension from the profession for professional misconduct, her multiple previous arrests for everything from shoplifting to DUI to aggravated harassment, her apartment located at a different address than she claimed, and her career criminal husband, who has been convicted of at least nine criminal offenses and incarcerated. During an evidentiary hearing Conrad also made multiple biased statements, such as “[Defendants are] fricken crooks and they should be in jail and you know that.” She also told the Court that she lied to make herself more “marketable” as a juror. The District Court found she was biased against the defendants and a pathological liar. The District Court then granted the codefendants’ motions for a new trial, but not Parse’s.
District Court’s Denial of a New Trial for Parse
In short, the District Court determined that Parse’s attorneys either knew, or should have known through due diligence, that Conrad was lying. Accordingly, the District Court ruled that Parse waived his constitutional right to an impartial jury. In support of its holding, the District Court cited several exchanges occurring before voir dire, during closing arguments, and after the verdict. First, it cited several email exchanges where Parse’s attorneys discussed Google searches that revealed information about a suspended lawyer who also went by the name Catherine M. Conrad. Parse’s attorneys felt it could not be the same person because it would have required blatant lying in voir dire, and therefore chose not to pursue it further. Next, the law firm disclosed further research conducted during closing arguments after Conrad had submitted a note to the Court. During that search, a paralegal discovered the Suspension Orders suspending Conrad from practicing law in New York in both 2007 and 2010. The paralegal also produced a Westlaw Report that contained information about Conrad’s previous address and her involvement in a civil lawsuit. Again, the team concluded it was “inconceivable” that Conrad lied during voir dire. Finally, after the post-verdict letter, another Google search matched Conrad’s telephone number to one associated with the suspended attorney, and that was the first time the attorneys said they really suspected it was the same person. A two-week investigation looking at property records, Conrad’s husband’s criminal records, and marriage records confirmed suspicions.
The District Court was displeased and asked the attorneys if the law firm would have ever disclosed their previous research and findings had the court/Government not inquired. The District Court based the attorneys’ supposed knowledge of Conrad’s lies on evidence such as an email exchange that occurred the same day jury deliberations began where a paralegal wrote, “Jesus, I do think that it’s her,” when discussing the connection between Conrad and the suspended attorney. The District Court said this showed the attorneys had actionable intelligence that she was an imposter. Therefore, Parse waived his rights through the actions (or failed actions) of his attorneys.
Second Circuit Reverses
The Second Circuit vehemently disagreed with the District Court’s holding, and instead held that Parse should have been granted a new trial on the ground that he was deprived of the right to a trial before an impartial jury. The Second Circuit conceded that had the defendant known prior to the end of the trial that a prospective juror had given false voir dire responses and did not reveal the disqualifying falsehoods to the court, “the interest of justice” would not require a new trial under Rule 33. However, the Court referenced a two-part test to help it decide whether the District Court should have granted a motion for a new trial based on juror nondisclosure or misstatements. Citing McDonough Pwr. Equip. v. Greenwood, 464 U.S. 548, 556 (1984), available here, the Court held the party must first show that “a juror failed to answer honestly a material question in voir dire,” and secondly, must show that “a correct response would have provided a valid basis for challenge.” Both prongs were easily met in this case.
The Second Circuit reviewed the District Court’s decision by an abuse of discretion standard, and here it determined the District Court erred as a matter of law by holding Parse waived his rights. The Court wrote that a waiver must be knowing, intelligent, and made with awareness of the likely consequences, which is not what occurred in Parse’s proceedings before the District Court. The Second Circuit also noted that the District Court had no evidence that Parse himself knew about Conrad’s misrepresentations, but regardless the Court believed the District Court erred in ruling that Parse’s attorneys had knowledge in the first place. The Second Circuit stated that not every failure to object or to advance a given argument constitutes a waiver, and especially because Conrad “presented herself as an entirely different person,” any finding that Parse’s attorneys knew prior to trial that she was the same as the suspended attorney was erroneous.
Overall, the Second Circuit acknowledged that Parse’s attorneys could have asked the court to pose additional questions to Conrad, but the Court held that their failure to do so or pursue additional information sufficient to reveal her misrepresentation did not provide an appropriate basis for the District Court’s finding that Parse’s lawyers knew the truth about Conrad and waived Parse’s right to an impartial jury.
The takeaway from the Second Circuit’s decision is its emphasis on Parse’s constitutional right to an impartial jury trial, and how far the Court believes that right extends. Even though Parse’s attorneys were able to find some information on Conrad and could very well have further inquired as to the discrepancies, they did not, but that did not mean that Parse waived his Sixth Amendment rights. While the Court did not address specifically whether Parse could waive his rights through his attorneys even if he did not have any personal knowledge of Conrad’s lies, this case still implies a high standard for proving waiver. Holding the Government to a preponderance of the evidence standard for proving waiver better values defendants’ constitutional rights.
The attorneys at Fuerst Ittleman David & Joseph have extensive experience in the areas of complex civil and administrative litigation at both the state and federal levels, white collar criminal defense, as well as tax and tax litigation. Should you have any questions or need further assistance, please contact us by email at firstname.lastname@example.org or telephone at 305.350.5690.