789 F.3d 83 (2nd Cir. 2015), 13-1388, United States v. Parse

Docket Nº:13-1388
Citation:789 F.3d 83
Opinion Judge:KEARSE, Circuit Judge:
Party Name:UNITED STATES OF AMERICA, Appellee, - v. - DAVID PARSE, Defendant-Appellant
Attorney:STANLEY J. OKULA, JR., Assistant United States Attorney, New York, New York (Preet Bharara, United States Attorney for the Southern District of New York, Brian A. Jacobs, Assistant United States Attorney, Nanette L. Davis, Special Assistant United States Attorney, New York, New York, on the brief...
Judge Panel:Before: KEARSE, STRAUB, and WESLEY, Circuit Judges. Judge Straub, in a separate opinion, concurs in the judgment and in the majority opinion in part. Straub, Circuit Judge, concurring:
Case Date:June 08, 2015
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
SUMMARY

Defendant was convicted of mail fraud and of corruptly endeavoring to obstruct and impede the administration of the internal revenue laws. On appeal, defendant argued that he should have been granted a new trial on the ground of newly discovered evidence of juror bias. The court reversed the district court's denial of the motion where, in this case, the juror at issue aligned herself with the... (see full summary)

 
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789 F.3d 83 (2nd Cir. 2015)

UNITED STATES OF AMERICA, Appellee, -

v.

- DAVID PARSE, Defendant-Appellant

No. 13-1388

United States Court of Appeals, Second Circuit

June 8, 2015

Argued October 16, 2014.

As corrected June 6, 2015.

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Appeal from a judgment of conviction entered in the United States District Court for the Southern District of New York, William H. Pauley III, Judge, following a trial at which the jury found defendant guilty of mail fraud, in violation of 18 U.S.C. § § 1341 and 2, and attempting to interfere with the administration of the federal tax laws, in violation of 26 U.S.C. § 7212(a), and found some of his codefendants guilty of those and other tax-related offenses. Defendant contends principally that the district court--which, pursuant to Fed. R. Crim. P. 33 granted a new trial to his codefendants on the ground of juror misconduct where one of the jurors had lied on voir dire, had deliberately concealed relevant information about herself, her family, and her past, and was found to have been actually biased against the defendants--erred in denying defendant's Rule 33 motion on the basis that defendant had waived his right to an unbiased jury. See United States v. Daugerdas, 867 F.Supp.2d 445 (S.D.N.Y. 2012) .

STANLEY J. OKULA, JR., Assistant United States Attorney, New York, New York (Preet Bharara, United States Attorney for the Southern District of New York, Brian A. Jacobs, Assistant United States Attorney, Nanette L. Davis, Special Assistant United States Attorney, New York, New York, on the brief), for Appellee.

ALEXANDRA A.E. SHAPIRO, New York, New York (Marc E. Isserles, James Darrow, Chetan A. Patil, Shapiro, Arato & Isserles, New York, New York, on the brief), for Defendant-Appellant.

Gibson, Dunn & Crutcher, New York, New York (Lawrence J. Zweifach, Jane Kim, of counsel), and Arnold & Porter, New York, New York (Craig A. Stewart, Alexandra L. Mitter, of counsel), filed a brief for Amicus Curiae New York Council of Defense Lawyers, in support of Defendant-Appellant.

Before: KEARSE, STRAUB, and WESLEY, Circuit Judges. Judge Straub, in a separate opinion, concurs in the judgment and in the majority opinion in part.

OPINION

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KEARSE, Circuit Judge:

Defendant David Parse appeals from a judgment entered in the United States District Court for the Southern District of New York following a jury trial before William H. Pauley III, Judge, convicting him on one count of mail fraud, in violation of 18 U.S.C. § § 1341 and 2, and on one count of corruptly endeavoring to obstruct and impede the administration of the internal revenue laws, in violation of 26 U.S.C. § 7212(a). Parse was sentenced principally to 42 months' imprisonment, to be followed by three years of supervised release, and was ordered to forfeit $1,000,000 and to pay $115,830,267 in restitution. On appeal, he contends principally that he should have been granted a new trial on the ground of newly discovered evidence of juror bias; he challenges the district court's denial of his posttrial motion pursuant to Rule 33 of the Federal Rules of Criminal Procedure for that relief, made jointly with his codefendants against whom the jury had returned verdicts of guilty, in

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light of postverdict evidence establishing that one of the jurors had lied on voir dire, concealed relevant information, and was actually biased against the defendants. The district court granted the new-trial motion of Parse's codefendants; but it denied the motion of Parse, finding that his attorneys either knew of the juror's misconduct prior to the verdict or failed to act with reasonable diligence based on the information they had, and that Parse had thus waived his right to an impartial jury. Parse also contends that the evidence was insufficient to support the jury's verdicts against him, and he challenges certain of the instructions given to the jury. Finding merit in Parse's challenge to the denial of his Rule 33 motion, but not in his sufficiency challenges, we vacate the judgment and remand for a new trial of the counts on which Parse was convicted.

I. BACKGROUND

Parse and several others were indicted in 2009 and were ultimately charged with one count of conspiracy to defraud the United States and to commit mail fraud, wire fraud, and tax evasion, in violation of 18 U.S.C. § 371, and with multiple substantive counts of tax evasion and other tax-related offenses in connection with the creation of a series of tax shelters " designed and marketed by [a law firm and an accounting firm] to take advantage of Internal Revenue Code . . . loopholes so taxpayers could claim non-economic tax losses to avoid taxes they otherwise would have owed" (Parse brief on appeal at 7). Parse was a broker employed by an investment banking firm that executed transactions for implementation of the shelters.

In the spring of 2011, Parse was tried along with four of his codefendants: Paul Daugerdas and Donna Guerin, who were attorneys at the law firm; Denis Field, a member of the accounting firm; and Craig Brubaker, a broker at the investment bank that employed Parse. Following a three-month trial at which 41 witnesses testified and some 1,300 exhibits were admitted, the jury on May 24 returned a split verdict. It found Parse guilty on two counts--the substantive mail fraud and obstruction charges described above--and found him not guilty on the other four counts against him. (See Trial Transcript (" Tr." ) 9153-54, 9159-63.) It found Daugerdas guilty on all 24 counts against him; found Guerin guilty on all 12 counts against her; found Field guilty on all 7 counts against him; and found Brubaker not guilty on any of the counts against him. (See id. at 9153-63.)

A. The District Court's Findings of Juror Misconduct

In July 2011, Parse, Daugerdas, Guerin, and Field moved pursuant to Fed. R. Crim. P. 33(a) for a new trial on the ground that one of the jurors, Catherine M. Conrad--" Juror No. 1" (or " Conrad" )--had lied and withheld material information during voir dire and was biased against defendants. The motion was made some two weeks after the government disclosed to defendants and the district judge a letter it had received from Conrad shortly after the return of the verdict. (See Part I.A.2. below.) Following completion of the parties' submissions on the motion, including information from Parse's attorneys as to their earlier suspicions about Conrad (see Part I.B. below) and an evidentiary hearing, the district court, in a thorough opinion, see United States v. Daugerdas, 867 F.Supp.2d 445 (S.D.N.Y. 2012) (" Daugerdas" ), found it " undisputed that Conrad lied extensively during voir dire and concealed important information about her background," id. at 451. The district court's description of the voir dire proceedings concerning Conrad and the

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information about her that was unearthed in Parse's attorneys' investigations, as to which there is no material dispute, included the following.

1. Conrad's Voir Dire

For jury selection, an initial venire of 450 prospective jurors had been assembled; " the Jury Department provided counsel with a jury roll identifying the prospective jurors in the venire, and listing a 'Catherine M. Conrad' with a Bronxville residence." Daugerdas, 867 F.Supp.2d at 449. Preliminary procedures winnowed the number of prospective jurors from 450 to approximately 175; the panel of 175 was sworn in for voir dire. In discussing defendants' new-trial motion, the district court stated, quoting the transcript of the voir dire proceedings, that the court had posed a number of questions to the panel as a whole, including five that are relevant to this motion:

1. " Do any of you know or have you had any association, professional, business, social, direct or indirect, with any member of the staff of the United States Attorney's Office for the Southern District of New York, the United States Department of Justice, or the Internal Revenue Service? Has anybody had any dealings with the U.S. Attorney's Office, the Department of Justice, or the IRS?" (Trial Tr. 84-85.)2. " Are you or [has] any member of your family ever been a party to [a] lawsuit, that is, a plaintiff or a defendant in a civil case or a criminal case?" (Trial Tr. 105.)

3. " Have any of you or a close relative ever been involved or appeared as a witness in any investigation by a federal or state grand jury or any congressional committees or state legislative bodies or licensing authorities or planning boards?" (Trial Tr. 107.)4. " Have any of you ever been a witness or a complainant in any hearing or trial, whether it be in the state or federal courts?" (Trial Tr. 108.)

5. " [H]ave you or any member of your family or any very close personal friend ever been arrested or charged with a crime?" (Trial Tr. 118.)Conrad responded affirmatively to only two of these questions. In response to the first question, Conrad offered that her father " works for DOJ across the street" as " an immigration officer." (Trial Tr. 85.) She then assured this Court that his position would not affect her ability to be fair and impartial. (Trial Tr. 85.) In response to the second question, Conrad stated that she " was a plaintiff in a personal injury negligence case . . . pending" in Bronx Supreme Court. (Trial Tr. 105.) Again, she represented that her personal injury action would not interfere with her ability to serve as a juror. (Trial Tr. 106.) Conrad did not provide any additional information or any other affirmative answers to questions posed to the group.

Daugerdas, 867 F.Supp.2d at 449-50 (emphases ours).

The district court had proceeded to ask further, more detailed, questions of the prospective jurors individually.

THE COURT: . . . . Ms. Conrad . . . . would you tell us...

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