United States v. Parse
| Decision Date | 08 June 2015 |
| Docket Number | Docket No. 13–1388. |
| Citation | 789 F.3d 83 |
| Parties | UNITED STATES of America, Appellee, v. David PARSE, Defendant–Appellant. |
| Court | U.S. Court of Appeals — Second Circuit |
Stanley J. Okula, Jr., Assistant United States Attorney, New York, N.Y. (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, N.Y., on the brief), for Appellee.
Alexandra A.E. Shapiro, New York, N.Y. (Marc E. Isserles, James Darrow, Chetan A. Patil, Shapiro, Arato & Isserles, New York, N.Y., on the brief), for Defendant–Appellant.
Gibson, Dunn & Crutcher, New York, N.Y. (Lawrence J. Zweifach, Jane Kim, of counsel), and Arnold & Porter, New York, N.Y. (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.
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 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.
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.)
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 information about her that was unearthed in Parse's attorneys' investigations, as to which there is no material dispute, included the following.
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.
Id. at 450–51 (). The court noted that it had offered prospective jurors the opportunity to come to the bench for a sidebar with respect to any information that they preferred not to give publicly. Several prospective jurors took advantage of that offer, but Conrad sought no such sidebar and provided no other information in response to these questions. See id. at 450.
The court found that Conrad in voir dire had lied about, among other matters, her own background and that of her husband.
Conrad lied about her educational, professional, and personal background. While she informed the Court that her highest level of education was a bachelor's degree, she in fact obtained her juris doctorate from Brooklyn Law School in 1997 and was admitted to practice law in New York in January 2000. ... Further, although she informed the Court that she was a “stay-at-home wife,” she had practiced law for some time until the New...
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