United States v. Daugerdas

• Decision Date: 04 June 2012
• Docket Number: No. S3 09 Cr. 581(WHP).,S3 09 Cr. 581(WHP).
• Citation: 867 F.Supp.2d 445
• Parties: UNITED STATES of America, v. Paul M. DAUGERDAS, et al., Defendants.
• Court: U.S. District Court — Southern District of New York

867 F.Supp.2d 445

UNITED STATES of America,

v.Paul M. DAUGERDAS, et al., Defendants.

No. S3 09 Cr. 581(WHP).

United States District Court,

S.D. New York.

June 4, 2012.

Nanette Louise Davis, Stanley John Okula, Jr., Jason Peter Hernandez, Rachel Peter Kovner, U.S. Attorney's Office, New York, NY, for United States of America.

Brian Jason Fischer, Jenner & Block LLP, Alexandra A. E. Shapiro, Caroline Rule, Sharon Louise McCarthy, Christopher Michael Egleson, Douglass Bayley Maynard, Barry H. Berke, Dani R. James, Erin Anne Walter, Paul Henry Schoeman, Susan E. Brune, Theresa Marie Trzaskoma, Paul Lewis Shechtman, Zuckerman, Spaeder LLP, New York, NY, Charles B. Sklarsky, Nicole A. Allen, Chris C. Gair, Jenner & Block LLP, Daniel E. Reidy, Erin L. Shencopp, Jones Day, Mark L. Rotert, William P. Ziegelmueller, Stetler & Duffy, Ltd., Chicago, IL, Laura Joy Edelstein, Brune & Richard LLP, San Francisco, CA, for Defendants.

MEMORANDUM & ORDER

WILLIAM H. PAULEY III, District Judge.

The right to a jury trial is a bulwark of liberty enshrined in the Constitution. Because “justice must satisfy the appearance of justice,” courts need to ensure that tainted jury verdicts—even those reached after long and costly trials—do not stand. But justice also demands that a defendant having reason to suspect juror misconduct not remain silent in order to secure a risk-free trial.

The sanctity of an oath is central to the sound administration of justice. An oath impresses on one's conscience the duty to testify truthfully. And attorneys, as officers of the court, owe an unflagging duty of candor to the tribunal. When these foundational duties are breached, the integrity of the judicial process is undermined and a free society imperiled. This case lays bare the damage that ensues when the obligation to be forthright is cast aside.

The trial of this tax shelter fraud prosecution spanned three months and included 9,200 pages of testimony from forty-one witnesses. The Government produced more than twenty-two million documents during discovery, and the Court received approximately 1,300 exhibits in evidence. No expense was spared. On the ninth day of deliberations, a jury returned a split verdict convicting Paul M. Daugerdas, Donna M. Guerin, Denis M. Field, and David K. Parse (collectively, “Defendants”) of multiple tax-related offenses and acquitting Raymond Craig Brubaker. Pursuant to Federal Rule of Criminal Procedure 33(a), Defendants move for a new trial based on juror misconduct. For the following reasons, Defendants Daugerdas, Guerin, and Field's motion for a new trial is granted, but Defendant Parse's motion is denied.

BACKGROUND

The facts underlying this motion are not in dispute, and are gleaned from transcripts of the trial and related proceedings and the parties' submissions.

I. Voir Dire

On February 23, 2011, 450 prospective jurors reported to the courthouse and completed a basic hardship questionnaire. Catherine M. Conrad (“Conrad”) was among them. The questionnaire posed three questions: (1) whether “service as a juror on a 3–month trial [would] cause undue hardship or extreme inconvenience”; (2) whether each prospective juror had “any difficulty reading or understanding English”; and (3) whether each prospective juror suffered “any physical ailment or other limitation that would make it difficult to serve as a juror.” ( See Declaration of Theresa Trzaskoma in Support of Defendants' Motion for a New Trial, dated July 8, 2011 (“Trzaskoma Decl.”) Ex. 2, at 2–1 to 2–2.) Conrad answered each question “no.” Later that day, 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. ( See Trzaskoma Decl. Ex. 1.) The following day, copies of the juror questionnaires were distributed to counsel. (Trzaskoma Decl. Ex. 2, at 2–1 to 2–2.) During a final pretrial conference on February 28, the Court excused a number of prospective jurors who had claimed hardships on their questionnaires. (Feb. 28, 2011 Transcript (“2/28 Tr.”) 6.)

On March 1, 2011, voir dire commenced, and approximately 175 jurors, including Conrad, swore the following oath: “Do each of you solemnly swear that you will give true answers to all questions as shall be put to you touching upon your qualifications to serve as jurors in this case?” The Court sought to qualify forty-two prospective jurors from whom a twelve-person jury and six alternates would be selected.¹ Conrad was present in the courtroom throughout the three-day voir dire and was among the first to be seated in the jury box. After the prospective jurors were sworn, the Court explained, inter alia, the function of voir dire and that it is a French term meaning “to speak the truth.” (Trial Transcript dated Mar. 1, 2011 through May 24, 2011 (“Trial Tr.”) 10.) This Court then 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. This Court informed prospective jurors that “if any of you have an answer to any question that you prefer not to give in public, just let me know, and the lawyers and I will hear you up here at the sidebar of the bench.” (Trial Tr. 15–16.) Throughout voir dire, several prospective jurors offered sensitive or potentially embarrassing personal information at sidebar. ( See, e.g., Trial Tr. 31, 40, 47, 52, 79, 82, 112.) Conrad did not.

After posing questions generally to the venire, this Court made inquiries of each prospective juror individually. Conrad was present for all of the individual questioning, including each prospective juror's responses and all of the Court's follow-up inquiries. Importantly, Conrad listened to the Court's individual voir dire of two jurors on the first day of jury selection and had the opportunity to reflect overnight on how she would answer the following morning. (Trial Tr. 133–39.) The individual voir dire of Conrad proceeded on March 2 as follows:

THE COURT: Now I think what I'd like to do is to return to some individual questioning of jurors. I think Ms. Conrad, Juror No. 3, that I was about to begin with you when we suspended yesterday. So first would you tell us what neighborhood you reside in?

CONRAD: Bronx Village [sic] [Bronxville] in Westchester.

THE COURT: How long have you lived at your current address?

CONRAD: My whole life.

THE COURT: Do you own or rent?

CONRAD: We own.

THE COURT: Who are the other members of your household?

CONRAD: I live with my husband. He's retired at this point.

THE COURT: What is he retired from?

CONRAD: He owns some bus companies.

THE COURT: Do you work outside the home?

CONRAD: No. I'm a stay-at-home wife.

THE COURT: Do you have any children?

CONRAD: No.

THE COURT: All right. What is the highest level of education you've attained?

CONRAD: I have a BA in English literature [and] classics, and I studied archeology abroad.

THE COURT: What do you do in your spare time?

CONRAD: I like to read. We travel. I take care of an elderly aunt.

THE COURT: How generally do you get your news?

CONRAD: Periodicals, magazines, newspapers, radio, cable, internet.

THE COURT: Can you identify someone for us who we'd all know who you admire most?

CONRAD: Probably dating myself, but the ex-grid [sic] great Lynn Swann from the Steelers. Unbeknownst to many people, he did study ballet, and I admire him because I think he combined grace and grit under pressure.

THE COURT: All right. Is there anything that you think it would be important for us to know about you in making a decision as to whether you should serve as a juror in this case?

CONRAD: If the trial lasts more than three months, I'm still available.

THE COURT: All right. Thank you very much. Is there any reason that you feel you could not be fair and impartial in this case, Ms. Conrad?

CONRAD: Not at all.

THE COURT: Thank you, ma'am.

(Trial Tr. 203–05.)

During the course of voir dire, this Court excused 117 prospective jurors from the venire. ( See, e.g., Trial Tr. 113–15, 293–95.) At the conclusion of voir dire on March 3, this Court asked whether counsel wished that further inquiry be...