United States v. Feng Ling Liu

• Decision Date: 14 November 2014
• Docket Number: No. 12–CR–934 RA.,12–CR–934 RA.
• Citation: 69 F.Supp.3d 374
• Parties: UNITED STATES of America, v. FENG LING LIU a/k/a/ “Karen,” Vanessa Bandrich, and Rui Yang a/k/a “Rachel,” a/k/a “Sunny”, Defendants.
• Court: U.S. District Court — Southern District of New York

69 F.Supp.3d 374

UNITED STATES of America

v.FENG LING LIU a/k/a/ “Karen,” Vanessa Bandrich, and Rui Yang a/k/a “Rachel,” a/k/a “Sunny”, Defendants.

No. 12–CR–934 RA.

United States District Court, S.D. New York.

Signed Nov. 14, 2014.

Brian Roger Blais, Robert Lee Boone, Andrew Caldwell Adams, Harris Fischman, Rebecca Gabrielle Mermelstein, U.S. Attorney's Office, SDNY, New York, NY, for Plaintiff.

Paul Lewis Shechtman, Benjamin Joseph Voce–Gardner, Zuckerman, Spaeder LLP, Arnold Jay Levine, Cesar De Castro, The Law Firm of Cesar De Castro, P.C., Eric P. Franz, Eric Franz, PLLC, Sean Michael Maher, The Law Offices of Sean M. Maher, PPLC, Michael Steven Schachter, Willkie Farr & Gallagher LLP, Raymond H. Wong, Law Offices of Raymond H. Wong P.C., George Robert Goltzer, George Robert Goltzer, Kenneth Alan Paul, Law Office of Kenneth A. Paul, Stanislao A. German, Law Office of Stanislao A. German, David Touger, Peluso & Touger, Hugh Hu Mo, The Law Firm of Hugh H. Mo, P.C., Donald Dennis Duboulay, Donald Duboulay, Esq., Paul Joseph McAllister, Paul J. McAllister, Joshua Lewis Dratel, Law Offices of Joshua L. Dratel, P.C., New York, NY, Stuart David Rubin, Stuart D. Rubin, Esq, Brooklyn, NY, for Defendants.

OPINION AND ORDER

RONNIE ABRAMS, District Judge:

On April 14, 2014, a jury convicted Rui Yang and her co-defendants, Feng Ling Liu and Vanessa Bandrich (collectively “Defendants”), of one count of conspiracy to commit immigration fraud pursuant to 18 U.S.C. § 371. The evidence at trial established that Defendants, each of whom worked at one of two law firms in New York's Chinatown, conspired over a multi-year period to submit approximately 1,800 fraudulent asylum applications to federal immigration authorities. Ms. Yang, joined by her co-defendants, now moves for a new trial under Fed.R.Crim.P. 33 based on alleged juror misconduct. They contend that one of the jurors in this matter lied about the fact that she had been routinely posting about her jury service on the social media service Twitter—or “tweeting”—during the trial. Defendants further argue that the juror disobeyed the Court's instructions by tweeting and that the tweets reveal the juror's bias against them. All this, they claim, deprived them of their Sixth Amendment right to a trial by an impartial jury. As the Court stated at Defendant Yang's sentencing, and for the reasons that follow, the Court concludes otherwise. Defendants' motion is therefore DENIED.

I. BACKGROUND

Defendants' present challenge focuses on the conduct of the individual who served as Juror 2 and who, as it happens, was not the only juror to tweet in this case. Trial began on March 19, 2014, with jury selection. In the course of those proceedings, Juror 2 indicated during voir dire that she was a self-employed crime fiction writer. (Voir Dire Tr. 255.) She noted that she “watch [es] pretty much every crime show on TV.” (Id. at 257.) In response to a question about her Internet habits, Juror 2 mentioned that she uses Twitter “for social stuff.”¹ (Id. ) She also disclosed, among other things, that her uncle is a sitting federal judge in this District, that her “father came [to the United States] seeking asylum,” and that, “[l]ike everybody in New York, [she had] been a victim of theft.” (Id. at 176–76; 255–56; 357–58.) No party made any for-cause challenge to Juror 2.

Prior to dismissing the jury on March 20, the Court instructed its newly seated members—including Juror 2—as follows, in pertinent part:

Now, a few words about your conduct as jurors. First, during the trial you are not to discuss the case with anyone, nor are you to permit anyone to discuss it with you. Until you retire to the jury room at the end of the case to deliberate, you're simply not to talk about the case. Do not even discuss the case with each other until your actual deliberations begin at the end of the trial....

Second, if anyone should try to talk to you about the case, please bring it to the attention of Ms. Cavale, my courtroom deputy, and she'll bring it to my attention.... Do not talk or read about the facts or circumstances of this case on social networking sites such as Facebook or MySpace. Don't tweet about your experience here on Twitter, and don't try and find any information about this case or any similar case, whatsoever.

Third, you're instructed not to read, listen to, or watch media reports on television, in the newspaper, on radio or internet about the case, if there even [are] any. You must not be influenced by anything you might see or hear outside of the courtroom. If you inadvertently come across a news report relating to this case, immediately stop reading, listening, or watching. You should then tell Ms. Cavale that, no one else, again, including your fellow jurors about that fact.

Fourth, do not do any research or investigation about the case, or anything touching upon the case. Again, don't go on the internet, do any searches about the case or these kinds of cases. And I apologize for be repetitive. This is very important....

It is important to keep an open mind throughout the trial and reserve judgment until after all of the evidence is in. Until you have heard all the evidence, the closing arguments and my instructions on the law, you're really not in a position to reach any conclusions in this case. And, therefore, you have to keep an open mind....

Now I'm going to excuse you for the weekend. Thank you. Again, remember, keep an open mind. Don't talk about this. Don't research it, and I look forward to seeing you all promptly on Monday morning.

(Tr. 40–42, 45 (emphasis and paragraph breaks edited).) Opening statements began the following Monday, March 24. The direction to not discuss the case and to keep an open mind was reiterated with some frequency during the trial. (Tr. 156, 234, 353, 407, 462, 511, 586, 637, 691, 745, 807, 849, 924, 958, 1010, 1044, 1082, 1162, 1211, 1292, 1449, 1599, 1677, 1782, 1824, 2035, 2103, 2182, 2238.)

Shortly after midnight on April 9, as the trial neared its end, counsel on both sides received an anonymous email from an individual purporting to do “research on juror misconduct” and advising that one of the jurors in this case—Juror 10—was tweeting about the trial. (Ex. 7.) Juror 10's tweets, spanning from March 20 through April 7 and amounting to about one tweet a day, included the following:

Add in just one song & dance number, and this federal case would rival anything I've seen on # broadway # juryduty rocks

But for my ADD, I'd want to be an ADA. Thanks DAD.

Can't help wondering who would win if the # prosecutors played the # defense attorneys in # colorwar # juryduty

# Courtside seats! # juryduty

The first rule of # juryduty is you do not talk about # juryduty

That awesomely awkward moment the lawyer's cell rings from his pocket during cross, and he tries to blame it on his paralegal. # juryduty

Only commonality between the # prosecution and # defense seems to be the propensity for @RicolaUSA # Eventhejudgeissick # juryduty

(Ex. 8.) After the email was brought to the Court's attention the next morning, defense counsel sought the removal of the juror with the Government's consent. (Tr. 2112.)

The Court then informed Juror 10 that she had “ignored my direction not to talk about the case on social media and that [she had] been tweeting about [her] jury service.” (Id. at 2125.) The juror acknowledged that she had, in fact, tweeted about her jury service. (Id. ) But she also expressed confusion at being reprimanded for doing so: “I mean I made a point to not to write anything about what—whatever needs to happen, I completely understand, but I mean I just made a point to not reference anything, just that this is what I'm doing, still on jury duty, still on jury duty.” (Id. at 2126.) Indeed, in the course of that colloquy, the Court acknowledged that Juror 10 seemed “surprised” about the confrontation. (Id. at 2125.) Nevertheless, because the tweet about “want[ing] to be an ADA,” in particular, “could potentially show some bias,” the Court informed Juror 10 that she would be dismissed. (Id. at 2125, 2129.) When asked whether she had communicated about the case with other jurors, Juror 10 replied: “Absolutely not.” (Id. at 2125.) She also “completely apologize[d]” for her actions. (Id. at 2130.)

After Juror 10 had been dismissed, in speaking with counsel, the Court confirmed that the tweeting had been “improper.” (Id. at 2130.) The Court also agreed with defense counsel that the reference to the prosecutors and defense attorneys engaging in a game of Color War was “undoubtedly inappropriate.” (Id. at 2131.) The Court then added:

[T]hat being said, I do think part of my initial instructions said if you have a family member, you can say you are on jury duty, you are just not allowed to talk about the substance of it. And it doesn't appear she has actually talked about the substance.

(Id. at 2130–31.) Finally, the Court noted that “as a precaution we should speak with each of the jurors” to determine whether they had any improper communication with Juror 10. (Id. at 2131.) As evident from discussions with counsel concerning what questions should be asked of the other jurors, these inquiries were focused on improper communications among the jurors, in particular. (See id. at 2119–20.)

In the course of those subsequent discussions, Juror 2—the juror around whom this motion centers—answered as follows:

THE COURT: Come on in. So, I'm asking this of all the different jurors just to confirm. Have you spoken or communicated about this case in any way with any of the other jurors?

JUROR 2: No.

THE COURT: Either in person or on social media?

JUROR 2: No.

THE COURT: In particular, have you communicated at all with Juror 10, [name omitted,] about the case?

JUROR 2: I don't know which one she is.

THE COURT: Oh, she is [name omitted].

JUROR 2: Which one is she? She looks like what?

LAW CLERK: She has the short hair.

THE COURT: Dark hair, petite, stylish.

JUROR 2: Oh. No. I'm like I don't know. I know them by

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