United States v. Kuljko

• Decision Date: 15 June 2021
• Docket Number: No. 19-2232,19-2232
• Parties: UNITED STATES of America, Appellee, v. Stephan KULJKO, Jr., a/k/a Steven J. Kuljko, a/k/a Stephan Kuljko, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

1 F.4th 87

UNITED STATES of America, Appellee,

v.Stephan KULJKO, Jr., a/k/a Steven J. Kuljko, a/k/a Stephan Kuljko, Defendant, Appellant.

No. 19-2232

United States Court of Appeals, First Circuit.

June 15, 2021

John F. Palmer for appellant.

Donald C. Lockhart, Assistant United States Attorney, with whom Andrew E. Lelling, United States Attorney, was on brief, for appellee.

Before Howard, Chief Judge, Selya, Circuit Judge, and Gelpí,^* District Judge.

SELYA, Circuit Judge.

Mounting several disparate claims of error, defendant-appellant Stephan Kuljko, Jr., a convicted fraudster who hornswoggled dozens of victims out of millions of dollars, asks us to annul the verdict returned by a jury after a lengthy trial, set aside his convictions, and vacate his 156-month incarcerative sentence. Concluding, as we do, that the appellant's arguments are as empty as the glittering assurances that he offered to those whom he defrauded, we affirm his convictions and sentence.

I

We briefly rehearse the travel of the case. The government's investigation yielded copious evidence that the appellant had masterminded two serpentine schemes, both fraudulent, over a protracted period of time. One scheme involved a bank account, supposedly frozen, which (the appellant represented) contained large sums of money. The other scheme involved an emerald, supposedly huge and extremely valuable, which (the appellant represented) was being held in South America. Spinning tales of riches there for the taking, the appellant hoodwinked over forty victims and bilked millions of dollars from them over a period that stretched for more than a decade.

When the facts surrounding the appellant's nefarious activities came to light, a federal grand jury sitting in the District of Massachusetts charged him with various crimes. A superseding indictment, handed up on November 6, 2018, charged the appellant with five counts of wire fraud, see 18 U.S.C. § 1343, and one count of obstruction of justice, see id. § 1503(a). The obstruction-of-justice count was premised on an allegation that the appellant, shortly after the original indictment was returned, took steps to conceal some twenty-three motor vehicles that were among the fruits of his fraudulent activity.

The appellant maintained his innocence and a twelve-day jury trial ensued. The jury found the appellant guilty on four of the five wire-fraud counts and on the obstruction-of-justice count. The appellant was acquitted on the remaining wire-fraud count. The district court sentenced the appellant to an upwardly variant 156-month term of immurement. This timely appeal followed.

II

In this venue, the appellant advances two claims of trial error and a cluster of claims of sentencing error.¹ Since none possesses even a patina of plausibility, we make short shrift of them.

A

The appellant first argues that his convictions cannot stand because the district court improperly refused to remove a juror (whom we shall call Juror 31) for cause. Some stage-setting is useful.

Jury empanelment took place on August 5, 2019 (the day before the trial itself started). At the lunch break, Juror 31 — then a member of the venire — exchanged a brief salutation with an assistant United States attorney (the AUSA) in the courthouse cafeteria.² The prosecutor reported this exchange to the district court, which proceeded to conduct an individualized voir dire of the juror. In response to the court's queries, Juror 31 said, in substance, that her coworker's husband (the AUSA) worked in the building; that she thought he might be a prosecutor; that she did not know his surname; that she had met him "probably five times and never had a conversation with him"; and that "he saw me at lunch and said hi." She assured the court that — even assuming that the AUSA toiled in the same office as the prosecutor — it would not affect her ability to serve as a juror "because I only know his wife, and we don't have conversations about him or what happens here."

After the court's interrogation of Juror 31 had concluded and the juror had left the courtroom, the district court found her credible and advised counsel that it did not "see a reason to excuse her." The appellant's attorney asked the court to pose an additional question. The court obliged, had Juror 31 brought back to the courtroom, and inquired whether, given that the AUSA was married to her coworker and served in the same office as the prosecutor, it would "be awkward or uncomfortable if it turned out you were on a jury that found a defendant not guilty because it would be uncomfortable with your colleague at all?" The juror replied in the negative and the district court again found that she was qualified to serve on the jury. The appellant neither objected nor asked the court to remove Juror 31 for cause. And after the venire had been whittled down, the appellant's attorney did not use a peremptory strike to eliminate Juror 31. It thus came to pass that Juror 31 was seated as one of the twelve trial jurors.

Before opening statements the next day, the district court pointed out that, according to a memorandum describing witness interviews, the AUSA — although not participating in the appellant's trial — had participated in some portion of an interview of a prospective witness. The court stated that, given that the AUSA's wife worked with Juror 31, "[i]t would probably be preferable not to mention [the AUSA's] name." Neither side objected, and in line with the court's stated preference, the AUSA's name was never mentioned before the jury.

On the third day of trial, the appellant — for the first time — asked the district court to excuse Juror 31. The court refused to do so. Two days later, the court revisited the matter and asked defense counsel if he wanted to say anything more about the possibility of excusing Juror 31. Counsel responded that, had he known that the AUSA "was actually participating" at the witness interview, he "would have exercised a peremptory [strike] to get rid of her."³ The district court said that it would "think about it further."

The next day, defense counsel told the court that he still believed that Juror 31 should be excused for cause. The court reserved decision and, on the following day, again questioned Juror 31. She assured the court once more that her passing acquaintance with the AUSA had "no connection" to her duties as a juror. She then declared that "[m]y responsibility here is as part of this jury." When the court inquired if there was "any reason why you couldn't continue to be an open-minded, fair and impartial juror, fair to both sides," she replied, "None whatsoever." The court, satisfied that Juror 31 would serve impartially, again refused to remove her. Juror 31 served on the jury through the end of the trial and was one of the jurors who returned the verdict.

Against this backdrop, the appellant argues that the district court should have excused Juror 31 for actual bias or, at least, for implied bias. Preserved challenges to the seating of a juror are reviewed for abuse of discretion. See United States v. Kar, 851 F.3d 59, 68 (1st Cir. 2017) ; United States v. Godfrey, 787 F.3d 72, 81 (1st Cir. 2015). Here, it is quite likely that the appellant's challenge (or at least some aspects of it) was either waived or forfeited. See, e.g., United States v. Soto, 799 F.3d 68, 96 (1st Cir. 2015) ; United States v. Chapdelaine, 989 F.2d 28, 32 (1st Cir. 1993). But even if we assume, for argument's sake, that the appellant's challenge was fully preserved, it nonetheless fails.

A district court has considerable leeway in probing concerns about juror impartiality and in determining what remedial measures, if any, may be appropriate. See United States v. Tejeda, 481 F.3d 44, 52 (1st Cir. 2007) ; United States v. Rodríguez-Ortiz, 455 F.3d 18, 23 (1st Cir. 2006). Where, as here, the district court has had the opportunity to question the challenged juror and to see and hear her responses in real time, the party who challenges the court's decision to allow the juror to sit ordinarily faces an uphill climb. See Amirault v. Fair, 968 F.2d 1404, 1405 (1st Cir. 1992) (noting that "issues of juror credibility and honesty are determinations ‘peculiarly within a trial judge's province’ and are accorded great deference" (quoting Wainwright v. Witt, 469 U.S. 412, 428, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985) )).

In the case at hand, there is no hint of an abuse of discretion. Notably, the appellant finds no fault with the scope of the district court's interrogation of Juror 31. He argues instead that Juror 31's answers to the court's questions somehow require a finding that Juror 31 was either actually or impliedly biased.

The claim of actual bias is fanciful. The district court, after careful questioning, explicitly found that Juror 31 was credible in declaring her impartiality. That finding was premised not only on the juror's avowals but also on the court's assessment of her demeanor. Moreover, the finding was consistent with the uncontradicted facts concerning the tenuousness of Juror 31's derivative relationship with the AUSA. The appellant has identified no principled way in which we could second-guess it.

The claim of implied bias is also without merit. Such a claim requires " ‘exceptional’ or ‘extreme’ circumstances" giving rise to an implication of bias. Id. at 1406 (quoting Smith v. Phillips, 455 U.S. 209, 222, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982) (O'Connor, J., concurring)). As we explain below, no such circumstances existed here.

The appellant says, in effect, that bias should be implied because the juror had a coworker whose husband (the AUSA) labored in the same office as the prosecutor and participated in the pretrial interview of a witness. While we do not gainsay that even such an attenuated relationship was enough to spur a vigilant trial court to consider whether bias could be implied, the underlying hypothesis is sufficiently conjectural that bias could not be implied as a...