United States v. Loughry

• Decision Date: 21 December 2020
• Docket Number: No. 19-4137,19-4137
• Parties: UNITED STATES of America, Plaintiff - Appellee, v. Allen H. LOUGHRY II, Defendant - Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

983 F.3d 698

UNITED STATES of America, Plaintiff - Appellee,

v.Allen H. LOUGHRY II, Defendant - Appellant.

No. 19-4137

United States Court of Appeals, Fourth Circuit.

Argued: October 29, 2020

Decided: December 21, 2020

ARGUED: Elbert Lin, HUNTON ANDREWS KURTH LLP, Richmond, Virginia, for Appellant. Richard Gregory McVey, OFFICE OF THE UNITED STATES ATTORNEY, Huntington, West Virginia, for Appellee. ON BRIEF: Nicholas D. Stellakis, Boston, Massachusetts, Katy Boatman, HUNTON ANDREWS KURTH LLP, Houston, Texas, for Appellant. Michael B. Stuart, United States Attorney, Philip H. Wright, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charleston, West Virginia, for Appellee.

Before NIEMEYER, DIAZ, and QUATTLEBAUM, Circuit Judges.

Affirmed by published opinion. Judge Niemeyer wrote the opinion, in which Judge Quattlebaum joined. Judge Diaz wrote a separate opinion joining in Parts III and IV and dissenting from Part II.

NIEMEYER, Circuit Judge:

After the former Chief Justice of the Supreme Court of Appeals of West Virginia, Allen H. Loughry II, was convicted of mail fraud and wire fraud for the misuse of public assets, he filed a motion challenging the fairness of his trial on the grounds that a juror — referred to by the district court and the parties as Juror A — allegedly engaged in misconduct and was biased. He requested a new trial or at least a hearing on his motion. The district court denied Loughry's motion, concluding that the evidence Loughry presented was insufficient to sustain his claims or even to justify a hearing.

The court thereafter sentenced Loughry to 24 months’ imprisonment, imposed a $10,000 fine, and ordered restitution.

From the district court's judgment dated February 25, 2019, Loughry filed this appeal, alleging only that the district court abused its discretion in denying his request for an evidentiary hearing to investigate Juror A's potential misconduct and bias.

For the reasons that follow, we affirm.

I

In October 2017, the news media in Charleston, West Virginia, began investigating and reporting about lavish spending of public funds by justices of the West Virginia Supreme Court of Appeals for renovation and refurbishing of their offices, and shortly thereafter a federal investigation ensued. The investigation led to evidence that Loughry removed a historical desk from the court to his home; that he improperly used state vehicles and gas credit cards for personal use; and that he obstructed justice during the course of the investigation. The historical desk, which became prominent in the news coverage, was one that was selected for use in the courthouse in the 1920s by Cass Gilbert, a prominent architect who designed the West Virginia State Capitol, the United States Supreme Court building, the Woolworth building in New York, and other well-known buildings. The desk was thus referred to as the "Cass Gilbert desk."

In June 2018, a grand jury returned a 25-count indictment charging Loughry with mail fraud, wire fraud, and related crimes. During the same period, the West Virginia Judicial Investigations Commission filed a complaint against Loughry, alleging numerous violations of the state Judicial Code of Conduct, and the Judiciary Committee of the West Virginia House of Delegates began impeachment proceedings against Loughry, as well as three other sitting justices of the West Virginia Supreme Court.

The criminal trial against Loughry began on October 2, 2018, with voir dire of the venire — the pool from which the jurors are selected. As is customary, the district court summarized for the venire the charges made against Loughry in the indictment and inquired whether any prospective juror knew Loughry; whether any knew the prospective witnesses; whether any were related to law enforcement officers; and whether any had ever served on a jury or as a witness in a criminal case.

With respect to the pending charges, the court inquired whether any of the prospective jurors had any knowledge or exposure to "this case" or the "facts of this case," and whether they had discussed the case with anyone. The court asked similar questions about the impeachment proceedings against Loughry and the other justices that were taking place in the state legislature. In response to affirmative responses from prospective jurors, the court inquired about whether those prospective jurors could set aside their knowledge or experience and "listen to the evidence and base a verdict solely upon the evidence received here in the courtroom." Finally, the court followed up with general questions about bias or preheld opinions about the guilt or innocence of the defendant. After these and similarly general voir dire questions, the court allowed counsel for the parties to conduct voir dire of individual prospective jurors who responded affirmatively to any of the questions.

During this process, Juror A answered "no" to questions of whether she had knowledge "of this case" or "facts of this case"; answered "yes" to questions of whether she had knowledge of the impeachment proceedings; and answered "yes" to whether she could set aside her knowledge and render a verdict based solely on the evidence presented at trial. Loughry did not elect to conduct any further individual voir dire of Juror A, and she was impaneled as a juror, as was another juror who had answered these questions similarly to Juror A.

Following six days of trial and two days of deliberation, the jury returned a verdict finding Loughry guilty of eleven counts — one count of mail fraud, seven counts of wire fraud, one count of witness tampering, and two counts of making false statements to a federal agent — and acquitting him of one count of mail fraud and nine counts of wire fraud. The jury was unable to reach a verdict on one count of wire fraud. After the jury returned its verdict, the district court entered a judgment of acquittal as to the witness-tampering count for a lack of sufficient evidence. (The government had dismissed the three other counts of the indictment before trial.) Of significance here, the jury acquitted Loughry on the count charging him with mail fraud in connection with his removal of the historical Cass Gilbert desk from the Supreme Court building to his home, which had been the subject of extensive media coverage.

Shortly after trial, an individual on the street outside the Kanawha County Courthouse approached counsel for Loughry and informed him that he should look at the Twitter account of Juror A. Counsel did so and saw that Juror A had "liked" or "retweeted" four tweets over the summer of 2018 related to the West Virginia Supreme Court scandal.

Twitter is a social networking platform that allows a person to post and read short messages called "tweets." Tweets can be up to 280 characters long and can include links to websites and other resources. A Twitter user can also "follow" other Twitter users, electing for those users’ tweets to appear on his or her "home timeline" or "feed." The Twitter user can reply to a tweet with a comment, indicate that the user "liked" a tweet by tapping a heart icon, and republish a tweet to the user's own followers by "retweeting" it or quoting it. Twitter can thus be, and often is, used to receive news, to follow leaders and celebrities, or simply to stay in touch with family and friends.

Loughry's counsel found that Juror A had "liked" or retweeted some 11 tweets during the four months before Loughry's trial, and 4 of them related to comments about the conduct being reported about the justices of the West Virginia Supreme Court, as follows:

June 7, 2018 : Juror A "liked" and retweeted a tweet by a state legislator, Delegate Mike Pushkin, stating: "When the soundness of the judiciary is questioned, coupled with the corrupt activities of other branches of government, how is the public ever to have any faith in State government?" The tweet contained a link to a West Virginia Gazette Mail article about the civil complaint filed by the Judicial Investigations Commission charging ethics violations.

June 26, 2018 : Juror A "liked" a tweet by another state legislator, Delegate Rodney Miller, stating: "Legis Special Session begins at noon today looking at Supreme Court impeachments; more state employees quitting/fired; DHHR $1 million overspending for nothing; RISE program dysfunctional until Gen. Hoyer gets involved. My goodness we've got issues to take care of!"

June 26, 2018 : Juror A "liked" another tweet by Delegate Mike Pushkin, stating: "Justice Loughry should resign. The people of WV already paid for his couch, he should spare them the cost of his impeachment." The tweet contained a link to a West Virginia Gazette Mail opinion piece entitled, "Ken Hall: WV Justices who take advantage of public funds should resign."

August 7, 2018 : Juror A "liked" a tweet by private citizen James Parker, stating: "Yes, it's a sad day in WV to think these individuals who are supposed to be the pillars of what is right, just and truthful would be overcome with such an attitude of self importance that they thought the lavish spending was appropriate!"

Counsel also discovered that Juror A had accessed Twitter on at least two days during trial. On October 3 (the day the government began presenting its case), Juror A "liked" a tweet, and on October 6 (a Saturday on which the court was not in session), Juror A retweeted one tweet and tweeted one of her own. That activity on both dates, however, was related to football. Counsel also learned that Juror A was "following" two local journalists who had reported on the trial but did not provide any evidence that Juror A "liked" or retweeted those journalists’ tweets during trial.

Based on this Twitter activity, Loughry filed a motion for a new trial or, alternatively, for an evidentiary hearing, contending that Juror A engaged in misconduct and was biased. He argued that Juror A was biased against him based on her Twitter activity during the four months before trial and...