Monday, June 8, 2015

Juror's Lies On Voir Dire Lead To New Trial

The United States Court of Appeals for the Second Circuit has vacated and remanded a conviction in a high-profile tax prosecution based on findings that a juror lied extensively about her background in order to get on the jury.

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.

He was convicted of mail fraud and attempting to interfere with the administration of the federal tax laws.

The lies included the juror concealing the fact that she was a suspended attorney. Indeed, she created a fictitious persona in order to get on the jury.

Further, she concealed the fact that she was on probation for shoplifting at the time of the trial.

As the district court later found. the juror was "a pathological liar and utterly untrustworthy."

The investigation into the juror's lies began after she wrote a post-verdict letter to the prosecutors  "praising its performance at trial but lamenting the acquittals of Parse." 

The letter was turned over to defense counsel and the court about a month after receipt.

The circuit court found no waiver based on information that the defense had at the trial

although the court stated that Parse's attorneys' "suspicion that Juror No. 1 was not the person she represented herself to be during voir dire . . . . leavened into tangible evidence that Conrad was a monstrous liar," id. at 484 (emphasis added), that leavening did not occur until Conrad sent her May Letter to the government after the verdicts were returned. It was that post verdict letter that first disclosed the juror Conrad's (claimed) street address (against which one of the addresses in the Westlaw Report could be matched) and her telephone number (against which the telephone number shown for the suspended lawyer Catherine M. Conrad on the New York attorney registration website could be matched). And the monstrosity of her deliberate and purposeful voir dire deceit came to light in her statements to the court in the hearings conducted thereafter. As Conrad had "lied about virtually every detail of her life," id. at 473, almost none of the Westlaw Report information cited by the district court about the suspended lawyer matched the information Conrad had provided under oath during voir dire. The information in that Report did not support a finding that Parse's attorneys knew that Conrad the juror was the same person as Catherine M. Conrad the suspended lawyer.

Bloomberg Business reported that the juror testified that she had lied to "make [herself] more marketable" to serve as a juror.

Bloomberg further reported on the trial court hearing

Conrad also admitted she didn’t tell the judge that her husband had been convicted of crimes including check fraud, weapons possession, harassment and burglary. He served seven years and seven months in prison for auto theft, Conrad testified.

“Your husband is a career criminal, isn’t he,” [Daugerdas attorney Chris] Gair asked Conrad.

“So are most attorneys,” she answered, prompting laughter from some in the courtroom.

The district and circuit court did not join in the laughter.

Alison Frankel at Reuters has an interesting take on the implications of this decision.

Thanks to a reader for sending the opinion. (Mike Frisch)

https://lawprofessors.typepad.com/legal_profession/2015/06/the-united-states-court-of-appeals-for-the-second-circuit-has-reversed-a-conviction-in-a-high-profile-tax-prosecution-based-o.html

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