Bass, Berry & Sims attorney Chris Lazarini provided insight on a case in which a former broker sought to overturn a jury verdict finding him guilty of securities fraud, obstruction of justice and wire fraud by arguing, among other things, that the district court failed to investigate the potential extraneous influence on a jury member. After the broker presented evidence related to the juror allegation, the higher court remanded for an evidentiary “Remmer hearing” and investigation of the claim.
Chris provided the analysis for Securities Online Litigation Alert (SOLA). The full text of the analysis is below and used with permission from the publication. If you would like to receive additional content from the SOLA, please visit the SOLA website to sign up for the newsletter.
USA vs. Harris, No. 17-3087 (6th Cir., 2/5/18)
When a criminal defendant presents credible evidence that a juror may have been prejudiced against him by extraneous information, a court should investigate the claim and/or hold an evidentiary hearing on the matter.
Harris was an associated person with various broker-dealers from 2007 to 2014 who, during a FINRA investigation, attempted to mislead investigators about commissions he had earned in a stock-selling scheme. He was barred by FINRA (see SOLA 2017-44) and convicted of one count of conspiracy to commit securities fraud, one count of obstruction of justice and three counts of wire fraud. On appeal, he argued the district court erred in (1) barring him from impeaching a co-conspirator turned government witness, (2) admitting the government’s summary charts, (3) giving inaccurate jury instructions on fiduciary duties and (4) failing to investigate potential extraneous influence on a juror.
The Court reviews all challenges for abuse of discretion. Here, there was no abuse in the admission of summary charts because the challenged evidence included business records kept by clearing firms in the regular course and charts supported by underlying records produced to Harris prior to trial. There was also no abuse in the jury instructions.
The Court finds abuse, however, on the impeachment and potential juror influence issues. As to impeachment, Harris’ co-conspirator testified that Harris “invited” him to make a false statement to the FBI by reminding him of the fictitious statements they earlier made to FINRA. Citing Federal Rule of Evidence (“FRE”) 608(b), which prohibits using extrinsic evidence to attack a witness’ character for truthfulness, the district court would not allow Harris’ counsel to question the co-conspirator about a contradictory statement he made to counsel’s investigator. Here, though, the court should have admitted the contradictory statement under FRE 613, which allows a party to present a prior inconsistent statement that is irreconcilably at odds with the witness’s trial testimony. Because the co-conspirator was the only government witness on the obstruction of justice charge, the Appellate Court reverses the obstruction conviction and remands for a new trial on that count.
As to juror influence, Harris saw that during the days on which his trial took place, the live-in girlfriend of a juror had viewed his LinkedIn profile. Harris surmised that the girlfriend must have been directed to his LinkedIn page by a Google search. The Google search also contained links to information about his FINRA bar, evidence of which was excluded from the criminal trial. The district court denied Harris’ request that it investigate further or hold an evidentiary hearing to determine if the juror had been influenced by information passed to him by his girlfriend. Here, though, Harris made a colorable claim of improper influence and erred in not investigating the matter. The Court remands for a hearing on the potential extraneous influence that, if proven, would entitle Harris to a new trial on all counts.
The hearing on juror influence is called a “Remmer hearing” after Remmer v. United States, 347 U.S. 227, 229 (1954) (“In a criminal case, any private communication, contact, or tampering directly or indirectly, with a juror during a trial about the matter pending before the jury is, for obvious reasons, deemed presumptively prejudicial[.]”)