Second Circuit Awards David Parse, a Daugerdas Related Defendant, for Juror Misconduct (6/9/15)

The Second Circuit yesterday reversed Judge Pauley's denial of a new trial for David Parse for juror misconduct.  See United States v. Parse, ___ F.3d ___, 2015 U.S. App. LEXIS 9492 (2d Cir. 2015), here.  Readers may recall that Parse was a co-defendant with Daugerdas et al. in the major bullshit -- aka fraudulent -- tax shelter prosecution in the Southern District of New York. Most of the defendants were convicted in the first trial, but a major incident of juror misconduct soon surfaced.  The incident has been recounted elsewhere and is laid out in great detail in this Second Circuit decision.  The trial judge, Judge Pauley, gave all convicted defendants except Parse a new trial.  He denied Parse a new trial because of certain perceived footfaults by Parse's lawyers related to when they should have had sufficient knowledge of the potential juror misconduct that they should have brought it to the trial judge's attention.  In my prior postings on the denial of relief to Parse, I acknowledge that Judge Pauley is a good judge, but concluded that he got this one wrong.  See Daugerdas and Others, But Not All, Get New Trial (Federal Tax Crimes Blog 6/4/12; revised 6/22/12), here; Daugerdas Defendant Whose Conviction Was Not Dismissed Claims Ineffective Assistance of Counsel (8/7/12), here; Daugerdas Defendant Loses Ineffective Counsel Claim (Federal Tax Crimes Blog 1/11/13), here; and USA SDNY Announces Sentencing of Daugerdas Related Defendant (Federal Tax Crimes Blog 3/23/13), here.

The Second Circuit concluded that something was amiss as well and reversed for a new trial on the ground that the lawyer's conduct did not waive the juror prejudice to Parse.  The Court determined that the trial judge's conclusion to the contrary was clearly erroneous.  The opinion is long, but a great read.

I like the opening of the concurring opinion by Judge Straub which captures the majority's holding and states his difference:

David Parse is entitled to a new trial. I write separately because I believe he is entitled to a new trial whether or not his attorneys knew of the juror misconduct in this case. 

The circumstances presented by this appeal are extraordinary. As the majority put it, this is a case in which one of the empaneled jurors, Catherine Conrad, 

aligned herself with the government, lied pervasively in voir dire for the purpose of avoiding dismissal for cause, believed prior to the presentation of any evidence that the defendants were "'crooks,'" and expressly mentioned Parse as a target of her efforts to persuade the other jurors to convict. 

Maj. Op. at 56. Where, as here, there is an uncontroverted finding by the District Court that a juror who rendered verdict was actually biased and, indeed, perjured herself in order to ensure that she was seated on the jury, a defendant cannot waive his right to a new trial. Therefore, I join in all but Part II.A of the majority's opinion. As to that section, I concur only in the result. n1
   n1 I am not persuaded by the majority's conclusion that the District Court clearly erred in finding that Parse's attorneys knew that Conrad had lied during voir dire. See Maj. Op. at 43-54. The District Court was in the best position to assess Trzaskoma's credibility, and the record does not demonstrate that the District Court's factual determinations were clearly erroneous. See United States v. McLean, 287 F.3d 127, 133 (2d Cir. 2002) ("We give a district court's findings as to the credibility of witnesses 'strong deference.'"). Nevertheless, because I believe Parse could not have waived his right to an impartial jury even if his attorneys knew of the juror's misconduct, I find it unnecessary to address the issue.

Finally, there is the juror's interesting comment that Parse could not have been prejudiced by her staying on the jury even if she lied to stay on.  She was an incorrigible liar and frequently on the wrong side of the law and ethics and kept that from the parties and the judge.  Her notion was that her sordid past would / should be good for an obviously guilty defendant, so what's his complaint?

I am sure that, had she been truthful in voir dire, the Government would have moved to strike and, I suspect the judge would have dismissed.  But, it would be interesting to hear from my defense counsel witnesses whether they would have move to strike this juror had she been truthful.  As it turned out, she was perhaps the strongest juror for the Government's case, obviously star struck by the prosecutors.