Sixth Circuit Reassigns Case from District Court That Failed to Give Defendants a “Meaningful Opportunity” to Investigate Juror Bias

In United States v. Lanier, No. 16-6655 (6th Cir. Feb. 11, 2021), on a third trip to the court of appeals, the panel grants the husband-and-wife defendants a new trial after the district court bobbles an investigation into a juror who allegedly communicated with a state prosecutor during the trial.

In 2015, the Laniers “were tried for conspiracy, wire fraud, and major fraud against the federal government.” During the trial, Juror 11 “called her friend [Nelson], a state prosecutor who is not involved in the Laniers’ case. The juror told Nelson that there was a ‘problem with the deliberations.’” Nelson informed the court and the judge told the lawyers; shortly thereafter, the jury convicted the defendants. The district court denied a motion for a mistrial based on juror misconduct.

On the first trip to the Sixth Circuit, the panel vacated the conviction and remanded for a Remmer hearing (Remmer v. United States, 347 U.S. 227 (1954)) on possible juror bias. United States v. Lanier (Lanier I), 870 F.3d 546 (6th Cir. 2017). On remand, the district court scheduled a hearing, and Juror 11 once again communicated with Nelson by text (who again informed the district court).

“The Remmer hearing took place on January 11, 2018. Nelson, Juror 11, and the remaining jurors testified. Nelson described the phone call that took place ….  Juror 11 thrice denied that she had spoken about the case to anyone besides her husband during the trial or deliberations before she admitted to calling Nelson ‘on the way [to court] one, one time and expressed my concern over the length of [the case] and how stressed I was.’” Juror 11 denied – and then admitted – texting Nelson, and also changed her story mid-hearing about whether she researched the case during the trial.

The defendants moved to examine Juror 11’s electronics, a laptop and a phone. The judge ordered Juror 11 to preserve her data. “After three weeks of back-and-forth between the Laniers, the district court, and this court, the district judge … ordered the juror to turn over to the court her phone and laptop.” The district court turned the equipment over to court staff who were not forensic experts. They discovered that the internet search history was tampered with, yet defendants were not informed of this finding for six weeks.

Defendants’ forensic expert submitted an affidavit stating “that recovering deleted data becomes more difficult as time passes and, accordingly, voiced urgency.” Nevertheless, the district court appointed another expert named Johnson to examine the electronics, causing more delay. The district court judge and clerk worked with Johnson ex parte, rejected the defendants’ search parameters, and even invoiced the defendants for Johnson’s time.

Frustrated with developments, the defendants sought to disqualify, and then mandamus, the judge. The writ of mandamus was denied, United States v. Lanier (Lanier II), 748 F. App’x 674, 675 (6th Cir. 2018), though the panel warned that the district court’s actions were “troubling” and reminded the judge that “the Laniers must be provided a ‘meaningful opportunity’ to investigate and prove their claim of extraneous influence.” By the time the hearing was finally convened, though, Juror 11’s phone and much of her data were missing and unrecoverable.

The Sixth Circuit vacates the convictions. “The district judge’s handling of the Remmer hearing and his ‘minimally timely, minimally adequate, investigation’ into Juror 11’s illicit communications and research undershot the district court’s constitutional obligations …. When there is evidence that, in the lead-up to a Remmer hearing, a juror has researched a case online or has electronically communicated with a third-party about the case, a district court must seek at minimum to preserve the relevant data and notify the defendants. Anything less flunks the Supreme Court’s guarantee that defendants must have a meaningful opportunity to demonstrate these communications’ ‘circumstances,’ their ‘impact[,]’ and ‘whether or not [the contacts were] prejudicial, in a hearing with all interested parties permitted to participate.’ Remmer, 347 U.S. at 230.”

The district court erred from the outset by withholding information from the defendants until it was too late to preserve and extract the relevant data from Juror 11’s electronics. ”The necessity of recovering this data became apparent at the hearing, where Juror 11 admitted—after spouting a string of contradictions—that she had looked up the case online and that she had spoken to her husband and Nelson about the case. Juror 11’s spurious and inconsistent testimony portended her lack of credibility and her later destruction of the data.”

“[T]he district court compounded its initial error; the court’s delays opened an eleven-month window for Juror 11 to destroy her phone and web-browsing data. The district court’s three-week resistance of the Laniers’ reasonable request to have Juror 11 produce her phone and computer allowed the juror an opening to wipe her browsing data. The judge then tasked his clerk and his IT staffer to take screenshots of the juror’s devices instead of appointing a forensic expert to examine the devices properly. Thus, the court could have, but did not, document the data that Juror 11 deleted. Perplexingly, the court waited six weeks to inform the Laniers of the missing web-browsing data, which undermined the Laniers’ ability to recover any relevant data not on the screenshots.”

At most, the panel holds that the defendants had some, but not a meaningful, opportunity to investigate juror bias, especially in the face of Juror 11’s evasions. “[W]hen a district court conducts a constitutionally inadequate Remmer hearing that fails to guarantee a defendant a meaningful opportunity to demonstrate jury bias, as occurred here, a new trial is in order.” The panel finally orders that the case reassigned. “The district court’s questionable handling of the Laniers’ case compromised the appearance of justice; to avoid the mien of partiality, we order that this case be assigned to a different district judge on remand.”

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