First Circuit Court Of Appeals Upholds Fraud Convictions, Finding No Actual Or Implied Juror Bias

In U.S. v. Kuljko, the defendant, a “convicted fraudster who hornswoggled dozens of victims out of millions of dollars,” requested that the Court of Appeals for the First Circuit vacate the jury’s guilty verdict, in part due to the trial court’s failure to dismiss a juror for actual or implied bias.

The defendant was charged with five counts of wire fraud and one count of obstruction of justice related to two schemes where he defrauded victims out of millions of dollars. The defendant was convicted of four of the wire fraud counts and the obstruction of justice count following a twelve-day jury trial and was sentenced to 156 months in prison. The defendant appealed.

One of the defendant’s claims on appeal was that his convictions should be overturned because the District Court improperly refused to remove a juror for cause. The juror in question had waved at a prosecutor in the hall of the courthouse. That juror had informed the court during voir dire that her co-worker’s husband was an Assistant United States Attorney, but assured the court that it would not impact her ability to serve as a juror, as she only knew his wife and they did not discuss the AUSA or the what happens at his work. The trial court further questioned the juror and found her credible in her assertion of impartiality. The juror was seated as one of the twelve trial jurors.

Later, it was brought to the court’s attention the AUSA whose wife worked with the juror was present during a witness interview for one of the witnesses during the trial. The court suggested that neither party reference that AUSA’s name during the trial and neither side objected. On the third day of trial, the defendant, for the first time, asked the District Court to excuse the juror, but the Court refused. The defendant raised the issue again several days later, and the juror was again questioned. She assured the court her passing acquaintance with the AUSA had no connection to her duties as juror and there was no reason why she could not continue to serve impartially. The Court declined to excuse her.

On appeal, the defendant argued that the juror should have been excused for actual or implied bias. The Court of Appeals noted that preserved challenged to the seating of a juror are reviewed for abuse of discretion and, in this case, it is very likely that the defendant’s challenge was, at least in part, waived or forfeited. However, the Court found, that even if the defendant’s challenge was appropriately preserved it would fail.

The Court noted that the trial court has substantial leeway in probing concerns about juror impartiality and determining what, if any, remedial measures may be appropriate. The Court found no fault with the trial court’s questioning of the juror in this case. Looking at the juror’s answers to the trial court’s questioning, the Court of Appeals found any claim of actual bias to be “fanciful,” as the trial court carefully questioned the juror and, considering both her actions and demeanor, found she was credible when she said she expressed her impartiality. The Court of Appeals also found that the juror’s claims of impartiality were consistent with the tenuous nature of her relationship with the AUSA.

The Court also rejected defendant’s claim of implied bias, as such a claim requires exceptional or extreme circumstances giving rise to the implication of bias. The Court found the defendant’s claim that bias should be implied because the juror had a coworker whose husband worked in the same office as the prosecutor and participated in the pretrial interview of a witness was sufficiently conjectural that bias could not be implied as a matter of law. As such, the Court rejected the defendant’s claim that it was error for the trial court to fail to remove the juror.


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