United States v. Sandalis , 14 F. App'x 287 ( 2001 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 00-4748
JOHN SANDALIS; MICHELLE SANDALIS,
Defendants-Appellants.

Appeal from the United States District Court
for the Western District of Virginia, at Charlottesville.
Norman K. Moon, District Judge.
(CR-98-82)
Argued: June 7, 2001
Decided: August 1, 2001
Before WILKINS and WILLIAMS, Circuit Judges, and
Andre M. DAVIS, United States District Judge for
the District of Maryland, sitting by designation.
Reversed and remanded with instructions by unpublished per curiam
opinion.
COUNSEL
ARGUED: Peter Hugh White, HUNTON & WILLIAMS, McLean,
Virginia, for Appellants. Gregory Victor Davis, Tax Division,
UNITED STATES DEPARTMENT OF JUSTICE, Washington,
D.C., for Appellee. ON BRIEF: Charles P. Rosenberg, Robert C.
Stacy, II, HUNTON & WILLIAMS, McLean, Virginia, for Appel-
2 UNITED STATES v. SANDALIS
lants. Paula M. Junghans, Acting Assistant Attorney General, Robert
P. Crouch, Jr., United States Attorney, Robert E. Lindsay, Alan
Hechtkopf, Meghan S. Skelton, Tax Division, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
John and Michelle Sandalis (collectively, the Sandalises) appeal
their convictions and sentences for various charges related to tax
fraud and tax evasion. On appeal, the Sandalises claim that the district
court erred by failing to strike prejudicial evidence regarding John
Sandalis’s character, by denying Michelle Sandalis’s motion for judg-
ment of acquittal, and by denying their motion for a new trial based
upon potential juror bias without holding an evidentiary hearing to
determine whether and to what extent the jury foreperson was biased
against them. We agree that the district court was required to conduct
an evidentiary hearing once allegations of the juror’s potential bias
surfaced; thus, we reverse and remand with instructions for the dis-
trict court to conduct such a hearing. Insofar as this evidentiary hear-
ing may prompt the district court to reach a different conclusion with
respect to the Sandalises’ motion for a new trial, we reserve judgment
on the remainder of the Sandalises’ issues on appeal pending receipt
of the district court’s order pursuant to this remand.
I.
Because our resolution of this appeal presently focuses on the
necessity of further evidentiary development on the claim of juror
bias, we will provide only a brief overview of the facts relevant to the
Sandalises’ convictions. The Sandalises operated Dalis Painting, Inc.,
one of the principal painting contractors for the University of Vir-
UNITED STATES v. SANDALIS 3
ginia. John Sandalis owned the company and managed the operations
and painting contracts, and Michelle Sandalis was the bookkeeper for
the company.
On December 10, 1998, a grand jury returned a six-count indict-
ment against the Sandalises. The grand jury indicted John Sandalis on
two counts of attempted tax evasion under 26 U.S.C.A. § 7201 (West
1989) (Counts One and Two) and two counts of preparing false tax
returns under 26 U.S.C.A. § 7206(1) (Counts Five and Six). The
grand jury indicted Michelle Sandalis on two counts of attempted tax
evasion under 26 U.S.C.A. § 7201 (West 1989) (Counts One and
Two) and two counts of assisting in the preparation and presentation
of false tax returns under 26 U.S.C.A. § 7206(2) (West 1989) (Counts
Three and Four).
The Sandalises were tried before a jury on March 13-15, 2000 in
the United States District Court for the Western District of Virginia.
On March 15, 2000, the jury returned a guilty verdict with respect to
all counts. After the verdict was returned, the Sandalises received
information that the jury foreperson, Elizabeth Braswell, had been
involved in recent, adversarial business dealings with the Sandalises.
Based upon this information, the Sandalises moved for a new trial. On
June 14, 2000, the district court held a hearing on the Sandalises’
motion and denied it, concluding that Braswell was not biased.
On October 2, 2000, the district court sentenced John Sandalis to
26 months imprisonment and sentenced Michelle Sandalis to 12
months imprisonment. On October 12, 2000, the Sandalises filed a
notice of appeal to this Court. On appeal, the Sandalises argue that the
district court erred by failing to conduct an evidentiary hearing for the
purpose of determining whether Braswell’s recent, undisclosed con-
tacts with the Sandalises rendered her biased against them.
II.
The Constitution guarantees that "[i]n all criminal prosecutions, the
accused shall enjoy the right to a speedy and public trial, by an impar-
tial jury." U.S. Const. amend. VI. We review the district court’s deci-
sion concerning whether to order an evidentiary hearing on juror bias
for abuse of discretion. United States v. Gravely, 840 F.2d 1156, 1159
4 UNITED STATES v. SANDALIS
(4th Cir. 1988). "A district court by definition abuses its discretion
when it makes an error of law." Koon v. United States, 518 U.S. 81,
100 (1996).
As is reflected in Federal Rule of Evidence 606(b),1 requests to
impeach jury verdicts pursuant to post-trial contact with jurors gener-
ally are disfavored. Gravely, 840 F.2d at 1159. However, when a
party makes a threshold showing that improper external influences
came to bear on the decision-making process of a juror, an evidentiary
hearing on juror bias not only is allowed under Federal Rule of Evi-
dence 606(b), but is required. See Remmer v. United States, 347 U.S.
227, 229-30 (1954) (holding that where defendant learned for the first
time after verdict that unnamed person had remarked to a juror during
trial that he could profit by bringing in a verdict favorable to defen-
dant and that the matter had been investigated by Federal Bureau of
Investigation at judge’s request, defendant was entitled to a hearing
to determine effect of remark and investigation on jury and whether
defendant had been prejudiced thereby); see also Tanner v. United
States, 483 U.S. 107, 117 (1987) (discussing, as one of the exceptions
to the general rule barring interrogation of jurors, allegations of "ex-
traneous influence" as affecting the jury’s verdict); United States v.
Malloy, 758 F.2d 979, 982 (4th Cir. 1985) (referring to the post-trial
evidentiary hearing regarding potential juror bias as a "required" hear-
ing); United States v. Herndon, 156 F.3d 629, 637 (6th Cir. 1998)
(holding that juror’s recollection, during trial, that juror may have had
prior business dealings with defendant was "extraneous influence" on
juror and that district court’s refusal to conduct an evidentiary hearing
on bias was an abuse of discretion); United States v. Brantley, 733
1
Federal Rule of Evidence 606(b) prohibits a juror from
testify[ing] as to any matter or statement occurring during the
course of the jury’s deliberations or to the effect of anything
upon that or any other juror’s mind or emotions as influencing
the juror to assent to or dissent from the verdict or indictment or
concerning the juror’s mental processes in connection therewith,
except that a juror may testify on the question whether extrane-
ous prejudicial information was improperly brought to the jury’s
attention or whether any outside influence was improperly
brought to bear upon any juror.
Fed. R. Evid. 606(b) (emphasis added).
UNITED STATES v. SANDALIS 5
F.2d 1429, 1439 (11th Cir. 1984) ("‘A party claiming that an improp-
erly influenced jury returned a verdict against him must be given an
opportunity to prove that claim.’" (quoting United States v. Forrest,
620 F.2d 446, 457 (5th Cir. 1980))). As the Supreme Court held in
Remmer, when allegations of juror impartiality surface, "[t]he trial
court should not decide and take final action ex parte . . ., but should
determine the circumstances, the impact thereof upon the juror, and
whether or not it was prejudicial, in a hearing with all interested par-
ties permitted to participate." Remmer, 347 U.S. at 229-30; see also
Smith v. Phillips, 455 U.S. 209, 215 (1982) (holding that "the remedy
for allegations of juror partiality is a hearing in which the defendant
has the opportunity to prove actual bias").
At the hearing on the Sandalises’ motion for a new trial, the Sanda-
lises presented numerous affidavits demonstrating that Braswell had
a continuous course of negative contacts with Dalis Painting and with
the Sandalises over the course of the previous two years. Throughout
1998 and 1999, Dalis Painting performed painting and lead abatement
work in and around Braswell’s office, which was situated within the
Faulkner House, a building on the campus of the University of Vir-
ginia. Employees of Dalis Painting and employees of the University
averred that Braswell had complained at length about various aspects
of Dalis Painting’s work. For example, Michael Ripley, one of Dalis
Painting’s employees, averred that he recognized Braswell as a
woman who "was always complaining" while they completed work in
and around her office. (J.A. at 91.) Another Dalis Painting employee,
Imad Saleh, averred that Braswell "complained constantly . . . about
the noise, dust, barricaded areas and the smell from the heat gun used
in stripping." (J.A. at 103.) Similarly, the project manager for the Uni-
versity of Virginia on the job involving Braswell’s office building
averred that a lady named "Beppy," which he later found out to be
Braswell’s nickname, "complained about many things, including very
small items and details on the job." (J.A. at 106.) Braswell spoke
directly to John Sandalis on at least two occasions to discuss her vari-
ous complaints. Braswell also spoke with Michelle Sandalis on at
least one occasion.2
2
The Sandalises also presented evidence indicating that Braswell
would have recognized them as the people about whom she had previ-
6 UNITED STATES v. SANDALIS
According to the affidavits, the Sandalises had a number of legiti-
mate reasons for their failure to discover Braswell’s potential bias
prior to the jury rendering its verdict. Several of Dalis Painting’s
employees came to court for the first time on the last day of trial and
informed John Sandalis after the verdict was returned that, as a result
of their work at the Faulkner House, they recognized Braswell. On the
jury list, Braswell had listed the Miller Center, rather than the Faulk-
ner House, as her place of employment.3 Because the Sandalises did
not recognize the Miller Center as a place they had worked, they also
did not recognize Braswell. Upon being informed about Braswell’s
connection to the Faulkner House, the Sandalises recalled their previ-
ous contacts with Braswell. Similarly, Braswell did not reveal her
prior contacts with Dalis Painting or with the Sandalises personally
when inquiry was made during voir dire.4
Having presented the district court with numerous affidavits,
detailing with sufficient indicia of reliability, examples of recent,
adversarial business dealings between Braswell and Dalis Painting, as
well as with the Sandalises personally, and having provided legitimate
ously complained. John Sandalis stated that he recalled meeting Braswell
during a site visit and that he personally performed the inspections
throughout the several months that Dalis Painting worked on Braswell’s
office building. John Sandalis also averred that he spoke with Braswell
on the telephone and that he customarily answers the telephone by say-
ing, "This is John Sandalis[.] [C]an I help you?" (J.A. at 98.) Moreover,
Dalis Painting employees all wear uniforms with "large Dalis Painting
logo[s]" printed on them and Dalis Painting’s vehicles and equipment are
similarly marked. (J.A. at 103-04.)
3
The Miller Center of Public Affairs is a non-partisan research center
at the University of Virginia. It is currently named the Faulkner House
in honor of American novelist William H. Faulkner.
4
Apparently, during voir dire, neither the district court nor counsel
asked whether any of the jurors were familiar with the Sandalises or
Dalis Painting. The district court asked the jurors, however, whether any
member of the panel knew of a reason why he or she could not "hear the
facts of the case fairly and impartially and render a just verdict." (J.A.
at 247.) One woman responded that she knew the defendants and agreed
that this would make it difficult for her to render a fair and impartial ver-
dict; thus, she was excused.
UNITED STATES v. SANDALIS 7
reasons for failing to raise their connection with Braswell prior to the
jury returning its verdict, the Sandalises satisfied their threshold
showing of potential bias. See Remmer, 347 U.S. 230 (holding that
when concrete allegations of juror partiality surface, the district court
must conduct a hearing "with all interested parties permitted to partic-
ipate"); Herndon, 156 F.3d at 635 (concluding that, where non-
speculative evidence indicated that a juror had been involved in a pos-
sibly "negative" business dealing with the defendant six years earlier,
the district court was required to conduct a Remmer hearing into
potential bias). Thus, it was an error of law, and, therefore, an abuse
of discretion, for the district court to decline to conduct an evidentiary
hearing that included questioning Braswell regarding the extraneous
factors that allegedly came to bear on her decision making process.5
Indeed, the Government conceded before the district court that an evi-
dentiary hearing was required and requested Braswell’s presence at
the hearing on the motion for the new trial. (J.A. at 188 ("[T]he
Fourth Circuit has determined unambiguously just such a hearing is
required.")). Nevertheless, the district court denied the Government’s
motion to secure Braswell’s attendance at the motion hearing, stating
that her presence was "not needed," (J.A. at 227), and ruling, without
questioning Braswell, that the Sandalises’ claim of potential juror bias
was baseless.6 Thus, we remand for the district court to conduct a
Remmer hearing in which Braswell is questioned and in which the
Sandalises will bear the burden of proving that Braswell’s prior busi-
ness dealings with the Sandalises compromised her ability to render
a fair and impartial verdict. Malloy, 758 F.2d at 982 (holding that the
defendant bears the burden of proof in a Remmer hearing).
5
We leave for the district court to determine whether the other jurors
also must be interrogated. See United States v. Perkins, 748 F.2d 1519,
1529-30 (11th Cir.) (noting that the district court interviewed all the
jurors, during which the jurors reported that the particular juror who was
the subject of the Remmer hearing was "especially committed" to finding
the defendant guilty (internal quotation marks omitted)).
6
The district court stated, "that sounds like a paint job in my house and
my wife complaining to the painters, but they do what they’ve got to do,
they get it done and they leave. I don’t get how you jump from there that
somebody would find somebody guilty of a crime because of that." (J.A.
at 865.)
8 UNITED STATES v. SANDALIS
III.
Based upon reliable evidence presented to the district court demon-
strating that Braswell, prior to trial, had recent, adversarial contact
with Dalis Painting and with the Sandalises directly, the district court
erred by denying the Sandalises’ motion for a new trial without con-
ducting an evidentiary hearing on Braswell’s potential bias. There-
fore, we must remand for a Remmer hearing, through which the
district court must revisit the Sandalises’ motion for a new trial based
upon Braswell’s potential bias, develop a record regarding the alleged
bias, and determine any effect of such bias on the integrity of the
jury’s verdict.7
REVERSED AND REMANDED WITH INSTRUCTIONS
7
If the district court concludes, after conducting this hearing, to grant
the Sandalises’ motion for a new trial, the Sandalises’ remaining claims
will become moot. If, on the other hand, the district court determines that
Braswell was not biased and again denies the motion, we will undertake
to resolve the Sandalises’ remaining challenges.