SEC v. Sargent

United States Court of Appeals
For the First Circuit
No. 22-1596
U.S. SECURITIES AND EXCHANGE COMMISSION,
Plaintiff, Appellant,
v.
HENRY B. SARGENT,
Defendant, Appellee,
FREDERICK M. MINTZ; ALAN P. FRAADE; JOSEPH J. TOMASEK; PATRICK
GIORDANO,
Defendants.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Richard G. Stearns, U.S. District Judge]
Before
Barron, Chief Judge,
Lynch and Gelpí, Circuit Judges.
Paul G. Alvarez, Senior Appellate Counsel, with whom Dan
M. Berkovitz, General Counsel, and Michael A. Conley, Solicitor,
were on brief, for appellant.
Peter R. Ginsberg, with whom Christopher R. Neff and
Moskowitz & Book LLP were on brief, for appellee.
April 18, 2023
BARRON, Chief Judge. A party to a civil jury trial has
the right under Federal Rule of Civil Procedure 48(c) to request
that the district court individually poll each juror after the
jury has returned a verdict to confirm that each juror agrees with
the verdict that was announced. The question presented in this
interlocutory appeal is whether a party that has been denied that
right is automatically entitled to a new trial, even when the jury
has been polled collectively, or whether -- given that Federal
Rule of Civil Procedure 61 instructs that we "must disregard all
errors . . . that do not affect any party's substantial rights"
-- that party must show prejudice in the specific case at hand to
be entitled to that remedy.
We have not had occasion to address this question before.
But, we have long held that denial of the right under Federal Rule
of Criminal Procedure 31(d) to poll each juror individually in a
criminal case is per se reversible error, see Miranda v. United
States, 255 F.2d 9, 18 (1st Cir. 1958); Ira Green, Inc. v. Mil.
Sales & Serv. Co., 775 F.3d 12, 25 (1st Cir. 2014), even though
Federal Rule of Criminal Procedure 52(a) sets forth an analogue to
Civil Rule 61, see Fed. R. Crim. P. 52(a) ("Any error . . . that
does not affect substantial rights must be disregarded."). In
light of the arguments presented, and given that we do not write
on a clean state but are instead bound by circuit precedents that
we have no occasion to consider anew here, we conclude that our
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circuit law points us to interpreting Civil Rule 48(c) no
differently from our interpretation of Criminal Rule 31(d). We
therefore affirm the interlocutory order of the District Court.
I.
A.
In June 2019, the Securities and Exchange Commission
("SEC") filed this civil enforcement action against Henry B.
Sargent in the United States District Court for the District of
Massachusetts. The action alleges that Sargent engaged in a
"fraudulent and deceptive scheme to disguise public stock sales by
corporate affiliates that should have been registered with the
[SEC]" under federal securities law.
A ten-day trial before Judge William G. Young ensued in
the District of Massachusetts. The jury returned a unanimous
verdict against Sargent.
The court clerk first recorded the verdict by reading
aloud each of the questions on the verdict form along with each of
the jurors' corresponding responses. The clerk then polled the
jury collectively by asking:
CLERK: So say you Madam Forelady, is that your
verdict?
FOREPERSON: Yes.
CLERK: So say you members of the jury?
JURY: (In unison.) Yes.
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Judge Young then thanked the jurors for their service
and directed them to retire to the room where they had deliberated.
Before the jury left the courtroom, Sargent's counsel asked: "Can
we poll the jury?" Judge Young responded: "Denied. They may be
excused."
After the jury retired to the deliberation room, Judge
Young remained on the bench to discuss several matters with the
parties. He then joined the jurors in that room.
The next day, Sargent informed the SEC that he believed
Judge Young had committed reversible error by denying his request
to poll the jury, because he had been thereby denied his right to
poll each of the jurors individually. The SEC immediately filed
an emergency motion to recall the jurors so that they might be
polled individually, which Judge Young denied. The following day,
Sargent moved for a new trial.1
At a hearing regarding the motion, Judge Young
acknowledged that his denial of Sargent's request was in clear
The SEC notes that Sargent "did not invoke [Civil] Rule
1
48(c)" when he first requested that the jury be polled, did not
immediately object that the court's denial of his request violated
Civil Rule 48(c), and only invoked Civil Rule 48(c) before the
court for the first time in his motion for a new trial. But the
SEC does not argue on appeal that Sargent's invocation of Civil
Rule 48(c) was for that reason untimely, and the District Court
below concluded that it was not. We therefore consider any such
argument waived. See United States v. Zannino, 895 F.2d 1, 17
(1st Cir. 1990) ("[I]ssues adverted to in a perfunctory manner,
unaccompanied by some effort at developed argumentation, are
deemed waived.").
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violation of Civil Rule 48(c). Judge Young explained that he
"simply did not know the rule" because it had been adopted in 2009
and since then no party in a civil case had requested that he poll
each of the jurors individually. He then partially recused himself
for the determination of whether that error automatically entitled
Sargent to a new trial or whether it should first be assessed for
harmlessness.
B.
The issue was randomly assigned to Judge Richard G.
Stearns. After receiving additional briefing from the parties, he
ruled that a violation of the right to poll each of the jurors
individually under Civil Rule 48(c) is per se reversible and that
Sargent was therefore entitled to a new trial.
Judge Stearns based this conclusion chiefly upon our
dicta in Ira Green that because "[t]he criminal and civil rules on
jury polling are now virtually identical[,] . . . [c]ommon sense
suggests that [they] should be interpreted in pari passu." 775
F.3d at 25. Judge Stearns also relied on the Seventh Circuit's
statements in an earlier case that "there is little reason to
distinguish" between the civil and criminal jury polling rules,
and that "[t]here is no doubt that a district court's refusal, or
even neglect, to conduct a jury poll upon a timely request is
ground for a new trial." Verser v. Barfield, 741 F.3d 734, 738
(7th Cir. 2013).
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Although Judge Stearns termed our dicta in Ira Green a
"blaze marker" for how we might rule on the question, he did
acknowledge that decision had also called the issue "open to
legitimate question." Ira Green, 775 F.3d at 24–25. Judge Stearns
also noted Ira Green's observation that "[m]ore than one state
court, interpreting similar parallel mandatory jury-polling rules,
has concluded that a violation of the right to a jury poll
engenders automatic reversal in criminal cases but not in civil
cases." Id. at 25 (citing Wiseman v. Armstrong, 989 A.2d 1027,
1040–41 (Conn. 2010)).
Judge Stearns therefore sua sponte certified the
question for immediate interlocutory appeal, which we granted.
The SEC then filed this timely appeal.
II.
The issue that we address is whether, under our
precedent, the District Court's denial here of the right to poll
each juror individually under Civil Rule 48(c), after the jury had
been collectively polled, was per se reversible error.2 Our review
is de novo. See Langlois v. Abington Hous. Auth., 207 F.3d 43, 47
(1st Cir. 2000). We begin by explaining that, under our precedent,
2 We note that, were we to agree with the SEC that
harmlessness review applies, Sargent's motion for a new trial would
not necessarily fail. Rather, Sargent would have the opportunity
to show that the error prejudiced him in a way that warrants a new
trial.
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a district court's denial of the right to poll each of the jurors
individually under Criminal Rule 31(d) constitutes per se
reversible error. We then explain why we conclude that our circuit
precedent leads us to an affirmance.
A.
The key precedent with respect to Criminal Rule 31(d) is
Miranda, which we decided in 1958. At that time, Criminal Rule
31(d) provided:
Poll of Jury. When a verdict is returned and
before it is recorded the jury shall be polled
at the request of any party or upon the court's
own motion. If upon the poll there is not
unanimous concurrence, the jury may be
directed to retire for further deliberations
or may be discharged.
Miranda, 255 F.2d at 17.
In Miranda, after the jury had returned a guilty verdict
against the defendant, the district court polled the jury
collectively and ordered that the verdict be recorded. Id.Counsel for the criminal defendant then requested that each of the
jurors be polled individually, but the district court denied the
request on the ground that the verdict had already been recorded.
Id. at 17–18. The defendant then appealed, seeking to have his
criminal conviction vacated on a number of grounds. One of those
grounds was that the district court had "erred" in denying the
request to poll each of the jurors individually and that the error
was "reversible." Id. at 17.
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In assessing that contention, we explained that "[t]he
right of the defendant to have the jury polled . . . is of ancient
origin and of basic importance," and that this was the right "thus
recognized and established by [Criminal] Rule 31(d)." Id. (citing
Humphries v. District of Columbia, 174 U.S. 190, 194 (1899)). We
added that the "object" of individual polling is "to give each
juror an opportunity . . . to declare in open court his assent to
the verdict," so that "the court and the parties [can] ascertain
with certainty that a unanimous verdict has in fact been reached
and that no juror has been coerced or induced to agree to a verdict
to which he has not fully assented." Id.Having identified the right that the rule secured, which
the government had "concede[d]," id., we then addressed whether
that right had been denied. We concluded that it had. We explained
that the defendant "was denied a reasonable opportunity to have
the jury polled," and that "[i]t was not enough that the trial
judge had [collectively polled] the jurors." Id. at 18. That was
so, we explained, because "the right to poll the jury is the right
to require each juror individually to state publicly his assent to
or dissent from the returned verdict." Id.
With this analysis in place, we then turned to the
question of remedy. We explained in that regard that there was no
need to address the defendant's other grounds for seeking a new
trial. The reason that we gave was that "the judgment must be
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reversed and a new trial ordered because of the denial of the
defendant's right to poll the jury." Id.
In so concluding, we did not undertake any inquiry into
whether the denial of the right could be deemed harmless. And,
that was so even though Criminal Rule 52(a), entitled "Harmless
Error," was on the books at the time and provided that "[a]ny error
. . . which does not affect substantial rights shall be
disregarded." Fed. R. Crim. P. 52(a), reprinted in 18 U.S.C.A.
app. at 3439 (1958).
In the wake of Miranda, Criminal Rule 31(d) has been
amended to make manifest what Miranda understood to be already
there: that the right the rule secured was a right to poll each of
the jurors individually following a verdict, and not simply to
poll the jury collectively. See Fed. R. Crim. P. 31(d) advisory
committee's note to 1998 amendment. Moreover, our circuit has not
questioned our conclusion in Miranda that a denial of that right
in a criminal case, when "seasonably exercised," Miranda, 255 F.2d
at 17, requires a new trial without any consideration of whether
the error was harmless. On the contrary, only a few years ago in
Ira Green, we declared that "the prevailing rule" both in our
circuit and others under Criminal Rule 31(d) is that "a failure to
poll the jury after a timely request constitutes per se reversible
error." 775 F.3d at 25 (emphasis added) (first citing United
States v. F.J. Vollmer & Co., 1 F.3d 1511, 1522 (7th Cir. 1993);
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then citing Virgin Islands v. Hercules, 875 F.2d 414, 419 (3d Cir.
1989); and then citing Miranda, 255 F.2d at 18). Nor does the SEC
take issue with this assessment of the state of our precedent as
it stood as of the time of Ira Green.3
To be sure, under the "law of the circuit," we as a panel
are not bound by our prior circuit precedent if "subsequent
controlling authority" -- whether a decision of the United States
Supreme Court, an en banc decision of our court, or a statute --
has directly "contradicted" it. United States v. Barbosa, 896
F.3d 60, 74 (1st Cir. 2018). But, the SEC has chosen not to argue
that this precedent must be rethought given intervening Supreme
Court caselaw. Rather, it does no more than gesture at a
suggestion that the Supreme Court's subsequent precedent does
contradict our precedent insofar as that precedent holds that a
violation of Criminal Rule 31(d)'s right to poll each juror
individually is per se reversible error.
The government does so by pointing to Rivera v. Illinois,
556 U.S. 148 (2009), which holds that the denial of the right to
exercise peremptory challenges is not per se reversible error but
3To the extent that, in its reply brief, the SEC attempts
to recharacterize the "prevailing rule" as requiring per se
reversal only where "the jury was not polled at all -- either
individually or collectively," that argument, which was not
presented in the SEC's opening brief, is waived. See United States
v. Casey, 825 F.3d 1, 12 (1st Cir. 2016).
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rather must be assessed for harmlessness. That mere gesturing is
insufficient to lead us to reconsider Miranda.
The SEC acknowledges that the Supreme Court has
recognized that some errors in the criminal context do "defy
analysis by 'harmless-error' standards," Arizona v. Fulminante,
499 U.S. 279, 309 (1991) -- a class of errors that the Court has
come to refer to as "structural errors," Weaver v. Massachusetts,
137 S. Ct. 1899, 1907–08 (2017). And, in the end, the SEC makes
no argument that the error identified in Miranda is not of that
"structural" kind, such that, in light of Rivera, our finding of
per se reversible error in Miranda for a denial of the right that
Criminal Rule 31(d) secures is no longer good law.
In fact, at oral argument, the SEC made clear that it
was, for the purposes of this case, accepting as good law Miranda's
treatment of the denial of the right to poll each juror
individually under Criminal Rule 31(d) as per se reversible error,
and separately arguing that we must nonetheless treat the violation
of Civil Rule 48(c) that is at issue here differently. We
therefore deem waived any argument that we should overturn
Miranda's "per se reversible" holding, see United States v.
Zannino, 895 F.2d 1, 17 (1st Cir. 1990), and proceed to consider
only the SEC's argument in this appeal -- that, notwithstanding
Miranda, a district court's denial of Civil Rule 48(c)'s right to
poll each juror individually must be assessed for harmlessness.
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B.
The SEC emphasizes that the Supreme Court has never found
a trial error in a civil case to be "structural." See Al Haramain
Islamic Found., Inc. v. U.S. Dep't of Treasury, 686 F.3d 965, 988
(9th Cir. 2012). It also contends that we have treated the civil
jury-polling right as non-constitutional, see Ira Green, 775 F.3d
at 25, and that, even in the criminal context, the Court has never
found a violation of a non-constitutional right to be "structural,"
while it has recognized that even "[m]ost constitutional errors"
are not. Fulminante, 499 U.S. at 306. Thus, the SEC contends,
the fact that Civil Rule 48(c) errors result in the denial of a
non-constitutional right in a civil context provides strong reason
to conclude that they cannot be per se reversible.
The SEC further adds that in a civil case the burden is
on the party claiming an error to show that the error was not
harmless, while in a criminal case the burden is on the government
to show that it was, even when the error results in the denial of
a non-constitutional right. See Shinseki v. Sanders, 556 U.S.
396, 410–11 (2009) (citing Palmer v. Hoffman, 318 U.S. 109, 116
(1943)). And, the SEC also points to the inherent differences
between criminal and civil cases in terms of the higher stakes and
the correspondingly higher burden of proof in the former. See
Kotteakos v. United States, 328 U.S. 750, 762 (1946). In so doing,
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the SEC challenges as mistaken our assumption in Ira Green that
the two contexts should receive the same treatment.
In assessing the force of these contentions, however, we
must keep in mind the state of our own precedent, as well as the
text of the rules implicated in this case. And, we conclude that,
in light of our precedent, we must reject the SEC's position, at
least given the arguments that it has made to us as to why the
error at issue here is not per se reversible.
1.
We begin with the text of each of the jury-polling rules
at issue: Criminal Rule 31(d) and Civil Rule 48(c). As we noted
in Ira Green, the rules are, textually, "virtually identical."
775 F.3d at 25. After all, Civil Rule 48(c) was "drawn from
Criminal Rule 31(d)" with only "minor revisions to reflect Civil
Rules Style and the parties' opportunity to stipulate to a
nonunanimous verdict." Fed. R. Civ. P. 48(c) advisory committee's
note to 2009 amendment. In fact, the advisory committee notes to
Criminal Rule 31(d), in calling the rule "a restatement of existing
law and practice," cited two cases for support, one of which was
a federal civil case. Fed. R. Crim. P. 31(d) advisory committee's
note to 1944 adoption (first citing Mackett v. United States, 90
F.2d 462, 465 (7th Cir. 1937); and then citing Bruce v. Chestnut
Farms-Chevy Chase Dairy, 126 F.2d 224 (D.C. Cir. 1942)). Nor does
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the SEC point to any textual difference between the two rules as
a basis for its position.
We turn, then, to the text of the two harmless error
rules, Criminal Rule 52(a) and Civil Rule 61. The SEC places
significant emphasis on the portion of the text of Civil Rule 61
that provides that "the court must disregard all errors and defects
that do not affect any party's substantial rights." Fed. R. Civ.
P. 61 (emphases added). The SEC argues that because this
"categorical mandate does not provide an exception for [Civil]
Rule 48(c) errors," the text of Civil Rule 61 itself precludes
treating such errors as per se reversible.
However, in making this argument, the SEC overlooks the
fact that Criminal Rule 52(a), in a similarly categorical mandate,
provides that "[a]ny error . . . that does not affect substantial
rights must be disregarded." Fed. R. Crim. P. 52(a) (emphases
added). Similarly, the harmless error statute -- which applies to
both criminal and civil cases -- states that in "any appeal"
regarding "any case," the court "shall give judgment after an
examination of the record without regard to errors or defects which
do not affect the substantial rights of the parties." 28 U.S.C.
§ 2111 (emphases added).
So, it is hard to see how the text of Civil Rule 61
that the SEC zeroes in on, standing alone, could provide a basis
for its argument based on text. The SEC also acknowledges that
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the Supreme Court has recognized that some errors it has recognized
as structural errors "defy" harmless error review and are therefore
per se reversible. Fulminante, 499 U.S. at 309.
True, Civil Rule 61 and Criminal Rule 52(a) exhibit more
textual variation than the two jury-polling rules. But, the SEC
has not identified how any of the differences between the two rules
(such as using "any error" instead of "all errors") are material
rather than stylistic.
2.
a.
Perhaps the SEC's strongest argument for its position is
"the historic difference between how courts review errors in
criminal and civil cases." In that regard, it notes the higher
stakes and correspondingly higher burden of proof in criminal
cases, as well as the fact that, in civil cases, the burden is on
the party complaining of error to show that the error was not
harmless, whereas the burden is reversed in criminal cases.
This argument could be read as supporting the much
broader notion that no federal civil trial error can be per se
reversible, even though federal criminal trial errors can be. And,
indeed, in line with that logic, the SEC also attempts to argue
that no civil trial errors are per se reversible.
This argument, however, runs headlong into another
aspect of our own precedent, in which we treated the different
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non-constitutional issue of a district court's permitting
alternate jurors to participate in jury deliberations in a civil
trial as per se reversible error.4 See Cabral v. Sullivan, 961
F.2d 998, 1003 (1st Cir. 1992). In arriving at that conclusion in
Cabral, moreover, we relied on cases involving Civil Rule 47(b)'s
criminal analogue, Criminal Rule 24(c). And, based on those cases,
we explained that, because the two rules "literally read the same,"
we "[did] not believe the drafters meant for any variations in the
interpretation of the[] two rules." Id. at 1001 n.3.
Cabral is therefore in tension with the SEC's argument
that this non-constitutional civil trial error cannot be per se
reversible. Cabral also supports Ira Green's observation that
"[c]ommon sense suggests" that analogous civil and criminal rules
"should be interpreted in pari passu" with regard to whether
violations of those rules should be assessed for harmlessness.
Ira Green, 775 F.3d at 25.
The SEC does argue in its reply brief that Cabral is no
longer good law due to the Supreme Court's decision in United
States v. Olano, 507 U.S. 725 (1993). There, the Court held that
a district court's permitting alternate jurors to sit in on jury
deliberations did not warrant a new trial because it did not affect
4 Federal Rule of Civil Procedure 47(b) previously
provided that "[a]n alternate juror who does not replace a regular
juror shall be discharged after the jury retires to consider its
verdict." Cabral v. Sullivan, 961 F.2d 998, 1001 (1st Cir. 1992).
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the substantial rights of the defendant, even though it violated
Criminal Rule 24(c). Id. at 739-41.
Our decision in United States v. Houlihan, 92 F.3d 1271(1st Cir. 1996), again is in tension with the SEC's view. Houlihan
noted that the alternate jurors in Cabral actually participated in
the deliberations, while in Olano they were instructed not to
participate. See id. at 1288 n.16. Indeed, Cabral itself
emphasized that the alternates had participated in the
deliberations, while distinguishing earlier precedents in which
the alternates had sat in on the deliberations but had not
participated. Cabral, 961 F.2d at 1001 nn.4–5; see also Manning
v. Huffman, 269 F.3d 720, 725–26 (6th Cir. 2001); United States v.
Ottersburg, 76 F.3d 137, 140 (7th Cir. 1996); United States v.
Aguilar, 743 F.3d 1144, 1149–50 (8th Cir. 2014). Meanwhile, Olano
emphasized the lack of evidence in that case "that the alternate
jurors . . . participated in the jury's deliberations" either
"verbally or through 'body language.'" 507 U.S. at 739.
Indeed, the SEC itself turns out in the end to be a less
stout defender of the contention that a civil trial error cannot
be per se reversible. At oral argument, it conceded that some
errors that the Supreme Court has recognized as structural in the
criminal context -- such as the right to an impartial judge,
Fulminante, 499 U.S. at 309 (citing Tumey v. Ohio, 273 U.S. 510,
535 (1927)) -- might very well be per se reversible in the civil
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context. Cf. Caperton v. A.T. Massey Coal Co., 556 U.S. 868, 886-
87 (2009) (reversing because a state justice's failure to recuse
when a party had contributed $3 million to the justice's campaign
created a "probability of actual bias ris[ing] to an
unconstitutional level" under the Due Process Clause of the
Fourteenth Amendment); id. at 898 (Roberts, C.J., dissenting)
(questioning whether judge's erroneous failure to recuse should be
assessed for harmlessness). Thus, given that the SEC ultimately
stops short of arguing that civil trial errors categorically cannot
be per se reversible, and given that both we and other circuits
currently recognize some civil trial errors as per se reversible,
we fail to see how the SEC's arguments in this regard justify
singling out jury-polling errors as meriting differential
treatment in the criminal and civil contexts.
All that said, the SEC is right that, as we noted in Ira
Green, several state courts treat jury-polling errors as per se
reversible in the criminal context but not in the civil context.
Ira Green, 775 F.3d at 25 (citing Wiseman, 989 A.2d at 1038 & n.18
(collecting cases)). In Wiseman, for example, the Connecticut
Supreme Court acknowledged its precedent treating jury-polling
errors as per se reversible in the criminal context. 989 A.2d at
1040 (citing State v. Pare, 755 A.2d 180, 194–96 (Conn. 2000)).
But, state court decisions are not a basis to depart from our
precedent. For the reasons we have explained, when we consider
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the text of each of the relevant federal rules in light of Miranda
and Ira Green, as well as Cabral and Houlihan, we see no basis for
drawing the distinction that some state courts have drawn in
interpreting their own state law rules.
b.
The SEC does make one additional argument for why Civil
Rule 48(c) errors must be assessed for harmlessness. It proceeds
as follows: Because courts review for harmlessness the denial of
the right to a civil jury trial under the Seventh Amendment to the
United States Constitution, courts must a fortiori also review for
harmlessness any jury-related errors within a jury trial,
including the failure to poll each of the jurors individually upon
a party's request.
The SEC is right that both we and other circuits have
held that a court's denial of the Seventh Amendment right to a
civil jury trial is subject to harmless error analysis. See
Frappier v. Countrywide Home Loans, Inc., 750 F.3d 91, 98 (1st
Cir. 2014); see also SEC v. Jensen, 835 F.3d 1100, 1108–11 (9th
Cir. 2016); 9 Charles Alan Wright & Arthur R. Miller, Fed. Prac.
& Proc. § 2322 (4th ed. 2022). But, harmlessness review in these
cases takes an unusual, narrow form: assessing whether the case
"[]ever would have reached the jury." 9 Wright & Miller, supra,
§ 2322. In other words, denials of the right to a jury trial are
harmless only in the "rare instances" in which the judge would
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have been obliged to grant judgment as a matter of law before the
case was even submitted to the jury. Id.; see also Frappier, 750
F.3d at 98 (assessing if evidence met standard for directed
verdict). Otherwise, the error will be "presumed harmful" if there
remain any questions that would have been left for the jury to
decide, even if the evidence is otherwise overwhelming. 9 Wright
& Miller, supra, § 2322.
The SEC has never, either in the District Court or on
appeal, developed any argument for that prejudice standard (or
even acknowledged its unusual nature) or claimed that the evidence
in this case would satisfy it.5 Instead, the SEC has consistently
argued for a different prejudice standard that places the burden
on Sargent to show prejudice. As a result, the SEC has waived any
argument that this form of harmlessness review should apply, and
we need not decide the issue. See Zannino, 895 F.2d at 17.
We affirm.
5 The SEC did not move for judgment as a matter of law
in the District Court and makes no argument to us that it was
entitled to such relief. We also note that Sargent made two such
motions, arguing that the evidence was insufficient to permit a
reasonable jury to find against him. Judge Young denied both
motions.
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