United States v. Ricky Lanier

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 17a0208p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, ┐
Plaintiff-Appellee, │
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> Nos. 16-6655/6657
v. │
│
│
RICKY ANTHONY LANIER (16-6655); KATRINA │
RESHINA LANIER (16-6657), │
Defendants-Appellants. │
┘
Appeal from the United States District Court
for the Eastern District of Tennessee at Greeneville.
No. 2:14-cr-00083-1—J. Ronnie Greer, District Judge.
Argued: July 28, 2017
Decided and Filed: September 7, 2017
Before: MOORE, STRANCH, and DONALD, Circuit Judges.
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COUNSEL
ARGUED: Donald Capparella, DODSON, PARKER, BEHM & CAPPARELLA, BPR,
Nashville, Tennessee, for Appellants. David L. Gunn, UNITED STATES ATTORNEY’S
OFFICE, Greeneville, Tennessee, for Appellee. ON BRIEF: Donald Capparella, Tyler Chance
Yarbro, DODSON, PARKER, BEHM & CAPPARELLA, BPR, Nashville, Tennessee, for
Appellants. David L. Gunn, UNITED STATES ATTORNEY’S OFFICE, Greeneville,
Tennessee, for Appellee.
Nos. 16-6655/6657 United States v. Lanier et al. Page 2
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OPINION
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KAREN NELSON MOORE, Circuit Judge. Defendants-Appellants Ricky Lanier and
Katrina Lanier argue that their convictions should be overturned because the district court failed
to interview, or allow their attorneys to interview, jurors after learning that one juror initiated
extraneous communications with a state prosecutor. The defendants also raise several arguments
related to their sentences. Because the district court failed to investigate the juror’s extraneous
communications, we VACATE the defendants’ convictions and REMAND their cases for a
Remmer hearing. Because we vacate the defendants’ convictions, we do not address the
sentencing issues at this time. We retain jurisdiction over this case pending the district court’s
Remmer hearing.
I. BACKGROUND
Ricky Lanier and Katrina Lanier were involved in a scheme fraudulently to obtain
government contracts reserved for businesses owned by socially and economically disadvantaged
individuals or by service-disabled veterans. See R. 151 (Second Superseding Indictment at 1–
10) (Page ID #1456–65). Defendants used two companies, JMR Investments, LLC and Kylee
Construction, Inc., as fronts to obtain construction contracts under two government set-aside
programs, the 8(a)-BD program for small businesses considered socially and economically
disadvantaged under federal law and the service-disabled-veteran-owned small-business
program. Id. at 4–9 (Page ID #1459–64). Although defendants obtained the construction
contracts fraudulently, defendants satisfactorily delivered on the contracts, according to
testimony from several government employees. For example, one government employee
acknowledged that working with defendants was “kind of the dream operation for the federal
government,” and that he would recommend them for another job. R. 232 (Trial Tr. at 199–201)
(Page ID #3926–28).
On December 17, 2015, during jury deliberations concerning defendants, one of the
jurors contacted assistant district attorney Theresa Nelson—a social acquaintance and a state
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prosecutor not involved with the federal case against defendants—to discuss the jury
deliberations. The district court learned about this conversation because Nelson called the court
to report it. During this phone call, Nelson told the district judge that a juror (Juror 11) called
her and said that there was a “problem” with the jury deliberations. R. 212 (Trial Tr. at 3) (Page
ID #2511). According to the district judge’s account of his telephone conversation with Nelson,
Nelson told Juror 11 that they could not discuss deliberations and that Juror 11 should not say
any more. Id. Nelson instructed Juror 11 that if something was going on, the juror needed to
alert the judge. Id. Juror 11 said that she did not know how to alert the judge. Id. Nelson told
Juror 11 to tell the court officer, or the clerk, or “somebody,” because the juror needed to
communicate any problems to the judge. Id. at 3–4 (Page ID #2511–12). No juror alerted court
personnel to problems with the deliberations. Id. at 4 (Page ID #2512). The court officer who
reported that the jury did not alert him to any problems also reported that the jury was “very
clearly divided into two groups this morning and they’re angry with each other.” Id. Despite the
court officer’s report around 8:00 a.m. or 9:00 a.m. that the jury was divided into two groups, at
10:37 a.m. that morning the jury came back with its verdict. Id. at 6 (Page ID #2514).
The jury convicted Ricky and Katrina of one count of conspiracy to commit wire fraud
(in violation of 18 U.S.C. § 1343) and one count of wire fraud (in violation of 18 U.S.C. § 1343).
Additionally, Ricky was convicted of two counts of major fraud against the United States (in
violation of 18 U.S.C. § 1031), and Katrina was convicted of one count of major fraud against
the United States. R. 275 (Ricky Lanier Judgment at 1) (Page ID #5797); R. 273 (Katrina Lanier
Judgment at 1) (Page ID #5787); see also R. 151 (Second Superseding Indictment at 1–19, 27–
28) (Page ID #1456–74, 1482–83).
Just after the jury announced its verdict, defendants requested to interview the jurors and
moved for a mistrial. R. 212 (Trial Tr. at 11–12) (Page ID #2519–20). Counsel pointed out that
the jury apparently had been at an impasse but then returned a verdict a short while later, and that
not long before the jury returned the verdict, one of the jurors reached out to a third party. Id.
Counsel argued that “something . . . through that conversation or . . . through some other
conversation that this juror apparently had, that she obviously violated the admonition that your
honor has given repeatedly here, and that taints the jury verdict as to any of the guilty counts.”
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Id. The district judge denied this motion, reasoning that “[t]o the extent this juror attempted to
have a discussion with a third party about this case, that attempt was unsuccessful,” and
consequently “[i]t would be mere speculation for the court to conclude from any of that that the
juror in question or any juror had in fact had improper contact with any other person.” Id. at
2526.
After the verdict, defendants requested various forms of relief, including a new trial and
permission to interview jurors. First, Ricky Lanier filed a Motion for Permission to Interview
Jurors, R. 213 (Mot. Permission to Interview Jurors) (Page ID #2538–48), which Katrina Lanier
then joined, R. 214 (Mot. to Adopt Ricky Lanier’s Mot. for Permission to Interview Jurors)
(Page ID #2549–50). The district court denied the motion. R. 216 (Order) (Page ID #2557–61).
Defendants then filed a joint Motion for New Trial & Renewed Motion for Permission to
Interview Jurors. R. 223 (Mot. for New Trial & Renewed Mot. to Interview) (Page ID #2956–
76). The district court denied this motion, as well. R. 237 (Order) (Page ID #4620–35).
During his post-trial investigation, Katrina Lanier’s trial counsel learned that Juror 11 had
also spoken with Nelson about her jury service on a prior occasion, before the phone call during
jury deliberations. Juror 11 and Nelson ran into each other during the first week of the trial. R.
223-1 (Leonard Decl. at ¶ 5) (Page ID #2978). At that time, Juror 11 told Nelson that she was on
a federal jury and mentioned some of the attorneys who were involved in the case. Id. Nelson
did not report this earlier conversation when she called the district court to report that Juror 11
called her to discuss jury deliberations.
No one ever interviewed Juror 11 about the telephone call. See R. 212 (Trial Tr. at 3–4,
11–12) (Page ID #2511–12, 2519–20). No one ever interviewed any other member of the jury
about whether Juror 11 discussed the call with her fellow jurors. See id. And although the
district court talked by phone with Nelson and trial counsel interviewed her after the trial, no one
ever had the opportunity to question Nelson in open court or under oath. See id.
After denying defendants’ motions to interview jurors and for a new trial, the district
court imposed sentences. The district court sentenced Ricky Lanier to forty-eight months of
imprisonment, R. 283 (Sentencing Hr’g Tr. at 93) (Page ID #5906), and Katrina Lanier to thirty
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months of imprisonment, id. at 117 (Page ID #5930), staggering the sentences because they have
two minor children, R. 297 (Order Amending Judgment at 1) (Page ID #6176); see also R. 285
(Joint Motion to Allow Staggered Sentences at 1) (Page ID #5965). Both defendants timely
appealed from the district court’s final judgment.
II. DISCUSSION
The district court has an obligation to investigate a colorable claim of external influence
on the jury to determine whether any external influence occurred and, if so, whether it was
prejudicial. See Remmer v. United States, 347 U.S. 227, 229–30 (1954). We review for abuse of
discretion the district court’s decision about whether to conduct a hearing regarding possible jury
misconduct or external influence. United States v. Lloyd, 462 F.3d 510, 518 (6th Cir. 2006).
The general rule is that “‘[w]here a colorable claim of extraneous influence has been raised,’” the
court must hold a Remmer hearing “to afford the defendant an opportunity to establish actual
bias.” United States v. Davis, 177 F.3d 552, 557 (6th Cir. 1999) (quoting United States v.
Herndon, 156 F.3d 629, 635 (6th Cir. 1998)); see also Lloyd, 462 F.3d at 518 (quoting United
States v. Shackelford, 777 F.2d 1141, 1145 (6th Cir. 1985)) (“When possible juror misconduct is
brought to the trial judge’s attention he has a duty to investigate and to determine whether there
may have been a violation of the sixth amendment.”). Yet a Remmer hearing is not necessary in
every instance of possible unauthorized third-party contact. See Davis, 177 F.3d at 557. “[A]n
allegation of an unauthorized communication with a juror requires a Remmer hearing only when
the alleged contact presents a likelihood of affecting the verdict,” such as when the allegation
“involv[es] claims of ‘intentional improper contacts or contacts that had an obvious potential for
improperly influencing the jury.’” United States v. Frost, 125 F.3d 346, 377 (6th Cir. 1997)
(quoting United States v. Rigsby, 45 F.3d 120, 123–24 (6th Cir. 1995)); see also United States v.
Williams, 195 F.3d 823, 827–28 (6th Cir. 1999) (affirming the district court’s decision not to
conduct a Remmer hearing because the juror assured the court that she could remain impartial
despite being familiar with defendant’s company); Shackleford, 777 F.2d at 1145 (affirming the
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district court’s decision not to conduct a Remmer hearing because the juror had voted
consistently throughout deliberations).1
Because this case “involv[es] claims of ‘intentional improper contacts or contacts that
had an obvious potential for improperly influencing the jury,’” declining to hold a Remmer
hearing in this case was not a proper exercise of the trial court’s discretion. Frost, 125 F.3d at
377 (quoting Rigsby, 45 F.3d at 123–24). There is no question that the third-party contact in this
case was intentional and improper because the juror intentionally contacted the third party,
Nelson, in order to discuss the case with her. For the same reason, the third-party contact in this
case had an obvious potential for improper influence—the juror intentionally contacted the third-
party, specifically seeking Nelson’s input about the case. Unlike in most other cases of third-
party contacts, the juror in this case was not the passive target of someone else’s attempt to
influence the jury. The juror in this case actively invited outside influence.
The prosecution argues that, because the district judge announced that Nelson asserted
that she refused to discuss the case with the juror who contacted her, there is no suggestion of
external influence on the juror. We cannot agree. Whether or not Nelson acted appropriately,
the juror acted inappropriately in seeking outside input on the case. And because no one has ever
questioned any member of the jury, we do not know the extent of the juror’s misconduct in
contacting third parties and discussing the case with outsiders or what impact the juror’s
misconduct involving extraneous communications had on the rest of the jury.
Moreover, although the fact that a juror instigated contact with a third party in order to
discuss the case would be enough to require the district court to hold a Remmer hearing, this case
presents at least two additional facts that reinforce the necessity of a Remmer hearing. First,
1
Of course, generally there cannot be an inquiry into influences on the jury deliberations that are internal to
those deliberations, such as “any statement made or incident that occurred during the jury’s deliberations; the effect
of anything on that juror’s or another juror’s vote; or any juror’s mental processes concerning the verdict or
indictment.” Fed. R. Evid. 606(b)(1). But see Peña-Rodriguez v. Colorado, 137 S. Ct. 855, 869 (2017) (carving out
an exception to this “no-impeachment rule” for instances “where a juror makes a clear statement that indicates he or
she relied on racial stereotypes or animus to convict a criminal defendant.”). In this case, we are addressing possible
“extraneous prejudicial information . . . improperly brought to the jury’s attention” or “outside influence . . .
improperly brought to bear on any juror.” Fed. R. Evid. 606(b)(2)(A), (B). Pursuant to Federal Rule of Evidence
606(b)(2), there can be an inquiry into extraneous influence—indeed, pursuant to Remmer, there must be an inquiry
into a colorable claim of potentially prejudicial extraneous influence.
Nos. 16-6655/6657 United States v. Lanier et al. Page 7
despite Nelson’s asserted instructions, Juror 11 did not alert the district court to the problem that
she had called the assistant district attorney to discuss or even to the fact of the contact with the
assistant district attorney. Second, the jury came back with a verdict shortly after the juror’s
telephone call with the assistant district attorney, even though very recently—indeed that very
morning—the jury apparently was divided into two groups and angry with each other. Each of
these facts suggests the possibility of external influence. The district court abused its discretion
by failing to hold a Remmer hearing to investigate possible external influence on the jury.
Because the district court abused its discretion by failing to conduct a Remmer hearing,
we vacate defendants’ convictions and remand the case for a Remmer hearing. See, e.g., Davis,
177 F.3d at 560; Herndon, 156 F.3d at 638. During the hearing, attorneys for each side should
have the opportunity to question Juror 11 and the rest of the jury to determine whether any
external influence affected the jury’s deliberations. Attorneys for each side should also have the
opportunity to question Nelson about her conversations with Juror 11. We retain jurisdiction
over defendants’ cases. See United States v. Sylvester, 143 F.3d 923, 935 (5th Cir. 1998).
Subject to review by this court, if the Remmer hearing reveals that any external influence
prejudicially affected jury deliberations, defendants are entitled to a new trial, but if the Remmer
hearing reveals that no external influence prejudicially affected jury deliberations, defendants’
convictions must be reinstated. Cf. Remmer v. United States, 350 U.S. 377, 378 (1956)
(reviewing the trial court’s ruling following the Supreme Court’s earlier remand for a hearing).
If defendants’ convictions are reinstated, this court then will review the sentencing issues that
defendants raised in this appeal.
III. CONCLUSION
As set forth above, we VACATE defendants’ convictions and REMAND the case to the
district court for a Remmer hearing and further proceedings consistent with this opinion. We
RETAIN jurisdiction pending the district court’s Remmer hearing.