United States v. Harris, No. 15CR335-2, 2018 WL 3869579 (N.D. Ohio Aug. 15, 2018) and United States v. Harris, 881 F.3d 945 (6th Cir. 2018).
Summary: Nilgün Aykent Zahour analyzes the juror misconduct issues in United States v. Harris, No. 15CR335-2, 2018 WL 3869579 (N.D. Ohio Aug. 15, 2018) and United States v. Harris, 881 F.3d 945 (6th Cir. 2018). The issues we’re going to discuss are Internet research by both a juror and his girlfriend, Google search histories, colorable claims of extraneous influence, Remmer evidentiary hearings, and unsuccessful searches on the Internet and LinkedIn of parties, witnesses, attorneys and judges.
Hi, this is Nilgün Zahour from SM JUROR and welcome to The SM JUROR Podcast on Juror Misconduct Law where our motto is, “Don’t let juror misconduct taint your verdict.” We analyze current state and federal juror misconduct cases and provide attorneys with the strategies to identify, preserve and advance juror misconduct issues at trial and on appeal.
And, today in Episode 20, we’re going to be looking at the case of United States v. Harris, which is a federal case from the Northern District of Ohio. The issues we’re going to discuss are Internet research by both a juror and his girlfriend, Google search histories, colorable claims of extraneous influence, Remmer evidentiary hearings, and unsuccessful searches on the Internet and LinkedIn of parties, witnesses, attorneys and judges. Glad you’re listening because the only evidence you want the jury to hear is in the courtroom. Now let’s take a look at United States v. Harris.
Hi everyone. This is Nilgün Zahour from SM JUROR and in Episode 20 of The SM JUROR Podcast on Juror Misconduct Law, we’re going to be looking at the juror misconduct issues in the case of United States v. Harris, which is a federal case from the Northern District of Ohio.
This case was decided on August 15, 2018, and I’ll be sure to put the full citation of the case in our episode notes, along with the citation for United States v. Harris from the United States Court of Appeals for the Sixth Circuit, which had critical background information. Also, if you can, please leave us a review because we want your feedback and want to provide value to our listeners. And of course, if you were involved in a trial where juror misconduct was an issue, please contact us so we can interview you for our podcast.
In this case, we’re going to look at the evidentiary hearing of a juror and his girlfriend concerning their internet research during the defendant’s trial. I picked this case for our discussion today because I wanted to talk about several methods of investigation which were utilized in order to have an evidentiary hearing take place and then examine what occurred at that evidentiary hearing, along with whether there was sufficient evidence to warrant a new trial based on juror misconduct.
So, by way of background, before we get to what occurred at the evidentiary hearing, first we’ll take a look at the opinion in United States v. Harris, which is from the United States Court of Appeals for the Sixth Circuit.
The defendant was convicted in the U.S. District Court for the Northern District of Ohio for conspiracy to commit securities fraud, obstruction of justice, and wire fraud, and sentenced to 63 months in prison. He appealed his conviction on multiple grounds, but the juror misconduct issue concerned whether the district court had abused its discretion in denying him an evidentiary hearing to determine whether a juror had been exposed to prejudicial extraneous information or evidence. The Sixth Circuit Court of Appeals, however, held that the defendant established a colorable claim of extraneous influence which required an evidentiary hearing to determine whether a new trial should be ordered based on juror misconduct.
So first, what is the colorable claim of extraneous influence? Let’s take a look at how the defendant, himself, was proactive in gathering evidence of internet research and examine what occurred during the defendant’s trial.
The defendant’s trial went from August 24th to September 7, 2016. On September 6th, Harris received a notification from LinkedIn that other LinkedIn members had recently viewed his LinkedIn profile. After the jury returned its verdict convicting him, he opened his email and saw that a person who recently viewed his profile was Christian Goleno, a college student at Youngstown State University, located in Ohio in the city where Harris had his trial. Now Harris did not know this person and it’s not clear of exactly when Goleno viewed Harris’s LinkedIn profile, but the September 12th LinkedIn profile-view summary page indicated Goleno viewed his LinkedIn profile sometime between August 28th and September 12th.
Now before we go any further, I want to point out some key areas of evidence which are relevant here and the trail of the evidence. Harris gets a notification from LinkedIn. We don’t know if this is a notification that pings on his phone or a notification that comes up when he’s actually on LinkedIn or an email, or some combination of all of these things. But what’s important here is that he was notified that someone viewed his LinkedIn profile.
Normally, these types of notifications are important because a viewing of a person’s LinkedIn profile from another LinkedIn member means that someone is possibly interested in connecting or working with you or is interested in your work or something you’ve written or done. But, here, Harris is involved in a trial, and all of a sudden, he gets a notification that someone he doesn’t know, viewed his LinkedIn profile – not a person in his network or field of business, but a college student who goes to school in the city where he had his trial. He looks at his LinkedIn profile-views summary page and sees this college student viewed his profile in a date range that was inclusive of time when he was on trial.
So, the questions become: Who is this college student and why would a college student recently view his LinkedIn profile?
That’s what Harris wanted to know, so he goes on Facebook to find Christian Goleno to look at her profile. In viewing her profile, Harris sees photos of her and a juror from his trial, Juror 12. He then looks at Juror 12’s profile and sees pictures of Goleno on his profile.
Now the opinion also adds keys pieces of information from the voir dire transcript: (1) Goleno was Juror 12’s live-in girlfriend, (2) Goleno and Harris had no personal connection and (3) Harris’s trial received little trial publicity.
So again, the question becomes: Why would Goleno look at Harris’s LinkedIn profile? He concluded that Juror 12 must have talked to his girlfriend, Goleno, about the trial and Goleno probably did some sort of Google search on Harris because his LinkedIn profile was the first page of the Google search results.
But there was additional information on the first page of those Google search results, which was information about the FINRA’s investigation of Harris, which led to his permanent bar from the FINRA. The FINRA is the Financial Industry Regulatory Authority which is a non-governmental agency that regulates the securities industry. Now there are two key important facts to know about this additional information regarding the FINRA’s investigation: (1) that these results also appeared on the first page of Google results when Harris was searched on Google, and (2) that the government was precluded from presenting evidence of that investigation at trial, probably pursuant to a motion in limine by the defendant.
So not only do we facts which point to the fact that Juror 12’s girlfriend did some type of Google research on the defendant, including viewing his LinkedIn profile, but also Google search results on the first page included information which was specifically barred at trial.
But what does this have to do with the jury? The information at this point concerns only Juror 12’s girlfriend, Goleno, and not Juror 12. So if a non-juror happens to be doing research on the defendant, that is not prejudicial because that non-juror has no information to give to the jury when the jury deliberates, or does she?
So now we have to tighten the issue, and break it down into subparts as to why Goleno did the internet research on Harris, so the issues become: Did Juror 12 and Goleno have improper conversations about the trial, and if so, what information was exchanged between them, and did Juror 12 do any internet research pertaining to Harris or the trial?
At that point, Harris moved for Remmer evidentiary hearing to determine whether Juror 12 was exposed to prejudicial extraneous information about Harris during trial. He moved for an evidentiary hearing where both Juror 12 and his girlfriend, Goleno, would testify about any internet research or communications about the trial, or at minimum, that he be allowed to interview them. The government argued that Harris did not make a “colorable claim of extraneous influence” and the district court denied Harris’s motion for an evidentiary hearing or interview, concluding that “it was ‘more likely’ that Goleno ‘never had an actual communication with Juror 12.’”
Now as we know, a trial court’s rulings relative to juror misconduct issues are reviewed for an abuse of discretion so Harris appealed the denial of his motion for a Remmer hearing to the Sixth Circuit Court of Appeals, arguing that the district court should have investigated whether Juror 12 was exposed to extraneous prejudicial information, given the fact that Harris presented evidence about Goleno’s internet research. The law is that whenever a defendant presents a “colorable claim of extraneous influence,’ the court ‘has a duty to investigate and determine whether there may have been a violation of the constitutional guarantee’” of a criminal defendant’s right to a fair and impartial jury.
So what kind of evidence was presented to the district court about Juror 12’s possible exposure to prejudicial extraneous evidence?
First, Goleno, who had no personal connection to Harris, viewed his LinkedIn profile some point while Harris was on trial, but the exact date was unknown. Evidence here would be the LinkedIn profile-view summary page and testimony and/or an affidavit from Harris regarding his LinkedIn notification that he received on September 6, 2016, his email, and his own personal search of Goleno on Facebook to connect her to Juror 12 from pictures he viewed on Facebook of the couple from viewing their respective Facebook profiles. Now I want to point out that the actual photos from Facebook do not need to be entered into evidence, because the transcript from voir dire confirmed that Goleno was Juror 12’s live-in girlfriend. It would be important to add that part of the voir dire transcript into the motion to solidify the live-in relationship between Juror 12 and Goleno, especially since the issue concerns improper communications between the two, potentially about internet research.
Second, the next piece of critical evidence would be the print out of the Google search on Harris which demonstrated that the first page showed his LinkedIn profile, as well as the FINRA investigation and his bar from the FINRA. In other words, information about matters which were specifically precluded from the trial were prominently displayed on the first page of a Google search result. No digging was involved.
The United States Court of Appeals found that although Harris did not establish that Juror 12 was exposed to unauthorized extraneous information about him, Harris did present a colorable claim of extraneous influence which necessitated the district court’s investigation. Therefore, the Court of Appeals held that the district court abused its discretion in failing to conduct an evidentiary hearing or allowing Harris to further investigate the matter by interviewing Juror 12 and Goleno. It vacated the judgment of the district court and remanded the matter back to the district court to hold a Remmer evidentiary hearing on whether Juror 12 was exposed to any unauthorized extraneous evidence, noting that if the district court found that Harris was prejudiced by the juror misconduct, then Harris would be entitled to a new trial on all counts.
Now the case is remanded back to the district court to hold an evidentiary hearing to determine whether Juror 12 was exposed to any unauthorized extraneous evidence about Harris or relating to the trial. If Juror 12 was exposed to any extraneous information through improper communications with his girlfriend or any internet research that he did, then the defendant has the burden of proving that that exposure prejudiced him in receiving a fair and impartial trial.
Now before we get to the core about what occurred during the evidentiary hearing, I want to point out that the issue was fully briefed by the parties, as well as subpoenas being issued and returned with relevant information.
What’s occurring here is that the district court is going to hold a Remmer hearing, which is an evidentiary hearing where witnesses are examined by both parties in cases of suspected jury taint. The Sixth Circuit Court of Appeals has “articulated the following four-point procedure to adjudicate cases of impermissible juror contact:
(1) when a defendant alleges that an unauthorized contact with a juror has tainted a trial, a hearing must be held;
(2) no presumption of prejudice arises from such a contact;
(3) the defendant bears the burden of proving actual juror bias; and
(4) juror testimony at the ‘Remmer hearing’ is not inherently suspect.”
Now, prior to the evidentiary hearing, both Juror 12 and Goleno responded to subpoenas duces tecum, which sought documents including internet search histories, phone records and messages, and various usage data on applications like Snapchat. The only thing that Juror 12 and Goleno were able to produce were copies of their Google search histories. So, we know from the onset that both Goleno and Juror 12 did internet research related to the trial and that Juror 12 was specifically ordered not to do so as a member of the jury.
As we step back for a moment, let’s look at the defendant’s burden of proof here. He’s already discovered that Goleno viewed his LinkedIn profile, so now he is asking for documents related to her Google search because remember, he has a concern that she may have seen information about the FINRA investigation of Harris, which was on the first page of the Google search names for Harris, and he was concerned because that information was precluded from being heard during trial. In the same breath, he’s also asking for internet search histories from Juror 12 for the same reason, and for any other internet search either Goleno or Juror 12 did that may have been related to the trial.
Now as for phone records and messages, neither Goleno, nor Juror 12, produced anything. If they didn’t have it, they didn’t have it, and for applications like Snapchat, we know messages disappear shortly after they are viewed. But remember that even though documents were not produced, these witnesses can be asked about information which was sought from the subpoenas, but not produced.
The opinion discusses Goleno’s testimony at the evidentiary hearing identifying three points of critical importance. She testified that Juror 12 told her about the rule that prohibited juror research and that she understood the importance of a fair trial. She also testified that she did internet research on her cell phone, but did not tell Juror 12 about what she found in her searches and she did not recall any conversations she had with him about the trial when the trial was going on.
Relative to her internet research and whether Juror 12 saw any of it, she said Juror 12 did not see her doing her internet research on her phone because he was either watching TV or playing a video game. On the issue of the defendant’s LinkedIn profile, she testified that she tried to view the profile so see what the defendant looked like, but she couldn’t because his LinkedIn account was set to private.
That’s all that the opinion states with respect to Goleno’s testimony and what’s missing here is information about whether Goleno saw the FINRA information that was on the first page of the Google search results for the defendant’s name. Now I’m speculating that a few different scenarios possibly happened here. First, in the documents that Goleno produced in response to the subpoena about her internet search, maybe there was nothing listed in that search history about the FINRA investigation. Or, there also could have been a court order that limited the scope of the questioning, only to what the documents each witness produced. I don’t know, and the opinion doesn’t say, but the opinion does not address anything about the FINRA appearing in any Google search results. Second, maybe she was asked about the FINRA and didn’t know anything about it or didn’t research it, or third, she was just not asked about the FINRA investigation at all.
Why am I emphasizing this? Because information related to the FINRA investigation appeared on the first-page of the Google search results for the defendant and evidence about the FINRA was specifically barred at trial, so if Goleno saw this information and passed it on to Juror 12, then that information may have compromised his verdict. This is important because remember, the defendant has the burden of proving that the alleged internet research prejudiced his ability to have a fair and impartial trial. It was his burden to prove that Juror 12 was exposed to extraneous information about the FINRA which was specifically barred at trial. So if a juror hears evidence that was specifically barred at trial through a motion in limine, the defendant can strengthen his argument that he was prejudiced by the internet research. Here of course, he would have to prove that Goleno clicked on the FINRA search results and shared them with Juror 12, or Juror 12 looked at the FINRA search results when he did his own internet research.
Juror 12 also testified at the evidentiary hearing and it’s here where we learn of the extent of Juror 12’s internet research during the trial. First, during the trial, he ran a search on an address associated with a witness to view the property. Additionally, he attempted to run a search on one of the attorneys and inputted the name of the judge. He also testified that his girlfriend did not give him any printouts or information about her internet research results.
Of significance is that Juror 12 testified that he would not have told any of the other jurors about anything Goleno may have told him and that his verdict was based solely on the evidence in the courtroom. He also testified that Goleno had been pestering him about information about the trial, so he told her the name of the defendant and the names of two attorneys which she searched.
And that’s the extent of what the opinion provides about the testimony of Juror 12 and Goleno at the evidentiary hearing. Now, remember, it is the trial court who assesses the credibility of the witnesses at the evidentiary hearing and although there were some inconsistencies, the trial court found both Juror 12 and Goleno to be credible witnesses.
Now let’s further examine Juror 12’s testimony, which the district court characterized as “challenging.” Juror 12 violated his oath as a juror when he researched an address related to a witness. He was also unsuccessful in his attempts to research an attorney or input the judge’s name. His research on the address of a witness was to view the appearance of the property. He stated that it had nothing to do with the defendant.
Now remember, the defendant has the burden of proving that Juror 12’s research was prejudicial or resulted in Juror 12 being biased against the defendant, such that the defendant did not get a fair and impartial trial. The defendant did not prove that Juror 12’s unsuccessful research of the attorneys or judge or his search of the witness address prejudiced him in not receiving a fair trial. Even though there was some impropriety, the defendant did not show that he was prejudiced by any of the research.
The court found the testimony of Juror 12 and Goleno to be credible. There was no unauthorized contact. There was no evidence that Juror 12 and Goleno talked to each other about Goleno’s research. They were in different rooms when she did her research. Juror 12 had no access to Goleno’s cell phone, and when the printouts of their respective Google internet searches were compared, it was noted that their spellings of various individuals were different, further corroborating that they did not talk to each other about their research. There was no evidence that Goleno or Juror 12 knew anything about the FINRA investigation or its bar of Harris and there was no evidence to contradict Juror 12’s testimony that his based his verdict solely on the evidence presented in the courtroom.
Now there are a few strategy points I want to make here, if you find yourself in a situation where a juror, or someone related to a juror, does internet research on your client, including a search of your client’s LinkedIn profile.
First, before jury selection even starts, make sure that your client’s LinkedIn profiles are set to private. Here, Goleno wanted to see what Harris looked like, but could not do so because his LinkedIn profile was set to private. Now, as an attorney, it may be prudent to do your own independent research on LinkedIn related to all the parties at trial and all witnesses because there may be something in any one of those profiles which could impact a juror who may be inappropriately researching a party or a witness. They may see information on the LinkedIn profile which could be beneficial or potentially adverse to your case. Or maybe a party or witness has listed connections on LinkedIn which may have an impact because curious jurors could make certain inaccurate conclusions from those listed connections. It may be prudent for you to instruct your client to set their LinkedIn profiles to private during the course of the trial up until all post-verdict hearings are concluded.
In the same way, if you know of anything that is detrimental to your case, like the FINRA investigation in this case, be prepared and do your own internet research of the client and see what turns up in the Google search results. Here, the FINRA investigation was on the first page of the Google results.
Third, in this case, the defendant did not carry his burden of proof in showing that Juror 12’s research adversely affected or prejudiced his case. Remember that once you discover an impropriety, you must demonstrate that the juror misconduct adversely affected your client’s right to a fair and impartial trial.
Fourth, this case involved research by Juror 12’s girlfriend and a critical component – one which was important in presenting a colorable claim of extraneous influence – was the FINRA investigation on the first page of the Google search results. There was no mention in this opinion that Goleno saw this or reported anything about it to Juror 12. So, if you have a situation where there is prejudicial information out on the Internet about your client, and it’s discovered that a juror did internet research on your client, ask the tough questions at the evidentiary hearing about whether the juror saw the actual prejudicial information and what impact, if any, it had on the juror’s ability to be fair and impartial.
Now whether you are presenting evidence of juror misconduct or presenting evidence that any alleged juror misconduct did not affect the verdict, remember to ask the specific question to the involved juror or jurors on whether they based their verdict solely on evidence presented at trial. Another question to ask would be if despite their exposure to some extraneous evidence, whether they can still remain fair and impartial.
And finally, I just want to highlight the evidence that was used in this investigation. Here, we have evidence of the LinkedIn profile-view summary page, the printouts from the Google searches of the defendant, the reference or use of the court order barring evidence of the FINRA investigation, the voir dire transcripts, the subpoenas duces tecum and their responses, and of course, evidence from the witnesses at the evidentiary hearing. Each one of these components builds the Record on Appeal as the juror misconduct issue is presented at trial and further pursued on appeal.
And that’s it for our analysis of the juror misconduct issues in this case. If you like what you hear and want more, please subscribe to our podcast and leave us a review.
And also check out our latest CLE on juror misconduct called: “Facebook & Today’s Juror: 2017’s 10 Biggest Juror Misconduct Events,” and use the code “podcast25”, that’s podcast two-five, for $25 off our regular CLE price exclusively for our podcast listeners. This CLE is accredited and/or approved for 1.5 general credit hours in 30 states and I’ll put the link to the registration page in our episode notes.
That’s it for today. This is Nilgün Zahour from SM JUROR, and remember, don’t let juror misconduct taint your verdict. See you next time.
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