United States v. Ankur Roy , 819 F.3d 998 ( 2016 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 15-2202
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ANKUR ROY,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 13 CR 377-1 — Gary Feinerman, Judge.
____________________
ARGUED FEBRUARY 16, 2016—DECIDED APRIL 15, 2016
____________________
Before POSNER, WILLIAMS, and HAMILTON, Circuit Judges.
POSNER, Circuit Judge. The defendant was prosecuted for
defrauding Medicare and Blue Cross Blue Shield by submit-
ting claims for reimbursement for respiratory therapy that
he (more precisely the company of which he was Chief Ex-
ecutive Officer) had not provided. He was convicted by a
jury and sentenced to 75 months in prison to be followed by
three years of supervised release, and also ordered to pay
restitution to the victims of the fraud of some $2.5 million.
2 No. 15-2202
His principal claim on appeal is that his constitutional right
to be tried by an impartial jury was violated, primarily be-
cause the district judge refused to order the jurors to return
to court after the trial for a hearing about alleged juror mis-
conduct or to order a new trial.
Three days after the jury rendered its guilty verdict one
of the jurors had sent the court a three-page “report on jury
misconduct.” It was a follow-on to a phone call that he had
made to the district court, in which he’d told a member of
the court’s staff that he wanted to retract his vote to convict.
He had signed the jury verdict of guilty; had he not, the de-
fendant would not have been convicted because the jury’s
verdict would not have been unanimous.
Though the juror’s report deals mainly with the jury’s de-
liberations, it opens by stating that “every single juror in the
[jury] room, except for two, had already expressed a strong
dislike of the defendant and his defense counsel—from the
very first day” of the trial. According to the author of the re-
port, he and another juror were the only jurors “who be-
lieved in starting deliberations with the presumption that
the defendant was innocent.” But the other juror was ex-
cused from jury duty after deliberations began, and replaced
by an alternate.
In breaks in a federal jury trial, which are frequent, the
jurors repair to a jury room, having been instructed by the
judge that they’re not to discuss the case until the trial ends
and deliberations on the verdict begin. See, e.g., United States
v. Morales, 655 F.3d 608, 629–32 (7th Cir. 2011). (Interestingly,
some state courts are permitted to, and do, allow jurors to
discuss the case before the end of the trial, the judge having
instructed them, however, not to decide the case before then.
No. 15-2202 3
United States v. Farmer, 717 F.3d 559, 565 (7th Cir. 2013); Shari
Seidman Diamond, et al., “Juror Discussions During Civil
Trials: Studying an Arizona Innovation,” 45 Ariz. L. Rev. 1
(2003).)
The jurors who allegedly expressed dislike for the de-
fendant and his lawyer on the first day of the trial may have
been intimating an intention of voting to convict, in which
event they were “discussing” the merits of the case and the
verdict they were likely to render, thus violating the judge’s
instructions. But they may instead have been expressing a
personal antipathy unrelated to the question of the defend-
ant’s innocence or guilt, which though a violation of the
judge’s instructions might be thought harmless. The defend-
ant is from India, and he speculates that the jurors’ dislike of
him was based on prejudice against dark-skinned people.
But this conjecture is not supported by anything in the dis-
sentient juror’s lengthy report of the jury’s alleged miscon-
duct.
The bulk of the report is devoted not to the initial discus-
sions in the jury room but instead to the jury’s deliberations,
which though as depicted in the report were abrupt, sum-
mary, and coarse are consistent with the jury’s simply hav-
ing found, in the course of their deliberations, the evidence
of the defendant’s guilt to be compelling. As the report
we‘ve been discussing was the work of a single juror, its ac-
curacy could not be assessed without a full-scale hearing at
which the other eleven jurors would be asked by the judge
to explain their deliberations and justify their votes. But such
a hearing is forbidden; Federal Rule of Evidence 606(b) pro-
hibits evidence about jury deliberations unless there is an
allegation that the jury was subjected to external influence,
4 No. 15-2202
Tanner v. United States, 483 U.S. 107, 121 (1987), and there is
no such allegation in this case.
Quite apart from Rule 606(b), because the verdict was
rendered more than 20 months ago the jurors’ current recol-
lections of their deliberations could not be trusted. Given
this long remove from the trial, it’s no surprise that the de-
fendant is seeking not a hearing to determine whether there
was jury misconduct but instead a brand new trial, a do-over
on the ground that his original trial was indelibly tainted by
the jury’s premature discussion of the case—premature be-
cause the judge had instructed the jurors not to discuss the
case until the trial was over and jury deliberations began.
The other complaint of the disgruntled juror is that an-
other juror said he knew that the defendant, as the CEO of
the company that had submitted the fraudulent claims on
which the prosecution was based, was “by law … required
to know where funds are coming from.” Another juror
agreed, on the basis of his own “experience in managing,”
and one or both of those jurors added “that it was illegal to
withdraw ill-gotten funds.” A third juror remarked “that in
her professional experience with medical billing, there was
no way he [defendant Roy] could not have known there was
fraud in progress.” The jurors may have been right or
wrong, but there is nothing amiss in jurors’ drawing on their
everyday knowledge to help them form an opinion about
the issues in the case, or, in what amounts to the same thing,
on “the general body of experiences that jurors are under-
stood to bring with them to the jury room.” Warger v. Shau-
ers, 135 S. Ct. 521, 529 (2014).
A question raised by the juror’s report is whether the jury
engaged in premature deliberations, or even made a deci-
No. 15-2202 5
sion before discussion, as in the cry of the Queen of Hearts in
the trial of the Knave of Hearts in Alice in Wonderland—
“sentence first—verdict afterwards.” Remember that the re-
port states that all but two jurors (the complaining juror be-
ing one) expressed a strong dislike of the defendant from the
first day of trial, and that he (that is, the author of the report)
had without success on three occasions before deliberations
began asked the other jurors to stop talking about the case.
But this is just one juror’s version of what happened, and for
all we know the other jurors, if they remembered the first
day of the trial at all, would deny having expressed dislike
for the defendant and his lawyer.
We might have preferred the district judge to have sum-
moned the jurors for a brief hearing a few days after the re-
ceipt of the dissentient juror’s report, a hearing at which he
could have asked each of them separately what if any dis-
cussion the jury had had before deliberations began. To or-
der such a hearing would have been within the judge’s au-
thority. United States v. Farmer, supra, 717 F.3d at 565. But it
would not be sensible to lay down a rule that any time a ju-
ror alleges jury misconduct the judge must order the jury to
return for a hearing on the allegation. Such a rule would,
when it became known, discourage persons from serving on
juries (jury service is compulsory, but persons with a strong
aversion to serving manage to avoid it by one means or an-
other). At the same time such a rule would embolden dis-
gruntled jurors to complain about the other jurors’ behavior
in the jury room. We can’t do better than to leave it to the
trial judge to decide whether alleged jury misconduct is like-
ly to have affected the verdict in a case.
6 No. 15-2202
The judge discussed at length the defendant’s challenge
to the jury’s verdict and concluded that a mistrial was un-
warranted. His discussion is not entirely satisfactory. Nota-
bly he said that he had “regularly instructed the jurors not to
speak among themselves or with others about the case dur-
ing the trial,” and “given this, the likelihood of prejudice
from the jurors’ pre-deliberation discussions is virtually
nonexistent.” That is an overstatement. If the dissentient ju-
ror was telling the truth, the jury had disobeyed the judge’s
instruction “not to speak among themselves … about the
case during the trial.” The likelihood of prejudice as a result
of this disobedience could be considered “virtually nonexist-
ent” only if jurors almost never disobey a judge’s instruc-
tions, and we know that’s not true. For example, Caren My-
ers Morrison, in her article “Can the Jury Trial Survive
Google?” 25 Criminal Justice 4 (Winter 2011), presents evi-
dence of jurors’ defiance of trial judges’ orders not to con-
duct Internet research on the case before them.
Yet the discussions among the jurors in this case in ad-
vance of deliberations may have concerned the defendant’s
likability rather than his guilt or innocence. The dissentient
juror’s report doesn’t say that any juror had discussed his or
her intended verdict before deliberations. Furthermore, the
dissenting juror had, but failed to invoke, a foolproof reme-
dy against the misconduct that he had observed: vote to ac-
quit, thus hanging the jury and requiring that the case be re-
tried before a different jury. Since it is likely the other jurors
would have denied any impropriety had they been asked,
this retrospective report is of little use to the judge; how
would he have decided who was telling the truth?
No. 15-2202 7
This appeal and our resolution of it underscore the limi-
tations of appellate review of trial-court decisions, limita-
tions recognized in the numerous deferential standards of
appellate review, such as clearly erroneous, arbitrary and
capricious, abuse of discretion, and substantial evidence.
These are not very illuminating terms, and there may be too
many of them, but they are reminders of the practical limita-
tions of appellate review. And although some problems dis-
cussed in this opinion would be easily solved were jurors’
deliberations recorded and the recordings made available to
judge and lawyers, that would inhibit the frank exchange of
views among the jurors and by doing so weaken the jury
system.
The unhappy truth, emphasized both in United States v.
Farmer, supra, 717 F.3d at 564, and in other cases, notably the
Supreme Court’s decision in Tanner v. United States, supra,
483 U.S. at 120–21, is that, imperfect as our jury system un-
doubtedly is, see, e.g., Joel Cohen, “Helping Juries to Better
Reach Untainted Verdicts,” HuffPost Crime, Feb. 16, 2016,
www.huffingtonpost.com/joel-cohen/helping-juries-to-better
-_b_9237828.html (visited April 15, 2016), we are stuck with
it. And so there is no satisfactory alternative to our standing
back and according a large measure of deference to the trial
judge’s handling of the complaints of a juror concerning the
jury’s discussions before deliberations. Only the failure of
the judge to take remedial measures (such as ordering a re-
trial) regarding palpable, egregious jury misconduct, or im-
permissible external influence on the jury, would justify our
intervening, as we did in United States v. Vasquez-Ruiz, 502
F.3d 700 (7th Cir. 2007). This is not such a case.
8 No. 15-2202
So much for the alleged jury misconduct; Roy also chal-
lenges his sentence on different grounds sensibly rejected by
the district judge. Roy objects to the application of a four-
level enhancement under the Sentencing Guidelines for
crimes involving more than 50 victims. U.S.S.G.
§ 2B1.1(b)(2)(B) (2011). Although the defendants used the
Medicare numbers of 168 persons in their fraudulent billing
scheme, Roy contends that they weren’t victims because
they suffered no monetary loss—that the only victims were
Medicare and Blue Cross Blue Shield. But “victims” includes
“any individual whose means of identification was used un-
lawfully or without authority,” U.S.S.G. § 2B1.1 Application
Note 4(E), and names and Medicare numbers are “means of
identification,” 18 U.S.C. § 1028(d)(7), making the individu-
als whose numbers were used victims.
The defendant also challenges the application to him of
the two-level increase in his Guidelines offense level for
abuse of a position of public or private trust. But the adjust-
ment was appropriate because as CEO he exercised manage-
rial discretion in determining how bills would be submitted
to Medicare. See U.S.S.G. § 3B1.3, Application Note 1; United
States v. Hoogenboom, 209 F.3d 665, 671 (7th Cir. 2000).
The judgment is
AFFIRMED.