United States District Court, S.D. New York
For Feng Ling Liu, also known as Sealed Defendant, Defendant: Paul Lewis Shechtman, LEAD ATTORNEY, Zuckerman, Spaeder LLP(NYC), New York, NY; Benjamin Joseph Voce-Gardner, Zuckerman Spaeder LLP, New York, NY; Cesar De Castro, The Law Firm of Ceasar de Castro, P.C., New York, NY.
For Vanessa Bandrich, also known as Sealed Defendant, Defendant: Sean Michael Maher, The Law Offices of Sean M. Maher, PPLC, New York, NY.
For Feng Li, also known as Sealed Defendant, Defendant: Michael Steven Schachter, Willkie Farr & Gallagher LLP (NY), New York, NY; Raymond H. Wong, Law Offices of Raymond H. Wong P.C., New York, NY.
For Shuran Liu, also known as Sealed Defendant, also known as Harry, Defendant: Cesar De Castro, LEAD ATTORNEY, The Law Firm of Ceasar de Castro, P.C., New York, NY; Stuart David Rubin, LEAD ATTORNEY, Stuart D. Rubin, Esq, Brooklyn, NY; George Robert Goltzer, George Robert Goltzer, New York, NY.
For Yuchang Miao, also known as Sealed Defendant, Defendant: Charles Samuel Hochbaum, Charles S. Hochbaum, PC, Brooklyn, NY.
For Sunny Yang, also known as Sealed Defendant, also known as Ms. Yang, Defendant: Stanislao A. German, LEAD ATTORNEY, Law Office of Stanislao A. German, New York, NY.
For Wen Ting Zheng, also known as Sealed Defendant, Defendant: David Touger, Peluso & Touger, New York, NY; Hugh Hu Mo, The Law Firm of Hugh H. Mo, P.C., New York, NY.
For Guo Qin Miao, also known as Sealed Defendant, also known as Lillian, Defendant: Donald Dennis Duboulay, Donald duBoulay, Esq, New York, NY; Paul Joseph McAllister, Paul J. McAllister, New York, NY.
For Kevin LNU, also known as Sealed Defendant, Defendant: Joshua Lewis Dratel, LEAD ATTORNEY, Law Offices of Joshua L. Dratel, P.C., New York, NY; Charles Samuel Hochbaum, Charles S. Hochbaum, PC, Brooklyn, NY.
For USA, Plaintiff: Brian Roger Blais, LEAD ATTORNEY, U.S. Attorney's Office, SDNY, New York, NY; Robert Lee Boone, LEAD ATTORNEY, United States Attorney's Office, Southern District of New York, New York, NY; Harris Fischman, United States Attorney Office, SDNY, New York, NY.
OPINION AND ORDER
Ronnie Abrams, United States District Judge.
On April 14, 2014, a jury convicted Rui Yang and her co-defendants, Feng Ling Liu and Vanessa Bandrich (collectively " Defendants" ), of one count of conspiracy to commit immigration fraud pursuant to 18 U.S.C. § 371. The evidence at trial established that Defendants, each of whom worked at one of two law firms in New York's Chinatown, conspired over a multi-year period to submit approximately 1,800 fraudulent asylum applications to federal immigration authorities. Ms. Yang, joined by her co-defendants, now moves for a new trial under Fed. R. Crim. P. 33 based on alleged juror misconduct. They contend that one of the jurors in this matter lied about the fact that she had been routinely posting about her jury service on the social media service Twitter--or " tweeting" --during the trial. Defendants further argue that the juror disobeyed the Court's instructions by tweeting and that the tweets reveal the juror's bias against them. All this, they claim, deprived them of their Sixth Amendment right to a trial by an impartial jury. As the Court stated at Defendant Yang's sentencing, and for the reasons that follow, the Court concludes otherwise. Defendants' motion is therefore DENIED.
Defendants' present challenge focuses on the conduct of the individual who served as Juror 2 and who, as it happens, was not the only juror to tweet in this case. Trial began on March 19, 2014, with jury selection. In the course of those proceedings, Juror 2 indicated during voir dire that she was a self-employed crime fiction writer. (Voir Dire Tr. 255.) She noted that she " watch[es] pretty much every crime show on TV." (Id. at 257.) In response to a question about her Internet habits, Juror 2 mentioned that she uses Twitter " for social stuff."  (Id.) She also disclosed, among other things, that her
uncle is a sitting federal judge in this District, that her " father came [to the United States] seeking asylum," and that, " [l]ike everybody in New York, [she had] been a victim of theft." (Id. at 176-76; 255-56; 357-58.) No party made any for-cause challenge to Juror 2.
Prior to dismissing the jury on March 20, the Court instructed its newly seated members--including Juror 2--as follows, in pertinent part:
Now, a few words about your conduct as jurors. First, during the trial you are not to discuss the case with anyone, nor are you to permit anyone to discuss it with you. Until you retire to the jury room at the end of the case to deliberate, you're simply not to talk about the case. Do not even discuss the case with each other until your actual deliberations begin at the end of the trial....
Second, if anyone should try to talk to you about the case, please bring it to the attention of Ms. Cavale, my courtroom deputy, and she'll bring it to my attention.... Do not talk or read about the facts or circumstances of this case on social networking sites such as Facebook or MySpace. Don't tweet about your experience here on Twitter, and don't try and find any information about this case or any similar case, whatsoever.
Third, you're instructed not to read, listen to, or watch media reports on television, in the newspaper, on radio or internet about the case, if there even [are] any. You must not be influenced by anything you might see or hear outside of the courtroom. If you inadvertently come across a news report relating to this case, immediately stop reading, listening, or watching. You should then tell Ms. Cavale that, no one else, again, including your fellow jurors about that fact.
Fourth, do not do any research or investigation about the case, or anything touching upon the case. Again, don't go on the internet, do any searches about the case or these kinds of cases. And I apologize for be repetitive. This is very important....
It is important to keep an open mind throughout the trial and reserve judgment until after all of the evidence is in. Until you have heard all the evidence, the closing arguments and my instructions on the law, you're really not in a position to reach any conclusions in this case. And, therefore, you have to keep an open mind....
Now I'm going to excuse you for the weekend. Thank you. Again, remember, keep an open mind. Don't talk about this. Don't research it, and I look forward to seeing you all promptly on Monday morning.
(Tr. 40-42, 45 (emphasis and paragraph breaks edited).) Opening statements began the following Monday, March 24. The direction to not discuss the case and to keep an open mind was reiterated with some frequency during the trial. (Tr. 156, 234, 353, 407, 462, 511, 586, 637, 691, 745, 807, 849, 924, 958, 1010, 1044, 1082, 1162, 1211, 1292, 1449, 1599, 1677, 1782, 1824, 2035, 2103, 2182, 2238.)
Shortly after midnight on April 9, as the trial neared its end, counsel on both sides received an anonymous email from an individual purporting to do " research on juror misconduct" and advising that one of the jurors in this case--Juror 10--was tweeting about the trial. (Ex. 7.) Juror 10's
tweets, spanning from March 20 through April 7 and amounting to about one tweet a day, included the following:
Add in just one song & dance number, and this federal case would rival anything I've seen on ...