Opposition Brief — Richard Maurival, Petitioner v. United States

No. 21-7076

________________________________________________________________

________________________________________________________________

IN THE SUPREME COURT OF THE UNITED STATES

_______________

RICHARD MAURIVAL, PETITIONER

v.

UNITED STATES OF AMERICA

_______________

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

_______________

BRIEF FOR THE UNITED STATES IN OPPOSITION

_______________

ELIZABETH B. PRELOGAR

Solicitor General

Counsel of Record

DAVID A. HUBBERT

Deputy Assistant Attorney General

S. ROBERT LYONS

JOSEPH B. SYVERSON

MARK S. DETERMAN

Attorneys

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

________________________________________________________________

________________________________________________________________

QUESTION PRESENTED

Whether the district court abused its discretion in declining

to expand its evidentiary hearing by questioning jurors who had

allegedly made racially charged comments during the trial, where

the juror who reported the comments testified that they had not

affected the deliberations and where petitioner did not, after

questioning of the reporting juror, ask the court to question any

additional jurors.

(I)

ADDITIONAL RELATED PROCEEDINGS

United States District Court (S.D. Fla.):

United States v. Maurival, No. 17-cr-14013 (Mar. 20, 2019)

United States Court of Appeals (11th Cir.):

United States v. Maurival, No. 19-11680 (July 7, 2021)

(II)

IN THE SUPREME COURT OF THE UNITED STATES

_______________

No. 21-7076

RICHARD MAURIVAL, PETITIONER

v.

UNITED STATES OF AMERICA

_______________

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

_______________

BRIEF FOR THE UNITED STATES IN OPPOSITION

_______________

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. A1-A14) is

reprinted at 861 Fed. Appx. 388.

The order of the district court

(Pet. App. C1-C6) is unreported.

JURISDICTION

The judgment of the court of appeals was entered on July 7,

2021.

A petition for rehearing was denied on November 2, 2021

(Pet. App. B1).

The petition for a writ of certiorari was filed

on January 31, 2022.

The jurisdiction of this Court is invoked

under 28 U.S.C. 1254(1).

2

STATEMENT

Following a jury trial in the United States District Court

for the Southern District of Florida, petitioner was convicted on

ten counts of assisting in the preparation of false tax returns,

in violation of 26 U.S.C. 7206(2), and three counts of filing false

tax returns, in violation of 26 U.S.C. 7206(1).

Pet. App. D1-D2.

The court sentenced him to 84 months of imprisonment, to be

followed by one year of supervised release.

court of appeals affirmed.

1.

Id. at D3-D4.

The

Id. at A1-A14.

Petitioner, a black man of Haitian descent, worked as a

tax preparer in Florida and Georgia.

Pet. App. A2.

From 2011 to

2014, petitioner prepared false income tax returns for his clients

and filed false tax returns for himself.

Gov’t C.A. Br. 3-6.

A

grand jury indicted petitioner on 16 counts of assisting in the

preparation

of

false

tax

returns,

in

violation

of

26

U.S.C.

7206(2), and three counts of filing false tax returns, in violation

of 26 U.S.C. 7206(1).

Pet. App. A2.

At trial, the government

called several of petitioner’s former clients as witnesses.

Ibid.

Some of those witnesses, who were likewise black and of Haitian

descent, “needed an interpreter.”

Id. at A3.

After jury deliberations began, a juror, G.D., sent the

district court a note alleging comments by two other members of

the jury.

Pet. App. A3.

Juror G.D. informed the court that Juror

A had said, “I just don’t like some of these people is [sic] hard

to be impartial,” and that Juror B had said, “Some of those

3

witnesses don’t even speak English, they shouldn’t even be in this

country.”

court

Ibid. (citation omitted; brackets in original).

denied

petitioner’s

request

to

interview

the

The

jurors,

identify the jurors who had made those remarks, and remove them

from the jury.

Id. at A3-A4.

The court instead gave a curative

instruction admonishing the jury that its “decision must be based

only on the evidence presented here” and that the jury “must not

be influenced in any way by either sympathy for or prejudice

against

the

defendant.”

Id.

at

A4.

The

jury

later

found

petitioner guilty of ten counts of assisting in the preparation of

false tax returns and of three counts of filing false tax returns,

but not guilty of the remaining six counts of assisting in the

preparation of false tax returns.

Ibid.

Petitioner moved for a new trial, arguing the general rule

against impeaching jurors for their verdict, see Fed. R. Evid.

606(b),

should

be

overridden

by

the

constitutional

concerns

identified in Peña-Rodriguez v. Colorado, 137 S. Ct. 855 (2017).

Gov’t C.A. Br. 9.

The district court granted an evidentiary

hearing, stating that it would first question only Juror G.D. but

could take further measures if it uncovered evidence that the

verdicts were racially motivated.

Pet. App. A4.

The court

explained that such an approach would “strike[] the appropriate

balance between respecting the no-impeachment bar and fulfilling

this

court’s

‘duty

to

confront

racial

animus

in

the

justice

4

system.’”

D. Ct. Doc. 140, at 14 (Jan. 17, 2019) (quoting Peña-

Rodriguez, 137 S. Ct. at 867).

At the evidentiary hearing, Juror G.D. testified that the

alleged comments had been made shortly before deliberations and

that

no

further

deliberations.

racially

charged

Pet. App. A5.

comments

were

made

during

She also testified that, when Juror

A had said “‘I just don’t like some of these people,’” Juror A

“was referring to the IRS,” not to members of any particular race.

Id. at A3, A5 (citation omitted). And she testified that, although

Juror B’s comment referred to “foreign people,” no other juror

expressed agreement with that view.

Id. at A5 (citation omitted).

She further testified that, in the end, Jurors A and B “just put

aside their thoughts and continued deliberation with the rest of

us”; that the jury “did go over every single piece of evidence”;

and that the verdicts were based on the evidence rather than on

racial prejudice.

C.A. App. 210-211; see id. at 214-215.

After hearing Juror G.D.’s testimony, the district court

stated that it was “satisfied that the verdicts were based on the

evidence.”

Pet. App. A7 (citation omitted).

When asked by the

court if he had “[a]nything further,” petitioner did not ask the

court to call additional jurors or otherwise object.

218; see Pet. App. A11-A12.

C.A. App.

The next day, the court entered a

written order denying petitioner’s motion for a new trial.

App. C1-C6.

Pet.

The court acknowledged that, “if racial animus was a

significant motivating factor in a juror’s vote to convict, then

5

the defendant was deprived of a fair trial.”

C.A. App. 217.

court

testimony

found,

however,

that

“Juror

G.D.’s

The

clearly

established that race and/or ethnicity was not a ‘significant

motivating factor’ in the jury’s verdict.”

2.

Pet. App. C5.

The court of appeals affirmed in an unpublished per

curiam opinion.

Pet. App. A1-A14.

The court of appeals determined that the district court did

not abuse its discretion in denying petitioner’s motion for a new

trial, or in declining to extend the evidentiary hearing beyond

the testimony of Juror G.D.

Pet. App. A4-A12.

The court of

appeals emphasized that the scope of such a hearing is committed

to the trial court’s discretion; that Juror G.D. “said several

times that the verdict was, in her opinion, based on the evidence”;

that the court had been open to a “more extensive inquiry” if the

evidence had warranted it; and that, after Juror G.D.’s testimony

concluded, petitioner “did not request that [any other juror] be

questioned.”

Id. at A11-A12.

The court of appeals found that the

district court had not abused its discretion by declining to call

additional jurors to testify sua sponte.

Id. at A12.

ARGUMENT

Petitioner

renews

his

contention

(Pet.

7-11)

that

the

district court erred in declining to extend its evidentiary hearing

by questioning Jurors A and B about their comments before denying

his motion for a new trial.

Because petitioner forfeited that

contention in the district court, it is subject to review only for

6

plain error.

Regardless, the court of appeals correctly rejected

it, and its unpublished per curiam decision does not conflict with

any decision of this Court or any other court of appeals.

No

further review is warranted.

1.

The law of evidence has long prohibited “the admission

of juror testimony to impeach a jury verdict.”

Tanner v. United

States, 483 U.S. 107, 117 (1987). That prohibition is now codified

in Federal Rule of Evidence 606, which provides that, “[d]uring an

inquiry into the validity of a verdict or indictment, a juror may

not testify about 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).

In Peña-Rodriguez v. Colorado, 137 S. Ct. 855 (2017), this

Court held that the Sixth Amendment requires an exception to the

no-impeachment rule (as codified in a state evidentiary rule) in

the context of allegations of racial bias.

The Court concluded

that, although “[n]ot every offhand comment indicating racial bias

or hostility will justify setting aside the no-impeachment bar to

allow further judicial inquiry,” the no-impeachment rule must give

way when “a juror comes forward with compelling evidence that

another juror made clear and explicit statements indicating that

racial animus was a significant motivating factor in his or her

vote

to

convict.”

Id.

at

861,

869.

The

Court,

however,

specifically left open “what procedures a trial court must follow

7

when confronted with a motion for a new trial based on juror

testimony

of

racial

bias”

and

“the

appropriate

standard

for

determining when evidence of racial bias is sufficient to require

that the verdict be set aside and a new trial be granted.”

Id. at

870-871.

2.

Petitioner does not challenge the abuse-of-discretion

standard of review that the court of appeals applied to the

district court’s determination in this case, or even the substance

of the district court’s finding that racial bias did not taint the

jury’s verdict in this case.

Petitioner instead objects to the

procedure that the district court used; he contends (Pet. 7-11)

that, in addition to examining the juror who had reported the

comments at issue, Juror G.D., the court should have examined the

jurors who reportedly made those comments, Jurors A and B.

Although

petitioner

asked

the

district

court

to

examine

Jurors A and B when Juror G.D. first reported their comments, he

did not ask the court to do so during or after the post-trial

evidentiary

hearing

--

even

though

the

court

had

initially

expressed openness to extending the hearing if necessary.

3-4, supra.

See pp.

Petitioner’s contention that the court should have

examined those jurors during the evidentiary hearing is thus

subject to review only for plain error.

Fed. R. Crim. P. 52(b);

see Gov’t C.A. Br. 17. To obtain plain-error relief, the defendant

must show (1) an “error”; (2) that is “plain”; (3) that affected

his “‘substantial rights’”; and (4) that “had a serious effect on

8

‘the

fairness,

proceedings.’”

integrity,

or

public

reputation

of

judicial

Greer v. United States, 141 S. Ct. 2090, 2096-2097

(2021) (citations omitted).

Petitioner has failed to establish error, much less plain

error.

As an initial matter, he has failed to make the threshold

showing required by Peña-Rodriguez:

a showing that “a juror [has]

come[] forward with compelling evidence that another juror made

clear and explicit statements indicating that racial animus was a

significant motivating factor in his or her vote to convict.”

S. Ct. at 861.

137

Juror G.D. testified that Juror A stated, “I just

don’t like some of these people.” Pet. App. A3 (citation omitted).

Petitioner interprets that statement (Pet. 7) as an expression of

racial bias, but Juror G.D. clarified that Juror A was “referring

to the IRS,” expressing dislike for the IRS employees who testified

on behalf of the government.

Pet. App. A5.

thus

“clear

does

“indicating

not

that

constitute

racial

a

animus

factor” in the vote to convict.

was

and

a

Juror A’s comment

explicit”

statement

significant

motivating

Peña-Rodriguez, 137 S. Ct. at

861.

Juror G.D. also testified that Juror B stated that “[s]ome of

these witnesses don’t even speak English, they shouldn’t even be

in this country.”

Pet. App. A3.

That comment, however, was likely

a reference to the government’s witnesses, some of whom needed an

interpreter. Id. at A2-A3. Juror B said nothing about petitioner,

who did not need an interpreter.

See Gov’t C.A. Br. 19-20.

Nor

9

did Juror B’s comment, made before deliberations even started,

suggest that race influenced the vote.

Juror B’s comment thus

does not amount to a “clear and explicit” statement indicating

“that racial animus was a significant motivating factor in the

juror’s decision.

Peña-Rodriguez, 137 S. Ct. at 861.

Instead, in

these particular circumstances, it is the kind of statement that

Peña-Rodriguez

would

classify

as

insufficient

exception to the no-impeachment rule.

to

justify

an

Id. at 869.

Even assuming that petitioner made the threshold showing

required by Peña-Rodriguez, moreover, the district court did not

abuse its discretion by declining to extend the evidentiary hearing

with an examination of Jurors A and B.

of

an

evidentiary

hearing

is

discretion of district courts.”

465, 473 (2007).

The availability and scope

ordinarily

left

to

“the

sound

Schriro v. Landrigan, 550 U.S.

And as the court of appeals recognized, in the

particular circumstances of this case, the district court had sound

reasons to begin by questioning Juror G.D. and not to require

additional testimony after hearing from her.

A12.

See Pet. App. A8-

As the district court explained, beginning with only Juror

G.D.’s testimony balanced the competing goals of “respecting the

no-impeachment bar and fulfilling th[e] court’s ‘duty to confront

racial animus in the justice system.’”

(citation omitted).

D. Ct. Doc. 140, at 14

Juror G.D. then testified that she did not

hear any comments from any other jurors evincing prejudice; that

the jury went “over every single piece of evidence”; and that she

10

did not believe that race was a significant motivating factor in

the jury’s vote to find petitioner guilty.

omitted).

Pet. App. A6 (citation

The district court accordingly found that Juror G.D.’s

testimony “clearly established that race and/or ethnicity was not

a ‘significant motivating factor’ in the jury’s verdict.”

Id. at

C5.

In

addition,

the

district

court

had

given

a

curative

instruction after Juror G.D. reported the comments; once the court

issued the instruction, “no more comments about race were made.”

Pet. App. A5 (brackets and citation omitted); see Peña-Rodriguez,

137 S. Ct. at 871 (recognizing importance of jury instructions in

blunting prejudice).

The jury also found petitioner guilty on

some counts and not guilty on other counts, with that split verdict

further indicating that the jury’s findings rested on the evidence

rather than on prejudice.

See Pet. App. A8.

Finally, petitioner

did not object during the evidentiary hearing to the court’s

decision to stop after questioning Juror G.D., inviting further

proposed

questions

from

the

parties,

and

finding

intrusion into the jury’s deliberations unwarranted.

circumstances

holistically,”

the

court

did

not

discretion in not examining those jurors sua sponte.

3.

additional

“Viewing the

abuse

its

Id. at A12.

The decision below does not conflict with the decision

of any other court of appeals.

Other courts of appeals have found

that even statements that might be seen as more indicative of

racial bias have failed to meet the high bar set by Peña-Rodriguez

11

for overcoming the no-impeachment rule.

See, e.g., United States

v. Birchette, 908 F.3d 50, 57-59 (4th Cir. 2018) (discussing a

juror’s comment to other jurors that “the two of you are only doing

this because of race” and that “it’s a race thing for you”), cert.

denied, 140 S. Ct. 162 (2019) (brackets omitted); United States v.

Robinson, 872 F.3d 760, 770-771 (6th Cir. 2017) (discussing the

jury foreperson’s statement that she found “it strange that the

colored women are the only two that can’t see” the defendants’

guilt

and

were

protecting

the

defendants

because

they

“owed

something” to their “black brothers”), cert. denied, 139 S. Ct. 55

and 139 S. Ct. 56 (2018), and 139 S. Ct. 786 (2019).

And other

courts of appeals have likewise viewed the appropriate scope of

any evidentiary hearing concerning juror bias to depend on the

circumstances.

See United States v. Boylan, 898 F.2d 230, 258

(1st Cir.) (“We abjure imposition of a rigid set of rules for the

conduct of inquiries into the presence or extent of extrinsic

influences [on the jury].”), cert. denied, 498 U.S. 849 (1990);

United States v. Calbas, 821 F.2d 887, 896 (2d Cir. 1987) (“The

limited inquiry conducted by the district court here was entirely

appropriate under the circumstances.

The court wisely refrained

from allowing the inquiry to become an adversarial evidentiary

hearing,

so

as

to

minimize

intrusion

on

the

jury’s

deliberations.”), cert. denied, 485 U.S. 937 (1988); United States

v. Tucker, 137 F.3d 1016, 1031 (8th Cir. 1998) (“[T]he depth of

investigation required depends on both the gravity of the alleged

12

misconduct and the substantiality of the movant’s showing of

misconduct.”); United States v. Register, 182 F.3d 820, 840 (11th

Cir. 1999) (“When a juror’s alleged improper conduct is brought to

the

court’s

attention,

the

court

* * *

enjoys

substantial

discretion in ‘choosing the investigative procedure to be used in

checking for juror misconduct[.]’”) (citation omitted).

Contrary to petitioner’s contention (Pet. 10-11), the court

of appeals’ decision does not conflict with the Sixth Circuit’s

decision in Harden v. Hillman, 993 F.3d 465 (2021).

In Harden, a

civil case, Juror T.H. alleged that multiple jurors had stated

that the black plaintiff was a “crack head” who was “taking dope

* * * during breaks in the trial.”

Id. at 482 (citation omitted).

One juror also described the plaintiff’s black lawyer and his team

as being the “Cosby Show” and therefore “gave no consideration at

all” to what they said.

Ibid. (citation omitted).

Another juror

suggested the plaintiff’s romantic partner, who testified at the

trial, was probably “on heroin” during the trial.

omitted).

Ibid. (citation

And Juror T.H. further alleged that other jurors had

“‘discounted and totally disregarded’” the plaintiff’s testimony

because they believed he was a “‘crack addict’ who was seeking a

payout.”

Id. at 484 (citation omitted).

The Sixth Circuit determined that the allegations constituted

a “clear statement” that multiple jurors may have relied on racial

stereotypes or animus when voting and that the district court had

abused its discretion by failing to hold any evidentiary hearing

13

at all.

Harden, 993 F.3d at 484 (citation omitted).

The court

recognized that Peña-Rodriguez had not prescribed “what procedures

a trial court must follow when confronted with a motion for a new

trial based on juror testimony of racial bias.”

(citation omitted).

Id. at 485

But in the circumstances of that case, the

Sixth Circuit ordered the district court, on remand, to hold a

hearing in which each side could question Juror T.H. “and the rest

of the jury” to determine whether racial stereotypes affected the

jury’s verdict.

Ibid. (citation omitted).

Harden differs from the decision below in multiple respects.

The comments in Harden were more troubling than the comments in

this case. The reporting juror in Harden alleged that other jurors

had completely discounted a party’s testimony because of racial

stereotypes, whereas the reporting juror here testified that she

believed that the verdict rested on the evidence, rather than on

racial prejudice. The district court in Harden held no evidentiary

hearing; the court here, in contrast, did hold one.

And the

plaintiff in Harden sought to question jurors beyond the reporting

juror;

petitioner,

in

contrast,

made

no

request

during

evidentiary hearing in this case to question Jurors A and B.

the

Those

difference amply support any difference between the scope of the

evidentiary hearing that the Sixth Circuit ordered in Harden and

the scope of the evidentiary hearing that the court of appeals

found sufficient in this case.

See 27 Charles Alan Wright et al.,

Federal Practice and Procedure § 6076, at 577-578 (2007) (“The

14

extensiveness of the hearing and the depth of the investigation

into jury misconduct may depend on the gravity of the alleged

misconduct and the substantiality of the moving party’s proof of

misconduct.”)

At a minimum, Harden does not compel the conclusion

that a future Sixth Circuit panel would be bound to order a more

extensive evidentiary hearing on facts like the ones here.

The petition for a writ of certiorari, at bottom, challenges

the

court

of

appeals’

and

district

court’s

case-specific

determinations about the appropriate scope of the evidentiary

hearing on these facts.

this Court’s review.

That fact-bound claim does not warrant

See Sup. Ct. R. 10 (“A petition for a writ

of certiorari is rarely granted when the asserted error consists

of erroneous factual findings or the misapplication of a properly

stated rule of law.”); United States v. Johnston, 268 U.S. 220,

227 (1925) (“We do not grant a certiorari to review evidence and

discuss specific facts.”).

That is particularly so given that the

court of appeals and the district court both agreed as to the

appropriate scope of an evidentiary hearing. See Kyles v. Whitley,

514 U.S. 419, 456-457 (1995) (Scalia, J., dissenting) (“[U]nder

what we have called the ‘two-court rule,’ the policy [in Johnston]

has been applied with particular rigor when district court and

court of appeals are in agreement as to what conclusion the record

requires.”) (citing Graver Tank & Manufacturing Co. v. Linde Air

Products Co., 336 U.S. 271, 275 (1949)).

the

petition

might

have

raised

a

In any event, even if

conflict

between

the

Sixth

15

Circuit’s decision in Harden and the nonprecedential decision

below, petitioner’s failure to preserve his contention would make

this case a poor vehicle for resolving any such conflict.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

ELIZABETH B. PRELOGAR

Solicitor General

DAVID A. HUBBERT

Deputy Assistant Attorney General

S. ROBERT LYONS

JOSEPH B. SYVERSON

MARK S. DETERMAN

Attorneys

MAY 2022