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United States v. Roy

United States Court of Appeals, Seventh Circuit

April 15, 2016

ANKUR ROY, Defendant-Appellant

         Argued February 16, 2016.

          Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 13 CR 377-1 -- Gary Feinerman, Judge.

         For United States of America, Plaintiff - Appellee: Debra Riggs Bonamici, Attorney, Helene B. Greenwald, Attorney, Maureen E. Merin, Attorney, Office of The United States Attorney, Chicago, IL.

         For Ankur Roy, Defendant - Appellant: Marcia Jean Silvers, Attorney, Marcia J. Silvers, P.A., Coral Gables, FL; Keith Sho Yamaguchi, Attorney, Kaplan, Massamillo & Andrews, Llc, Chicago, IL.

         Before POSNER, WILLIAMS, and HAMILTON, Circuit Judges.


         Posner, Circuit Judge.

         The defendant was prosecuted for defrauding Medicare and Blue Cross Blue Shield by submitting claims for reimbursement for respiratory therapy that he (more precisely the company of which he was Chief Executive 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. His principal claim on appeal is that his constitutional right to be tried by an impartial jury was violated, primarily because the district judge refused to order the jurors to return to court after the trial for a hearing about alleged juror misconduct 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 defendant 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 deliberations, 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 report, he and another juror were the only jurors " who believed in starting deliberations with the presumption that the defendant was innocent." But the other juror was excused 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. 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 defendant 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 defendant's innocence or guilt, which though a violation of the judge's instructions might be thought harmless. The defendant 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 dissentient juror's lengthy report of the jury's alleged misconduct.

         The bulk of the report is devoted not to the initial discussions in the jury room but instead to the jury's deliberations, which though as depicted in the report were abrupt, summary, and coarse are consistent with the jury's simply having 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 accuracy 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) prohibits evidence about jury deliberations unless there is an allegation that the jury was subjected to external influence, Tanner v. United States, 483 U.S. 107, 121, 107 S.Ct. 2739, 97 L.Ed.2d 90 (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 recollections of their deliberations could not be trusted. Given this long remove from the trial, it's no surprise that the defendant 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 because 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 another 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 ...

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