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United States v. Harris

United States Court of Appeals, Sixth Circuit

February 5, 2018

United States of America, Plaintiff-Appellee,
v.
Talman Harris, Defendant-Appellant.

          Argued: December 7, 2017

         Appeal from the United States District Court for the Northern District of Ohio at Cleveland. No. 1:15-cr-00335-2-Benita Y. Pearson, District Judge.

         ARGUED:

          Philip S. Kushner, KUSHNER, HAMED & GROSTIC, CO., LPA, Cleveland, Ohio, for Appellant.

          Daniel R. Ranke, UNITED STATES ATTORNEY'S OFFICE, Cleveland, Ohio, for Appellee.

         ON BRIEF:

          Philip S. Kushner, Christian J. Grostic, KUSHNER, HAMED & GROSTIC, CO., LPA, Cleveland, Ohio, for Appellant.

          Daniel R. Ranke, UNITED STATES ATTORNEY'S OFFICE, Cleveland, Ohio, for Appellee.

          Before: SILER, WHITE, and THAPAR, Circuit Judges.

          OPINION

          SILER, Circuit Judge.

          Talman Harris appeals his criminal convictions and sentences, arguing that the district court erred by: (1) barring Harris from impeaching a government witness; (2) admitting government summary evidence; (3) giving an inaccurate jury instruction with regard to a stockbroker's fiduciary duties; and (4) failing to investigate potential extraneous influence on a juror.

         Because the district court abused its discretion by not allowing Harris to introduce a prior inconsistent statement for impeachment purposes, we reverse Harris's conviction for obstruction of justice and remand for a new trial on that count. The district court did not, however, err in admitting the summary exhibits and in rendering the fiduciary-duty jury instruction, so we affirm the district court's rulings on Harris's second and third assignments of error. Finally, because Harris presented a colorable claim of extraneous influence on a juror, we conclude that the district court abused its discretion by failing to hold an evidentiary hearing pursuant to Remmer v. United States, 347 U.S. 227 (1954), or by denying defense counsel's request to question the juror and his friend. Thus, we vacate the judgment of the district court and remand for a Remmer hearing.

         FACTUAL AND PROCEDURAL BACKGROUND

         In September 2016, a jury convicted Harris of one count of conspiracy to commit securities fraud or wire fraud, in violation of 18 U.S.C. §§ 1343, 1348, 1349, one count of obstruction of justice, in violation of 18 U.S.C. § 1503, and three counts of wire fraud, in violation of 18 U.S.C. § 1343. The district court sentenced Harris to 63 months' imprisonment, a five-year term of supervised release, a $500 special assessment, and $843, 423.91 in restitution.

         Harris was a registered stockbroker with various securities firms in New York from 2007 to 2014. He and his co-conspirators, including government witness Guy Durand, participated in a scheme whereby they agreed to recommend shares of Zirk de Maison's companies to clients in exchange for undisclosed commissions.[1] The Financial Industry Regulatory Authority ("FINRA") began an investigation of the conspirators' activities and questioned Harris and Durand on wire transfers from certain organizations controlled by de Maison. Harris and Durand decided to tell investigators that the deposits resulted from selling expensive watches, and they sent letters to FINRA summarizing this fictitious explanation. FINRA responded with a letter asking, "Did an individual by the name of Zirk Engelbrecht have any connection whatsoever with any of the above-noted wire transfers that you received?" Harris and Durand replied that they did not deal with Zirk Engelbrecht. After Harris was arrested, he purportedly called and texted Durand on multiple occasions, instructing him to stick with their story: "Remember, we sold watches." Durand later admitted to officers that the watch story was entirely false.

         DISCUSSION

         I. Impeachment of Government Witness

         Harris first challenges his obstruction of justice conviction based on the district court's denial of his request to impeach ...


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