United States v. Talman Harris

881 F.3d 945
CourtCourt of Appeals for the Sixth Circuit
DecidedFebruary 5, 2018
Docket17-3087
StatusPublished
Cited by13 cases

This text of 881 F.3d 945 (United States v. Talman Harris) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Talman Harris, 881 F.3d 945 (6th Cir. 2018).

Opinion

OPINION

SILER, Circuit Judge.

Taiman 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, 74 S.Ct. 450, 98 L.Ed. 654 (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 Mai-son. 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.” Du-rand 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 Durand with a prior inconsistent statement.

The government presented co-conspirator Durand as a witness against Harris at trial in support of the obstruction of justice charge. Durand testified that he viewed Harris’s statement, “Remember, we sold watches,” as an “invit[ation]” to make a false statement to the FBI. Harris’s counsel then attempted to impeach Durand with a recorded statement that Durand made to Harris’s private investigator, Ron Dwyer. Harris’s counsel posited that Dwyer asked Durand, “Was Taiman basically saying if anybody comes around, just tell the truth and leave it at that?” Durand responded, “It was more of that nature, you know.” Durand told Harris’s counsel that he did not recall making this statement, and Harris’s counsel then requested to play Durand’s recorded statement on counsel’s cell phone. The district court denied Harris’s request to impeach, finding that the recording was unauthenticated extrinsic evidence that counsel was attempting to use as character evidence.

Harris now contends that the district court improperly analyzed his proffered evidence under Federal Rule of Evidence 608(b), when he sought to introduce the evidence to contradict the witness’s testimony, not to attack the witness’s character for truthfulness. We review the district court’s ruling for abuse of discretion, “which occurs when the court ‘relies on clearly erroneous findings of fact, improperly applies the law, or employs an erroneous legal standard.’ ” Griffin v. Finkbeiner, 689 F.3d 584, 592 (6th Cir. 2012) (quoting Barner v. Pilkington N. Am., Inc., 399 F.3d 745, 748 (6th Cir. 2005)).

Rule 608(b) states that “extrinsic evidence is not admissible to prove specific instances of a witness’s conduct in order to attack or support the witness’s character for truthfulness.” “By limiting the application of the Rule to proof of a witness’ character for truthfulness,” however, “the amendment leaves the admissibility of extrinsic evidence offered for other grounds of impeachment (such as contradiction, pri- or inconsistent statement, bias and mental capacity) to Rules 402 and 403.” Fed. R. Evid. 608 (application note).

Rule 613(b) provides that an impeaching party may produce “[ejxtrinsic evidence of a witness’s prior inconsistent statement ... if the witness is given an opportunity to explain or deny the statement and an adverse party is given an opportunity to examine the witness about it, or if justice so requires.” It applies when two statements, “one made at trial and one made previously, are irreconcilably at odds.” United States v. Fonville, 422 Fed.Appx. 473, 481 (6th Cir. 2011) (quoting United States v. Winehenbach, 197 F.3d 548, 558 (1st Cir. 1999)). “[IJn-consistency is defined broadly.” United States v. LaVictor, 848 F.3d 428, 451 (6th Cir. 2017).

Here, counsel sought to impeach Durand with a prior inconsistent statement that was “irreconcilably at odds” with his testimony. Winchenbach, 197 F.3d at 558. Durand testified at trial that Harris asked him to be dishonest with law enforcement.

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Bluebook (online)
881 F.3d 945, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-talman-harris-ca6-2018.