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United States v. Lanier

United States Court of Appeals, Sixth Circuit

September 7, 2017

United States of America, Plaintiff-Appellee,
v.
Ricky Anthony Lanier; Katrina Reshina Lanier, Defendants-Appellants.

          Argued: July 28, 2017

         Appeal from the United States District Court for the Eastern District of Tennessee at Greeneville. No. 2:14-cr-00083-1-J. Ronnie Greer, District Judge.

         ARGUED:

          Donald Capparella, DODSON, PARKER, BEHM & CAPPARELLA, BPR, Nashville, Tennessee, for Appellants.

          David L. Gunn, UNITED STATES ATTORNEY'S OFFICE, Greeneville, Tennessee, for Appellee.

         ON BRIEF:

          Donald Capparella, Tyler Chance Yarbro, DODSON, PARKER, BEHM & CAPPARELLA, BPR, Nashville, Tennessee, for Appellants.

          David L. Gunn, UNITED STATES ATTORNEY'S OFFICE, Greeneville, Tennessee, for Appellee.

          Before: MOORE, STRANCH, and DONALD, Circuit Judges.

          OPINION

          KAREN NELSON MOORE, CIRCUIT JUDGE.

          Defendants-Appellants Ricky Lanier and Katrina Lanier argue that their convictions should be overturned because the district court failed to interview, or allow their attorneys to interview, jurors after learning that one juror initiated extraneous communications with a state prosecutor. The defendants also raise several arguments related to their sentences. Because the district court failed to investigate the juror's extraneous communications, we VACATE the defendants' convictions and REMAND their cases for a Remmer hearing. Because we vacate the defendants' convictions, we do not address the sentencing issues at this time. We retain jurisdiction over this case pending the district court's Remmer hearing.

         I. BACKGROUND

         Ricky Lanier and Katrina Lanier were involved in a scheme fraudulently to obtain government contracts reserved for businesses owned by socially and economically disadvantaged individuals or by service-disabled veterans. See R. 151 (Second Superseding Indictment at 1- 10) (Page ID #1456-65). Defendants used two companies, JMR Investments, LLC and Kylee Construction, Inc., as fronts to obtain construction contracts under two government set-aside programs, the 8(a)-BD program for small businesses considered socially and economically disadvantaged under federal law and the service-disabled-veteran-owned small-business program. Id. at 4-9 (Page ID #1459-64). Although defendants obtained the construction contracts fraudulently, defendants satisfactorily delivered on the contracts, according to testimony from several government employees. For example, one government employee acknowledged that working with defendants was "kind of the dream operation for the federal government, " and that he would recommend them for another job. R. 232 (Trial Tr. at 199-201) (Page ID #3926-28).

         On December 17, 2015, during jury deliberations concerning defendants, one of the jurors contacted assistant district attorney Theresa Nelson-a social acquaintance and a state prosecutor not involved with the federal case against defendants-to discuss the jury deliberations. The district court learned about this conversation because Nelson called the court to report it. During this phone call, Nelson told the district judge that a juror (Juror 11) called her and said that there was a "problem" with the jury deliberations. R. 212 (Trial Tr. at 3) (Page ID #2511). According to the district judge's account of his telephone conversation with Nelson, Nelson told Juror 11 that they could not discuss deliberations and that Juror 11 should not say any more. Id. Nelson instructed Juror 11 that if something was going on, the juror needed to alert the judge. Id. Juror 11 said that she did not know how to alert the judge. Id. Nelson told Juror 11 to tell the court officer, or the clerk, or "somebody, " because the juror needed to communicate any problems to the judge. Id. at 3-4 (Page ID #2511-12). No juror alerted court personnel to problems with the deliberations. Id. at 4 (Page ID #2512). The court officer who reported that the jury did not alert him to any problems also reported that ...


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