MANHATTAN (CN) — Tim Shea, a Colorado businessman convicted of pilfering donations from the “We Build The Wall” fundraiser, asked a federal appeals panel on Tuesday afternoon to revive his criminal case to make an inquiry into potential “juror impropriety” during his 2022 retrial on fraud and conspiracy charges.
Shea was indicted in August 2020 alongside Donald Trump ally Steve Bannon and two others for looting their purported charity venture.
Shea alone stood trial, however, after Bannon was pardoned and the other co-conspirators pleaded guilty.
On appeal before a Second Circuit panel, Shea says that a day after the Manhattan jury returned his guilty verdict, the U.S. Attorney’s Office received an email from a law student who told prosecutors that that she was being mentored by one of the assistant U.S. attorneys who had prosecuted the case and that her mother had sat on the jury of the trial.
During oral arguments on Tuesday, Shea’s court-appointed attorney Thomas H. Nooter asked the three-judge panel to remand the case back to Manhattan federal court for further inquiry regarding the undisclosed mentor-mentee relationship between the prosecutor and the daughter of the one of the jurors.
“She heard about the case all week, she congratulated the prosecutor on the win, and then pointed out that ‘it’s a good thing my mom didn’t make the connection because otherwise she would have had to recuse herself’,” Nooter said.
U.S. Circuit Judge Jose Cabranes asked: “Where is the relevant misconduct?”
“The relevant misconduct would have to do with having favoritism toward one side case,” Nooter replied.
“But that seems far-fetched, right?” U.S. Circuit Judge Raymond Lohier said. I mean, there is no evidence of that, only evidence to the contrary. There’s evidence that — according to the only person who knows, the daughter — what she says is her mother had no idea that there was a connection that she had indirectly to the prosecution."
Lohier also wondered if the possible impropriety at hand requiring inquiry was not the undisclosed relationship between a juror’s daughter and trial prosecutor, but rather that “there is strong evidence that the juror spoke to someone else about the case," he said.
“It's a sort of an embarrassing coincidence that that person might have had some connection, which she didn't know about either," the Obama-appointed judge said. “She didn't know that was the prosecutor in this case, but whoever it was, the mother apparently communicated quite a bit about this case over the course of a week, according to the email.”
Cabranes asked for clarification whether or not Shea’s trial defense counsel had broadly raised concerns that a juror had spoken to someone outside the jury, or the requests for inquiry were focused solely on the undisclosed relationship between the juror’s daughter and one of the case’s prosecutors.
“That does some like something should be explored on its own,” the Clinton-appointed senior judge said.
Derek Wikstrom — an assistant U.S. attorney who also handled the “We Build The Wall” case in New York federal court — argued for prosecutors in a brief that the court can only conduct a post-trial jury hearing a when the defendant presents “clear, strong, substantial and incontrovertible evidence that a specific, non-speculative impropriety has occurred.”
The standard to bring such an inquiry requires “far more concrete evidence than there is here, that jurors had declined to follow the court's instruction not to talk about the case prior to deliberations,” Wikstrom told the appeals panel.
Wikstrom argued the trial judge correctly denied Shea's post-verdict request to inquire into whether any juror misconduct had occurred because Shea’s attorney did “not provide a specific or nonspeculative basis" to question the juror’s adherence to the standard instruction the judge gave to jurors to not to discuss the case while it was ongoing.
Cabranes and Lohier were joined on the panel by U.S. Circuit Judge Gerard Lynch, also an Obama appointee. The three-judge panel did not immediately rule on the appeal.
Prosecutors originally brought the case back in 2020, indicting Shea and Bannon, alongside Air Force veteran Brian Kolfage and venture capitalist Andrew Badolato.
Following guilty pleas from Kolfage and Badolato, and Bannon's presidential pardon from Trump, Shea was the last man standing in that federal case.
He originally went to trial on the three counts in May 2022, but those proceedings ended in a mistrial thanks to a holdout juror.
A jury in his retrial later that year found Shea guilty on counts of fraud and conspiracy for his role in "We Build the Wall."
Each of the three criminal counts carried a maximum penalty of 20 years in prison, but U.S. District Judge Analisa Torres imposed a sentence of 63 months on each count to be served concurrently.
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