Circuit rejects new trial bid, despite evidentiary errors and refusal to voir dire on “antisemitic bias.”

In United States v. Mendlowitz, No. 21-2049-cr (2d Cir. March 2, 2023) (summary order), the Second Circuit affirms the defendant’s wire fraud convictions, despite possible evidentiary errors and the district court’s refusal to ask about “potential antisemitic bias” during jury selection.

On appeal following trial, the defendant challenged the district court’s exclusion of a proffered expert witness and a recorded conversation between the defendant and a cooperating witness. The Circuit largely agreed with defendant’s arguments: it recognized that, contra the district court, the proffered expert testimony about standard industry practices would have been relevant to the defendant’s good faith defense. The expert testimony also would have provided relevant information outside the average juror’s knowledge and beyond any government witness testimony.

With respect to the recorded conversation, the defendant argued that it reflected his state of mind at the time of the charged conduct and supported his defense. The district court excluded the conversation as hearsay and irrelevant. But the Circuit agreed with the defendant that it was neither.

Nonetheless, the Circuit found that the evidence against the defendant “was strong enough that, even if the district court had allowed the expert to testify and had admitted the recording, it is exceedingly unlikely that the result would have been different.” Thus, any errors were harmless.

Finally, the defendant, “an Orthodox Jew,” whose Jewish identity was woven throughout the trial evidence, claimed the district court erred by refusing his request to ask prospective jurors if they had any “personal views towards Jewish people” that would affect their ability “to be a fair and impartial juror in a financial case?”

The district court refused this request, instead asking jurors if they would be influenced by the defendant’s “physical appearance.” The Circuit found that this was good enough.

This last ruling highlights an area of tension in the law: while the Supreme Court has recognized that trial judges have broad discretion to decide what questions to ask prospective jurors, there are “‘special circumstances’ under which the Constitution requires a question on racial prejudice.” Rosales-Lopez v. United States, 451 U.S. 182, 189 (1981). This case would seem to present such special circumstances.