Court rejects arguments regarding jury instructions and tainted jury, but reverses obstruction enhancement

U.S. v. Kupfer, 2015 WL 4081108 (7/7/2015) (NM): Kupfer was convicted of failing to report $790k in gross income. At trial she admitted that she had not reported this income but denied that her under-reporting was willful. On appeal she raised three issues. First, she said that the district court should have instructed the jury that her behavior was not “willful” if it was merely negligent, inadvertent, accidental, mistaken, or reckless. The panel ruled the court’s instruction accurately defined “willful” and it did not have to include the terms proposed by Kupfer. Second, Kupfer argued that the district court should have held a hearing when after trial, in an affidavit, a juror told the court another juror had said Kupfer had been on the news and that hers was a big, scandalous case with other indictments. The panel rejected Kupfer’s argument. It said she had not requested a hearing in the district court. Also, the court could reasonably have concluded that a hearing would not have provided additional relevant information. Besides Fed.R.Evid. 606(b) prohibits juror testimony on the effect of extraneous information on the jury’s deliberations. And even if the juror’s statements impacted deliberations, there was no prejudice because the evidence against Kupfer was overwhelming. Finally, the panel agreed with the parties that the court should not have applied an obstruction of justice enhancement. The panel noted that Kupfer had simply failed to speak up and disclose the unreported income while authorities investigated. Her omission did not come within USSG § 3C1.1.