A guilty verdict in a marriage and immigration fraud trial out of the Northern District of New York has been vacated by the U.S. Court of Appeals for the Second Circuit, after the panel found the trial judge's ex parte communications with jurors and instructions ahead of deliberations raised too many concerns about the fairness of the proceedings.

“Although we do not question the judge's conscientiousness and good faith, we nonetheless conclude that his ex parte meeting with the jurors and his instruction about assessing the credibility of a testifying defendant were sufficiently sharp departures from the law of this Circuit as to undermine our confidence in the fairness of the trial,” the panel wrote.

U.S. District Judge Thomas McAvoy, a former chief judge in the district who joined the bench in 1986 and now holds senior status, handled the 2015 trial and conviction of Mary Opoka of marriage fraud, and her co-defendants Gaurav and Isha Mehta of both marriage and immigration fraud.

At one point during the trial, McAvoy's clerk alerted the judge to concerns being expressed by the jurors. The judge then went into the jury room, without alerting counsel to the parties, and had a discussion about defendants' presence outside of the courthouse, in ways some jurors suggested could have been threatening.

Key for the panel of Circuit Judges Barrington Parker, Debra Ann Livingston, and Denny Chin was McAvoy's comments in front of the jurors and the potential impact it could have on their thinking. McAvoy did not later tell counsel for the defendants that he used words such as “disturbing” and “inappropriate” in speaking with the jurors, nor did he disclose the fact he stated that, in his “years and years” of presiding at trials, the actions of the defendants were unusual.

Even after speaking with the defendants and hearing concerns about the ex parte communications, McAvoy did not ask if the jurors were discussing the concerns among themselves, nor did he ask them questions to determine whether their impartiality had been compromised by the concerns.

During the charging of the jury, McAvoy told the jurors they could take into account whether the defendant's interest in the outcome of the case created a motive for them to lie. Defense counsel did not, at the time, object to the instruction.

The panel found McAvoy's actions in speaking with the jury went against the law of the circuit meant to avoid situations pregnant with the possibility of error, where it was possible for a judge's comments to generate unintended and misleading impressions with jurors about what he or she thinks. This, the panel noted, was why jurors were supposed to put inquiries in writing. Instead, McAvoy found himself responding to unexpected questions in an uncontrolled environment, exactly what the circuit law sought to avoid.

That McAvoy failed to alert the defendants or their counsel before speaking with the jurors, and then after offer a less-than-full account of what had been discussed only compounded the problems. These problems were then further compounded by McAvoy's instructions that the jury could consider defendants' motives for possibly providing false testimony.

“We have repeatedly held, in no uncertain terms, that this charge is forbidden; district courts may not tell juries that a testifying defendant's personal interest in the outcome of a trial supplies a motive to lie,” the panel wrote.

For all these reasons, the panel said it was compelled to vacate the convictions.

“This case boiled down to the jury's determinations of the defendants' credibility. Based on our review of the evidence presented at trial, there is a reasonable probability that the errors complained of might have contributed to the convictions,” the panel wrote.

Patterson Belknap Webb & Tyler partner Harry Sandick represented Gaurav Mehta on appeal. Speaking on behalf of the original defendants' counsel, Sandick said the attorneys and their clients were pleased with the appellate panel's decision.

“As we argued on appeal, two important legal errors were made at trial,” Sandick said in a statement. “The Court recognized that these errors were prejudicial and required the reversal of our clients' convictions.”

A spokesman for U.S. Attorney Grant Jaquith's office declined to comment.

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