NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 17-3442
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UNITED STATES OF AMERICA
v.
BERNARD M. PARKER,
Appellant
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On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. No. 2-15-cr-0253-001)
District Judge: Hon. Reggie B. Walton
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Submitted Under Third Circuit LAR 34.1(a)
June 4, 2019
Before: JORDAN, BIBAS, and MATEY, Circuit Judges.
(Filed: June 7, 2019)
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OPINION
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This disposition is not an opinion of the full court and, pursuant to I.O.P. 5.7,
does not constitute binding precedent.
JORDAN, Circuit Judge.
Bernard Parker appeals the judgment of conviction and sentence imposed on him
by the District Court. We will affirm.
I. BACKGROUND
From 2006 to 2014, Parker worked as a licensed financial advisor at Edward
Jones, an investment company. When the market declined in 2008, so did Parker’s
income from Edward Jones. His solution was to continue working at Edward Jones while
also soliciting his long-time friends, neighbors, and existing and new clients to invest
with him through his personal investment company, Parker Financial Services (“PFS”).
He promised his investors high rates of return and assured them they could get their
principal investment back. Sixteen investors entrusted him with approximately $1.2
million.
Sadly, Parker invested only a fraction of it. Instead, he used nearly all of the
money to pay for personal expenses, including remodeling his house. When the time
came to pay a return on the investments, Parker resorted to a classic Ponzi scheme,
soliciting more investors and using their money to pay his earlier investors. He assured
his investors that all was well with their money, while actually using it to fund his
lifestyle. He never told his accountant about PFS or any of the money he was taking
from his investors. Nor did he disclose his activities to Edward Jones.
Parker’s conduct eventually came to light, and he was indicted on one count of
securities fraud, in violation of 15 U.S.C. §§ 78j(b) and 78ff(a), one count of mail fraud,
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in violation of 18 U.S.C. § 1341, and four counts of tax fraud, in violation of 26 U.S.C.
§ 7206(1). He pleaded not guilty and the case proceeded to trial.
After the second day of trial, a juror reported that another juror, Juror 2, had made
comments about the case, saying it was “pretty cut and dry” and that the jury had “heard
enough already to be able to make a decision.” (App. at 592.) The juror who reported
those remarks thought other jurors might have also heard them. The next morning, the
District Court questioned each juror individually and also allowed the parties to ask
questions. The Court asked each juror what, if anything, he or she had overheard and, if
the juror had overheard Juror 2’s comments, whether the comments would impact the
juror’s ability to “keep an open mind” until the close of evidence. (E.g., App. at 595.) In
total, five jurors reported overhearing Juror 2’s comments, but they all affirmed that the
comments would not influence their impartiality. Juror 2 denied making any comments
about the case.
With the parties’ consent, the Court dismissed Juror 2 and seated an alternate
juror. In addition, at Parker’s request, the Court instructed the jury that it was not to
speculate about why Juror 2 was dismissed or consider the dismissal when deciding the
case and to “keep an open mind” until all the evidence had been presented. (App. at
616.) Parker moved for a mistrial, arguing that the entire jury had been tainted by Juror
2’s comments. That motion was denied.
Trial proceeded without incident until the government’s closing argument. In
closing, the prosecutor referenced trial testimony about how Parker – the weekend before
trial began – paid back two of the investors who were set to testify against him. The
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prosecutor asked the jury to consider why those two investors had gotten paid back when
no others had. Parker objected that doing so insinuated bribery and constituted
prosecutorial misconduct. The Court overruled the objection.
After two days of deliberations, the jury returned a verdict of guilty on all six
counts. Parker moved for judgment of acquittal based on insufficiency of the evidence as
to his mental state. That motion and Parker’s renewal of it were denied.
The case proceeded to sentencing. Parker faced a guidelines sentencing range of
87 to 108 months’ imprisonment. He argued that a below-guidelines sentence was
warranted and requested a downward variance. The government requested a within-
guidelines sentence. After considering the factors set forth in 18 U.S.C. § 3553(a), the
District Court imposed a sentence of 87 months’ imprisonment. It explained that “an in-
Guideline sentence [was] appropriate[,]” but continued that, given the good-time credit
and halfway house time Parker may receive, he would likely only spend “a little more
than five years in prison[,]” which the Court viewed as “appropriate[.]” (App. at 1120-
21.) Parker timely appealed.
II. DISCUSSION1
Parker presses four claims on appeal. First, he contends that the District Court
abused its discretion by denying his motion for a mistrial based on juror misconduct. He
has two arguments as support: he says that the jury, by failing to report Juror 2’s
1
The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction
pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
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comments, demonstrated it was incapable of following the Court’s instructions and
therefore a mistrial was warranted; and he contends that the District Court failed to
adequately investigate the alleged juror misconduct.2 Both arguments are meritless.
We review “a district court’s investigation of juror misconduct, as well as its
denial of a mistrial, … for abuse of discretion.” United States v. Claxton, 766 F.3d 280,
297 (3d Cir. 2014). “[I]t is a generally accepted principle” that jurors may not engage in
premature deliberations. United States v. DiSalvo, 34 F.3d 1204, 1224 (3d Cir. 1994)
(citation omitted). When allegations of juror misconduct arise, district courts enjoy
“wide latitude” in their handling of the issue, especially when the alleged misconduct
involves intra-jury communications. United States v. Bertoli, 40 F.3d 1384, 1393-94 (3d
Cir. 1994). Moreover, “[a]bsent evidence to the contrary, we presume that jurors remain
true to their oath and conscientiously observe the instructions and admonitions of the
court.” United States v. Cox, 324 F.3d 77, 87 (2d Cir. 2003) (citation omitted).
There was no abuse of discretion here. The District Court questioned each
member of the jury about whether he or she had heard any other juror discussing the case.
For those that had, the Court asked whether the comments would affect their ability to
remain impartial. They uniformly responded that the comments would not affect their
impartiality. As the District Court rightly concluded, disbelieving the jurors – both those
who said they had not overheard any comments and those who said they could remain
2
The government argues that Parker forfeited these arguments by failing to raise
them below. Parker disagrees. We need not decide whether there was a forfeiture
because Parker’s arguments fail on the merits.
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impartial – would, under these circumstances, be inappropriate. The Court had allowed
the parties to question the jurors. Based on that investigation, the Court dismissed Juror 2
and, at Parker’s request, gave a curative instruction to the jury. Those actions were well
within the Court’s discretion, and nothing further was required.
Next, Parker contends that he was denied the right to a fair trial based on the
government’s statements during closing argument. “We review a district court’s decision
not to grant a mistrial on the grounds that the prosecutor made improper remarks in
closing argument for abuse of discretion, and, if error is found, we apply harmless error
analysis.” United States v. Molina-Guevara, 96 F.3d 698, 703 (3d Cir. 1996) (citation
omitted). As the government correctly argues, the prosecutor here did nothing more than
reference testimony in the record and ask the jury to draw its own inferences about what
it showed. That was not improper, particularly given that Parker himself, during cross-
examination, was the first to ask the witness whether the witness had been bribed. See
United States v. Fulton, 837 F.3d 281, 310 n.228 (3d Cir. 2016) (“It is well-settled that
the Government is entitled to considerable latitude in summation to argue the evidence
and any reasonable inferences that can be drawn from that evidence.” (internal quotation
marks and citation omitted)). Nor is there any indication that the government’s
statements prejudiced Parker. See United States v. Zehrbach, 47 F.3d 1252, 1265 (3d Cir.
1995) (en banc) (“[W]e will reverse if we conclude that the prosecutor’s remarks, taken
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in the context of the trial as a whole, prejudiced the defendants.”). The Court did not
abuse its discretion in denying Parker’s motion.
Third, as to all six counts of conviction, Parker challenges the sufficiency of the
evidence regarding his mental state. “Sufficiency of the evidence is a question of law,
subject to plenary review.” United States v. Moyer, 674 F.3d 192, 206 (3d Cir. 2012).
But “[w]e review ‘the evidence in the light most favorable to the Government,’ afford
‘deference to a jury’s findings,’ and draw ‘all reasonable inferences in favor of the jury
verdict.’” Id. (citation omitted). “We will overturn the verdict ‘only when the record
contains no evidence, regardless of how it is weighted, from which the jury could find
guilt beyond a reasonable doubt.’” Id. (citation omitted). Here, all six counts required
the government to prove Parker acted with a particular criminal intent.3 Parker argues
that the evidence showed he had no intent but to comply with the investment contracts
and that he erroneously, but in good faith, believed his “investment” income was non-
taxable. He is mistaken about the evidence, to put it mildly.
The government overwhelmingly showed that Parker promised his victims he
would invest their money but instead used it for himself. Parker acknowledged that his
victims did not know what was happening and that they believed their money had been
invested. The evidence showed Parker used multiple bank accounts at different banks to
3
To establish securities fraud, the government had to prove that Parker acted
willfully, knowingly, and with the intent to defraud. 15 U.S.C. §§ 78j(b), 78ff(a); 17
C.F.R. § 240.10b-5. To establish mail fraud, the government had to prove that Parker
acted with the intent to defraud. 18 U.S.C. § 1341. And to establish the filing of a false
tax return, the government had to prove that Parker acted willfully. 26 U.S.C. § 7206(1).
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deposit the money and frequently moved it around, using cash, checks, and gift cards to
pay his personal expenses. Contrary to Parker’s suggestion, there was no indication that
the funds were personal loans to Parker that might be non-taxable, and Parker should
have claimed the money as income. And, despite having claimed income from PFS in
2005, Parker never told his accountant about his work at PFS from 2009 onward. Nor did
he disclose that work to Edward Jones. Tellingly, when confronted with the evidence
against him, Parker told federal agents that they had “nailed it[.]” (App. at 861.) Based
on the evidence, a reasonable juror could certainly find beyond a reasonable doubt that
Parker had committed each offense with the requisite criminal intent.
Finally, Parker contends that his sentence is substantively unreasonable because
the District Court improperly considered, when determining his sentence, the good time
credits and halfway-house release he might receive.4 We review the substantive
reasonableness of a sentence for abuse of discretion. United States v. Tomko, 562 F.3d
558, 567-68 (3d Cir. 2009) (en banc). Parker bears the burden of demonstrating that “no
4
The government argues that the error Parker alleges is, in fact, a procedural error,
not a substantive one. But Parker is adamant that his claimed error is a challenge to the
substantive reasonableness of his sentence. It suffices to say that any challenge to the
procedural reasonableness of his sentence has been forfeited. See In re Wettach, 811
F.3d 99, 115 (3d Cir. 2016) (treating arguments not raised in the appellants’ opening brief
as forfeited); United States v. Dupree, 617 F.3d 724, 728 (3d Cir. 2010) (discussing the
“well-established” rule that arguments not raised below are waived on appeal).
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reasonable sentencing court would have imposed the same sentence on [him] for the
reasons the district court provided.” Id. He has failed to meet that burden.
After correctly calculating the guidelines range and considering the factors in
18 U.S.C. § 3553(a), the District Court determined that a within-guidelines sentence was
appropriate. The 87-month sentence it imposed was at the very bottom of the guidelines
range. We may presume the sentence is reasonable, Peugh v. United States, 569 U.S.
530, 537 (2013), and Parker offers no reason for us to conclude otherwise. He certainly
has not shown that “no reasonable sentencing court would have imposed the same”
bottom-of-the-guidelines sentence based on the District Court’s careful consideration of
the § 3553(a) factors here. Tomko, 562 F.3d at 568.
III. CONCLUSION
For the foregoing reasons, we will affirm the sentence imposed by the District
Court.
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