Judge William Pauley
A jury convicted Parse of tax obstruction violating and mail fraud. Codefendants Daugerdas, Guerin and Field were convicted of similar or more serious crimes. All sought new trial due to juror misconduct. The court denied Parse a new trial. Parse’s lawyers did not inform the court of their determination that Juror No. 1 was a suspended attorney. Parse sought a new trial under Federal Rule of Criminal Procedure 33(a), claiming that counsel’s conduct in failing to disclose information about Juror No. 1 constituted ineffective assistance under Stickland v. Washington. District court denied Parse’s Rule 33 new trial motion. In addition to noting overwhelming evidence of guilt, the court found that counsel’s strategic decision—to gamble on a jury that inclined Juror No. 1 and to hide that knowledge from the trial court—did not constitute ineffective assistance of counsel, and did not constitute a per se violation of Parse’s right to counsel. The court determined that Parse’s ineffective assistance claim would undermine the rationale behind McDonough Power Equip. v. Greenwood, wherein the Supreme Court found that a defendant may waive his right to challenge the partiality of a jury verdict based on juror misconduct.