No juror misconduct hearing over Twitter claim

RICHMOND, Va. — A tweet about the difference between “presume” and “assume” did not require a federal judge to hold a hearing on possible juror misconduct, the 4th U.S. Circuit Court of Appeals held last week.

Richard Adolphus Forde, who operated an online business called Tutornet.com, was convicted of bank fraud, conspiracy and bankruptcy fraud for a scheme involving phony financing for a sham sale of his multimillion-dollar home.

His appeal raised several challenges to his convictions, including a claim that Judge Anthony J. Trenga of the U.S. District Court in Alexandria, Va., should have investigated a Twitter posting Forde said may have come to the attention of jurors.

In a post-trial motion, Forde told the court that during trial, a friend of the husband of the jury foreperson posted on Twitter an explanation of the difference between “assume” and “presume.” Forde contended it was possible the jury foreperson had talked to her husband about the case; that he, in turn, had talked to his friend, who posted the Twitter statement; and that the foreperson saw the Twitter posting.

Forde asked the trial court to hold a hearing to investigate potential misconduct. The judge said no, and the 4th Circuit upheld the judge’s call in an unpublished per curiam opinion Jan. 10 in U.S. v. Forde, 4th Cir. 09-4704.

It’s true a trial judge has to investigate “colorable claims of juror misconduct,” said the judges on the panel.

But Forde’s “string of possibilities about the origin of the Twitter posting … is nothing but speculation” and “falls far short of establishing reasonable grounds for investigation,” the panel said.

The court rejected Forde’s other claims of error and affirmed his convictions and sentence of 42 months’ imprisonment.

Sitting on the panel were Chief Judge William B. Traxler Jr., Judge André M. Davis and Senior Judge Damon J. Keith of the 6th Circuit, by designation.

Deborah Elkins writes from Richmond, Va., for Virginia Lawyers Weekly, a sister publication of The Daily Record.