No. 22-1596

U.S. SECURITIES AND EXCHANGE COMMISSION,

Plaintiff, Appellant,

v.

HENRY B. SARGENT,

Defendant, Appellee,

FREDERICK M. MINTZ; ALAN P. FRAADE; JOSEPH J. TOMASEK; PATRICK GIORDANO,

Defendants.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Richard G. Stearns, U.S. District Judge]

Before

Barron, Chief Judge, Lynch and Gelpí, Circuit Judges.

Paul G. Alvarez, Senior Appellate Counsel, with whom Dan M. Berkovitz, General Counsel, and Michael A. Conley, Solicitor, were on brief, for appellant.

Peter R. Ginsberg, with whom Christopher R. Neff and Moskowitz & Book LLP were on brief, for appellee.

April 18, 2023 BARRON, Chief Judge. A party to a civil jury trial has the right under Federal Rule of Civil Procedure 48(c) to request that the district court individually poll each juror after the jury has returned a verdict to confirm that each juror agrees with the verdict that was announced. The question presented in this interlocutory appeal is whether a party that has been denied that right is automatically entitled to a new trial, even when the jury has been polled collectively, or whether -- given that Federal Rule of Civil Procedure 61 instructs that we "must disregard all errors . . . that do not affect any party's substantial rights" -- that party must show prejudice in the specific case at hand to be entitled to that remedy.

We have not had occasion to address this question before. But, we have long held that denial of the right under Federal Rule of Criminal Procedure 31(d) to poll each juror individually in a criminal case is per se reversible error, see Miranda v. United States, 255 F.2d 9, 18 (1st Cir. 1958); Ira Green, Inc. v. Mil. Sales & Serv. Co., 775 F.3d 12, 25 (1st Cir. 2014), even though Federal Rule of Criminal Procedure 52(a) sets forth an analogue to Civil Rule 61, see Fed. R. Crim. P. 52(a) ("Any error . . . that does not affect substantial rights must be disregarded."). In light of the arguments presented, and given that we do not write on a clean state but are instead bound by circuit precedents that we have no occasion to consider anew here, we conclude that our

- 2 - circuit law points us to interpreting Civil Rule 48(c) no differently from our interpretation of Criminal Rule 31(d). We therefore affirm the interlocutory order of the District Court.

I.

A.

In June 2019, the Securities and Exchange Commission ("SEC") filed this civil enforcement action against Henry B. Sargent in the United States District Court for the District of Massachusetts. The action alleges that Sargent engaged in a "fraudulent and deceptive scheme to disguise public stock sales by corporate affiliates that should have been registered with the [SEC]" under federal securities law.

A ten-day trial before Judge William G. Young ensued in the District of Massachusetts. The jury returned a unanimous verdict against Sargent.

The court clerk first recorded the verdict by reading aloud each of the questions on the verdict form along with each of the jurors' corresponding responses. The clerk then polled the jury collectively by asking:

CLERK: So say you Madam Forelady, is that your verdict?

FOREPERSON: Yes.

CLERK: So say you members of the jury?

JURY: (In unison.) Yes.

- 3 - Judge Young then thanked the jurors for their service and directed them to ret