United States v. Warner, Lawrence E. ( 2007 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 06-3517 & 06-3528
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
LAWRENCE E. WARNER and
GEORGE H. RYAN, SR.,
Defendants-Appellants.
____________
Appeals from the United States District Court
for the Northern District of Illinois, Eastern Division.
Nos. 02 CR 506-1, 4—Rebecca R. Pallmeyer, Judge.
____________
ARGUED FEBRUARY 20, 2007—DECIDED AUGUST 21, 2007Œ
OPINION PUBLISHED SEPTEMBER 6, 2007
____________
Before MANION, KANNE, and WOOD, Circuit Judges.
WOOD, Circuit Judge. This appeal comes to us after
an investigation that lasted for years and a jury trial that
lasted more than six months. In the end, the two defen-
dants, former Illinois Governor George H. Ryan, Sr., and
his associate Lawrence E. Warner, were convicted on
various criminal charges. The case attracted a great deal
of public attention, and thus the district court handling
the trial had to deal with a number of problems, some of
which were common and others less so. The fact that the
Œ
This opinion was originally released in typescript on August
21, 2007.
2 Nos. 06-3517 & 06-3528
trial may not have been picture perfect is, in itself, nothing
unusual. The Supreme Court has observed more than
once that “taking into account the reality of the human
fallibility of the participants, there can be no such thing
as an error-free, perfect trial, and . . . the Constitution
does not guarantee such a trial.” United States v. Lane,
474 U.S. 438, 445 (1986) (quoting United States v. Hasting,
461 U.S. 499, 508-09 (1983)). It is our job, in this as in
any other criminal appeal, to decide whether any of the
court’s rulings so impaired the fairness and reliability of
the proceeding that the only permissible remedy is a new
trial.
Defendants Warner and Ryan raise eight grounds on
appeal, six of them common and one argument unique to
each. Their primary emphasis is on specific issues about
the jury. They contend that the verdict was tainted by
jurors’ use of extraneous legal materials. They characterize
the dismissal of a juror as an “arbitrary removal of a
defense holdout.” They object to the substitution of jurors
after deliberations had begun. They also raise claims
unrelated to the jury, including the arguments that the
exclusion of certain evidence was an “erroneous exclusion
of exculpatory evidence,” that the prosecution failed to
identify an “enterprise” for purposes of its charges under
the Racketeer Influenced and Corrupt Organizations
Act (RICO), 18 U.S.C. § 1962, and that the mail fraud
charges were grounded in an “unconstitutionally vague
criminal statute,” see 18 U.S.C. § 1346. Warner addition-
ally objects to the joinder of his trial with Ryan’s, and
Ryan argues that certain grand jury testimony violated
his attorney-client privilege.
Some potential issues, we note, are not before us. The
defendants do not argue that the problems with the jury
had a cumulative, prejudicial effect, even though they
made this argument in their motion for a new trial before
the district court. Nor do they claim that the evidence
was insufficient to support any of the charges on which
Nos. 06-3517 & 06-3528 3
they were convicted. Rather, their appeal is focused on
particular alleged procedural and legal errors. As we
would in any case, we review only those issues presented
to this court. We conclude that the district court handled
most problems that arose in an acceptable manner, and
that whatever error remained was harmless. We there-
fore affirm the convictions.
I
The facts of this case are well-known, and so we recite
only what is necessary to understand the issues on appeal.
In December 2003, a grand jury returned a 22-count
indictment against Warner and Ryan. After a lengthy
trial, on April 17, 2006, a jury found Warner and Ryan
guilty on all counts. On September 18, 2006, the district
court set aside the jury’s verdict with respect to two
separate mail fraud counts against Ryan and then entered
judgment against both defendants on the remaining
counts. The court sentenced Warner to 41 months’ impris-
onment and Ryan to 78 months’ imprisonment. The
defendants both filed timely notices of appeal on Septem-
ber 20, 2006.
The story behind this case began in November 1990
when Ryan, then the Lieutenant Governor of Illinois, won
election as Illinois’s Secretary of State. He was re-elected
to that post in 1994. Throughout Ryan’s two terms in that
office, Warner was one of Ryan’s closest unpaid advisors.
One of Ryan’s duties as Secretary of State was to award
leases and contracts for the office, using a process of
competitive bidding for major contracts and select-
ing leases based on the staff ’s assessments of multiple
options. Improprieties in awarding four leases and three
contracts form the basis of the majority of the RICO and
mail fraud counts against Warner and Ryan, as these
leases and contracts were steered improperly to Warner-
controlled entities. The result was hundreds of thousands
4 Nos. 06-3517 & 06-3528
of dollars in benefits for Warner and Ryan. These benefits
included financial support for Ryan’s successful 1998
campaign for Governor of Illinois.
Prospective jurors for the trial in this case filled out a
110-question, 33-page form, which covered among many
other topics the subjects of their criminal and litigation
histories, their knowledge of the investigation of Ryan, and
their awareness of Ryan’s positions on public issues.
Counsel for all parties and the court reviewed the ques-
tionnaires for four days; voir dire consumed another six
days. The district court seated 12 jurors and eight alter-
nates. The trial lasted six months. The prosecution
presented approximately 80 witnesses against the defen-
dants. In the end, the evidence supporting the jury’s
verdict was overwhelming. We give only a few examples
here from the extensive record that was created. To
begin with, the evidence showed that Ryan steered an
$850,000 four-year Secretary of State’s office lease to
Warner for a property that Warner had recently pur-
chased for just $200,000. Ryan took regular Jamaican
vacations paid for by a currency-exchange owner to
whom Ryan later steered a $500,000 six-year Secretary
of State’s office lease. Ryan took a Mexican vacation
paid for by an individual to whom Ryan later steered
another Secretary of State’s office lease and a lobbying
contract worth nearly $200,000 for virtually no work.
Warner received more than $800,000 for helping a com-
pany land a major Secretary of State’s office contract
without registering as a lobbyist and added another of
Ryan’s friends into the arrangement at Ryan’s re-
quest before the contract was awarded. Finally, and
remarkably, despite evidence showing that they were
enjoying a very nice lifestyle, Ryan’s and his wife’s total
withdrawals from their bank accounts averaged less
than $700 per year for 10 years.
The jury retired on March 13, 2006. This jury deliberated
for eight days. During their deliberations, the jurors
Nos. 06-3517 & 06-3528 5
were allowed occasional breaks so that some jurors could
smoke outside. At the same times, some of the other
jurors would go outside for fresh air or walk up and
down the courthouse stairwells for exercise. No one
formally objected to the court about these activities. On at
least one occasion, the court noted that the jurors were
accompanied by court personnel when on breaks. Putting
media accounts and testimony that the district court
discredited to one side, there is no basis in the record to
conclude that any deliberations took place when the
jurors were separated from one another.
It was not long before problems arose. On Monday,
March 20, 2006, Juror Ezell sent the court a note, also
signed by the foreperson, complaining that other jurors
were calling her derogatory names and shouting profani-
ties. The court conferred with counsel and responded
with a note instructing the jurors to treat one another
“with dignity and respect.” Two days later, the court
received a note from Juror Losacco signed by seven other
jurors, asking if Juror Ezell could be excused because
she was refusing to engage in meaningful discourse and
was behaving in a physically aggressive manner. The
court again conferred with counsel, noting that “[Losacco]
has not told us anything about the way the jury stands
on the merits. She really has not.” The next morning
the court responded with a note, which began, “You twelve
are the jurors selected to decide this case.” The note then
reiterated that the jurors were to treat each other with
respect and reminded them of their duties.
On the eighth day of deliberations, a few hours after the
court responded to the Losacco note, media reports sur-
faced claiming that one of the jurors had given untruthful
answers on the initial juror questionnaire regarding his
criminal history. The court stopped the jury’s delibera-
tions while it looked into the new allegations. After a
background check confirmed that Juror Pavlick had not
disclosed a felony DUI conviction and a misdemeanor
6 Nos. 06-3517 & 06-3528
reckless conduct conviction, the court questioned him
individually. The court asked counsel if there would be
any objection to dismissing Pavlick. Neither the prosecu-
tor nor Ryan’s counsel voiced any objection when Warner’s
counsel moved to dismiss Pavlick or when the court
granted that motion.
It turned out that Juror Ezell’s record was also problem-
atic. A background check turned up seven criminal arrests,
an outstanding warrant for driving on a suspended
license, and an arrest under a false name, “Thora Jones.”
The fingerprints of the “Thora Jones” arrestee matched
Ezell’s, and it turned out that the name “Thora Jones”
might belong to Ezell’s daughter, who also has a signifi-
cant criminal history. The government told the court
that it would have moved to excuse Ezell for cause had
it known during voir dire that she had given law enforce-
ment officers false booking information, as the Ryan-
Warner case also involved charges of providing false
information to law enforcement officers. The court replied
that “I suspect there would not have been an objection [to
that cause challenge]. She would have been excused.” The
court proceeded to question Ezell, who acknowledged her
untruthfulness. Even then, however, she was not forth-
coming about her use of the name “Thora Jones” or about
her daughter’s criminal history. The court concluded
that “some of the answers she just gave me . . . aren’t
truthful.” Warner’s counsel agreed that Ezell should be
excused, while Ryan’s counsel took no position initially.
When the government moved to dismiss Ezell, Ryan’s
counsel objected to the standard employed but did not
object to the decision to remove Ezell based on her un-
truthfulness.
The court also questioned a number of other jurors. It
turned out that Jurors Gomilla and Talbot both had filed
for bankruptcy in the mid-1990s, but neither included
Nos. 06-3517 & 06-3528 7
this information in response to a question about whether
they had ever appeared in court or been involved in a
lawsuit. That question, however, appeared in a section
entitled “Criminal Justice Experience.” Several other
jurors had also left that question blank: Juror Svymbersky,
an alternate, who stole a bicycle at age 18 or 19 in 1983
and thought that the charges had been expunged; Juror
Rein, who was arrested for assault for slapping his
sister in 1980, but never appeared in court; Juror Casino,
who had three arrests that he had not remembered
when filling out the questionnaire, because they occurred
40 years earlier, in the 1960s, when he was in his early
20s; and Juror Masri, an alternate, who reported a 2000
DUI conviction but had said nothing about a 2004 DUI
conviction or about his conditional discharge or proba-
tion in September 2005.
The defense argued that Svymbersky, Rein, Casino, and
Masri should be dismissed for dishonesty, while the
government took the position that all four were fit to
serve. The district court initially was inclined to excuse
Svymbersky and Masri, but it chose to re-interview Casino
and Svymbersky, who both again stated that they had not
recalled the incidents when filling out their questionnaires.
The district court credited the testimony of Svymbersky,
Rein, and Casino, concluding that they did not lie to the
court. The district court did not credit Masri’s testimony
and excused him; no one objected. (We acknowledge the
dissent’s concern that the court did not state explicitly that
it was granting the defendants’ motion to excuse Masri for
cause. Looking at the record as a whole, however, it is
clear that this is what the court did. There was no other
motion related to Masri pending, and the court had stated
that jurors would be dismissed only for cause. If the court
was not excusing Masri for cause, but instead seating
alternates out of order, Masri would have remained an
alternate as opposed to being excused. More importantly,
8 Nos. 06-3517 & 06-3528
though, no one has objected to the characterization of
Masri’s dismissal as one based on cause.)
In light of the dismissals, it became necessary to seat
alternates Svymbersky and DiMartino on the jury in place
of Ezell and Pavlick. At that point, as authorized by
FED. R. CRIM. P. 24(c)(3), the court decided that the
reconstituted jury would need to start its deliberations
from scratch. It questioned each of the remaining original
jurors to ensure that they understood their obligation to
disregard whatever had gone on before and to begin
deliberations anew, and that they felt capable of doing so.
They all answered yes. The court then re-read its instruc-
tions to the reconstituted jury, adding a new one to allay
defense concerns with the questioning about the jurors’
criminal histories. The new jury began deliberating on
March 29, 2006. After 10 days’ work, it returned guilty
verdicts on all counts on April 17, 2006.
After the verdict, dismissed juror Ezell publicly criti-
cized the jury and the verdict. On April 25, 2006, defense
counsel asked the court to conduct a formal inquiry into
her comments. On April 26, the court held a hearing on
the motion in open court, during which the government
noted that “nothing that [Ezell] has said . . . indicated any
extraneous influence occurred.” The court determined
that “the allegations that Ms. Ezell appears to be making
[do not] constitute the kind of misconduct [that would
require an inquiry].” At some point later that day or the
next day, defense counsel learned through new media
reports that Ezell had alleged that Juror Peterson had
brought “case and law” into the jury room about remov-
ing a juror for failing to deliberate. Defense counsel filed
a new motion for an inquiry, which the court granted. On
May 5, 2006, the court opened its inquiry into Ezell’s
allegations, interviewing both Ezell and Peterson. Ezell
told the court that she had previously forgotten about “the
case law” to explain why she had not previously men-
Nos. 06-3517 & 06-3528 9
tioned the incident. Peterson acknowledged bringing into
the jury room an article published by the American
Judicature Society (AJS) (which she found by conducting
a Google search of the term “deliberating”) about the
substitution of jurors and a handwritten note recording
her own thoughts about the duty to deliberate. She read a
portion of the article and the handwritten note to the
rest of the jurors. The court concluded that these two
excerpts “did not prejudice the outcome” and ultimately
denied the defendants’ motion for a new trial on that (and
several other) grounds.
II
Both Warner and Ryan assert that the court’s ruling on
this “extraneous evidence” was wrong, prejudicial, and
requires a new trial. A preliminary question that influ-
ences the rest of the analysis is whether either one, or
both, of these items should be characterized as “extrane-
ous” evidence. The district court concluded that the AJS
article was, but that Juror Peterson’s personal note was
not.
A
Read in isolation, Peterson’s note is hard to criticize.
It said:
You have the right to speak your opinion, but you have
responsibility to use the facts[,] the testimony to
support your opinion to seriously consider [sic]. If you
don’t use evidence and testimony to support your
opinion your [sic] not being responsibly [sic].
The proper characterization of this note is a question of
fact, which we review for clear error. United States v.
Mancillas, 183 F.3d 682, 695 (7th Cir. 1999). Juror Peter-
10 Nos. 06-3517 & 06-3528
son told the district court that her handwritten state-
ment came from her own, independent thoughts. The
district court credited that testimony, noting the lack of
overlap between the subject of the AJS article and Peter-
son’s note, as well as the similarities between Peterson’s
note and the court’s instructions to the jury on their duty
to deliberate.
Credibility findings are “binding on appeal unless the
district judge has chosen to credit exceedingly improbable
testimony.” United States v. Hubbard, 61 F.3d 1261, 1278
(7th Cir. 1995) (emphasis in original). There is no reason
to question the district court’s assessment of Juror Peter-
son’s explanation about the note, let alone any indica-
tion that Peterson’s account was “exceedingly improbable.”
The defendants’ trial counsel were present when the
district court discussed the note with Peterson and were
permitted to ask questions. The defendants imply that
Peterson could not have composed the note without
assistance from external sources, apparently on the theory
that it expressed concepts beyond the capability of a
kindergarten teacher (which is Peterson’s profession). We
cannot imagine why either we or the district court was
required to draw any such inference, which is more than
a little patronizing. Thus, the defendants are left only
with the fact that Peterson put her thoughts on paper.
Had she simply spoken those words to the jury without
writing them first, FED. R. EVID. 606(b) would bar any
consideration of them at all. We conclude that the district
court did not err in determining that this note was not
extraneous information and did not require any further
action.
B
The AJS article was indisputably extraneous information
in the jury room. It dealt generally with the subject of
Nos. 06-3517 & 06-3528 11
juror removal and substitution. The excerpt that Peterson
read to the jury was the following:
But other bases for substitution raise serious questions
about the sanctity of the deliberative process, primar-
ily allegations by some jurors that another juror is
unwilling or unable to meaningfully deliberate, or is
unwilling to follow the law. Such an allegation re-
quires a hearing where the judge must decide the
tricky question whether the juror is truly unfit to
serve, or is merely expressing an alternative view-
point that will likely result in a hung jury. Only if
the judge concludes that the challenged juror is truly
unfit to serve, will the judge be authorized to dismiss
that juror and substitute an alternate juror.
In essence, Peterson’s act of reading that paragraph
introduced new instructions into the jury room about the
deliberative process, beyond those given by the court.
There is no doubt that this should not have happened. The
only question is whether it is such a fundamental error
that it requires automatic reversal, or if it is subject to
harmless error analysis.
The Supreme Court has repeatedly stressed the fact that
so-called structural errors—those that fall outside the
boundaries of harmless error analysis—are few and far
between. Most recently, the Court found that a constitu-
tional error in failing properly to apply the rule of Blakely
v. Washington, 542 U.S. 296 (2004), was subject to harm-
less error analysis. See Washington v. Recuenco, 126 S.Ct.
2546 (2006). The Court explained:
We have repeatedly recognized that the commission of
a constitutional error at trial alone does not entitle
a defendant to automatic reversal. Instead, “ ‘most
constitutional errors can be harmless.’ ” Neder v.
United States, 527 U.S. 1, 8 (1999) (quoting Arizona v.
Fulminante, 499 U.S. 279, 306 (1991)). “ ‘[I]f the
12 Nos. 06-3517 & 06-3528
defendant had counsel and was tried by an impartial
adjudicator, there is a strong presumption that any
other [constitutional] errors that may have occurred
are subject to harmless-error analysis.’ ” 527 U.S. at
8 (quoting Rose v. Clark, 478 U.S. 570, 579 (1986)).
Only in rare cases has this Court held that an error
is structural, and thus requires automatic reversal.
126 S.Ct. at 2551 (footnote deleted). In a footnote, the
Court reviewed the six “rare” areas where automatic
reversal occurs: complete denial of counsel, a biased trial
judge, racial discrimination in the selection of a grand
jury, denial of the right of self-representation at trial,
denial of a public trial, and a defective reasonable doubt
instruction. Id. at n.2. It also recalled that its earlier
decision in Neder had involved defective jury instructions,
and that it had applied harmless error analysis there.
Id. at 2551.
The defendants do not contend that anything that
Recuenco recognized as structural error occurred here.
Instead, their argument is about jury instructions and
external influences on the jury. The Court repeatedly has
subjected challenges to external influences on jurors to
harmless error analysis. In United States v. Olano, 507
U.S. 725, 738 (1993), it wrote that “[w]e generally have
analyzed outside intrusions upon the jury for prejudicial
impact.” The Court summarized its “ ‘intrusion’ jurispru-
dence” by stating that “[d]ue process does not require a
new trial every time a juror has been placed in a poten-
tially compromising situation. Were that the rule, few
trials would be constitutionally acceptable.” Id. (quoting
Smith v. Phillips, 455 U.S. 209, 217 (1982)). Under Neder
and similar cases, the introduction of the excerpt from
the AJS article into the jury room is subject to harmless
error analysis.
In evaluating it in this light, we bear two things in mind.
First, we have held, and we reaffirm, that district courts
Nos. 06-3517 & 06-3528 13
“retain . . . substantial discretion over the determination
of whether the prejudice arising from the unauthorized
contact is rebutted or harmless.” United States v. Sababu,
891 F.2d 1308, 1335 (7th Cir. 1989); see also Evans v.
Young, 854 F.2d 1081, 1084 (7th Cir. 1988). The relevant
question is thus whether the court abused its discretion
in making that determination. Sababu, 891 F.2d at 1334.
Second, context matters. Many cases in which extraneous
information made its way into the jury room involve
evidence relevant to the defendant’s guilt or innocence.
See, e.g., United States v. Berry, 92 F.3d 597, 600 (7th
Cir. 1996) (unadmitted transcript of admitted recording
that labeled one speaker as the defendant although
identification was in dispute); Sababu, 891 F.2d at 1332-
33 (unadmitted transcript of defendant’s unadmitted
recorded conversation with a co-defendant); United States
v. Bruscino, 687 F.2d 938, 941 (7th Cir. 1982) (en banc)
(Bureau of Prisons document about the defendant’s
possible membership in a prison gang and a newspaper
article about the case). The excerpt from the AJS article
did not. Compare United States v. Estrada, 45 F.3d 1215,
1226 (8th Cir. 1995), vacated on other grounds, 516 U.S.
1023 (1995) (differentiating between external informa-
tion that merely supplements the court’s instructions
and factual evidence not developed at trial).
We first consider whether the district court applied the
proper legal standard for its inquiry. A district court’s
failure to use the proper legal standard is an abuse of
discretion. United States v. Austin, 103 F.3d 606, 609 (7th
Cir. 1997). A district court also abuses its discretion if the
record contains no evidence on which the court could have
relied or if its findings of fact are clearly erroneous. United
States v. Jain, 174 F.3d 892, 899 (7th Cir. 1999).
This court has looked to the Supreme Court’s decision
in Remmer v. United States, 347 U.S. 227, 228 (1954), in
14 Nos. 06-3517 & 06-3528
order to develop a legal standard in this area. Sababu, 891
F.2d at 1335. In Remmer, the Court considered the case
of a juror who supposedly was offered a bribe for a vote to
acquit. 347 U.S. at 228. The FBI was brought in to ques-
tion the juror, and the district court concluded that the
bribe was a joke, but the defendant was never told about
the allegation. Id. Remmer held that
[i]n a criminal case, any private communication,
contact, or tampering, directly or indirectly, with a
juror during a trial about the matter pending before
the jury is, for obvious reasons, deemed presumptively
prejudicial, if not made in pursuance of known rules
of the court and the instructions and directions of
the court made during the trial, with full knowledge of
the parties.
Id. at 229. The Court also said, however, that “[t]he
presumption is not conclusive, but the burden rests
heavily on the Government to establish, after notice to
and hearing of the defendant, that such contact with the
juror was harmless to the defendant.” Id. It cautioned
that inquiries of jurors about extraneous influences must
strike a balance between the need to ensure that no
prejudice has occurred and the need to let jurors de-
liberate unimpeded. Id.District courts have some flexibility in structuring an
inquiry into this kind of problem. Bruscino, 687 F.2d 938at 940. Sometimes the circumstances are such that the
Remmer presumption does not even apply. Thus, in
Whitehead v. Cowan, 263 F.3d 708, 723 (7th Cir. 2001), we
held that it did not apply to the publication of jurors’
names and addresses by the media. Whitehead also
suggested that “no Remmer hearing is necessary” where
a “comment heard by a juror was ambiguous and innocu-
ous.” 263 F.3d at 725-26. We need not explore when a
hearing may not be essential, however, since the district
Nos. 06-3517 & 06-3528 15
court held one here. The general rule is that the district
court “ ‘should determine the circumstances [surrounding
the improper contact] and the impact thereof on the juror,
and whether or not it was prejudicial, in a hearing with
all interested parties permitted to participate.’ ” Sababu,
891 F.2d at 1335 (quoting Remmer, 347 U.S. at 230).
The defendants argue that this standard does not
adequately protect the deliberative process. They urge the
adoption of a standard under which “any reasonable
possibility of prejudice” from the external influence
automatically entitles a defendant to a new trial. This,
however, would represent a significant extension of the
law. In our view, such an extension is not warranted and
would in fact be inconsistent with the Supreme Court’s
approach to harmless error. If the district court is able to
take remedial measures that remove the possibility of
prejudice, or if it finds after a hearing that the Govern-
ment has rebutted the presumption of prejudice, no new
trial is required.
The district court described the approach it took to this
issue as “a two-pronged inquiry.” It said that it would
determine “whether there was an extraneous influence
on the jury, [and] whether from an objective perspec-
tive . . . what happened was prejudicial.” The parties
agreed to the judge’s approach. Moreover, in the court’s
memorandum and order denying the defendants’ motion
for a new trial, the district court explicitly discussed the
requirements and holdings of Remmer, Bruscino, and
Sababu, among other cases, concluding that “[p]rejudice
to the defendants is presumed . . . but is rebutted if
there is no reasonable possibility that the verdict was
affected by the contact.” We are confident, in light of these
statements, that the court identified the correct legal
standard for its inquiry.
16 Nos. 06-3517 & 06-3528
C
The question remains whether the court abused its
discretion in applying the law. In United States v. Sanders,
962 F.2d 660 (7th Cir. 1992), we suggested a nonexclusive
list of considerations that throw light on the question of
prejudice. These factors “include [1] the extent and nature
of the unauthorized contact, [2] the power of curative
instructions, and [3] the responses of the jury.” Id. at 669.
We will follow that checklist here, understanding, of
course, that in the end this type of inquiry simply helps
to ensure that neither the district court nor we have
overlooked anything important.
As we noted earlier, the AJS article was unrelated to
the facts of the case or the defendants’ guilt, and thus
was less likely to prejudice the jury’s evaluation of the
central issues in the case. Furthermore, only the jurors
who sat on the original jury were exposed to the article,
and their exposure was brief.
The district court rejected the defendants’ speculation
that Peterson “believed this document was some sort of
trump card in an ongoing dispute with [Juror] Ezell.” The
testimony was in conflict about how severe that dispute
was: Ezell claimed that she cried after the AJS article
was read to the original jury, while Peterson testified that
no one responded emotionally at all. The district court
concluded that the article “did not sway the course of
deliberations” during the first jury’s deliberations when
it was read, nor (more importantly) did it “play any role
in the reconstituted deliberations.” In reaching this
conclusion, the district court credited Peterson’s testi-
mony that Ezell did not change her approach to the
deliberative process after the excerpt was read, and
Peterson’s testimony that she did not refer to the article
at all during the reconstituted jury’s deliberations. The
defense cannot point to any evidence showing that the
Nos. 06-3517 & 06-3528 17
district court’s conclusions about credibility of the jurors
regarding the external information were clearly erroneous.
The district court also concluded that the AJS article
“does not state or imply that jurors must reach any deci-
sion,” and could not “lead a reasonable juror to change his
or her determination for fear of punishment.” Rather,
based on the court’s instructions about deliberations, the
“jurors may have reasonably believed, even without
consulting extraneous material, that they could be re-
moved if they refused to ‘deliberate.’ ” This differs sig-
nificantly from the situation faced by the Ninth Circuit
in United States v. Rosenthal, in which a juror asked an
attorney friend whether she had “any leeway” in following
the court’s instructions on the law, and her friend advised
her that she “could get into trouble” if she strayed from
the instructions, which implies a more severe penalty
than simply being removed from a jury. 454 F.3d 943, 950
(9th Cir. 2006).
We now come to what may be the most powerful reason
for concluding that Peterson’s reading of the paragraph
from the AJS article did not prejudice the defendants: it
occurred during the deliberations of the initial jury, and
the district court took measures to assure that the new
jury could and would put Round 1 behind them. After
dismissing Ezell and Pavlick, the district court asked each
one of the remaining original jurors individually if he
or she could disregard the previous deliberations and
start over. For example, the court asked one juror, “If
I were to tell you that today we are bringing some other
jurors back and you must start all over, is that something
you think you can do?” and “Could you, do you believe, to
the best of your ability, put out of your mind all the
discussion that’s happened in the last few days with your
fellow jurors?” The juror responded, “Yes, I can. Put it
over and just start new.” The court continued, “Just start
as though it never happened before?” The juror replied,
18 Nos. 06-3517 & 06-3528
“Yes.” The court followed up yet again, “Any concerns
about how—the difficulty that that would present for you?”
The juror responded, “None whatsoever. I have no prob-
lems with it.”
We approved a similar manner of proceeding in Sanders.
There, “[the contacted juror] explicitly testified that she
could put this incident behind her and continue to serve
impartially as a juror.” Sanders, 962 F.2d at 670. We
concluded that “[b]ecause of this explicit testimony and
the careful inquiry of the district court, we are unable to
say that the district court abused its discretion in accept-
ing Juror Layton’s sworn statements and allowing the
trial to continue.” Id. Sanders compared this situation
with “pretrial voir dire,” about which “the Supreme Court
has held that the test for determining impartiality in a
prospective juror is whether he or she can ‘lay aside his
impression or opinion and render a verdict based on the
evidence presented in court.’ ” Id. at 670, n.10 (quoting
Murphy v. Florida, 421 U.S. 794, 800 (1975)).
The court did not specifically instruct the remaining
jurors to disregard the AJS article (as it had not yet come
to light), but still the court trod carefully to avoid prying
into the jury’s earlier internal deliberations. This is
because FED. R. EVID. 606(b) provides that
[u]pon an inquiry into the validity of a verdict or
indictment, a juror may not testify as to any matter or
statement occurring during the course of the jury’s
deliberations or to the effect of anything upon that or
any other juror’s mind or emotions as influencing
the juror to assent to or dissent from the verdict or
indictment or concerning the juror’s mental processes
in connection therewith.
The rule did not technically apply at the time of the new
instructions to the remaining jurors, as the jury had not
yet reached a verdict. The rule is based, however, on the
Nos. 06-3517 & 06-3528 19
“long-recognized and very substantial concerns [that]
support the protection of jury deliberations from intrusive
inquiry.” Tanner v. United States, 483 U.S. 107, 127
(1987). The court reasonably took care to abide by the
spirit of the rule because the original jurors were going
to return as part of the reconstituted jury. If by its in-
quiry the court sent the implicit message that future
deliberations might not be secret, then we would be fac-
ing a different set of problems with the reconstituted
jury’s verdict.
Following the juror interviews, the district court made
a precautionary statement to the new jury before instruct-
ing it:
You may have heard by now that two of the original
jurors in this case were excused from further jury
service. I want you to know, as I’ve told some of you
already, that the circumstances that brought about
the fact that these two jurors were excused, those
circumstances were not prompted by any of the lawyers
or by the parties in this case, nor by your previous
deliberations, those of you who were here. Rather, the
inquiry was generated by members of the media. . . .
I want you to know that in attempting to reach ver-
dicts in this case you are answerable only to your own
conscious [sic]. It is your job, and your job alone, to
find the facts in this case and to apply the law that
I have given you. . . . The fact that there have been
circumstances that led to two jurors being excused
should not in any way enter into your delibera-
tions. . . . [I]t is imperative that you completely put
your prior deliberations out of your mind. You must
treat this case as if the prior deliberations did not
occur. You also should not discuss or mention any
statements or comments made during the prior deliber-
ations when you begin these new deliberations.
(emphasis added).
20 Nos. 06-3517 & 06-3528
There is a general presumption that juries follow their
instructions. See, e.g., Penry v. Johnson, 532 U.S. 782, 799
(2001) (citing Richardson v. Marsh, 481 U.S. 200, 211
(1987)); see also United States v. McClinton, 135 F.3d
1178, 1189 (7th Cir. 1998). This presumption is overcome
only if there is an “overwhelming possibility” that the
jury was unable to follow the instructions. Greer v. Miller,
483 U.S. 756, 767 n.8 (1987). Here, it is hard to imagine
instructions that would be better tailored to the issue of
the AJS article, as well as to the other concerns about
the original deliberations that the defendants allege.
(The defendants’ assertion that some of the jurors believed
that they “could force the removal of a fellow juror” also
fails in light of these instructions and the court’s credibil-
ity findings.) During the post-trial proceedings, the district
court once again concluded that “the court believes that
the jurors who deliberated to verdict in this case were
diligent and impartial. . . . They sat attentively through
nearly six months of evidence. . . . The court believes
these jurors made every effort to be fair, even amid
extraordinary public scrutiny.” This assessment is en-
titled to deference from us.
D
The defendants make one final argument about the
alleged external influences on the jury. They claim that the
district court “acknowledged presumptive prejudice, [but]
it effectively required a showing of actual prejudice.” We
do not see it that way. The defendants are forgetting that
there is a middle ground, in which the court finds pre-
sumptive prejudice, but it then goes on to find that the
government has rebutted that presumption. After inter-
viewing both Ezell and Peterson, the district court stated,
“I am comfortable, based upon what I have heard, at
least at this point, that the jurors’ brief consideration
Nos. 06-3517 & 06-3528 21
of that material did not [cause] prejudice.” The court did
not conclude that the defendants lost because they
failed to show actual prejudice, or that it was their bur-
den to do so. It found that the government satisfied its
burden to show that there was no prejudice, as it is
entitled to do under Remmer. For all of these reasons, the
district court did not abuse its discretion in concluding
that the extraneous information at issue did not prej-
udice the defendants.
III
At the outset of the trial, the district court empaneled
eight alternates to the jury. In the end, most of these
alternates were necessary to provide the defendants
with a full jury. By the time the trial reached the jury
deliberation stage, one juror had been excused for inabil-
ity to serve—Juror McFadden, who was dismissed on the
court’s own motion because she had a medical condition
that made her repeatedly fall asleep during the trial.
The revelations of the possible criminal records of some
of the original jurors led, as we have said, to the district
court’s decision to excuse Jurors Pavlick and Ezell and
to replace them with alternates. Defendants raise five
arguments relating to the process of removal and replace-
ment: first, they accuse the district court of misleading
defense counsel about the standard that would be used
for removing jurors; second, they assert that the court
applied an arbitrary standard for dismissals; third, they
claim that the prosecution knew that Ezell was a holdout
juror for the defense at the time it moved for Ezell’s
removal; fourth, they speculate that the removal of Ezell
chilled pro-defense jurors; and finally, they fear that the
investigation into the jurors’ backgrounds biased the
jurors against the defense.
22 Nos. 06-3517 & 06-3528
A
The most important question for purposes of this part of
the appeal is whether the district court correctly decided
to rely on the standard established in McDonough Power
Equipment, Inc. v. Greenwood, 464 U.S. 548 (1984), for
assessing these various challenges to the jury. In
McDonough, the Supreme Court held that an inaccurate
answer on a jury questionnaire discovered after the
verdict was returned could be grounds for a new trial
only if the “correct response would have provided a valid
basis for a challenge for cause.” Id. at 556. Defendants
claim that this standard is inappropriate for pre-verdict
removals because McDonough rested on the need for
finality in a given jury’s verdict. The implication of their
position is that it is actually impossible to remove a
juror for cause once deliberations have started. This is
not the case, as FED. R. CRIM. P. 24(c)(3) illustrates.
Furthermore, most of the interests in finality recognized
by McDonough have already accrued by the time a fully
tried case is submitted to a jury. We can see no sense in a
rule that forces the court to sit by idly, knowing that
it ought to remove a juror, just so that the jury can re-
turn a verdict and the facts of McDonough will be repli-
cated. The district court was correct to turn to McDonough
for guidance on how to resolve the problems that had
arisen.
B
The next question is whether the district court applied
this standard consistently. When the possibility arose
that some sitting jurors would need to be removed be-
cause of their criminal records, the court asked the
attorneys for their thoughts on the standard to apply
to possible removals. All attorneys responded with argu-
ments to the court. Less than an hour later, the court
Nos. 06-3517 & 06-3528 23
informed counsel that it saw a difference between jurors
such as Pavlick and Ezell, for whom there were sig-
nificant disparities between the questionnaires and their
recent criminal histories, on the one hand, and jurors
such as Casino, who may simply have forgotten long past
criminal histories or may not have understood what was
required to be disclosed.
In the end, the district court concluded and repeatedly
stated that the appropriate action would be to excuse any
juror for whom the newly acquired information would
have led to a challenge for cause by one of the parties
that the court would have granted. The court announced
that it would follow that standard even if the result was
to reduce the number of jurors below the number required
to reach a verdict. This is precisely what McDonough
calls for: changing the composition of the jury after the
time for peremptory challenges has expired only if the
“cause” standard is met. When faced with a post-trial
argument about a juror, the Supreme Court has focused
on the question whether a district court’s ruling “result[ed]
in the seating of any juror who should have been dis-
missed for cause,” not on whether some other jury might
also have been impartial. United States v. Martinez-
Salazar, 528 U.S. 304, 316 (2000).
Before Ezell was dismissed, the district court asked
defense counsel if they were accepting its standard. The
court again clarified the standard being used, stating that
a juror’s saying only that she did not understand a ques-
tion, or a juror acknowledging that she may not have
answered everything truthfully, might not be excusable
solely for that reason. The government agreed and noted
that even if it might have made a challenge for cause, the
decision would have been the court’s in the end. The
defense counsel stated their disagreement “that that’s the
standard that should be applied,” and again expressed a
preference for removing any juror “the Court has found . . .
24 Nos. 06-3517 & 06-3528
not [to be] truthful.” When all was said and done, however,
this was just a discussion about how to apply the
McDonough standard to these facts. The court recog-
nized this: in its order denying defendants’ motion for
a new trial, it reiterated that it had applied the
McDonough standard to removing the contested jurors.
Ignoring this extensive exchange, the defendants claim
that “the district court never made any findings with
respect to any juror that would have constituted a valid
challenge for cause.” The record does not support that
assertion. The dismissal of Ezell provides a good example.
After explaining the applicable standard, the district
court said, “Let’s just start with the use of an alias.
I think that probably would have been a basis for
cause. . . .” Prior to Ezell’s dismissal, the government told
the district court that it would have challenged her for
cause had it known that “she has an arrest with a false
name” because “[h]ow somebody who gives law enforce-
ment officers false information upon an arrest can possibly
be an impartial juror in this case, where one of the
charges is giving false information to law enforcement
officers, is well beyond me.” The prosecution added,
“Judge, there would not have been a contest” and that
it was “[n]ot even an issue” because the government
would always challenge for cause under such circum-
stances. The court responded that “if . . . there would have
been a cause challenge, I suspect there would not have
been an objection. She would have been excused.”
Soon after saying that, the court questioned Ezell about
her arrest under a false name and concluded that her
response was not forthcoming. As the court put it, “[Ezell]
has never told us the truth about the [false] name Thora
Jones.” After listening to the attorneys’ arguments, the
court said, “I think she has concealed a great deal of
information. And the critical question is, had this ques-
Nos. 06-3517 & 06-3528 25
tion been answered, would it have been grounds for cause?
I can’t imagine that the answer is anything other than
yes. I think I have to excuse her.” This is enough to
convince us that Ezell was removed because she would
have been removable for cause. This case is not like United
States v. Harbin, where the district court told the parties
that jurors would be removed only for cause once trial
began, but then it allowed the prosecution to use a pe-
remptory challenge to remove a juror during the trial. 250
F.3d 532, 547 (7th Cir. 2001). Based on the lengthy
discussions among the court, the prosecutors, and de-
fense counsel, it is apparent that everyone knew that the
court was using the McDonough standard.
The defendants try to undermine this conclusion by
arguing that the prosecution did not raise challenges
for cause against all jurors with criminal convictions or
family members with extensive criminal histories. To the
extent that this is accurate, this argument would sway us
only if the government did not challenge jurors with the
same types of criminal histories as those who were struck
for cause during deliberations. Cf. Coulter v. McCann, 484
F.3d 459, 465 (7th Cir. 2007) (reiterating the established
principle that when defense counsel claims that prosecu-
tors have used a peremptory strike for an impermissible
reason, it is necessary to show a “similarly situated
venireperson” who was not struck). In this case, the
defense has pointed to no comparable jurors who were not
struck. No other juror had committed, as Ezell had,
conduct with such significant similarities to the charged
conduct at issue in the case.
Pavlick’s dismissal during deliberations stemmed from
an undisclosed felony DUI conviction during Ryan’s ten-
ure as Secretary of State. The Illinois Secretary of State
sets many significant drunk driving policies, and this
case dealt with locations of the Secretary’s local motor
vehicles administration facilities that might have con-
26 Nos. 06-3517 & 06-3528
nected Pavlick’s conviction to Ryan’s office. In fact, it ap-
pears that there was some action taken by the Secretary of
State against Pavlick while Ryan was serving in that
office. The conviction, coupled with Pavlick’s negative
association with Ryan’s office, provide ample grounds for
dismissal for cause. Even Warner’s counsel stated, “[w]e
have a real concern with a convicted felon sitting with a
deliberating jury for eight days.” There was no argument
from any attorney before the district court that Pavlick
would not have been removed for cause had he been honest
during voir dire. Also, the only juror with similar convic-
tions to Pavlik’s—alternate Masri—was also dismissed.
Again, the district court was entitled to remove Pavlick
under the McDonough standard.
Other jurors also found themselves under the court’s
scrutiny. Alternate juror Svymbersky failed to disclose
a 23-year-old conviction charge for purchasing a stolen
bicycle, explaining that he had not thought of it when
filling out his questionnaire. The court ultimately be-
lieved this explanation. Juror Casino had three arrests
(including one conviction) in the 1960s. He too testified
that he did not remember these incidents when filling out
the questionnaire. The district court remarked after
interviewing Casino that “[t]his juror is as credible as
any juror I have ever had.” The court listened to the
attorneys argue about Casino and then said, “somebody
who really, truly doesn’t remember it and hasn’t gotten in
any trouble since, it seems to me could hardly have a bias.”
Juror Rein was arrested in 1980 for assault for slapping
his sister, but never appeared in court for the charge and
thought that the matter had been expunged from his
record. He testified that he did not recall the event
when he filled out his questionnaire. By contrast, alter-
nate juror Masri had reported a DUI conviction in 2000
but had not disclosed another DUI conviction in 2004 or
that he was on probation in September 2005. The district
Nos. 06-3517 & 06-3528 27
court ultimately allowed the defendants’ cause challenge
against Masri, and we have already noted the similarities
between Pavlick’s and Masri’s criminal records. Although
one of Masri’s DUI misdemeanor convictions came out
during voir dire, that one did not occur while Ryan was
the Secretary of State, and therefore it is not unreason-
able that neither party would have moved to remove him
for cause for that conviction alone. Only when it turned out
that there were multiple, recent convictions, and that
Masri was trying to hide them, did the likelihood that he
would have been removed for cause become significant.
Looking at these other jurors (apart from Ezell and
Pavlick), we view the district court’s conclusion that only
Masri could have faced a valid challenge for cause as
reasonable. A district court has no obligation to grant a
challenge every time it turns out that a venireperson has
a criminal record. It has the discretion to determine, based
on all the facts, whether dismissal for cause is necessary.
United States v. Ray, 238 F.3d 828, 937 (7th Cir. 2001). We
conclude that the district court applied the McDonough
standard consistently in considering whether to excuse
each of the jurors with undisclosed criminal histories.
C
Next we address the defendants’ claim that the prosecu-
tion knew that Ezell was a defense holdout and that this
was the real reason why Ezell was dismissed. The record
does not support this contention. Three jurors were
dismissed (Pavlick, Ezell, and Masri) after the investiga-
tions into their questionnaires. The district court con-
cluded that “I have genuine concerns that Mr. Pavlick
and Ms. Ezell . . . may very well have been motivated to
get on the jury.” Indeed, the strongest cases for chal-
lenges for cause were against these two jurors.
28 Nos. 06-3517 & 06-3528
We cannot find any basis in the record to conclude that
the district court dismissed Ezell because of her view of
the evidence or that the prosecution tricked the district
court into dismissing Ezell for cause based on its belief
about Ezell’s view of the evidence. The district court was
troubled immediately after Ezell’s criminal history was
disclosed. We have no doubt that the district court’s
reasons (which we have already reviewed) for dismissing
Ezell for cause were genuine.
Because of this, it does not matter what the prosecution
may have suspected about Ezell’s views on the evidence
in this case. It is the court’s actions that count when a
decision is within the discretion of the court, not counsel’s
motivations for supporting or opposing the court’s ac-
tions. So long as the court was not hoodwinked into
believing there was cause where there was none (and it
was not), the removal was proper. Without belaboring the
point, we note finally that there is no serious basis in the
record supporting the defense’s speculation that the
prosecution somehow knew that Ezell was a “defense”
juror and that it was trying to bounce her from the jury
for that reason. At best, everyone was guessing. These
hunches fall far short of supporting the defendants’
argument that the prosecution knew Ezell’s view of the
evidence, let alone sought her dismissal for that reason.
D
The defendants also contend that Ezell’s removal
“potentially chilled the expression of pro-defense jurors
in deliberations.” Based on our discussion above, we
believe that the instructions that the court gave to the
reconstituted jury prevented any chilling of pro-defense
views in the new jury. It is also worth noting that the
jurors who served on both juries would have recalled that
when the court initially received the note about Ezell, it
Nos. 06-3517 & 06-3528 29
responded by instructing the jury that “you twelve are
the jurors selected to decide this case.” This instruction
also operated to prevent any potential chilling of pro-
defense views (or any other dissenting views). Moreover,
the first juror dismissed after that response from the
court was Pavlick, who had signed the note, not Ezell.
E
The defendants’ last argument relating to the jury is that
the background checks on jurors that the court ordered
when word of the criminal backgrounds hit the media
prejudiced the defense. The government rightly points out
that the defense asked for many of these checks. Although
this comes close to waiving this point for appeal, we are
willing to assume that the defense’s waiver was not
complete. Nevertheless, the district court’s specific in-
structions to the reconstituted jury, as well as its re-
peated admonitions to avoid media coverage of the trial,
precluded any bias against the defense by preventing the
jurors from knowing about the extent of the background
checks. The defendants’ only real support for their argu-
ment comes from Juror Losacco’s testimony that she was
“scared” during her interview. But this trepidation ap-
pears to have resulted from the number of lawyers in the
room during her interview rather than any feeling that
she needed to serve the prosecution’s interest or risk
punishment. Therefore, we see no abuse of the court’s
discretion in its decision to call for the background checks.
In summary, the defendants’ complaints about the
court’s handling of the jury are unsupported by the law
and the record. The district court properly employed the
McDonough standard in determining whether jurors
should be removed, in determining whether a misstate-
ment was made on the juror questionnaires and the
reasons for the misstatement, and in focusing on whether
30 Nos. 06-3517 & 06-3528
the undisclosed information would have supported strik-
ing that juror for cause. With careful consideration and
full attention to all counsels’ arguments, the district
court applied that standard consistently and openly to
all of the jurors and alternates. The court did not dis-
miss Ezell because she was a “holdout,” nor were jury
deliberations chilled because of the way in which Ezell was
removed. Finally, the record suggests no reason to think
that the reconstituted jury was biased against the defen-
dants because of the court’s inquiries.
IV
The defendants next argue that the replacement of jurors
after eight days of deliberations deprived them of their
right to a fair trial before an impartial jury. One major
strike against this argument is the fact that since
its amendment in 1999, FED. R. CRIM. P. 24(c) has al-
lowed for the removal of deliberating jurors. Although the
defendants contend that the government has the burden
of showing that a juror replacement during deliberations
is not prejudicial, this burden allocation is not supported
by the text of Rule 24(c)(3), which states:
Retaining Alternate Jurors. The court may retain
alternate jurors after the jury retires to deliberate. The
court must ensure that a retained alternate does not
discuss the case with anyone until that alternate
replaces a juror or is discharged. If an alternate
replaces a juror after deliberations have begun, the
court must instruct the jury to begin its delibera-
tions anew.
So long as the two explicit conditions of the rule—ensuring
that the alternate does not discuss the case prior to
replacing an original juror and instructing the jury to
restart deliberations—are satisfied, the decision to re-
Nos. 06-3517 & 06-3528 31
place deliberating jurors rests firmly within the district
court’s discretion.
We have held that “[r]emoving [a] questioned juror
and replacing her with an alternate” is reviewed for
abuse of discretion. United States v. Sandoval, 241 F.3d
549, 552 (7th Cir. 2001). There is nothing in the text of
Rule 24(c)(3) to suggest that a different approach is
required for reviewing removals that occur during deliber-
ations. The Fifth Circuit employed an abuse of discretion
standard for juror removals during deliberations, al-
though it is not clear whether the trial in that case took
place before or after the Rule 24 amendment came into
force; it concluded that a district court abuses its discre-
tion in the context of juror removal only “if the juror
was discharged without factual support or for a legally
irrelevant reason.” United States v. Edwards, 303 F.3d
606, 631 (5th Cir. 2002) (internal quotation marks and
citations omitted).
The defendants urge us to rely on cases that pre-date
Rule 24’s amendment. They argue that we must reverse
the conviction if “the record indicates a reasonable possi-
bility of prejudice” from the removal of the juror during
deliberations. United States v. Register, 182 F.3d 820, 843
(11th Cir. 1999). The flaw in this argument is that
Register based its holding on “the letter of Rule 24(c),”
which at that time stated that “[a]n alternate juror who
does not replace a regular juror shall be discharged after
the jury retires to consider its verdict.” Id. (emphasis
added). The court wrote that the rule “do[es] not apply a
per se reversal standard to Rule 24(c) violations, [but
rather] . . . the harmless error test and reverse[s] . . . only
where there is a reasonable possibility that the district
court’s violation of Rule 24(c) actually prejudiced [the
defendant] by affecting the jury’s final verdict.” Id. at 842.
Thus, Register undertook a prejudice inquiry only be-
32 Nos. 06-3517 & 06-3528
cause the district court had no discretion under the old
Rule 24(c) to retain alternate jurors.
Under the amended Rule 24(c), the district court has
discretion to retain alternates during deliberations. We
think it most useful to look to our general approach to
Rule 24 to decide whether the court properly removed Ezell
and Pavlick. Only where a district court fails to comply
with the non-discretionary requirements of Rule 24(c)(3)
should our review require a prejudice inquiry like that in
Register. Otherwise, “if the record shows some legitimate
basis for th[e] decision [to replace a juror], there is no
abuse of discretion.” United States v. Humphrey, 34 F.3d
551, 557 (7th Cir. 1994). The defendants have the burden
of demonstrating on appeal that there was no legitimate
basis in the record for the district court to remove Ezell
and Pavlick and replace them with alternates.
The defendants claim that the jurors were incapable of
following the court’s instructions to begin anew, but we
have already rejected that argument. They also point to
the fact that the jury had sought and received guidance
from the court during its original deliberations, and they
charge that the jury “resorted to misconduct in an effort
to force the removal of a holdout defense juror,” about
which we have little more to say. The defendants also
refer to unsubstantiated reports in the media that the
jury had already deliberated to verdict on several counts
to demonstrate that there was no basis in the record for
the district court to seat the two alternate jurors.
We have no intention of deciding this case based on
anything but what is properly in the record. The only
allegation that we need address is the one of jury miscon-
duct, and it is easily rejected. The district court, based on
its assessments of the jury’s notes to the court, concluded
that there was no concerted effort to remove any juror
based on her viewpoint. This conclusion, which is sup-
Nos. 06-3517 & 06-3528 33
ported by the record, provides all the basis this court
needs to affirm the district court’s decision to order sub-
stitutions of jurors.
The defendants complain that we have no way of know-
ing whether the jury really started its deliberations
anew, as the court told it to do. They also charge that the
record reveals a likelihood that empaneled alternate
DiMartino discussed the case with outsiders while the
first jury’s deliberations were ongoing. We have no quar-
rel with the Eleventh Circuit’s practical observation that
“the further along deliberations proceed, the more diffi-
cult it becomes to disregard them and begin anew.”
United States v. Kopituk, 690 F.2d 1289, 1310-11 (11th
Cir. 1982). Kopituk also held, however, even before the
amendment to Rule 24, that even though
the jury spent a total of approximately five days
deliberating prior to substitution of the alternate . . .,
the jurors’ individual assurances that they could
and would begin deliberating anew, combined with
the fact that the jury deliberated for a full week
subsequent to substitution of the alternate juror, is
sufficient indication that the jurors were able to and
did in fact obey the court’s extensive instructions
regarding their duty to eliminate all prior delibera-
tions from their minds and begin with a clean slate.
Id.; see also Edwards, 303 F.3d at 631 (dismissing a
juror after 11 days of deliberations, although not dis-
cussing seating an alternate); United States v. Lamb,
529 F.2d 1153, 1156 (9th Cir. 1975) (overturning verdict
where reconstituted jury deliberated for only 29 minutes).
In the case before us, the original jury deliberated for
eight days and the reconstituted jury deliberated for ten.
As in Kopituk, there is nothing here to suggest that the
jurors did not obey the court’s instructions and begin
deliberations anew. Indeed, the reconstituted jury even
requested additional instructions from the court on
34 Nos. 06-3517 & 06-3528
specific counts in the indictment during its deliberations
that the original jury had not sought.
The record also gives no reason to be especially con-
cerned about alternate DiMartino. She testified before
being seated that every time someone would approach her
about the case while the first jury was deliberating, she
would cut them off immediately. When asked by the
court if there was anything she had heard that could
“interfere with your ability to become—to start fresh with
the jury,” she replied, “No . . . because, like I said, we
never sat down and had a conversation and discussed
anything, what they heard or anything. . . . I would just
go, ‘Please don’t talk about it to me,’ I said, ‘I am still
involved.’ ” As the district court made clear in its denial of
defendants’ motion for new trial, it found these state-
ments to be credible. We have no reason to second-guess
that factual determination.
Rule 24(c) therefore furnishes no basis for a finding
that the district court abused its discretion in replacing
jurors Ezell and Pavlick with alternate jurors DiMartino
and Svymbersky. Defendants have made no showing
that this replacement of jurors does not fall squarely
within the allowable bounds of the new Rule 24. As they
confess in their brief, they seek a holding that “almost
any decision to substitute [during deliberations is] prej-
udicial.” This cannot be the proper standard under the
new Rule 24(c).
V
Moving, at last, away from the jury issues, the defen-
dants claim that the district court erred in excluding
evidence that showed Ryan’s good faith, Ryan’s lack of
fraudulent intent, and the reasonableness of Ryan’s be-
lief about the bona fides of the transactions at issue in
Nos. 06-3517 & 06-3528 35
this case, including those that involved Warner. We re-
view a district court’s evidentiary decisions for abuse of
discretion. United States v. Seals, 419 F.3d 600, 606 (7th
Cir. 2005). Mail fraud is a specific intent crime, and
so defendants are entitled to introduce evidence of good
faith or absence of intent to defraud. United States v.
Longfellow, 43 F.3d 318, 321 (7th Cir. 1994). This court,
however, “do[es] not require that any evidence, no matter
how tangential, irrelevant or otherwise inadmissible, must
be admitted simply because the defendant claims that
it establishes his good faith.” Id. at 321-22.
A
The first evidentiary dispute arose when Ryan wanted
to introduce evidence to the effect that his successor as
Secretary of State, Jesse White, had renewed some of the
leases and contracts at issue here. The district court
excluded this evidence as irrelevant. It reasoned that “the
naked act of some other official, whether he preceded or
followed Ryan in office, does not shed any light on what
Ryan himself intended when he took that same act, absent
evidence that Ryan actually considered the official’s act.”
It continued, “[t]he decision to renew a lease is, moreover,
one influenced by many factors other than the decision to
enter into a lease in the first place.” The question for us
is whether this decision was an abuse of the district
court’s discretion.
Many of the leases at issue here involved property
for long-term operations, such as DMV locations and a
police department office. These are not the type of facil-
ities that the state can pack up every few years and move
just because rent is slightly cheaper a few blocks away.
Thus, a later administrative decision to renew such a
lease shows only that the lease is not so disadvantageous
36 Nos. 06-3517 & 06-3528
to the state that it outweighs the costs that would be
required to move to a new location. It sheds no light on
whether the original lease or contract was proper.
In making its determination, the district court was not
applying any sort of “inflexible rules.” In Riordan v.
Kempiners, one of the cases the defendants cite, the
district court had drawn a line in time and prohibited
all evidence that developed after a specific date. 831 F.2d
690, 698 (7th Cir. 1987); see also CERAbio LLC v. Wright
Med. Tech., Inc., 410 F.3d 981, 993 (7th Cir. 2005) (holding
that evidentiary exclusions should be made based on the
substantive value of the evidence rather than the date of
the evidence). The district court’s ruling here, in contrast,
was based on the substance of the evidence that would
be offered and the court’s evaluation of the probative
value of that evidence.
The limited nature of the district court’s ruling be-
comes even more evident when one sees that it did not
even apply to all evidence post-dating the leases and
contracts. Both the prosecution and defense provided
experts to assess the soundness of the contracts and
leases at issue in this case. The government’s expert
offered only a retrospective analysis of the extent to
which some of the subject leases reflected fair market
value. The defense expert, in contrast, appears to have
based his opinion in part on an analysis of leases and
properties that were not available until years after the
leases at issue were awarded.
Defendants therefore had the opportunity to justify the
contracts and leases at issue using economic analysis and
expert testimony; they were not deprived of the opportu-
nity to assess these deals with the benefit of hindsight.
This means as well that the defense was not arbitrarily
foreclosed from putting forth relevant evidence, the error
criticized in CERAbio, 410 F.3d at 994.
Nos. 06-3517 & 06-3528 37
The defendants’ argument that prosecution witness
Glen Good’s testimony unfairly crossed some temporal line
fails because there was no such line. The proper compari-
son, in any event, is not between Good’s testimony and
evidence that Secretary White renewed the leases. It is
between Good’s testimony and the defendants’ evidence
about lease decisions and the results of those decisions
during Ryan’s tenure as Secretary of State. Good, who
was in charge of property maintenance during Ryan’s
term in office, testified about the soundness of particular
lease decisions during Ryan’s tenure. Good’s testimony
also rebutted the argument that Ryan made lease decisions
only on the basis of recommendations from his staff.
Ryan was free at trial to introduce evidence about his
decision-making process for the leases and contracts
in question, and he took advantage of that opportunity.
The defense was also allowed to cross-examine Good
extensively (over the government’s objection) about the
information he omitted from his reports about certain
various properties at issue in this case.
It is conceivable that another court would have reached
different conclusions about the relevance of this ex-
cluded evidence, but that does not mean that the district
court abused its discretion here. We conclude that its
ruling was one that it reasonably could have made, that
it was not a result of arbitrary line-drawing, and thus
that it did not give rise to reversible error.
B
The district court used a similar rationale to exclude
evidence of rate increases made by other Illinois Secretar-
ies of State. The defendants claim that the district court
“refused to admit defense evidence showing that such
rate increases were a regular practice of the SOS.” This
mischaracterizes the district court’s holding. The specific
38 Nos. 06-3517 & 06-3528
rate increases by other officials were excluded where
they played no role in Ryan’s rate increase. The court
allowed Ryan to introduce evidence that his predecessor
(and his predecessor’s advisors) recommended a rate
increase as overdue, but held off on the increase for
election reasons. This type of evidence is arguably proba-
tive because it provides support to Ryan’s contention
that the increase was a sound policy decision. See Long-
fellow, 43 F.3d at 322.
The defendants claim that the rate hikes approved by
other Secretaries of State were “evidence of the routine
practice of [an] organization[ ]” and should have been
allowed as evidence under FED. R. EVID. 406. A “routine
practice,” however, requires more repetition and mechani-
zation than the occasional rate decisions here displayed.
See Advisory Committee Notes for Rule 406 (emphasizing
the need for a “repeated specific situation” before some-
thing qualifies as “habit”). The Note comments that
“[e]quivalent behavior on the part of a group is desig-
nated ‘routine practice of an organization’ in the rule.” The
practice that the defense wanted to demonstrate here
was not the type of “regular response to a repeated specific
situation” required for admission under Rule 406. Here
again, we conclude that the district court did not abuse
its discretion by excluding the proffered evidence.
C
Finally, the defendants challenge the exclusion of cer-
tain policy decisions that Ryan made while in office. The
defense argues that “the prosecution attacked Ryan at
trial as [a] ‘greedy,’ ‘shameless’ politician who treated his
public offices as ‘personal kingdoms’ in which he was
‘pillaging the state, stealing from the taxpayers’ in breach
of the public’s trust.” Ryan, they argue, was entitled to an
opportunity to correct this impression. If these quotes
Nos. 06-3517 & 06-3528 39
had come from the government’s case-in-chief, then they
might have a point. But they did not. The quoted state-
ments come from the prosecution’s closing argument. The
government did not use evidence of Ryan’s general dis-
honesty in its case-in-chief; it focused on the bad faith
associated with the criminal acts charged in this case. The
district court permitted Ryan to introduce evidence of
many of his policy accomplishments and goals. It also
allowed him to call numerous character witnesses, who
testified about such achievements as strengthened drunk
driving laws, improvements in the state library system,
the development of an organ donor registry, and reform of
Illinois’s death penalty laws. The government’s closing
argument was therefore an allowable response.
The defendants also point to a particular government
witness, Patrick Quinn, whom the defense sought to
impeach through his opposition to Ryan’s death penalty
work. The district court was prepared to allow the de-
fense to impeach Quinn, but it was willing to permit
reference only to a “public policy” disagreement, not to
the death penalty. Ryan chose not to impeach the wit-
ness. The defendants have not shown how they were
prejudiced by this limitation.
In a more general argument, the defendants contend
that had the jury been able to view the charged acts
alongside the excluded evidence of Ryan’s policy work, it
would have seen that the evidence overall “did not fairly
indicate the existence of a scheme to defraud.” Worthington
v. United States, 64 F.2d 936, 942 (7th Cir. 1933). The link
between the excluded evidence and the charged acts,
however, is not so direct.
Had it existed, evidence that Ryan steered leases or
contracts away from his financial benefactors might have
cast some doubt on the existence of the conspiracy and
scheme charged. But Ryan’s work on issues of importance
40 Nos. 06-3517 & 06-3528
to the public, such as the death penalty, important
and admirable though it may have been in many people’s
eyes, does nothing to show that Ryan was not at the same
time accepting financial benefits in exchange for other
specific, official actions. So long as the government did
not allege specifically that all of Ryan’s acts as Governor
were for his own financial gain, the district court was
within its rights to exclude discussion of various official
acts that were wholly disconnected from the charges
in this case. Courts have held that excluding evidence of
satisfied customers is not an abuse of discretion in cases
charging a defendant with a fraudulent scheme. See, e.g.,
United States v. Elliott, 62 F.3d 1304, 1308 (11th Cir.
1995). Excluding evidence of activities even further
removed from the charged acts is not an abuse of discre-
tion either.
VI
In the next part of their appeal, the defendants raise
a question of law: is it permissible for the government to
charge and prove the State of Illinois itself is an “enter-
prise” for RICO purposes, and secondarily, did the dis-
trict court err when it instructed the jury that the State
of Illinois is a “legal entity.” We consider these argu-
ments in turn.
A
The question whether a state may be an “enterprise” for
purposes of a RICO prosecution is one of first impression.
The defendants’ first reason for arguing that it cannot
be relies on the remedies allowed under RICO. The
statute provides for remedies including court-ordered
“dissolution or reorganization of any enterprise,” 18 U.S.C.
§ 1964(a). Since it is obvious that no court would have the
Nos. 06-3517 & 06-3528 41
power to disband a sovereign state, the defendants argue
that the remedial provisions of the law implicitly mean
that the state cannot be a RICO enterprise.
The only problem with this attack is that the Supreme
Court rejected it long ago:
Even if one or more of the civil remedies might be
inapplicable to a particular illegitimate enterprise, this
fact would not serve to limit the enterprise concept.
Congress has provided civil remedies for use when
the circumstances so warrant. It is untenable to argue
that their existence limits the scope of the criminal
provisions.
United States v. Turkette, 452 U.S. 576, 585 (1981). RICO
provides a menu of remedies; it does not matter if one or
more of the items on that menu might be unavailable in a
particular case. Instead, what is important, according to
Turkette, is that Congress meant the term “enterprise” to
be “inclusive.” 452 U.S. at 586.
This court has held that other public bodies, which
similarly cannot be dissolved, may be the “enterprise”
through which a RICO conspiracy or operation proceeds.
See, e.g., United States v. Murphy, 768 F.2d 1518, 1531
(7th Cir. 1985) (the Circuit Court of Cook County); United
States v. Lee Stoller Enters., Inc., 652 F.2d 1313, 1318-
19 & n.9 (7th Cir. 1981) (en banc) (RICO enterprise can be
a public body, citing cases). We conclude that for purposes
of defining a RICO “enterprise” there is no difference
between the state and its subdivisions.
The defendants next argue that comity interests pre-
vent the use of a state as a RICO enterprise in a criminal
case. The only court to consider directly whether a state
can be a RICO enterprise was the District Court of Mary-
land. United States v. Mandel, 415 F. Supp. 997 (D. Md.
1976). The defendants urge us to accept the reasoning
42 Nos. 06-3517 & 06-3528
in Mandel, which found that the State of Maryland was
not a RICO enterprise in the prosecution of a Maryland
governor. 415 F. Supp. at 1021. District court opinions
have no authoritative effect on this court, so we look to
the analysis of district courts only to inform, rather
than instruct, our decisions. RLJCS Enters. v. Prof ’l
Benefit Trust Multiple Employer Welfare Benefit Plan &
Trust, 487 F.3d 494, 499 (7th Cir. 2007).
It is enough to note that Mandel did not limit its analy-
sis to states as potential RICO enterprises. The district
court there expressed concern about the possibility of
finding that any public entity was a RICO enterprise. 415
F. Supp. at 1020. Since Mandel was decided, the Fourth
Circuit has criticized its analysis on several occasions.
United States v. Long, 651 F.2d 239, 241 (4th Cir. 1981);
United States v. Altomare, 625 F.2d 5, 7 (4th Cir. 1980);
United States v. Baker, 617 F.2d 1060, 1061 (4th Cir.
1980). In each of these cases, the Fourth Circuit explicitly
rejected the rationale of Mandel. Long, for example,
referred to Altomare and Baker, noting that “[i]n two
recent RICO cases . . . we have indicated our disap-
proval of that [Mandel] decision. We have held, in accord
with the majority of the cases, that RICO should be
construed to include public entities as enterprises.” 651
F.2d at 241.
Long justified the use of major governmental entities
as RICO enterprises in indictments, stating that “[n]either
the Act nor the courts’ interpretation of it support the
contention that its enforcement threatens the discretion
state officials must exercise in the discharge of their
duties[, but instead] . . . [t]he Act sustains, rather than
threatens, the integrity of the South Carolina Senate,”
which was the named RICO enterprise in that case. 651
F.2d at 241. Our sister circuits have reached similar
conclusions about the use of governmental entities as
Nos. 06-3517 & 06-3528 43
RICO enterprises. See, e.g., United States v. Angelilli, 660
F.2d 23, 33 (2d Cir. 1981) (“[W]e view the language of
§ 1961(4), defining enterprise, as unambiguously encom-
passing governmental units, and we consider that the
purpose and history of the Act and the substance of
RICO’s provisions demonstrate a clear congressional
intent that RICO be interpreted to apply to activities
that corrupt public governmental entities.”); United States
v. Frumento, 563 F.2d 1083, 1091 (3d Cir. 1977) (com-
paring the Commonwealth of Pennsylvania to a major
corporation and concluding that if the RICO enterprise
concept does not reach governmental entities, then
“private business organizations legitimately owned and
operated by the states . . . would be open game for racke-
teers”); United States v. Freeman, 6 F.3d 586, 597 (9th Cir.
1993) (“We adopt the view of seven circuit courts and hold
that a governmental entity may constitute an ‘enterprise’
within the meaning of RICO. ”).
The decision that came closest to addressing the issue
at hand is the Sixth Circuit’s en banc opinion in United
States v. Thompson, 685 F.2d 993 (6th Cir. 1982). There
the court held that “The Office of the Governor” could be
the enterprise in a RICO prosecution. Id. at 998-1000. The
court supported its conclusion as follows:
It seems clear to us that those who played the leading
roles in the enactment of the RICO statute thoroughly
understood organized crime’s impact upon govern-
ment entities. Senator McClellan, the chief sponsor of
this bill and chairman of the committee which drafted
it, said: “To exist and to increase its profits, Mr.
President, organized crime has found it necessary to
corrupt the institutions of our democratic processes,
something no society can tolerate.” Further, he said,
“For with the necessary expansion of governmental
regulation of private and business activity, its power
to corrupt has given organized crime greater control
44 Nos. 06-3517 & 06-3528
over matters affecting the everyday life of each citi-
zen.”
...
Representative St. Germain told the House that “the
greatest danger from organized crime lies not in its
provision of illegal goods and services, but in its
penetration of the country’s legitimate institutions.”
Id. at 1000 (internal citations omitted).
The Sixth Circuit noted its concern that an indictment
naming the governor’s office as a RICO enterprise could
be unnecessary and disruptive in some cases, and it
recommended that prosecutors should try to avoid such
charges in the future if possible. The court suggested that
a modified indictment might work better in similar, future
cases, based on the RICO definition of “enterprise” as
“includ[ing] any individual, partnership, corporation,
association, or other legal entity, and any union or group
of individuals associated in fact although not a legal
entity.” Id. (quoting 18 U.S.C. § 1961(4)). The court
stated that “the language which could and we believe
preferably should have been employed, would have al-
leged that the three defendants constituted a ‘group of
individuals associated in fact although not a legal entity
which made use of the Office of Governor of the State of
Tennessee’ for the particular racketeering activities
alleged in the indictment.” Thompson, 685 F.2d at 1000.
We endorse the Sixth Circuit’s call for caution. We
also agree with the Sixth Circuit’s ultimate conclusion
that the prosecution’s approach to this issue in cases
such as Thompson and the case at hand may often not
be absolutely necessary under RICO, but it is not forbid-
den. Some cases, however, are exceptional, and ours is
one of them. In such a case, the prosecution may have
no real alternative to naming the state as the RICO
Nos. 06-3517 & 06-3528 45
enterprise. (This of course does not mean that the state
itself has violated any federal law; it may instead be a
victim of the overall scheme, as are many RICO enter-
prises.) In such a case, the use of the state as the RICO
enterprise in the indictment is analogous to the courts’
treatment of the state as a market participant in a dor-
mant commerce clause case. If the CEO of a major corpora-
tion, who ascended to that position from other senior
executive positions, engaged in comparable activities, we
would not only accept but expect a RICO conspiracy
indictment with the corporation itself named as the
RICO enterprise, even knowing that the overwhelming
majority of employees, shareholders, and consumers of the
corporation were innocent of wrongdoing. The situation
here is the same.
In this case, the prosecution thought that it had identi-
fied an ongoing scheme to defraud the State of Illinois
through the illegal use of two of the most significant
executive branch offices of the state and of the state’s
electoral processes during Ryan’s campaign for Governor
in 1998. The scheme revolved around an elected official
throughout his tenure in these two offices—Secretary of
State and Governor—and during the time he was a
candidate for the latter office. No legal rule prohibited the
prosecution from concluding that there was no single
entity or office that it could have identified, short of the
state as a whole, that would have encompassed the
enterprise that was used by the defendants. In these
unusual circumstances, comity interests do not override
the broad language of RICO, as interpreted in Turkette.
The district court did not err by allowing the state to
be the RICO enterprise in this RICO conspiracy prosecu-
tion.
46 Nos. 06-3517 & 06-3528
B
We now turn to the district court’s instructions to the
jury on the question of the state as a RICO enterprise. All
the district court said was that the State of Illinois is a
“legal entity.” Whether that is correct or not is a question
of law, and as such, it was not one that could have been
left for the jury to decide. See United States v. Lee, 439
F.3d 381, 388 (7th Cir. 2006) (upholding the district
court’s inclusion of a definition of “organization” in its
instructions where the statute required that “the Gov-
ernment must prove . . . that the defendant uttered or
possessed a counterfeit and forged security of an organiza-
tion”). The district court told the jury that the government
had to prove three things, including that the State of
Illinois was an enterprise. Some “persons” (legal or real)
may be “entities,” but they still may not meet the statu-
tory definition of “enterprise.” See, e.g., Turkette, 452 U.S.
at 582 (examining the characteristics of a criminal struc-
ture to determine whether it was an “enterprise” under
RICO). Nevertheless, because governmental or public
entities fit within the definition of “enterprise” for pur-
poses of RICO, this court has often rejected objections
to jury instructions that a governmental entity is an
“enterprise.” See United States v. Hocking, 860 F.2d 769,
778 (7th Cir. 1988) (“In light of our clear precedent, appel-
lant’s claim that the district court erred in instructing
the jury that the IDOT is an ‘enterprise’ within the
reach of § 1962(c) is rejected.”); see also James Morrison
Mecone et al., Racketeer Influenced and Corrupt Organ-
izations, 43 AM. CRIM. L. Rev. 869, 881 (2006) (“When the
enterprise under consideration is a legal entity, the
enterprise element is satisfied by the mere proof that
the entity does in fact have a legal existence.”). We con-
clude, therefore, that the district court did not err when
it accurately informed the jury that the State of Illinois
is a legal entity.
Nos. 06-3517 & 06-3528 47
VII
The next argument that Warner and Ryan present is
that the term “intangible right to honest services” in the
mail fraud statutes under which they were convicted, 18
U.S.C. §§ 1341 (basic mail fraud), 1346 (definition of
“scheme or artifice to defraud” includes deprivation of
intangible right to honest services), is unconstitutionally
vague. The district court’s instructions to the jury, they
continue, “mirrored” this vagueness.
The constitutionality of a statute is an issue of law that
is reviewed de novo. United States v. Hausmann, 345 F.3d
952, 958 (7th Cir. 2003). The defendants acknowledge that
this court recently upheld the constitutionality of the
“intangible right to honest services” term in the federal
mail fraud statute. Hausmann, 345 F.3d at 958. The
constitutionality of § 1346 has repeatedly been challenged,
and every circuit to address this issue has upheld it, even
though the rationales have differed. See, e.g., United
States v. Rybicki, 354 F.3d 124, 132 (2d Cir. 2003) (en
banc); United States v. Bryan, 58 F.3d 933, 941 (4th Cir.
1995); United States v. Gray, 96 F.3d 769, 776-77 (5th Cir.
1996); United States v. Brumley, 116 F.3d 728, 732 (5th
Cir. 1997) (en banc); United States v. Frost, 125 F.3d 346,
370-71 (6th Cir. 1997); United States v. Frega, 179 F.3d
793, 803 (9th Cir. 1999); United States v. Welch, 327 F.3d
1081, 1109 n.29 (10th Cir. 2003); United States v. Waymer,
55 F.3d 564, 568 (11th Cir. 1995). There have been dissent-
ing opinions in two circuits’ opinions on this issue. Rybicki,
354 F.3d at 162-64 (Jacobs, J., dissenting); Brumley, 116
F.3d at 742-47 (Jolly & DeMoss, JJ., dissenting) (objecting
to the statute only as applied in that case).
Given this unanimity on the central point, our con-
cern here is only with the question whether the district
court’s instructions properly reflected this court’s ap-
proach to the details of the claim. Previous holdings on
48 Nos. 06-3517 & 06-3528
this issue are not necessarily dispositive because “vague-
ness challenges to statutes which do not involve First
Amendment freedoms must be examined in the light of
the facts of the case at hand.” United States v. Powell,
423 U.S. 87, 92 (1975). “The void-for-vagueness doctrine
requires that a penal statute define the criminal offense
with sufficient definiteness that ordinary people can
understand what conduct is prohibited and in a manner
that does not encourage arbitrary and discriminatory
enforcement.” Posters ‘N’ Things, LTD v. United States,
511 U.S. 513, 525 (1994). If the defendants could not
have known that the conduct underlying their convic-
tions could be considered “depriv[ing] another of the
intangible right of honest services,” 18 U.S.C. § 1346, then
the statute is void for vagueness as applied here.
In Hausmann, we held that
under the intangible-rights-theory of federal mail or
wire fraud liability, a valid indictment need only
allege, and a finder of fact need only believe, that a
defendant used the interstate mails or wire communi-
cations system in furtherance of a scheme to misuse
his fiduciary relationship for gain at the expense of
the party to whom the fiduciary duty was owed.
345 F.3d at 956. In United States v. Bloom, we similarly
concluded that “[m]isuse of office (more broadly, misuse
of position) for private gain is the line that separates
run of the mill violations of state-law fiduciary duty . . .
from federal crime.” 149 F.3d 649, 655 (7th Cir. 1998). The
opinion continued, “[a]n employee deprives his employer
of his honest services only if he misuses his position (or
the information he obtained in it) for personal gain.” Id.
at 656-57.
In the present case, we are facing the same type of
conduct that was before the court in Hausmann and
Bloom. The defendants claim that the jury instructions
Nos. 06-3517 & 06-3528 49
in this case contradicted the holdings in those two cases,
but we disagree. Those cases do not require the jury to
find a violation of a specific state law in order to convict.
The court told the jury that “the government [must]
prove[ ] beyond a reasonable doubt that the public official
accepted the personal financial benefits with the under-
standing that the public official would perform or not
perform acts in his official capacity in return.” The court
continued that the receipt of “personal or financial bene-
fits . . . does not, standing alone, violate the mail fraud
statute. . . . Instead that receipt violates the law only if
the benefit was received with the public official’s under-
standing that it was given to influence his decision-mak-
ing.” The court also told the jury that “[n]ot every in-
stance of misconduct or violation of a state statute by
a public official or employee constitutes a mail fraud
violation.”
The portion of the jury instructions quoted by the
defendants about “conflict of interest” is taken out of
context, as the jury instructions explicitly stated that a
conflict of interest violated the statute only “if the other
elements of the mail fraud statute are met.” The district
court explained that the government must also show
that the public official allowed or accepted the conflict
of interest with the understanding or intent that she
would perform acts within her official capacity in return.
We are unpersuaded that the references to state law
in the jury instructions were phrased in a way that
makes the use of the mail fraud statute here unconstitu-
tional. Many of the state law provisions in the instruc-
tions explained what kinds of financial transactions are
not prohibited for state officials. This explanation was
more likely to undermine than to assist the prosecution
in showing the defendants’ intent to deprive Illinois
citizens of Ryan’s honest services. The other cited provi-
sions of Illinois law identified for the jury various ways
50 Nos. 06-3517 & 06-3528
in which a public official could “misuse his fiduciary
relationship,” but the instructions as a whole unambigu-
ously required the prosecution to prove that misuse of
the office was intended for personal gain, as Bloom and
Hausmann held.
We also note that this court in Bloom did not call the
relevant section of the mail fraud statute a “common-law
federal crime[ ],” as defendants suggest. It merely anal-
ogized this section to common law crimes on the way
to concluding that the “intangible right” term needs
clear boundaries. 149 F.3d at 656. A court’s interpreta-
tion of a term in a federal criminal statute does not
create a federal common law crime.
Although the intangible rights theory of federal mail
fraud may have its problems when applied to other
fact settings, it is not unconstitutionally vague as applied
here. The district court here focused the jury on the
important points needed for conviction, and in so doing,
gave instructions consistent with Hausmann and Bloom.
VIII
We turn, now, to Warner’s assertion that the court erred
by permitting the joinder of his trial with Ryan’s and
denying his motion for severance. This court has con-
strued FED. R. CRIM. P. 8, which governs joinder in crimi-
nal trials, “broadly to allow liberal joinder in order to
enhance judicial efficiency.” United States v. Stillo, 57
F.3d 553, 556 (7th Cir. 1995). We have repeatedly stated
that “joint trials are beneficial not only for efficiency but
because they limit inconvenience to witnesses, avoid de-
lays in bringing defendants to trial, and allow the ‘total
story’ to be presented to a single jury.” Id. at 557. We
review misjoinder claims de novo. United States v. Lanas,
324 F.3d 894, 899 (7th Cir. 2003).
Nos. 06-3517 & 06-3528 51
A
Joinder is proper, under Rule 8(b), if the defendants
“are alleged to have participated in the same act or
transaction, or in the same series of acts or transactions,
constituting an offense or offenses.” Under the rule, “[t]he
defendants may be charged in one or more counts together
or separately”; all defendants “need not be charged in
each count.” Rule 8(b) is satisfied when the defendants
are “charged with crimes that well up out of the same
series of such acts, but they need not be the same crimes.”
United States v. Pigee, 197 F.3d 879, 891 (7th Cir. 1999),
see also United States v. Stewart, 433 F.3d 273, 314 (2d
Cir. 2006); United States v. Eufrasio, 935 F.2d 553, 567 (3d
Cir. 1991). “[T]he mere fact that two conspiracies have
overlapping memberships will not authorize a single
indictment if the conspiracies cannot be tied together
into one conspiracy, one common plan or scheme,” but a
“conspiracy and its cover-up are parts of a common plan.”
United States v. Velasquez, 772 F.2d 1348, 1353-54 (7th
Cir. 1985).
Whether there was an error in joining a defendant is
determined by looking only at the indictment. Lanas, 324
F.3d at 899. In this case, the final indictment contained
22 counts. Count One was the RICO conspiracy for
which both Warner and Ryan were charged. Count Two
was the mail fraud scheme, which is listed in Count One
as a racketeering act and a means and method of the
RICO conspiracy; again, it charged both Warner and Ryan.
Of the remaining 20 counts, both were charged in six
(Counts Three, Four, Five, Seven, Eight, and Nine), Ryan
alone was charged in ten (Count Six, Counts Ten through
Thirteen, and Counts Eighteen through Twenty-Two), and
Warner alone was charged in four (Counts Fourteen
through Seventeen). (The defendants were acquitted on
Counts Nine and Ten.)
52 Nos. 06-3517 & 06-3528
Examining the indictment, we see that both defendants
were charged in the RICO conspiracy and the mail fraud
scheme, the two primary courses of conduct charged in
the indictment. The mail fraud scheme was also part of
the RICO conspiracy. In Velazquez, the court found mis-
joinder of one count because “[t]he indictment does
not relate those charges to any of the charges against
the other defendants named in the indictment, and the
defect is not merely a technical oversight in pleading.”
Velasquez, 772 F.2d at 1353. By contrast, in this case, all
of the conduct in Counts One through Seventeen relates
to the charges in either the RICO conspiracy, mail fraud
scheme, or both, which are charged against both Warner
and Ryan.
The only charges unconnected to these two schemes
appear in Counts Eighteen to Twenty-Two, Ryan’s tax
fraud charges. This court has held that “[j]oinder of a tax
evasion count is appropriate when it is based upon unre-
ported income flowing directly from the activities which
are the subject of the other counts.” United States v.
Anderson, 809 F.2d 1281, 1288 (7th Cir. 1987). The
tax fraud scheme charged in Count Eighteen was specifi-
cally related to Ryan’s campaign committee “Citizens
For Ryan.” The factual allegations in Count Eighteen
recount Citizens For Ryan’s diversion of funds to pay for
Ryan’s and his family’s personal expenses, “thereby
depriving the IRS of accurate information as to his true
income.” The allegations of Count One, the RICO conspir-
acy charge, state that Ryan was obligated by law to
report on his federal and state tax returns all expendi-
tures by Citizens For Ryan that were made for personal
expenses. Count One also states that part of the modus
operandi of the RICO conspiracy was the provision of
“personal and financial benefits to, and for the benefit of,
defendant Ryan, Ryan family members, third parties
affiliated with Ryan, and Citizens For Ryan . . . for the
Nos. 06-3517 & 06-3528 53
purpose of influencing and rewarding Ryan in the exer-
cise of Ryan’s official authority.” From the language of
the indictment, we can see that the tax fraud scheme
and the RICO conspiracy scheme are part of “the same
series of acts or transactions, constituting an offense or
offenses.” FED. R. CRIM. P. 8(b). Many of the same underly-
ing facts—the movement of funds through Citizens For
Ryan, for example—are necessary to prove both claims.
All of this is enough to explain why we find no improper
joinder of the charges against Warner with those against
Ryan.
B
Because joinder was proper under Rule 8(b), Warner
must show that he has suffered from “prejudicial joinder,”
which is distinct from misjoinder. “If the joinder of offenses
or defendants in an indictment, an information, or a
consolidation for trial appears to prejudice a defendant
or the government, the court may order separate trials of
counts, sever the defendants’ trials, or provide any other
relief that justice requires.” FED. R. CRIM. P. 14(a). In order
to prevail on his argument that the district court erred
in denying his motion for severance under FED. R. CRIM. P.
14(a), it is necessary (though not sufficient) for Warner
to show prejudice. Zafiro v. United States, 506 U.S. 534,
538-39 (1993); see also United States v. Souffront, 338 F.3d
809, 831 (7th Cir. 2003) (citing United States v. Lane, 474
U.S. 438, 449 (1986)). “Limiting instructions . . . often
will suffice to cure any risk of prejudice,” and tailoring
relief from prejudice is left to the district court’s discre-
tion. Zafiro, 506 U.S. at 539-41. Where joinder of defen-
dants was proper, “a district court should grant a sever-
ance under Rule 14 only if there is a serious risk that a
joint trial would compromise a specific trial right of one
of the defendants, or prevent the jury from making a
54 Nos. 06-3517 & 06-3528
reliable judgment about guilt or innocence.” Id. at 539.
“Actual prejudice” does not exist just because “separate
trials would have given a defendant a better opportunity
for an acquittal.” Rather, the defendant must have been
“deprived of his right to a fair trial.” United States v.
Rollins, 301 F.3d 511, 518 (7th Cir. 2002). The denial of
a motion for severance is reviewed for abuse of discre-
tion. Id.Warner argues he suffered prejudice because the joinder
violated his substantial rights in multiple ways. He ob-
jects first to the fact that his case was linked at all with
Ryan’s, but this argument goes nowhere, as the indictment
demonstrates that the charges against him were closely
connected with those against Ryan. Had he been tried
separately, he would not have enjoyed the status of “an
unknown businessman,” as he suggests; he would have
still faced charges as a co-conspirator that centered
around the activities of the former Governor. Therefore,
Warner cannot show that the publicity around Ryan’s trial
affected his substantial rights in this case.
Next, Warner alleges that Ryan’s out-of-court statements
to the FBI were testimonial and therefore his constitu-
tional right to confrontation was violated. These state-
ments were not admitted for the truth of the matter
asserted, however, and therefore are not hearsay and do
not implicate the Confrontation Clause. Crawford v.
Washington, 541 U.S. 36, 59 n.9 (2004). There was also
no Bruton issue, because the statements admitted at
trial were not inculpatory and did not amount to a con-
fession from Ryan. Bruton v. United States, 391 U.S. 123,
127 (1968). The district court excluded the statements
that it viewed as potentially inculpatory, including all of
Ryan’s statements to the FBI naming Warner except
those with innocuous or uncontested references.
Warner also contends that significant portions of the
evidence introduced against Ryan could not have been
Nos. 06-3517 & 06-3528 55
introduced against him in his own trial. The record does
not bear this out. Much of the evidence with which Warner
takes issue described acts that were part of the con-
spiracy charged against both defendants in Count One
or the scheme charged against both defendants in Count
Two. “[E]vidence of one participant’s actions in further-
ance of a scheme to defraud is admissible against the
other participants in that scheme, just as it is in a con-
spiracy case.” United States v. Adeniji, 221 F.3d 1020, 1027
(7th Cir. 2000).
The only significant evidence that was unrelated to the
charges against Warner was some evidence pertaining
to Ryan’s tax fraud scheme. Yet even these acts derived
from a common set of facts that made up the RICO con-
spiracy and mail fraud scheme. Therefore, much of the
evidence of “a decade of state business, as well [as] . . .
Ryan’s lifestyle and personal and political campaign
finances,” was properly part of the evidence that was
admissible against Warner because of Counts One and
Two. For these reasons, the district court’s denial of
Warner’s proposed limiting instruction for the tax counts
was appropriate. The tax evidence relating only to Ryan
was minor compared to the evidence presented to show
the conspiracy and mail fraud scheme. The district court
did not abuse its discretion in curing any possible preju-
dice from joinder through limiting instructions rather
than severance. See Zafiro, 506 U.S. at 539.
Finally, Warner argues that the jurors were not follow-
ing the court’s instructions generally and therefore the
limiting instructions were ineffective. We are reluctant
to call into question the institution of the jury in this
way. As we said in United States v. Hedman, we may
examine “whether it is within the jury’s capacity, given the
complexity of the case, to follow admonitory instruc-
tions and to keep separate, collate and appraise the
evidence relevant only to each defendant” in considering
56 Nos. 06-3517 & 06-3528
whether severance was improperly denied. 630 F.2d 1184,
1200 (7th Cir. 1980) (internal quotation marks omitted).
Nothing in this record convinces us that this jury was
either unable or unwilling to follow the careful instruc-
tions that the district court gave. Warner does not claim
that there was insufficient evidence to convict him on
any of the charges against him (although we note the
district court threw out Ryan’s convictions on two
counts for insufficiency of the evidence).
We conclude that Warner has not shown actual prejudice
resulting from the joinder of his case with Ryan’s. To the
extent that there was a risk of prejudice, the district
court took appropriate steps to exclude evidence, restrict
the use of evidence, and provide specific limiting instruc-
tions to the jury. It did not abuse its discretion under
Rule 14(a) by denying Warner’s motion for severance.
IX
Finally, Ryan alone also asks this court to hold that it
was error to compel the former chief legal counsel in the
Secretary of State’s office to provide grand jury testimony
about his work with then-Secretary of State Ryan. This
compelled testimony, Ryan argues, violated his attorney-
client privilege. We decline to consider this issue for two
reasons. First, Ryan has failed to demonstrate what
legally cognizable prejudice he suffered from that deci-
sion. It is also not clear what relief he is seeking for this
alleged infringement of the privilege. Generally, a defen-
dant challenging an indictment seeks to have the indict-
ment dismissed, but the relief Ryan seeks in this appeal
is a new trial. This would do nothing to correct an error
in the indictment. The Supreme Court has held that a
petit jury’s subsequent guilty verdict means not only
that there was probable cause to believe that the
Nos. 06-3517 & 06-3528 57
defendants were guilty as charged, but also that they
are in fact guilty as charged beyond a reasonable
doubt . . . [and therefore] any error in the grand jury
proceeding connected with the charging decision was
harmless beyond a reasonable doubt.
United States v. Mechanik, 475 U.S. 66, 69 (1986). Ryan
suggests no reason why this general rule should not
apply here. Even in cases where indictments can be
dismissed, a court “may not dismiss an indictment for
errors in grand jury proceedings unless such errors
prejudiced the defendants.” Bank of Nova Scotia v. United
States, 487 U.S. 250, 254 (1988).
Ryan states in his brief that he “re-raise[s] the issue
here to preserve it for further review.” While parties are
free to make a limited argument in order to preserve
the issue for further review, they must say something to
allow this court to consider the argument on its merits,
even if they have every expectation that we will reject it.
Ryan has not developed this point enough for us to give
it meaningful consideration; we thus consider it waived.
See United States v. Jones, 224 F.3d 621, 626 (7th Cir.
2000).
Second, this court has already spoken on this point.
Ryan was entitled to and did appeal the district court’s
determination in 2001 that the attorney-client privilege
did not attach to his communications with the chief legal
counsel in the Secretary of State’s office. In re Witness
Before the Special Grand Jury 2000-2, 288 F.3d 289 (7th
Cir. 2002). We considered and rejected this argument
at that time. Id. at 295. That is the law of the case, and
Ryan has given us no reason to deviate from it. See In re
Oil Spill by the Amoco Cadiz, 954 F.2d 1279, 1291 (7th
Cir. 1992). We acknowledge that the Second Circuit, in a
different case involving communications between a gover-
nor and his counsel, has concluded that the privilege
58 Nos. 06-3517 & 06-3528
applies. See In re Grand Jury Investigation, 399 F.3d 527,
535 (2d Cir. 2005). The Second Circuit acknowledged the
tension between its holding and the decisions of three
other circuits, including our court’s 2002 decision. 399
F.3d at 533 (noting contrary decisions from the Seventh,
Eighth, and D.C. Circuits); see generally In re Lindsey, 332
U.S. App. D.C. 357, 158 F.3d 1263 (D.C. Cir. 1998); In re
Grand Jury Subpoena Duces Tecum, 112 F.3d 910 (8th Cir.
1997). As matters now stand, three other circuits have
weighed in on this issue, two of which agree with us. Even
apart from law-of-the-case considerations, we respect-
fully decline to re-open that issue here.
X
We conclude with two final comments about this appeal.
First, like all defendants who appeal their convictions,
Ryan and Warner have presented certain arguments to
this court, and they have elected not to present other
arguments. At oral argument, there was some discussion
of the argument that our dissenting colleague has
emphasized—an argument that they chose not to raise: the
allegation that members of the jury may have had too
much freedom of movement and too much unsupervised
time together, during which the opportunity to engage
in premature discussions of the case may have arisen.
Compare United States v. Dellinger, 472 F.2d 340, 373-74
& n.50 (7th Cir. 1972) (emphasizing need for thorough
voir dire in presence of extensive pretrial publicity). Jury
control measures, however, lie within the discretion of
the district court judge; this is not an area in which a
decision not to sequester, or a decision to permit jurors to
walk around unsupervised, triggers such a strong pre-
sumption of error that we would have to reverse on that
basis even in the absence of both (1) any objection at trial
and (2) any complaint on appeal. See Recuenco, supra.Nos. 06-3517 & 06-3528 59
District courts have no duty to “sequester the jury. . .,
sua sponte, in every case involving prejudicial publicity.”
Margoles v. United States, 407 F.2d 727, 732 (7th Cir.
1969). There is no presumption or rule that sequestra-
tion is ever necessary, although we do not dispute that
it is a good idea in some high-profile cases, and may well
have been the better course here. See United States v.
Carter, 602 F.2d 799, 808 (7th Cir. 1979) (Tone, J., concur-
ring) (noting this and suggesting such a rule may be
preferable). Our opinion, then, should not be taken as
necessarily approving of the practices the district court
adopted for this case; on the other hand, without the
proper objections and briefing, it would be improper for
us even to reach the question of plain error arising from
the lack of sequestration or tighter controls on the jury’s
activities. Managing a jury for a trial that spans six
months is not easy. We can only emphasize that if any
party has an objection to the way the district court is
handling that challenge, it has an obligation to raise
it, preferably early enough in the proceedings that the
court can take prompt corrective measures. If Warner
and Ryan believe that their counsel rendered constitution-
ally ineffective assistance by opting not to raise certain
issues on appeal, they may raise that argument in post-
conviction relief proceedings.
Our colleague in dissent believes that “there is a struc-
tural error because of the jurors’ irreconcilable conflicts of
interest that resulted from the jury questionnaire sit-
uation,” specifically, the investigation of jurors during
deliberations. Respectfully, we cannot agree that this
provides a sound basis for reversal. First, many of the
investigations were done at the request of the defense;
defendants cannot embed a ground for automatic re-
versal into a case in this way. Second, neither the law
nor the course of proceedings in the district court sup-
ports such a characterization.
60 Nos. 06-3517 & 06-3528
Even if the facts about the investigations and any
possible juror reactions and anxieties were clear, we do
not read the Supreme Court’s decisions as including
these kinds of errors in the narrow “structural error” cate-
gory. In Remmer, supra, the Supreme Court addressed
the issue of possible juror bias after the court called in
an FBI agent to question a juror about the incident
without consulting with defense counsel. The Court
remanded the case for a determination of whether “such
contact with the juror was harmless to the defendant.” 347
U.S. at 229. That is not the language of structural error;
prejudice (or harm) is presumed and irrebuttable in
structural error cases. Once we are in “harmless error”
territory, the nature of the error, the strength of the
government’s case, and the actions the court took in
response to problems are all relevant. We have already
explained why we have found the errors that were prop-
erly called to our attention to be harmless, to the extent
that error existed. The Supreme Court has repeatedly
affirmed Remmer and held that “[d]ue process does not
require a new trial every time a juror has been placed in
a potentially compromising situation.” Smith v. Phillips,
455 U.S. 209, 217 (1982). As our own court has noted, “[we]
afford deference to the trial court as the lower court
has the primary responsibility to evaluate possible influ-
ences on the jury . . . [and a] decision to deny a motion for
mistrial based on juror bias therefore is reviewed accord-
ing to an abuse of discretion standard.” United States v.
McClinton, 135 F.3d 1178, 1186 (7th Cir. 1998) (Kanne, J.).
Therefore, even if the defendants had argued that the
problems with the jury that the dissent has described
amounted to structural error, we would reject that charac-
terization in favor of a harmless error analysis.
More importantly, however, there is the problem we
have already noted of finding structural error in the
absence of any such argument asking for such a finding
Nos. 06-3517 & 06-3528 61
on appeal. Even when the Supreme Court’s decisions
call for structural error analysis, the factual basis for
finding such error may be in dispute, as it is here. See,
e.g., Bracy v. Schomig, 286 F.3d 406, 409-11 (7th Cir. 2002)
(en banc) (discussing the type of proof necessary to prove
a trial judge’s bias and, thus, structural error). Remmer
tells us that an interrogation of a sitting juror by law
enforcement is not structural error. Therefore, the in-
vestigation of sitting jurors is not always structural error,
even though there may be a risk, as the dissent points
out, that the investigation is psychologically disturbing to
the jurors. Just as in Bracy, we would need to determine
what facts were necessary to conclude that this type of
juror investigation constituted structural error. Yet the
defendants raise the juror investigation issue only as
support for their argument that the removal of Ezell was
improper. Unlike the dissent, we are unwilling to trans-
form this modest point into an argument that the essential
right to an impartial jury was violated. To repeat our
earlier conclusion, the district court took every possible
step to ensure that the jury was and remained impartial,
and, through credibility findings and findings of fact,
concluded that this one was.
Second, throughout their briefs, the defendants note
that the district court judge described some of her rul-
ings as “difficult” or “close calls.” The impression they
give is that this is some kind of signal that the court
knew it was wrong. We draw no such inference. A district
court’s acknowledgment of the difficulty of an issue, if
anything, is a sign that the court has given it full con-
sideration. When all was said and done, the court made
the necessary determinations of law, which we have
reviewed de novo, and exercised its discretion, which we
have reviewed deferentially. Counsel have argued in
great detail every point that they chose to bring before
us, and we have limited our review of the trial proceed-
62 Nos. 06-3517 & 06-3528
ings to those issues. The high-profile nature of these
proceedings gave rise to some unusual problems with the
jury, but we are satisfied that the court handled them
acceptably. For all of the reasons discussed above, the
district court properly denied the defendants’ new trial
motion. We AFFIRM the judgments of the district court
convicting both Warner and Ryan.
KANNE, Circuit Judge, dissenting. My colleagues in the
majority concede that the trial of this case may not
have been “picture-perfect”—a whopping understate-
ment by any measure. The majority then observes that the
lack of a picture-perfect trial “is, in itself, nothing un-
usual.” I agree that from my experience this is a realistic
proposition. There is rarely perfection in any human
endeavor—and in particular jury trials. What we expect
from our judicial system is not an error free trial, but a
trial process that is properly handled to achieve a fair
and just result. That fair and just result was not achieved
in this case.
The basis for my dissent lies not in the exceedingly
drawn out evidentiary phase of this trial but in the
dysfunctional jury deliberations. As to this point, the
majority has taken great pains—in twenty-nine pages—to
declare the flood of errors regarding the jury delibera-
tions to be merely harmless. To understand the in-
fluences that came into play for the jurors in this case,
I believe it is necessary to place various factors in
overall perspective. Some of the factors would be unre-
markable in a routine criminal case and other factors
are totally astounding in any case. The following are
highlights in summary fashion:
Nos. 06-3517 & 06-3528 63
! In a case that was tried over a six-month period,
the jurors entered and exited the courthouse every
day past scores of television and still cameras
and reporters.
! The jurors used public elevators and brushed
elbows with anyone who happened to be in them.
! Although the court’s intent was not to make the
jurors’ names public, that effort was compromised
when the jurors’ names were used in the in-court
voir dire.
! When jury deliberations were ready to commence
in the most high profile case in Chicago in recent
memory, there was no thought of sequestering the
jury.
! During the initial eight days of deliberations an
apparent holdout juror was purportedly threatened
by other jurors with a charge of bribery.
! Legal research gained by a juror from the internet
was—contrary to the court’s instruction—brought
into the jury room in an effort to persuade the
recalcitrant juror to change her position.
! A reporter for the Chicago Tribune advised the
district court during jury deliberations that the
newspaper’s research had disclosed major incon-
sistencies between answers in a jury question-
naire and public records.
! Based on the information provided by the Chicago
Tribune, the district judge, in concurrence with
all parties, requested the U.S. Attorney’s Office to
conduct a background check on all jurors.
! Jury deliberations were halted following the
Chicago Tribune disclosure and the hiatus contin-
64 Nos. 06-3517 & 06-3528
ued during the investigation of the jurors by the
U.S. Attorney’s Office.
! During the five-day hiatus in jury deliberations,
the exposé by the Chicago Tribune was published
revealing that, indeed, false answers had been
given on a jury questionnaire and that the sitting
jurors were now under investigation.
! Amidst questions raised by the district judge
concerning the necessity of advising the jurors of
their constitutional rights and their right to coun-
sel, the individual examination of six sitting and
three alternate jurors was begun.
! Through the judge’s examination it was deter-
mined that a majority of jurors had provided false
answers under oath and could face criminal prose-
cution. Many jurors who were interrogated told
the district judge that they were scared, intimi-
dated or sorry for what had occurred.
! During the course of the interrogations, the jurors
were granted immunity from prosecution by the
U.S. Attorney.
! Some jurors later hired lawyers in order to repre-
sent their own independent interests arising from
their participation in the trial.
! Two jurors who provided untruthful answers
were excused from further service while others so
situated were retained.
! Before the hiatus in deliberation, jurors informed
the court that they were having a conflict and yet
after the interrogations the judge dismissed one
of the jurors in the conflict without determining
whether she was a holdout juror.
Nos. 06-3517 & 06-3528 65
! Alternate jurors were seated, but not in the order
required by Rule 24.
! After eight days of deliberation by the original
jury, and five days in hiatus, a reconstituted jury
deliberated for ten days and returned the ver-
dicts in this case.
To describe the circumstances surrounding the jury
management and jury deliberations summarized above
as “nothing unusual” is to simply turn a blind eye to the
realities of what occurred—in order to save the efforts
expended during a six-month trial.
Having summarized the factors that played upon the
jurors, I’ll now turn to an analysis of the various errors
that accumulated. The errors in this case can be subdi-
vided and analyzed in two groups. First, there is a struc-
tural error because of the jurors’ irreconcilable conflicts
of interest that resulted from the jury questionnaire
situation. Second, the multiple errors regarding jury
management generally and jury deliberation, when
viewed collectively, were so corruptive that the verdicts
cannot stand.
The Jury Questionnaire Issue
Although the defendants raised issues relating to the
effect of false answers to jury questionnaires and “fearful”
jurors in the trial court, they did not argue those issues on
appeal. Nevertheless, the matters concerning false re-
sponses to the jury questionnaires concern structural
errors in the trial that are not governed by the plain error
analysis provided in Rule 52(b) of the Federal Rules of
Criminal Procedure.
In fact, the structural errors that exist here make this
case “subject to automatic reversal” because they affect
66 Nos. 06-3517 & 06-3528
the “framework in which the trial proceeds, rather than
simply an error in the trial process itself.” Neder v. United
States, 527 U.S. 1, 8 (1999). “Such errors infect the entire
trial process and necessarily render a trial fundamentally
unfair. Put another way, these errors deprive the defen-
dants of basic protections without which a criminal trial
cannot reliably serve its function as a vehicle for determi-
nation of guilt or innocence and no criminal punishment
may be regarded as fundamentally fair.” Id. at 8-9. “Among
these basic fair trial rights that can never be treated
as harmless is a defendant’s right to an impartial ad-
judicator, be it judge or jury.” Gomez v. United States, 490
U.S. 858, 876 (1989) (quoting Gray v. Mississippi, 481 U.S.
648, 668 (1987); Chapman v. California, 386 U.S. 18, 23
(1967)).
As in this case, jurors take two oaths; the first requires
them to answer questions truthfully in voir dire. The
second requires that they faithfully perform their duties
as jurors. A juror who violates either oath can face crimi-
nal prosecution. The Supreme Court has previously up-
held the criminal conviction of a juror who intentionally
lied during voir dire in order to gain entry onto, and then
purposefully hang, the jury. Clark v. United States, 289
U.S. 1 (1933). Although Clark was decided almost seventy-
five years ago, the prosecution of jurors for misconduct
still occurs today. See generally Dyer v. Calderon, 151 F.3d
970, 973 n.1 (9th Cir. 1998) (en banc) (“We do not condone
any lying by jurors; perjury is perjury.”); United States v.
Colombo, 869 F.2d 149, 151 (2d Cir. 1989) (noting that
jurors committing criminal misconduct can be prosecuted
for perjury and contempt of court and can be subject to
restitution claims from the government).
The government instituted this prosecution against
defendants Warner and Ryan. But, of course, the govern-
ment is also responsible for investigating and prosecuting
Nos. 06-3517 & 06-3528 67
crimes involving juror misconduct. The inconsistent jury
questionnaire answers given in this case could lead to
criminal investigations and prosecutions.
The verdicts here were delivered by a jury whose number
included some who themselves faced potential future
criminal prosecution for their actions that occurred dur-
ing this trial. Can sitting jurors fearing possible criminal
investigations and prosecution for conduct involved in the
case under consideration render valid verdicts?
In ruling on the defendants’ post-trial motions in Sep-
tember of 2006, the district judge dismissed the concern of
allowing jurors to return verdicts in the same trial in
which their conduct might subject them to criminal
investigation and prosecution. She concluded that “in spite
of the difficulties generated by this very lengthy, high-
profile trial, these jurors were diligent and impartial.”
R. 867 at pg. 65. “[I]t is implausible that the retained
jurors would harbor any fears of prosecution. As for the
remaining jurors, who were not specifically questioned
about their questionnaires, they would have no reason to
conclude that they were targets of any investigation.” Id.
at pg. 87.
Can this court, as a matter of common sense, accept the
district court’s factual determination that at least some
jurors did not harbor fears of prosecution when they
rendered their verdicts? Can the majority say that these
jurors retained their capacity to render fair and impartial
verdicts that can strip the defendants of their liberty and
result in the defendants receiving significant prison
sentences after the jurors themselves were the subject of
an investigation?
In examining the district court’s decision to allow
these jurors to return verdicts, that decision should be
examined in the extraordinary context that had developed.
After serving for six months on an extremely high-profile
68 Nos. 06-3517 & 06-3528
trial with overwhelming media and public scrutiny, and
eight days into the deliberations, on Thursday, March 23,
2006, the jurors’ deliberations were stopped. When they
returned four days later on Monday, March 27th, the jury
was not allowed to continue deliberating. Instead, six of
the sitting jurors and three alternate jurors were interro-
gated by the district judge. They were called one-by-one
into the judge’s chambers. Questions regarding incon-
sistent answers on the jury questionnaire form were
asked. Jurors Ezell and Pavlick were ultimately dis-
missed, to be replaced by the two alternates. Four of the
six sitting jurors were retained. The jury deliberations
were stopped during this two-day period and the recon-
stituted jury would not start the second round of delibera-
tions until Wednesday, March 29th.
Much like children called into the principal’s office, one
could imagine the strain that this inquiry placed on both
the jurors who were questioned and those who remained
in the jury room unquestioned. It is noteworthy that in
describing her experience in examining Juror Casino, the
district judge stated, “Grilling Mr. Casino is one of the
most distasteful things I have done in this job.” Mar. 28,
2006 Tr. at pg. 24658, ln. 25 & pg. 24659, ln. 1. It is
also reasonable to conclude that the jurors who were
called into the judge’s chambers began discussing their
experience with the other jurors upon return to the jury
room to figure out what was going on.
Even more telling is that the district judge on March
27th recognized, along with various counsel, the specter of
juror prosecution lurking in the case and the impact
this would have on the trial. March 27th and 28th are key
days in the case because these are the two days that the
district judge considered how to handle the juror question-
naire issue and thus it is worth examining closely the
record from these two days. The district judge, shortly
before her examination of then-sitting Juror Ezell, recog-
Nos. 06-3517 & 06-3528 69
nized that the jurors faced possible criminal charges
for juror misconduct when she observed:
A concern I have, beginning with Ms. Ezell, is that if
we were to bring Ms. Ezell in to ask questions of her
regarding her failure to disclose this arrest record that
she has and other issues—for example, the apparent
use of an alias—Do we have to advise her of her
rights? Do we have to give her an opportunity to
have counsel? Because it does seem to me that we
will be asking her potentially about criminal con-
duct, specifically perjury in connection with her
responses to the questionnaires.
Mar. 27, 2006 Tr. at pg. 24366, lns. 16-24 (emphasis
added). Prosecutor Collins added that “I do think to the
extent there are consequences to a criminal prosecution [of
the jurors] we would be recused from it if there was even
contemplation of such a thing.” Mar. 27, 2006 Tr. at
pg. 24386, lns. 19-22.
Mr. Genson, an attorney for defendant Warner, added
that his client was in a Catch-22 situation:
Certainly, when I have a client that’s charged
essentially—at least that was a good deal of the closing
argument—with concealing, hiding, there is charges of
obstruction, false statements, the idea that I want to
tell these jurors, “You have a right to a lawyer,” is
ludicrous. It doesn’t help me to do that. I don’t want
to do it.
On the other hand, I am suggesting to your Honor
that perhaps we should. It’s not to my interest to tell
these jurors, or at least in my client’s interests to tell
these jurors, they need a lawyer. I mean, I don’t need
to introduce all those things given the charges against
my client.
But I do think it’s a valid—if something happens in
this case and if some other prosecutorial body, given
70 Nos. 06-3517 & 06-3528
that Mr. Collins said that they would be recused,
decides to prosecute people for false statement and
we haven’t given them their rights, I mean, I just
feel that—I think that’s at least an issue that your
Honor has to consider.
Mar. 27, 2006 Tr. at pg. 24404, ln. 25 & pg. 24405, lns. 1-
17.
The court recessed for lunch in the middle of its juror
interrogation procedure on March 27th. After lunch,
Mr. Collins informed the parties and the court that
the U.S. Attorney had granted the jurors immunity.
For the record, we did consult, your Honor, with the
U.S. Attorney at the lunch break in terms of jeopardy
any jurors would have going forward. And we did
not address the issue in advance of Ezell and Pavlick,
and I would make this of record.
Our office—[U.S. Attorney] Fitzgerald has indicated
that he believes that it’s more important to get the
candid information from the jurors than have them—
the process chilled by them—any statements they
say being used against them. And so he authorized
me to make a statement that any statements these
jurors make going forward would not be used against
them.
Mar. 27, 2006 Tr. at pg. 24500, lns. 16-25 & pg. 24501, lns.
1-2 (emphasis added). Note that the immunity grant
covered the jurors’ statements “going forward.” The rec-
ord does not reflect whether the U.S. Attorney granted
immunity to the jurors for their original conduct of their
answers provided during voir dire on the questionnaire
and therefore there is a potential that these jurors
could still face criminal prosecution. The district court
proceeded in questioning the jurors informally without
an advisement of rights and without the presence of
lawyers for the jurors.
Nos. 06-3517 & 06-3528 71
Jurors who ultimately would render the verdicts now
faced conflicts sufficient enough to have a federal district
judge and several experienced attorneys consider wheth-
er these jurors needed to be advised of their constitu-
tional rights. And we have an experienced prosecutor,
the United States Attorney, who sees this situation as
serious enough to grant immunity to the jurors. Yet these
same jurors were returned to the jury room, instructed
to begin anew their deliberations. The reconstituted jury
ultimately rendered the verdicts in this case.
When the district judge wonders aloud whether warning
jurors of their constitutional rights is required, when
jurors could need their own lawyers, and when the U.S.
Attorney is issuing immunity grants to jurors, it is im-
possible not to recognize the extraordinary nature of the
case. These circumstances are not “usual” and far from
the way our criminal justice system should work.
In addition, the district court’s ruling from September
2006 that “it is implausible that the . . . jurors would
harbor any fears of prosecution,” R. 867 at pg. 87, is not
supported by the record. Although counsel was not ap-
pointed for the jurors, individual jurors would obtain
private counsel in this case. Juror Pavlick had previous
representation and mentioned his attorney when he was
interrogated individually by the district court. Jurors
Peterson and Losacco would both later inform the court
that they had obtained counsel. Several of the individual
jurors questioned during this period recognized that they
had made inconsistent statements on the juror question-
naire and some apologized for the mistake. Other jurors
specifically mentioned that they were scared or intimi-
dated by the situation.
Furthermore, this is not a situation in which the dis-
trict court can solve the problem by saying that the
jurors made an honest mistake. The decision as to wheth-
72 Nos. 06-3517 & 06-3528
er to investigate and prosecute a case is not the district
court’s to make but rather the prosecutor’s decision.
Additionally, the question of whether a juror incorrectly
but honestly answered a question or intentionally lied
to get onto a jury is a question of fact for a second jury in
a future criminal proceeding.
Despite recognizing the potential of “fearful” jurors, the
district court was unwilling to declare a mistrial. In
addressing the defendants’ argument that the investiga-
tion had impacted the jurors’ ability to be fair and impar-
tial the district court responded:
The . . . argument you are making is that we now
have a bunch of fearful jurors. I just don’t know how
to address that.
Again, I understand that the defendants do have
important interests to represent here. I have before
me—nobody has called it this, but this is a motion for
a mistrial at this point. If I grant this motion, these
defendants are going to be tried again. I don’t—I am
just—I am really wondering whether if I grant the
motion for a mistrial, I am effectively saying it isn’t
possible to pick a jury for this case.
Mar. 28, 2006 Tr. at pg. 24699, lns. 16-25 & pg. 24700, ln.
1 (emphasis added). The obvious—but onerous—way to
address this situation was to declare a mistrial. In any
event, the concern regarding the selection of a new jury
should not have been a consideration. It is not difficult
to understand the great pressure generated by a six-
month trial to reach verdicts in this case. Nevertheless,
jurors in fear of prosecution for conduct involved in the
case on which they are sitting should not be allowed to
render verdicts; their bias is inherent.
As a matter of law, biased jurors cannot be fair and
impartial. Fair and impartial jurors are required as part
Nos. 06-3517 & 06-3528 73
of the defendants’ structural protection for a fair trial and
therefore the defendants are entitled to an automatic
reversal of their convictions. Neder, 527 U.S. at 9.
The majority responds that the defendants were af-
forded the structural protections of a fair trial before a
fair and impartial jury and therefore any error relating
to jury misconduct, improper influence of the jury and
jury bias should be reviewed under harmless error. Maj.
Op. 60. “The bias of a . . . juror may be actual or implied;
that is, it may be bias in fact or bias conclusively presumed
as [a] matter of law.” United States v. Wood, 299 U.S. 123,
133 (1936). As Chief Justice Marshall explained at the
trial of Aaron Burr, there are certain situations in which
a juror “may declare that he feels no prejudice in the case;
and yet the law cautiously incapacitates him from serving
on the jury because it suspects prejudice, because in
general persons in a similar situation would feel preju-
dice.” United States v. Burr, 25 F. Cas. 49, 51 (C.C.D. Va.
1807). Although the “[u]se of the ‘implied bias’ doctrine
is certainly the rare exception,” Hunley v. Godinez, 975
F.2d 316, 318 (7th Cir. 1992) (per curium), as we recog-
nized in United States v. Polichemi:
The concept of implied bias is well-established in the
law. Many of the rules that require excusing a juror
for cause are based on implied bias, rather than
actual bias. For example, a court must excuse a juror
for cause if the juror is related to one of the parties
in the case, or if the juror has even a tiny financial
interest in the case. See, e.g., United States v.
Annigoni, 96 F.3d 1132, 1138 (9th Cir. 1996); Getter v.
Wal-Mart Stores, 66 F.3d 1119, 1122 (10th Cir. 1995).
Such a juror may well be objective in fact, but the
relationship is so close that the law errs on the side of
caution.
219 F.3d 698, 704 (7th Cir. 2000) (Wood, D., J.); see, e.g.,
Smith v. Phillips, 455 U.S. 209, 221-24 (1982) (O’Connor,
74 Nos. 06-3517 & 06-3528
J., concurring); Conaway v. Polk, 453 F.3d 567, 587-88 &
n.22 (4th Cir. 2006) (noting that “implied bias [is] a settled
constitutional principle” and providing citation to cases
from ten different Circuits since 1982 recognizing the
continuing applicability of the implied bias doctrine);
Brooks v. Dretke, 418 F.3d 430, 430-31 (5th Cir. 2005)
(overturning a conviction on the basis of implied jury
bias when a juror faced a pending criminal charge filed
by the same prosecutor’s office that was prosecuting the
case on which the jury was presiding); Dyer, 151 F.3d
at 984 (citing Dr. Bonham’s Case, 77 Eng. Rep. 646, 652
(C.P. 1610) (tracing the lineage of the implied bias doc-
trine to Sir Edward Coke’s dicta in Dr. Bonham’s Case
in 1610)).
A biased juror “is a juror in name only” who taints the
court and the jury’s verdict making it a “mere pretense and
sham.” Clark, 289 U.S. at 11. The verdicts returned by
these biased jurors should be vacated because only a jury
composed of fair and impartial jurors can strip the defen-
dants of their liberty. Irvin v. Dowd, 366 U.S. 717, 722
(1961).
General Management of the Jury and
Jury Misconduct
It is also necessary to review additional jury misconduct
and the jury management decisions of the district judge.
Errors of a nonstructural nature are analyzed under
Federal Rule of Criminal Procedure 52, where errors
raised by the defendants are reviewed under a harmless
error standard and those not raised are reviewed under
a plain error standard.
The majority determines that on appeal the defendants
raised three specific issues about the jury: (1) that the
verdict was tainted by the jurors’ use of extraneous legal
Nos. 06-3517 & 06-3528 75
materials; (2) that the dismissal of Juror Ezell was an
arbitrary removal of a defense holdout, and; (3) that the
substitution of jurors after deliberation had begun was
prejudicial. Maj. Op. p.2. In addition, the majority notes
that the defendants have not raised on appeal the issue
of the cumulative and prejudicial effect of jury miscon-
duct and therefore that issue is not before us—although
raised below. Id.The majority correctly observes that jury management
or control measures properly lie within the discretion of
the district judge. Maj. Op. p.58. Nevertheless, courts of
appeal have supervisory authority in fashioning stan-
dards of criminal procedure to be followed by the district
courts. WAYNE R. LAFAVE, et al., CRIMINAL PROCEDURE
§ 1.6(i) pg. 325 (2d ed. 1999).
I disagree with the narrowed scope of review advanced
by the majority. What follows is a discussion of a more
global look at the juror misconduct and jury management
involved in this case.
Of course, as repeatedly pointed out, this court is
guided by the Supreme Court’s instruction that the
defendants are guaranteed a right to a “fair trial,” not a
“perfect trial.” McDonough Power Equip. Inc. v. Green-
wood, 464 U.S 548, 553 (1984).
As to the internet research regarding the law, there is
no dispute that Juror Peterson brought outside material
into the jury room during deliberations while she and a
number of jurors were in conflict with Juror Ezell. A
number of jurors urged Juror Peterson to search the
internet and bring back to the jury information on jury
deliberation. Her research could be used to show Juror
Ezell the “error of her ways.” This entire episode was a
deliberate disregard of the admonition of the court not
to bring outside legal sources into the jury room.
76 Nos. 06-3517 & 06-3528
Juror Peterson claims that the material was an Ameri-
can Judicature Society article about deliberations and
she had no intent to inappropriately influence Juror Ezell.
Juror Ezell disputes this claim, countering that the
information related to bribery and was used to threaten
her so that she would vote with the other jurors. Regard-
less, it is clear that Juror Peterson brought outside
material into the jury room during the course of delibera-
tions and used this material as part of the jurors’ efforts
to convince Juror Ezell to join them in returning a verdict.
In her post-trial ruling, the district court determined
that the article on jury deliberation “did not pertain to
any substantive issue in the Defendants’ trial. It con-
cerned only the process of deliberation, and the substance
of the article did not contradict any instruction that this
court gave to the jurors.” R. 867 at pg. 81. Errors in the
jury deliberation process raise issues of law no different
than errors relating to substantive matters, such as
obstruction of justice. Both procedural and substantive
areas of law are equally important. Moreover, a court
cannot hide behind saying that the unauthorized article
contained a proper statement of the law. It is axiomatic
that jurors are not allowed to bring any outside materi-
als into deliberations regardless of whether they are a
correct statement of the law. Jurors are restricted to
receiving pronouncements on relevant law only from
the trial judge.
The seriousness of this misconduct is demonstrated
by the fact that Juror Peterson and Juror Losacco, who
were involved in the conflict with Juror Ezell, both ob-
tained private counsel to represent them on this issue. The
record does not reflect whether Jurors Peterson and
Losacco retained their attorneys during deliberations or
after deliberations as Juror Ezell did not make a public
allegation against Jurors Peterson and Losacco until
after the verdicts had been returned. However, when the
Nos. 06-3517 & 06-3528 77
district court conducted a post-verdict inquiry on this
issue, both Jurors Peterson and Losacco appeared through
their respective counsel.
The jurors originally sent notes informing the district
court that they were in conflict. This is the conflict be-
tween Juror Ezell and several of the other jurors includ-
ing Juror Peterson. Juror Peterson was instructed by
several other jurors to—“do her homework”—meaning to
find information on the internet which the jurors could
use in a hope of convincing Juror Ezell to join their views.
However, during the period that the district judge
was considering what to do about the conflict among the
jurors, she was also informed about the juror question-
naire problem. Thus, the court was faced with two inde-
pendent problems, the jury conflict issue and the juror
questionnaire issue. Yet, the juror questionnaire issue
wholly consumed the district judge’s consideration of the
case at that point. The district judge left unresolved her
consideration of the conflict between potential “holdout”
Juror Ezell and other jurors. Nowhere in the record does
the district judge make a ruling as to whether a conflict
existed between Juror Ezell and the other jurors to
determine if the jurors had deadlocked or if Juror Ezell
was indeed a holdout. Nor did the court determine the
impact that dismissing Juror Ezell would have on the
other jurors in light of the conflict among the jury as
expressed to the court in the jurors’ notes, and whether
this might give an indication to other jurors that the
court was siding with the views of one group of jurors
over another. However, the district judge ultimately
excused Juror Ezell based on the inconsistent statements
Juror Ezell made on her questionnaire.
At the beginning of the trial, the district judge ordered
the juror questionnaires to be redacted, yet she used the
jurors’ names during in-court voir dire. This allowed the
78 Nos. 06-3517 & 06-3528
Chicago Tribune to obtain the jurors’ names from the
transcripts of the in-court voir dire despite the fact that
the court had originally placed the jurors’ names under
seal. As Prosecutor Collins later noted, “a trained monkey”
could have matched the information together between the
publicly redacted questionnaires and in-court voir dire
transcripts. Mar. 27, 2006 Tr. at pg. 24591, ln. 22. Because
jurors’ names were “in effect” leaked to the media during
the trial, the court was unable to avoid the larger issue
of a juror background investigation by the media and
the impact this had on the trial.
Apart from the general admonitions made by the court
it appears that there was little control of the jurors’
exposure to external influences outside of the courthouse.
In addition to Juror Peterson’s misconduct, the jurors
continued to read newspapers and were exposed to media
coverage of the trial, the jurors received inquiries from
friends and family about the case, and the jurors discussed
the case with outsiders while the case was pending. All of
these actions were taken in violation of the court’s instruc-
tions, yet a reconstituted jury was allowed to deliberate
and return verdicts.
There is often a lack of a record on key issues. The
district judge participated in a discussion with the
parties but did not state that she was providing a definite
ruling. Thus, the record is at best inconclusive, and at
the worst nonexistent, on the district court’s decisions on
many of the critical issues in this case. The most striking
example is the reseating of the alternate jurors. Once the
district judge decided to excuse Jurors Pavlick and Ezell,
the court was required, pursuant to Rule 24, to seat
alternate jurors in the order in which they were selected.
However, in the reseating process the district judge
skipped the next juror in line, Alternate Juror Masri. We
know that he was skipped but the district judge did not
say why he was passed over.
Nos. 06-3517 & 06-3528 79
The majority deduces that Alternate Juror Masri was
dismissed for his failure to disclose a prior DUI. But, there
is no ruling from the district judge to support the major-
ity’s deduction. The government suggested at oral argu-
ment that Masri was excused because he received his
juror certificate and was thanked for his service. But there
is no record excusing him or indicating why he did not
serve. Thus, the record does not demonstrate compliance
with Rule 24.
At oral argument before this court, Prosecutor Collins
stated that “Judge Pallmeyer is a consensus builder.” Oral
Arg. at 47:18. This insightful comment is the key to
understanding the non-structural juror errors. Consensus
building can help in finding common ground in disputes.
It can also help to expose decision makers to alternative
points of view. But consensus building can have negative
consequences as this case demonstrates.
Consensus building by the district judge allowed a
continual round robin of discussions between the attor-
neys and the court especially during the critical period of
March 27th and 28th when the parties and the court
were addressing the juror-related issues. Transcripts
from this period reveal a very conscientious but irreso-
lute judge who is willing to contribute her views and
concerns to the conversation involving contested issues,
but is reluctant to provide firm rulings that end the
court’s consideration of those issues. The record from
this period is full of conversations but lacks definitive
rulings. Consensus building does not always lead to the
resolution of difficult issues.
A lack of definitive rulings by the trial court presents
great difficulty in a review on appeal, for appellate courts
review decisions, not commentary. Importantly, the lack
of a firm ruling infects the consideration of excusing
potential “holdout” Juror Ezell. In her post-trial ruling,
80 Nos. 06-3517 & 06-3528
the district judge said that Juror Ezell was “removed
from the jury for reasons wholly unrelated to [the] conflict
[occurring between the jurors] revealed in [Juror] Losacco’s
note.” R. 867 at pg. 75. Yet, the district judge’s post-
trial decision did not provide citation to the record on
this point. In fact, a review of the record during the March
27th and 28th period shows there was absolutely no
consideration of the conflict between Juror Ezell and other
jurors. As noted earlier, this very serious issue was
forgotten once the court and parties were made aware
of the trouble in the jurors’ questionnaire answers by
the Chicago Tribune.
The district judge is charged with the management
and control of the jury. In the deliberation phase this
includes ensuring that the jurors properly conduct them-
selves, avoiding outside influences, conducting proper
deliberations without juror-on-juror intimidation, and
scheduling deliberation times, among others.
As noted, many of the problems that plagued the trial
after the case was submitted to the jury could have been
avoided through sequestration. While it was certainly
impractical to sequester this jury during the trial phase,
sequestration during deliberations was a viable option.
In a full sequestration, deliberating jurors are typically
under control of Deputy United States Marshals who
are responsible for ensuring that the jurors are secure
during their deliberations, in movement to and from the
courthouse and jury room, and while housed offsite until
a verdict is reached. Partial sequestration works less of
a hardship on jurors. Under this system the deliberating
jurors assemble at a remote location and are picked up by
Deputy United States Marshals, transported by van to
the courthouse and moved in a nonpublic elevator to the
jury room. At the end of a day’s deliberations the process
is reversed. This continues until a return of the verdict.
Nos. 06-3517 & 06-3528 81
Despite these available options there was no apparent
consideration of such sequestration even in the face of the
overwhelming media presence in the courthouse, the
daily media reports of courtroom activity and the jurors’
continued inability during the course of the trial to avoid
media reports of the trial. The relative inconvenience to
the jurors weighed against a possible mistrial makes the
choice of sequestration during deliberation seem clear.
Turning again to the actual deliberations, it appears
that jurors were inexplicably allowed to set their own
schedule for deliberations with apparently little judicial
intervention. There is undisputed evidence that the
jurors separated into caucuses at times during delibera-
tions. Perhaps most striking is the example of the divi-
sion between the “healthy” and the “unhealthy” jurors.
The healthy jurors exercised by running up and down
internal courthouse stairs while the unhealthy jurors
took smoke breaks outside the courthouse. The record
does not tell us if the jurors continued separate delibera-
tions during this period outside of the presence of the
other jurors.
As noted above, I recognize that individual nonstructural
errors are reviewed under either harmless error or the
plain error analysis as provided in Rule 52 and we afford
the district judge a level of deference. However, the non-
structural errors—in their totality—were so egregious
that again a mistrial was the only permissible result.
The majority’s failure to consider all of these errors cannot
be ignored as we must recognize that these errors under-
mine the public’s confidence in the “fairness, integrity
or public reputation of judicial proceedings.” United States
v. Olano, 507 U.S. 725, 736-37 (1993).
In the final analysis, this case was inexorably driven to
a defective conclusion by the natural human desire to
bring an end to the massive expenditure of time and
82 Nos. 06-3517 & 06-3528
resources occasioned by this trial—to the detriment of
the defendants. Given the breadth and depth of both
structural and nonstructural errors, I have no doubt that
if this case had been a six-day trial, rather than a six-
month trial, a mistrial would have been swiftly declared.
It should have been here.
Based on either the structural errors or nonstructural
errors described above concerning jury misconduct, the
convictions in this case should be vacated and the case
remanded for a new trial. Because the majority reaches
a contrary result, I respectfully DISSENT.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—9-6-07