United States v. Susan Harris , 763 F.3d 881 ( 2014 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 13-1741
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
SUSAN L. HARRIS,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Southern District of Illinois.
No. 12-CR-30226-2 — G. Patrick Murphy and David R. Herndon, Judges.
____________________
ARGUED MAY 28, 2014 — DECIDED AUGUST 18, 2014
____________________
Before RIPPLE, WILLIAMS, and HAMILTON, Circuit Judges.
WILLIAMS, Circuit Judge. What makes a jury anonymous?
That is the question posed by Susan Harris, who argues that
she was improperly tried by an anonymous jury and that
such a trial violated her due process rights. However, be-
cause Harris has not met her burden and shown one neces-
sary component of an anonymous jury—that the parties
were kept from knowing the potential jurors’ names—we
reject her argument and affirm her conviction.
2 No. 13-1741
I. BACKGROUND
Because the facts of the crime do not affect our decision,
we only briefly outline them. Susan Harris worked at a hos-
pital in Southwest Illinois alongside her friend Ashley
Drummond. Harris stopped working at the hospital before
the relevant time period, but Drummond continued to do so
and eventually began working a second job with Harris,
namely stealing people’s identities. Drummond, originally
charged as a co-defendant in this case before pleading guilty,
testified at trial that she and Harris came up with the idea to
get money by applying for credit cards using the birthdates
and social security numbers Drummond stole from patients’
files. Harris figured out the process would be a lot easier if
they targeted patients who came from nursing homes be-
cause copies of their social security cards and relevant in-
formation were on the back of their charts.
After Drummond stole the information, both Harris and
Drummond filled out credit card applications using the sto-
len information and certain of their own information. For
example, Harris filled out one credit card application with a
victim’s name and social security number, but put down
Harris’s address—where the card was ultimately deliv-
ered—and Harris’s email, and activated the card using Har-
ris’s phone number. Harris and Drummond executed this
scheme and stole ten different patients’ identities before be-
ing caught when Drummond was captured on video using
one of the fraudulently obtained credit cards. Drummond
flipped on Harris and Harris was charged with, and ulti-
mately convicted of, conspiracy to commit mail fraud in vio-
lation of 18 U.S.C. § 1349 and aggravated identity theft in vi-
olation of 18 U.S.C. § 1028A.
No. 13-1741 3
During voir dire—when the parties and court determine
the makeup of the jury by asking potential jurors ques-
tions—the district court judge introduced himself and ex-
plained the jury selection process to the potential juror pool.
After the courtroom deputy swore the jury in, the district
court judge stated:
One more thing I almost forgot. This is hard for
me. To protect people’s privacy, we try to refer
to jurors by numbers now. Now, there is noth-
ing more difficult than an Irishman that grew
up in coal mining country to refer to people by
numbers, and I’m going to try. So I’ll talk to Ju-
ror Number 1, Juror Number 2, and the like.
And I’m going to try not to forget and talk to
you like you were otherwise a human being.
But we do this just to protect your privacy,
which is a very important consideration in the
modern world.
There was no objection to this statement and Harris was
convicted on both counts. After the case was transferred to
her appellate counsel and this appeal ensued, Harris argued
the judge’s statement demonstrated that the court improper-
ly empaneled an anonymous jury.
Before filing its response brief to this court, the govern-
ment filed a Motion to Supplement the record with the new-
ly assigned district court judge (the case had been trans-
ferred after the trial judge retired), seeking leave to include
affidavits from the Jury Administrator, the Deputy Clerk,
and the Assistant United States Attorney who served as a
prosecutor during the trial, all effectively stating that the ju-
ry was not anonymous and the jurors knew the parties had
4 No. 13-1741
their identifying information. The government also included
a blank juror questionnaire form used during the voir dire at
Harris’s trial that included spaces for the prospective jurors’
names, addresses, and other identifying information. The
district court granted the motion and we gave leave for Har-
ris to argue that motion was improperly granted, which she
did in a refiled opening brief. The government included the
supplemental materials in its response and argued that the
jury was not “anonymous.”
II. ANALYSIS
Harris argues that the district court committed plain er-
ror by empaneling an anonymous jury when none of the fac-
tors we have previously set forth as “bearing on the proprie-
ty of an anonymous jury” were present. See United States v.
Mansoori, 304 F.3d 635, 650–51 (7th Cir. 2002). Those factors
include: (1) the defendant’s involvement in organized crime;
(2) her involvement in a group with the capacity to harm ju-
rors; (3) whether she previously has attempted to interfere
with the judicial process; (4) the severity of the punishment
she would face if convicted; and (5) whether publicity re-
garding the case presents the prospect that the jurors’ names
could become public and expose them to intimidation or
harassment. Id. Harris contends these factors were not pre-
sent in her case and empaneling an anonymous jury de-
prived her of a fair trial because the jurors would have been
predisposed to believe she was dangerous and/or guilty if
there was a need for them to be anonymous. She also argues
the jurors’ anonymity deprived her attorney of the ability to
effectively use his peremptory challenges since he was work-
ing with incomplete information about the jurors. Finally,
she argues the district court erred in granting the Motion to
No. 13-1741 5
Supplement the record because the supplemental materials
were not originally before the district court. Without relying
on the supplemental materials, we find the jury was not
anonymous and reject her first two arguments while not
reaching the third.
Since Harris’s counsel did not object to the empaneling of
an anonymous jury, we will review for plain error. See United
States v. Christian, 673 F.3d 702, 708 (7th Cir. 2012). Under
that standard, Harris has the burden of showing: “(1) an er-
ror, (2) that was plain, meaning clear or obvious, (3) that af-
fected the defendant’s substantial rights in that [s]he proba-
bly would not have been convicted absent the error, and (4)
that seriously affected the fairness, integrity, or public repu-
tation of judicial proceedings.” Id.; see also United States v.
Ramirez, 606 F.3d 396, 398 (7th Cir. 2010) (reiterating that ap-
pellant has burden of proving plain error). An error is
“plain” when it is “so obvious ‘that the trial judge and pros-
ecutor were derelict in countenancing it, even absent the de-
fendant’s timely assistance in detecting it.’” Christian, 673
F.3d at 708 (quoting United States v. Turner, 651 F.3d 743, 748
(7th Cir. 2011)).
For Harris’s argument that the district court committed
plain error by empaneling an anonymous jury to succeed,
she must first demonstrate that the district court actually did
empanel an anonymous jury. “An ‘anonymous jury’ is select-
ed from a venire whose members’ identifying information—
such as names, occupations, addresses, exact places of em-
ployment, and other such facts—has been withheld from the
parties in order to protect potential jurors and their fami-
lies.” United States v. Morales, 655 F.3d 608, 620 (7th Cir. 2011);
see also United States v. Crockett, 979 F.2d 1024, 1215 n.10 (7th
6 No. 13-1741
Cir. 1992) (noting an anonymous jury occurs when the court
“decide[s] to withhold from the parties some of the identify-
ing information about each juror”).
We have not had an opportunity to identify what infor-
mation must be withheld, and from whom, to make a jury
anonymous and thereby trigger the anonymous jury analysis
from Mansoori. 304 F.3d at 650–51. Yet, the rationale behind
the empaneling of anonymous juries and our past practice
guide our analysis. “Empaneling an anonymous jury is an
extreme measure that is warranted only when there is strong
reason to believe the jury needs protection. An anonymous
jury raises the specter that the defendant is a dangerous per-
son from whom the jurors must be protected, thereby impli-
cating the defendant’s constitutional right to a presumption
of innocence. Jury anonymity also deprives the defendant of
information that might help him to make appropriate chal-
lenges—in particular, peremptory challenges—during jury
selection.” Mansoori, 304 F.3d at 650 (quotations omitted,
emphasis added). In other words, anonymous juries should
be empaneled only when the jurors might need protection
from the defendant and should only be used in rare instanc-
es because they withhold relevant information from the de-
fendant. That rationale necessarily requires that the identify-
ing information be withheld from the defendant. Keeping
the jurors’ information from the public, but nevertheless
making it available to the parties, would defeat the very rea-
soning behind permitting anonymous juries, namely keep-
ing that information from a dangerous defendant. Cf. United
States v. Wecht, 537 F.3d 222, 243 n.39 (3d Cir. 2008) (Van
Antwerpen, J., concurring in part, dissenting in part) (“I also
note that the jury in this case is not ‘anonymous,’ as the par-
ties will know everything about the jurors, including their
No. 13-1741 7
names and other personal information, and the public will
know everything about the jurors except their names”). But
see United States v. Dinkins, 691 F.3d 358, 371 (4th Cir. 2012)
(finding that giving names to parties but withholding names
from the public constitutes “lesser degree of anonymity”
that still requires “anonymous” jury analysis). This rationale
behind why courts make juries anonymous requires with-
holding, at least, the jurors’ names from the parties.
The conclusion that an anonymous jury requires with-
holding information from the parties is supported by our
past practice. In every instance in which we have affirmed
the use of an anonymous jury, the jurors’ names and ad-
dresses were withheld from both the parties and the public.
See United States v. White, No. 08-cr-00851-1 (N.D. Ill. Dec. 16,
2010), Dkt. 133 (withholding from the parties and public the
names and home and work addresses of prospective and
empaneled jurors, as well as those of their spouses), aff’d,
United States v. White, 698 F.3d 1005 (7th Cir. 2012); United
States v. Delatorre, et al., No. 03-cr-00090 (N.D. Ill. Jan. 15,
2008), Dkt. 652 (withholding names, addresses and other
identifying information of the members of the venire from
parties and public), aff’d, Morales, 655 F.3d 608 (7th Cir. 2011);
United States v. Benabe, No. 03-cr-00090 (N.D. Ill. Jan. 15,
2008), Dkt. 652 (withholding names, home address, and
places of employment from parties and public), aff’d, United
States v. Benabe, 654 F.3d 753 (7th Cir. 2011); Mansoori, 304
F.3d at 649 (7th Cir. 2002) (affirming withholding of the
names and home and work addresses of prospective and
empaneled jurors from “parties, the public, [and] the me-
dia”); United States v. DiDomenico, 78 F.3d 294, 301 (7th Cir.
1996) (noting anonymous jury is one where the court refuses
to “reveal the names and addresses of the jurors to the par-
8 No. 13-1741
ties”); Crockett, 979 F.2d at 1216 (withholding jurors’ names,
street addresses, and places of employment from the parties
and public). Two repeating factors are that the jurors’ names
and addresses are withheld from the parties. Without mak-
ing any determination on the minimum sufficient amount of
information that must be withheld from the parties for the
jury to be anonymous, we find that one necessary compo-
nent that must be withheld from the parties is the jurors’
names.
It is important to note that what this circuit refers to as an
“anonymous” jury is different than what we have previously
called a “confidential” jury, and they require different anal-
yses. The former requires the Mansoori analysis to safeguard
due process, 304 F.3d at 650–51, and the latter focuses on
whether access to the courts has been properly denied. See
United States v. Blagojevich, 612 F.3d 558, 563–65 (7th Cir.
2010). In Blagojevich, we considered the media’s right to ac-
cess the names of potential jurors, which were being with-
held from the public but not the parties. 612 F.3d at 559 (not-
ing “the parties and their lawyers know the jurors’ names”).
We did not review the jury in Blagojevich under our anony-
mous jury test, but instead called it a “confidential” jury. Id.
at 563, 564, 565. We contrasted the different rationales under-
lying “confidential” juries and “anonymous” juries—
anonymous juries are for the jurors’ protection while the
“confidential” jury in that case was intended to limit the ju-
rors’ exposure to the media—and noted the Blagojevich jury
was different because “the judge did not order ‘anonymity.’”
Id. at 559, 561; see also United States v. Blagojevich, 614 F.3d
287, 287 (7th Cir. 2010) (Posner, J., dissenting in denial of re-
hearing en banc) (noting “[t]he jury is not ‘anonymous.’ The
No. 13-1741 9
jurors’ names are known to the parties and will be available
to the public at the end of the trial.”).
To be sure, both “confidential” and “anonymous” juries
infringe on the public nature of trials and should therefore
only be used sparingly and after sound consideration that is
articulated by the district court on the record. See, e.g., Mo-
rales, 655 F.3d at 621 (noting that “the use of anonymous ju-
ries is discouraged” and the district court should put “its
reasons for granting the government’s motion [to empanel
an anonymous jury] on the record”); see also Blagojevich, 612
F.3d at 563–65 (recognizing access to courts problems with
“confidential” jury). However, Harris does not allege that
the district court empaneled a “confidential” jury, nor does
she make an “access to the courts” argument. See, e.g., Blago-
jevich, 612 F.3d at 565. Instead, she argues that her jury was
anonymous and that the district court should have conduct-
ed the test we have reserved for anonymous juries. Therefore
she has the burden of showing that the court withheld from
the parties the names of the potential jurors; a showing that
the public did not know the names is not enough to meet her
burden because that fact alone does not make the jury anon-
ymous.
The only evidence Harris points to in arguing that the ju-
ry was anonymous are the judge’s statements before con-
ducting voir dire. Our analysis, and Harris’s appellate argu-
ment, is hindered by the fact that Harris’s trial counsel did
not object and create a fuller record of what information, if
any, was withheld from the parties and/or the public. But,
because Harris’s counsel relies only on the portion of the
judge’s voir dire statements quoted in full above, we will re-
view that same portion to determine whether or not she can
10 No. 13-1741
show the jury was anonymous. There are three reasons we
find Harris has not met her burden. First, we do not believe
the judge’s statements, when examined alone, demonstrate
that the jurors’ names were unknown to the parties. The
judge did not tell the jurors that their names were being kept
from the parties, but instead said their names were not being
stated in open court because “to protect people’s privacy, we
try to refer to jurors by numbers now” and “we do this just
to protect your privacy, which is a very important considera-
tion in the modern world.” While Harris’s argument that
these statements demonstrated that the jury was anonymous
is one possible conclusion to draw, we believe it just as, if not
more, likely that a rational juror would understand these
comments to mean that the jurors’ names were being kept
from the public. There is nothing in the judge’s statement
that indicates the jurors’ information was being kept from
the parties. So we decline to draw the inferences Harris asks
us to based on these two statements by the judge. To do so
would be to defeat the purpose of Harris’s burden under the
plain error standard, which requires her to show an error
“so obvious that the trial judge and prosecutor were derelict
in countenancing it.” Christian, 673 F.3d at 708 (internal quo-
tation omitted). Such an error is not present from these
statements alone.
Second, the judge explicitly named one of the jurors on
the record, albeit at sidebar. It came out through questioning
that one of the potential jurors was a case administrator in
the United States District Court for the Southern District of
Illinois courthouse and knew the defense lawyers in this
case. Though clearly at least one party knew the juror’s name
already, the judge then made sure both did—or reiterated
what information was already in front of the parties—by
No. 13-1741 11
stating “I’m very worried about Ms. [name], our Juror Num-
ber 5.” We recognize this is an out of the ordinary circum-
stance since one party does not usually know a juror outside
of voir dire. But had this truly been an anonymous jury, even
if the potential juror knew defense counsel, we believe the
judge would not have stated the juror’s name on the rec-
ord—and done so without any objection or comment—since
that would defeat the purpose of an anonymous jury.
Finally, our conclusion that this was not an anonymous
jury is reinforced by the nature of the judge’s questions and
the jurors’ responses. The questioning the judge conducted
during voir dire and the responses he received presents a pic-
ture of a jury that felt free and comfortable to reveal private
information about themselves and a judge who encouraged
such disclosure. For example, Juror No. 1 revealed that he
was a chaplain, then specifically named the institution where
he worked, where it was located, and how long he had
worked there. A quick and simple Internet search, based on
that information alone, reveals what we believe is Juror No.
1’s name, as well as his work address and telephone number,
since only one individual fits the description given in open
court. If, in fact, this was an anonymous jury as Harris ar-
gues, it was so ineffective as to be useless in protecting the
“jurors’ interest in their own security.” Mansoori, 304 F.3d at
650. Had this truly been an anonymous jury in which the
judge was trying to keep the jurors’ identifying information
from the parties, we do not believe the judge would have
asked such broad and open-ended questions or allowed the
jurors to give the responses they did.
Ultimately, the burden is on Harris to convince us the
judge committed a plain and clear error in this case. Chris-
12 No. 13-1741
tian, 673 F.3d at 708. Because she has not met that burden,
and the evidence points against a finding that this jury was
anonymous, we affirm. As our earlier discussion has made
clear, we have come to this conclusion without relying on
any of the supplemental evidence submitted by the govern-
ment. Therefore we do not make any determination as to
whether those documents were or were not properly submit-
ted as supplements to the record.
III. CONCLUSION
We AFFIRM the decision of the district court.