United States v. Warner, Lawrence E. , 498 F.3d 665 ( 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, 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 defendants,
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
handle a number of problems, some of which were common
and others less so. The fact that the trial may not have been
*
This opinion is being released in typescript. A
printed version will follow.
2 Nos. 06-3517 & 06-3528
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 additionally 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 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
Nos. 06-3517 & 06-3528 3
acceptable manner, and that whatever error remained was
harmless. We therefore 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’ imprisonment and Ryan to 78 months’
imprisonment. The defendants both filed timely notices of
appeal on September 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 selecting 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 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
4 Nos. 06-3517 & 06-3528
awareness of Ryan’s positions on public issues. Counsel for all
parties and the court reviewed the questionnaires for four
days; voir dire consumed another six days. The district court
seated 12 jurors and eight alternates. The trial lasted six
months. The prosecution presented approximately 80
witnesses against the defendants. 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 purchased
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
company 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 request 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 ten years.
The jury retired on March 13, 2006. This jury deliberated
for eight days. During their deliberations, the jurors 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
Nos. 06-3517 & 06-3528 5
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 profanities. 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 surfaced
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 deliberations 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 reckless conduct conviction,
the court questioned him individually. The court asked
counsel if there would be any objection to dismissing Pavlick.
Neither the prosecutor 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 problematic.
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 significant 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
6 Nos. 06-3517 & 06-3528
given law enforcement 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 forthcoming
about her use of the name “Thora Jones” nor 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 untruthfulness.
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 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 forty 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 nor about his conditional discharge or probation 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
Nos. 06-3517 & 06-3528 7
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, 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 instructions to the reconstituted jury, adding
a new one to allay defense concerns with the questioning
about the jurors’ criminal histories. The new jury begin
deliberating on March 29, 2006. After ten days’ work, it
returned guilty verdicts on all counts on April 17, 2006.
After the verdict, dismissed juror Ezell publicly criticized
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]
8 Nos. 06-3517 & 06-3528
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 removing 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 mentioned 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 influences the rest of
the analysis is whether either one, or both, of these items
should be characterized as “extraneous” 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]
Nos. 06-3517 & 06-3528 9
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 Peterson told the
district court that her handwritten statement 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 Peterson’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 Peterson’s
explanation about the note, let alone any indication 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 juror
removal and substitution. The excerpt that Peterson read to
the jury was the following:
10 Nos. 06-3517 & 06-3528
But other bases for substitution raise serious questions
about the sanctity of the deliberative process, primarily
allegations by some jurors that another juror is unwilling
or unable to meaningfully deliberate, or is unwilling to
follow the law. Such an allegation requires a hearing
where the judge must decide the tricky question whether
the juror is truly unfit to serve, or is merely expressing an
alternative viewpoint 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 constitutional
error in failing properly to apply the rule of Blakely v.
Washington, 542 U.S. 296 (2004), was subject to harmless
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
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
Nos. 06-3517 & 06-3528 11
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’ jurisprudence” by stating that “[d]ue process
does not require a new trial every time a juror has been
placed in a potentially 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
“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
12 Nos. 06-3517 & 06-3528
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 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 information 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 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 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 question 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
Nos. 06-3517 & 06-3528 13
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 deliberate unimpeded. Id.
District courts have some flexibility in structuring an
inquiry into this kind of problem. Bruscino, 687 F.2d 938 at
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 innocuous.” 263 F.3d at 725-26. We need not
explore when a hearing may not be essential, however, since
the district 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
14 Nos. 06-3517 & 06-3528
after a hearing that the Government 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 perspective ... 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.
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 non-exclusive 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 check-list 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, it was only the jurors who sat on
the original jury who 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
Nos. 06-3517 & 06-3528 15
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 testimony 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 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 decision,” 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 removed if they refused to
‘deliberate.’” This differs significantly 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
16 Nos. 06-3517 & 06-3528
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, “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 problems 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 accepting 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
Nos. 06-3517 & 06-3528 17
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
“long-recognized and very substantial concerns 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 inquiry the court sent the implicit
message that future deliberations might not be secret, then
we would be facing 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 instructing 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 verdicts 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 deliberations.... [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 deliberations when you begin these new deliberations.
18 Nos. 06-3517 & 06-3528
(emphasis added).
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 only overcome if there is an
“overwhelming possibility” that 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 falls in light of these instructions and the court’s
credibility 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 entitled 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 presumptive
prejudice, but it then goes on to find that the government has
rebutted that presumption. After interviewing 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 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
burden to do so. It found that the government satisfied its
Nos. 06-3517 & 06-3528 19
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 prejudice 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 inability 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 replacement: 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.
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
20 Nos. 06-3517 & 06-3528
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 return a verdict and the facts of McDonough will be
replicated. 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 because of their
criminal records, the court asked the attorneys for their
thoughts on the standard to apply to possible removals. All
attorneys responded with arguments to the court. Less than
an hour later, the court informed counsel that it saw a
difference between jurors such as Pavlick and Ezell, for whom
there were significant 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
Nos. 06-3517 & 06-3528 21
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 dismissed 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 question, 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 ... 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 recognized 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
enforcement officers false information upon an arrest can
possibly be an impartial juror in this case, where one of the
22 Nos. 06-3517 & 06-3528
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 circumstances. 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 question 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
peremptory 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 defense
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 prosecutors have used a
peremptory strike for an impermissible reason, it is necessary
Nos. 06-3517 & 06-3528 23
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 tenure 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 connected Pavlick’s
conviction to Ryan’s office. In fact, it appears 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
convictions 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 believed 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
24 Nos. 06-3517 & 06-3528
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, alternate 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 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 unreasonable
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 prosecution
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 investigations into their
questionnaires. The district court concluded that “I have
genuine concerns that Mr. Pavlick and Ms. Ezell ... may very
well have been motivated to get on the jury.” Indeed, the
Nos. 06-3517 & 06-3528 25
strongest cases for challenges for cause were against these
two jurors.
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 actions. 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 responded by instructing the
jury that “you twelve are the jurors selected to decide this
case.” This instruction also operated to prevent any potential
26 Nos. 06-3517 & 06-3528
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 instructions to the
reconstituted jury, as well as its repeated 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 argument comes from Juror Losacco’s
testimony that she was “scared” during her interview. But
this trepidation appears 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 an misstatement was made on the
juror questionnaires and the reasons for the misstaement,
and in focusing on whether the undisclosed information
would have supported striking 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 dismiss Ezell because she was a “holdout,” nor
were jury deliberations chilled because of the way in which
Nos. 06-3517 & 06-3528 27
Ezell was removed. Finally, the record suggests no reason to
think that the reconstituted jury was biased against the
defendants 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 allowed 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 deliberations 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 replace
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 deliberations. The Fifth Circuit
employed an abuse of discretion standard for juror removals
during deliberations, although it is not clear whether the trial
28 Nos. 06-3517 & 06-3528
in that case took place before or after the Rule 24 amendment
came into force; it concluded that a district court abuses its
discretion 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 possibility 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
because 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
Nos. 06-3517 & 06-3528 29
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 misconduct,
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 supported by the
record, provides all the basis this court needs to affirm the
district court’s decision to order substitutions of jurors.
The defendants complain that we have no way of knowing
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 quarrel with the Eleventh Circuit’s
practical observation that “the further along deliberations
proceed, the more difficult 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
30 Nos. 06-3517 & 06-3528
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 deliberations from their minds and
begin with a clean slate.
Id.; see also Edwards, 303 F.3d at 631 (dismissing a juror
after eleven days of deliberations, although not discussing
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 specific counts in the indictment during its
deliberations that the original jury had not sought.
The record also gives no reason to be especially concerned
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 statements
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
Nos. 06-3517 & 06-3528 31
brief, they seek a holding that “almost any decision to
substitute [during deliberations is] prejudicial.” This cannot
be the proper standard under the new Rule 24(c).
V
Moving, at last, away from the jury issues, the defendants
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 belief about the bona fides
of the transactions at issue in this case, including those that
involved Warner. We review 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 facilities that the
32 Nos. 06-3517 & 06-3528
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 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 becomes
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 opportunity
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 33
The defendants’ argument that prosecution witness Glen
Good’s testimony unfairly crossed some temporal line fails
because there was no such line. The proper comparison, 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
decisionmaking 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 excluded
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 Secretaries
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 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
34 Nos. 06-3517 & 06-3528
increase for election reasons. This type of evidence is arguably
probative because it provides support to Ryan’s contention
that the increase was a sound policy decision. See Longfellow,
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 mechanization than the
occasional rate decisions here displayed. See Advisory
Committee Notes for Rule 406, emphasizing the need for a
“repeated specific situation” before something qualifies as
“habit.” The Note comments that “[e]quivalent behavior on
the part of a group is designated ‘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 certain
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 had come from the
government’s case-in-chief, then they might have a point. But
they did not. The quoted statements come from the
prosecution’s closing argument. The government did not use
evidence of Ryan’s general dishonesty 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
Nos. 06-3517 & 06-3528 35
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 defense 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 witness. 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 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
36 Nos. 06-3517 & 06-3528
removed from the charged acts is not an abuse of discretion
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 “enterprise” for
RICO purposes, and secondarily, did the district court err
when it instructed the jury that the State of Illinois is a “legal
entity.” We consider these arguments 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 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
Nos. 06-3517 & 06-3528 37
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
Enterprises, 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 prevent
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 Maryland. United
States v. Mandel, 415 F. Supp. 997 (D. Md. 1976). The
defendants urge us to accept the reasoning 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 analysis 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 disapproval
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.
38 Nos. 06-3517 & 06-3528
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 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 encompassing 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)
(comparing 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 racketeers”); 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 government
entities. Senator McClellan, the chief sponsor of this bill
and chairman of the committee which drafted it, said:
Nos. 06-3517 & 06-3528 39
“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 over matters
affecting the everyday life of each citizen.”
...
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 alleged 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
40 Nos. 06-3517 & 06-3528
necessary under RICO, but it is not forbidden. 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 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
enterprises.) 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 dormant
commerce clause case. If the CEO of a major corporation, 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 identified
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
prosecution.
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
Nos. 06-3517 & 06-3528 41
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 Government must prove ... that the
defendant uttered or possessed a counterfeit and forged
security of an organization”). 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
statutory definition of “enterprise.” See, e.g., Turkette, 452
U.S. at 582 (examining the characteristics of a criminal
structure to determine whether it was an “enterprise” under
RICO). Nevertheless, because governmental or public entities
fit within the definition of “enterprise” for purposes 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, appellant’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
Organizations, 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 conclude,
therefore, that the district court did not err when it
accurately informed the jury that the State of Illinois is a
legal entity.
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
42 Nos. 06-3517 & 06-3528
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, (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 n29 (10th Cir. 2003); United States v. Waymer, 55
F.3d 564, 568 (11th Cir. 1995). There have been dissenting
opinions in two circuits’ opinions on this issue. Rybicki, 354
F.3d at 162-64 (Jacobs, J. dissenting); United States v.
Brumley, 116 F.3d 728, 742-47 (5th Cir. 1997) (Jolly, J. and
DeMoss, J. dissenting).
Given this unanimity on the central point, our concern here
is only with the question whether the district court’s
instructions properly reflected this court’s approach to the
details of the claim. Previous holdings on this issue are not
necessarily dispositive because “vagueness 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
Nos. 06-3517 & 06-3528 43
convictions 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 communications 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 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 understanding 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
benefits ... 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 understanding
that it was given to influence his decision-making.” The court
also told the jury that “[n]ot every instance of misconduct or
violation of a state statute by a public official or employee
constitutes a mail fraud violation.”
44 Nos. 06-3517 & 06-3528
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 unconstitutional. Many of the
state law provisions in the instructions 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
provisions of Illinois law identified for the jury various ways
in which a public official could “misuse his fiduciary
relationship,” but the instructions as a whole unambiguously
required the prosecution to prove that misuse of the office
was intended for personal gain, as Bloom and Hausman 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 analogized
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 interpretation 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
Nos. 06-3517 & 06-3528 45
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 construed FED. R. CRIM.
P. 8, which governs joinder in criminal 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 delays 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).
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
46 Nos. 06-3517 & 06-3528
act and a means and method of the RICO conspiracy; again,
it charged both Warner and Ryan. Of the remaining twenty
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.)
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 misjoinder 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 unreported 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 specifically 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 conspiracy
charge, state that Ryan was obligated by law to report on his
federal and state tax returns all expenditures by Citizens For
Ryan that were made for personal expenses. Count One also
states that part of the modus operandi of the RICO
Nos. 06-3517 & 06-3528 47
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 purpose of influencing and
rewarding Ryan in the exercise 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
underlying 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 discretion. Zafiro, 506 U.S. at 539-
541. Where joinder of defendants was proper, “a district court
should grant a severance 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 reliable judgment about guilt or innocence.” Zafiro,
506 U.S. at 539. “Actual prejudice” does not exist just because
48 Nos. 06-3517 & 06-3528
“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 discretion. Id.
Warner argues he suffered prejudice because the joinder
violated his substantial rights in multiple ways. He objects
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 constitutional
right to confrontation was violated. These statements 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 confession 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
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 conspiracy 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 furtherance of a scheme to defraud is
Nos. 06-3517 & 06-3528 49
admissible against the other participants in that scheme, just
as it is in a conspiracy 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 conspiracy 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 prejudice from
joinder through limiting instructions rather than severance.
See Zafiro, 506 U.S. at 539.
Finally, Warner argues that the jurors were not following
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 instructions and to keep separate, collate
and appraise the evidence relevant only to each defendant” in
considering 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
instructions 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 to Ryan’s convictions on two counts for
insufficiency of the evidence).
50 Nos. 06-3517 & 06-3528
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 instructions 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 decision. It is also not clear what relief he
is seeking for this alleged infringement of the privilege.
Generally, a defendant challenging an indictment seeks to
have the indictment 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 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).
Nos. 06-3517 & 06-3528 51
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 governor and his counsel, has concluded that the
privilege 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 respectfully 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
52 Nos. 06-3517 & 06-3528
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 presumption 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. 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 sequestration 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. concurring) (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 constitutionally ineffective assistance by opting not
Nos. 06-3517 & 06-3528 53
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 structural
error because the jurors’ irreconcilable conflicts of interest
that resulted from the jury questionnaire situation,”
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
of automatic reversal into a case in this way. Second, neither
the law nor the course of proceedings in the district court
support such a characterization.
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” category. 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 properly 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
influences on the jury... [and a] decision to deny a motion for
mistrial based on juror bias therefore is reviewed according to
an abuse of discretion standard.” McClinton, 135 F.3d at 1186
54 Nos. 06-3517 & 06-3528
(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
characterization 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 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 type of proof
necessary to prove 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
investigation 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 transform 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 rulings 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 consideration. 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.
Nos. 06-3517 & 06-3528 55
Counsel have argued in great detail every point that they
chose to bring before us, and we have limited our review of
the trial proceedings 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
understatement by any measure. The majority then observes
that the lack of a picture-perfect trial “is, in itself, nothing
unusual.” 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 deliberations to be merely harmless.
To understand the influences 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
unremarkable in a routine criminal case and other factors are
totally astounding in any case. The following are highlights
in summary fashion:
56 Nos. 06-3517 & 06-3528
! 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 inconsistencies between
answers in a jury questionnaire and public records.
Nos. 06-3517 & 06-3528 57
! 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 continued 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 counsel, the
individual examination of six sitting and three
alternate jurors was begun.
! Through the judge’s examination it was determined
that a majority of jurors had provided false answers
under oath and could face criminal prosecution. Many
jurors who were interrogated told the district judge
that they were scared, intimidated or sorry for what
had occurred.
! During the course of the interrogations, the jurors
were granted immunity from prosecution by the U.S.
Attorney.
58 Nos. 06-3517 & 06-3528
! Some jurors later hired lawyers in order to represent
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.
! 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 verdicts 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 subdivided and
analyzed in two groups. First, there is a structural error
because of the jurors’ irreconcilable conflicts of interest that
resulted from the jury questionnaire situation. Second, the
Nos. 06-3517 & 06-3528 59
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 responses 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 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 defendants of basic
protections without which a criminal trial cannot reliably
serve its function as a vehicle for determination 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 adjudicator, 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 criminal prosecution.
The Supreme Court has previously upheld 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
60 Nos. 06-3517 & 06-3528
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 government
is also responsible for investigating and prosecuting 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 during 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
September 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
Nos. 06-3517 & 06-3528 61
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 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 interrogated by the district judge.
They were called one-by-one into the judge’s chambers.
Questions regarding inconsistent answers on the jury
questionnaire form were asked. Jurors Ezell and Pavlick
were ultimately dismissed, 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 reconstituted jury would not start the second round
of deliberations 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
62 Nos. 06-3517 & 06-3528
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 questionnaire 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, recognized 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 conduct,
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
Nos. 06-3517 & 06-3528 63
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 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 record 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.
64 Nos. 06-3517 & 06-3528
Jurors who ultimately would render the verdicts now faced
conflicts sufficient enough to have a federal district judge and
several experienced attorneys consider whether these jurors
needed to be advised of their constitutional 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 impossible 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 appointed 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
questionnaire and some apologized for the mistake. Other
jurors specifically mentioned that they were scared or
intimidated by the situation.
Furthermore, this is not a situation in which the district
court can solve the problem by saying that the jurors made an
honest mistake. The decision as to whether 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
Nos. 06-3517 & 06-3528 65
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 investigation
had impacted the jurors’ ability to be fair and impartial 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 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 afforded
the structural protections of a fair trial before a fair and
impartial jury and therefore any error relating to jury
66 Nos. 06-3517 & 06-3528
misconduct, improper influence of the jury and jury bias
should be reviewed under harmless error. Maj. Op. 53-54.
“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 prejudice.” 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 recognized 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, 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,
Nos. 06-3517 & 06-3528 67
652 (C.P. 1610) (tracing the lineage of the implied bias
doctrine 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 defendants 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 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 misconduct 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.52. Nevertheless, courts of appeal
have supervisory authority in fashioning standards 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).
68 Nos. 06-3517 & 06-3528
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. Greenwood, 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.
Juror Peterson claims that the material was an American
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. Regardless, it is clear that Juror
Peterson brought outside material into the jury room during
the course of deliberations 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 concerned 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 that errors relating to
substantive matters, such as obstruction of justice. Both
Nos. 06-3517 & 06-3528 69
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 in any
outside materials 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 with Juror Peterson in the conflict with Juror Ezell,
both obtained 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 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 between Juror
Ezell and several of the other jurors including 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 questionnaire problem.
Thus, the court was faced with two independent 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
70 Nos. 06-3517 & 06-3528
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 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 instructions, 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
Nos. 06-3517 & 06-3528 71
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.
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 majority’s
deduction. The government suggested at oral argument 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 attorneys 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 irresolute 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.
72 Nos. 06-3517 & 06-3528
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, 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 themselves,
avoiding outside influences, conduct 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
Nos. 06-3517 & 06-3528 73
Marshals, transported by van to the courthouse and moved in
a nonpublic elevator to the jury room. At the end of a days’
deliberations the process is reversed. This continues until a
return of the verdict.
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 deliberations. Perhaps most
striking is the example of the division 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
deliberations 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
nonstructural 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 undermine 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
74 Nos. 06-3517 & 06-3528
end to the massive expenditure of time and 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.