United States v. Christopher Seifer

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 14-3097
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
CHRISTOPHER SEIFER,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Eastern District of Wisconsin.
No. 14-CR-19 — J. P. Stadtmueller, Judge.
____________________
ARGUED AUGUST 5, 2015 — DECIDED AUGUST 28, 2015
____________________
Before WOOD, Chief Judge, and BAUER and MANION, Cir-
cuit Judges.
PER CURIAM. Christopher Seifer was convicted of four
counts of mail fraud, 18 U.S.C. § 1341, and one count of theft
of government property, id. § 641. At Seifer’s trial the district
court empaneled 13 jurors without designating the alternate,
who then was chosen randomly just before deliberations.
The government concedes that this method of selecting the
alternate violated Fed. R. Crim. P. 24(c), which requires that
2 No. 14-3097
alternate jurors be selected separately and sequentially be-
fore the presentation of evidence. The only question on ap-
peal, then, is whether Seifer, who never objected, has estab-
lished that he was prejudiced by the error. Because Seifer’s
claim of prejudice is speculative, we affirm the judgment.
I. Background
Seifer worked for the Bureau of Prisons at the Federal
Correctional Institution in Oxford, Wisconsin. He injured his
back on the job, and the Department of Labor’s Office of
Workers’ Compensation Programs determined that he had a
permanent work-related disability. This designation entitled
him to reimbursement for travel expenses incurred for medi-
cal treatments. To obtain reimbursement Seifer completed
and submitted a form OWCP-957. A private administrator,
Xerox, processed these forms and issued Seifer reimburse-
ment checks for trips to health clubs and gyms, where he re-
portedly was using heated pools to rehabilitate his back.
From March 2006 to October 2012, Seifer submitted more
than 1,300 reimbursement claims for travel to facilities with
pools. Most of these claims were false. At the Prairie Athletic
Club, for example, his reimbursement forms show 858 visits
between March 2006 and August 2009, yet his key card was
swiped only 17 times. At another club, Adventure 212, Seifer
was not a member from February through April 2011, but
during those months he purportedly had traveled to the club
and used the pool 37 times. Overall, Seifer netted more than
$80,000 from his fraudulent travel claims.
At the final pretrial conference, the district judge ex-
plained his procedure for selecting an alternate juror: “We
will pick a jury of 13. If at the end of the trial all 13 jurors are
No. 14-3097 3
with us Mr. Seifer will randomly draw one of the jurors’
names who will be designated the alternate and excused.”
This method of selecting the alternate had been rejected as
inconsistent with Rule 24 in United States v. Mendoza, 510
F.3d 749, 753–54 (7th Cir. 2007), but Seifer did not object.
Then on the morning of trial, the court reminded the parties
that 13 jurors would be selected and their seating order de-
termined at random by computer. That is how the court pro-
ceeded.
The government called 22 witnesses, including claims
processors from Xerox and the Department of Labor, federal
agents, and employees from the health clubs. Seifer testified
that he was certain he went to the health clubs on the days
he reported because he “would not have submitted claims if
I didn’t.”
At the close of evidence, the district court informed the
jurors that only 12 of them would deliberate. The court ex-
plained that it would designate the alternate (who then
would be excused) by having Seifer draw one of their names
from a box. Seifer selected juror number 11, who was ex-
cused. The other 12 jurors deliberated and found Seifer
guilty on all counts, and the district court sentenced him to a
total of 15 months’ imprisonment, well below the guidelines
range of 24 to 30 months.
II. Analysis
On appeal Seifer argues that he must be retried because
of the violation of Rule 24(c). Although Seifer acknowledges
that review is for plain error (because he did not object at
trial), he misunderstands the significance of that standard; in
his brief Seifer argues that the government “must be able to
4 No. 14-3097
show that the error did not affect Mr. Seifer’s substantial
rights,” but in fact it’s the defendant’s burden to establish
prejudice when review is for plain error, see United States v.
Dominguez Benitez, 542 U.S. 74, 82 (2004); United States v.
Baker, 655 F.3d 677, 681 (7th Cir. 2011); United States v.
Mansoori, 480 F.3d 514, 523 (7th Cir. 2007). Seifer asserts that
he was prejudiced because, he reasons, juror number 13 may
have assumed that he would be the alternate and thus paid
less attention during trial than other jurors. The government
counters that Seifer’s claim of prejudice is speculative.
Federal Rule of Criminal Procedure 24(c) requires that an
alternate juror have the same qualifications and be selected
and sworn in the same manner as any other juror. See Fed. R.
Crim. P. 24(c)(2)(A), (B). This circuit and others have inter-
preted Rule 24(c)(2) to require that jurors be selected before
the presentation of evidence, beginning with the panel of 12
and then, separately, alternate jurors. See United States v.
Foster, 652 F.3d 776, 781–82 (7th Cir. 2011); United States v.
Hill, 552 F.3d 541, 544 (7th Cir. 2008); Mendoza, 510 F.3d
at 753–54; United States v. Merrill, 513 F.3d 1293, 1308–09
(11th Cir. 2008); United States v. Brown, 510 F.3d 57, 72
(1st Cir. 2007); United States v. Delgado, 350 F.3d 520, 525
(6th Cir. 2003); United States v. Sogomonian, 247 F.3d 348, 352–
53 (2d Cir. 2001). Alternates—in the order of their selec-
tion—will step in if any of the 12 jurors becomes unable to
continue serving. See United States v. Love, 134 F.3d 595, 601
(4th Cir. 1998). In contrast, a practice of empanelling more
than 12 jurors and then randomly selecting alternates from
the group, as the district court did in this case, cannot be
reconciled with Rule 24. The district judge did not say why
he was resorting to this practice instead of complying with
Rule 24, though part of the blame must rest with the gov-
No. 14-3097 5
ernment, whose lawyer conceded at oral argument that he
had not been aware of the rule when he tried the case. In
Mendoza we made clear that district judges do not have dis-
cretion to disregard the explicit requirements of Rule 24, and
we requested that “vintage” practices like this one be discon-
tinued. 510 F.3d at 753–54. Eight years on we should not be
seeing the same error, and it is one that must end.
Nonetheless, the district court’s error does not entitle
Seifer to a new trial because he has not shown that his ran-
dom pick of the alternate juror at the close of evidence af-
fected his substantial rights. See Mendoza, 510 F.3d at 754;
Love, 134 F.3d at 601. Seifer contends that he was prejudiced
because (1) we cannot tell from the record whether the 13
names in the box were written on papers of precisely the
same size; (2) the district court ignored Wis. Stat.
§ 565.27(2)(b)(4) by conducting a “lottery” without inspect-
ing the “equipment” before and after the drawing; and
(3) juror number 13 probably expected to be the alternate
and didn’t pay close attention to the evidence, thus creating
an unfair jury panel. Each argument is meritless.
First, Seifer has not shown that the size of the papers
used in the drawing for the alternate juror made a difference
in the outcome; he does not assert that any of the 13 original
jurors was biased, so he was still left with an impartial jury
even if a difference in the size of the papers led him to select
one particular name instead of some other. Moreover,
Seifer’s farfetched argument about the size of the papers is
also entirely speculative; the papers themselves are not part
of the record on appeal, and if they are important Seifer
should have supplemented the record. See Fed. R. App.
P. 10(e); Morisch v. United States, 653 F.3d 522, 530
6 No. 14-3097
(7th Cir. 2011); In re Dorner, 343 F.3d 910, 914 (7th Cir. 2003);
Learning Curve Toys, Inc. v. PlayWood Toys, Inc., 342 F.3d 714,
731 n.10 (7th Cir. 2003). Second, a Wisconsin statute govern-
ing lotteries is inapplicable to federal criminal proceedings,
see, e.g., United States v. Bruce, 550 F.3d 668, 673 (7th Cir.
2008); United States v. Wilson, 169 F.3d 418, 423–24 (7th Cir.
1999), and, anyway, it is frivolous to call the process of
choosing a juror’s name from a box a “lottery” within the
meaning of this Wisconsin statute. Third, Seifer has not giv-
en us any reason to conclude that juror number 13 paid less
attention than the other 12. Seifer speculates about the ju-
rors’ thought processes, but that will not work. See Delgado,
350 F.3d at 525–26; United States v. Brewer, 199 F.3d 1283,
1287 (11th Cir. 2000). For a new trial to be warranted, there
must be a basis to believe that Seifer’s jury was not impartial.
See, e.g., Mendoza, 510 F.3d at 754; United States v. Sivils, 960
F.2d 587, 594 (6th Cir. 1992). Seifer has not come close to
meeting this burden.
III. Conclusion
Accordingly, we AFFIRM the district court’s judgment.