decided: August 7, 1979.
UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
JAMES Y. CARTER, DEFENDANT-APPELLANT.
Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 77 Cr 909-1 -- John F. Grady, Judge.
Before Cummings and Tone, Circuit Judges, and Campbell, Senior District Judge.*fn*
Defendant was for over fifteen years the Public Vehicle License Commissioner (Taxi-cab Commissioner) for the City of Chicago. On November 21, 1978, he was convicted of nine counts of a 13-count indictment charging him with racketeering activity (18 U.S.C. § 1962), violating the Hobbs Act (18 U.S.C. § 1951) and failure to report income for tax purposes (26 U.S.C. § 7206(1)). The charges were based on defendant's extortion of money from owners of independent cabs in exchange for the necessary transfer of licenses and other favorable treatment.
In this appeal defendant asserts that the district court committed reversible error by denying two requests by defense counsel designed to assure the impartiality of the jury. He urges that the district court committed reversible error (1) by not interrogating the jurors individually In camera as to whether they had been exposed to any prejudicial publicity that occurred during the trial*fn1 and (2) by not sequestering the jury after they had begun deliberating on the night of November 20. We affirm.
Because defendant relies heavily on the facts of this particular trial to support his claims, we will describe the relevant events in some detail. The trial began on Monday, November 13. Before dismissing the jurors for the day, Judge Grady admonished them at length and in detail not to read, listen to or watch anything about the case in any of the media and not to discuss it with anyone.*fn2 The following day both the Chicago Sun Times and the Chicago Tribune reported the events at the trial. Both stories were factual, non-inflammatory and could have told the jurors nothing they did not already know.
On Tuesday, November 14, when the court reconvened defense counsel informed it that a plea agreement had been worked out with the Government. After a delay to have it typed, a lengthy and detailed plea agreement signed by the defendant, three Government counsel and three defense counsel was submitted to the court. In accord with Rule 11 of the Federal Rules of Criminal Procedure, the district judge proceeded to question the defendant in order to establish a factual basis for the plea. The defendant denied receiving some of the money acknowledged in the plea agreement, and while he admitted receiving the rest, he denied that he had demanded it or that he accepted it in exchange for taking certain actions in his official capacity. Judge Grady concluded that the defendant had refused to admit facts necessary to establish extortion, and he therefore refused to accept the plea. The extensive questioning preceding the rejection of the plea took place in open court but not in the presence of the jury. At the end of the interrogation the judge commented to defense counsel "(W)e have wasted and I mean wasted three hours" (Tr. 191). The court then called the jury in, admonished them not to read the newspapers, watch television or listen to the radio at all, and sent them to lunch.*fn3 After lunch the trial continued. When the jurors were excused for the day, the judge again strongly admonished them not to read, watch or listen to any media reports of the case or to discuss it with anyone.*fn4
The following day the Sun Times and the Tribune carried a total of five stories relating to the defendant's unsuccessful attempt to plead guilty and the judge's comment about wasted time (R.65 ex. C-G).*fn5 That morning before the trial began the court held an In camera discussion with counsel regarding the possible exposure of the jurors to the publicity about the attempted plea. Defense counsel began to request In camera individual interrogation of the jurors, but the judge, relying on Margoles v. United States, 407 F.2d 727 (7th Cir. 1969), certiorari denied, 396 U.S. 833, 90 S. Ct. 89, 24 L. Ed. 2d 84, concluded that he would first question the jury collectively. "If any of them say they have read it or seen it, then we go in camera, but not in the event no one has read it or seen it" (Tr. 355). When the jurors were brought in, the judge carefully questioned them as to whether they had heard or seen anything about the case in any of the media or from any other source outside of the courtroom.*fn6 When none responded affirmatively, the trial was continued. When the jurors were excused for the day, they were again admonished as to the importance of avoiding publicity regarding the case.*fn7
After the jury had been excused, defense counsel moved In camera for a mistrial based on the publicity about the aborted plea. The judge denied the motion, relying primarily on the jury's negative response to his interrogation.*fn8 Judge Grady gave as additional reasons for denying the motion the fact that the defendant had apparently intentionally brought the situation on himself*fn9 and his belief that in the context of this case the defendant would not be prejudiced even if the jury had been exposed to the offending publicity.*fn10
From that day until the following Tuesday, the day the guilty verdict was handed down, only one article regarding the trial appears in the record. That article, published on November 16, was an editorial in the Chicago Tribune entitled "Why did it take so long?" The editorial noted the attempted guilty plea and stated that the defendant had been publicly charged with official misconduct seventeen years earlier. It ended by questioning why prosecution had taken so long (R.65, ex. H). That day, and on Friday and Monday as well, the court began each session by interrogating the jury collectively as to whether any of them had read, seen or heard anything about the case (Tr. 532, 635, 869). The response was always negative.*fn11 At the end of the day on Thursday and Friday the jury was again carefully admonished to avoid publicity about the case (Tr. 615, 862).
The trial concluded on Monday afternoon, and the jury began deliberating at 6:00 p. m. At about 9:35 p. m. the judge held an In camera conference with counsel for both sides to determine whether the jury should be sequestered. Defense counsel advocated sequestration on the ground that
"There is a likelihood of more publicity at this point in time. * * * I think the chances of them remaining sanitized is (Sic ) much less at this point in time." (Tr. 1088.)
The prosecutor agreed to sequestration out of "an abundance of caution" (Tr. 1089). The judge, however, exercised his discretion in favor of not sequestering the jury.*fn12 He gave two reasons for doing so. First, addressing the issue of publicity, which was the only reason for sequestration advanced by the defense, he stated that he thought the risk of seriously prejudicial publicity was not great and that "so far they (the jurors) have abided by the Court's strictures on that kind of thing * * * " (Tr. 1090). Later, he noted that the jury was not prepared for sequestration, and commented
"My interest is in insuring a fair trial to both sides and at the same time not doing anything that is terribly oppressive as far as the jury is concerned.
"The latter consideration is motivated not only out of concern for the jury but out of concern for the first consideration because if we discombobulate these jurors, they are not going to be able to view the thing with the same kind of concentration we would hope for under ideal conditions.
"So it seems to me that it is to everyone's advantage to have a jury that is not unstuck emotionally." (Tr. 1093.)
When the court reconvened the following morning, the jurors were again interrogated on whether they had been exposed to publicity about the trial. The response was negative. The guilty verdict on nine counts was returned later that day.*fn13 A post-trial motion for acquittal or a new trial, based on the assertedly erroneous denial of the motion for a mistrial because of the publicity about the attempt to plead guilty and the refusal to sequester the jury, was denied (R.65, 66). We affirm the judgment of conviction.
The Court Was Not Required to Interrogate the Jurors Individually and In Camera.
The defendant concedes that the law of this Circuit, under Margoles v. United States, 407 F.2d 727 (7th Cir. 1969), is that "only when a juror indicates (after the judge questions the jury collectively) that he has been exposed to any of the publicity in question is the defendant entitled to an individual and In camera inquiry of that juror" (Br. 11). Indeed, the Government is correct when it characterizes the procedures set out in Margoles as well-settled. See United States v. Battaglia, 432 F.2d 1115, 1118 (7th Cir. 1970), certiorari denied, 401 U.S. 924, 91 S. Ct. 868, 869, 883, 27 L. Ed. 2d 828; United States v. Barrett, 505 F.2d 1091, 1100 (7th Cir. 1975), certiorari denied, 421 U.S. 964, 95 S. Ct. 1951, 44 L. Ed. 2d 450; United States v. Akin, 562 F.2d 459 (7th Cir. 1977), certiorari denied, 435 U.S. 933, 98 S. Ct. 1509, 55 L. Ed. 2d 531. The Fifth Circuit summarily approved the collective interrogation procedure when the offending publicity, as here, consisted of reports that the defendant had entered and then withdrawn a guilty plea. United States v. Khoury, 539 F.2d 441 (5th Cir. 1976).
While he chose not to address this issue at all during oral argument, defense counsel in his brief urges that notwithstanding these precedents, the circumstances of this case made it reversible error not to interrogate the jurors individually. Although not clearly articulated, the argument appears to be twofold: (1) there was so much adverse publicity that it is inconceivable the jury was not influenced by it, and (2) in any event the specific collective interrogation procedure used here was unlikely to elicit admission by a juror that he had been exposed to outside influences.
The facts of this case do not support the contention that the publicity was so pervasive and hostile that prejudice should be presumed. The cases cited by defendant in this regard are plainly inapposite. Most of them involved sensational murder trials where the accused faced the death sentence and the media was saturated with virulently prejudicial publicity or with reports of the accused's confession. Sheppard v. Maxwell, 384 U.S. 333, 86 S. Ct. 1507, 16 L. Ed. 2d 600; Rideau v. Louisiana, 373 U.S. 723, 83 S. Ct. 1417, 10 L. Ed. 2d 663; Irvin v. Dowd, 366 U.S. 717, 81 S. Ct. 1639, 6 L. Ed. 2d 751. In all of these cases, it was conceded that the jurors had been exposed to the adverse publicity, and the only question was whether it was so prejudicial that it must be presumed that the jury could not put it out of their minds. See also Marshall v. United States, 360 U.S. 310, 79 S. Ct. 1171, 3 L. Ed. 2d 1250. In the present case, in contrast, the only real question regarding prejudicial publicity is whether the jury knew about the aborted guilty plea.*fn14
We therefore turn to the adequacy of the procedures used to admonish and interrogate the jury. The defendant complains that these charges from the court were performed in a rote manner. A number of them are quoted at length in the Appendix to this opinion and they demonstrate that the court could hardly have been more conscientious. Next, the defendant suggests that the court was excessively paternalistic and that the jurors would be unlikely to admit in open court that they had disobeyed his instructions. There is no support for this hypothesis, which could be advanced any time a jury is interrogated collectively.*fn15 To accept it would effectively overrule Margoles v. United States, supra, which we decline to do.
Finally, the defendant seeks to distinguish this case from Margoles, supra. The fact that a specific defense request for individual juror interrogation was made here but not in Margoles is not dispositive. We have previously held that a collective inquiry may suffice even though an individual one was requested. United States v. Akin, supra. Furthermore, we see no basis to conclude that the publicity in this case was significantly more prejudicial than that in Margoles.*fn16 The fact that in Margoles the court asked about specific news articles whereas here the inquiry was a general one does not strengthen defendant's case, especially when his attorneys had represented to the court that they were concerned about out-of-court discussions as well as media coverage. The judge was making a commendable attempt to be thorough.*fn17 We have approved such general inquiries before. United States v. Barrett, supra.
We note finally that contrary to defendant's contention, Margoles did not overrule any assertedly salutary rule established in United States v. Accardo, 298 F.2d 133 (7th Cir. 1962) requiring individual juror interrogation. The Accardo case turned on the inadequacy of the single admonition to the jury to avoid exposure to publicity about the trial, which was rendered only at the very beginning of the case. Although the majority opinion refers to the necessity for individual juror questioning, it is unclear whether the reference is to the inquiry about whether the jurors had been exposed to publicity or instead whether despite such exposure they could maintain their impartiality. In any event one judge dissented, finding the procedures used constitutionally adequate. The third judge concurred but made clear that individual juror questioning was not required. (298 F.2d at 140.)*fn18
The District Court Did Not Abuse its Discretion by Allowing the Jury to Separate After Beginning its Deliberations.
This Court held in United States v. Arciniega, 574 F.2d 931 (7th Cir. 1978) that it was within the district court's discretion to allow a jury to separate after it had begun deliberating. Arciniega expressly overruled the earlier rule in this Circuit that the defendant had a right to uninterrupted jury deliberations. Arciniega brought this Circuit into accord with most other circuits, which allow the district court in the exercise of its discretion to permit a deliberating jury to separate. United States v. Johnson, 584 F.2d 148, 154-155 (6th Cir. 1978); United States v. Piancone, 506 F.2d 748 (3d Cir. 1974); United States v. Hill, 496 F.2d 201, 203 (5th Cir. 1974). Although the circumstances of the Arciniega case were extraordinary,*fn19 this Court has since approved allowing the deliberating jury to separate when there was no special reason to permit them to do so. United States v. Muscarella, 585 F.2d 242 (7th Cir. 1978). Clearly there is no absolute rule that jury deliberations may not be interrupted.
The question becomes the scope of the district court's discretion to release the jury and whether that discretion was abused in this case. The defendant primarily argues that we should overrule the Arciniega rule that
"for separation to constitute reversible error there must be an objection supported by specific reasons against separation and a showing that the defendant was actually prejudiced by reason of the separation." (574 F.2d at 933.)
This we decline to do. Defendant appears to argue that it will be almost impossible for a defendant to demonstrate actual prejudice, and therefore that it should be reversible error any time a deliberating jury is allowed to separate over a defendant's objection. We cannot agree. The other circuits that have allowed the district courts to exercise their discretion in deciding whether or not to allow the jury to separate once deliberations have begun have not required the defendant to agree. United States v. Johnson; United States v. Piancone; United States v. Hill, all Supra. As Judge Grady pointed out (quoted Supra ) it may well serve the interest of justice to have the jury separate and return refreshed the next day especially when, as here, the jurors were not told ahead of time that they might be sequestered.*fn20 While the defendant might be expected to look after his own interests and to agree to let the jury separate when that appeared advantageous to him, the prosecutor and the court also have an interest in assuring that the jury reaches a verdict free of extraneous pressures and discomfort. Also, of course, the jury should not be subjected to unnecessary strain.
We do not agree that it will be almost impossible for any defendant to demonstrate actual prejudice sufficient to justify a reversal under Arciniega. For example, if a juror in this case had been exposed to seriously prejudicial publicity overnight, this might have necessitated a mistrial.*fn21 For this reason it might have been the better course and often will be the better course for the district court to arrange ahead of time to sequester the jury.*fn22 However, this does not mean that the Arciniega rule need be limited to cases in which the defendant does not object.*fn23 We are confident that district courts will be sensitive to preserving the integrity of the jury deliberations and will not casually allow deliberating juries to separate, particularly because if the defendant can show the likelihood of actual prejudice as a result of separation, he will be entitled to a mistrial. We note in addition, as did the district court, that in this case proof of guilt was overwhelming. Where the case is closer it might well be easier for the defendant to show prejudice.
Defendant here has virtually conceded that he can show no such prejudice. The only potential prejudice he suggests is that of adverse publicity. However, we have already determined that the district court took adequate measures to admonish the jurors to avoid publicity and to interrogate them to determine whether they had been exposed to any. As we held in United States v. Barrett, Supra, once appropriate procedures for admonishing and interrogating the jury have been followed, the court is entitled to conclude that the jury was not exposed to the potentially prejudicial publicity. We fail to see why procedures which were deemed adequate during the trial to assure an impartial jury became less so once that jury has begun to deliberate.*fn24
The judgment is affirmed.
A. Admonishment of November 13, 1978:
"Let me say something that is very important. You should not read about this case in the newspapers. You should not listen to anything about it on the radio, and you should not watch or listen to anything about it on the television.
"I think it is safe to assume that reference to this case will be made in all three of those media from time to time during the course of the trial. It is absolutely essential that the only information that you get about this case comes from that witness stand. That is where the testimony is under oath. That is where it is subject to cross examination. That is where it is subject to rules governing the admission of evidence.
"I don't want your minds being affected in any way by anything that you get from any other source because we have no control over that. We don't know whether it is true or false. We don't know whether it is rumor. We don't know whether it is the wildest kind of misinformation.
"If you get anything out of any of those sources, the problem is that down the line when the case is all over, you will have very great difficulty remembering what you got where. One thing we do know is if the only place you get anything is right from the stand, then we don't have any problems. We know that every piece of information you have you got from a legitimate source.
"I don't mean to say that the newspapers or the press are illegitimate. It is just that they are not subject to the rules that govern the trial of lawsuits.
"It will be necessary for me and I will tell you in advance it will be necessary for me to ask from time to time whether anyone has read anything or seen anything in the paper or heard it on TV. So there will be occasion for me to find out whether you are doing this.
"I am sure no one will deliberately disobey this injunction. The dangerous thing is that you might hear something or read something inadvertently. So be vigilant about what you read in the newspaper. If you see a headline in the paper or one of these short little headlines above an article that looks like it might pertain to this case, go on to something else. Turn the page. The same thing with the radio and the TV, if you catch a snatch of a beginning of an announcement that sounds like it might pertain to this case, walk out of the room, turn it off, because we don't want to have anything go wrong here.
"There is an awful lot of time and money and energy that is invested in this trial and in the process of keeping it fair. It is essential that we all cooperate toward that end.
"Don't discuss the case with anybody. When you go home tonight, if your husband or wife asks you what kind of a case it is, you can just say that it is a criminal case but don't discuss any of the details and keep your thoughts to yourselves." (Tr. 138-140.)
B. Admonishment of noon, November 14, 1978:
"Now, I must admonish you not to read the newspapers, not to watch television, and not to listen to the radio. In this instance I must ask you not simply to selectively avoid any article or item that might pertain to this case. I must insist that you not read the paper at all and I must insist that you not listen to the radio at all, nor watch television at all until further notice.
"Now, I mean this quite literally and I am not asking you anything that is not necessary. I am not being unreasonable simply for the sake of inconveniencing you." (Tr. 192-193.)
C. Admonishment at the close of court on November 14, 1978:
"Let me admonish you again not to read the newspapers between now and further notice from me. And I mean that literally, just don't read the newspapers. Don't let anybody talk to you about this case. If you get home tonight and somebody says, "Let's talk about the case', just tell them, "You don't want to hear about it. You don't want to talk about it.'
"I told you today, don't watch television or listen to the radio. You can watch television tonight but don't watch any news programs. If there is a program that you want to watch that is a regular show of some kind, you can go ahead and do that but please don't watch the 10 o'clock news or the 6 o'clock news or anything like that.
"The same with the radio. If you want to listen to FM music or something like that, go ahead; but don't listen to any newscasts.
"I have a very good reason for doing this. It is not simply an idle suggestion. I am just as certain as I sit here that there will be material about this case that you should not see or hear that will be on the media and that is why I am giving you this instruction and I mean it just as much as I can mean anything. So please do not violate this rule." (Tr. 335-336.)
D. Interrogation of jury on November 15, 1978:
"I would like to ask some questions. If any of your answers is yes to any of these questions, please so signify by raising your hand.
"First, has any of you read anything about this case in any newspaper since the trial started on Monday?
"Second, has any of you seen anything about this case on television since the trial started on Monday?
"Third, has any of you heard anything on the radio about this case since the trial started on Monday?
"Fourth and finally, has any of you received any information whatsoever about or pertaining to this case since the trial started on Monday other than what you heard here in this courtroom?
"All right, the record may show that all jurors have answered those four questions in the negative by not raising their hands.
"I might say that I am very pleased that we have got a good record of compliance with the Court's directive." (Tr. 361-362.)
E. Admonishment of November 15, 1978:
"Now, let me admonish you again not to read the newspapers, not to watch and I mean any newspapers at all. Please do not watch any news program on television and do not listen to any news program on the radio.
"When this is all over with, I think you will feel and regardless of how the case comes out. That has nothing to do with it but I think you will all feel that you have rendered a worthwhile and very important public service by serving as jurors on this case. Public service sometimes involves sacrifice, and what I am asking you to do is to sacrifice that part of your normal life that is involved with the news." (Tr. 467-468.)
TONE, Circuit Judge, concurring.
Although I joined in the Arciniega opinion and have no doubt that case was correctly decided on its facts, I now think the rule we announced there, 574 F.2d at 933, goes too far by requiring a showing of actual prejudice. The time when the jury is deliberating is indeed "the most delicate time of all," as the United States Attorney said in stating his reasons for favoring sequestration in the case at bar. It is the time of greatest danger that a troubled juror may be tempted to seek outside information or even advice, and the serious impropriety of such an act makes it less likely that it will be disclosed later. That danger is increased when the trial is receiving media coverage that makes such outside information or advice readily available. The danger of jury tampering will also probably be greater at that point in the trial, especially if it becomes the general rule not to sequester jurors. Therefore, I think separation of the jury during deliberation should be the exception in criminal trials. With a little advance planning, either the necessity for overnight sequestration can be avoided or it can be carried out with a minimum of inconvenience to jurors.
The standard I would substitute for actual prejudice, absent exigent circumstances or a stipulation for separation, both of which were present in Arciniega, is serious risk of prejudice. This standard would recognize that actual prejudice is likely to be difficult to prove, since proof usually depends on a wrongdoer's admission; and it would have the prophylactic effect of requiring that a serious risk of prejudice be avoided.
The case before us is one in which allowing the jury to separate during deliberations carried with it a serious risk of prejudice. The defendant's aborted guilty plea had been covered in news stories and, in view of the media's interest in the trial, was likely to be reported again in recapitulation stories on submission of the case to the jury, as in fact it was.
The rule I propose is not the rule of this circuit at present, however. Given the present rule requiring actual prejudice, I concur in the result.
I also agree that the law as it now stands does not require jurors to be interrogated individually about their exposure to prejudicial publicity occurring during the course of the trial. When such publicity does occur, however, I believe the better way to assure that the jurors have not been exposed to it will usually be individual interrogation In camera followed by a report by the judge to counsel and the defendant.
I concur in the judgment for the reasons stated above.