Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. 83-CR-13- S. Hugh Dillin, Judge.
Before CUDAHY and EASTERBROOK, Circuit Judges, and PELL, Senior Circuit Judge.
EASTERBROOK, Circuit Judge.
William Widgery stands convicted of mail fraud and securities fraud. His trial lasted more than two weeks. The jury deliberated for one full day and parts of two others. During the deliberations the foreman of the jury sent the judge two notes. One accused another juror of intoxication; the other asked the judge "what we were to do if we couldn't reach a verdict or how long we were supposed to deliberate." In response to the first note the judge told the bailiff to watch the juror in question closely; in response to the second he had the bailiff tell the foreman to "keep on trying." Defense counsel did not learn about either note until the trial was over.
Both incidents were regrettable. Fed. R. Crim. P. 43(a) gives the defendant a right to be present at every stage of the trial, and this requires the court to share with defendant notes from the jury. Notes should be examined and answers given in open court. Rogers v. United States, 422 U.S. 35, 45 L. Ed. 2d 1, 95 S. Ct. 2091 (1975); Shields v. United States, 273 U.S. 583, 71 L. Ed. 787, 47 S. Ct. 478 (1977), cert. denied, 439 U.S. 954, 99 S. Ct. 357, 58 L. Ed. 2d 345 (1978). To answer a note without consulting counsel may spoil a perfectly good trial for several reasons-not only because it denies defendant the court to cure a genuine problems in the deliberations before it is too late. A response arrived at after hearing from the parties is more likely to be accurate than one delivered on the spur of the moment. In October 1984 this court remanded the case with instructions to hold an evidentiary hearing to develop the nature and consequences of the irregularities.
The district judge found that he foreman's charge of a juror's drinking was unsupported. Seven other jurors testified that they had observed the juror in the question throughout the trial; none detected an odor of alcohol on the juror and saw neither drinking at meals nor signs of drinking. The court found the foreman's contrary assertion false. The district judge also found that the inquiry about deliberations was the foreman's own doing. She did not discuss the note with the other jurors. The court characterized the note as "hypothetical," a "what if . . ." inquiry about a problem of deadlock that never developed.
Widgery contests both conclusions. He also says that the judge should have disqualified himself under 28 U.S.C. § 455, both under § 455(a) because his impartiality may reasonably be questioned and under § 455(b)(1) because he had knowledge of disputed evidentiary facts. Because Widgery never moved for disqualification in the district court, the argument under § 455(a) fails. Disqualification for the appearance of impropriety runs prospectively only; even a successful motion does not vitiate acts taken before the motion was filed. United States v. Murphy, 768 F.2d 1518, 1539-41 (7th Cir. 1985). disqualification under § 455(b) motion here. Knowledge of disputed facts requires disqualification only if the knowledge has an extrajudicial source. United States v. Coven, 662 F.2d 162, 168 (2d Cir. 1981), cert. denied, 456 U.S. 916, 72 L. Ed. 2d 176, 102 S. Ct. 1771 (1982). Were it otherwise, no judge could rule on post-trial motions claiming error in the conduct of the trial. The judge's knowledge of the facts here comes exclusively from the trial. disqualification was unnecessary, and we turn to the merits.
The response to the foreman's charge of another juror's intoxication was appropriate, even though the judge should have consulted with both sides before acting. The bailiff's observations put the lie to the charge. There was no need for additional inquiry at the time; the hurling of accusations might have disrupted the deliberations to everyone's detriment. The subsequent inquiry confirmed the bailiff's observations. The judge's error in not showing the note to counsel was harmless under any meaning of that term.
The response to the foreman's note creates more substantial difficulties. The judge did not know at the time whether the jury was deadlocked. He did not know that the note was the foreman's doing. And he should have known that there was risk that the foreman would have interpreted his answer as a direction to keep deliberating come what may-an anticipatory "dynamite" charge without the required reminder that each juror must reach his own conclusions and not give in just to produce a verdict.
As things turned out, none of this occurred. The jury was never deadlocked. The trial lasted 21/2 weeks, and there were a total of 18 counts against two defendants. There were more than 150 exhibits. Deliverations began on April 27, 1983, at 1:05 p.m., and the jury separated at 9:00 p.m. The jurors went back to work at 10:00 a.m. the next day. The foreman sent the note to the court sometime that day. At 5:50 p.m. the court brought in the jury and asked whether it had reached any verdict. The foreman said no. The judge then asked whether the jurors thought they could reach a verdict if given additional time; all jurors nodded. On learning that he jury was not deadlocked, the judge allowed them to continue their work without further instructions. At 7:40 p.m. the jury returned four verdicts, convicting Widgery on two counts. the jury continued deliberating until 10:50 that evening. The next morning at 11:00 the jury convicted Widgery on the remaining 14 counts. It does not seem likely that the foreman's note and the court's answer has any influence on this.
Widgery asks us to bypass consideration of harmless error and reverse his conviction as an exercise of our "supervisor power." We do not have the power Widgery attributes to us. "Supervisory power" has two meanings that must be kept separate. Supervisory power sometimes means the authority to announce new rules that promote the administration of justice, even though neither constitution nor statute requires such rules. Long before Congress began to regulate criminal trials by statute, or the Supreme Court found a code of criminal procedure in the great generalities of the bill of rights, courts were adopting rules to govern proceedings before them. "supervisor power" is just a new title for a very old practice. This Supreme Court invoked in McNabb v. United States, 318 U.S. 332, 87 L. Ed. 819, 63 S. Ct. 608 (1943). United States v. Hale, 422 U.S. 171, 45 L. Ed. 2d 99, 95 S. Ct. 2133 (1975), and similar cases, and that we invoked in United States v. Silvern, 484 f.2d 879 (7th Cir. 1973) (en banc), to formulate instructions to be given to deadlocked juries. See also United States v. Torres, 751 F.2d 875, 878-80 (7th Cir. 1984).
The other possible meaning of "supervisory power" is the one Widgery presses on us-a power to reverse judgments without requiring a demonstration that the error in question affected the outcome. Reversals of this character, it is said, will reinforce the rule in question. If a judge knows that reversal is automatic, he will follow the rule; if he knows that reversal depends on a showing of prejudice, he will be less likely to honor the rule. Appellate courts once took this view, becoming "impregnable citadels of technicality." Roger Trayner, The Riddle of Harmless Error 14 (1970). Congress enacted (or approved) harmless error rules to reverse that approach. Fed. R. Crim. P. 52(a) and 28 U.S.C. § 2111 require courts to disregard errors that do not affect "substantial rights." The supervisory power is part of the common law, and no court has a common law power to disregard a rule or statute that was within the authority of Congress to enact. The supervisory power permits a court to fill in interstices, not to "disregard the considered limitations of the law it is charged with enforcing." United States v. Payner, 447 U.S. 727, 737, 65 L. Ed. 2d 468, 100 S. Ct. 2439 (1980). It therefore does not authorize a court to disregard the harmless error rules. See United States v. Hasting, 461 U.S. 499, 505-07, 103 S. Ct. 1974, 96 L. Ed. 2d 96 (1983).
Sometimes it is so difficult to tell whether the violation of a rule has injured the defendant, and so likely that the violation did, that the violation cannot be harmless error. Some deprivations other right to counsel are in this category. Geders v. United States, 425 U.S. 80, 47 L. Ed. 2d 592, 96 S. Ct. 1330 (1976). The right to see a note from the jurors and comment on the response is not. Rushen v. Spain, 464 U.S. 114, 78 L. Ed. 2d 267, 104 S. Ct. 453 (1983). The lower courts in Rushen thought that he absence of a contemporaneous record made a harmless error inquiry impossible; the Supreme Court disagreed, holding that the prejudicial effect of a judge's failure to discuss with counsel communications from and the jury "can normally be determined by a post-trial hearing." Id. at 119. See also Smith v. Phillips, 455 U.S. 209, 71 L. Ed. 2d 78, 102 S. Ct. 940 (1982). The communication in Rushen involved a juror's knowledge of evidentiary facts; there is no reason to treat differently a juror's hypothetical inquiry about deadlocks.
There remains the question whether the harmless error inquiry should be conducted under the statutory standard of effect on "substantial rights" or under the elevated standard that Chapman v. California, 386 U.S. 18, 17 L. Ed. 2d 705, 87 S. Ct. 824 (1967), requires for deprivations of most constitutional rights. This court, like several others, has on occasion used the Chapman standard for a problem like the one we have here. Each time it has assumed without deciding that its is appropriate. E.g., Ware v. United States, 376 F.2d 717, 719 (7th Cir. 1976). Cf. United States v. Silverstein, 732 F.2d 1338, 1348 (7th Cir. 1984) (finding error harmless without specifying the standard of harmlessness). None of our cases has held, however, that a ...