Appeal from the United States District Court for the Southern District of Illinois, Benton Division. No. 94 CR 40039 J. Phil Gilbert, Chief Judge.
Before EASTERBROOK, KANNE, and DIANE P. WOOD, Circuit Judges.
The government indicted Walter Berry, Jr., on two counts of unlawful delivery of crack cocaine. The only difference between the quantum of evidence against Berry under the first and second counts was a tape recording of a conversation that allegedly took place between Berry and Eddie Brown, a government informant, and that purported to implicate Berry in the illegal activity that was the subject of count two.
Over Berry's objection, the tape recording was admitted into evidence and played for the jury. In order to aid the members of the jury in listening to the recording, the district court allowed the government to provide them a transcript of the recording while the recording was played in open court. Along the margin of the transcript, Berry and Brown were identified as the speakers. The transcript was not admitted into evidence, nor was it marked as an exhibit. *fn1 Berry had objected to providing the transcript to the jury on the ground that its identification of him as a speaker was unfairly prejudicial in light of the fact that his theory of defense was that he was not the person who sold the cocaine to Brown. The government responded that Brown had supplied the fact that Berry was the speaker. The district court then overruled Berry's objection, advising Berry he could attack Brown's identification of him on cross examination. However, for whatever reason, Brown never testified as to the accuracy of the transcript's identification of Berry as a speaker, thus leaving the transcript unauthenticated.
Both prior to the playing of the recording and during its charge to the jury, the district court instructed the jury that the transcript was not evidence but only an aid to help them listen to the recording and that if they believed the recording indicated something different from what was on the transcript, the recording controlled. *fn2
At the end of the two-day trial, the jury began its deliberations. Unbeknownst to the district court and counsel, the jurors had retained copies of the transcript. Following six and one-half hours of deliberations, the jury returned split verdicts -- an acquittal on count one and a guilty verdict on count two. It was not until after the jury rendered its verdicts, when the court was discussing the jury experience with the jurors, that the court learned the jury had the transcript during its deliberations. The district court then called the jury into open court and asked them whether they had used the transcript in their deliberations, to which they answered in the affirmative. The district court noted that one juror had told him that without the transcript he would have returned a guilty verdict on count two in fifteen minutes. However, presumably in accordance with FED. R. EVID. 606(b), *fn3 the district judge did not question the jurors as to what effect the transcript had upon their deliberations.
The district court subsequently granted Berry's motion for a new trial on the ground that there was a reasonable possibility that the transcript influenced the jury's verdict. In reaching that conclusion, the district court noted its perception that the "government's case is not the strongest case in the world." The district court also expressed concern regarding the efficacy of its instruction regarding the nonevidentiary nature of the transcript. After reaching the conclusion to grant Berry's motion, the district judge noted that the case law in this circuit would allow him to provide a jury with a copy of a transcript during its deliberations, and the judge expressed his intent that he would "likely" send future transcripts back with the jury.
The government appealed the district court's decision granting a new trial, and we remanded the matter to the district court to make an explicit determination as to whether there was a reasonable possibility that Berry was prejudiced by the jury's use of the transcript during deliberations. United States v. Berry, 64 F.3d 305, 308 (7th Cir. 1995).
On remand, the district court recognized the importance of the transcript to the jury's guilty verdict on count two. The district court reasoned:
Since the sole issue in Count II was whether defendant Berry was one of the speakers on the recording, the transcription's identification of one speaker as the defendant clearly had an influence upon the jury's verdict which was prejudicial to the defendant. As Judge Rovner wrote in her concurring opinion, "it is difficult to imagine evidence that would be more prejudicial to the defendant than a transcription of a conversation in which he allegedly sold crack cocaine to a government informant, where the transcription identified him as the speaker and the sole issue in the case is who was speaking during the transaction." (quoting Berry, 64 F.3d at 309 (Rovner, J., concurring)).
The government appeals, challenging the district court's finding of prejudice.
A criminal defendant has "a right to be tried on the basis of the evidence admitted at his trial, and this right may be violated if the jury gets access to extra-record evidence . . . even if the access is not the result of any prosecutorial misconduct." United States v. Sababu, 891 F.2d 1308, 1333 (7th Cir. 1989) (quoting United States v. Bruscino, 687 F.2d 938, 940 (7th Cir. 1982) (en banc), cert. denied, 459 U.S. 1228 (1983)). However, a jury verdict should not hastily be disturbed through the grant of a motion for a new trial, Berry, 64 F.3d at 306, and a defendant is not entitled to a new trial every time a jury is exposed to material not admitted into evidence. Sababu, 891 F.2d at 1333. A defendant is only entitled to a new trial if there is a reasonable possibility that the evidence had a prejudicial effect upon the jury's verdict. Berry, 64 F.3d at 306; Sababu, 891 F.2d at 1333. "In each case the crucial factor is 'the degree and ...