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February 25, 2002


The opinion of the court was delivered by: Richard Mills, United States District Judge.


The late Paul E. Riley, United States District Judge for the Southern District of Illinois, had a penchant for communicating ex parte with jurors in cases in which he was the presiding judge.*fn1

Sometimes the communications involved benign subjects such as the weather or televisions programs, but sometimes he commented upon the evidence presented at trial. Such conduct reflects poorly, not only upon the judge who engages in ex parte contacts with jurors, but upon the court in which that judge sits and upon the judicial system as a whole.


While Ahmad Bishawi's appeal of his conviction and sentence was pending before the United States Court of Appeals for the Seventh Circuit, some information came to light that Judge Riley may have had ex parte communications with the jurors during Bishawi's trial. Based upon this newly discovered evidence, Bishawi filed a motion for a new trial pursuant to Federal Rule of Criminal Procedure 33.*fn2
After considering the parties' briefing on the motion, the Court allowed Bishawi's motion and granted his request for a new trial. United States v. Bishawi, 109 F. Supp.2d 997 (S.D.Ill. 2000). The Government moved for reconsideration, and after the Court denied its motion, the Government appealed the Court's ruling.

On appeal, the Seventh Circuit vacated and remanded for further proceedings. United States v. Bishawi, 272 F.3d 458 (7th Cir. 2001). Specifically, the Seventh Circuit opined:

The holding of an evidentiary hearing in this case would have afforded the parties an opportunity to interview jurors and determine "whether extraneous prejudicial information was improperly brought to the jury's attention or whether any outside influence was improperly brought to bear upon any juror." Fed.R.Evid. 606. Once these factual determinations were made, the trial court would have been equipped to adequately assess the impact of any ex parte contacts on the juries before whom appellees' cases were tried and decided whether or not such communications were harmless error. . . . The trial court abused its discretion in failing to hold such a hearing.
Id. at 462-63. Accordingly, the Seventh Circuit remanded Bishawi's case "to hold an evidentiary hearing to determine what ex parte contact occurred and whether such contact was prejudicial to the appellees." Id. at 463.
After receiving the mandate, the Court conducted an evidentiary hearing as directed by the Seventh Circuit. At this hearing, the Court heard testimony from the jurors who deliberated and found Bishawi guilty of conspiring to distribute cocaine and cocaine base in violation of 21 U.S.C. § 841(a)(1) and § 846. In addition, the parties asked the Court to re-evaluate and re-consider the affidavits of court personnel which had been previously submitted to the Court.
Bishawi argues that, after hearing the jurors' testimony and re-considering the affidavits of the court personnel, nothing has changed and that the Court should again allow his motion for a new trial. Bishawi contends that the jurors' testimony clearly establishes that Judge Riley had ex parte communications with some, if not all, of the jurors in this case. Bishawi asserts that, when these improper contacts are combined with the fact that Judge Riley improperly responded to a question from the jury without first consulting counsel or him, the Court should find that an ex parte communication occurred and should presume that he suffered prejudice as a result. When the Court does this, Bishawi claims that it will have no other choice but to again allow his motion for a new trial.
On the other hand, the Government argues that the jurors' testimony and the court personnel's affidavits clearly establish that Bishawi is not entitled to a new trial. The Government notes that, although some of the jurors remembered having contacts with Judge Riley during the trial, none recalled having any communication with him while they deliberated. Moreover, the Government asserts that the jurors testified that even the communications which they had with Judge Riley only involved "small-talk" and were not in any way related to the merits of the case. As such, the Government contends that Judge Riley's contacts with the jurors did not affect Bishawi's substantial rights.

Likewise, the Government contends that, although Judge Riley did not follow proper procedures when he responded to the jury's question, his error was harmless. Accordingly, the Government asks the ...

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