United States District Court, Southern District of Illinois, Benton Division
February 25, 2002
UNITED STATES OF AMERICA, PLAINTIFF,
AHMAD BISHAWI, DEFENDANT.
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.
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 Court to deny
Bishawi's motion for a new trial.
II. APPLICABLE LAW
Federal Rule of Criminal Procedure 33 provides that "the court on
motion of a defendant may grant a new trial to that defendant if required
in the interests of justice." Id. The Seventh Circuit has explained:
To receive a new trial based on newly discovered
evidence, the defendant must demonstrate that the
evidence (1) came to their knowledge only after
trial; (2) could not have been discovered sooner had
due diligence been exercised; (3) is material and not
merely impeaching or cumulative; and (4) would
probably lead to an acquittal in the event of a
United States v. Woolfolk, 197 F.3d 900
, 905 (7th Cir. 1999).
However, when the basis for a new trial is newly discovered evidence
that the trial judge has had improper contact with a juror or jurors, the
test is somewhat different because "[a]ny ex parte meeting or
communication between the judge and the foreman of a deliberating jury is
pregnant with possibilities of error." United States v. United States
Gypsum Co., 438 U.S. 422, 460 (1978). As the United States Supreme Court
In a criminal case, any private communication,
contact, or tampering directly or indirectly, with a
juror during a trial about the matter pending before
the jury is, for obvious reasons, deemed presumptively
prejudicial, if not made in pursuance of known rules
of the court and the instructions and directions of
the court made during the trial, with full knowledge
of the parties. The presumption is not conclusive,
but the burden rests heavily upon the Government to
establish, after notice to and hearing of the
defendant, that such contact with the juror was
harmless to the defendant.
Remmer v. United States, 347 U.S. 227, 229 (1954), citing Mattox v.
United States, 146 U.S. 140, 150 (1892). Therefore, the Seventh Circuit
has stated that "the unusual practice of a judge entering the jury room
to speak privately with jurors is almost certain to run afoul of a
defendant's right to be present during trial proceedings." United States
v. Smith, 31 F.3d 469, 471 (7th Cir. 1994).
Nevertheless, "the mere occurrence of an ex parte conversation between
a trial judge and a juror does not constitute a deprivation of any
constitutional right. The defense has no constitutional right to be
present at every interaction between a judge and a juror, nor is there a
constitutional right to have a court reporter transcribe every such
communication." Rushen v. Spain, 464 U.S. 114, 119 (1983) (Stevens, J.,
concurring in judgment); see also Verdin v. O'Leary, 972 F.2d 1467,
1481-82 (7th Cir. 1992) (explaining that the constitutional right to
presence is not implicated per se by a judge's ex parte communication with
a deliberating jury). "Rather, the constitutional right to presence,
which derives from the Sixth Amendment's Confrontation Clause and the Due
Process Clause of the Fourteenth Amendment, exists where there is a
reasonably substantial relation to the fullness of opportunity to defend
against the charge and to the extent that a fair and just hearing would
be thwarted by the defendant's absence." Bishawi, 272 F.3d at 461-62,
citing United States v. Gagnon, 470 U.S. 522, 526 (1985), and citing
Snyder v. Massachusetts, 291 U.S. 97, 105-06 (1934).
A defendant's broader, procedural right to be present pursuant to
Federal Rule of Criminal Procedure 43 is, likewise, not without
Rule 43 alleviates the
presence requirement when the proceeding involves only a conference or
hearing upon a question of law. Fed. R. Crim. Pro. 43(c)(3); see also
United States v. Johnson, 859 F.2d 1289
, 1294 (7th Cir. 1988) (holding
that "a defendant's presence is not required `[a]t a conference or
argument upon a question of law.'"), quoting Rule 43(c)(3).
The defendant bears the burden of proving the occurrence of an ex parte
contact with the jury. See Owen v. Duckworth, 727 F.2d 643, 646 (7th
Cir. 1984) (holding that the defendant bears the burden of proving
outside contact with the jury); see also United States v. Wilson,
715 F.2d 1164, 1172 (7th Cir. 1983) (holding that while "private
communications between jurors and others are presumptively prejudicial[,]
[t]here can be no prejudice . . . in the absence of any such
communication."); see also United States v. Heater, 63 F.3d 311, 321
(4th Cir. 1995) (holding that the defendant bears the initial burden of
demonstrating that the improper juror contact occurred, and only if the
contact is established must the government demonstrate absence of
prejudice). The defendant must meet this burden by a preponderance of the
evidence. See United States v. Caro-Quintero, 769 F. Supp. 1564, 1580
(C.D.Cal. 1991) (noting that a defendant must prove that the jury was
exposed to ex parte contacts with courthouse personnel by a preponderance
of the evidence); see also United States v. Tarpley, 945 F.2d 806, 811
(5th Cir. 1991) (holding that the defendant must show that "improper
communication of extrinsic information had likely occurred."); see also
United States v. Cousins, 842 F.2d 1245, 1247 (11th Cir. 1988) (holding
that a defendant must make a "colorable showing" that an ex parte
"Once established, determination of whether the ex parte contact
violates either the defendant's constitutional or procedural right to
presence is subject to a harmless error analysis." Bishawi, 272 F.3d at
462, citing Rushen, 464 U.S. at 118-19 and citing Rogers v. United
States, 422 U.S. 35, 40 (1975). An error is harmless and does not
mandate reversal and/or a new trial unless it affects "substantial
rights." Fed. R. Crim. Pro. 52(a); United States v. Patterson,
23 F.3d 1239, 1255 (7th Cir. 1994). "Substantial rights are those that
affect the outcome of the case." Bishawi, 272 F.3d at 462; Patterson, 23
F.3d at 1255. Thus, a defendant is entitled to a new trial only if an ex
parte communication likely affected the jury's verdict. United States v.
Pressley, 100 F.3d 57, 60 (7th Cir. 1996).
Finally, a post-trial evidentiary hearing may be proper and necessary
in order to determine whether any such contact was merely harmless or in
fact prejudicial to the defendant. Remmer, 347 U.S. at 229-30; Rushen,
464 U.S. at 119-20. A defendant's absence from any trial proceeding
should be considered in light of the entire record. United States v.
Moore, 936 F.2d 1508, 1523 (7th Cir. 1991) (citations omitted).
In the instant case, Judge Riley had at least two improper contacts
with the jury. First, as the Court noted supra and in its previous
Opinion, Judge Riley responded in writing to a question from the jury
without first consulting with counsel and Bishawi. Second, several
jurors testified that Judge Riley came into the jury room and/or into the
jury's break room and spoke with them about the
weather, about television programs, and about why the trial had been
cancelled one day.
Regardless of the reasons why or the justifications for Judge Riley's
ex parte contacts with the jury, the contacts were inappropriate and
unbecoming a judicial officer. Juries tend to view judges as the
embodiment of the law. See Monica V. Pennisi, Simmons v. Conger: The
Illusive Nature of Judicial Accountability, 7 WIDENER J. PUB. L. 177,
178 (1997) (noting that "these feelings of homage have resulted in an
inevitable perception of judges as guardians and ultimate embodiments of
the law."); see also Linwood I. Rogers, Note, Mireles v. Waco: The
Supreme Court Prescribes the Bitter Pill of Judicial Immunity and Summary
Reversal, 26 U. RICH. L. REV. 539, 544 (1992) (noting "the immense
responsibility that judges have as the true guardians, oracles, and
embodiments of the law."). In fact, the Model Code of Judicial Conduct's
Preamble characterizes the judge as the very "symbol of government under
the rule of law."
Thus, by engaging in ex parte communications with the jurors, Judge
Riley provided a disservice to the United States District Court for the
Southern District of Illinois, to the legal profession, and to the
federal judiciary. More importantly, Judge Riley provided a disservice
to Bishawi. Regardless of the Court's ruling on his motion for a new
trial and the outcome of the Court's ruling on the appeal which will
inevitably be filed, Bishawi's conviction and sentence will forever be
tainted in the minds of some-including Bishawi himself.
Nevertheless, the Court is reminded that convictions are not to be set
aside lightly. See United States v. Berry, 64 F.3d 305, 307 (7th Cir.
1995) (holding that "[a] jury verdict is not lightly to be disturbed
through a grant of a motion for a new trial."); see also Herrerra v.
Collins, 506 U.S. 390, 443 (1993) (Blackmun, J., dissenting and noting
that "an otherwise constitutionally valid conviction or sentence should
not be set aside lightly."). Again, "[t]he mere occurrence of an ex
parte communication between a trial judge and a juror does not constitute
a deprivation of any constitutional right." Rushen, 464 U.S. at 119.
Accordingly, although the Court finds that Judge Riley had ex parte
communications with the jurors during Bishawi's trial, the Court cannot
say that the improper contacts affected the outcome of his case.
First, the evidence of Bishawi's guilt presented by the Government at
trial was strong.
Second, as the Court noted in its previous Opinion, although it was
improper for Judge Riley to have responded to the jury's question without
first consulting counsel and Bishawi, his error was harmless because he
correctly instructed the jury on the law and because it appears that
nothing Bishawi or his counsel could have said, had they been present,
would have altered Judge Riley's response. Bishawi, 109 F. Supp.2d at
1001; United States v. Rodriguez, 67 F.3d 1312,1316 (7th Cir. 1995);
United States v. Neff, 10 F.3d 1321, 1324-25 (7th Cir. 1993).
Third, the evidence presented at the evidentiary hearing revealed that
Judge Riley's ex parte contacts with the jurors were harmless. All that
the court personnel's affidavits and the jurors' testimony established
was that ex parte communications occurred between the jury and Judge
Riley. Bishawi has presented absolutely no evidence that Judge Riley's
contacts affected his substantial rights, i.e., he has presented no
evidence that the contacts affected the outcome of the case. To a
person, the jurors testified that the contacts were brief, that the
conversations involved non-case related subject matter,
and that nothing Judge Riley said or did had any effect upon their
deliberations or their verdict. Likewise, although the affidavits
(especially the affidavit of Judge Riley's law clerk David Agay) lend
support to the finding that an ex parte communication occurred, nothing
in the affidavits indicates that Judge Riley's conduct affected Bishawi's
Accordingly, the Court cannot presume prejudice to Bishawi from Judge
Riley's improper contacts with the jury. As the Supreme Court has
indicated, the presumption of prejudice is not conclusive. Remmer, 347
U.S. at 229. Rather, it is rebuttable if the Government can show that
the ex parte communication constituted harmless error. Id. Here, the
Court believes, based upon the evidence presented at the evidentiary
hearing, that the Government has shown that Judge Riley's error was
harmless to Bishawi.
Judge Riley's conduct in this cause is not to be countenanced; his
actions reflect adversely upon the integrity of the judicial system.
However, because Judge Riley's errors were harmless to Bishawi, the Court
has no other alternative than to deny Bishawi a new trial because he was
not denied his Sixth Amendment right to a fair trial, his Fourteenth
Amendment due process right, or his right to be present afforded by
Federal Rule of Criminal Procedure 43.
Ergo, Defendant's Motion for a New Trial is DENIED.