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U.S. v. BISHAWI
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 ...
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