U.S. v. Burns

Decision Date16 July 1982
Docket Number81-2028,Nos. 81-2024,s. 81-2024
Citation683 F.2d 1056
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Bartley BURNS and Lawrence Kelly, Defendants-Appellants.
CourtU.S. Court of Appeals — Seventh Circuit

Sam Adam, Julius L. Echeles, Chicago, Ill., for defendants-appellants.

Robert C. Knuepfer, Asst. U. S. Atty., Dan K. Webb, U. S. Atty., Chicago, Ill., for plaintiff-appellee.

Before PELL, Circuit Judge, GIBSON, * Senior Circuit Judge, and ESCHBACH, Circuit Judge.

PER CURIAM.

One of the issues presented in these federal criminal appeals concerns a situation in which the trial judge, in response to a request from the jury for a supplementary instruction, entered the jury room during deliberations without advance notice to the defense and gave the jurors an oral definition of an element of one of the offenses charged in the indictment. Because of our concern for the orderly conduct of a trial by jury in a federal criminal case, we reverse and remand defendants' convictions as to the count which was the subject of the supplementary instruction. Finding no reversible error pertinent to the other counts of which defendants were convicted, we affirm the convictions on those counts and remand for resentencing in accordance with this decision.

I

Between 1974 and 1980, several high-ranking employees of the Cook County (Illinois) Board of Appeals effectuated thousands of unlawful property tax reductions by covertly circumventing the Board's procedures concerning applications for assessment reductions. They relied on others, known as "runners," to contact taxpayers and solicit payments from them in exchange for arranging reduced property tax assessments. The runners collected payments from the taxpayers concerned and divided the proceeds with the Board employees who participated in the scheme. Defendants Bartley Burns and Lawrence Kelly were accused of serving as "runners." They maintain that they had no knowledge of the unlawful nature of the scheme in question. In a multiple count indictment, they were both charged with several counts of mail fraud and one count of conspiracy to violate the mail fraud and antiracketeering laws. Kelly was also charged with tax evasion and obstruction of a criminal investigation. The jury acquitted Burns on three mail fraud counts (counts 24, 26 and 30) but found him guilty on the conspiracy charge (count 1) and on seven mail fraud counts (counts 22, 23, 25, 27, 28, 29 and 31). His disposition as to count 1 involved a 3 month sentence and a $10,000.00 fine; as to counts 22, 23, 25, 27, 28, 29 and 31, he received concurrent sentences of three years probation, consecutive to the sentence on count 1. Kelly was found guilty on the conspiracy charge (count 1), the tax evasion and obstruction charges (counts 41 and 90) and on nine mail fraud counts (counts 32 through 40). Kelly received a sentence of fifteen months on count 1, he was fined a total of $5,000 on counts 32 through 40, and he received concurrent sentences of 3 years probation on counts 41 and 90, to run consecutively to the sentence on count 1.

In addition to their challenge to the judge's private contact with the jury, defendants argue as to the conspiracy charge (count 1) that the antiracketeering statute does not apply to corruption within the Cook County Board of Appeals and that there was a prejudicial variance between the conspiracy charged in the indictment and the evidence adduced at trial. Defendants also attack a jury instruction concerning the issue of guilty knowledge.

II

After the jury had been fully instructed by the court and had been engaged in deliberations for several hours, one juror apparently encountered some difficulty as to the meaning of the term "overt acts" with reference to the conspiracy count. Although the record does not indicate how the matter was brought to the court's attention, it is clear that the trial judge responded by entering the jury room accompanied only by the court reporter, whereupon he voiced a supplementary instruction defining an "overt act." The resulting colloquy in the jury room, which occurred without advance notice to defendants or defense counsel, was transcribed by the court reporter as follows:

The Court: Good afternoon.

You asked what the definition of an overt act is.

A Juror: Yes.

The Court: An overt act is an open or manifest act. It is not what somebody thinks or plans; it is what somebody does.

In this case, it is charged that one or more of the things happened in paragraphs 12 through 17 or paragraphs 22 through 41, and these were done in furtherance of, according to the Government, the conspiracy.

So, an overt act in that context is one of those active type actions, if proved, in furtherance of the conspiracy, if proved, as distinguished from something that somebody just planned or thought about but didn't take any action on.

A Juror: Something actually happened?

The Court: Something that actually happened.

Does that help?

A Juror: Okay.

The Court: So, what the Government is charging is that certain things happened or at least one of them happened, and that what that was was in furtherance of the conspiracy as defined in the instructions.

A Juror: Everybody understand?

A Juror: Yes.

A Juror: I think so.

A Juror: That clears it up. Thank you.

Defendants raise three challenges to this conversation. They argue that it was a violation of their Sixth Amendment right to be present at all stages of the proceedings; they argue that it was a violation of Rule 43(a), Federal Rules of Criminal Procedure; and they argue that the supplementary instruction was a misleading statement of the law. Since we sustain their contention under Rule 43(a), we need not address the constitutional issue and we likewise decline to evaluate the legal soundness of the supplementary definition.

Rule 43(a) provides as follows:

The defendant shall be present at the arraignment, at the time of the plea, at every stage of the trial including the impaneling of the jury and the return of the verdict, and at the imposition of sentence, except as otherwise provided by this rule.

While we are certain that the trial judge was acting with the best of intentions, we are equally convinced that his action was a serious violation of Rule 43(a). The Supreme Court has clearly prescribed the procedures mandated by the Rule in the context of questions emanating from the jury room: "Cases interpreting (Rule 43(a) ) make it clear, if our decisions prior to the promulgation of the Rule left any doubt, that the jury's (question) should have been answered in open court and that (defendants') counsel should have been given an opportunity to be heard before the trial judge responded." Rogers v. United States, 422 U.S. 35, 39, 95 S.Ct. 2091, 2094, 45 L.Ed.2d 1 (1975) (Burger, C. J.) (emphasis added). 1 Although this brief reference to the Rogers opinion is perhaps sufficient to reveal the error inherent in the trial court's conduct, we feel constrained to emphasize our condemnation of this practice.

Two important interests are undermined by private discourse between judge and jury during deliberations. First, it gives rise to "Star Chamber" implications which detract from the appearance of justice. Second, it absolutely precludes the parties from making a record as to the context in which the judge's remarks were made, thereby thwarting appellate review; the parties and this court must remain forever in the dark as to the judge's tone of voice and physical demeanor while he was in the jury room. An additional concern implicated in this particular case is the risk that the judge will be drawn into an extended discourse with the jury, thereby disturbing the delicate balance of legal principles set forth in the original instructions. Although we find it unnecessary to consider whether the judge's statements in the jury room, standing alone, would constitute a sound definition of an "overt act," we are concerned that the discussion of the overt act requirement may have diverted the jury's attention from other essential elements of the conspiracy offense. In a recent appeal from a civil jury trial, the United States Court of Appeals for the Third Circuit stressed that when a supplemental instruction is given,

trial courts should avoid prejudicial emphasis on part of the case by carefully reminding the jury of other aspects of the original charge and cautioning them that the segment of the charge which is amplified or explained should be considered in the light of the other instructions and is not to be given undue weight.

Beardshall v. Minuteman Press International, Inc., 664 F.2d 23, 29 (3d Cir. 1981).

In some circumstances a violation of Rule 43(a) may be harmless error. Rogers, supra, 422 U.S. at 40, 95 S.Ct. at 2095. However, in the factual context of this case, and considering the extended nature of the discussion between the court and the jury, we are unable to say that the defendants were not prejudiced by the error of the court. We reverse the convictions of both defendants as to the conspiracy count (count 1) and remand for further proceedings if the government desires to pursue this count. 2

On the other hand, we reject defendants' argument that the discussion in the jury room deprived them of a fair trial altogether, thus mandating reversal of all counts of which they were convicted. The jury was selective in its approach to the case, and did not convict the defendants on all the counts charged. The nature of the verdicts that were returned in this case makes it clear that the jury separately analyzed the law and the evidence applicable to each count. Moreover, it should be evident from our analysis of the implications of the contact between judge and jury that the potential prejudice, if any, relates exclusively to the jury's disposition of the conspiracy count. There is no basis for concluding that the jury's disposition of the other...

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