U.S. v. Bruscino, s. 80-2336

• Citation: 687 F.2d 938
• Decision Date: 17 August 1982
• Docket Number: Nos. 80-2336,80-2337,s. 80-2336
• Parties: 11 Fed. R. Evid. Serv. 863 UNITED STATES of America, Plaintiff-Appellee, v. Ronnie Joseph BRUSCINO and Charles Eugene Kell, Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 938

687 F.2d 938

11 Fed. R. Evid. Serv. 863

UNITED STATES of America, Plaintiff-Appellee, v. Ronnie Joseph BRUSCINO and Charles Eugene Kell, Defendants-Appellants.

Nos. 80-2336, 80-2337.

United States Court of Appeals Seventh Circuit.

Argued April 3, 1981.

Reargued En Banc May 26, 1982.

Decided Aug. 17, 1982.

Mary M. Runnells, Bloomfield, Ind., Robert F. Hellmann, Terre Haute, Ind., for defendants-appellants.

Virginia Dill McCarty, U. S. Atty., Sarah Evans Barker, Asst. U. S. Atty., Richard L. Darst, Indianapolis, Ind., for plaintiff-appellee.

Before CUMMINGS, Chief Judge, and PELL, BAUER, WOOD, CUDAHY, ESCHBACH, POSNER, and COFFEY, Circuit Judges.

POSNER, Circuit Judge.

Bruscino and Kell, inmates at the federal penitentiary at Terre Haute, Indiana, were indicted along with fellow inmates Barron, Howell, and Norman for conspiracy to murder, and for the murder of, another inmate, Martinez. Bruscino and Kell stood trial and were convicted; the other defendants pleaded guilty. A panel of this court reversed Bruscino's and Kell's convictions (over the dissent of Senior Circuit Judge Floyd Gibson of the Eighth Circuit, sitting by designation) because two documents found in the jury room had not been admitted into evidence. 662 F.2d 450 (1981). We granted the government's petition for rehearing to consider the proper standard of appellate review of a district court's finding that documents not properly before the jury were not so prejudicial as to require a new trial.

We state the facts very briefly, and refer the reader to the panel's opinion for a fuller statement, including the full text of the two documents in question. Howell was the principal witness for the prosecution. He had known Bruscino at McNeil Island Penitentiary before both had been transferred to Terre Haute, and at McNeil Bruscino had told him that Martinez was a "rat." Apart from evidence of similar statements (e.g., "this joint (Terre Haute) is full of rats," of whom Martinez was one), the motive for the killing was not explored at the trial. Howell, however, testified in detail to the conspiracy to kill Martinez in which he and the others participated and which culminated in Bruscino's beating Martinez to death; and his testimony was corroborated by other witnesses.

Two documents not in evidence found their way into the jury room. The first was a response by the Bureau of Prisons to Bruscino's request to be returned to McNeil Island. It contained the statements that "you (Bruscino) were subsequently removed from disciplinary segregation pending the outcome of institution investigations regarding your suspected involvement with the Mexican Mafia," but that "investigations by this office have not disclosed evidence of any significant nature, that would indicate your involvement in any unauthorized group." It is unclear how the document got into the jury room. There is no suggestion that the prosecutor put it there, which would be a serious matter indeed; and while the government argues that it got there through the negligence of Bruscino's counsel, there was no finding to that effect, and we need not decide what significance such a finding would have. The second document was a newspaper article about the case that one of the jurors cut out to help her keep the dramatis personae straight in her mind. The article reports that Bruscino, Kell, Barron, Howell, and Norman had been indicted for conspiracy to murder Martinez, and that Barron, Howell, and Norman had pleaded guilty.

A criminal defendant in our system 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 such as is found in newspaper accounts of the trial or administrative records, even if that access is not the result of any prosecutorial misconduct. But as with so much in our system of criminal justice this is the statement of an ideal rather than of a standard for when a defendant is entitled to a new trial. For that there has to be some showing of prejudice.

We have no quarrel with the panel's articulation of the standard for deciding whether the jury's exposure to documents not in evidence requires a new trial; it is whether there is a "reasonable possibility" that the documents may have affected the verdict. 662 F.2d at 457; see, e.g., United States v. Dressler, 112 F.2d 972, 978 (7th Cir. 1940); Llewellyn v. Stynchcombe, 609 F.2d 194 (5th Cir. 1980). We part company with the panel only on the question of the scope of appellate review. The district judge articulated the correct standard for deciding the issue of jury prejudice, and the appellants' argument is only that he applied it to the facts incorrectly. He stated that "once it is shown that the jurors were exposed to extraneous materials it becomes incumbent upon the Court to determine whether the error may have operated to the substantial injury of the defendants" (emphasis added), citing among other cases Dressler, supra ; and this is equivalent to the "reasonable possibility" standard articulated in Dressler and in the panel's opinion in this case, and to the "harmless error beyond a reasonable doubt" approach often used interchangeably with the "reasonable possibility" standard. See, e.g., Llewellyn, supra, 609 F.2d at 196; United States v. Ackerman, 393 F.2d 121, 123 (7th Cir. 1968). In any event the appellants do not contend that the judge used an improper standard.

The proper standard of appellate review of the district court's determination of prejudice is different, however; it is "abuse of discretion." The panel stated the issue before it, correctly, as "whether the district court abused its discretion in denying defendant's motion for a new trial," 662 F.2d at 457; but then it conducted a de novo inquiry into whether the documents were prejudicial in the circumstances, and we cannot agree with this approach, though we acknowledge a paucity of relevant decisions. The foremost case is still Holt v. United States, 218 U.S. 245, 250, 31 S.Ct. 2, 5, 54 L.Ed. 1021 (1910), an opinion by Justice Holmes which states that the denial of a motion for a new trial based on the fact that jurors read newspaper articles about the trial while it was going on "cannot be treated as more than matter of discretion or as ground for reversal, except in very plain circumstances indeed." Holt was followed and its rule paraphrased in Marshall v. United States, 360 U.S. 310, 312, 79 S.Ct. 1171, 1172, 3 L.Ed.2d 1250 (1959) (per curiam ): "The trial judge has a large discretion in ruling on the issue of prejudice resulting from the reading by jurors of news articles concerning the trial." At oral argument the appellants' counsel acknowledged that they knew of no authority contrary to Holt, and our independent research has not discovered any either.

Despite the authoritative pronouncements of the Supreme Court there has been a tendency, criticized in Judge (now Justice) Stevens' dissenting opinion in United States v. Thomas, 463 F.2d 1061, 1065-66 (7th Cir. 1972), to review the district courts' determinations of jury prejudice under a much more liberal standard than abuse of discretion. But we have decided that we must adhere to the abuse of discretion standard. Not only is it binding on us because there is no indication that the Supreme Court is prepared to overrule Holt and Marshall ; it makes good sense to us as an original matter. Because the judge is prohibited from questioning the jurors, after they have given their verdict, to determine whether their deliberations were in fact prejudiced by the introduction of documents not in evidence, Fed.R.Evid. 606(b), the inquiry into prejudice becomes a matter of assessing the probabilities that a particular jury was prejudiced by particular documents. The trial judge will always be in a better position than the appellate judges to assess the probable reactions of jurors in a case over which he has presided. He has had the opportunity to observe the jurors' demeanor and gauge their attentiveness, as the appellate judges have not. He can also judge, as we cannot, whether the atmosphere of the trial-that congeries of intangibles that no stenographic transcript can convey-might have made the jury receptive to being prejudiced by the documents in question, or, for that matter, might have inoculated it against such prejudice. As we cannot put ourselves in the district judge's shoes in these matters we ought to accept his judgment unless we have a very strong conviction of error.

The district judge dealt in detail with the issue of jury prejudice in his opinion denying the appellants' post-trial motions, thus exercising his discretion-and using the proper standard, too, as we have already pointed out. So we have only to decide whether he abused his discretion in ruling against the defendants. We begin with the Bureau of Prisons report, with its accusation that Bruscino was a member of the Mexican Mafia, whatever exactly that is, and its statement that an investigation had failed to substantiate the accusation. We do not agree with the government that the second statement made the net effect of the report exculpatory, for even if the average reader would conclude that Bruscino was not a member of the Mexican Mafia this would not show that Bruscino had not killed Martinez: not all killers are Mexican Mafiosi. But there is an additional point to be considered. Bruscino's counsel at trial used the Bureau of Prisons report (without introducing it into evidence) in an unsuccessful attempt to show, through cross-examination of one of the prosecution's witnesses, that Bruscino had never wanted to be at Terre Haute, which if true would undermine the...