687 F.2d 938 (7th Cir. 1982), 80-2336, United States v. Bruscino

Docket Nº:80-2336, 80-2337.
Citation:687 F.2d 938
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Ronnie Joseph BRUSCINO and Charles Eugene Kell, Defendants-Appellants.
Case Date:August 17, 1982
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

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687 F.2d 938 (7th Cir. 1982)

UNITED STATES of America, Plaintiff-Appellee,


Ronnie Joseph BRUSCINO and Charles Eugene Kell, Defendants-Appellants.

Nos. 80-2336, 80-2337.

United States Court of Appeals, Seventh Circuit

August 17, 1982

Argued April 3, 1981.

Reargued En Banc May 26, 1982.

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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

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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...

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