736 F.2d 421 (7th Cir. 1984), 82-1712, United States v. Weisman

Docket Nº:82-1712.
Citation:736 F.2d 421
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Richard A. WEISMAN, Jr., Defendant-Appellant.
Case Date:June 12, 1984
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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736 F.2d 421 (7th Cir. 1984)

UNITED STATES of America, Plaintiff-Appellee,

v.

Richard A. WEISMAN, Jr., Defendant-Appellant.

No. 82-1712.

United States Court of Appeals, Seventh Circuit

June 12, 1984

Argued Jan. 13, 1984.

Rehearing and Rehearing In Banc Denied July 20, 1984.

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David A. Novoselsky, Chicago, Ill., for defendant-appellant.

D. McCarty Thornton, Asst. U.S. Atty., Gerald D. Fines, U.S. Atty., Springfield, Ill., for plaintiff-appellee.

Before CUMMINGS, Chief Judge, and ESCHBACH and FLAUM, Circuit Judges.

FLAUM, Circuit Judge.

This is an appeal from a conviction following a jury trial in which the defendant was found guilty on various counts of mail fraud, wire fraud, and conspiracy. The defendant argues that he did not receive a fair trial because the jury was exposed to extraneous materials that may have influenced its verdict, and because the prosecution was permitted to introduce evidence prejudicial to the defendant but unrelated to the offenses charged in the indictment. For the reasons stated below, we affirm the defendant's convictions.

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I.

On September 23, 1981, the defendant Richard Weisman was charged in a twenty-nine-count indictment with various counts of mail fraud, wire fraud, and conspiracy, in violation of 18 U.S.C. Secs. 371, 1341 and 1343 (1982). Two of these counts were later dismissed. Also charged in this indictment were Robert E. May, Barry Kent, Jerry Willson, Woodruff Thompson, and Adrian Weisman, the defendant's son. All of these men were employees of Chemical Dynamics Corporation, of which the defendant was president. Chemical Dynamics was in the business of selling fertilizer and various other products. It marketed these products by selling local "distributorships" to businesses, which in turn were supposed to be able to sell the products to dealers. The essence of the government's charge against Weisman and his codefendants was that these distributorships were sold pursuant to an elaborate scheme involving fraudulent sales techniques, including knowing misrepresentations about the cost-effectiveness of the products. According to the government, Weisman and his codefendants knew that a distributor of Chemical Dynamics products could not possibly make a profit, and, in fact, the distributors targeted by Chemical Dynamics during the period charged in the indictment suffered significant financial losses as a result of their dealings with Chemical Dynamics.

The trial of Richard Weisman and his codefendants (except Robert E. May, who was hospitalized due to illness) began on January 22, 1982. On that same day, Woodruff Thompson's case was severed from the others. Three days later, on January 25, Jerry Willson pled guilty to two counts of wire fraud and agreed to testify for the prosecution. On February 10, 1982, Barry Kent pled guilty to mail fraud, and he also agreed to testify for the prosecution. On March 2, 1982, with the nearly six-week trial almost at its end, Adrian Weisman pled guilty to mail fraud. On March 4, the jury found Richard Weisman, the only remaining defendant, guilty on all twenty-seven counts. After losing a post-trial motion for a new trial, Weisman was sentenced to a total of fifteen years in prison and five years of probation, and, as a special condition of probation, he was ordered to make restitution in the amount of $270,532.45. He then brought this appeal.

II.

The defendant Weisman contends first that the trial judge should have declared a mistrial because the jury's verdict was "tainted" by the jury's exposure to material that was extraneous to the proceedings in court. This material consisted of a newspaper article concerning the trial, which was brought into the jury room by a juror, and the transcript of comments by a federal judge made during a separate proceeding involving Weisman, which inadvertently was given to the jury to peruse during its deliberations.

A. The newspaper article

During the morning of March 1, 1982, shortly before closing arguments, one of the jurors brought into the jury room a clipping of a newspaper article concerning the defendant's trial. Upon learning of this occurrence the following morning, the district court judge brought each juror separately into the courtroom and questioned him on her about the incident. 1 From this questioning, the judge learned that four of the jurors had read the article, though two of these four had only glanced at it in a cursory fashion. According to these jurors, the only discussion of the contents of the article revolved around a reference to Woodruff Thompson, a name that they had not recognized from the trial. The remainder of the jurors stated that while they were aware of the presence of

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the clipping in the jury room, they had not read the article and had not discussed the contents of the article with their fellow jurors. However, several jurors stated that there was some discussion of the incident itself, and that the juror who had brought the clipping into the jury room was criticized for disregarding prior admonitions by the trial judge to ignore publicity concerning the trial. In response to a question from the trial judge, each of the jurors, including those that had read the article, indicated unequivocally that nothing stated in the article or said about the article would influence his or her decision. Later that day, before giving the jury instructions, the trial judge again...

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