U.S. v. Weisman

• Decision Date: 20 July 1984
• Docket Number: No. 82-1712,82-1712
• Parties: , 15 Fed. R. Evid. Serv. 1261 UNITED STATES of America, Plaintiff-Appellee, v. Richard A. WEISMAN, Jr., Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 421

736 F.2d 421

85 A.L.R.Fed. 1, 15 Fed. R. Evid. Serv. 1261

UNITED STATES of America, Plaintiff-Appellee, v. Richard A. WEISMAN, Jr., Defendant-Appellant.

No. 82-1712.

United States Court of Appeals, Seventh Circuit.

Argued Jan. 13, 1984.

Decided June 12, 1984.

Rehearing and Rehearing In Banc Denied July 20, 1984.

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.

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 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 admonished the jurors to decide the case only on the basis of the evidence introduced at trial, and not on the basis of any publicity to which they might have been exposed. In addition, the judge again asked the jurors if they believed they would decide the case only on the evidence, and again the jurors indicated that they would.

On the basis of its inquiry into the effect of the article on the jurors, and on its own reading of the newspaper article, the district court found that the defendant was not prejudiced, and it denied the defendant's motion for a mistrial. On this appeal, the defendant argues that a mistrial should have been granted, because the article informed its readers that Adrian Weisman had entered into a plea agreement, and this was prejudicial to the defendant's case. ² The defendant also argues that he was entitled to a mistrial because the incident involving the newspaper clipping upset many of the jurors, making them unable to pay attention to the defendant's closing argument and thus perhaps unable to render a fair verdict.

It is a fundamental principle of our jurisprudence that "the jury's verdict must be based on evidence received in open court, and not from outside sources." Sheppard v. Maxwell, 384 U.S. 333, 351, 86 S.Ct. 1507, 1516, 16 L.Ed.2d 600 (1966). Nevertheless, a new trial is not required automatically whenever a jury is exposed to material not properly in evidence. Rather, a new trial is required only when there is a "reasonable possibility" that the material affected the jury verdict. United States v. Bruscino, 687 F.2d 938, 940 (7th Cir.1982) (en banc). Each case "must turn on its special facts," Marshall v. United States, 360 U.S. 310, 312, 79 S.Ct. 1171, 1172, 3 L.Ed.2d 1250 (1959), and in each case the crucial factor is "the degree and pervasiveness of the prejudicial influence possibly resulting" from the jury's exposure to the extraneous material. United States v. Solomon, 422 F.2d 1110, 1118 (7th Cir.1970). The trial court has the primary responsibility for making this determination of prejudice, and an appellate court must review the trial court's determination under an "abuse of discretion" standard. United States v. Bruscino, 687 F.2d at 940.

In the instant case, we agree with the district court's finding that there is no "reasonable possibility" that the newspaper article affected the jury's verdict. The article's reference to a codefendant's guilty plea, while certainly the type of evidence that might be prejudicial under some circumstances, see Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968) (admission of codefendant who did not take stand violated defendant's sixth amendment rights), most likely was not prejudicial in this case. One reason for this is that Adrian Weisman's guilty plea was not inconsistent with the defendant Richard Weisman's theory of defense. Our review of the record reveals that Richard Weisman's primary theory of defense was that he had no personal knowledge of any fraudulent sales practices engaged in by Chemical Dynamics employees. ³ Where, as here, a defendant claims that he personally was ignorant of the criminal activity engaged in by others, the guilty plea of one of the others is not likely to inculpate him and thus is not likely to prejudice his case. See United States v. Alley, 661 F.2d 718, 721 (8th Cir.1981). See also United States v. Bruscino, 687 F.2d at 942 (news article informing jury of defendant's alleged co-conspirators' guilty pleas did not prejudice defendant where defendant's theory of defense was that the co-conspirators had committed the crime).

The defendant argues, however, that in this case his codefendant's guilty plea did implicate him in the fraudulent scheme because the codefendant was his own son. We recognize that the fact that the defendant's son was involved in the illegal scheme may tend to make the defendant's own defense based on lack of personal knowledge somewhat less believable. However, we find that since the jurors already had heard ample evidence of Adrian Weisman's involvement in the scheme, their possible knowledge of the fact that Adrian Weisman actually had pled guilty would add little, if anything, to the prosecution's case against the defendant. ⁴ Improperly admitted evidence that is essentially duplicative of properly admitted evidence often is held harmless. See, e.g., Harrison v. Owen, 682 F.2d 138 (7th Cir.1982) (improper admission of coerced confession held harmless where another ...