U.S. v. Strickland, s. 89-3099

• Decision Date: 11 June 1991
• Docket Number: 89-3134 and 89-3135,89-3100,Nos. 89-3099,89-3118,s. 89-3099
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Leonard STRICKLAND, Ronald B. Carson, Armand D. Moore, Neal Jackson and Otis Wilson, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 822

935 F.2d 822

UNITED STATES of America, Plaintiff-Appellee, v. Leonard STRICKLAND, Ronald B. Carson, Armand D. Moore, Neal Jackson and Otis Wilson, Defendants-Appellants.

Nos. 89-3099, 89-3100, 89-3118, 89-3134 and 89-3135.

United States Court of Appeals Seventh Circuit.

Argued Dec. 6, 1990.

Decided June 11, 1991.

Jeffrey E. Stone, Scott T. Mendeloff, Joshua T. Buchman, Barry R. Elden, Asst. U.S. Attys., Crim. Receiving, Appellate Div., Chicago, Ill., for the U.S.

William H. Theis, Chicago, Ill., for Leonard Strickland.

Jerry B. Kurz, Kathryn Hall, Hall & Kurz, Chicago, Ill., for Otis Wilson.

John T. Theis, Chicago, Ill., for Ronald B. Carson.

Paul A. Wagner, Chicago, Ill., for Armand D. Moore.

Martin S. Agran, Agran & Agran, Chicago, Ill., for Neal Jackson.

Before BAUER, Chief Judge, CUMMINGS, Circuit Judge, and ESCHBACH, Senior Circuit Judge.

BAUER, Chief Judge.

Francis Bacon wrote, "Opportunity makes a thief." Sensing an opportunity, defendants in this consolidated group of appeals aimed to swindle approximately $236 million from the First National Bank of Chicago (the "Bank"). In one, heady morning in May 1988, defendants, posing as executives of three companies that had large accounts at the Bank, placed telephone orders that resulted in $70 million being wired out of the Bank. The funds made it as far as two banks in New York City, which were to act as middlemen. The funds were headed for three forged bank accounts in Vienna, Austria, which had been set up by one of the defendants. Alerted by the suspicious nature of these transfers--three phone calls in one morning, all from the same number, ordering large amounts of money to be wired to accounts in the same foreign institutions--Bank officials quickly sniffed-out the defendants' scheme. Before the defendants could even taste the fruits of their first wire fraud foray, or launch others, the plot was foiled and the group busted.

In these appeals, the defendants raise a bevy of issues, only a handful of which merit discussion, and none of which merit the reversal of their convictions or sentences. Because none of the defendants' discussion-worthy challenges involve the facts surrounding their wire fraud scheme, we will forego a lengthy background section. Instead, we will briefly review any necessary background facts in the course of disposing of the issues.

I. Juror-Agent Contact

Defendants' joint trial began on June 7, 1989. After putting on upwards of 25 witnesses, the government rested on June 19. Defendant Moore then put on his defense case, which consisted of calling an FBI agent, who had previously testified for the government, and taking the stand himself. During direct examination, Moore told a tale vastly different from the testimony given by the government witnesses. Toward the end of his story, Moore described the events of the night he was arrested. He stated that he entered the lobby of his hotel that night and noticed a man staring at him. He testified that he walked up to the man and said something, but the man did not respond. Moore did not know the man's name, but he noticed him sitting in the back of the courtroom and he pointed him out: it was Special Agent Paul Jenkins of the FBI. Moore then stated that, later that night, Jenkins and his comrades arrested him in the hotel lobby. The agents handcuffed him and pushed him up against a wall, at which time one of the agents "said something very unpleasant which I don't know if I should repeat in court or not." Transcript of Trial Proceedings ("Trial Tr."), Vol. 9, at 1431.

The evening after this testimony, some of the jurors happened upon Special Agent Jenkins and another FBI agent (neither of whom were witnesses in this case) in the hallway outside the courtroom. The agents were waiting for the elevators. One of the jurors walked up to Jenkins and asked, "You were there when Moore was arrested; what did he say?" Agent Jenkins responded, "I am not allowed to talk to you, sir," and walked away. Trial Tr., Vol. 10, at 1517. The following morning, the government brought this encounter to the attention of defense counsel and the court. The various defense counsel requested that the court voir dire the juror and/or replace him with one of the alternates. The court called in the juror and questioned him about the encounter. The court admonished the juror that he could not discuss the case with anyone (including government employees), and asked the juror if he henceforth could follow that instruction and make no contact with anyone whatsoever. The juror said he could. The court also verified that Agent Jenkins had not answered the juror's question, and that the encounter would not affect the juror's ability to be fair and impartial. Satisfied with the juror's responses, the court ruled over defense requests to excuse the juror, that he could remain on the jury.

Defendants argue on appeal that the agent-juror encounter affected the impartiality of the juror, prejudiced the defense, and tainted the other jurors who witnessed the encounter. Defendants also attack the district court's voir dire of the juror as insufficient and an "abuse of discretion." Appellants' Joint Brief at 14.

Improper, extrajudicial contact between the jury and a third party can indeed prejudice a defendant, see generally Remmer v. United States, 347 U.S. 227, 229-30, 74 S.Ct. 450, 451, 98 L.Ed. 654 (1954); but it does not necessarily do so in every case. The determination of whether the contact in a given case was prejudicial or harmless lies primarily within the discretion of the trial court. See United States v. Sababu, 891 F.2d 1308, 1335 (7th Cir.1989). The court may decide that the trial can proceed and the contacted juror(s) continue to sit if, "after considering factors such as the communication's nature, the jurors' responses, and the curative ability of instructions, [the court] finds that the jury can (and will) remain impartial and render a verdict based solely on the evidence, not the improper contact." United States v. Williams, 737 F.2d 594, 612 (7th Cir.1984) (citation omitted), cert. denied, 470 U.S. 1003, 105 S.Ct. 1354, 84 L.Ed.2d 377 (1985). The finding that a juror and/or trial can continue is one of fact that we review only for clear error. Id.

In this case, the court questioned the overly curious juror and determined that his ability to render a verdict based on the evidence had not been affected. In fact, at the request of the government and defense counsel, the court actually twice called in the juror for questioning before allowing him to proceed. See Trial Tr., Vol. 10, at 1522-25. After that voir dire, the court heard argument from defense counsel and the government. Based on all this, the court decided that the juror's unanswered question did not so reflect on his ability to follow instructions, or affect his impartiality, such that he should be dismissed. The court's inquiry was quite adequate, and its finding that the defendants were not prejudiced will not be disturbed. Cf. United States v. Castello, 830 F.2d 99, 101 (7th Cir.1987) ("[H]armless contact between a juror and a security officer is not grounds for reversal.").

II. Bruton Challenge

Defendant Otis Wilson, one of the Bank insiders involved in the scheme, gave a rather detailed confession to a grand jury concerning his participation in the conspiracy. In that confession, Wilson incriminated not only himself but also his codefendants. The government sought to introduce Wilson's grand jury testimony at trial as evidence against him. The government offered to redact any by-name references to the non-pleading defendants and replace them with neutral terms such as "an individual" or "other individuals." Counsel for the other defendants wanted further redactions, including the elimination of more general references that, when linked with other evidence, could identify a particular defendant or defendants. See Trial Tr., Vol. 4, at 353-59. After hearing argument and reviewing the matter, the court ordered almost all of the redactions requested by the defendants. Id. at 383-87.

On appeal, defendants (all but Wilson) claim that the admission of Wilson's grand jury testimony, despite the redactions, violated their constitutional right to confront their accusers. Defendants rely, of course, upon Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), wherein the Supreme Court held that a defendant's Confrontation Clause rights were violated when his nontestifying codefendant's confession incriminating them both was admitted into evidence, even though the jury was instructed to consider the confession against only the codefendant. Since Bruton, however, the Court has held that the Confrontation Clause is not violated when a codefendant's confession is redacted to omit any reference to the defendant and a proper limiting instruction is given. Richardson v. Marsh, 481 U.S. 200, 107 S.Ct. 1702, 95 L.Ed.2d 176 (1987). The Court expressed no opinion on whether the substitution of neutral pronouns would suffice, see id. at 211 n. 5, 107 S.Ct. at 1709 n. 5, but this court, and other courts of appeals, specifically have held that the replacement of defendants' names with references such as "another person," combined with an instruction to consider the confession against only the declarant, satisfies Bruton. See United States v. Myers, 892 F.2d 642, 647 (7th Cir.1990) (citing cases); see also United States v. Myers (same case after remand), 917 F.2d 1008, 1010 (7th Cir.1990).

Defendants do not attempt to suggest that the redactions in this case were not sufficient under this body of cases (which they clearly were), but argue instead that these cases "do not give adequate deference to Bruton." Appellants' Joint Brief at 16. Defendants proffer a rule whereby a nontestifying codefendant's statement "should always be redacted to omit any and all references to codefendants on trial." Id. Such a rule,...