U.S. v. Berry

• Decision Date: 28 August 1995
• Docket Number: No. 94-3717,94-3717
• Citation: 64 F.3d 305
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Walter BERRY, Jr., Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 305

64 F.3d 305

UNITED STATES of America, Plaintiff-Appellant, v. Walter BERRY, Jr., Defendant-Appellee.

No. 94-3717.

United States Court of Appeals, Seventh Circuit.

Argued April 20, 1995.

Decided Aug. 28, 1995.

Ralph M. Friederich, Asst. U.S. Atty., Thomas Leggans (argued), Office of U.S. Atty., Crim. Div., Fairview Heights, IL, for plaintiff-appellant.

Patricia Littleton (argued), Carbondale, IL, for defendant-appellee.

Before KANNE and ROVNER, Circuit Judges, and SHABAZ, District Judge. ^*

KANNE, Circuit Judge.

A jury convicted Walter Berry of one count of unlawful delivery of crack cocaine and acquitted him of an additional count of the same offense. Berry moved for a new trial, alleging that the court improperly allowed the jury to have copies of the government's transcription of a tape-recorded conversation during their deliberations. A new trial was granted and the government appeals.

Use of the Transcription at Trial

The tape recorded conversation was between Berry and a government informant, Eddie Brown, and it purported to implicate Berry in the crimes with which he was charged. Just prior to the commencement of the trial, the court heard argument on Berry's motion in limine which sought to prohibit the government from introducing the tape recording into evidence. Berry claimed that the tape recording was cumulative and not the best evidence. The district judge denied the motion in limine as to the government's use of the tape recording. The motion in limine also sought to keep the government from providing a transcription to the jury while the tape recording was being played. Berry challenged the accuracy of the government's transcription, claiming that he was improperly named at various places along the margin of the document as one of the speakers. Berry tendered a version of the transcription which deleted his name and inserted a question mark in its place. Subsequently, in the hearing on the motion, the court inquired of the government how the speakers' names were ascertained. The government responded that "Eddie Lee Brown was the one who furnished the name[s] of the various speakers...." The district judge denied the motion in limine as to the transcription and advised Berry's counsel that she could attack Brown's credibility as to the identification of the speakers on the tape.

The trial commenced, and, during the government's direct examination, Eddie Brown, the government informant and an acquaintance of Berry, authenticated the tape recording previously marked for identification. At this point Berry renewed his objection to the admission of the tape recording and also renewed his objection to the use of the government's transcription as an aid to the jury. The district judge overruled Berry's objections, admitted the recording into evidence, and indicated he would allow the jury to have copies of the government's transcription while the tape recording was played in open court. The government's transcription was neither marked nor offered for admission into evidence. Berry did not testify that he had reviewed the government's transcription or verify the accuracy of the identification of the speakers shown in the transcription.

The judge then cautioned the jury that the transcription was the government's interpretation of what was contained in the tape recording received in evidence. The jury was also told that the transcription was only an aid or guide to assist in listening to the tape recording. Reminding the jury that the transcription was not evidence, the judge instructed the jury that, if they heard something on the tape different than what the transcription stated, the tape controlled, not the transcription. The jury was not told whether they would be permitted to use the transcription during their deliberations.

Jurors Retain Transcription

After playing the tape recording, the prosecution resumed Brown's direct examination. Following the conclusion of Brown's testimony, the government continued with its case-in-chief. The transcriptions remained in the possession of the jurors during that day's session. Ultimately, the transcriptions were placed into the jurors' note folders. The transcriptions remained in the jury room overnight and were used by the jury during their deliberations. The tape recording, which had been admitted into evidence, was delivered to the jury room along with other evidence. It is unclear, however, whether the jury was provided with a tape player and played the tape recording in the jury room.

Reference to Transcriptions During Deliberations

The jury took six and one-half hours to deliberate and returned split verdicts--an acquittal on one count and a conviction on the other. The judge then asked the jury to retire to the jury room and remain there. Shortly thereafter, as was his custom, the judge and counsel informally engaged the jury in conversation concerning aspects of the trial. At this point it was discovered that the government's transcriptions were in the possession of the jurors. The district judge called the jury back into open court and elicited from them on the record that they had used the government transcriptions during their deliberations and had compared the transcriptions with the tape recording.

Impact of Transcription on the Verdict

A jury verdict is not lightly to be disturbed through a grant of a motion for a new trial. United States v. Santos, 20 F.3d 280, 285 (7th Cir.1994). Where a jury examines evidence during deliberations that was not admitted at the trial, the defendant is entitled to a new trial only if there is a reasonable possibility that the documents had a prejudicial effect on the jury verdict. United States v. Sababu, 891 F.2d 1308, 1333 (7th Cir.1989).

Berry objected to using the transcription at trial because he disputed Brown's identification of his voice on the tape recording. However, presumably because the transcription was not treated as an exhibit (it was not marked, identified, or offered into evidence), ¹ its accuracy as to the identity of the speakers was never verified during Eddie Brown's testimony. Berry maintains that, because the government's transcription indicated who talked at what point in the recording, the transcription removed from the jury's consideration the important question whether Berry was involved in the conversation at all.

Finding of Prejudice

The government asserts, however, that the trial judge did not make a finding on the record of how the transcription might reasonably have impacted the jury to the detriment of the defendant. Such a record is necessary, the government argues, so that we have a basis for deciding whether granting the new trial was an abuse of discretion.

One juror stated on the record that the jury had compared the transcription with the tape recording and that they "actually differed with what the tape said." Presumably in accordance with FED.R.EVID. 606(b), the district judge immediately halted any further discussion by the jurors of the effect the transcription had on their deliberations. ² Later, in orally discussing the motion for a new trial, the district judge made an observation apparently based on an off-the-record comment by a juror. The judge stated that, had it not been for the transcription, the jury would have returned a guilty verdict (on the count of which it ultimately convicted Berry) in fifteen minutes. Thus, we know that the existence of the transcription in the jury room had an impact, but the nature of that impact was left ambiguous.

It is obvious that the district judge was of the view that the presence of the transcription in the jury room and its use by the jury created a reasonable possibility that the transcription had affected the jury's verdicts. Unfortunately, the court's findings went no further, leaving incomplete the final critical step of determining whether that impact might reasonably have been prejudicial to the defendant.

This omission seems to have been caused by a misunderstanding of the language of Sababu. Although that case does state at one point that a new trial is required "when there is a 'reasonable possibility' that the documents affected the jury verdict," it goes on to explain that the "crucial factor" in deciding if a new trial is required is whether there was influence prejudicial to the defendant resulting from the jury's exposure to the extraneous documents. Sababu, at 1333. As the court in Sababu observed, "a new trial is not automatically required whenever a jury is exposed to material not properly in evidence." Id. Moreover, in this case, the question of prejudice leading to the grant of a new trial is more complicated because the defendant was acquitted of one count and found guilty of the other.

It is, of course, the district judge who is in the best position to determine the potential prejudicial effect of the extraneous documents coming to the attention of the jurors. While this court may review the record and make an independent determination about whether the jurors' use of the transcription had an impact on the jury's verdict adverse to the defendant, that is not our role in the first instance. We said in Sababu, "[t]he district court has the primary responsibility for making this determination of prejudice, and an appellate court must review the district court's determination under an 'abuse of discretion' standard." Id.

It would be an abuse of discretion to set aside the jury's verdict of guilty and grant a new trial if no prejudice to the defendant occurred. Here it appears that the new trial was granted solely because the district judge considered the jurors' use of the transcription to have had an effect on their verdicts--without a determination that the effect was prejudicial. However, merely because of the errant application of Sababu, we will not equate the lack of a finding of prejudice with the actual absence of prejudice.

We REMAND this case to the district court...