U.S. v. Heller, 85-5304

• Decision Date: 07 April 1986
• Docket Number: No. 85-5304,85-5304
• Parties: -1171, 86-1 USTC P 9443 UNITED STATES of America, Plaintiff-Appellee, v. Daniel Neal HELLER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1524

785 F.2d 1524

57 A.F.T.R.2d 86-1171, 86-1 USTC P 9443

UNITED STATES of America, Plaintiff-Appellee, v. Daniel Neal HELLER, Defendant-Appellant.

No. 85-5304.

United States Court of Appeals, Eleventh Circuit.

April 7, 1986.

Rosen & Rosen, P.A., Miami, Fla., John W. Nields, Jr., Howrey & Simon, Alma M. Angotti, Davis, Polk & Wardwell, M. Carr Ferguson, Jr., Barry Friedman, Washington, D.C., for defendant-appellant.

Leon Kellner, U.S. Atty., Linda Collins-Hertz, Jane W. Moscowitz, Asst. U.S. Attys., Miami, Fla., for plaintiff-appellee.

Sharon L. Wolfe, Miami, Fla., for amicus ACLU.

Bierman, Sonnett, Shohat & Sale, P.A., Donald I. Bierman, Neal R. Sonnett, Benedict P. Kuehne, Miami, Fla., for amicus curiae Anti-Defamation League of B'Nai B'Rith.

Grover G. Hankins, Charles E. Carter, amicus curiae for NAACP.

Steven E. Chaykin, amicus curiae for American Jewish Congress.

Appeal from the United States District Court for the Southern District of Florida.

Before HILL and ANDERSON, Circuit Judges, and TUTTLE, Senior Circuit Judge.

TUTTLE, Senior Circuit Judge:

This is an appeal by Daniel Neal Heller from his conviction on charges of tax evasion and making false statements on income tax returns. Although Heller attacks the district court's action on four separate grounds, we find the first allegation of error, involving jury misconduct in the form of racial and religious slurs, so compelling that on that ground we reverse and remand the case for retrial. We, therefore, need not reach the other grounds of appeal in this opinion.

STATEMENT OF THE FACTS

Daniel Heller, a Miami civil trial attorney, was indicted on June 30, 1982, on three counts of tax evasion in violation of 26 U.S.C. Sec. 7201 (1983) and three counts of falsely subscribing to an income tax return in violation of 26 U.S.C. Sec. 7206(1) (1983). A jury trial on the charges began on August 25, 1983 in the United States District Court for the Southern District of Florida. Following a 12 week trial, the jury returned a verdict of guilty on all counts on November 10, 1983. Heller received a sentence of three years imprisonment and is presently free on bond pending appeal.

The trial itself was a highly complex proceeding, involving the testimony of numerous accountants and other tax experts. Approximately one day after jury deliberations in the case began, the jury sent out the following note:

12:47

November 9, 1983

Your Honor,

Should these actions be addressed?

During the course of this trial, there were comments in the jury room about various testimony. Also, some ethnic slurs were made.

During the course of this trial, a juror asked a "reliable accountant" the following question (outside the jury room):

"Is it possible for an accountant to make out a person's income tax return without knowing about the person's books?"

Answer: No.

The juror stated that outside the jury room, he asked a hypothetical question of a reliable accountant along these lines: "What is the responsibility of an accountant when he signs his name to a tax return?" The accountant was reported as saying, "virtually none in the case of an individual return. In the case of a business return, his involvement would be considerable."

Please advise.

Thank you.

Virginia Davis Starker,

Fore Person

As soon as the note was received by the trial judge, Heller moved for a mistrial. The court ordered the jury to stop deliberating, and subsequently decided to voir dire the jury. The trial judge questioned each juror individually, apart from counsel for either party, in an attempt to "get rid of the taint that we have seen here." As a result of this individual voir dire, some highly disturbing facts came to light.

One of the jurors, by the name of Shatten, told the judge:

The trial had barely started or maybe it was before the trial had started, somebody, this was supposed to be a huge joke, said, "Hey, somebody asked me what kind of a case you are on." (The I said to myself, I wouldn't want to be tried by anybody with this kind of mentality.

juror) said, "Well, the fellow we are trying is a Jew. I say, 'Let's hang him.' "

Shatten then stated that one juror had remarked during the testimony, apparently in reference to the surnames of several of the witnesses, " 'Hey, how many Kaplans are we going to have here?' ... The smirk on the man's face said to me, 'Well, Kaplan is a Jewish name and how many Kaplans are we going to have?' Gales of laughter." In addition, he told the court that "Another juror, when Rabbi Lehrman testified said, 'you know what the Rabbi came here for, he came to bless Mr. Heller,' and gales of laughter." He further stated, "There were comments like, 'Did you see the face on Heller when (the prosecutor) said such and such?' There was a kind of glee.... They (sic) were gales of laughter about this kind of conversation. They seemed to enjoy the travail that Mr. Heller was going through. And this bothered me enormously." Indeed, "there was an awful lot of prejudging the guilt or innocence of Mr. Heller.... There were three or four people in the jury room who had all the appearance of a linch (sic) mob."

Juror Shatten summed up his report of what had transpired in the jury room stating that: "As we came out of the jury box into the jury room, you would think we were in a circus. You would never know that a man's life, for all practical purposes, was on the line.... I would hate if I was pure as driven snow to be judged by people of this mentality.... I had many a sleepless night."

The court's conversations with the other jurors support Shatten's account. Juror Nolan admitted making an anti-Semitic "slur." He told the court that in the course of a conversation with a friend outside the courtroom, which was later repeated to several of his fellow jurors in the case, he was asked on what sort of case he was sitting. He told the friend that it involved a lawyer who was charged with tax evasion. According to Nolan, the friend asked, " 'Who is the lawyer?' and I said, 'I believe the name is Mr. Heller.' He says, 'Oh, the Jewish lawyer?' I said, 'yes.' He said, 'Well, how do you feel?' I said, 'the case hasn't been said, but he is Jewish. We are just going to hang him.' " When further questioned by the court on this point, Nolan claimed that his remarks were made "jokingly" and in a "teasing" manner.

Other jurors admitted that there were: "comments of how many Kaplans there were.... I guess I shouldn't get into it;" "something about a rich Jew ... in a story that was being told;" a story about a "nigger" which had offended one of the black jurors, and other racial and ethnic slurs, some of which occurred during deliberations, which the court did not permit the jurors to reveal.

In addition to the existence of numerous racial and religious slurs made by several members of the jury, the court also discovered during its voir dire that, in violation of its specific instructions, one of the jurors had during trial sought out an opinion on an issue in the case from an unidentified accountant who lived in his apartment building. The accountant apparently told Juror Shatten that in the case of an individual tax return, the accountant preparing that return has no responsibility for the veracity of the information contained within. Shatten then shared this information with the other jurors.

The trial judge concluded his questioning of each of the jurors in the case by asking them individually whether in light of what had occurred in the jury room they would still be able to reach a decision in the case based strictly on the evidence and the law without bias or prejudice. Each juror affirmed that he would be able to make such a decision. Then, following his individual conversations with each juror, the judge called all of the jurors into the courtroom at the same time and asked them to confirm their earlier promises to ignore "these extraneous outside matters that we have discussed." After all had given the necessary confirmation, the judge permitted the

jurors to continue their deliberations despite several defense motions for mistrial. Ninety minutes later, the jury returned a guilty verdict. This appeal then ensued.

DISCUSSION

In a letter written in 1790 to the Hebrew Congregation of Newport, Rhode Island, in anticipation of the adoption of the Bill of Rights, President George Washington spoke emphatically of this Republic and its government giving "to bigotry no sanction, to persecution no assistance." He stated that:

It is no more that toleration is spoken of as if it were the indulgence of one class of people that another enjoy the exercise of their inherent natural rights, for, happily, the Government of the United States ... requires only that they who live under its protection should demean themselves as good citizens in giving it on all occasions their effectual support.

A.J. Karp, The Jewish Experience in America (1969), Vol. I, p. 356-7. Despite longstanding and continual efforts, both by legislative enactments and by judicial decisions to purge our society of the scourge of racial and religious prejudice, both racism and anti-Semitism remain ugly malignancies sapping the strength of our body politic. The judiciary, as an institution given a constitutional mandate to ensure equality and fairness in the affairs of our country when called on to act in litigated cases, must remain ever vigilant in...