U.S. v. Underwood

Citation122 F.3d 389
Decision Date07 August 1997
Docket Number95-2926,95-3052 and 95-3124,Nos. 95-2155,95-2925,s. 95-2155
PartiesUNITED STATES of America, Plaintiff-Appellee, v. William UNDERWOOD, Paul Messino, Christopher B. Messino, Christopher Richard Messino, and Clement Messino, Defendants-Appellants.
CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)

Barry Rand Elden, Chief of Appeals, Matthew M. Schneider, Office of the United States Attorney, Criminal Appellate Division, Chicago, IL, Daniel S. Goodman (argued), U.S. Department of Justice, Criminal Division, Appellate Section, Washington, DC, for Plaintiff-Appellee.

Donna Hickstein-Foley (argued), Chicago, IL, for Defendant-Appellant William Underwood.

Joseph R. Lopez (argued), Chicago, IL, for Defendant-Appellant Paul Messino.

Gerardo S. Gutierrez (argued), Chicago, IL, for Defendant-Appellant Christopher B. Messino.

Marc W. Martin (argued), Chicago, IL, for Defendant-Appellant Christopher Richard Messino.

E.E. Edwards, III, Edwards & Simmons, Nashville, TN, Douglas P. Roller (argued), Roller & Associates, Chicago, IL, for Defendant-Appellant Clement A. Messino.

Before CUDAHY, ESCHBACH, and FLAUM, Circuit Judges.

ESCHBACH, Circuit Judge.

Because the process of empaneling a jury is largely ungoverned by uniform procedural rules, yet fraught with opportunity for constitutional violation, the trial court is well-advised to exercise particular caution during the process. In this case, an unintentionally misleading description of the court's method of jury selection, which the court chose not to remedy after the confusion surfaced, compels us to reverse the convictions of four of the five appellants. The fifth appellant, William Underwood, pled guilty and thus only challenges his sentence, which we affirm.

I. Background

On November 18, 1993, a grand jury returned a thirteen-count superseding indictment against twelve defendants, including the five appellants who now bring this appeal: William Underwood, Paul Messino ("Paul"), Christopher B. Messino ("Chris"), Christopher Richard Messino ("Dick"), and Clement Messino ("Clement"). The core allegation in the indictment charged all twelve defendants with conspiracy to distribute and possess with intent to distribute multi-kilogram quantities of cocaine. See 21 U.S.C. §§ 841(a)(1) & 846. The object of the conspiracy, which allegedly spanned the eleven-year period from 1980-1991, was to purchase cocaine in Florida, and transport it to Illinois for distribution in the Chicago area. Dick and Clement, brothers and former officers of the Chicago Police Department, were the alleged leaders of the conspiracy, and were assisted by Dick's sons Chris and Paul, among others. In addition to the shared conspiracy charge, the appellants here were also separately indicted for the following: Chris and Paul for distribution of cocaine, in violation of 21 U.S.C. § 841(a)(1); Clement and Dick for willfully making false declarations about income to the Internal Revenue Service, in violation of 26 U.S.C. § 7206(1); Clement for money laundering in connection with his June 1991 purchase of property in Monee, Illinois, in violation of 18 U.S.C. § 1956; and Dick for obstruction of justice for attempting to influence a witness's grand jury testimony, in violation of 18 U.S.C. § 1503. The indictment also contained numerous criminal forfeiture allegations relating to real and personal property of appellants, on the grounds that these properties were used in the commission of crime, were proceeds of crime, or were derived from proceeds of crime. 1

After ruling on an exhausting thirteen-month round of pretrial motions, the district court proceeded with jury selection (an issue to which we will shortly return), and began trial on February 13, 1995. At the trial's end on April 27, 1995, Chris, Clement, Dick, and Paul (collectively "the Messinos") were convicted on all counts and received sentences ranging from 235 months to life imprisonment. 2 On appeal, the Messinos bring a legion of claims challenging both their jury convictions and sentences. Underwood, who did not participate in the jury trial because he chose to plead guilty, received a 121-month term of imprisonment, which he now appeals.

II. Discussion
A. The Messinos

The issues brought before us on appeal chronicle the difficult decisions that the district court faced at trial. For example, the evidence we reviewed revealed close questions on whether the government met its burden to prove a single conspiracy instead of multiple conspiracies and on the appropriate statute of limitations to apply to criminal forfeiture actions. In addition, we note that United States v. Gaudin, 515 U.S. 506, 115 S.Ct. 2310, 132 L.Ed.2d 444 (1995), a case decided after the Messino trial, casts doubt on the district court's decision to decide the "materiality" of a false statement made on Dick's tax return as a matter of law, instead of submitting it to the jury. See United States v. DiDomenico, 78 F.3d 294, 302-303 (7th Cir.1996); United States v. Uchimura, 107 F.3d 1321 (9th Cir.1997); United States v. DiRico, 78 F.3d 732 (1st Cir.1996). But see United States v. Klausner, 80 F.3d 55 (2d Cir.1996). We need not further discuss these interesting issues, however, in light of our decision to reverse all convictions stemming from the jury trial due to an impairment of the defendants' rights to peremptory challenges during the jury selection process. We therefore limit our discussion to the facts and legal analysis necessary to our decision on the jury selection issue.

The Messinos argue that they were unable to intelligently exercise their peremptory challenges because they were operating under a reasonable misapprehension about the judge's jury selection procedure. In his prefatory description of the process, the judge told counsel that of the potential jurors who survived for-cause and peremptory challenges, the "first twelve" left would constitute the petit jury and the next six would be the alternates. Based on the language used by the judge in his description, and on the visual impact of the selection process itself, defendants thought that the "first twelve" meant the first twelve jurors as they were seated in the jury box. In fact, the judge meant the first twelve names as they appeared on a jury list that only he and his clerk possessed, which did not correspond to the order of seating in the jury box. Defendants maintain that the effect of this misunderstanding, which the judge easily could have remedied after it was brought to his attention, was to impair the intelligent exercise of their peremptory challenges.

The Federal Rules of Criminal Procedure give no guidance as to the manner in which peremptory challenges should be exercised in a criminal trial, leaving this and most other jury selection procedures to the discretion of the trial judge. See United States v. Harris, 542 F.2d 1283, 1295 (7th Cir.1976). That discretion, however, is not without limits. Abuse of discretion could result, for example, from the "violation of settled principles of criminal law, federal statutes, or constitutional rights of [a] defendant." United States v. Mackey, 345 F.2d 499, 502 (7th Cir.1965). The right to exercise peremptory challenges is " 'one of the most important of the rights secured to the accused.' " Swain v. Alabama, 380 U.S. 202, 219, 85 S.Ct. 824, 835, 13 L.Ed.2d 759 (1965) (quoting Pointer v. United States, 151 U.S. 396, 408, 14 S.Ct. 410, 414, 38 L.Ed. 208 (1894)). When the jury selection method used by the court arbitrarily denies or impairs the use of that right, resulting in a due process violation, abuse of discretion is clear. Because peremptory challenges are statutorily granted, not constitutionally guaranteed, "the 'right' to peremptory challenges is 'denied or impaired' only if the defendant does not receive that which [statutory] law provides." Ross v. Oklahoma, 487 U.S. 81, 89, 108 S.Ct. 2273, 2279, 101 L.Ed.2d 80 (1988). Our inquiry today, therefore, is whether the defendants were able to intelligently exercise the peremptory challenges to which they were entitled under Federal Rule of Criminal Procedure 24, the statute that authorizes the use of peremptories in a federal criminal trial.

After a careful review of the record, we are convinced that the jury selection process here violated the defendants' Fifth Amendment due process rights by impairing the intelligent exercise of the peremptory challenges to which they were entitled under Rule 24. Accordingly, we must reverse the Messinos' convictions irrespective of prejudice. Swain, 380 U.S. at 219, 85 S.Ct. at 835 ("The denial or impairment of the right [to peremptory challenge] is reversible error without a showing of prejudice."); see also Olympia Hotels Corp. v. Johnson Wax Dev. Corp., 908 F.2d 1363, 1369 (7th Cir.1990) ("[I]ssues of entitlement to a particular kind of tribunal are in general not subject to the harmless error rule.... It is reversible error to deny a party to a jury trial the peremptory challenges to which the rules of procedure entitle him."). The government argues that automatic reversal is unnecessary because the Supreme Court's decision in Ross v. Oklahoma, 487 U.S. 81, 108 S.Ct. 2273, 101 L.Ed.2d 80 (1988), authorizes the use of harmless error analysis in this circumstance. We disagree. Although not all restrictions on the right to peremptory challenge constitute the denial or impairment of the right, see, e.g., Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), Ross does not authorize us to abandon the automatic reversal rule that the Supreme Court announced in Swain where, as here, a denial or impairment of a defendant's statutory right to the intelligent exercise of peremptory challenges is found. We therefore join our sister circuits that have held, post-Ross, that harmless error analysis is inappropriate where a defendant's statutory right to peremptory challenge has been denied...

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