United States v. Pittman
| Decision Date | 07 October 1971 |
| Docket Number | No. 71-1367.,71-1367. |
| Citation | 449 F.2d 1284 |
| Parties | UNITED STATES of America, Plaintiff-Appellee. v. Ava PITTMAN and Paula Wynn, also known as Paula M. Lynn, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Ninth Circuit |
George E. Graziadei (argued), Las Vegas, Nev., for defendants-appellants.
William P. Cashill, Asst. U. S. Atty. (argued), Bart M. Schouweiler, U. S. Atty., Las Vegas, Nev., for plaintiff-appellee.
Before MERRILL, ELY and KILKENNY, Circuit Judges.
Convicted of violating 26 U.S.C. § 4705(a) () and 18 U.S.C. § 371 (conspiracy), Pittman and Wynn appeal. We reverse and remand for a new trial because the privacy of the jury room was improperly invaded by an agent of the prosecution.
After the jury in this case had retired to deliberate, it notified the trial judge that it wished to listen again to a tape recording that had been played during the course of the trial. Since the tape could be erased by inept use of the recorder, the court, seeking to prevent a loss of evidence, directed the Government agent who had played the tape during trial to accompany the court clerk into the jury room to play the tape there for the jury. The government agent had been prominently aligned with the Government's case during the trial. He had testified at length as a material witness about surveillance and chain of custody of the physical evidence, and he had been permitted to sit at the prosecutor's table throughout the trial.
The trial court's directions were given without the knowledge or consent of appellants or their counsel. Appellants learned what had occurred only after the jury returned its verdict. They then moved for a judgment of acquittal notwithstanding the verdict, or in the alternative, for a new trial. The court conducted a hearing to determine whether appellants had been prejudiced by the Government agent's presence in the jury room. Following the hearing, the court conceded in a memorandum decision that the proper course of action would have been to call the jury back into the courtroom and to replay the tape in open court in the presence of appellants and counsel, and that permitting a Government agent to invade the sanctity of the jury room was plain error. However, the court denied appellants' motion on the ground that "there is not one scintilla of evidence from which prejudice can be found or inferred."
In our view the District Court erred.
As the trial court recognized, access to the jury during its deliberative process by any adversary simply cannot be tolerated. Cf. Turner v. Louisiana, 379 U.S. 466, 85 S.Ct. 546, 13...
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...a prosecution witness merely to enter the jury room during deliberations in order to play a tape for the jurors, United States v. Pittman, 449 F.2d 1284, 1286 (1971); or to place the jury in the custody of sheriffs' deputies who are testifying at the trial, even when there is no indication ......
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