United States v. Thomas, 18455.

CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)
Citation463 F.2d 1061
Docket NumberNo. 18455.,18455.
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Lawrence W. THOMAS, Defendant-Appellant.
Decision Date02 May 1972

Thomas P. Sullivan, Robert C. Keck, Jr., Chicago, Ill., for defendant-appellant; Jenner & Block, Chicago, Ill., of counsel.

James R. Thompson, U. S. Atty., Samuel K. Skinner, Asst. U. S. Atty., William J. Bauer, U. S. Atty., Chicago, Ill., for appellee; John Peter Lulinski, Jeffrey Cole, Asst. U. S. Attys., Jeffrey Johnson, Arnold Kanter, Legal Interns., of counsel.

Before SWYGERT, Chief Judge, and CASTLE, Senior Circuit Judge, and STEVENS, Circuit Judge.

SWYGERT, Chief Judge.

This is an appeal from the conviction of Lawrence W. Thomas of mail fraud in violation of 18 U.S.C. § 1341. In the original twelve-count indictment, defendant, an attorney, and George J. Pope, a doctor, were charged with using the mails to defraud several insurance companies. On the Government's motion six counts of the indictment were dismissed against both defendants. Some time later, Dr. Pope's trial was severed from that of Thomas. On the day Thomas' trial began, Dr. Pope pled guilty to the remaining counts and thereafter appeared as a witness for the Government.1 Thomas was charged with sending fraudulent claims for damages sustained by his clients to insurance companies, including hospital and doctor's bills relating to clients who had not been injured, exaggerated medical reports, and auto repair estimates and bills which were inordinately high. Thomas was found guilty by the jury, fined $5,000 and sentenced to probation for three years, the first sixty days of which are to be served in jail.

The defendant charges error in the judge's determination that the evidence was sufficient to go before the jury. We disagree with this contention. Upon review of the record we conclude that the evidence on each of the counts was such that a jury could find guilt beyond a reasonable doubt. Defendant also points to several errors in the conduct of the trial in addition to challenging the judge's response to testimony that an allegedly prejudicial newspaper article had been present in the jury room and had been used by the jury during its deliberations. Since we agree that constitutional errors surround the trial judge's treatment of this disclosure and require that a new trial be held, we will not deal with the defendant's remaining claims.

The record discloses the following facts: The jury began to deliberate at approximately 1:30 P.M. on November 25, 1969. At 9 P.M. that day the jurors found Thomas guilty and, after the verdict was signed and sealed, the jury was released for the night. At 7:15 the following morning, Mrs. Thomas, the defendant's wife, received a call from a woman identifying herself as Mrs. Kruschka, a member of the jury. Mrs. Kruschka claimed that "something went on last night that was very wrong" and asked to speak with the defendant's attorney. After getting the number from Mrs. Thomas, Mrs. Kruschka called defendant's attorney, Thomas P. Sullivan. Mrs. Kruschka told Mr. Sullivan that several jurors had had copies of a newspaper article about the case which had appeared in the Chicago Tribune on the morning of November 25. She claimed that during the deliberations jurors who chose to vote for conviction argued from the article which they displayed and to which they repeatedly referred. She indicated that several votes were required before all jurors decided to vote for conviction.

Later that morning in court, defendant's attorney reported his conversation with Mrs. Kruschka, and presented the article in question. The article was entitled, Car Insurance Fraud Trial is Nearing End. The first two paragraphs reported the stage of court proceedings in the Thomas trial and attempted to summarize the testimony of one of the witnesses. In addition, the article stated, "Doctor Pope was indicted with Thomas and five other attorneys in the alleged insurance padding which caused three million dollars in losses to several insurance companies." Mr. Sullivan claimed that this statement referred to matters outside the record and not properly before the jury. He then moved for a hearing to determine the jury's exposure to the article, or for a mistrial. The trial judge denied the motions and instructed the attorneys for both sides not to interview the jurors. After the verdict was read and the jury discharged, Mr. Sullivan filed post-trial motions for a hearing or for a new trial based on his affidavit and that of Mrs. Thomas. The trial judge again denied these motions.

Thomas' claim for a new trial rests upon a defendant's sixth amendment right to confront the witnesses against him. Confrontation in open court is critical since it affords a defendant an opportunity to fully contest the prosecution's case in the presence of the jury. An important corollary of this protection is the requirement "that the jury's verdict be based upon evidence received in open court, not from outside sources." Sheppard v. Maxwell, 384 U.S. 333, 351, 86 S.Ct. 1507, 1516, 16 L.Ed.2d 600 (1966); Marshall v. United States, 360 U.S. 310, 312-313, 79 S.Ct. 1171, 3 L.Ed. 2d 1250 (1959). See Irvin v. Dowd, 366 U.S. 717, 722, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961). Newspaper and television publicity surrounding a trial represent the most common threats to the integrity of the proceedings. This is not to suggest, however, that juror exposure to any publicity vitiates the fairness of the trial. The severity of the threat depends upon both the nature of the information so publicized and the degree of juror exposure to it. Moreover, the judge's response is to be commensurate with the severity of the threat posed. Margoles v. United States, 407 F.2d 727, 733 (7th Cir.), cert. denied, 396 U.S. 833, 90 S.Ct. 89, 24 L.Ed.2d 84 (1969). In numerous cases, we have been required to consider what degree of prejudice must be shown to trigger the court's responsibility to investigate further by specifically questioning the jury, or to institute ameliorative measures, such as continuances or cautionary instructions, and finally, what kind of showing of prejudice will necessitate a new trial. In the instant case, we find that the district court, when presented with evidence indicating that a prejudicial news article was actually present in the jury room and, more importantly, that it was in fact used by some jurors to persuade others, was at the very minimum required to investigate further.

This circuit has specifically defined minimal measures a district judge is required to take when confronted with evidence of prejudicial publicity prior to and during a trial. Thus, when apprised in a general fashion of the existence of damaging publicity, the district judge is only called upon to "strongly and repeatedly admonish the jury throughout the trial not to read or listen to any news coverage of the case." Margoles v. United States, supra at 733. When the publishing of specific examples of inadmissible evidence is brought to the court's attention, further investigation is required to determine juror exposure to it:

Thus, the procedure required by this Circuit where prejudicial publicity is brought to the court\'s attention during a trial is that the court must ascertain if any jurors who had been exposed to such publicity had read or heard the same. Such jurors who respond affirmatively must then be examined, individually and outside the presence of the other jurors, to determine the effect of the publicity. 407 F.2d at 735.

See United States v. Accardo, 298 F.2d 133, 136 (7th Cir. 1962). The standard for triggering the requirement of an initial collective inquiry has not been construed strictly. In Margoles, though the testimony related in the article had been ruled inadmissible by the district court, it was far less abusive and prejudicial than the publicity disclosed in Sheppard v. Maxwell, supra. See United States v. Solomon, 422 F.2d 1110, 1116-1117 (7th Cir. 1970). Indeed, in United States v. Kamber, 458 F.2d 918 (7th Cir. 1971), we specifically approved of the judge's inquiry after having been apprised of the existence of an article which simply paraphrased the indictment, related that the defendant was and continued to be active in the Young Republicans, and that he had recently escorted Tricia Nixon to one political affair and Julie Nixon to another. Collective inquiry of the jury of the sort required by Margoles thus ranks among the most rudimentary of the responses at the judge's disposal. See, e. g., American Bar Association Project on Minimum Standards for Criminal Justice, Standards Relating to Fair Trial and Free Press, § 3.5 (Approved Draft, 1968).

The Government asserts that the instant case does not fall within the rule of Margoles because it involves a claim of juror exposure to prejudicial publicity after the trial was completed and a verdict given rather than a claim raised prior to or during trial. It argues that the court should be mindful of the public policy considerations which militate against jurors' impeachment of their own duly rendered verdict. McDonald v. Pless, 238 U.S. 264, 35 S.Ct. 783, 59 L.Ed. 1300 (1915). Though this policy is a weighty one, it has not been held to be an absolute prohibition. The Supreme Court has recently suggested that more important countervailing considerations are provided by the requirements of the sixth amendment. Parker v. Gladden, 385 U.S. 363, 87 S.Ct. 468, 17 L.Ed.2d 420 (1966). In Parker, the Supreme Court allowed for the impeachment of the verdict where juror testimony indicated that a bailiff had spoken with several jurors in the jury room. The bailiff's remarks consisted only of a general, unsupported statement of opinion, "that wicked fellow . . . is guilty," and an assurance that any error by the jury would be corrected by the Supreme Court. See Remmer v. United States, 347 U.S. 227, 74...

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73 practice notes
  • Oswald v. Bertrand, No. 01-C-0182.
    • United States
    • United States District Courts. 7th Circuit. United States District Court of Eastern District of Wisconsin
    • March 26, 2003
    ...questioning the potential jurors in order to be certain that its instructions were heeded." Id. at 969. And in United States v. Thomas, 463 F.2d 1061 (7th Cir.1972), after a verdict was reached but before it was published, the trial court was made aware that during deliberations several jur......
  • State v. Poland, Nos. 4969
    • United States
    • Supreme Court of Arizona
    • April 13, 1982
    ...416 U.S. 986, 94 S.Ct. 2391, 40 L.Ed.2d 764 (1974), "slightest possibility that harm could have resulted"; United States v. Thomas, 463 F.2d 1061 (7th Cir. 1972) and Osborne v. United States, 351 F.2d 111 (8th Cir. 1965), "might have operated to the substantial injury of the defendant"; Far......
  • State Of Ariz. v. Garcia, No. CR-07-0438-AP.
    • United States
    • Supreme Court of Arizona
    • March 18, 2010
    ...with the severity of the threat posed.’ ” State v. Miller, 178 Ariz. 555, 557, 875 P.2d 788, 790 (1994) (quoting United States v. Thomas, 463 F.2d 1061, 1063 (7th Cir.1972)). Defense counsel specifically stated that he was seeking only a mistrial of the aggravation phase and not the guilt p......
  • U.S. v. Jones, s. 73-2520 and 73-2521
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • February 9, 1976
    ...to investigate further (in-trial publicity) by specifically questioning the jury * * *." United States v. Thomas (7th Cir. 1972), 463 F.2d 1061, 1063. With hardly an exception, the cases in which substantial prejudicial publicity during trial was found, the publicity involved "information a......
  • Request a trial to view additional results
76 cases
  • State Of Ariz. v. Garcia, CR-07-0438-AP.
    • United States
    • Supreme Court of Arizona
    • March 18, 2010
    ...with the severity of the threat posed.’ ” State v. Miller, 178 Ariz. 555, 557, 875 P.2d 788, 790 (1994) (quoting United States v. Thomas, 463 F.2d 1061, 1063 (7th Cir.1972)). Defense counsel specifically stated that he was seeking only a mistrial of the aggravation phase and not the guilt p......
  • State v. Poh, 82-1187-CR
    • United States
    • United States State Supreme Court of Wisconsin
    • January 31, 1984
    ...States v. Bruscino, 662 F.2d 450, 457-58 (7th Cir.1981); Gibson v. Clanon, 633 F.2d 851, 853-54 (9th Cir.1980); United States v. Thomas, 463 F.2d 1061 (7th Cir.1972). See also Government of Virgin Islands v. Gereau, 523 F.2d 140, 150-51 (3d Cir.1975), cert. denied, 424 U.S. 917, 96 S.Ct. 11......
  • Williams v. Griswald, 83-7153
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • October 11, 1984
    ...argument, see United States v. Concepcion Cueto, 515 F.2d 160, 164 (1st Cir.1975), or during deliberations, see United States v. Thomas, 463 F.2d 1061, 1065 (7th Cir.1972), all of which have been found to constitute "critical The credibility of the source to which the information is attribu......
  • Government of Virgin Islands v. Gereau, s. 74-2019
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • September 3, 1975
    ...render a criminal verdict vulnerable because they are Prima facie incompatible with the Sixth Amendment. See United States v. Thomas, 463 F.2d 1061 (7th Cir. 1972); United States v. McKinney, 429 F.2d 1019 (5th Cir. 1970), Cert. denied,401 U.S. 922, 91 S.Ct. 910, 27 L.Ed.2d 825 (1971). That......
  • Request a trial to view additional results

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