USA. v. Boyd & Green

• Citation: 208 F.3d 638
• Decision Date: 03 April 2000
• Docket Number: 98-2038,98-2036,98-2037,Nos. 98-2035,s. 98-2035
• Parties: (7th Cir. 2000) United States of America, Plaintiff-Appellee, v. Jeff Boyd, Charles Green, Sammy Knox, Noah R. Robinson, and Melvin Mays, Defendants-Appellants. & 98-2060
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 638

208 F.3d 638 (7th Cir. 2000)

United States of America, Plaintiff-Appellee, v. Jeff Boyd, Charles Green, Sammy Knox, Noah R. Robinson, and Melvin Mays, Defendants-Appellants.

Nos. 98-2035, 98-2036, 98-2037, 98-2038 & 98-2060

The United States Court of Appeals For the Seventh Circuit

Argued September 27, 1999

Decided April 3, 2000

Appeals from the United States District Court for the Northern District of Illinois, Eastern Division. No. 89 CR 908--James B. Zagel, Judge. [Copyrighted Material Omitted] Before Posner, Chief Judge, and Ripple and Rovner, Circuit Judges.

Posner, Chief Judge.

The defendants, members of Chicago's "El Rukn" street gang, were indicted along with other members of the gang in 1989 on a variety of serious federal charges. They were tried before a jury in 1991 (all but appellant Mays) and convicted; but the trial judge (Judge Aspen) ordered a new trial because the government had knowingly used false testimony to convict them and had failed to disclose materials that the defendants could have used to impeach the government's witnesses. After we affirmed his order, 55 F.3d 239 (7th Cir. 1995), the defendants were retried, this time before Judge Zagel, and at the end of the 12-week trial the jury again convicted the defendants (now including Mays) of multiple crimes--mainly narcotics violations, and murders committed in the course of turf wars with rival drug gangs-- all pursuant to a continuing and wide-ranging conspiracy reaching back to the mid-1960s. All five defendants were sentenced to life imprisonment except Boyd, who was sentenced to 50 years.

The appeals present almost 20 separate issues, but we confine our discussion to those that have at least colorable merit. Although all the appellants are represented by counsel, Robinson has filed a pro se supplemental brief. Earlier motions by him to file such a brief were repeatedly denied. Eventually the presiding judge of this panel allowed it to be filed; but on further consideration, given the lateness of the filing (long after the case was argued), we have decided to vacate the order allowing the brief to be filed. It goes without saying that a represented litigant has no right to file a pro se brief, e.g., United States v. Gwiazdzinski, 141 F.3d 784, 787 (7th Cir. 1998), and although we can permit such a filing in appropriate circumstances, e.g., Hayes v. Hawes, 921 F.2d 100, 101-02 (7th Cir. 1990) (per curiam), given the lateness of the filing and the repetitive character of the motion the circumstances are not appropriate.

At the first trial--the one set aside because of prosecutorial misconduct--Edgar Cooksey was a defendant and he was convicted with the others. But after the new trial was ordered, he pleaded guilty, and he testified for the government at the second trial. The examination of Cooksey both by the government's lawyer and by one of the defense lawyers, which was conducted over a period of three days, brought out the fact that Cooksey had been a codefendant of at least some of the current defendants, that they had been indicted in 1989, that he had testified at a previous jury trial in 1991 called "United States v. Boyd" (which the current jury knew, of course, was the title of the case it was hearing), that he had spoken to the judge in that trial in "allocution" and had "accepted responsibility" for his acts, that he had pleaded guilty shortly before the beginning of the current trial, and that he had been in prison continuously since 1991. The lawyers for the other defendants thrice objected to the questions that elicited this information, and moved for a mistrial on the ground that the jury was bound to infer that the defendants had been convicted by a previous jury. The government concedes that it can be a reversible error to disclose to the jury (or allow the jury to discover) that a defendant was previously convicted by another jury, see, e.g., United States v. O'Keefe, 722 F.2d 1175, 1179 (5th Cir. 1983); United States v. Attell, 655 F.2d 703, 705-06 (5th Cir. 1981); United States v. Williams, 568 F.2d 464, 470-71 (5th Cir. 1978), though reversal is not automatic. Patton v. Yount, 467 U.S. 1025, 1031-35 (1984); United States v. Keating, 147 F.3d 895, 900 (9th Cir. 1998); cf. United States v. Bruscino, 687 F.2d 938, 940 (7th Cir. 1982) (en banc); United States v. Plescia, 48 F.3d 1452, 1464-65 (7th Cir. 1995). And reversal is out of the question--no possible prejudice is shown--if the damning fact is not actually disclosed. Judge Zagel refused to grant a mistrial, saying he thought it unlikely that the jury would infer that the defendants had previously been found guilty; if he was right, the question whether the jury could have set aside their knowledge of the fact would not even arise.

The question of what the jury is likely to have inferred from statements made in its presence, like the question whether the jury is likely to have been prejudiced by hearing things they shouldn't have, Marshall v. United States, 360 U.S. 310, 312 (1959) (per curiam); United States v. Bruscino, supra, 687 F.2d at 940-41; United States v. Zizzo, 120 F.3d 1338, 1349 (7th Cir. 1997), is quintessentially one for the trial judge to answer, subject only to light appellate review. Because he has his finger on the pulse of the trial and monitors the alertness and attentiveness of the jury, he is in a better position than the appellate judges to determine whether prejudicial matter presented at the trial is likely to have affected the outcome. Judge Zagel could tell how the jurors seemed to be "taking" the revelations concerning Cooksey's previous trial. In the circumstances, we do not think he abused his discretion in refusing to grant a mistrial. The revelations had been scattered over three days of examination and cross-examination of Cooksey and, since they employed technical legal terminology (such as "allocution") and were thus susceptible of other interpretations by a jury of lay persons, did not compel an inference that the current defendants had previously been convicted.

The next issue concerns the admissibility of tape recordings of telephone conversations in 1985 and 1986 in which the defendants made incriminating admissions. The defendants argue that the reliability of the recordings was never adequately determined, that some may have been tampered with, and that the government violated the Brady rule by failing to disclose a specific problem with the accuracy of the tapes that could have been used to impeach the government's evidence. Brady v. Maryland, 373 U.S. 83 (1963). Because tape recordings at once are devastatingly effective evidence and are susceptible to tampering that is very difficult to discover, Title III--the federal statute that regulates electronic surveillance--requires that recordings "be done in such way as will protect the recording from editing or other alterations." 18 U.S.C. sec. 2518(8)(a). To this end, the section requires that the recordings be judicially sealed as soon as the interception order pursuant to which they were made expires. Id.; United States v. Ojeda Rios, 495 U.S. 257, 263 (1990); United States v. Jackson, 207 F.3d 910, 915-16 (7th Cir. March 23, 2000); United States v. Plescia, supra, 48 F.3d at 1463; United States v. Wong, 40 F.3d 1347, 1375 (2d Cir. 1994). This was done here, back in 1985 and 1986. The original recordings were placed in sealed envelopes, and the envelopes in sealed boxes. Some of the seals, both on boxes and on envelopes, were later broken, and anyway the recordings that were actually placed in evidence were not the original recordings. They were copies of duplicate originals made at the same time as the original recordings and intended to be identical to them. They differed--or at least were supposed to differ--only in having been made on a different machine, recording the same conversations. Neither the duplicate originals nor the copies made from them were secured against tampering.

The admissibility of the copies was not challenged at the first trial, and the district judge ruled that this waived the issue as to all the appellants but Mays, who was not a defendant at that trial. The judge was wrong. Rulings made at a previous trial of the same case only presumptively control the second trial, under the doctrine of law of the case, Alston v. King, 157 F.3d 1113, 1116 (7th Cir. 1998), and when the ruling concerns the admissibility of evidence the presumption is either nonexistent, Tang v. Rhode Island, 163 F.3d 7, 11 (1st Cir. 1998); United States v. Akers, 702 F.2d 1145, 1147-48 (D.C. Cir. 1983), or weak, Menzer v. United States, 200 F.3d 1000, 1004-05 (7th Cir. 2000); United States v. Williams, 205 F.3d 23, 34 (2d Cir. Feb. 23, 2000); United States v. Todd, 920 F.2d 399 403 (6th Cir. 1990); United States v. Birney, 686 F.2d 102, 107 (2d Cir. 1982), since issues of admissibility are often highly contextual and evidence at a second trial will often deviate significantly from that at the first. See, e.g., Coal Resources, Inc. v. Gulf & Western Industries, Inc., 954 F.2d 1263, 1265-66 (6th Cir. 1992). (The presumption is strongest when the ruling concerns a rule of law, and some cases might be taken to suggest that it operates only then. Arizona v. California, 460 U.S. 605, 618 (1983); Payne v. Churchich, 161 F.3d 1030, 1037 n. 8 (7th Cir. 1998).) Even the Ninth Circuit, which takes a harder line on the binding effect of evidentiary rulings made in the first trial, United States v. Tham, 960 F.2d 1391, 1397-98 (9th Cir. 1991), does not regard failure to object at the first trial as an irrevocable waiver. Id. at 1398; United States v. Seidman, 503 F.2d 1027 (9th Cir. 1974). The judge's error in supposing the defendants absolutely precluded from challenging the admissibility of the copies at the second trial was peculiarly harmless, however, since he had to discuss the merits of the issue of admissibility with regard to Mays, and that...