United States v. Warner, Lawrence E.

In the

United States Court of Appeals

For the Seventh Circuit

____________

Nos. 06-3517 & 06-3528

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

LAWRENCE E. WARNER and

GEORGE H. RYAN, SR.,

Defendants-Appellants.

____________

Appeals from the United States District Court

for the Northern District of Illinois, Eastern Division.

Nos. 02 CR 506-1, 4—Rebecca R. Pallmeyer, Judge.

____________

ARGUED FEBRUARY 20, 2007—DECIDED AUGUST 21, 2007Œ

OPINION PUBLISHED SEPTEMBER 6, 2007

____________

Before MANION, KANNE, and WOOD, Circuit Judges.

WOOD, Circuit Judge. This appeal comes to us after

an investigation that lasted for years and a jury trial that

lasted more than six months. In the end, the two defen-

dants, former Illinois Governor George H. Ryan, Sr., and

his associate Lawrence E. Warner, were convicted on

various criminal charges. The case attracted a great deal

of public attention, and thus the district court handling

the trial had to deal with a number of problems, some of

which were common and others less so. The fact that the

Œ

This opinion was originally released in typescript on August

21, 2007.

2 Nos. 06-3517 & 06-3528

trial may not have been picture perfect is, in itself, nothing

unusual. The Supreme Court has observed more than

once that “taking into account the reality of the human

fallibility of the participants, there can be no such thing

as an error-free, perfect trial, and . . . the Constitution

does not guarantee such a trial.” United States v. Lane,

474 U.S. 438, 445 (1986) (quoting United States v. Hasting,

461 U.S. 499, 508-09 (1983)). It is our job, in this as in

any other criminal appeal, to decide whether any of the

court’s rulings so impaired the fairness and reliability of

the proceeding that the only permissible remedy is a new

trial.

Defendants Warner and Ryan raise eight grounds on

appeal, six of them common and one argument unique to

each. Their primary emphasis is on specific issues about

the jury. They contend that the verdict was tainted by

jurors’ use of extraneous legal materials. They characterize

the dismissal of a juror as an “arbitrary removal of a

defense holdout.” They object to the substitution of jurors

after deliberations had begun. They also raise claims

unrelated to the jury, including the arguments that the

exclusion of certain evidence was an “erroneous exclusion

of exculpatory evidence,” that the prosecution failed to

identify an “enterprise” for purposes of its charges under

the Racketeer Influenced and Corrupt Organizations

Act (RICO), 18 U.S.C. § 1962, and that the mail fraud

charges were grounded in an “unconstitutionally vague

criminal statute,” see 18 U.S.C. § 1346. Warner addition-

ally objects to the joinder of his trial with Ryan’s, and

Ryan argues that certain grand jury testimony violated

his attorney-client privilege.

Some potential issues, we note, are not before us. The

defendants do not argue that the problems with the jury

had a cumulative, prejudicial effect, even though they

made this argument in their motion for a new trial before

the district court. Nor do they claim that the evidence

was insufficient to support any of the charges on which

Nos. 06-3517 & 06-3528 3

they were convicted. Rather, their appeal is focused on

particular alleged procedural and legal errors. As we

would in any case, we review only those issues presented

to this court. We conclude that the district court handled

most problems that arose in an acceptable manner, and

that whatever error remained was harmless. We there-

fore affirm the convictions.

I

The facts of this case are well-known, and so we recite

only what is necessary to understand the issues on appeal.

In December 2003, a grand jury returned a 22-count

indictment against Warner and Ryan. After a lengthy

trial, on April 17, 2006, a jury found Warner and Ryan

guilty on all counts. On September 18, 2006, the district

court set aside the jury’s verdict with respect to two

separate mail fraud counts against Ryan and then entered

judgment against both defendants on the remaining

counts. The court sentenced Warner to 41 months’ impris-

onment and Ryan to 78 months’ imprisonment. The

defendants both filed timely notices of appeal on Septem-

ber 20, 2006.

The story behind this case began in November 1990

when Ryan, then the Lieutenant Governor of Illinois, won

election as Illinois’s Secretary of State. He was re-elected

to that post in 1994. Throughout Ryan’s two terms in that

office, Warner was one of Ryan’s closest unpaid advisors.

One of Ryan’s duties as Secretary of State was to award

leases and contracts for the office, using a process of

competitive bidding for major contracts and select-

ing leases based on the staff ’s assessments of multiple

options. Improprieties in awarding four leases and three

contracts form the basis of the majority of the RICO and

mail fraud counts against Warner and Ryan, as these

leases and contracts were steered improperly to Warner-

controlled entities. The result was hundreds of thousands

4 Nos. 06-3517 & 06-3528

of dollars in benefits for Warner and Ryan. These benefits

included financial support for Ryan’s successful 1998

campaign for Governor of Illinois.

Prospective jurors for the trial in this case filled out a

110-question, 33-page form, which covered among many

other topics the subjects of their criminal and litigation

histories, their knowledge of the investigation of Ryan, and

their awareness of Ryan’s positions on public issues.

Counsel for all parties and the court reviewed the ques-

tionnaires for four days; voir dire consumed another six

days. The district court seated 12 jurors and eight alter-

nates. The trial lasted six months. The prosecution

presented approximately 80 witnesses against the defen-

dants. In the end, the evidence supporting the jury’s

verdict was overwhelming. We give only a few examples

here from the extensive record that was created. To

begin with, the evidence showed that Ryan steered an

$850,000 four-year Secretary of State’s office lease to

Warner for a property that Warner had recently pur-

chased for just $200,000. Ryan took regular Jamaican

vacations paid for by a currency-exchange owner to

whom Ryan later steered a $500,000 six-year Secretary

of State’s office lease. Ryan took a Mexican vacation

paid for by an individual to whom Ryan later steered

another Secretary of State’s office lease and a lobbying

contract worth nearly $200,000 for virtually no work.

Warner received more than $800,000 for helping a com-

pany land a major Secretary of State’s office contract

without registering as a lobbyist and added another of

Ryan’s friends into the arrangement at Ryan’s re-

quest before the contract was awarded. Finally, and

remarkably, despite evidence showing that they were

enjoying a very nice lifestyle, Ryan’s and his wife’s total

withdrawals from their bank accounts averaged less

than $700 per year for 10 years.

The jury retired on March 13, 2006. This jury deliberated

for eight days. During their deliberations, the jurors

Nos. 06-3517 & 06-3528 5

were allowed occasional breaks so that some jurors could

smoke outside. At the same times, some of the other

jurors would go outside for fresh air or walk up and

down the courthouse stairwells for exercise. No one

formally objected to the court about these activities. On at

least one occasion, the court noted that the jurors were

accompanied by court personnel when on breaks. Putting

media accounts and testimony that the district court

discredited to one side, there is no basis in the record to

conclude that any deliberations took place when the

jurors were separated from one another.

It was not long before problems arose. On Monday,

March 20, 2006, Juror Ezell sent the court a note, also

signed by the foreperson, complaining that other jurors

were calling her derogatory names and shouting profani-

ties. The court conferred with counsel and responded

with a note instructing the jurors to treat one another

“with dignity and respect.” Two days later, the court

received a note from Juror Losacco signed by seven other

jurors, asking if Juror Ezell could be excused because

she was refusing to engage in meaningful discourse and

was behaving in a physically aggressive manner. The

court again conferred with counsel, noting that “[Losacco]

has not told us anything about the way the jury stands

on the merits. She really has not.” The next morning

the court responded with a note, which began, “You twelve

are the jurors selected to decide this case.” The note then

reiterated that the jurors were to treat each other with

respect and reminded them of their duties.

On the eighth day of deliberations, a few hours after the

court responded to the Losacco note, media reports sur-

faced claiming that one of the jurors had given untruthful

answers on the initial juror questionnaire regarding his

criminal history. The court stopped the jury’s delibera-

tions while it looked into the new allegations. After a

background check confirmed that Juror Pavlick had not

disclosed a felony DUI conviction and a misdemeanor

6 Nos. 06-3517 & 06-3528

reckless conduct conviction, the court questioned him

individually. The court asked counsel if there would be

any objection to dismissing Pavlick. Neither the prosecu-

tor nor Ryan’s counsel voiced any objection when Warner’s

counsel moved to dismiss Pavlick or when the court

granted that motion.

It turned out that Juror Ezell’s record was also problem-

atic. A background check turned up seven criminal arrests,

an outstanding warrant for driving on a suspended

license, and an arrest under a false name, “Thora Jones.”

The fingerprints of the “Thora Jones” arrestee matched

Ezell’s, and it turned out that the name “Thora Jones”

might belong to Ezell’s daughter, who also has a signifi-

cant criminal history. The government told the court

that it would have moved to excuse Ezell for cause had

it known during voir dire that she had given law enforce-

ment officers false booking information, as the Ryan-

Warner case also involved charges of providing false

information to law enforcement officers. The court replied

that “I suspect there would not have been an objection [to

that cause challenge]. She would have been excused.” The

court proceeded to question Ezell, who acknowledged her

untruthfulness. Even then, however, she was not forth-

coming about her use of the name “Thora Jones” or about

her daughter’s criminal history. The court concluded

that “some of the answers she just gave me . . . aren’t

truthful.” Warner’s counsel agreed that Ezell should be

excused, while Ryan’s counsel took no position initially.

When the government moved to dismiss Ezell, Ryan’s

counsel objected to the standard employed but did not

object to the decision to remove Ezell based on her un-

truthfulness.

The court also questioned a number of other jurors. It

turned out that Jurors Gomilla and Talbot both had filed

for bankruptcy in the mid-1990s, but neither included

Nos. 06-3517 & 06-3528 7

this information in response to a question about whether

they had ever appeared in court or been involved in a

lawsuit. That question, however, appeared in a section

entitled “Criminal Justice Experience.” Several other

jurors had also left that question blank: Juror Svymbersky,

an alternate, who stole a bicycle at age 18 or 19 in 1983

and thought that the charges had been expunged; Juror

Rein, who was arrested for assault for slapping his

sister in 1980, but never appeared in court; Juror Casino,

who had three arrests that he had not remembered

when filling out the questionnaire, because they occurred

40 years earlier, in the 1960s, when he was in his early

20s; and Juror Masri, an alternate, who reported a 2000

DUI conviction but had said nothing about a 2004 DUI

conviction or about his conditional discharge or proba-

tion in September 2005.

The defense argued that Svymbersky, Rein, Casino, and

Masri should be dismissed for dishonesty, while the

government took the position that all four were fit to

serve. The district court initially was inclined to excuse

Svymbersky and Masri, but it chose to re-interview Casino

and Svymbersky, who both again stated that they had not

recalled the incidents when filling out their questionnaires.

The district court credited the testimony of Svymbersky,

Rein, and Casino, concluding that they did not lie to the

court. The district court did not credit Masri’s testimony

and excused him; no one objected. (We acknowledge the

dissent’s concern that the court did not state explicitly that

it was granting the defendants’ motion to excuse Masri for

cause. Looking at the record as a whole, however, it is

clear that this is what the court did. There was no other

motion related to Masri pending, and the court had stated

that jurors would be dismissed only for cause. If the court

was not excusing Masri for cause, but instead seating

alternates out of order, Masri would have remained an

alternate as opposed to being excused. More importantly,

8 Nos. 06-3517 & 06-3528

though, no one has objected to the characterization of

Masri’s dismissal as one based on cause.)

In light of the dismissals, it became necessary to seat

alternates Svymbersky and DiMartino on the jury in place

of Ezell and Pavlick. At that point, as authorized by

FED. R. CRIM. P. 24(c)(3), the court decided that the

reconstituted jury would need to start its deliberations

from scratch. It questioned each of the remaining original

jurors to ensure that they understood their obligation to

disregard whatever had gone on before and to begin

deliberations anew, and that they felt capable of doing so.

They all answered yes. The court then re-read its instruc-

tions to the reconstituted jury, adding a new one to allay

defense concerns with the questioning about the jurors’

criminal histories. The new jury began deliberating on

March 29, 2006. After 10 days’ work, it returned guilty

verdicts on all counts on April 17, 2006.

After the verdict, dismissed juror Ezell publicly criti-

cized the jury and the verdict. On April 25, 2006, defense

counsel asked the court to conduct a formal inquiry into

her comments. On April 26, the court held a hearing on

the motion in open court, during which the government

noted that “nothing that [Ezell] has said . . . indicated any

extraneous influence occurred.” The court determined

that “the allegations that Ms. Ezell appears to be making

[do not] constitute the kind of misconduct [that would

require an inquiry].” At some point later that day or the

next day, defense counsel learned through new media

reports that Ezell had alleged that Juror Peterson had

brought “case and law” into the jury room about remov-

ing a juror for failing to deliberate. Defense counsel filed

a new motion for an inquiry, which the court granted. On

May 5, 2006, the court opened its inquiry into Ezell’s

allegations, interviewing both Ezell and Peterson. Ezell

told the court that she had previously forgotten about “the

case law” to explain why she had not previously men-

Nos. 06-3517 & 06-3528 9

tioned the incident. Peterson acknowledged bringing into

the jury room an article published by the American

Judicature Society (AJS) (which she found by conducting

a Google search of the term “deliberating”) about the

substitution of jurors and a handwritten note recording

her own thoughts about the duty to deliberate. She read a

portion of the article and the handwritten note to the

rest of the jurors. The court concluded that these two

excerpts “did not prejudice the outcome” and ultimately

denied the defendants’ motion for a new trial on that (and

several other) grounds.

II

Both Warner and Ryan assert that the court’s ruling on

this “extraneous evidence” was wrong, prejudicial, and

requires a new trial. A preliminary question that influ-

ences the rest of the analysis is whether either one, or

both, of these items should be characterized as “extrane-

ous” evidence. The district court concluded that the AJS

article was, but that Juror Peterson’s personal note was

not.

A

Read in isolation, Peterson’s note is hard to criticize.

It said:

You have the right to speak your opinion, but you have

responsibility to use the facts[,] the testimony to

support your opinion to seriously consider [sic]. If you

don’t use evidence and testimony to support your

opinion your [sic] not being responsibly [sic].

The proper characterization of this note is a question of

fact, which we review for clear error. United States v.

Mancillas, 183 F.3d 682, 695 (7th Cir. 1999). Juror Peter-

10 Nos. 06-3517 & 06-3528

son told the district court that her handwritten state-

ment came from her own, independent thoughts. The

district court credited that testimony, noting the lack of

overlap between the subject of the AJS article and Peter-

son’s note, as well as the similarities between Peterson’s

note and the court’s instructions to the jury on their duty

to deliberate.

Credibility findings are “binding on appeal unless the

district judge has chosen to credit exceedingly improbable

testimony.” United States v. Hubbard, 61 F.3d 1261, 1278

(7th Cir. 1995) (emphasis in original). There is no reason

to question the district court’s assessment of Juror Peter-

son’s explanation about the note, let alone any indica-

tion that Peterson’s account was “exceedingly improbable.”

The defendants’ trial counsel were present when the

district court discussed the note with Peterson and were

permitted to ask questions. The defendants imply that

Peterson could not have composed the note without

assistance from external sources, apparently on the theory

that it expressed concepts beyond the capability of a

kindergarten teacher (which is Peterson’s profession). We

cannot imagine why either we or the district court was

required to draw any such inference, which is more than

a little patronizing. Thus, the defendants are left only

with the fact that Peterson put her thoughts on paper.

Had she simply spoken those words to the jury without

writing them first, FED. R. EVID. 606(b) would bar any

consideration of them at all. We conclude that the district

court did not err in determining that this note was not

extraneous information and did not require any further

action.

B

The AJS article was indisputably extraneous information

in the jury room. It dealt generally with the subject of

Nos. 06-3517 & 06-3528 11

juror removal and substitution. The excerpt that Peterson

read to the jury was the following:

But other bases for substitution raise serious questions

about the sanctity of the deliberative process, primar-

ily allegations by some jurors that another juror is

unwilling or unable to meaningfully deliberate, or is

unwilling to follow the law. Such an allegation re-

quires a hearing where the judge must decide the

tricky question whether the juror is truly unfit to

serve, or is merely expressing an alternative view-

point that will likely result in a hung jury. Only if

the judge concludes that the challenged juror is truly

unfit to serve, will the judge be authorized to dismiss

that juror and substitute an alternate juror.

In essence, Peterson’s act of reading that paragraph

introduced new instructions into the jury room about the

deliberative process, beyond those given by the court.

There is no doubt that this should not have happened. The

only question is whether it is such a fundamental error

that it requires automatic reversal, or if it is subject to

harmless error analysis.

The Supreme Court has repeatedly stressed the fact that

so-called structural errors—those that fall outside the

boundaries of harmless error analysis—are few and far

between. Most recently, the Court found that a constitu-

tional error in failing properly to apply the rule of Blakely

v. Washington, 542 U.S. 296 (2004), was subject to harm-

less error analysis. See Washington v. Recuenco, 126 S.Ct.

2546 (2006). The Court explained:

We have repeatedly recognized that the commission of

a constitutional error at trial alone does not entitle

a defendant to automatic reversal. Instead, “ ‘most

constitutional errors can be harmless.’ ” Neder v.

United States, 527 U.S. 1, 8 (1999) (quoting Arizona v.

Fulminante, 499 U.S. 279, 306 (1991)). “ ‘[I]f the

12 Nos. 06-3517 & 06-3528

defendant had counsel and was tried by an impartial

adjudicator, there is a strong presumption that any

other [constitutional] errors that may have occurred

are subject to harmless-error analysis.’ ” 527 U.S. at

8 (quoting Rose v. Clark, 478 U.S. 570, 579 (1986)).

Only in rare cases has this Court held that an error

is structural, and thus requires automatic reversal.

126 S.Ct. at 2551 (footnote deleted). In a footnote, the

Court reviewed the six “rare” areas where automatic

reversal occurs: complete denial of counsel, a biased trial

judge, racial discrimination in the selection of a grand

jury, denial of the right of self-representation at trial,

denial of a public trial, and a defective reasonable doubt

instruction. Id. at n.2. It also recalled that its earlier

decision in Neder had involved defective jury instructions,

and that it had applied harmless error analysis there.

Id. at 2551.

The defendants do not contend that anything that

Recuenco recognized as structural error occurred here.

Instead, their argument is about jury instructions and

external influences on the jury. The Court repeatedly has

subjected challenges to external influences on jurors to

harmless error analysis. In United States v. Olano, 507

U.S. 725, 738 (1993), it wrote that “[w]e generally have

analyzed outside intrusions upon the jury for prejudicial

impact.” The Court summarized its “ ‘intrusion’ jurispru-

dence” by stating that “[d]ue process does not require a

new trial every time a juror has been placed in a poten-

tially compromising situation. Were that the rule, few

trials would be constitutionally acceptable.” Id. (quoting

Smith v. Phillips, 455 U.S. 209, 217 (1982)). Under Neder

and similar cases, the introduction of the excerpt from

the AJS article into the jury room is subject to harmless

error analysis.

In evaluating it in this light, we bear two things in mind.

First, we have held, and we reaffirm, that district courts

Nos. 06-3517 & 06-3528 13

“retain . . . substantial discretion over the determination

of whether the prejudice arising from the unauthorized

contact is rebutted or harmless.” United States v. Sababu,

891 F.2d 1308, 1335 (7th Cir. 1989); see also Evans v.

Young, 854 F.2d 1081, 1084 (7th Cir. 1988). The relevant

question is thus whether the court abused its discretion

in making that determination. Sababu, 891 F.2d at 1334.

Second, context matters. Many cases in which extraneous

information made its way into the jury room involve

evidence relevant to the defendant’s guilt or innocence.

See, e.g., United States v. Berry, 92 F.3d 597, 600 (7th

Cir. 1996) (unadmitted transcript of admitted recording

that labeled one speaker as the defendant although

identification was in dispute); Sababu, 891 F.2d at 1332-

33 (unadmitted transcript of defendant’s unadmitted

recorded conversation with a co-defendant); United States

v. Bruscino, 687 F.2d 938, 941 (7th Cir. 1982) (en banc)

(Bureau of Prisons document about the defendant’s

possible membership in a prison gang and a newspaper

article about the case). The excerpt from the AJS article

did not. Compare United States v. Estrada, 45 F.3d 1215,

1226 (8th Cir. 1995), vacated on other grounds, 516 U.S.

1023 (1995) (differentiating between external informa-

tion that merely supplements the court’s instructions

and factual evidence not developed at trial).

We first consider whether the district court applied the

proper legal standard for its inquiry. A district court’s

failure to use the proper legal standard is an abuse of

discretion. United States v. Austin, 103 F.3d 606, 609 (7th

Cir. 1997). A district court also abuses its discretion if the

record contains no evidence on which the court could have

relied or if its findings of fact are clearly erroneous. United

States v. Jain, 174 F.3d 892, 899 (7th Cir. 1999).

This court has looked to the Supreme Court’s decision

in Remmer v. United States, 347 U.S. 227, 228 (1954), in

14 Nos. 06-3517 & 06-3528

order to develop a legal standard in this area. Sababu, 891

F.2d at 1335. In Remmer, the Court considered the case

of a juror who supposedly was offered a bribe for a vote to

acquit. 347 U.S. at 228. The FBI was brought in to ques-

tion the juror, and the district court concluded that the

bribe was a joke, but the defendant was never told about

the allegation. Id. Remmer held that

[i]n a criminal case, any private communication,

contact, or tampering, directly or indirectly, with a

juror during a trial about the matter pending before

the jury is, for obvious reasons, deemed presumptively

prejudicial, if not made in pursuance of known rules

of the court and the instructions and directions of

the court made during the trial, with full knowledge of

the parties.

Id. at 229. The Court also said, however, that “[t]he

presumption is not conclusive, but the burden rests

heavily on the Government to establish, after notice to

and hearing of the defendant, that such contact with the

juror was harmless to the defendant.” Id. It cautioned

that inquiries of jurors about extraneous influences must

strike a balance between the need to ensure that no

prejudice has occurred and the need to let jurors de-

liberate unimpeded. Id.

District courts have some flexibility in structuring an

inquiry into this kind of problem. Bruscino, 687 F.2d 938

at 940. Sometimes the circumstances are such that the

Remmer presumption does not even apply. Thus, in

Whitehead v. Cowan, 263 F.3d 708, 723 (7th Cir. 2001), we

held that it did not apply to the publication of jurors’

names and addresses by the media. Whitehead also

suggested that “no Remmer hearing is necessary” where

a “comment heard by a juror was ambiguous and innocu-

ous.” 263 F.3d at 725-26. We need not explore when a

hearing may not be essential, however, since the district

Nos. 06-3517 & 06-3528 15

court held one here. The general rule is that the district

court “ ‘should determine the circumstances [surrounding

the improper contact] and the impact thereof on the juror,

and whether or not it was prejudicial, in a hearing with

all interested parties permitted to participate.’ ” Sababu,

891 F.2d at 1335 (quoting Remmer, 347 U.S. at 230).

The defendants argue that this standard does not

adequately protect the deliberative process. They urge the

adoption of a standard under which “any reasonable

possibility of prejudice” from the external influence

automatically entitles a defendant to a new trial. This,

however, would represent a significant extension of the

law. In our view, such an extension is not warranted and

would in fact be inconsistent with the Supreme Court’s

approach to harmless error. If the district court is able to

take remedial measures that remove the possibility of

prejudice, or if it finds after a hearing that the Govern-

ment has rebutted the presumption of prejudice, no new

trial is required.

The district court described the approach it took to this

issue as “a two-pronged inquiry.” It said that it would

determine “whether there was an extraneous influence

on the jury, [and] whether from an objective perspec-

tive . . . what happened was prejudicial.” The parties

agreed to the judge’s approach. Moreover, in the court’s

memorandum and order denying the defendants’ motion

for a new trial, the district court explicitly discussed the

requirements and holdings of Remmer, Bruscino, and

Sababu, among other cases, concluding that “[p]rejudice

to the defendants is presumed . . . but is rebutted if

there is no reasonable possibility that the verdict was

affected by the contact.” We are confident, in light of these

statements, that the court identified the correct legal

standard for its inquiry.

16 Nos. 06-3517 & 06-3528

C

The question remains whether the court abused its

discretion in applying the law. In United States v. Sanders,

962 F.2d 660 (7th Cir. 1992), we suggested a nonexclusive

list of considerations that throw light on the question of

prejudice. These factors “include [1] the extent and nature

of the unauthorized contact, [2] the power of curative

instructions, and [3] the responses of the jury.” Id. at 669.

We will follow that checklist here, understanding, of

course, that in the end this type of inquiry simply helps

to ensure that neither the district court nor we have

overlooked anything important.

As we noted earlier, the AJS article was unrelated to

the facts of the case or the defendants’ guilt, and thus

was less likely to prejudice the jury’s evaluation of the

central issues in the case. Furthermore, only the jurors

who sat on the original jury were exposed to the article,

and their exposure was brief.

The district court rejected the defendants’ speculation

that Peterson “believed this document was some sort of

trump card in an ongoing dispute with [Juror] Ezell.” The

testimony was in conflict about how severe that dispute

was: Ezell claimed that she cried after the AJS article

was read to the original jury, while Peterson testified that

no one responded emotionally at all. The district court

concluded that the article “did not sway the course of

deliberations” during the first jury’s deliberations when

it was read, nor (more importantly) did it “play any role

in the reconstituted deliberations.” In reaching this

conclusion, the district court credited Peterson’s testi-

mony that Ezell did not change her approach to the

deliberative process after the excerpt was read, and

Peterson’s testimony that she did not refer to the article

at all during the reconstituted jury’s deliberations. The

defense cannot point to any evidence showing that the

Nos. 06-3517 & 06-3528 17

district court’s conclusions about credibility of the jurors

regarding the external information were clearly erroneous.

The district court also concluded that the AJS article

“does not state or imply that jurors must reach any deci-

sion,” and could not “lead a reasonable juror to change his

or her determination for fear of punishment.” Rather,

based on the court’s instructions about deliberations, the

“jurors may have reasonably believed, even without

consulting extraneous material, that they could be re-

moved if they refused to ‘deliberate.’ ” This differs sig-

nificantly from the situation faced by the Ninth Circuit

in United States v. Rosenthal, in which a juror asked an

attorney friend whether she had “any leeway” in following

the court’s instructions on the law, and her friend advised

her that she “could get into trouble” if she strayed from

the instructions, which implies a more severe penalty

than simply being removed from a jury. 454 F.3d 943, 950

(9th Cir. 2006).

We now come to what may be the most powerful reason

for concluding that Peterson’s reading of the paragraph

from the AJS article did not prejudice the defendants: it

occurred during the deliberations of the initial jury, and

the district court took measures to assure that the new

jury could and would put Round 1 behind them. After

dismissing Ezell and Pavlick, the district court asked each

one of the remaining original jurors individually if he

or she could disregard the previous deliberations and

start over. For example, the court asked one juror, “If

I were to tell you that today we are bringing some other

jurors back and you must start all over, is that something

you think you can do?” and “Could you, do you believe, to

the best of your ability, put out of your mind all the

discussion that’s happened in the last few days with your

fellow jurors?” The juror responded, “Yes, I can. Put it

over and just start new.” The court continued, “Just start

as though it never happened before?” The juror replied,

18 Nos. 06-3517 & 06-3528

“Yes.” The court followed up yet again, “Any concerns

about how—the difficulty that that would present for you?”

The juror responded, “None whatsoever. I have no prob-

lems with it.”

We approved a similar manner of proceeding in Sanders.

There, “[the contacted juror] explicitly testified that she

could put this incident behind her and continue to serve

impartially as a juror.” Sanders, 962 F.2d at 670. We

concluded that “[b]ecause of this explicit testimony and

the careful inquiry of the district court, we are unable to

say that the district court abused its discretion in accept-

ing Juror Layton’s sworn statements and allowing the

trial to continue.” Id. Sanders compared this situation

with “pretrial voir dire,” about which “the Supreme Court

has held that the test for determining impartiality in a

prospective juror is whether he or she can ‘lay aside his

impression or opinion and render a verdict based on the

evidence presented in court.’ ” Id. at 670, n.10 (quoting

Murphy v. Florida, 421 U.S. 794, 800 (1975)).

The court did not specifically instruct the remaining

jurors to disregard the AJS article (as it had not yet come

to light), but still the court trod carefully to avoid prying

into the jury’s earlier internal deliberations. This is

because FED. R. EVID. 606(b) provides that

[u]pon an inquiry into the validity of a verdict or

indictment, a juror may not testify as to any matter or

statement occurring during the course of the jury’s

deliberations or to the effect of anything upon that or

any other juror’s mind or emotions as influencing

the juror to assent to or dissent from the verdict or

indictment or concerning the juror’s mental processes

in connection therewith.

The rule did not technically apply at the time of the new

instructions to the remaining jurors, as the jury had not

yet reached a verdict. The rule is based, however, on the

Nos. 06-3517 & 06-3528 19

“long-recognized and very substantial concerns [that]

support the protection of jury deliberations from intrusive

inquiry.” Tanner v. United States, 483 U.S. 107, 127

(1987). The court reasonably took care to abide by the

spirit of the rule because the original jurors were going

to return as part of the reconstituted jury. If by its in-

quiry the court sent the implicit message that future

deliberations might not be secret, then we would be fac-

ing a different set of problems with the reconstituted

jury’s verdict.

Following the juror interviews, the district court made

a precautionary statement to the new jury before instruct-

ing it:

You may have heard by now that two of the original

jurors in this case were excused from further jury

service. I want you to know, as I’ve told some of you

already, that the circumstances that brought about

the fact that these two jurors were excused, those

circumstances were not prompted by any of the lawyers

or by the parties in this case, nor by your previous

deliberations, those of you who were here. Rather, the

inquiry was generated by members of the media. . . .

I want you to know that in attempting to reach ver-

dicts in this case you are answerable only to your own

conscious [sic]. It is your job, and your job alone, to

find the facts in this case and to apply the law that

I have given you. . . . The fact that there have been

circumstances that led to two jurors being excused

should not in any way enter into your delibera-

tions. . . . [I]t is imperative that you completely put

your prior deliberations out of your mind. You must

treat this case as if the prior deliberations did not

occur. You also should not discuss or mention any

statements or comments made during the prior deliber-

ations when you begin these new deliberations.

(emphasis added).

20 Nos. 06-3517 & 06-3528

There is a general presumption that juries follow their

instructions. See, e.g., Penry v. Johnson, 532 U.S. 782, 799

(2001) (citing Richardson v. Marsh, 481 U.S. 200, 211

(1987)); see also United States v. McClinton, 135 F.3d

1178, 1189 (7th Cir. 1998). This presumption is overcome

only if there is an “overwhelming possibility” that the

jury was unable to follow the instructions. Greer v. Miller,

483 U.S. 756, 767 n.8 (1987). Here, it is hard to imagine

instructions that would be better tailored to the issue of

the AJS article, as well as to the other concerns about

the original deliberations that the defendants allege.

(The defendants’ assertion that some of the jurors believed

that they “could force the removal of a fellow juror” also

fails in light of these instructions and the court’s credibil-

ity findings.) During the post-trial proceedings, the district

court once again concluded that “the court believes that

the jurors who deliberated to verdict in this case were

diligent and impartial. . . . They sat attentively through

nearly six months of evidence. . . . The court believes

these jurors made every effort to be fair, even amid

extraordinary public scrutiny.” This assessment is en-

titled to deference from us.

D

The defendants make one final argument about the

alleged external influences on the jury. They claim that the

district court “acknowledged presumptive prejudice, [but]

it effectively required a showing of actual prejudice.” We

do not see it that way. The defendants are forgetting that

there is a middle ground, in which the court finds pre-

sumptive prejudice, but it then goes on to find that the

government has rebutted that presumption. After inter-

viewing both Ezell and Peterson, the district court stated,

“I am comfortable, based upon what I have heard, at

least at this point, that the jurors’ brief consideration

Nos. 06-3517 & 06-3528 21

of that material did not [cause] prejudice.” The court did

not conclude that the defendants lost because they

failed to show actual prejudice, or that it was their bur-

den to do so. It found that the government satisfied its

burden to show that there was no prejudice, as it is

entitled to do under Remmer. For all of these reasons, the

district court did not abuse its discretion in concluding

that the extraneous information at issue did not prej-

udice the defendants.

III

At the outset of the trial, the district court empaneled

eight alternates to the jury. In the end, most of these

alternates were necessary to provide the defendants

with a full jury. By the time the trial reached the jury

deliberation stage, one juror had been excused for inabil-

ity to serve—Juror McFadden, who was dismissed on the

court’s own motion because she had a medical condition

that made her repeatedly fall asleep during the trial.

The revelations of the possible criminal records of some

of the original jurors led, as we have said, to the district

court’s decision to excuse Jurors Pavlick and Ezell and

to replace them with alternates. Defendants raise five

arguments relating to the process of removal and replace-

ment: first, they accuse the district court of misleading

defense counsel about the standard that would be used

for removing jurors; second, they assert that the court

applied an arbitrary standard for dismissals; third, they

claim that the prosecution knew that Ezell was a holdout

juror for the defense at the time it moved for Ezell’s

removal; fourth, they speculate that the removal of Ezell

chilled pro-defense jurors; and finally, they fear that the

investigation into the jurors’ backgrounds biased the

jurors against the defense.

22 Nos. 06-3517 & 06-3528

A

The most important question for purposes of this part of

the appeal is whether the district court correctly decided

to rely on the standard established in McDonough Power

Equipment, Inc. v. Greenwood, 464 U.S. 548 (1984), for

assessing these various challenges to the jury. In

McDonough, the Supreme Court held that an inaccurate

answer on a jury questionnaire discovered after the

verdict was returned could be grounds for a new trial

only if the “correct response would have provided a valid

basis for a challenge for cause.” Id. at 556. Defendants

claim that this standard is inappropriate for pre-verdict

removals because McDonough rested on the need for

finality in a given jury’s verdict. The implication of their

position is that it is actually impossible to remove a

juror for cause once deliberations have started. This is

not the case, as FED. R. CRIM. P. 24(c)(3) illustrates.

Furthermore, most of the interests in finality recognized

by McDonough have already accrued by the time a fully

tried case is submitted to a jury. We can see no sense in a

rule that forces the court to sit by idly, knowing that

it ought to remove a juror, just so that the jury can re-

turn a verdict and the facts of McDonough will be repli-

cated. The district court was correct to turn to McDonough

for guidance on how to resolve the problems that had

arisen.

B

The next question is whether the district court applied

this standard consistently. When the possibility arose

that some sitting jurors would need to be removed be-

cause of their criminal records, the court asked the

attorneys for their thoughts on the standard to apply

to possible removals. All attorneys responded with argu-

ments to the court. Less than an hour later, the court

Nos. 06-3517 & 06-3528 23

informed counsel that it saw a difference between jurors

such as Pavlick and Ezell, for whom there were sig-

nificant disparities between the questionnaires and their

recent criminal histories, on the one hand, and jurors

such as Casino, who may simply have forgotten long past

criminal histories or may not have understood what was

required to be disclosed.

In the end, the district court concluded and repeatedly

stated that the appropriate action would be to excuse any

juror for whom the newly acquired information would

have led to a challenge for cause by one of the parties

that the court would have granted. The court announced

that it would follow that standard even if the result was

to reduce the number of jurors below the number required

to reach a verdict. This is precisely what McDonough

calls for: changing the composition of the jury after the

time for peremptory challenges has expired only if the

“cause” standard is met. When faced with a post-trial

argument about a juror, the Supreme Court has focused

on the question whether a district court’s ruling “result[ed]

in the seating of any juror who should have been dis-

missed for cause,” not on whether some other jury might

also have been impartial. United States v. Martinez-

Salazar, 528 U.S. 304, 316 (2000).

Before Ezell was dismissed, the district court asked

defense counsel if they were accepting its standard. The

court again clarified the standard being used, stating that

a juror’s saying only that she did not understand a ques-

tion, or a juror acknowledging that she may not have

answered everything truthfully, might not be excusable

solely for that reason. The government agreed and noted

that even if it might have made a challenge for cause, the

decision would have been the court’s in the end. The

defense counsel stated their disagreement “that that’s the

standard that should be applied,” and again expressed a

preference for removing any juror “the Court has found . . .

24 Nos. 06-3517 & 06-3528

not [to be] truthful.” When all was said and done, however,

this was just a discussion about how to apply the

McDonough standard to these facts. The court recog-

nized this: in its order denying defendants’ motion for

a new trial, it reiterated that it had applied the

McDonough standard to removing the contested jurors.

Ignoring this extensive exchange, the defendants claim

that “the district court never made any findings with

respect to any juror that would have constituted a valid

challenge for cause.” The record does not support that

assertion. The dismissal of Ezell provides a good example.

After explaining the applicable standard, the district

court said, “Let’s just start with the use of an alias.

I think that probably would have been a basis for

cause. . . .” Prior to Ezell’s dismissal, the government told

the district court that it would have challenged her for

cause had it known that “she has an arrest with a false

name” because “[h]ow somebody who gives law enforce-

ment officers false information upon an arrest can possibly

be an impartial juror in this case, where one of the

charges is giving false information to law enforcement

officers, is well beyond me.” The prosecution added,

“Judge, there would not have been a contest” and that

it was “[n]ot even an issue” because the government

would always challenge for cause under such circum-

stances. The court responded that “if . . . there would have

been a cause challenge, I suspect there would not have

been an objection. She would have been excused.”

Soon after saying that, the court questioned Ezell about

her arrest under a false name and concluded that her

response was not forthcoming. As the court put it, “[Ezell]

has never told us the truth about the [false] name Thora

Jones.” After listening to the attorneys’ arguments, the

court said, “I think she has concealed a great deal of

information. And the critical question is, had this ques-

Nos. 06-3517 & 06-3528 25

tion been answered, would it have been grounds for cause?

I can’t imagine that the answer is anything other than

yes. I think I have to excuse her.” This is enough to

convince us that Ezell was removed because she would

have been removable for cause. This case is not like United

States v. Harbin, where the district court told the parties

that jurors would be removed only for cause once trial

began, but then it allowed the prosecution to use a pe-

remptory challenge to remove a juror during the trial. 250

F.3d 532, 547 (7th Cir. 2001). Based on the lengthy

discussions among the court, the prosecutors, and de-

fense counsel, it is apparent that everyone knew that the

court was using the McDonough standard.

The defendants try to undermine this conclusion by

arguing that the prosecution did not raise challenges

for cause against all jurors with criminal convictions or

family members with extensive criminal histories. To the

extent that this is accurate, this argument would sway us

only if the government did not challenge jurors with the

same types of criminal histories as those who were struck

for cause during deliberations. Cf. Coulter v. McCann, 484

F.3d 459, 465 (7th Cir. 2007) (reiterating the established

principle that when defense counsel claims that prosecu-

tors have used a peremptory strike for an impermissible

reason, it is necessary to show a “similarly situated

venireperson” who was not struck). In this case, the

defense has pointed to no comparable jurors who were not

struck. No other juror had committed, as Ezell had,

conduct with such significant similarities to the charged

conduct at issue in the case.

Pavlick’s dismissal during deliberations stemmed from

an undisclosed felony DUI conviction during Ryan’s ten-

ure as Secretary of State. The Illinois Secretary of State

sets many significant drunk driving policies, and this

case dealt with locations of the Secretary’s local motor

vehicles administration facilities that might have con-

26 Nos. 06-3517 & 06-3528

nected Pavlick’s conviction to Ryan’s office. In fact, it ap-

pears that there was some action taken by the Secretary of

State against Pavlick while Ryan was serving in that

office. The conviction, coupled with Pavlick’s negative

association with Ryan’s office, provide ample grounds for

dismissal for cause. Even Warner’s counsel stated, “[w]e

have a real concern with a convicted felon sitting with a

deliberating jury for eight days.” There was no argument

from any attorney before the district court that Pavlick

would not have been removed for cause had he been honest

during voir dire. Also, the only juror with similar convic-

tions to Pavlik’s—alternate Masri—was also dismissed.

Again, the district court was entitled to remove Pavlick

under the McDonough standard.

Other jurors also found themselves under the court’s

scrutiny. Alternate juror Svymbersky failed to disclose

a 23-year-old conviction charge for purchasing a stolen

bicycle, explaining that he had not thought of it when

filling out his questionnaire. The court ultimately be-

lieved this explanation. Juror Casino had three arrests

(including one conviction) in the 1960s. He too testified

that he did not remember these incidents when filling out

the questionnaire. The district court remarked after

interviewing Casino that “[t]his juror is as credible as

any juror I have ever had.” The court listened to the

attorneys argue about Casino and then said, “somebody

who really, truly doesn’t remember it and hasn’t gotten in

any trouble since, it seems to me could hardly have a bias.”

Juror Rein was arrested in 1980 for assault for slapping

his sister, but never appeared in court for the charge and

thought that the matter had been expunged from his

record. He testified that he did not recall the event

when he filled out his questionnaire. By contrast, alter-

nate juror Masri had reported a DUI conviction in 2000

but had not disclosed another DUI conviction in 2004 or

that he was on probation in September 2005. The district

Nos. 06-3517 & 06-3528 27

court ultimately allowed the defendants’ cause challenge

against Masri, and we have already noted the similarities

between Pavlick’s and Masri’s criminal records. Although

one of Masri’s DUI misdemeanor convictions came out

during voir dire, that one did not occur while Ryan was

the Secretary of State, and therefore it is not unreason-

able that neither party would have moved to remove him

for cause for that conviction alone. Only when it turned out

that there were multiple, recent convictions, and that

Masri was trying to hide them, did the likelihood that he

would have been removed for cause become significant.

Looking at these other jurors (apart from Ezell and

Pavlick), we view the district court’s conclusion that only

Masri could have faced a valid challenge for cause as

reasonable. A district court has no obligation to grant a

challenge every time it turns out that a venireperson has

a criminal record. It has the discretion to determine, based

on all the facts, whether dismissal for cause is necessary.

United States v. Ray, 238 F.3d 828, 937 (7th Cir. 2001). We

conclude that the district court applied the McDonough

standard consistently in considering whether to excuse

each of the jurors with undisclosed criminal histories.

C

Next we address the defendants’ claim that the prosecu-

tion knew that Ezell was a defense holdout and that this

was the real reason why Ezell was dismissed. The record

does not support this contention. Three jurors were

dismissed (Pavlick, Ezell, and Masri) after the investiga-

tions into their questionnaires. The district court con-

cluded that “I have genuine concerns that Mr. Pavlick

and Ms. Ezell . . . may very well have been motivated to

get on the jury.” Indeed, the strongest cases for chal-

lenges for cause were against these two jurors.

28 Nos. 06-3517 & 06-3528

We cannot find any basis in the record to conclude that

the district court dismissed Ezell because of her view of

the evidence or that the prosecution tricked the district

court into dismissing Ezell for cause based on its belief

about Ezell’s view of the evidence. The district court was

troubled immediately after Ezell’s criminal history was

disclosed. We have no doubt that the district court’s

reasons (which we have already reviewed) for dismissing

Ezell for cause were genuine.

Because of this, it does not matter what the prosecution

may have suspected about Ezell’s views on the evidence

in this case. It is the court’s actions that count when a

decision is within the discretion of the court, not counsel’s

motivations for supporting or opposing the court’s ac-

tions. So long as the court was not hoodwinked into

believing there was cause where there was none (and it

was not), the removal was proper. Without belaboring the

point, we note finally that there is no serious basis in the

record supporting the defense’s speculation that the

prosecution somehow knew that Ezell was a “defense”

juror and that it was trying to bounce her from the jury

for that reason. At best, everyone was guessing. These

hunches fall far short of supporting the defendants’

argument that the prosecution knew Ezell’s view of the

evidence, let alone sought her dismissal for that reason.

D

The defendants also contend that Ezell’s removal

“potentially chilled the expression of pro-defense jurors

in deliberations.” Based on our discussion above, we

believe that the instructions that the court gave to the

reconstituted jury prevented any chilling of pro-defense

views in the new jury. It is also worth noting that the

jurors who served on both juries would have recalled that

when the court initially received the note about Ezell, it

Nos. 06-3517 & 06-3528 29

responded by instructing the jury that “you twelve are

the jurors selected to decide this case.” This instruction

also operated to prevent any potential chilling of pro-

defense views (or any other dissenting views). Moreover,

the first juror dismissed after that response from the

court was Pavlick, who had signed the note, not Ezell.

E

The defendants’ last argument relating to the jury is that

the background checks on jurors that the court ordered

when word of the criminal backgrounds hit the media

prejudiced the defense. The government rightly points out

that the defense asked for many of these checks. Although

this comes close to waiving this point for appeal, we are

willing to assume that the defense’s waiver was not

complete. Nevertheless, the district court’s specific in-

structions to the reconstituted jury, as well as its re-

peated admonitions to avoid media coverage of the trial,

precluded any bias against the defense by preventing the

jurors from knowing about the extent of the background

checks. The defendants’ only real support for their argu-

ment comes from Juror Losacco’s testimony that she was

“scared” during her interview. But this trepidation ap-

pears to have resulted from the number of lawyers in the

room during her interview rather than any feeling that

she needed to serve the prosecution’s interest or risk

punishment. Therefore, we see no abuse of the court’s

discretion in its decision to call for the background checks.

In summary, the defendants’ complaints about the

court’s handling of the jury are unsupported by the law

and the record. The district court properly employed the

McDonough standard in determining whether jurors

should be removed, in determining whether a misstate-

ment was made on the juror questionnaires and the

reasons for the misstatement, and in focusing on whether

30 Nos. 06-3517 & 06-3528

the undisclosed information would have supported strik-

ing that juror for cause. With careful consideration and

full attention to all counsels’ arguments, the district

court applied that standard consistently and openly to

all of the jurors and alternates. The court did not dis-

miss Ezell because she was a “holdout,” nor were jury

deliberations chilled because of the way in which Ezell was

removed. Finally, the record suggests no reason to think

that the reconstituted jury was biased against the defen-

dants because of the court’s inquiries.

IV

The defendants next argue that the replacement of jurors

after eight days of deliberations deprived them of their

right to a fair trial before an impartial jury. One major

strike against this argument is the fact that since

its amendment in 1999, FED. R. CRIM. P. 24(c) has al-

lowed for the removal of deliberating jurors. Although the

defendants contend that the government has the burden

of showing that a juror replacement during deliberations

is not prejudicial, this burden allocation is not supported

by the text of Rule 24(c)(3), which states:

Retaining Alternate Jurors. The court may retain

alternate jurors after the jury retires to deliberate. The

court must ensure that a retained alternate does not

discuss the case with anyone until that alternate

replaces a juror or is discharged. If an alternate

replaces a juror after deliberations have begun, the

court must instruct the jury to begin its delibera-

tions anew.

So long as the two explicit conditions of the rule—ensuring

that the alternate does not discuss the case prior to

replacing an original juror and instructing the jury to

restart deliberations—are satisfied, the decision to re-

Nos. 06-3517 & 06-3528 31

place deliberating jurors rests firmly within the district

court’s discretion.

We have held that “[r]emoving [a] questioned juror

and replacing her with an alternate” is reviewed for

abuse of discretion. United States v. Sandoval, 241 F.3d

549, 552 (7th Cir. 2001). There is nothing in the text of

Rule 24(c)(3) to suggest that a different approach is

required for reviewing removals that occur during deliber-

ations. The Fifth Circuit employed an abuse of discretion

standard for juror removals during deliberations, al-

though it is not clear whether the trial in that case took

place before or after the Rule 24 amendment came into

force; it concluded that a district court abuses its discre-

tion in the context of juror removal only “if the juror

was discharged without factual support or for a legally

irrelevant reason.” United States v. Edwards, 303 F.3d

606, 631 (5th Cir. 2002) (internal quotation marks and

citations omitted).

The defendants urge us to rely on cases that pre-date

Rule 24’s amendment. They argue that we must reverse

the conviction if “the record indicates a reasonable possi-

bility of prejudice” from the removal of the juror during

deliberations. United States v. Register, 182 F.3d 820, 843

(11th Cir. 1999). The flaw in this argument is that

Register based its holding on “the letter of Rule 24(c),”

which at that time stated that “[a]n alternate juror who

does not replace a regular juror shall be discharged after

the jury retires to consider its verdict.” Id. (emphasis

added). The court wrote that the rule “do[es] not apply a

per se reversal standard to Rule 24(c) violations, [but

rather] . . . the harmless error test and reverse[s] . . . only

where there is a reasonable possibility that the district

court’s violation of Rule 24(c) actually prejudiced [the

defendant] by affecting the jury’s final verdict.” Id. at 842.

Thus, Register undertook a prejudice inquiry only be-

32 Nos. 06-3517 & 06-3528

cause the district court had no discretion under the old

Rule 24(c) to retain alternate jurors.

Under the amended Rule 24(c), the district court has

discretion to retain alternates during deliberations. We

think it most useful to look to our general approach to

Rule 24 to decide whether the court properly removed Ezell

and Pavlick. Only where a district court fails to comply

with the non-discretionary requirements of Rule 24(c)(3)

should our review require a prejudice inquiry like that in

Register. Otherwise, “if the record shows some legitimate

basis for th[e] decision [to replace a juror], there is no

abuse of discretion.” United States v. Humphrey, 34 F.3d

551, 557 (7th Cir. 1994). The defendants have the burden

of demonstrating on appeal that there was no legitimate

basis in the record for the district court to remove Ezell

and Pavlick and replace them with alternates.

The defendants claim that the jurors were incapable of

following the court’s instructions to begin anew, but we

have already rejected that argument. They also point to

the fact that the jury had sought and received guidance

from the court during its original deliberations, and they

charge that the jury “resorted to misconduct in an effort

to force the removal of a holdout defense juror,” about

which we have little more to say. The defendants also

refer to unsubstantiated reports in the media that the

jury had already deliberated to verdict on several counts

to demonstrate that there was no basis in the record for

the district court to seat the two alternate jurors.

We have no intention of deciding this case based on

anything but what is properly in the record. The only

allegation that we need address is the one of jury miscon-

duct, and it is easily rejected. The district court, based on

its assessments of the jury’s notes to the court, concluded

that there was no concerted effort to remove any juror

based on her viewpoint. This conclusion, which is sup-

Nos. 06-3517 & 06-3528 33

ported by the record, provides all the basis this court

needs to affirm the district court’s decision to order sub-

stitutions of jurors.

The defendants complain that we have no way of know-

ing whether the jury really started its deliberations

anew, as the court told it to do. They also charge that the

record reveals a likelihood that empaneled alternate

DiMartino discussed the case with outsiders while the

first jury’s deliberations were ongoing. We have no quar-

rel with the Eleventh Circuit’s practical observation that

“the further along deliberations proceed, the more diffi-

cult it becomes to disregard them and begin anew.”

United States v. Kopituk, 690 F.2d 1289, 1310-11 (11th

Cir. 1982). Kopituk also held, however, even before the

amendment to Rule 24, that even though

the jury spent a total of approximately five days

deliberating prior to substitution of the alternate . . .,

the jurors’ individual assurances that they could

and would begin deliberating anew, combined with

the fact that the jury deliberated for a full week

subsequent to substitution of the alternate juror, is

sufficient indication that the jurors were able to and

did in fact obey the court’s extensive instructions

regarding their duty to eliminate all prior delibera-

tions from their minds and begin with a clean slate.

Id.; see also Edwards, 303 F.3d at 631 (dismissing a

juror after 11 days of deliberations, although not dis-

cussing seating an alternate); United States v. Lamb,

529 F.2d 1153, 1156 (9th Cir. 1975) (overturning verdict

where reconstituted jury deliberated for only 29 minutes).

In the case before us, the original jury deliberated for

eight days and the reconstituted jury deliberated for ten.

As in Kopituk, there is nothing here to suggest that the

jurors did not obey the court’s instructions and begin

deliberations anew. Indeed, the reconstituted jury even

requested additional instructions from the court on

34 Nos. 06-3517 & 06-3528

specific counts in the indictment during its deliberations

that the original jury had not sought.

The record also gives no reason to be especially con-

cerned about alternate DiMartino. She testified before

being seated that every time someone would approach her

about the case while the first jury was deliberating, she

would cut them off immediately. When asked by the

court if there was anything she had heard that could

“interfere with your ability to become—to start fresh with

the jury,” she replied, “No . . . because, like I said, we

never sat down and had a conversation and discussed

anything, what they heard or anything. . . . I would just

go, ‘Please don’t talk about it to me,’ I said, ‘I am still

involved.’ ” As the district court made clear in its denial of

defendants’ motion for new trial, it found these state-

ments to be credible. We have no reason to second-guess

that factual determination.

Rule 24(c) therefore furnishes no basis for a finding

that the district court abused its discretion in replacing

jurors Ezell and Pavlick with alternate jurors DiMartino

and Svymbersky. Defendants have made no showing

that this replacement of jurors does not fall squarely

within the allowable bounds of the new Rule 24. As they

confess in their brief, they seek a holding that “almost

any decision to substitute [during deliberations is] prej-

udicial.” This cannot be the proper standard under the

new Rule 24(c).

V

Moving, at last, away from the jury issues, the defen-

dants claim that the district court erred in excluding

evidence that showed Ryan’s good faith, Ryan’s lack of

fraudulent intent, and the reasonableness of Ryan’s be-

lief about the bona fides of the transactions at issue in

Nos. 06-3517 & 06-3528 35

this case, including those that involved Warner. We re-

view a district court’s evidentiary decisions for abuse of

discretion. United States v. Seals, 419 F.3d 600, 606 (7th

Cir. 2005). Mail fraud is a specific intent crime, and

so defendants are entitled to introduce evidence of good

faith or absence of intent to defraud. United States v.

Longfellow, 43 F.3d 318, 321 (7th Cir. 1994). This court,

however, “do[es] not require that any evidence, no matter

how tangential, irrelevant or otherwise inadmissible, must

be admitted simply because the defendant claims that

it establishes his good faith.” Id. at 321-22.

A

The first evidentiary dispute arose when Ryan wanted

to introduce evidence to the effect that his successor as

Secretary of State, Jesse White, had renewed some of the

leases and contracts at issue here. The district court

excluded this evidence as irrelevant. It reasoned that “the

naked act of some other official, whether he preceded or

followed Ryan in office, does not shed any light on what

Ryan himself intended when he took that same act, absent

evidence that Ryan actually considered the official’s act.”

It continued, “[t]he decision to renew a lease is, moreover,

one influenced by many factors other than the decision to

enter into a lease in the first place.” The question for us

is whether this decision was an abuse of the district

court’s discretion.

Many of the leases at issue here involved property

for long-term operations, such as DMV locations and a

police department office. These are not the type of facil-

ities that the state can pack up every few years and move

just because rent is slightly cheaper a few blocks away.

Thus, a later administrative decision to renew such a

lease shows only that the lease is not so disadvantageous

36 Nos. 06-3517 & 06-3528

to the state that it outweighs the costs that would be

required to move to a new location. It sheds no light on

whether the original lease or contract was proper.

In making its determination, the district court was not

applying any sort of “inflexible rules.” In Riordan v.

Kempiners, one of the cases the defendants cite, the

district court had drawn a line in time and prohibited

all evidence that developed after a specific date. 831 F.2d

690, 698 (7th Cir. 1987); see also CERAbio LLC v. Wright

Med. Tech., Inc., 410 F.3d 981, 993 (7th Cir. 2005) (holding

that evidentiary exclusions should be made based on the

substantive value of the evidence rather than the date of

the evidence). The district court’s ruling here, in contrast,

was based on the substance of the evidence that would

be offered and the court’s evaluation of the probative

value of that evidence.

The limited nature of the district court’s ruling be-

comes even more evident when one sees that it did not

even apply to all evidence post-dating the leases and

contracts. Both the prosecution and defense provided

experts to assess the soundness of the contracts and

leases at issue in this case. The government’s expert

offered only a retrospective analysis of the extent to

which some of the subject leases reflected fair market

value. The defense expert, in contrast, appears to have

based his opinion in part on an analysis of leases and

properties that were not available until years after the

leases at issue were awarded.

Defendants therefore had the opportunity to justify the

contracts and leases at issue using economic analysis and

expert testimony; they were not deprived of the opportu-

nity to assess these deals with the benefit of hindsight.

This means as well that the defense was not arbitrarily

foreclosed from putting forth relevant evidence, the error

criticized in CERAbio, 410 F.3d at 994.

Nos. 06-3517 & 06-3528 37

The defendants’ argument that prosecution witness

Glen Good’s testimony unfairly crossed some temporal line

fails because there was no such line. The proper compari-

son, in any event, is not between Good’s testimony and

evidence that Secretary White renewed the leases. It is

between Good’s testimony and the defendants’ evidence

about lease decisions and the results of those decisions

during Ryan’s tenure as Secretary of State. Good, who

was in charge of property maintenance during Ryan’s

term in office, testified about the soundness of particular

lease decisions during Ryan’s tenure. Good’s testimony

also rebutted the argument that Ryan made lease decisions

only on the basis of recommendations from his staff.

Ryan was free at trial to introduce evidence about his

decision-making process for the leases and contracts

in question, and he took advantage of that opportunity.

The defense was also allowed to cross-examine Good

extensively (over the government’s objection) about the

information he omitted from his reports about certain

various properties at issue in this case.

It is conceivable that another court would have reached

different conclusions about the relevance of this ex-

cluded evidence, but that does not mean that the district

court abused its discretion here. We conclude that its

ruling was one that it reasonably could have made, that

it was not a result of arbitrary line-drawing, and thus

that it did not give rise to reversible error.

B

The district court used a similar rationale to exclude

evidence of rate increases made by other Illinois Secretar-

ies of State. The defendants claim that the district court

“refused to admit defense evidence showing that such

rate increases were a regular practice of the SOS.” This

mischaracterizes the district court’s holding. The specific

38 Nos. 06-3517 & 06-3528

rate increases by other officials were excluded where

they played no role in Ryan’s rate increase. The court

allowed Ryan to introduce evidence that his predecessor

(and his predecessor’s advisors) recommended a rate

increase as overdue, but held off on the increase for

election reasons. This type of evidence is arguably proba-

tive because it provides support to Ryan’s contention

that the increase was a sound policy decision. See Long-

fellow, 43 F.3d at 322.

The defendants claim that the rate hikes approved by

other Secretaries of State were “evidence of the routine

practice of [an] organization[ ]” and should have been

allowed as evidence under FED. R. EVID. 406. A “routine

practice,” however, requires more repetition and mechani-

zation than the occasional rate decisions here displayed.

See Advisory Committee Notes for Rule 406 (emphasizing

the need for a “repeated specific situation” before some-

thing qualifies as “habit”). The Note comments that

“[e]quivalent behavior on the part of a group is desig-

nated ‘routine practice of an organization’ in the rule.” The

practice that the defense wanted to demonstrate here

was not the type of “regular response to a repeated specific

situation” required for admission under Rule 406. Here

again, we conclude that the district court did not abuse

its discretion by excluding the proffered evidence.

C

Finally, the defendants challenge the exclusion of cer-

tain policy decisions that Ryan made while in office. The

defense argues that “the prosecution attacked Ryan at

trial as [a] ‘greedy,’ ‘shameless’ politician who treated his

public offices as ‘personal kingdoms’ in which he was

‘pillaging the state, stealing from the taxpayers’ in breach

of the public’s trust.” Ryan, they argue, was entitled to an

opportunity to correct this impression. If these quotes

Nos. 06-3517 & 06-3528 39

had come from the government’s case-in-chief, then they

might have a point. But they did not. The quoted state-

ments come from the prosecution’s closing argument. The

government did not use evidence of Ryan’s general dis-

honesty in its case-in-chief; it focused on the bad faith

associated with the criminal acts charged in this case. The

district court permitted Ryan to introduce evidence of

many of his policy accomplishments and goals. It also

allowed him to call numerous character witnesses, who

testified about such achievements as strengthened drunk

driving laws, improvements in the state library system,

the development of an organ donor registry, and reform of

Illinois’s death penalty laws. The government’s closing

argument was therefore an allowable response.

The defendants also point to a particular government

witness, Patrick Quinn, whom the defense sought to

impeach through his opposition to Ryan’s death penalty

work. The district court was prepared to allow the de-

fense to impeach Quinn, but it was willing to permit

reference only to a “public policy” disagreement, not to

the death penalty. Ryan chose not to impeach the wit-

ness. The defendants have not shown how they were

prejudiced by this limitation.

In a more general argument, the defendants contend

that had the jury been able to view the charged acts

alongside the excluded evidence of Ryan’s policy work, it

would have seen that the evidence overall “did not fairly

indicate the existence of a scheme to defraud.” Worthington

v. United States, 64 F.2d 936, 942 (7th Cir. 1933). The link

between the excluded evidence and the charged acts,

however, is not so direct.

Had it existed, evidence that Ryan steered leases or

contracts away from his financial benefactors might have

cast some doubt on the existence of the conspiracy and

scheme charged. But Ryan’s work on issues of importance

40 Nos. 06-3517 & 06-3528

to the public, such as the death penalty, important

and admirable though it may have been in many people’s

eyes, does nothing to show that Ryan was not at the same

time accepting financial benefits in exchange for other

specific, official actions. So long as the government did

not allege specifically that all of Ryan’s acts as Governor

were for his own financial gain, the district court was

within its rights to exclude discussion of various official

acts that were wholly disconnected from the charges

in this case. Courts have held that excluding evidence of

satisfied customers is not an abuse of discretion in cases

charging a defendant with a fraudulent scheme. See, e.g.,

United States v. Elliott, 62 F.3d 1304, 1308 (11th Cir.

1995). Excluding evidence of activities even further

removed from the charged acts is not an abuse of discre-

tion either.

VI

In the next part of their appeal, the defendants raise

a question of law: is it permissible for the government to

charge and prove the State of Illinois itself is an “enter-

prise” for RICO purposes, and secondarily, did the dis-

trict court err when it instructed the jury that the State

of Illinois is a “legal entity.” We consider these argu-

ments in turn.

A

The question whether a state may be an “enterprise” for

purposes of a RICO prosecution is one of first impression.

The defendants’ first reason for arguing that it cannot

be relies on the remedies allowed under RICO. The

statute provides for remedies including court-ordered

“dissolution or reorganization of any enterprise,” 18 U.S.C.

§ 1964(a). Since it is obvious that no court would have the

Nos. 06-3517 & 06-3528 41

power to disband a sovereign state, the defendants argue

that the remedial provisions of the law implicitly mean

that the state cannot be a RICO enterprise.

The only problem with this attack is that the Supreme

Court rejected it long ago:

Even if one or more of the civil remedies might be

inapplicable to a particular illegitimate enterprise, this

fact would not serve to limit the enterprise concept.

Congress has provided civil remedies for use when

the circumstances so warrant. It is untenable to argue

that their existence limits the scope of the criminal

provisions.

United States v. Turkette, 452 U.S. 576, 585 (1981). RICO

provides a menu of remedies; it does not matter if one or

more of the items on that menu might be unavailable in a

particular case. Instead, what is important, according to

Turkette, is that Congress meant the term “enterprise” to

be “inclusive.” 452 U.S. at 586.

This court has held that other public bodies, which

similarly cannot be dissolved, may be the “enterprise”

through which a RICO conspiracy or operation proceeds.

See, e.g., United States v. Murphy, 768 F.2d 1518, 1531

(7th Cir. 1985) (the Circuit Court of Cook County); United

States v. Lee Stoller Enters., Inc., 652 F.2d 1313, 1318-

19 & n.9 (7th Cir. 1981) (en banc) (RICO enterprise can be

a public body, citing cases). We conclude that for purposes

of defining a RICO “enterprise” there is no difference

between the state and its subdivisions.

The defendants next argue that comity interests pre-

vent the use of a state as a RICO enterprise in a criminal

case. The only court to consider directly whether a state

can be a RICO enterprise was the District Court of Mary-

land. United States v. Mandel, 415 F. Supp. 997 (D. Md.

1976). The defendants urge us to accept the reasoning

42 Nos. 06-3517 & 06-3528

in Mandel, which found that the State of Maryland was

not a RICO enterprise in the prosecution of a Maryland

governor. 415 F. Supp. at 1021. District court opinions

have no authoritative effect on this court, so we look to

the analysis of district courts only to inform, rather

than instruct, our decisions. RLJCS Enters. v. Prof ’l

Benefit Trust Multiple Employer Welfare Benefit Plan &

Trust, 487 F.3d 494, 499 (7th Cir. 2007).

It is enough to note that Mandel did not limit its analy-

sis to states as potential RICO enterprises. The district

court there expressed concern about the possibility of

finding that any public entity was a RICO enterprise. 415

F. Supp. at 1020. Since Mandel was decided, the Fourth

Circuit has criticized its analysis on several occasions.

United States v. Long, 651 F.2d 239, 241 (4th Cir. 1981);

United States v. Altomare, 625 F.2d 5, 7 (4th Cir. 1980);

United States v. Baker, 617 F.2d 1060, 1061 (4th Cir.

1980). In each of these cases, the Fourth Circuit explicitly

rejected the rationale of Mandel. Long, for example,

referred to Altomare and Baker, noting that “[i]n two

recent RICO cases . . . we have indicated our disap-

proval of that [Mandel] decision. We have held, in accord

with the majority of the cases, that RICO should be

construed to include public entities as enterprises.” 651

F.2d at 241.

Long justified the use of major governmental entities

as RICO enterprises in indictments, stating that “[n]either

the Act nor the courts’ interpretation of it support the

contention that its enforcement threatens the discretion

state officials must exercise in the discharge of their

duties[, but instead] . . . [t]he Act sustains, rather than

threatens, the integrity of the South Carolina Senate,”

which was the named RICO enterprise in that case. 651

F.2d at 241. Our sister circuits have reached similar

conclusions about the use of governmental entities as

Nos. 06-3517 & 06-3528 43

RICO enterprises. See, e.g., United States v. Angelilli, 660

F.2d 23, 33 (2d Cir. 1981) (“[W]e view the language of

§ 1961(4), defining enterprise, as unambiguously encom-

passing governmental units, and we consider that the

purpose and history of the Act and the substance of

RICO’s provisions demonstrate a clear congressional

intent that RICO be interpreted to apply to activities

that corrupt public governmental entities.”); United States

v. Frumento, 563 F.2d 1083, 1091 (3d Cir. 1977) (com-

paring the Commonwealth of Pennsylvania to a major

corporation and concluding that if the RICO enterprise

concept does not reach governmental entities, then

“private business organizations legitimately owned and

operated by the states . . . would be open game for racke-

teers”); United States v. Freeman, 6 F.3d 586, 597 (9th Cir.

1993) (“We adopt the view of seven circuit courts and hold

that a governmental entity may constitute an ‘enterprise’

within the meaning of RICO. ”).

The decision that came closest to addressing the issue

at hand is the Sixth Circuit’s en banc opinion in United

States v. Thompson, 685 F.2d 993 (6th Cir. 1982). There

the court held that “The Office of the Governor” could be

the enterprise in a RICO prosecution. Id. at 998-1000. The

court supported its conclusion as follows:

It seems clear to us that those who played the leading

roles in the enactment of the RICO statute thoroughly

understood organized crime’s impact upon govern-

ment entities. Senator McClellan, the chief sponsor of

this bill and chairman of the committee which drafted

it, said: “To exist and to increase its profits, Mr.

President, organized crime has found it necessary to

corrupt the institutions of our democratic processes,

something no society can tolerate.” Further, he said,

“For with the necessary expansion of governmental

regulation of private and business activity, its power

to corrupt has given organized crime greater control

44 Nos. 06-3517 & 06-3528

over matters affecting the everyday life of each citi-

zen.”

...

Representative St. Germain told the House that “the

greatest danger from organized crime lies not in its

provision of illegal goods and services, but in its

penetration of the country’s legitimate institutions.”

Id. at 1000 (internal citations omitted).

The Sixth Circuit noted its concern that an indictment

naming the governor’s office as a RICO enterprise could

be unnecessary and disruptive in some cases, and it

recommended that prosecutors should try to avoid such

charges in the future if possible. The court suggested that

a modified indictment might work better in similar, future

cases, based on the RICO definition of “enterprise” as

“includ[ing] any individual, partnership, corporation,

association, or other legal entity, and any union or group

of individuals associated in fact although not a legal

entity.” Id. (quoting 18 U.S.C. § 1961(4)). The court

stated that “the language which could and we believe

preferably should have been employed, would have al-

leged that the three defendants constituted a ‘group of

individuals associated in fact although not a legal entity

which made use of the Office of Governor of the State of

Tennessee’ for the particular racketeering activities

alleged in the indictment.” Thompson, 685 F.2d at 1000.

We endorse the Sixth Circuit’s call for caution. We

also agree with the Sixth Circuit’s ultimate conclusion

that the prosecution’s approach to this issue in cases

such as Thompson and the case at hand may often not

be absolutely necessary under RICO, but it is not forbid-

den. Some cases, however, are exceptional, and ours is

one of them. In such a case, the prosecution may have

no real alternative to naming the state as the RICO

Nos. 06-3517 & 06-3528 45

enterprise. (This of course does not mean that the state

itself has violated any federal law; it may instead be a

victim of the overall scheme, as are many RICO enter-

prises.) In such a case, the use of the state as the RICO

enterprise in the indictment is analogous to the courts’

treatment of the state as a market participant in a dor-

mant commerce clause case. If the CEO of a major corpora-

tion, who ascended to that position from other senior

executive positions, engaged in comparable activities, we

would not only accept but expect a RICO conspiracy

indictment with the corporation itself named as the

RICO enterprise, even knowing that the overwhelming

majority of employees, shareholders, and consumers of the

corporation were innocent of wrongdoing. The situation

here is the same.

In this case, the prosecution thought that it had identi-

fied an ongoing scheme to defraud the State of Illinois

through the illegal use of two of the most significant

executive branch offices of the state and of the state’s

electoral processes during Ryan’s campaign for Governor

in 1998. The scheme revolved around an elected official

throughout his tenure in these two offices—Secretary of

State and Governor—and during the time he was a

candidate for the latter office. No legal rule prohibited the

prosecution from concluding that there was no single

entity or office that it could have identified, short of the

state as a whole, that would have encompassed the

enterprise that was used by the defendants. In these

unusual circumstances, comity interests do not override

the broad language of RICO, as interpreted in Turkette.

The district court did not err by allowing the state to

be the RICO enterprise in this RICO conspiracy prosecu-

tion.

46 Nos. 06-3517 & 06-3528

B

We now turn to the district court’s instructions to the

jury on the question of the state as a RICO enterprise. All

the district court said was that the State of Illinois is a

“legal entity.” Whether that is correct or not is a question

of law, and as such, it was not one that could have been

left for the jury to decide. See United States v. Lee, 439

F.3d 381, 388 (7th Cir. 2006) (upholding the district

court’s inclusion of a definition of “organization” in its

instructions where the statute required that “the Gov-

ernment must prove . . . that the defendant uttered or

possessed a counterfeit and forged security of an organiza-

tion”). The district court told the jury that the government

had to prove three things, including that the State of

Illinois was an enterprise. Some “persons” (legal or real)

may be “entities,” but they still may not meet the statu-

tory definition of “enterprise.” See, e.g., Turkette, 452 U.S.

at 582 (examining the characteristics of a criminal struc-

ture to determine whether it was an “enterprise” under

RICO). Nevertheless, because governmental or public

entities fit within the definition of “enterprise” for pur-

poses of RICO, this court has often rejected objections

to jury instructions that a governmental entity is an

“enterprise.” See United States v. Hocking, 860 F.2d 769,

778 (7th Cir. 1988) (“In light of our clear precedent, appel-

lant’s claim that the district court erred in instructing

the jury that the IDOT is an ‘enterprise’ within the

reach of § 1962(c) is rejected.”); see also James Morrison

Mecone et al., Racketeer Influenced and Corrupt Organ-

izations, 43 AM. CRIM. L. Rev. 869, 881 (2006) (“When the

enterprise under consideration is a legal entity, the

enterprise element is satisfied by the mere proof that

the entity does in fact have a legal existence.”). We con-

clude, therefore, that the district court did not err when

it accurately informed the jury that the State of Illinois

is a legal entity.

Nos. 06-3517 & 06-3528 47

VII

The next argument that Warner and Ryan present is

that the term “intangible right to honest services” in the

mail fraud statutes under which they were convicted, 18

U.S.C. §§ 1341 (basic mail fraud), 1346 (definition of

“scheme or artifice to defraud” includes deprivation of

intangible right to honest services), is unconstitutionally

vague. The district court’s instructions to the jury, they

continue, “mirrored” this vagueness.

The constitutionality of a statute is an issue of law that

is reviewed de novo. United States v. Hausmann, 345 F.3d

952, 958 (7th Cir. 2003). The defendants acknowledge that

this court recently upheld the constitutionality of the

“intangible right to honest services” term in the federal

mail fraud statute. Hausmann, 345 F.3d at 958. The

constitutionality of § 1346 has repeatedly been challenged,

and every circuit to address this issue has upheld it, even

though the rationales have differed. See, e.g., United

States v. Rybicki, 354 F.3d 124, 132 (2d Cir. 2003) (en

banc); United States v. Bryan, 58 F.3d 933, 941 (4th Cir.

1995); United States v. Gray, 96 F.3d 769, 776-77 (5th Cir.

1996); United States v. Brumley, 116 F.3d 728, 732 (5th

Cir. 1997) (en banc); United States v. Frost, 125 F.3d 346,

370-71 (6th Cir. 1997); United States v. Frega, 179 F.3d

793, 803 (9th Cir. 1999); United States v. Welch, 327 F.3d

1081, 1109 n.29 (10th Cir. 2003); United States v. Waymer,

55 F.3d 564, 568 (11th Cir. 1995). There have been dissent-

ing opinions in two circuits’ opinions on this issue. Rybicki,

354 F.3d at 162-64 (Jacobs, J., dissenting); Brumley, 116

F.3d at 742-47 (Jolly & DeMoss, JJ., dissenting) (objecting

to the statute only as applied in that case).

Given this unanimity on the central point, our con-

cern here is only with the question whether the district

court’s instructions properly reflected this court’s ap-

proach to the details of the claim. Previous holdings on

48 Nos. 06-3517 & 06-3528

this issue are not necessarily dispositive because “vague-

ness challenges to statutes which do not involve First

Amendment freedoms must be examined in the light of

the facts of the case at hand.” United States v. Powell,

423 U.S. 87, 92 (1975). “The void-for-vagueness doctrine

requires that a penal statute define the criminal offense

with sufficient definiteness that ordinary people can

understand what conduct is prohibited and in a manner

that does not encourage arbitrary and discriminatory

enforcement.” Posters ‘N’ Things, LTD v. United States,

511 U.S. 513, 525 (1994). If the defendants could not

have known that the conduct underlying their convic-

tions could be considered “depriv[ing] another of the

intangible right of honest services,” 18 U.S.C. § 1346, then

the statute is void for vagueness as applied here.

In Hausmann, we held that

under the intangible-rights-theory of federal mail or

wire fraud liability, a valid indictment need only

allege, and a finder of fact need only believe, that a

defendant used the interstate mails or wire communi-

cations system in furtherance of a scheme to misuse

his fiduciary relationship for gain at the expense of

the party to whom the fiduciary duty was owed.

345 F.3d at 956. In United States v. Bloom, we similarly

concluded that “[m]isuse of office (more broadly, misuse

of position) for private gain is the line that separates

run of the mill violations of state-law fiduciary duty . . .

from federal crime.” 149 F.3d 649, 655 (7th Cir. 1998). The

opinion continued, “[a]n employee deprives his employer

of his honest services only if he misuses his position (or

the information he obtained in it) for personal gain.” Id.

at 656-57.

In the present case, we are facing the same type of

conduct that was before the court in Hausmann and

Bloom. The defendants claim that the jury instructions

Nos. 06-3517 & 06-3528 49

in this case contradicted the holdings in those two cases,

but we disagree. Those cases do not require the jury to

find a violation of a specific state law in order to convict.

The court told the jury that “the government [must]

prove[ ] beyond a reasonable doubt that the public official

accepted the personal financial benefits with the under-

standing that the public official would perform or not

perform acts in his official capacity in return.” The court

continued that the receipt of “personal or financial bene-

fits . . . does not, standing alone, violate the mail fraud

statute. . . . Instead that receipt violates the law only if

the benefit was received with the public official’s under-

standing that it was given to influence his decision-mak-

ing.” The court also told the jury that “[n]ot every in-

stance of misconduct or violation of a state statute by

a public official or employee constitutes a mail fraud

violation.”

The portion of the jury instructions quoted by the

defendants about “conflict of interest” is taken out of

context, as the jury instructions explicitly stated that a

conflict of interest violated the statute only “if the other

elements of the mail fraud statute are met.” The district

court explained that the government must also show

that the public official allowed or accepted the conflict

of interest with the understanding or intent that she

would perform acts within her official capacity in return.

We are unpersuaded that the references to state law

in the jury instructions were phrased in a way that

makes the use of the mail fraud statute here unconstitu-

tional. Many of the state law provisions in the instruc-

tions explained what kinds of financial transactions are

not prohibited for state officials. This explanation was

more likely to undermine than to assist the prosecution

in showing the defendants’ intent to deprive Illinois

citizens of Ryan’s honest services. The other cited provi-

sions of Illinois law identified for the jury various ways

50 Nos. 06-3517 & 06-3528

in which a public official could “misuse his fiduciary

relationship,” but the instructions as a whole unambigu-

ously required the prosecution to prove that misuse of

the office was intended for personal gain, as Bloom and

Hausmann held.

We also note that this court in Bloom did not call the

relevant section of the mail fraud statute a “common-law

federal crime[ ],” as defendants suggest. It merely anal-

ogized this section to common law crimes on the way

to concluding that the “intangible right” term needs

clear boundaries. 149 F.3d at 656. A court’s interpreta-

tion of a term in a federal criminal statute does not

create a federal common law crime.

Although the intangible rights theory of federal mail

fraud may have its problems when applied to other

fact settings, it is not unconstitutionally vague as applied

here. The district court here focused the jury on the

important points needed for conviction, and in so doing,

gave instructions consistent with Hausmann and Bloom.

VIII

We turn, now, to Warner’s assertion that the court erred

by permitting the joinder of his trial with Ryan’s and

denying his motion for severance. This court has con-

strued FED. R. CRIM. P. 8, which governs joinder in crimi-

nal trials, “broadly to allow liberal joinder in order to

enhance judicial efficiency.” United States v. Stillo, 57

F.3d 553, 556 (7th Cir. 1995). We have repeatedly stated

that “joint trials are beneficial not only for efficiency but

because they limit inconvenience to witnesses, avoid de-

lays in bringing defendants to trial, and allow the ‘total

story’ to be presented to a single jury.” Id. at 557. We

review misjoinder claims de novo. United States v. Lanas,

324 F.3d 894, 899 (7th Cir. 2003).

Nos. 06-3517 & 06-3528 51

A

Joinder is proper, under Rule 8(b), if the defendants

“are alleged to have participated in the same act or

transaction, or in the same series of acts or transactions,

constituting an offense or offenses.” Under the rule, “[t]he

defendants may be charged in one or more counts together

or separately”; all defendants “need not be charged in

each count.” Rule 8(b) is satisfied when the defendants

are “charged with crimes that well up out of the same

series of such acts, but they need not be the same crimes.”

United States v. Pigee, 197 F.3d 879, 891 (7th Cir. 1999),

see also United States v. Stewart, 433 F.3d 273, 314 (2d

Cir. 2006); United States v. Eufrasio, 935 F.2d 553, 567 (3d

Cir. 1991). “[T]he mere fact that two conspiracies have

overlapping memberships will not authorize a single

indictment if the conspiracies cannot be tied together

into one conspiracy, one common plan or scheme,” but a

“conspiracy and its cover-up are parts of a common plan.”

United States v. Velasquez, 772 F.2d 1348, 1353-54 (7th

Cir. 1985).

Whether there was an error in joining a defendant is

determined by looking only at the indictment. Lanas, 324

F.3d at 899. In this case, the final indictment contained

22 counts. Count One was the RICO conspiracy for

which both Warner and Ryan were charged. Count Two

was the mail fraud scheme, which is listed in Count One

as a racketeering act and a means and method of the

RICO conspiracy; again, it charged both Warner and Ryan.

Of the remaining 20 counts, both were charged in six

(Counts Three, Four, Five, Seven, Eight, and Nine), Ryan

alone was charged in ten (Count Six, Counts Ten through

Thirteen, and Counts Eighteen through Twenty-Two), and

Warner alone was charged in four (Counts Fourteen

through Seventeen). (The defendants were acquitted on

Counts Nine and Ten.)

52 Nos. 06-3517 & 06-3528

Examining the indictment, we see that both defendants

were charged in the RICO conspiracy and the mail fraud

scheme, the two primary courses of conduct charged in

the indictment. The mail fraud scheme was also part of

the RICO conspiracy. In Velazquez, the court found mis-

joinder of one count because “[t]he indictment does

not relate those charges to any of the charges against

the other defendants named in the indictment, and the

defect is not merely a technical oversight in pleading.”

Velasquez, 772 F.2d at 1353. By contrast, in this case, all

of the conduct in Counts One through Seventeen relates

to the charges in either the RICO conspiracy, mail fraud

scheme, or both, which are charged against both Warner

and Ryan.

The only charges unconnected to these two schemes

appear in Counts Eighteen to Twenty-Two, Ryan’s tax

fraud charges. This court has held that “[j]oinder of a tax

evasion count is appropriate when it is based upon unre-

ported income flowing directly from the activities which

are the subject of the other counts.” United States v.

Anderson, 809 F.2d 1281, 1288 (7th Cir. 1987). The

tax fraud scheme charged in Count Eighteen was specifi-

cally related to Ryan’s campaign committee “Citizens

For Ryan.” The factual allegations in Count Eighteen

recount Citizens For Ryan’s diversion of funds to pay for

Ryan’s and his family’s personal expenses, “thereby

depriving the IRS of accurate information as to his true

income.” The allegations of Count One, the RICO conspir-

acy charge, state that Ryan was obligated by law to

report on his federal and state tax returns all expendi-

tures by Citizens For Ryan that were made for personal

expenses. Count One also states that part of the modus

operandi of the RICO conspiracy was the provision of

“personal and financial benefits to, and for the benefit of,

defendant Ryan, Ryan family members, third parties

affiliated with Ryan, and Citizens For Ryan . . . for the

Nos. 06-3517 & 06-3528 53

purpose of influencing and rewarding Ryan in the exer-

cise of Ryan’s official authority.” From the language of

the indictment, we can see that the tax fraud scheme

and the RICO conspiracy scheme are part of “the same

series of acts or transactions, constituting an offense or

offenses.” FED. R. CRIM. P. 8(b). Many of the same underly-

ing facts—the movement of funds through Citizens For

Ryan, for example—are necessary to prove both claims.

All of this is enough to explain why we find no improper

joinder of the charges against Warner with those against

Ryan.

B

Because joinder was proper under Rule 8(b), Warner

must show that he has suffered from “prejudicial joinder,”

which is distinct from misjoinder. “If the joinder of offenses

or defendants in an indictment, an information, or a

consolidation for trial appears to prejudice a defendant

or the government, the court may order separate trials of

counts, sever the defendants’ trials, or provide any other

relief that justice requires.” FED. R. CRIM. P. 14(a). In order

to prevail on his argument that the district court erred

in denying his motion for severance under FED. R. CRIM. P.

14(a), it is necessary (though not sufficient) for Warner

to show prejudice. Zafiro v. United States, 506 U.S. 534,

538-39 (1993); see also United States v. Souffront, 338 F.3d

809, 831 (7th Cir. 2003) (citing United States v. Lane, 474

U.S. 438, 449 (1986)). “Limiting instructions . . . often

will suffice to cure any risk of prejudice,” and tailoring

relief from prejudice is left to the district court’s discre-

tion. Zafiro, 506 U.S. at 539-41. Where joinder of defen-

dants was proper, “a district court should grant a sever-

ance under Rule 14 only if there is a serious risk that a

joint trial would compromise a specific trial right of one

of the defendants, or prevent the jury from making a

54 Nos. 06-3517 & 06-3528

reliable judgment about guilt or innocence.” Id. at 539.

“Actual prejudice” does not exist just because “separate

trials would have given a defendant a better opportunity

for an acquittal.” Rather, the defendant must have been

“deprived of his right to a fair trial.” United States v.

Rollins, 301 F.3d 511, 518 (7th Cir. 2002). The denial of

a motion for severance is reviewed for abuse of discre-

tion. Id.

Warner argues he suffered prejudice because the joinder

violated his substantial rights in multiple ways. He ob-

jects first to the fact that his case was linked at all with

Ryan’s, but this argument goes nowhere, as the indictment

demonstrates that the charges against him were closely

connected with those against Ryan. Had he been tried

separately, he would not have enjoyed the status of “an

unknown businessman,” as he suggests; he would have

still faced charges as a co-conspirator that centered

around the activities of the former Governor. Therefore,

Warner cannot show that the publicity around Ryan’s trial

affected his substantial rights in this case.

Next, Warner alleges that Ryan’s out-of-court statements

to the FBI were testimonial and therefore his constitu-

tional right to confrontation was violated. These state-

ments were not admitted for the truth of the matter

asserted, however, and therefore are not hearsay and do

not implicate the Confrontation Clause. Crawford v.

Washington, 541 U.S. 36, 59 n.9 (2004). There was also

no Bruton issue, because the statements admitted at

trial were not inculpatory and did not amount to a con-

fession from Ryan. Bruton v. United States, 391 U.S. 123,

127 (1968). The district court excluded the statements

that it viewed as potentially inculpatory, including all of

Ryan’s statements to the FBI naming Warner except

those with innocuous or uncontested references.

Warner also contends that significant portions of the

evidence introduced against Ryan could not have been

Nos. 06-3517 & 06-3528 55

introduced against him in his own trial. The record does

not bear this out. Much of the evidence with which Warner

takes issue described acts that were part of the con-

spiracy charged against both defendants in Count One

or the scheme charged against both defendants in Count

Two. “[E]vidence of one participant’s actions in further-

ance of a scheme to defraud is admissible against the

other participants in that scheme, just as it is in a con-

spiracy case.” United States v. Adeniji, 221 F.3d 1020, 1027

(7th Cir. 2000).

The only significant evidence that was unrelated to the

charges against Warner was some evidence pertaining

to Ryan’s tax fraud scheme. Yet even these acts derived

from a common set of facts that made up the RICO con-

spiracy and mail fraud scheme. Therefore, much of the

evidence of “a decade of state business, as well [as] . . .

Ryan’s lifestyle and personal and political campaign

finances,” was properly part of the evidence that was

admissible against Warner because of Counts One and

Two. For these reasons, the district court’s denial of

Warner’s proposed limiting instruction for the tax counts

was appropriate. The tax evidence relating only to Ryan

was minor compared to the evidence presented to show

the conspiracy and mail fraud scheme. The district court

did not abuse its discretion in curing any possible preju-

dice from joinder through limiting instructions rather

than severance. See Zafiro, 506 U.S. at 539.

Finally, Warner argues that the jurors were not follow-

ing the court’s instructions generally and therefore the

limiting instructions were ineffective. We are reluctant

to call into question the institution of the jury in this

way. As we said in United States v. Hedman, we may

examine “whether it is within the jury’s capacity, given the

complexity of the case, to follow admonitory instruc-

tions and to keep separate, collate and appraise the

evidence relevant only to each defendant” in considering

56 Nos. 06-3517 & 06-3528

whether severance was improperly denied. 630 F.2d 1184,

1200 (7th Cir. 1980) (internal quotation marks omitted).

Nothing in this record convinces us that this jury was

either unable or unwilling to follow the careful instruc-

tions that the district court gave. Warner does not claim

that there was insufficient evidence to convict him on

any of the charges against him (although we note the

district court threw out Ryan’s convictions on two

counts for insufficiency of the evidence).

We conclude that Warner has not shown actual prejudice

resulting from the joinder of his case with Ryan’s. To the

extent that there was a risk of prejudice, the district

court took appropriate steps to exclude evidence, restrict

the use of evidence, and provide specific limiting instruc-

tions to the jury. It did not abuse its discretion under

Rule 14(a) by denying Warner’s motion for severance.

IX

Finally, Ryan alone also asks this court to hold that it

was error to compel the former chief legal counsel in the

Secretary of State’s office to provide grand jury testimony

about his work with then-Secretary of State Ryan. This

compelled testimony, Ryan argues, violated his attorney-

client privilege. We decline to consider this issue for two

reasons. First, Ryan has failed to demonstrate what

legally cognizable prejudice he suffered from that deci-

sion. It is also not clear what relief he is seeking for this

alleged infringement of the privilege. Generally, a defen-

dant challenging an indictment seeks to have the indict-

ment dismissed, but the relief Ryan seeks in this appeal

is a new trial. This would do nothing to correct an error

in the indictment. The Supreme Court has held that a

petit jury’s subsequent guilty verdict means not only

that there was probable cause to believe that the

Nos. 06-3517 & 06-3528 57

defendants were guilty as charged, but also that they

are in fact guilty as charged beyond a reasonable

doubt . . . [and therefore] any error in the grand jury

proceeding connected with the charging decision was

harmless beyond a reasonable doubt.

United States v. Mechanik, 475 U.S. 66, 69 (1986). Ryan

suggests no reason why this general rule should not

apply here. Even in cases where indictments can be

dismissed, a court “may not dismiss an indictment for

errors in grand jury proceedings unless such errors

prejudiced the defendants.” Bank of Nova Scotia v. United

States, 487 U.S. 250, 254 (1988).

Ryan states in his brief that he “re-raise[s] the issue

here to preserve it for further review.” While parties are

free to make a limited argument in order to preserve

the issue for further review, they must say something to

allow this court to consider the argument on its merits,

even if they have every expectation that we will reject it.

Ryan has not developed this point enough for us to give

it meaningful consideration; we thus consider it waived.

See United States v. Jones, 224 F.3d 621, 626 (7th Cir.

2000).

Second, this court has already spoken on this point.

Ryan was entitled to and did appeal the district court’s

determination in 2001 that the attorney-client privilege

did not attach to his communications with the chief legal

counsel in the Secretary of State’s office. In re Witness

Before the Special Grand Jury 2000-2, 288 F.3d 289 (7th

Cir. 2002). We considered and rejected this argument

at that time. Id. at 295. That is the law of the case, and

Ryan has given us no reason to deviate from it. See In re

Oil Spill by the Amoco Cadiz, 954 F.2d 1279, 1291 (7th

Cir. 1992). We acknowledge that the Second Circuit, in a

different case involving communications between a gover-

nor and his counsel, has concluded that the privilege

58 Nos. 06-3517 & 06-3528

applies. See In re Grand Jury Investigation, 399 F.3d 527,

535 (2d Cir. 2005). The Second Circuit acknowledged the

tension between its holding and the decisions of three

other circuits, including our court’s 2002 decision. 399

F.3d at 533 (noting contrary decisions from the Seventh,

Eighth, and D.C. Circuits); see generally In re Lindsey, 332

U.S. App. D.C. 357, 158 F.3d 1263 (D.C. Cir. 1998); In re

Grand Jury Subpoena Duces Tecum, 112 F.3d 910 (8th Cir.

1997). As matters now stand, three other circuits have

weighed in on this issue, two of which agree with us. Even

apart from law-of-the-case considerations, we respect-

fully decline to re-open that issue here.

X

We conclude with two final comments about this appeal.

First, like all defendants who appeal their convictions,

Ryan and Warner have presented certain arguments to

this court, and they have elected not to present other

arguments. At oral argument, there was some discussion

of the argument that our dissenting colleague has

emphasized—an argument that they chose not to raise: the

allegation that members of the jury may have had too

much freedom of movement and too much unsupervised

time together, during which the opportunity to engage

in premature discussions of the case may have arisen.

Compare United States v. Dellinger, 472 F.2d 340, 373-74

& n.50 (7th Cir. 1972) (emphasizing need for thorough

voir dire in presence of extensive pretrial publicity). Jury

control measures, however, lie within the discretion of

the district court judge; this is not an area in which a

decision not to sequester, or a decision to permit jurors to

walk around unsupervised, triggers such a strong pre-

sumption of error that we would have to reverse on that

basis even in the absence of both (1) any objection at trial

and (2) any complaint on appeal. See Recuenco, supra.

Nos. 06-3517 & 06-3528 59

District courts have no duty to “sequester the jury. . .,

sua sponte, in every case involving prejudicial publicity.”

Margoles v. United States, 407 F.2d 727, 732 (7th Cir.

1969). There is no presumption or rule that sequestra-

tion is ever necessary, although we do not dispute that

it is a good idea in some high-profile cases, and may well

have been the better course here. See United States v.

Carter, 602 F.2d 799, 808 (7th Cir. 1979) (Tone, J., concur-

ring) (noting this and suggesting such a rule may be

preferable). Our opinion, then, should not be taken as

necessarily approving of the practices the district court

adopted for this case; on the other hand, without the

proper objections and briefing, it would be improper for

us even to reach the question of plain error arising from

the lack of sequestration or tighter controls on the jury’s

activities. Managing a jury for a trial that spans six

months is not easy. We can only emphasize that if any

party has an objection to the way the district court is

handling that challenge, it has an obligation to raise

it, preferably early enough in the proceedings that the

court can take prompt corrective measures. If Warner

and Ryan believe that their counsel rendered constitution-

ally ineffective assistance by opting not to raise certain

issues on appeal, they may raise that argument in post-

conviction relief proceedings.

Our colleague in dissent believes that “there is a struc-

tural error because of the jurors’ irreconcilable conflicts of

interest that resulted from the jury questionnaire sit-

uation,” specifically, the investigation of jurors during

deliberations. Respectfully, we cannot agree that this

provides a sound basis for reversal. First, many of the

investigations were done at the request of the defense;

defendants cannot embed a ground for automatic re-

versal into a case in this way. Second, neither the law

nor the course of proceedings in the district court sup-

ports such a characterization.

60 Nos. 06-3517 & 06-3528

Even if the facts about the investigations and any

possible juror reactions and anxieties were clear, we do

not read the Supreme Court’s decisions as including

these kinds of errors in the narrow “structural error” cate-

gory. In Remmer, supra, the Supreme Court addressed

the issue of possible juror bias after the court called in

an FBI agent to question a juror about the incident

without consulting with defense counsel. The Court

remanded the case for a determination of whether “such

contact with the juror was harmless to the defendant.” 347

U.S. at 229. That is not the language of structural error;

prejudice (or harm) is presumed and irrebuttable in

structural error cases. Once we are in “harmless error”

territory, the nature of the error, the strength of the

government’s case, and the actions the court took in

response to problems are all relevant. We have already

explained why we have found the errors that were prop-

erly called to our attention to be harmless, to the extent

that error existed. The Supreme Court has repeatedly

affirmed Remmer and held that “[d]ue process does not

require a new trial every time a juror has been placed in

a potentially compromising situation.” Smith v. Phillips,

455 U.S. 209, 217 (1982). As our own court has noted, “[we]

afford deference to the trial court as the lower court

has the primary responsibility to evaluate possible influ-

ences on the jury . . . [and a] decision to deny a motion for

mistrial based on juror bias therefore is reviewed accord-

ing to an abuse of discretion standard.” United States v.

McClinton, 135 F.3d 1178, 1186 (7th Cir. 1998) (Kanne, J.).

Therefore, even if the defendants had argued that the

problems with the jury that the dissent has described

amounted to structural error, we would reject that charac-

terization in favor of a harmless error analysis.

More importantly, however, there is the problem we

have already noted of finding structural error in the

absence of any such argument asking for such a finding

Nos. 06-3517 & 06-3528 61

on appeal. Even when the Supreme Court’s decisions

call for structural error analysis, the factual basis for

finding such error may be in dispute, as it is here. See,

e.g., Bracy v. Schomig, 286 F.3d 406, 409-11 (7th Cir. 2002)

(en banc) (discussing the type of proof necessary to prove

a trial judge’s bias and, thus, structural error). Remmer

tells us that an interrogation of a sitting juror by law

enforcement is not structural error. Therefore, the in-

vestigation of sitting jurors is not always structural error,

even though there may be a risk, as the dissent points

out, that the investigation is psychologically disturbing to

the jurors. Just as in Bracy, we would need to determine

what facts were necessary to conclude that this type of

juror investigation constituted structural error. Yet the

defendants raise the juror investigation issue only as

support for their argument that the removal of Ezell was

improper. Unlike the dissent, we are unwilling to trans-

form this modest point into an argument that the essential

right to an impartial jury was violated. To repeat our

earlier conclusion, the district court took every possible

step to ensure that the jury was and remained impartial,

and, through credibility findings and findings of fact,

concluded that this one was.

Second, throughout their briefs, the defendants note

that the district court judge described some of her rul-

ings as “difficult” or “close calls.” The impression they

give is that this is some kind of signal that the court

knew it was wrong. We draw no such inference. A district

court’s acknowledgment of the difficulty of an issue, if

anything, is a sign that the court has given it full con-

sideration. When all was said and done, the court made

the necessary determinations of law, which we have

reviewed de novo, and exercised its discretion, which we

have reviewed deferentially. Counsel have argued in

great detail every point that they chose to bring before

us, and we have limited our review of the trial proceed-

62 Nos. 06-3517 & 06-3528

ings to those issues. The high-profile nature of these

proceedings gave rise to some unusual problems with the

jury, but we are satisfied that the court handled them

acceptably. For all of the reasons discussed above, the

district court properly denied the defendants’ new trial

motion. We AFFIRM the judgments of the district court

convicting both Warner and Ryan.

KANNE, Circuit Judge, dissenting. My colleagues in the

majority concede that the trial of this case may not

have been “picture-perfect”—a whopping understate-

ment by any measure. The majority then observes that the

lack of a picture-perfect trial “is, in itself, nothing un-

usual.” I agree that from my experience this is a realistic

proposition. There is rarely perfection in any human

endeavor—and in particular jury trials. What we expect

from our judicial system is not an error free trial, but a

trial process that is properly handled to achieve a fair

and just result. That fair and just result was not achieved

in this case.

The basis for my dissent lies not in the exceedingly

drawn out evidentiary phase of this trial but in the

dysfunctional jury deliberations. As to this point, the

majority has taken great pains—in twenty-nine pages—to

declare the flood of errors regarding the jury delibera-

tions to be merely harmless. To understand the in-

fluences that came into play for the jurors in this case,

I believe it is necessary to place various factors in

overall perspective. Some of the factors would be unre-

markable in a routine criminal case and other factors

are totally astounding in any case. The following are

highlights in summary fashion:

Nos. 06-3517 & 06-3528 63

! In a case that was tried over a six-month period,

the jurors entered and exited the courthouse every

day past scores of television and still cameras

and reporters.

! The jurors used public elevators and brushed

elbows with anyone who happened to be in them.

! Although the court’s intent was not to make the

jurors’ names public, that effort was compromised

when the jurors’ names were used in the in-court

voir dire.

! When jury deliberations were ready to commence

in the most high profile case in Chicago in recent

memory, there was no thought of sequestering the

jury.

! During the initial eight days of deliberations an

apparent holdout juror was purportedly threatened

by other jurors with a charge of bribery.

! Legal research gained by a juror from the internet

was—contrary to the court’s instruction—brought

into the jury room in an effort to persuade the

recalcitrant juror to change her position.

! A reporter for the Chicago Tribune advised the

district court during jury deliberations that the

newspaper’s research had disclosed major incon-

sistencies between answers in a jury question-

naire and public records.

! Based on the information provided by the Chicago

Tribune, the district judge, in concurrence with

all parties, requested the U.S. Attorney’s Office to

conduct a background check on all jurors.

! Jury deliberations were halted following the

Chicago Tribune disclosure and the hiatus contin-

64 Nos. 06-3517 & 06-3528

ued during the investigation of the jurors by the

U.S. Attorney’s Office.

! During the five-day hiatus in jury deliberations,

the exposé by the Chicago Tribune was published

revealing that, indeed, false answers had been

given on a jury questionnaire and that the sitting

jurors were now under investigation.

! Amidst questions raised by the district judge

concerning the necessity of advising the jurors of

their constitutional rights and their right to coun-

sel, the individual examination of six sitting and

three alternate jurors was begun.

! Through the judge’s examination it was deter-

mined that a majority of jurors had provided false

answers under oath and could face criminal prose-

cution. Many jurors who were interrogated told

the district judge that they were scared, intimi-

dated or sorry for what had occurred.

! During the course of the interrogations, the jurors

were granted immunity from prosecution by the

U.S. Attorney.

! Some jurors later hired lawyers in order to repre-

sent their own independent interests arising from

their participation in the trial.

! Two jurors who provided untruthful answers

were excused from further service while others so

situated were retained.

! Before the hiatus in deliberation, jurors informed

the court that they were having a conflict and yet

after the interrogations the judge dismissed one

of the jurors in the conflict without determining

whether she was a holdout juror.

Nos. 06-3517 & 06-3528 65

! Alternate jurors were seated, but not in the order

required by Rule 24.

! After eight days of deliberation by the original

jury, and five days in hiatus, a reconstituted jury

deliberated for ten days and returned the ver-

dicts in this case.

To describe the circumstances surrounding the jury

management and jury deliberations summarized above

as “nothing unusual” is to simply turn a blind eye to the

realities of what occurred—in order to save the efforts

expended during a six-month trial.

Having summarized the factors that played upon the

jurors, I’ll now turn to an analysis of the various errors

that accumulated. The errors in this case can be subdi-

vided and analyzed in two groups. First, there is a struc-

tural error because of the jurors’ irreconcilable conflicts

of interest that resulted from the jury questionnaire

situation. Second, the multiple errors regarding jury

management generally and jury deliberation, when

viewed collectively, were so corruptive that the verdicts

cannot stand.

The Jury Questionnaire Issue

Although the defendants raised issues relating to the

effect of false answers to jury questionnaires and “fearful”

jurors in the trial court, they did not argue those issues on

appeal. Nevertheless, the matters concerning false re-

sponses to the jury questionnaires concern structural

errors in the trial that are not governed by the plain error

analysis provided in Rule 52(b) of the Federal Rules of

Criminal Procedure.

In fact, the structural errors that exist here make this

case “subject to automatic reversal” because they affect

66 Nos. 06-3517 & 06-3528

the “framework in which the trial proceeds, rather than

simply an error in the trial process itself.” Neder v. United

States, 527 U.S. 1, 8 (1999). “Such errors infect the entire

trial process and necessarily render a trial fundamentally

unfair. Put another way, these errors deprive the defen-

dants of basic protections without which a criminal trial

cannot reliably serve its function as a vehicle for determi-

nation of guilt or innocence and no criminal punishment

may be regarded as fundamentally fair.” Id. at 8-9. “Among

these basic fair trial rights that can never be treated

as harmless is a defendant’s right to an impartial ad-

judicator, be it judge or jury.” Gomez v. United States, 490

U.S. 858, 876 (1989) (quoting Gray v. Mississippi, 481 U.S.

648, 668 (1987); Chapman v. California, 386 U.S. 18, 23

(1967)).

As in this case, jurors take two oaths; the first requires

them to answer questions truthfully in voir dire. The

second requires that they faithfully perform their duties

as jurors. A juror who violates either oath can face crimi-

nal prosecution. The Supreme Court has previously up-

held the criminal conviction of a juror who intentionally

lied during voir dire in order to gain entry onto, and then

purposefully hang, the jury. Clark v. United States, 289

U.S. 1 (1933). Although Clark was decided almost seventy-

five years ago, the prosecution of jurors for misconduct

still occurs today. See generally Dyer v. Calderon, 151 F.3d

970, 973 n.1 (9th Cir. 1998) (en banc) (“We do not condone

any lying by jurors; perjury is perjury.”); United States v.

Colombo, 869 F.2d 149, 151 (2d Cir. 1989) (noting that

jurors committing criminal misconduct can be prosecuted

for perjury and contempt of court and can be subject to

restitution claims from the government).

The government instituted this prosecution against

defendants Warner and Ryan. But, of course, the govern-

ment is also responsible for investigating and prosecuting

Nos. 06-3517 & 06-3528 67

crimes involving juror misconduct. The inconsistent jury

questionnaire answers given in this case could lead to

criminal investigations and prosecutions.

The verdicts here were delivered by a jury whose number

included some who themselves faced potential future

criminal prosecution for their actions that occurred dur-

ing this trial. Can sitting jurors fearing possible criminal

investigations and prosecution for conduct involved in the

case under consideration render valid verdicts?

In ruling on the defendants’ post-trial motions in Sep-

tember of 2006, the district judge dismissed the concern of

allowing jurors to return verdicts in the same trial in

which their conduct might subject them to criminal

investigation and prosecution. She concluded that “in spite

of the difficulties generated by this very lengthy, high-

profile trial, these jurors were diligent and impartial.”

R. 867 at pg. 65. “[I]t is implausible that the retained

jurors would harbor any fears of prosecution. As for the

remaining jurors, who were not specifically questioned

about their questionnaires, they would have no reason to

conclude that they were targets of any investigation.” Id.

at pg. 87.

Can this court, as a matter of common sense, accept the

district court’s factual determination that at least some

jurors did not harbor fears of prosecution when they

rendered their verdicts? Can the majority say that these

jurors retained their capacity to render fair and impartial

verdicts that can strip the defendants of their liberty and

result in the defendants receiving significant prison

sentences after the jurors themselves were the subject of

an investigation?

In examining the district court’s decision to allow

these jurors to return verdicts, that decision should be

examined in the extraordinary context that had developed.

After serving for six months on an extremely high-profile

68 Nos. 06-3517 & 06-3528

trial with overwhelming media and public scrutiny, and

eight days into the deliberations, on Thursday, March 23,

2006, the jurors’ deliberations were stopped. When they

returned four days later on Monday, March 27th, the jury

was not allowed to continue deliberating. Instead, six of

the sitting jurors and three alternate jurors were interro-

gated by the district judge. They were called one-by-one

into the judge’s chambers. Questions regarding incon-

sistent answers on the jury questionnaire form were

asked. Jurors Ezell and Pavlick were ultimately dis-

missed, to be replaced by the two alternates. Four of the

six sitting jurors were retained. The jury deliberations

were stopped during this two-day period and the recon-

stituted jury would not start the second round of delibera-

tions until Wednesday, March 29th.

Much like children called into the principal’s office, one

could imagine the strain that this inquiry placed on both

the jurors who were questioned and those who remained

in the jury room unquestioned. It is noteworthy that in

describing her experience in examining Juror Casino, the

district judge stated, “Grilling Mr. Casino is one of the

most distasteful things I have done in this job.” Mar. 28,

2006 Tr. at pg. 24658, ln. 25 & pg. 24659, ln. 1. It is

also reasonable to conclude that the jurors who were

called into the judge’s chambers began discussing their

experience with the other jurors upon return to the jury

room to figure out what was going on.

Even more telling is that the district judge on March

27th recognized, along with various counsel, the specter of

juror prosecution lurking in the case and the impact

this would have on the trial. March 27th and 28th are key

days in the case because these are the two days that the

district judge considered how to handle the juror question-

naire issue and thus it is worth examining closely the

record from these two days. The district judge, shortly

before her examination of then-sitting Juror Ezell, recog-

Nos. 06-3517 & 06-3528 69

nized that the jurors faced possible criminal charges

for juror misconduct when she observed:

A concern I have, beginning with Ms. Ezell, is that if

we were to bring Ms. Ezell in to ask questions of her

regarding her failure to disclose this arrest record that

she has and other issues—for example, the apparent

use of an alias—Do we have to advise her of her

rights? Do we have to give her an opportunity to

have counsel? Because it does seem to me that we

will be asking her potentially about criminal con-

duct, specifically perjury in connection with her

responses to the questionnaires.

Mar. 27, 2006 Tr. at pg. 24366, lns. 16-24 (emphasis

added). Prosecutor Collins added that “I do think to the

extent there are consequences to a criminal prosecution [of

the jurors] we would be recused from it if there was even

contemplation of such a thing.” Mar. 27, 2006 Tr. at

pg. 24386, lns. 19-22.

Mr. Genson, an attorney for defendant Warner, added

that his client was in a Catch-22 situation:

Certainly, when I have a client that’s charged

essentially—at least that was a good deal of the closing

argument—with concealing, hiding, there is charges of

obstruction, false statements, the idea that I want to

tell these jurors, “You have a right to a lawyer,” is

ludicrous. It doesn’t help me to do that. I don’t want

to do it.

On the other hand, I am suggesting to your Honor

that perhaps we should. It’s not to my interest to tell

these jurors, or at least in my client’s interests to tell

these jurors, they need a lawyer. I mean, I don’t need

to introduce all those things given the charges against

my client.

But I do think it’s a valid—if something happens in

this case and if some other prosecutorial body, given

70 Nos. 06-3517 & 06-3528

that Mr. Collins said that they would be recused,

decides to prosecute people for false statement and

we haven’t given them their rights, I mean, I just

feel that—I think that’s at least an issue that your

Honor has to consider.

Mar. 27, 2006 Tr. at pg. 24404, ln. 25 & pg. 24405, lns. 1-

17.

The court recessed for lunch in the middle of its juror

interrogation procedure on March 27th. After lunch,

Mr. Collins informed the parties and the court that

the U.S. Attorney had granted the jurors immunity.

For the record, we did consult, your Honor, with the

U.S. Attorney at the lunch break in terms of jeopardy

any jurors would have going forward. And we did

not address the issue in advance of Ezell and Pavlick,

and I would make this of record.

Our office—[U.S. Attorney] Fitzgerald has indicated

that he believes that it’s more important to get the

candid information from the jurors than have them—

the process chilled by them—any statements they

say being used against them. And so he authorized

me to make a statement that any statements these

jurors make going forward would not be used against

them.

Mar. 27, 2006 Tr. at pg. 24500, lns. 16-25 & pg. 24501, lns.

1-2 (emphasis added). Note that the immunity grant

covered the jurors’ statements “going forward.” The rec-

ord does not reflect whether the U.S. Attorney granted

immunity to the jurors for their original conduct of their

answers provided during voir dire on the questionnaire

and therefore there is a potential that these jurors

could still face criminal prosecution. The district court

proceeded in questioning the jurors informally without

an advisement of rights and without the presence of

lawyers for the jurors.

Nos. 06-3517 & 06-3528 71

Jurors who ultimately would render the verdicts now

faced conflicts sufficient enough to have a federal district

judge and several experienced attorneys consider wheth-

er these jurors needed to be advised of their constitu-

tional rights. And we have an experienced prosecutor,

the United States Attorney, who sees this situation as

serious enough to grant immunity to the jurors. Yet these

same jurors were returned to the jury room, instructed

to begin anew their deliberations. The reconstituted jury

ultimately rendered the verdicts in this case.

When the district judge wonders aloud whether warning

jurors of their constitutional rights is required, when

jurors could need their own lawyers, and when the U.S.

Attorney is issuing immunity grants to jurors, it is im-

possible not to recognize the extraordinary nature of the

case. These circumstances are not “usual” and far from

the way our criminal justice system should work.

In addition, the district court’s ruling from September

2006 that “it is implausible that the . . . jurors would

harbor any fears of prosecution,” R. 867 at pg. 87, is not

supported by the record. Although counsel was not ap-

pointed for the jurors, individual jurors would obtain

private counsel in this case. Juror Pavlick had previous

representation and mentioned his attorney when he was

interrogated individually by the district court. Jurors

Peterson and Losacco would both later inform the court

that they had obtained counsel. Several of the individual

jurors questioned during this period recognized that they

had made inconsistent statements on the juror question-

naire and some apologized for the mistake. Other jurors

specifically mentioned that they were scared or intimi-

dated by the situation.

Furthermore, this is not a situation in which the dis-

trict court can solve the problem by saying that the

jurors made an honest mistake. The decision as to wheth-

72 Nos. 06-3517 & 06-3528

er to investigate and prosecute a case is not the district

court’s to make but rather the prosecutor’s decision.

Additionally, the question of whether a juror incorrectly

but honestly answered a question or intentionally lied

to get onto a jury is a question of fact for a second jury in

a future criminal proceeding.

Despite recognizing the potential of “fearful” jurors, the

district court was unwilling to declare a mistrial. In

addressing the defendants’ argument that the investiga-

tion had impacted the jurors’ ability to be fair and impar-

tial the district court responded:

The . . . argument you are making is that we now

have a bunch of fearful jurors. I just don’t know how

to address that.

Again, I understand that the defendants do have

important interests to represent here. I have before

me—nobody has called it this, but this is a motion for

a mistrial at this point. If I grant this motion, these

defendants are going to be tried again. I don’t—I am

just—I am really wondering whether if I grant the

motion for a mistrial, I am effectively saying it isn’t

possible to pick a jury for this case.

Mar. 28, 2006 Tr. at pg. 24699, lns. 16-25 & pg. 24700, ln.

1 (emphasis added). The obvious—but onerous—way to

address this situation was to declare a mistrial. In any

event, the concern regarding the selection of a new jury

should not have been a consideration. It is not difficult

to understand the great pressure generated by a six-

month trial to reach verdicts in this case. Nevertheless,

jurors in fear of prosecution for conduct involved in the

case on which they are sitting should not be allowed to

render verdicts; their bias is inherent.

As a matter of law, biased jurors cannot be fair and

impartial. Fair and impartial jurors are required as part

Nos. 06-3517 & 06-3528 73

of the defendants’ structural protection for a fair trial and

therefore the defendants are entitled to an automatic

reversal of their convictions. Neder, 527 U.S. at 9.

The majority responds that the defendants were af-

forded the structural protections of a fair trial before a

fair and impartial jury and therefore any error relating

to jury misconduct, improper influence of the jury and

jury bias should be reviewed under harmless error. Maj.

Op. 60. “The bias of a . . . juror may be actual or implied;

that is, it may be bias in fact or bias conclusively presumed

as [a] matter of law.” United States v. Wood, 299 U.S. 123,

133 (1936). As Chief Justice Marshall explained at the

trial of Aaron Burr, there are certain situations in which

a juror “may declare that he feels no prejudice in the case;

and yet the law cautiously incapacitates him from serving

on the jury because it suspects prejudice, because in

general persons in a similar situation would feel preju-

dice.” United States v. Burr, 25 F. Cas. 49, 51 (C.C.D. Va.

1807). Although the “[u]se of the ‘implied bias’ doctrine

is certainly the rare exception,” Hunley v. Godinez, 975

F.2d 316, 318 (7th Cir. 1992) (per curium), as we recog-

nized in United States v. Polichemi:

The concept of implied bias is well-established in the

law. Many of the rules that require excusing a juror

for cause are based on implied bias, rather than

actual bias. For example, a court must excuse a juror

for cause if the juror is related to one of the parties

in the case, or if the juror has even a tiny financial

interest in the case. See, e.g., United States v.

Annigoni, 96 F.3d 1132, 1138 (9th Cir. 1996); Getter v.

Wal-Mart Stores, 66 F.3d 1119, 1122 (10th Cir. 1995).

Such a juror may well be objective in fact, but the

relationship is so close that the law errs on the side of

caution.

219 F.3d 698, 704 (7th Cir. 2000) (Wood, D., J.); see, e.g.,

Smith v. Phillips, 455 U.S. 209, 221-24 (1982) (O’Connor,

74 Nos. 06-3517 & 06-3528

J., concurring); Conaway v. Polk, 453 F.3d 567, 587-88 &

n.22 (4th Cir. 2006) (noting that “implied bias [is] a settled

constitutional principle” and providing citation to cases

from ten different Circuits since 1982 recognizing the

continuing applicability of the implied bias doctrine);

Brooks v. Dretke, 418 F.3d 430, 430-31 (5th Cir. 2005)

(overturning a conviction on the basis of implied jury

bias when a juror faced a pending criminal charge filed

by the same prosecutor’s office that was prosecuting the

case on which the jury was presiding); Dyer, 151 F.3d

at 984 (citing Dr. Bonham’s Case, 77 Eng. Rep. 646, 652

(C.P. 1610) (tracing the lineage of the implied bias doc-

trine to Sir Edward Coke’s dicta in Dr. Bonham’s Case

in 1610)).

A biased juror “is a juror in name only” who taints the

court and the jury’s verdict making it a “mere pretense and

sham.” Clark, 289 U.S. at 11. The verdicts returned by

these biased jurors should be vacated because only a jury

composed of fair and impartial jurors can strip the defen-

dants of their liberty. Irvin v. Dowd, 366 U.S. 717, 722

(1961).

General Management of the Jury and

Jury Misconduct

It is also necessary to review additional jury misconduct

and the jury management decisions of the district judge.

Errors of a nonstructural nature are analyzed under

Federal Rule of Criminal Procedure 52, where errors

raised by the defendants are reviewed under a harmless

error standard and those not raised are reviewed under

a plain error standard.

The majority determines that on appeal the defendants

raised three specific issues about the jury: (1) that the

verdict was tainted by the jurors’ use of extraneous legal

Nos. 06-3517 & 06-3528 75

materials; (2) that the dismissal of Juror Ezell was an

arbitrary removal of a defense holdout, and; (3) that the

substitution of jurors after deliberation had begun was

prejudicial. Maj. Op. p.2. In addition, the majority notes

that the defendants have not raised on appeal the issue

of the cumulative and prejudicial effect of jury miscon-

duct and therefore that issue is not before us—although

raised below. Id.

The majority correctly observes that jury management

or control measures properly lie within the discretion of

the district judge. Maj. Op. p.58. Nevertheless, courts of

appeal have supervisory authority in fashioning stan-

dards of criminal procedure to be followed by the district

courts. WAYNE R. LAFAVE, et al., CRIMINAL PROCEDURE

§ 1.6(i) pg. 325 (2d ed. 1999).

I disagree with the narrowed scope of review advanced

by the majority. What follows is a discussion of a more

global look at the juror misconduct and jury management

involved in this case.

Of course, as repeatedly pointed out, this court is

guided by the Supreme Court’s instruction that the

defendants are guaranteed a right to a “fair trial,” not a

“perfect trial.” McDonough Power Equip. Inc. v. Green-

wood, 464 U.S 548, 553 (1984).

As to the internet research regarding the law, there is

no dispute that Juror Peterson brought outside material

into the jury room during deliberations while she and a

number of jurors were in conflict with Juror Ezell. A

number of jurors urged Juror Peterson to search the

internet and bring back to the jury information on jury

deliberation. Her research could be used to show Juror

Ezell the “error of her ways.” This entire episode was a

deliberate disregard of the admonition of the court not

to bring outside legal sources into the jury room.

76 Nos. 06-3517 & 06-3528

Juror Peterson claims that the material was an Ameri-

can Judicature Society article about deliberations and

she had no intent to inappropriately influence Juror Ezell.

Juror Ezell disputes this claim, countering that the

information related to bribery and was used to threaten

her so that she would vote with the other jurors. Regard-

less, it is clear that Juror Peterson brought outside

material into the jury room during the course of delibera-

tions and used this material as part of the jurors’ efforts

to convince Juror Ezell to join them in returning a verdict.

In her post-trial ruling, the district court determined

that the article on jury deliberation “did not pertain to

any substantive issue in the Defendants’ trial. It con-

cerned only the process of deliberation, and the substance

of the article did not contradict any instruction that this

court gave to the jurors.” R. 867 at pg. 81. Errors in the

jury deliberation process raise issues of law no different

than errors relating to substantive matters, such as

obstruction of justice. Both procedural and substantive

areas of law are equally important. Moreover, a court

cannot hide behind saying that the unauthorized article

contained a proper statement of the law. It is axiomatic

that jurors are not allowed to bring any outside materi-

als into deliberations regardless of whether they are a

correct statement of the law. Jurors are restricted to

receiving pronouncements on relevant law only from

the trial judge.

The seriousness of this misconduct is demonstrated

by the fact that Juror Peterson and Juror Losacco, who

were involved in the conflict with Juror Ezell, both ob-

tained private counsel to represent them on this issue. The

record does not reflect whether Jurors Peterson and

Losacco retained their attorneys during deliberations or

after deliberations as Juror Ezell did not make a public

allegation against Jurors Peterson and Losacco until

after the verdicts had been returned. However, when the

Nos. 06-3517 & 06-3528 77

district court conducted a post-verdict inquiry on this

issue, both Jurors Peterson and Losacco appeared through

their respective counsel.

The jurors originally sent notes informing the district

court that they were in conflict. This is the conflict be-

tween Juror Ezell and several of the other jurors includ-

ing Juror Peterson. Juror Peterson was instructed by

several other jurors to—“do her homework”—meaning to

find information on the internet which the jurors could

use in a hope of convincing Juror Ezell to join their views.

However, during the period that the district judge

was considering what to do about the conflict among the

jurors, she was also informed about the juror question-

naire problem. Thus, the court was faced with two inde-

pendent problems, the jury conflict issue and the juror

questionnaire issue. Yet, the juror questionnaire issue

wholly consumed the district judge’s consideration of the

case at that point. The district judge left unresolved her

consideration of the conflict between potential “holdout”

Juror Ezell and other jurors. Nowhere in the record does

the district judge make a ruling as to whether a conflict

existed between Juror Ezell and the other jurors to

determine if the jurors had deadlocked or if Juror Ezell

was indeed a holdout. Nor did the court determine the

impact that dismissing Juror Ezell would have on the

other jurors in light of the conflict among the jury as

expressed to the court in the jurors’ notes, and whether

this might give an indication to other jurors that the

court was siding with the views of one group of jurors

over another. However, the district judge ultimately

excused Juror Ezell based on the inconsistent statements

Juror Ezell made on her questionnaire.

At the beginning of the trial, the district judge ordered

the juror questionnaires to be redacted, yet she used the

jurors’ names during in-court voir dire. This allowed the

78 Nos. 06-3517 & 06-3528

Chicago Tribune to obtain the jurors’ names from the

transcripts of the in-court voir dire despite the fact that

the court had originally placed the jurors’ names under

seal. As Prosecutor Collins later noted, “a trained monkey”

could have matched the information together between the

publicly redacted questionnaires and in-court voir dire

transcripts. Mar. 27, 2006 Tr. at pg. 24591, ln. 22. Because

jurors’ names were “in effect” leaked to the media during

the trial, the court was unable to avoid the larger issue

of a juror background investigation by the media and

the impact this had on the trial.

Apart from the general admonitions made by the court

it appears that there was little control of the jurors’

exposure to external influences outside of the courthouse.

In addition to Juror Peterson’s misconduct, the jurors

continued to read newspapers and were exposed to media

coverage of the trial, the jurors received inquiries from

friends and family about the case, and the jurors discussed

the case with outsiders while the case was pending. All of

these actions were taken in violation of the court’s instruc-

tions, yet a reconstituted jury was allowed to deliberate

and return verdicts.

There is often a lack of a record on key issues. The

district judge participated in a discussion with the

parties but did not state that she was providing a definite

ruling. Thus, the record is at best inconclusive, and at

the worst nonexistent, on the district court’s decisions on

many of the critical issues in this case. The most striking

example is the reseating of the alternate jurors. Once the

district judge decided to excuse Jurors Pavlick and Ezell,

the court was required, pursuant to Rule 24, to seat

alternate jurors in the order in which they were selected.

However, in the reseating process the district judge

skipped the next juror in line, Alternate Juror Masri. We

know that he was skipped but the district judge did not

say why he was passed over.

Nos. 06-3517 & 06-3528 79

The majority deduces that Alternate Juror Masri was

dismissed for his failure to disclose a prior DUI. But, there

is no ruling from the district judge to support the major-

ity’s deduction. The government suggested at oral argu-

ment that Masri was excused because he received his

juror certificate and was thanked for his service. But there

is no record excusing him or indicating why he did not

serve. Thus, the record does not demonstrate compliance

with Rule 24.

At oral argument before this court, Prosecutor Collins

stated that “Judge Pallmeyer is a consensus builder.” Oral

Arg. at 47:18. This insightful comment is the key to

understanding the non-structural juror errors. Consensus

building can help in finding common ground in disputes.

It can also help to expose decision makers to alternative

points of view. But consensus building can have negative

consequences as this case demonstrates.

Consensus building by the district judge allowed a

continual round robin of discussions between the attor-

neys and the court especially during the critical period of

March 27th and 28th when the parties and the court

were addressing the juror-related issues. Transcripts

from this period reveal a very conscientious but irreso-

lute judge who is willing to contribute her views and

concerns to the conversation involving contested issues,

but is reluctant to provide firm rulings that end the

court’s consideration of those issues. The record from

this period is full of conversations but lacks definitive

rulings. Consensus building does not always lead to the

resolution of difficult issues.

A lack of definitive rulings by the trial court presents

great difficulty in a review on appeal, for appellate courts

review decisions, not commentary. Importantly, the lack

of a firm ruling infects the consideration of excusing

potential “holdout” Juror Ezell. In her post-trial ruling,

80 Nos. 06-3517 & 06-3528

the district judge said that Juror Ezell was “removed

from the jury for reasons wholly unrelated to [the] conflict

[occurring between the jurors] revealed in [Juror] Losacco’s

note.” R. 867 at pg. 75. Yet, the district judge’s post-

trial decision did not provide citation to the record on

this point. In fact, a review of the record during the March

27th and 28th period shows there was absolutely no

consideration of the conflict between Juror Ezell and other

jurors. As noted earlier, this very serious issue was

forgotten once the court and parties were made aware

of the trouble in the jurors’ questionnaire answers by

the Chicago Tribune.

The district judge is charged with the management

and control of the jury. In the deliberation phase this

includes ensuring that the jurors properly conduct them-

selves, avoiding outside influences, conducting proper

deliberations without juror-on-juror intimidation, and

scheduling deliberation times, among others.

As noted, many of the problems that plagued the trial

after the case was submitted to the jury could have been

avoided through sequestration. While it was certainly

impractical to sequester this jury during the trial phase,

sequestration during deliberations was a viable option.

In a full sequestration, deliberating jurors are typically

under control of Deputy United States Marshals who

are responsible for ensuring that the jurors are secure

during their deliberations, in movement to and from the

courthouse and jury room, and while housed offsite until

a verdict is reached. Partial sequestration works less of

a hardship on jurors. Under this system the deliberating

jurors assemble at a remote location and are picked up by

Deputy United States Marshals, transported by van to

the courthouse and moved in a nonpublic elevator to the

jury room. At the end of a day’s deliberations the process

is reversed. This continues until a return of the verdict.

Nos. 06-3517 & 06-3528 81

Despite these available options there was no apparent

consideration of such sequestration even in the face of the

overwhelming media presence in the courthouse, the

daily media reports of courtroom activity and the jurors’

continued inability during the course of the trial to avoid

media reports of the trial. The relative inconvenience to

the jurors weighed against a possible mistrial makes the

choice of sequestration during deliberation seem clear.

Turning again to the actual deliberations, it appears

that jurors were inexplicably allowed to set their own

schedule for deliberations with apparently little judicial

intervention. There is undisputed evidence that the

jurors separated into caucuses at times during delibera-

tions. Perhaps most striking is the example of the divi-

sion between the “healthy” and the “unhealthy” jurors.

The healthy jurors exercised by running up and down

internal courthouse stairs while the unhealthy jurors

took smoke breaks outside the courthouse. The record

does not tell us if the jurors continued separate delibera-

tions during this period outside of the presence of the

other jurors.

As noted above, I recognize that individual nonstructural

errors are reviewed under either harmless error or the

plain error analysis as provided in Rule 52 and we afford

the district judge a level of deference. However, the non-

structural errors—in their totality—were so egregious

that again a mistrial was the only permissible result.

The majority’s failure to consider all of these errors cannot

be ignored as we must recognize that these errors under-

mine the public’s confidence in the “fairness, integrity

or public reputation of judicial proceedings.” United States

v. Olano, 507 U.S. 725, 736-37 (1993).

In the final analysis, this case was inexorably driven to

a defective conclusion by the natural human desire to

bring an end to the massive expenditure of time and

82 Nos. 06-3517 & 06-3528

resources occasioned by this trial—to the detriment of

the defendants. Given the breadth and depth of both

structural and nonstructural errors, I have no doubt that

if this case had been a six-day trial, rather than a six-

month trial, a mistrial would have been swiftly declared.

It should have been here.

Based on either the structural errors or nonstructural

errors described above concerning jury misconduct, the

convictions in this case should be vacated and the case

remanded for a new trial. Because the majority reaches

a contrary result, I respectfully DISSENT.

A true Copy:

Teste:

________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA-02-C-0072—9-6-07