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, 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 defendants,

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

handle a number of problems, some of which were common

and others less so. The fact that the trial may not have been

*

This opinion is being released in typescript. A

printed version will follow.

2 Nos. 06-3517 & 06-3528

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 additionally 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 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

Nos. 06-3517 & 06-3528 3

acceptable manner, and that whatever error remained was

harmless. We therefore 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’ imprisonment and Ryan to 78 months’

imprisonment. The defendants both filed timely notices of

appeal on September 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 selecting 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 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

4 Nos. 06-3517 & 06-3528

awareness of Ryan’s positions on public issues. Counsel for all

parties and the court reviewed the questionnaires for four

days; voir dire consumed another six days. The district court

seated 12 jurors and eight alternates. The trial lasted six

months. The prosecution presented approximately 80

witnesses against the defendants. 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 purchased

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

company 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 request 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 ten years.

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

for eight days. During their deliberations, the jurors 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

Nos. 06-3517 & 06-3528 5

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 profanities. 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 surfaced

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 deliberations 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 reckless conduct conviction,

the court questioned him individually. The court asked

counsel if there would be any objection to dismissing Pavlick.

Neither the prosecutor 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 problematic.

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 significant 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

6 Nos. 06-3517 & 06-3528

given law enforcement 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 forthcoming

about her use of the name “Thora Jones” nor 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 untruthfulness.

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 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 forty 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 nor about his conditional discharge or probation 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

Nos. 06-3517 & 06-3528 7

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, 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 instructions to the reconstituted jury, adding

a new one to allay defense concerns with the questioning

about the jurors’ criminal histories. The new jury begin

deliberating on March 29, 2006. After ten days’ work, it

returned guilty verdicts on all counts on April 17, 2006.

After the verdict, dismissed juror Ezell publicly criticized

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]

8 Nos. 06-3517 & 06-3528

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 removing 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 mentioned 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 influences the rest of

the analysis is whether either one, or both, of these items

should be characterized as “extraneous” 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]

Nos. 06-3517 & 06-3528 9

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 Peterson told the

district court that her handwritten statement 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 Peterson’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 Peterson’s

explanation about the note, let alone any indication 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 juror

removal and substitution. The excerpt that Peterson read to

the jury was the following:

10 Nos. 06-3517 & 06-3528

But other bases for substitution raise serious questions

about the sanctity of the deliberative process, primarily

allegations by some jurors that another juror is unwilling

or unable to meaningfully deliberate, or is unwilling to

follow the law. Such an allegation requires a hearing

where the judge must decide the tricky question whether

the juror is truly unfit to serve, or is merely expressing an

alternative viewpoint 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 constitutional

error in failing properly to apply the rule of Blakely v.

Washington, 542 U.S. 296 (2004), was subject to harmless

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

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

Nos. 06-3517 & 06-3528 11

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’ jurisprudence” by stating that “[d]ue process

does not require a new trial every time a juror has been

placed in a potentially 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

“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

12 Nos. 06-3517 & 06-3528

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 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 information 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 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 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 question 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

Nos. 06-3517 & 06-3528 13

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 deliberate 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 innocuous.” 263 F.3d at 725-26. We need not

explore when a hearing may not be essential, however, since

the district 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

14 Nos. 06-3517 & 06-3528

after a hearing that the Government 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 perspective ... 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.

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 non-exclusive 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 check-list 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, it was only the jurors who sat on

the original jury who 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

Nos. 06-3517 & 06-3528 15

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 testimony 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 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 decision,” 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 removed if they refused to

‘deliberate.’” This differs significantly 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

16 Nos. 06-3517 & 06-3528

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, “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 problems 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 accepting 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

Nos. 06-3517 & 06-3528 17

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

“long-recognized and very substantial concerns 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 inquiry the court sent the implicit

message that future deliberations might not be secret, then

we would be facing 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 instructing 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 verdicts 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 deliberations.... [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 deliberations when you begin these new deliberations.

18 Nos. 06-3517 & 06-3528

(emphasis added).

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 only overcome if there is an

“overwhelming possibility” that 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 falls in light of these instructions and the court’s

credibility 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 entitled 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 presumptive

prejudice, but it then goes on to find that the government has

rebutted that presumption. After interviewing 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 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

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

Nos. 06-3517 & 06-3528 19

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 prejudice 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 inability 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 replacement: 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.

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

20 Nos. 06-3517 & 06-3528

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 return a verdict and the facts of McDonough will be

replicated. 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 because of their

criminal records, the court asked the attorneys for their

thoughts on the standard to apply to possible removals. All

attorneys responded with arguments to the court. Less than

an hour later, the court informed counsel that it saw a

difference between jurors such as Pavlick and Ezell, for whom

there were significant 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

Nos. 06-3517 & 06-3528 21

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 dismissed 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 question, 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 ... 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 recognized 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

enforcement officers false information upon an arrest can

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

22 Nos. 06-3517 & 06-3528

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 circumstances. 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 question 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

peremptory 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 defense

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 prosecutors have used a

peremptory strike for an impermissible reason, it is necessary

Nos. 06-3517 & 06-3528 23

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 tenure 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 connected Pavlick’s

conviction to Ryan’s office. In fact, it appears 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

convictions 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 believed 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

24 Nos. 06-3517 & 06-3528

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, alternate 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 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 unreasonable

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 prosecution

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 investigations into their

questionnaires. The district court concluded that “I have

genuine concerns that Mr. Pavlick and Ms. Ezell ... may very

well have been motivated to get on the jury.” Indeed, the

Nos. 06-3517 & 06-3528 25

strongest cases for challenges for cause were against these

two jurors.

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 actions. 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 responded by instructing the

jury that “you twelve are the jurors selected to decide this

case.” This instruction also operated to prevent any potential

26 Nos. 06-3517 & 06-3528

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 instructions to the

reconstituted jury, as well as its repeated 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 argument comes from Juror Losacco’s

testimony that she was “scared” during her interview. But

this trepidation appears 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 an misstatement was made on the

juror questionnaires and the reasons for the misstaement,

and in focusing on whether the undisclosed information

would have supported striking 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 dismiss Ezell because she was a “holdout,” nor

were jury deliberations chilled because of the way in which

Nos. 06-3517 & 06-3528 27

Ezell was removed. Finally, the record suggests no reason to

think that the reconstituted jury was biased against the

defendants 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 allowed 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 deliberations 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 replace

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 deliberations. The Fifth Circuit

employed an abuse of discretion standard for juror removals

during deliberations, although it is not clear whether the trial

28 Nos. 06-3517 & 06-3528

in that case took place before or after the Rule 24 amendment

came into force; it concluded that a district court abuses its

discretion 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 possibility 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

because 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

Nos. 06-3517 & 06-3528 29

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 misconduct,

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 supported by the

record, provides all the basis this court needs to affirm the

district court’s decision to order substitutions of jurors.

The defendants complain that we have no way of knowing

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 quarrel with the Eleventh Circuit’s

practical observation that “the further along deliberations

proceed, the more difficult 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

30 Nos. 06-3517 & 06-3528

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 deliberations from their minds and

begin with a clean slate.

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

after eleven days of deliberations, although not discussing

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 specific counts in the indictment during its

deliberations that the original jury had not sought.

The record also gives no reason to be especially concerned

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 statements

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

Nos. 06-3517 & 06-3528 31

brief, they seek a holding that “almost any decision to

substitute [during deliberations is] prejudicial.” This cannot

be the proper standard under the new Rule 24(c).

V

Moving, at last, away from the jury issues, the defendants

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 belief about the bona fides

of the transactions at issue in this case, including those that

involved Warner. We review 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 facilities that the

32 Nos. 06-3517 & 06-3528

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 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 becomes

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 opportunity

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 33

The defendants’ argument that prosecution witness Glen

Good’s testimony unfairly crossed some temporal line fails

because there was no such line. The proper comparison, 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

decisionmaking 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 excluded

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 Secretaries

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 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

34 Nos. 06-3517 & 06-3528

increase for election reasons. This type of evidence is arguably

probative because it provides support to Ryan’s contention

that the increase was a sound policy decision. See Longfellow,

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 mechanization than the

occasional rate decisions here displayed. See Advisory

Committee Notes for Rule 406, emphasizing the need for a

“repeated specific situation” before something qualifies as

“habit.” The Note comments that “[e]quivalent behavior on

the part of a group is designated ‘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 certain

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 had come from the

government’s case-in-chief, then they might have a point. But

they did not. The quoted statements come from the

prosecution’s closing argument. The government did not use

evidence of Ryan’s general dishonesty 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

Nos. 06-3517 & 06-3528 35

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 defense 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 witness. 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 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

36 Nos. 06-3517 & 06-3528

removed from the charged acts is not an abuse of discretion

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 “enterprise” for

RICO purposes, and secondarily, did the district court err

when it instructed the jury that the State of Illinois is a “legal

entity.” We consider these arguments 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 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

Nos. 06-3517 & 06-3528 37

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

Enterprises, 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 prevent

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 Maryland. United

States v. Mandel, 415 F. Supp. 997 (D. Md. 1976). The

defendants urge us to accept the reasoning 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 analysis 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 disapproval

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.

38 Nos. 06-3517 & 06-3528

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 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 encompassing 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)

(comparing 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 racketeers”); 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 government

entities. Senator McClellan, the chief sponsor of this bill

and chairman of the committee which drafted it, said:

Nos. 06-3517 & 06-3528 39

“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 over matters

affecting the everyday life of each citizen.”

...

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 alleged 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

40 Nos. 06-3517 & 06-3528

necessary under RICO, but it is not forbidden. 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 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

enterprises.) 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 dormant

commerce clause case. If the CEO of a major corporation, 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 identified

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

prosecution.

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

Nos. 06-3517 & 06-3528 41

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 Government must prove ... that the

defendant uttered or possessed a counterfeit and forged

security of an organization”). 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

statutory definition of “enterprise.” See, e.g., Turkette, 452

U.S. at 582 (examining the characteristics of a criminal

structure to determine whether it was an “enterprise” under

RICO). Nevertheless, because governmental or public entities

fit within the definition of “enterprise” for purposes 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, appellant’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

Organizations, 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 conclude,

therefore, that the district court did not err when it

accurately informed the jury that the State of Illinois is a

legal entity.

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

42 Nos. 06-3517 & 06-3528

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, (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 n29 (10th Cir. 2003); United States v. Waymer, 55

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

opinions in two circuits’ opinions on this issue. Rybicki, 354

F.3d at 162-64 (Jacobs, J. dissenting); United States v.

Brumley, 116 F.3d 728, 742-47 (5th Cir. 1997) (Jolly, J. and

DeMoss, J. dissenting).

Given this unanimity on the central point, our concern here

is only with the question whether the district court’s

instructions properly reflected this court’s approach to the

details of the claim. Previous holdings on this issue are not

necessarily dispositive because “vagueness 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

Nos. 06-3517 & 06-3528 43

convictions 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 communications 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 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 understanding 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

benefits ... 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 understanding

that it was given to influence his decision-making.” The court

also told the jury that “[n]ot every instance of misconduct or

violation of a state statute by a public official or employee

constitutes a mail fraud violation.”

44 Nos. 06-3517 & 06-3528

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 unconstitutional. Many of the

state law provisions in the instructions 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

provisions of Illinois law identified for the jury various ways

in which a public official could “misuse his fiduciary

relationship,” but the instructions as a whole unambiguously

required the prosecution to prove that misuse of the office

was intended for personal gain, as Bloom and Hausman 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 analogized

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 interpretation 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

Nos. 06-3517 & 06-3528 45

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 construed FED. R. CRIM.

P. 8, which governs joinder in criminal 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 delays 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).

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

46 Nos. 06-3517 & 06-3528

act and a means and method of the RICO conspiracy; again,

it charged both Warner and Ryan. Of the remaining twenty

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.)

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 misjoinder 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 unreported 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 specifically 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 conspiracy

charge, state that Ryan was obligated by law to report on his

federal and state tax returns all expenditures by Citizens For

Ryan that were made for personal expenses. Count One also

states that part of the modus operandi of the RICO

Nos. 06-3517 & 06-3528 47

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 purpose of influencing and

rewarding Ryan in the exercise 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

underlying 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 discretion. Zafiro, 506 U.S. at 539-

541. Where joinder of defendants was proper, “a district court

should grant a severance 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 reliable judgment about guilt or innocence.” Zafiro,

506 U.S. at 539. “Actual prejudice” does not exist just because

48 Nos. 06-3517 & 06-3528

“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 discretion. Id.

Warner argues he suffered prejudice because the joinder

violated his substantial rights in multiple ways. He objects

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 constitutional

right to confrontation was violated. These statements 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 confession 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

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 conspiracy 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 furtherance of a scheme to defraud is

Nos. 06-3517 & 06-3528 49

admissible against the other participants in that scheme, just

as it is in a conspiracy 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 conspiracy 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 prejudice from

joinder through limiting instructions rather than severance.

See Zafiro, 506 U.S. at 539.

Finally, Warner argues that the jurors were not following

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 instructions and to keep separate, collate

and appraise the evidence relevant only to each defendant” in

considering 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

instructions 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 to Ryan’s convictions on two counts for

insufficiency of the evidence).

50 Nos. 06-3517 & 06-3528

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 instructions 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 decision. It is also not clear what relief he

is seeking for this alleged infringement of the privilege.

Generally, a defendant challenging an indictment seeks to

have the indictment 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 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).

Nos. 06-3517 & 06-3528 51

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 governor and his counsel, has concluded that the

privilege 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 respectfully 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

52 Nos. 06-3517 & 06-3528

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 presumption 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. 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 sequestration 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. concurring) (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 constitutionally ineffective assistance by opting not

Nos. 06-3517 & 06-3528 53

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 structural

error because the jurors’ irreconcilable conflicts of interest

that resulted from the jury questionnaire situation,”

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

of automatic reversal into a case in this way. Second, neither

the law nor the course of proceedings in the district court

support such a characterization.

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” category. 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 properly 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

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

mistrial based on juror bias therefore is reviewed according to

an abuse of discretion standard.” McClinton, 135 F.3d at 1186

54 Nos. 06-3517 & 06-3528

(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

characterization 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 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 type of proof

necessary to prove 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

investigation 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 transform 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 rulings 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 consideration. 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.

Nos. 06-3517 & 06-3528 55

Counsel have argued in great detail every point that they

chose to bring before us, and we have limited our review of

the trial proceedings 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

understatement by any measure. The majority then observes

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

unusual.” 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 deliberations to be merely harmless.

To understand the influences 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

unremarkable in a routine criminal case and other factors are

totally astounding in any case. The following are highlights

in summary fashion:

56 Nos. 06-3517 & 06-3528

! 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 inconsistencies between

answers in a jury questionnaire and public records.

Nos. 06-3517 & 06-3528 57

! 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 continued 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 counsel, the

individual examination of six sitting and three

alternate jurors was begun.

! Through the judge’s examination it was determined

that a majority of jurors had provided false answers

under oath and could face criminal prosecution. Many

jurors who were interrogated told the district judge

that they were scared, intimidated or sorry for what

had occurred.

! During the course of the interrogations, the jurors

were granted immunity from prosecution by the U.S.

Attorney.

58 Nos. 06-3517 & 06-3528

! Some jurors later hired lawyers in order to represent

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.

! 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 verdicts 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 subdivided and

analyzed in two groups. First, there is a structural error

because of the jurors’ irreconcilable conflicts of interest that

resulted from the jury questionnaire situation. Second, the

Nos. 06-3517 & 06-3528 59

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 responses 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 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 defendants of basic

protections without which a criminal trial cannot reliably

serve its function as a vehicle for determination 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 adjudicator, 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 criminal prosecution.

The Supreme Court has previously upheld 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

60 Nos. 06-3517 & 06-3528

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 government

is also responsible for investigating and prosecuting 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 during 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

September 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

Nos. 06-3517 & 06-3528 61

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 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 interrogated by the district judge.

They were called one-by-one into the judge’s chambers.

Questions regarding inconsistent answers on the jury

questionnaire form were asked. Jurors Ezell and Pavlick

were ultimately dismissed, 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 reconstituted jury would not start the second round

of deliberations 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

62 Nos. 06-3517 & 06-3528

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 questionnaire 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, recognized 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 conduct,

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

Nos. 06-3517 & 06-3528 63

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 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 record 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.

64 Nos. 06-3517 & 06-3528

Jurors who ultimately would render the verdicts now faced

conflicts sufficient enough to have a federal district judge and

several experienced attorneys consider whether these jurors

needed to be advised of their constitutional 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 impossible 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 appointed 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

questionnaire and some apologized for the mistake. Other

jurors specifically mentioned that they were scared or

intimidated by the situation.

Furthermore, this is not a situation in which the district

court can solve the problem by saying that the jurors made an

honest mistake. The decision as to whether 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

Nos. 06-3517 & 06-3528 65

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 investigation

had impacted the jurors’ ability to be fair and impartial 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 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 afforded

the structural protections of a fair trial before a fair and

impartial jury and therefore any error relating to jury

66 Nos. 06-3517 & 06-3528

misconduct, improper influence of the jury and jury bias

should be reviewed under harmless error. Maj. Op. 53-54.

“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 prejudice.” 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 recognized 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, 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,

Nos. 06-3517 & 06-3528 67

652 (C.P. 1610) (tracing the lineage of the implied bias

doctrine 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 defendants 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 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 misconduct 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.52. Nevertheless, courts of appeal

have supervisory authority in fashioning standards 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).

68 Nos. 06-3517 & 06-3528

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. Greenwood, 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.

Juror Peterson claims that the material was an American

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. Regardless, it is clear that Juror

Peterson brought outside material into the jury room during

the course of deliberations 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 concerned 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 that errors relating to

substantive matters, such as obstruction of justice. Both

Nos. 06-3517 & 06-3528 69

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 in any

outside materials 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 with Juror Peterson in the conflict with Juror Ezell,

both obtained 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 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 between Juror

Ezell and several of the other jurors including 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 questionnaire problem.

Thus, the court was faced with two independent 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

70 Nos. 06-3517 & 06-3528

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 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 instructions, 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

Nos. 06-3517 & 06-3528 71

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.

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 majority’s

deduction. The government suggested at oral argument 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 attorneys 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 irresolute 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.

72 Nos. 06-3517 & 06-3528

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, 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 themselves,

avoiding outside influences, conduct 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

Nos. 06-3517 & 06-3528 73

Marshals, transported by van to the courthouse and moved in

a nonpublic elevator to the jury room. At the end of a days’

deliberations the process is reversed. This continues until a

return of the verdict.

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 deliberations. Perhaps most

striking is the example of the division 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

deliberations 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

nonstructural 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 undermine 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

74 Nos. 06-3517 & 06-3528

end to the massive expenditure of time and 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.