*1 granted summary judg- The district court
ment in favor of all defendants. held America, UNITED STATES of two friends court and the Plaintiff-Appellee, prosecuting attorney quasi- are entitled to judicial immunity and that the board of Joseph Ronnie BRUSCINO and Charles commissioners not held liable on the Eugene Kell, Defendants-Appellants. respondeat superior. agree basis of We affirm. 80-2336, Nos. 80-2337. county United Court Appeals,
Even if board of commis employer was the Seventh Circuit. sioners the individual (a dispute) defendants matter in the board Argued April 3, 1981. damages would be liable for their Decided Oct. showing actions in the of a absence complained acts of were taken the indi pursuant “policy
vidual defendants to a municipal body.
custom” Monell v. City Services, Dept.
New York of Social 658, 694, 2018, 2037, 98 S.Ct. 56 L.Ed.2d (1978). showing There was no such present case. public
A prosecutor absolutely damages
immune a claim for based
upon performed his official actions within scope of his duties. Imbler v. Pacht
man, 424 U.S. 96 S.Ct. 47 L.Ed.2d (1976). The defendant Tibbetts was immunity present
entitled to this A immunity
case. similar attaches
activities of public per other officials who quasi-judicial
form duties. Denman v.
Leedy,
examination of the statutes which
prescribe the responsibilities duties and
friends the court leads us to the conclu
sion acts of the defendants Gran
holm and Lund which form the basis
plaintiff’s performed claims were these scope
defendants within the of their official
quasi-judicial Therefore, they duties.
also immunity. entitled to judgment of the district court is af-
firmed. *2 Runnells, Ind.,
Mary Bloomfield, M. Rob Cook, Hellman, F. Jessie Terre ert A. Haute, Ind., for defendants-appellants. Monroe, Lloyd Bryce Atty., Asst. U. S. Virginia McCarty, Atty., Dill U. S. Indian- Ind., apolis, plaintiff-appellee. CUDAHY, that he Bruscino Judge, Circuit first met Before * FAIRCHILD, Ange- office United States Marshal’s in Los Senior Circuit GIBSON les, next Judges. California. The time he saw Brus- September, 1978, cino was in late FAIRCHILD, Judge. Circuit Senior prison yard at Terre Haute. Bruscino *3 been transferred to Terre Haute from the 30, 1978, Martinez, Robert On October an Island, penitentiary Washington. at McNeil penitentiary at the in inmate federal Terre Bruscino told Howell then that Robert Mar- Haute, Indiana, as a result died of head later, tinez was a A week “rat.” Bruscino injuries approxi- blunt force inflicted asked Howell Martinez to befriend so mately Shortly an hour before his death. place Howell Martinez to a could lure where discovered, Martinez was defendant- after they Howell could kill him. tried befriend- Bruscino, appellant Ronnie a fellow inmate ing couple sharing Martinez a of times Haute, apprehended suspi- at Terre was on him, marijuana with but failed to establish placed segrega- cion of the murder and in any rapport. Defendant-appellant tion. Charles Haute, an also inmate at Terre was con- October, 1978, In day Bruscino segregation suspect to a fined the follow- learned that he was to be back transferred later, ing day. year Over one on December Island, Howell, Bruscino, Barron, to McNeil 19, 1979, Bruscino and Kell were indicted Norman together. and Kell had lunch conspiracy for Martinez1 murder and for Bruscino of the impending told them trans- Following jury trial, murder a itself. fer go and said that he didn’t want to back guilty conspiracy Bruscino was found got yet.” because “he hadn’t Chino Howell degree and of first Kell murder. was con- point anything specific regard- could conspiracy degree victed of and second mur- ing participation Kell’s in the ensuing con- der. versation. later Bruscino told Howell that going delay he was a injury Bruscino and Kell raise to fake back numerous issues appeal. jurors’ We transfer. conclude extraneous, exposure material 30, 1978, On morning October during the trial tainted verdicts murder, Hebb, inmate, Howell and another both Bruscino and We Kell. therefore re- practiced garrotting with Bruscino in the verse and further proceedings remand for prison. They kitchen of the decided consistent with opinion. this garrote could not Martinez he because vegetable not be lured into the room
I. at the back of the kitchen. Howell testified Howell, Co-defendant an inmate serving joined the three them then co-de- Norman, robbery time for bank conspiracy and fendants Barron for and Kell escape previously pled and who had guilty lunch. At lunch decided that degree Martinez, to second murder of to lure weight see Martinez into the small room 1, supra, note was the in gymnasium complex, chief prom- with the witness the murder. He ise of supplied stated heroin Barron. Howell * Gibson, Floyd Judge pled Honorable R. Senior Co-defendants Norman and Barron Appeals count, Eighth guilty conspiracy United States Court of for the in for return Circuit, by designation. sitting government which the dis- moved an order II, missing granted. Count which the court Co- plea defendant Howell a entered charged 1. Count I of the indictment Bruscino murder, degree offense of second in- murder, lesser conspiracy and Kell with to commit Following cluded offense of II. Count violation of 18 U.S.C. and 2. II §§1117 Count 20, 1980, pled guilty on June he I and charged Count degree them with first murder in viola- year received a one to be con- sentence served tion of 18 and 2. §§ U.S.C. Both counts of currently currently sentence with the he was charged Norman, the indictment also Dennis serving. then an moved for Dennis Barron Eddie Howell with the dismissing order Count II of the indictment crime. against Howell. weight testify exactly who said the air and was unable as to crash it down on what, On thought Kell said “cool.” but he point, Martinez’ head. At this Norman cross-examination, Howell stated that grabbed paraphernalia, the narcotics ran exact but couldn’t remember Kell’s words into the restroom and flushed it down the acknowledge agreement. an that he did grabbed toilet. Bruscino Martinez and night, supper drag
After met started to him Howell toward the shower stall weight the small room. Howell Bruscino in in the restroom. Howell heard Bruscino stated that Bruscino went and out of say, “He doesn’t dead look to me.” Brusci- eventually periodically, room and Howell picked up weight began no then upstairs went to the arts crafts room. hitting again. Martinez While Bruscino returned, When Howell Bruscino was still hitting Martinez, Howell saw black alone, was wearing but time he in, inmate come who asked for a match. extra set clothes. Howell stated that Howell said he didn’t one. Norman *4 told then Howell Norman Bruscino gave a and match the inmate left. him weight bring would Martinez the small into then Howell body noticed Martinez’ heroin, fixing room and while were moved, had been clothing and institutional Bruscino “would hit him over the and head put Only over the head. Bruscino was left Kell, take him out.” Howell and whom in get the room. Howell told Bruscino to yet Howell not evening, had seen that pants, splattered rid of his which had blood guard leading gymna- door from the on them. sium into the corridor restroom and weight small room.2 Howell testified how- Bruscino and then Howell left the rest- ever, that he did not in communicate to Kell upstairs room and went to the arts and any way it responsibility that was Kell’s to crafts area. Bruscino went to the leather help guard the door. Neither did he know Howell room. went to the art room and anyone whether else told Kell about instructor, arranged for the room art in- assignment. While Howell and Brusci- Honoré, sign mate both him and Bruscino talking, brought no were Norman Martinez p. in on the art room roster. 8:00 When the weight into the small room. Howell then began, m. movement Howell went to his weight moved from small room into cell. He and his cellmate Barron checked restroom, Kell, began talking where he Howell’s clothes for blood and scrubbed who washing had come and was daubers Howell’s shoes in the event Howell had dye and materials in the sink. Two inmates stepped They up in blood. then with shot came in and used the urinals. Then Butch- day heroin and Howell walked down to er, inmate, another walked into the small room. Howell also stated that he not weight room asked to use a set of small see Kell leave the restroom and did see weights, said a few and words Howell again night after Bruscino called Kell, and left. told Kell Howell weight Howell into the small room. stupid anything would be for Bruscino to do now, seen all Inmate Hebb testified that en- because Butcher had of them. Bruscino shortly p. tered Hebb’s cell after the 8:00 m. Howell was about to leave when Bruscino began. movement Hebb stated that while room weight called from small for How- officer, he for a watched corrections Brusci- help ell to come with a bar. When Howell ripped apart no his clothes and flushed in, picked up pound weight walked a them put down toilet. Bruscino on a lying weight on a He saw bench. Martinez cell, pants and T-shirt from Hebb’s and kneeling weight and Norman bench corner, gave wearing. Hebb the shoes he was cooking spoon. in the heroin garbage. Howell then watched Bruscino a Hebb later threw the shoes in raise restroom, adjoining weight upstairs, using 2. The crafts well small area as those room, room, only gymnasi- gymnasium pool in the and restroom to use the down- um, complex. arts crafts and was therefore stairs restroom. working necessary inmates in the and for arts body shortly bought Martinez’ was discovered af- movement. marijuana He some Barron, p. ter the m. movement inmate shooting pool 8:00 who was Gusan, prison poolroom who summoned 'officers gymnasium, next to the and saw Bruscino, help. pants, Khaki a short-sleeved Khaki Kell and Norman. He then fatigue jacket joined shirt and and two towels Sawyer Fay inmates and on the pants, were found in the restroom. The bleachers in the basketball court. After a minutes, short-sleeved shirt and both towels had few Sawyer left and headed for Martinez’ blood on them. The short-sleeved the corridor. Smith said he noticed Negroid shirt had one head hair standing Norman and Martinez in the door- pocket, way left, and there was brown gym Sawyer Caucasian hair when but that fatigue jacket. they were Sawyer not there when returned approximately five minutes later.
Hebb’s corroborated Howell’s conspiracy. version of the Bruscino told Both Bruscino and Kell took the stand plan stage Hebb about his every aspect accident and denied of their role in the delay his conspiracy transfer to McNeil Island so theory and murder. It was their Norman, that he could take care of “unfinished busi- that either Sawyer or Smith had night dropped ness.” The after Bruscino murdered Martinez. weights allegedly feigned a back Fay, key witness, Inmate defense testi- injury, saw Hebb Bruscino in Kell’s cell and gym fied that he complex went to the say heard Bruscino “there had to be some Sawyer p. at the Smith 7:00 m. move- way get in order to him down there.” He *5 ment on ap- October 1978. Norman to, did not hear referring who Bruscino was proached Sawyer them and asked and nor did he know whether responded. get to Smith Martinez into the restroom on stated, however, Hebb pretense that the discussion buying heroin so that Nor- day murder, of the Brusci- man could rob Martinez of the heroin Mar- plan Martinez,
no’s for Kell to lure took tinez Sawyer had. agreed, and Smith place supper, at lunch,, rather than as How- talked to poolroom, Martinez in the and the ell had testified. He stated that he saw three of them entered the restroom. Short- sitting Howell and Bruscino together ly afterwards, at Norman and another inmate lunch, they but that didn’t talk any- about Fay .entered the restroom. then went thing particular. He then gym testified that and sat on the bleachers. Five or dinner, Kell, he saw sitting Bruscino at movement, with ten minutes before the Sawyer Howell and Barron. join joined Hebb did not and Smith them. Each had five them, however, directly heroin, but sat at the packs table they which hid in their behind them. pants, He testified that he asked saying going there was to be “one going Bruscino if he gym to the that hell of a Sawyer shakedown.” remarked evening “No, and hit,” Bruscino said that he “good about a and “yeah, Smith said some business to take care hitting of.” Hebb did him stopped in the throat all testify any may statement Kelt have yelling.” Fay stated Sawyer that both during made (Howell, the conversation. and Smith were nervous and get anxious to however, (Howell) had testified that he did out gym. When movement was not eat night.) dinner that later, called a they passed few minutes Nor- man, standing who was then doorway in the Inmate Bruscino, Smith testified that on poolroom. Norman, to the Smith said to morning murder, per- tried to far, good, “so so haven’t stumbled into Smith, suade who dining worked yet.” Bruscino, room with to lure Martinez into the milk freezer off of the kitchen. Fay Smith agent told F.B.I. Blackketter told Bruscino that probably story idea same when Blackketter interviewed wouldn’t work as Martinez did not know him on November 1977. Also at Smith. Smith also testified that he had Blackketter testified that following Fay’s gone gymnasium to the during p.m. testimony, 7:00 spoke Blackketter Sawyer with shop. both potential witness. worked canvas On as rebuttal Octo- murder, interview, ber Sawyer confessed to the Kell had lunch with Nelson and inmate, he, another stating and Howell it.3 and dinner inmates Smith dinner, Aubrey Mayes.4 and After he went Martinez, Justin Rob- Bruscino also called pick up back unit to to his his leatherwork. brother, to the Mar- ert Martinez’ stand. designs He discussed leather with inmate his brother tinez testified that had called Clark, hobby then shop and went to the at days prior to him about ten his death p. m. arriving 7:00 movement. After “Negroes” said that some were after him shop, hobby he went downstairs According going and were to kill him. room) (adjoining weight get restroom Martinez, “Negroes” Spanish ei- means hot water to make He then coffee. race, ther black someone of the or someone hobby coffee, shop, turned to the made good. is no proceeded dye a leather belt he was that he had Bruscino testified lunch making daughter. his This took about Val- October 30 with inmates Sanchez and thirty twenty to When he minutes. fin- said, he evening, dez. That between 6:30 ished, he back to the went downstairs rest- m., p. and 7:00 he went to the art room dye room to wash out his equip- dauber and painting. stayed work on a He until there hobby ment. He returned shop, Jones, p. 8:00 m. movement. Inmates stayed p. where until he the 8:00 m. move- Ross and support Sawkow testified in ment, when he left for unit with in- Bruscino’s alibi. Aubrey Mayes. mates Aubrey Kell and deaf, partially who is testified went to Kell’s cell and continued work on friendly projects with Martinez because their leather until the unit was Blackketter testimony to interview ard, murder of Robert Martinez.” Mr. are and he like for answer came in and when I on what I will sit down and discuss it. with his with him and Dennis Norman were I said Robert Martinez? “Yes, sir, make orderly an “Richard, [Smith] DIRECT EXAMINATION BY MR. HELL- MAN A At Q couple A Q —What else A I Q orderly right, I would Yes, Not what And [******] (Attorney [*] said, approached Richard, he was able to walk you to me say approached, of swear through that is what know at involvement was— that was not I did it.” He sir. did, sir, in I-East statement testified you “Man that is not [*] like point? stated Playboy was, “Oh, come for Defendant “In court about it.” He you to sit down and did he words, and, [*] Mr. Mr. out to an said. What he said? the grille happened point follows: Sawyer, in Sawyer [Howell].” Sf! shit.” said, say? you penitentiary. you, with responsible the assault today, freely door to the unit. and I would like necessary, I will fill testimony, in connection office and Bruscino): [*] I “Me, Lulion again when he was his and I would And, said, discuss so, John Sawyer’s being So-Low 4. An I sfc I uttered for you “Rich- I Smith spoke upon time, And, said, said, Fay it,” we an in further. Tr. at 1241-1243. when the ter ty. liar.” background conversation ness, in the head. Tr. at 1245. Blackketter Blackketter ment which could would put that he did not in Blackketter bring Honor. it was in connection with the Martinez’ ning dum of will attorney,” and I will stated connection A Q A He Mr. Heilman: No further A Q back “bring testified that Kell had a audiologist, bring testify —last Tr. And, sir, And, No, sir, Oh, Tr. at 1247. me, prison dining at 1245. your in with said what he said. He then the District governmental would believed that “Mr. noise, night? I think he did he that he saw *6 sign So-Low and in Attorney Sawyer pursue Sawyer’s I have not. conference with an area with a qualified the me, “Okay.” give During such say anything arrange another you prepare a Attorney This is another matter papers room is filled to Attorney for the him Bruscino Martinez Playboy, attorney, examination previously might prisoner, Sawyer difficulty probably that we did it.” questions] up hearing impair- case, confession Sawyer further to him high out here now Sawyer referred here now or hit stated, “No, expert and, be memoran- or district Blackket- that eve- told him because level of assault? hearing present capaci- stated if Your is a to it wit- you any you be if Haute, tiary down. Kell’s alibi was corroborated in Terre shut Indiana. The witnesses, sponse stated that Bruscino including inmates Yunk- was removed several disciplinary segregation pending from ers, Moreover, Medico, Aubrey. Clark an investigation outcome of into sus- his in the Kell’s that he was rest- pected involvement in the Mexican Mafia. washing his leather tools was not dis- room sig- that because there concluded was no by government puted witnesses Howell and regarding nificant evidence in- Bruscino’s Butcher, both of whom testified group, volvement in an his unauthorized standing by washing the sink saw out granted appeal be would and he would be leather tools. back to transferred McNeil Island.5 Brusci- no considered statement II. Mexican Mafia to be so trial, exposed pre-trial stipulation secured a from the potentially prejudicial pieces of two infor- that no mention would mation not admitted into evidence. The “any alleged relationship made of between 1, was Bruscino’s first Trial Exhibit also any one more defendants (“Exhib- Hearing denoted Court’s Exhibit ‘prison gangs,’ including, but not limited to ” 1”), a document from the Bureau of Pris- the Mexican Mafia. . . . Response to Administrative entitled ons attorney used this document Remedy Request. The second was a news- however, day on the second in paper concerning article the trial that one cross-examining wit- first carried into room ness, Haute, the records custodian at Terre purse. her about Bruscino’s scheduled transfer Exhibit 1 response is the administrative Terre back Haute to McNeil No Island. appeal to Bruscino’s the Bureau of Pris- was made mention of the reason for Brusci- decision ons’ to transfer him from the no’s transfer to Terre Haute first Penitentiary peniten- McNeil Island place. theAt conclusion of the cross-exam- May The appropri- text of Exhibit 1 is as follows: action of IDC 1978 was ate in relation to the admitted Your offense. Bruscino, Ronnie, 68-148 placement in administrative in- detention for USP, McNeil Island vestigative appropriate reasons was also an Response Remedy Part to Administrative B — light your action in of the circumstances Request report. incident May you On an incident re- received However, investigations by this office have port, Obey Refusing Code an Order of nature, any significant evidence of disclosed any appeared Staff Member. You before the your that would indicate involvement your plea IDC on 5/24/78 and as a result group. unauthorized offense, you placed disci- response adequately responds Your BP-9 plinary segregation. subsequently You were *7 your questions and does not mislead or deceive disciplinary segregation pending removed from only the reader. The on conclusive statements investigations the outcome of institution your you are those BP-9 to which have admit- garding your suspected involvement with the guilt acknowledged ted other or factual. All Mexican Mafia. responses merely are informative in nature and your you placed It is contention that possible indicate the actions of the outcome administrative the detention without benefit of investigations. the The date of of the return being informed of the reasons for detention. In your properly response BP-9 is noted on the your you Captain Bishop BP-10 stated that However, be considered and must correct. you being accused of the a member Mexican response, noted should be that a BP-9 that accusation, you Mafia. As a result of that reply may exceeds deadlines be denied deemed request allegation investigation into the by the inmate in order that the Administrative prove your your feel innocence. You also Remedy process be facilitated. response purposely BP-9 was was untrue and investigation you already Our reveals that have designed to mislead the reader. In or deceive been transferred to Terre Haute or are enroute addition, you your response indicate BP-9 was In to that institution. of the lack of evi- view you beyond delivered to the established time transfer, supporting dence such a it is the deci- response. request Finally, you limits for to be you sion of this office that to the returned population returned to the McNeil Island or Penitentiary possible. McNeil Island soon as returned to an institution in California. Regional Appeal upheld. Your BP-10 ination, jurors it to court prosecutor at- took for the other read.8 the asked Bruscino’s the torney going he was move for if Both Kell and Bruscino moved for a new at- admission of the document. Bruscino’s trial on the basis prejudi- that extraneous Although torney “not at time.” replied this present jury cial materials were independent attorney rec- had no room.9 what he with this document ollection of post-trial hearing At the on the motions cross-examination, probably following trial, jurors for a new several testified that placed the the it on exhibit table. they seen all Exhibit almost morning day, deputy the recess court- them stated heard discussion up jury room took the clerk exhibits the Mexican Mafia. Ms. McLanahan testi- room.6 He could not recall whether taking she fied that couldn’t remember among was In document those exhibits. newspaper purse. article her out of Most of event, way the document found its into jurors seeing the other not recall could jury’s possession during sometime The few article. that heard it discussed shortly trial. We know this because after only remembered it try- in connection with secluded, jury it asked to see Brus- ing figure out names. that it eino’sExhibit and was told The court denied the motions a new for jury in evidence. The returned its verdict presence trial. It held that the of these two hours later.7 extraneous materials in the room could Defendants learned of the second item prejudiced have neither Bruscino Kell. shortly extrinsic' material after the trial Whether the district hap- court abused attorneys when one of the defense denying its discretion in pened defendants’ mo to discuss the case with one of the tions a new on jurors, trial the basis of the Anna McLanahan. Ms. McLanahan attorney during she extraneous material told the considered newspaper depends reporting read a article Dennis whether there is a “reasonable plea charge possibility” Barron’s of con- that this material af spiring to murder Martinez. fected the She stated verdict. United States Dressler, paper she cut article out during argu- Although making guilty plea bargain- 6. we were informed oral Also practice” ing arrangements govern- ment it is “common for exhibits was one of the Howell, key witnesses, to be taken to the after room admission ment’s Eddie Joe prior deliberations, question given but one-year we the wis- Each three was sen- practice, quite dom concurrently of such which we find ir- to run tence with terms are regular. only mishaps Not serving by does it lead such Judge now Gene Brooks. here, easily as that issue but it cause being presented case is import to distort certain exhibits Lopossa. represented Paula Bruscino is prior proper at the instructions conclusion attorney Terre Haute Robert Heilman and the case. Towell, represented by Kell is Alfred Bloom- ington. prosecutor 7. Neither the or the defense attor- Bruscino, Reprinted in United No. neys request were informed at the time of this TH79-11-CR, (S.D.Ind., slip op. at 15 filed court, exchange and the short between 4, 1980). Sept. reporter bailiff. previously 9. Kell and Bruscino had moved entirety 8. The article in its reads as follows: following presenta- dismiss indictment *8 (1) charges conspiracy Indicted of tion of case. The court de- aiding abetting and commit murder and completion motion at trial. nied this of the (2) aiding abetting murder and are Ron- trial, Following for a defendant moved Bruscino, 23, Kell, nie and Charles E. judgment acquittal alleging new and'a Earlier this week two other inmates entered verdicts that the were inconsistent and guilty pleas charges conspiracy to com- evidence, weight of the and that he was mit murder connection with the Martinez by prejudiced joint trial with Bruscino. 34, Barron, death. Dennis and Dennis M. This was under motion taken advisement 38, Norman, reportedly agreed to enter the same as the the court decided at time part pleas bargaining as a deal with the for a new motions trial. attorney’s office. 458 alleged Bruscino’s
Accord, Llewellyn
Stynchcombe,
v.
609 F.2d
involvement with the
194,
1980);
(5th
United States v.
jury’s
195
Cir.
Mafia
Mexican
influenced
verdict
192,
1979);
(9th
Vasquez, 597 F.2d
193
Cir.
as to Bruscino. Such an accusation has
Thomas,
1061,
463 F.2d
v.
sinister connotations that could well taint
(7th
1972), citing United States v.
1065
Cir.
deliberations,
jury’s
notwithstanding
273,
(7th
1950)
Grady,
275
Cir.
185 F.2d
investigations
the recitation that
failed
(whether
“might
operated
the error
have
significant
disclose
evidence of Bruscino’s
injury
defendant”).
the substantial
involvement. When the murdered victim
equivalent
severity
This test
is
to the
were,
and 'several witnesses
or could have
Chapman v.
harmless error rule of
Califor
being Hispanic,12
been
understood
nia,
18,
(1967),
requires
24
which
386 U.S.
impact
stating
of an “official” document
that federal constitutional errors be harm
suspected
being
that Bruscino has been
a
beyond
less
a reasonable doubt. Gibson v.
member of the Mexican Mafia cannot be
Clanon,
851,
(9th
1980),
853
633 F.2d
Cir.
Obviously,
jurors
underestimated.
denied,
1035,
1749,
cert.
450 U.S.
101 S.Ct.
were aware
thought
of the document and
(1981).10
stringent
A
dicial evidently because the saw it A. beginning near the of the trial. See United Thomas, (7th States v. respect With to Exhibit the document 1972). Prisons, Reconstructing Cir. from the events Bureau of we must con- hindsight, jur- that there possibility” clude is “reasonable record indicates that probably possession statement it contained ors came into prejudice Hispanic 10. Some courts held from 12. Three witnesses with surnames presumed testified, Zamarippa, (al- the extraneous material will be un- Martinez and Medico government though less the demonstrates that the ma- there was some that Medico Italian), terial did not harm the defendant. United as well as a witness named Carlos Howard, Moreover, States v. Aubrey. Bruscino and as well as several other witnesses were from the Los Angeles jur- area and we can assume that the qualifies 11. We think this case for that caveat. might Angeles large ors Hispanic population. believe that Los has a (cid:127) A discovered in all the witness testified that when he (cid:127) Martinez, pushed his face “had been way down to the left to where it looked like a staircase.”
459 Stynchcombe, report during (5th the lunch time recess on the 609 F.2d 196 Cir. day report 1980), States, the was citing but that v. second Mattox United 146 among (1892).15 removed from the admitted extent, later 149 To the how jurors the point ever, At the where exhibits. testimony that the showed that the it, yet put government the first saw had suspicion record of official of Bruscino’s Thus, jurors’ witnesses. the on its chief involvement with the Mexican Mafia came credibility govern- perceptions the jurors, to the attention of the the may well have ment’s witnesses case permissible. Vasquez, was United States v. by impermissible the been colored notion 192, 194 (9th 1979). F.2d Cir. See Llew the Mexi- that Bruscino was a member of ellyn 194, 196 Stynchcombe, (5th v. this extra- jury’s can Mafia. The access to 1980); Dressler, Cir. at a crucial time in the neous material such jurors proceed- trial therefore tainted the entire only not were aware that document once ing.13 only Not the material have longer present, before them was no destroyed Bruscino’s version before he had were part aware at least its contents. case, present a chance to his but added the em- judge sinister overtones to The district on relied the fact phasis alleged on statements to the document itself discredited the original the effect that he “to suspicion needed take care of of involvement. true is my Exposure people.” business for paragraph the fourth of Exhibit 1 said allegation “investigations by Mexican Mafia could also have this office have not dis supplied jurors with a any significant nature, more credible closed evidence of murder, only theory motive for the as the your would indicate involvement with provided by any was Brus- group.” Suspicion, unauthorized how thought ever, frequently cino Martinez a “rat.” was proof, survives failure of jurors explanation seeking an for a testimony by There was may brutal murder well readily have more document, of them had most seen believed Bruscino because the sus there was considerable discussion pected Mexican Mafia involvement offered Mexican Mafia. of the testi Some explanation. mony impermissibly invaded the area of the processes reasons, jurors, mental judgment and to that For these extent the district court was correct in re Bruscino must be vacated and his re- case fusing g., Llewellyn to consider it. E. manded a new trial. import apparent material,
13. Its to the from the extraneous not was counter- jury’s request report shortly to see the after acted. beginning its deliberations. The court conclud- 606(b) provides: 15. Fed.R.Evid. p. ed its instructions to the at 12:40 m. 13, 1980, jury began June after which the its Upon inquiry validity into the of a verdict argument, deliberations. oral counsel indictment, may juror testify informed us that the broke im- for lunch any occurring during matter or statement mediately. jury requested The approximately Exhibit 1 at jury’s course of the deliberations or to the m., p. 3:20 one hour after anything upon any jur- effect of his or other turning from lunch. influencing or’s mind or emotions as him to assent to or dissent from the verdict or in- Moreover, opening argument her concerning processes dictment or his mental jury, prosecutor stated: therewith, juror except in connection that a may testify question immediately upon whether extrane- [A]lmost ar- [Bruscino’s] improperly Haute][,] gathered ous information rival [at Terre about brought group attention or himself a whether of inmates.... He dis- any improperly outside cussed with these inmates business that he influence upon any brought juror. prison. to bear Nor to take care of That busi- being killing ness affidavit or evidence of Robert Martinez. statement him concerning Tr. a matter attorneys about which he would 294. The defense waived precluded opening testifying impression be received for statements so the created prosecution, purposes. these highlighted which was then *10 460 778, (5th
B.
544
1977).
F.2d
780
Cir.
See Unit
Corona,
1386,
ed
v.
551 F.2d
1388
proof against
only
The
(5th
1977) (the
Cir.
Bruscino,
information is no less
that he aided and abetted
Bruscino,
prejudicial
conspired
principal
merely
prosecutor,
actor.
because the
imagine
jury
is difficult
judge,
disclosure).
and not the
made the
would have convicted Kell without
first
recently
We
jury
stated that if the
learns
convicting Bruscino. Thus the material
guilty pleas
co-defendant,
prompt
the verdict
which tainted
Bruscino
curative
may prevent
instructions
reversible
require setting
would
aside the verdict
error.
Phillips,
See United States v.
640
Moreover,
against Kell.
we
conclude
87,
(7th
91
1981).
Cir.
In this case the
juror McLanahan’s disobedience of
newspaper article stated that co-defendants
court’s numerous admonitions not
read
Barron and
pled guilty
Norman
to the
any newspaper
regarding
articles
the case
charge
conspiring
to kill Martinez. Such
by clipping such an article
carrying
it
information corroborated Howell’s testimo
jury
purse,
to the
room in her
created a
ny regarding
persons
involved in the
possibility”
affecting
“reasonable
alleged plot.
guilty pleas
of Norman
(as
verdict as to defendant Kell
well
and Barron were
testimony
silent
to the
Bruscino).
g.,
E.
United States v. Dres
credibility of Howell
government’s
and the
sler,
972,
(7th
112 F.2d
978
Cir.
theory:19 if
co-conspirators
two of the
con
question
The article
reported
tinuously
referred to in the
conspir-
Bruscino and Kell were indicted for
case
guilt
had admitted their
plot,
in the
acy
aiding
to commit murder and
and abet-
then a
conspirator,
third
probably
ting.16
Barron,
It then stated that Dennis
guilty as well. Yet Kell
op
never had an
pled
Dennis Norman and Eddie Howell
portunity
explore
“testimony”
the silent
conspiracy charges.17 Any
in-
of Norman
jury.
and Barron before the
He
prejudice
herent
article
must stem
opportunity
had no
to determine if their
from its mention that
three co-defendants
guilt
admissions of
were based on the same
pled guilty.
Kell considered this infor-
facts as
testified to
Howell. And this
prejudicial
mation to be
and had obtained a
inability to cross-examine and to
pretrial
rebut ar
agreement
from the
guments is one of the chief
suppression.18
evils caused
its
jury exposure
to extraneous
evidence.
Kell relies on a line of Fifth Circuit cases
E.g.,
Clanon,
851,854
(9th
Gibson
633 F.2d
which hold that where a co-defendant
1980),
denied,
1035,
Cir.
cert.
pleads guilty before the trial commences
(1981).
S.Ct.
right has been violated. 514, (1972). We therefore 407 530 U.S. IV. argument their Amendment deem Sixth Although the other issues raised have waived.24 been unnecessary defendants are to our decision saywe Neither can defendants due to our resolution of the extraneous prejudice” have such “actual result shown question, evidence we will discuss some of delay ing pre-indictment as to them in the event are raised process to a Fifth Amendment due amount again on remand to the district court. Lovasco, v. 431 violation. United States object Defendants to the cross-examina- 2044, 783, 52 97 S.Ct. L.Ed.2d 752 impeachment Fay, tion and key witness (1977). preju Kell and Bruscino were not support theory Sawyer, of their incarceration, their diced Smith Norman murdered Martinez. incarcerated when the murder occurred. cross-examination, prosecutor Disciplinary segregation, such as defend questioned Fay on his homosexual relation- suffered, prison ants almost routine for ship with an inmate named De- Abcox. segregation rule infractions. Such violated objected fendants to this cross-examination right defendants, provided prop no grounds relevancy. prosecu- The procedures confining er were followed tor questioning Fay asserted that she was segregation. them to Defendants also al Fay’s about Abcox in order to refresh mem- lege that witnesses’ memories were im ory regarding relationship his homosexual paired during delay, and that evidence government’s Smith, with the witness destroyed. have been lost or In at Fay accusing whom of the murder.25 tempting prej to substantiate this claim of object Defendants continued to and moved udice, however, specif defendants cite to no mistrial, stating Fay previ- for a had ic harm that affected them more than ously relationships admitted his homosexual delay affected the case. Sawyer, with both Smith and so that there Finally, there is no constitutional was no memory through need to refresh his requires prosecutors rule which relationship to file examination of his with a third charges immediately establishing after inmate. The court denied the motion for a probable 790-796, mistrial, guilt. cause of Id. at 97 but admonished the to disre- gard any Fay’s S.Ct. 2048-2052. While the relationship evidence of points to compelling explaining no reason purpose Abcox other than for the delay, freshing its there is no Fay’s memory evidence that it de as to his relation- layed indicting solely gain ship defendants ques- “to with Smith. The court then advantage tactical any prejudice over the accused.” Id. tioned the as to denied, pre-indict- 952, 3177, 24. We note also defendants’ 426 U.S. 96 S.Ct. 49 L.Ed.2d segregation pursuant prison (1976). ment ad- 1190 proceedings, segregation ministrative in which imposed prison can be for numerous in- rule Testimony Fay’s relationship as to with Circuit, least, fractions. The Fifth has held Smith was admissible to show bias. United segregation that administrative does not consti- Nuccio, 168, (2d Cir.), v. 373 F.2d 171 purposes triggering tute an arrest for a Sixth denied, cert. 387 U.S. 87 S.Ct. 18 speedy right. Amendment trial (1967). L.Ed.2d 623 Duke, (5th Cir.), cert. testimony regarding credibility rela- of a witness. the homosexual See United Smith, Fay, Sawyer Phillips, tionships between and States reject analogy We might caused them to have defendants’ Abcox opportunity hold, decline the as a No one on the rule of the defendants. law, investigator’s opinion that an as to the responded. credibility inherently prej of a witness is as Fay already Given that had admitted his a prosecuting attorney. udicial as that of Smith, relationship legiti- we see no circumstances, Under certain Blackketter’s questions purpose mate opinion testimony possibly be exclud Objections should therefore have Abcox. ed under Fed.R.Evid. 403. If such a motion been sustained. made, been judge the district court government, relying on Fed.R.Evid. should have considered Blackketter’s offi 608(a),26 impeach ques- attempted Fay by position determining cial whether Agent tioning F.B.I. William Blackketter probative of his testimony value would Fay’s opinion credibility.27 outweighed by substantially danger *13 question The and answer as were follows: prejudice. unfair Q (By Attorney, Assistant U.S. Ms. foregoing the judgments For reasons the Lopossa) opinion What is that re- [with of conviction are reversed and the causes gard or to the character truthfulness and proceedings remanded' for consistent with veracity Fay], of Mr. John Mr. Blackket- opinion.28 this ter? Fay A a capability I believe Mr. has GIBSON, FLOYD R. Senior Circuit being candid, manipu- of less than is a he Judge, dissenting. lator, manages he anything to maneuver respectfully I dissent. I do not think this well-being, around suit and fur- judgment record merits vacation of the attempt nished information to me in an against Bruscino and Kell and remand a a obtain transfer— my opinion new trial. is that the district attorney Tr. at 1076. Bruscino’s immedi- did court not abuse its discretion when it ately objected part and asked that the last possibility ruled that no reasonable exists response unresponsive. be stricken as the two of items extraneous material objection The court sustained the and asked II, ante, discussed in Part affected the disregard part the the last of Black- jury’s prejudice appellants. verdict to the of ketter’s concerning statement a transfer. requiring The first item viewed appeal, argue
On defendants exposure mand because of its is opinion testimony Blackketter’s toas the majority Bruscino’s Trial Exhibit 1. The of Fay character should be points excluded for the out verdict in this prosecuting attorney depended same reasons that largely credibility case of giving goes opinion forbidden from his or her as witnesses. It then on to state that 608(a) part: provides 26. Rule witness in the case in At chief. physi- time he had testified Opinion reputation evidence of charac- cal evidence found the scene of the crime. credibility may ter. of a witness supported by attacked or evidence 28. did Defendants contend that because opinion subject reputation, form of but imposed upon learn not actual sentence limitations; (1) these the evidence refer verdict, Howell until after the rendered its only to character for truthfulness or untruth- right their denied Sixth Amendment fulness. . . . primary to cross-examine witness they will them. We assume that use infor- questioning place during 27. This line of took attempting impeach mation in Howell should the cross-examination of Blackketter after testify at defendant’s retrial. attorney for Bruscino called Blackketter testify regarding Finally, arguments stand in order to evidence he we have examined Kell’s tending verify Fay’s allegedly prejudicial had collected version of as to the comments made night prosecutor during closing argument the events of the October 1978. previously Blackketter been called find these comments to be without merit. easily injury have Exhibit 1 “could biased stantial Trial Unit- defendant[s].” jury against credibility.” Thomas, Bruscino’s Ante ed States v. 463 F.2d However, the document at p. (7th 1972), citing Cir. United States v. Gra- impair credibility. issue not Bruscino’s dy, it enhanced it. The document anything, If expected operate Jurors cannot be in a suspicion
exonerated Bruscino from the
total vacuum. The issue of whether a de-
was a member of the “Mexican
that he
juror
fendant has been denied a fair trial
Mafia.”
prejudice
exposure
to extraneous ma-
agree
majority’s
with the
I also do
particular
terial must turn on the
circum-
finding
Exhibit 1
that Trial
“could also
exposure,
stances
such
viewed in the
supplied
jurors with
have
a more credi-
context of the trial as a whole. “The sever-
* *
ble motive for the murder
Ante at
ity
depends
upon
threat
both the
my opinion, any motive
p. 459.
In
which
publicized
nature
the information so
inferred from the docu-
been
degree
juror exposure
to it.” United
plausible
have been no more
ment would
Thomas,
my
document exhibit table. *14 attorney specifically
Bruscino’s was asked
at that time the Assistant United States
Attorney whether defense wished to attorney
admit the document. Bruscino’s
responded, However, “Not at this time.” attorney failed to remove the
document from the exhibit table. The de- engineered fense this scenario and it should BROWN, Elizabeth and James Brown not now allowed to have a second bite at friend, Brown, his next Michael on be- apple negligence because of its own half of themselves and all others simi- design. larly situated, Plaintiffs-Appellants, requiring second item viewed as exposure jurors mand because of its is a SMITH, individually Robert and as the newspaper brought article which was Acting Administrator of the Indiana De- jurors. Again, courtroom one I do partment of Public Welfare and Eliza- not believe that the district court abused its Samkowski, individually beth and as Di- ruling presence discretion in that the of this County (Indiana) rector of the Marion article in the room did not create a Department Welfare, of Public Defend- possibility appellants reasonable ants-Appellees. prejudiced thereby. No. 79-1459. there
Firstly, p. as discussed ante no jurors evidence that besides Appeals, United States Court of juror brought who the article to the Seventh Circuit. courtroom even saw the materi- extraneous al. The few who remembered some Oct. discussion of the only article remembered it trying figure connection with out hardly likely names. seems that such “might operated
discussion to the sub-