United States v. William A. Widgery, Sr.

EASTERBROOK, and ques- Before CUDAHY they juror had observed PELL, Judges, trial; Senior Circuit and throughout Circuit none detected tion Judge. any signs his of alcohol on breath odor bailiff watched

of intoxication. EASTERBROOK, drinking nor Judge. neither at meals Circuit and saw drinking. The court found signs of Widgery stands convicted William contrary assertion false. foreman’s His securities fraud. fraud and mail inquiry found that the district also weeks. The more than two lasted own was the foreman’s about deliberations parts day for one full deliberated doing. did not discuss the She During deliberations the two others. jurors. The court characterized the other judge two jury sent the foreman of the “hypothetical,” a “what if ...” the note as juror of intoxi- One accused another notes. problem of deadlock that inquiry about cation; judge “what we other asked the developed. never reach a verdict or if we couldn't were to do contests both conclu Widgery to deliberate.” long supposed how we says should He judge told sions. also note the response In to the first 28 U.S.C. disqualified himself under question to watch the the bailiff 455(a) im because both under second he had § closely; § reasonably questioned “keep partiality foreman to tell the the bailiff 455(b)(1) out, things under because had As turned none this oc § knowledge disputed evidentiary facts. curred. The was never deadlocked. Widgery disquali weeks, Because never moved for The trial lasted 2lh and there were a court, argument fication in the district against total 18 counts two defendants. 455(a) Disqualification under fails. for § There were more than 150 exhibits. Delib impropriety the appearance pro runs began April erations at 1:05 spectively only; even a successful motion p.m., jury separated and the p.m. at 9:00 taken not vitiate acts before mo went back to work at 10:00a.m. tion Murphy, was filed. United States v. day. the next The foreman sent the note (7th Cir.1985). 1539-41 Dis day. to the court sometime that At 5:50 qualification 455(b) for under an actual p.m. brought § court require impropriety indeed would new asked whether it had reached verdict. hearing, 455(b) no there is basis for a judge § The foreman said no. The then Knowledge disputed motion here. of facts jurors thought asked they whether the requires disqualification only if the knowl given could reach verdict if additional edge extrajudicial has an source. time; United all On learning nodded. that Coven, 162, (2d States v. 662 F.2d jury deadlocked, judge was not Cir.1981), denied, 916, cert. allowed them to continue their work with (1982). S.Ct. 72 L.Ed.2d 176 Were it out p.m. further instructions. At 7:40 otherwise, post-trial no could rule verdicts, jury returned convicting four claiming error in motions the conduct of Widgery on acquitting two counts and judge’s knowledge the trial. The other defendant jury on two counts. The exclusively facts here comes from the trial. deliberating continued until 10:50 that eve Disqualification unnecessary, and we ning. morning The next 11:00 the turn to the merits. Widgery convicted remaining likely counts. It does not seem response to the foreman’s foreman’s note and the court’s answer had charge juror’s another intoxication was any influence on this. appropriate, though even should have consulted with both sides before act Widgery bypass asks us to consider ing. put The bailiffs observations lie ation of error and harmless reverse his charge. There was no need for “supervi conviction as an exercise of our time; inquiry at hurling additional sory power.” power We do have the not might disrupted of accusations the Widgery “Supervisory attributes to us. everyone’s deliberations to detriment. The power” meanings has two that must be subsequent inquiry confirmed the bailiff’s kept separate. Supervisory power some observations. error times authority means the to announce new showing the note to counsel was harmless promote rules the administration of any meaning under of that term. justice, though even neither constitution requires to the foreman’s nor Long note cre- statute such rules. be Congress ates more began regulate substantial difficulties. The fore criminal statute, by Supreme did not know at time whether the trials or the Court procedure was deadlocked. He did not know found a code of criminal in the great generalities doing. rights, the note was the foreman’s the bill And he should have known that adopting govern pro there was courts were rules to ceedings risk “Supervisory pow that the foreman would have inter- before them. preted just keep very prac his answer as direction to er” is a new old title for deliberating anticipa- power come what tice. This common law is the “su —an “dynamite” tory charge pervisory power” Supreme without the re- that the Court quired remainder that each must invoked in McNabb United (1943), reach his give own conclusion and not in U.S. 87 L.Ed. 819 Hale, just produce a verdict. United States v. 78 L.Ed.2d 267 (1975), and similar U.S. 45 L.Ed.2d

S.Ct. in Rushen (1983). United courts cases, invoked The lower and that we Silvern, thought contempora of a 484 F.2d 879 Cir. that the absence States banc), harmless error in 1973) (en formulate instructions to record made a neous Supreme juries. impossible; See also disa given quiry to deadlocked Court be Torres, States v. prejudicial 878- greed, holding that the effect (7th Cir.1984). to discuss with failure counsel “can from and to communications possible meaning of The other post-trial normally determined power” Widgery is the one “supervisory Id. hearing.” S.Ct. at 456. See judg power to reverse presses on us —a Phillips, Smith v. also requiring a demonstration ments without The com question error in affected out juror’s involved a munication character, it is of this come. Reversals facts; knowledge evidentiary there is said, question. If reinforce the rule will differently juror’s hypo reason to treat automatic, reversal judge knows that inquiry deadlocks. thetical about rule; if he follow the knows will showing prejudice, depends on a question reversal whether the There remains the likely to honor the rule. be less inquiry he will should conducted harmless error view, once took this be Appellate courts statutory standard of effect under the technicali coming “impregnable citadels of rights” or under the elevated “substantial Roger Trayner, The Riddle Harm California, Chapman v. ty.” 386 standard that (or (1970). Congress Error 14 (1967), enacted less L.Ed.2d 87 705 U.S. S.Ct. approved) harmless error rules to reverse deprivations requires for of most constitu 52(a) approach. court, and 28 Fed.R.Crim.P. rights. This like several oth tional disregard Chapman require 2111 courts to ers, U.S.C. used the has occasion § affect errors that do not “substantial problem like the one we standard for supervisory power part is rights.” The Each time it has assumed with have here. law, a com E.g., and court has deciding appropriate. the common it is out disregard a rule to or stat v. United power mon law 376 F.2d 719 Ware authority of Con United States v. Silver Cir.1967). that .was within (7th ute Cf. Cir.1984) stein, supervisory power to The gress enact. 1348 732 F.2d interstices, not to permits specifying a court to fill (finding error harmless without harmlessness). of the “disregard the considered limitations None of standard United charged enforcing.” however, held, is with a prob law it cases has our 727, 737, Payner, v. 100 States the constitu of this character violates lem (1980). 52(a) It 65 L.Ed.2d 2111 instruct S.Ct. Both Rule and tion. § court to does not authorize a error to therefore standard of harmless courts what use, harmless error rules. oth disregard the commands unless the constitution Hasting, v. United States U.S. it not. Here erwise. 1974, 1978-79,

505-07, 103 76 L.Ed.2d S.Ct. jurors’ A to notes to failure show (1983). them to comment before counsel and allow 43(a), Fed.R.Crim.P. responding violates difficult to tell it so Sometimes Smith, Krische v. injured has the constitution. of a rule whether the violation (2d Cir.1981). Per- defendant, 178-79 likely that the viola and so of counsel from the haps the exclusion did, cannot be harm violation tion answering jury’s note could right process deprivations of less error. Some deprivation of as a counsel category. Geders v. be characterized are in this to counsel of the sixth incident or violation States, for that U.S. public it right to but (1976). right amendment’s to see 47 L.Ed.2d why to argument take show the would jurors and comment on from the note requires this incident to amendment 464 sixth not. public. argument right from contemporaneously only to and answers at right counsel circular—there is a to coun- some later time. The defendant has the reading answering sel at the of the right under Rule 43 to know the contents requires note Rule 43 because protest judge’s answer, of the note and reading answering be done dispute if timing is about the fashion, if adversarial the court ne- protest it is not one about fundamental glects them, read there is no rights. constitutional majority found proceeding which appear. counsel could unnecessary to-consider Justice Stevens’s (see conclusion 464 U.S. at 117-18 n. The court’s error does not violate 2). recently S.Ct. at 455 n. More the Court clause, process the due either. The consti held that a with a in a require tution does not faultless adherence chambers from which all defendants and part to rules that are not themselves some counsel were excluded did not violate constitution. Unless a command Gag constitution. United States v. found the constitution—and Rule 43 is a non, supra, 105 S.Ct. at 1484-85. The development more recent than that —the right (which present constitutional to be process requires due clause “only most right counsel) with carries it the is de procedural safeguards.” basic Patterson signed implement to confront York, 197, 210, v. New S.Ct. adverse Gagnon witnesses. concluded 53 L.Ed.2d judges may conduct at least some non- question therefore is what constitution proceedings testimonial outside the defend required would have were there no Rule 43. presence. quoted ap ant’s The Court Only fundamentally light unfair in (105 proval 1484) gist of Justice proceedings open- the entire violates the Stevens’s conclusion in Rushen. aspect of protec ended the constitutional Donnelly tion. DeChristoforo, Rushen, In light of Gagnon and 637, 1868, (1974). 94 S.Ct. delay inquiring we ask whether the in into Widgery’s generally trial was conducted the foreman’s note and the court’s answer according rules, single glitch to the and a Widgery’s rights. affected substantial The in lengthy not trial does create constitu judge answer is no. The district found that It may inquiry post tional error. that jury deadlocked, the finding was never poned accurate, likely is less to be but that supported by jurors’ open the reactions is not the sort defect that undermines jury court. The therefore would not have reliability of the entire trial. Smith v. interpreted response the court’s to note Phillips, Spain, Rushen v. and United despite as an to keep going instruction — U.S.-, Gagnon, States v. 105 S.Ct. deadlock, ordering any juror or as aban to 1482, (1985), L.Ed.2d all hold that position conscientiously don a held. subsequent inquiries constitutionally are jurors took time their and came to verdicts sufficient to assess events that occurred in they ready. when We cannot even be the absence or of defendant his counsel or sure that the the jury members of other impartiality jury. that affected the of the than the foreman learned of the note and —Real, U.S.-, Cf. Ponte v. 105 S.Ct. Although answer. the foreman testified 2192, (1985) (a subsequent L.Ed.2d that she discussed court’s answer with calling statement of reasons for not a wit jurors, other district evident process ness is sufficient under the due ly not did this. Five within believe times clause). opinion, his short refers testimony “incredible,”

thinkWe the correct characterization of foreman’s “erro offer- neous,” is the one “lackpng] interest or credibility.” the defendant’s Rushen, supra, by reject testimony Stevens not Justice did this bit ed 126-27, many words, at 460 S.Ct. so U.S. at conclusion that the (concurring opinion): never deadlocked and that whether defend- was ant entitled see and comment on notes the foreman’s own act reflect rights. At 331. substantial As a ery’s testimony. of her general disbelief conclusion, majority points was, basis for its incident, though it did not regrettable finding that the court’s to the district rights. Widgery’s substantial affect conclusion was never deadlocked—a which Affirmed. jurors’ allegedly demonstrated record, open court. how- reaction dissenting CUDAHY, Judge, Circuit majority’s description ever, contrary to the part. support not such proceedings,1 of the accept majority’s view certainly I can Accordingly, question the ma- finding. see defendant unlikely jority’s that was conclusion comment on the jurors and note from the re- foreperson’s note and court’s may in some cases be response any influence on the delibera- sponse had majority, at 329. The how- harmless. See tions. See at 328. ever, weight princi- gives inadequate know, majority spec as the We do case, any private a criminal ple “[i]n ulates, foreperson did not discuss that the communication, contact, tampering or di- jurors. the other the court’s with during rectly indirectly, with Rather, suggests the record oth At pending matter before trial about finding no The district court made erwise. preju- presumptively ... deemed jury is foreperson on this matter. The testified dicial, pursuance of made in known if not jury did discuss the second note and the instructions of the court rules answer, Transcript, Hear court’s and the during made of the court directions 1984 at no ing of December parties.” Rem- knowledge of the full with contrary. In testified other States, 347 U.S. mer v. United fact, the other questioned (1954). L.Ed. 654 We respect to this matter. But this issue post-con- for the moment assume aside, single juror may be on a influence adequate generally are proceedings viction enough reversal and remand. to necessitate improper commu- the effect of to determine Electric, 207, 215 Bryant Kiser v. which matter to nications with —a (6th Cir.1982), Company citing Aluminum event, the But in turn later. shall Loveday, 273 F.2d America v. of (6th Cir.1959) (per to establish the burden defendant’s denied, curiam), cert. “ contact; shown, ‘the bur- improper once 1236, 4 L.Ed.2d 1146 heavily upon the den rests Government also Rushen that such contact with establish ... 462 n. 130 n. ” the defendant.’ harmless to juror was (Stevens, J., concurring) 78 L.Ed.2d 267 643, (7th Duckworth, 646 727 F.2d v. Owen a influenced (jury “as whole” deliberations curiam), Cir.1984) v. (per quoting Remmer influenced). improperly if one 229, at 74 S.Ct. at 347 U.S. say for certain impossible to While it govern- the am unable to see how 451. I effect, judge’s response the any, if what burden here. ment met its I jurors, believe that on all the other had may prejudicially majority that the court’s the well concludes foreperson’s at the deliber note and influenced least foreperson’s the second answer to fact, foreperson made clear In the Widgery his counsel ations. inform or failure to its to deadlock judge’s response her Widg- that the affect taking action did not before complications "[tjhe in- majority, to deliberate?” The by in which As characterized the 1. question make it difficult to con- jurors thought they in this could herent the asked whether ... time; jury deadlocked. The given the was not all clude that questionable aspect additional' reach a verdict if majority's reasoning the majority, how- nodded.” At 328. jury quite by ever, the fact is further reflected promptly true nature of the court’s the obscures partial a many came back with afterward inquiry. in fact asked "how The court verdict, convicting Widgery only two of six- a you to arrive at you will be able feel that acquitting other defendant as teen counts and any to one or more defendants verdict as to two counts. given time if additional or more counts (or left her “single bewildered and was a factor in rence” glitch”) in the course decision-making.2 her I Because cannot aof United States v. trial. criminal Cf. parte ex say contact here was Gagnon, 105 S.Ct. at major 1484-85.3 The (even rigorous harmless under the less acknowledges ity defendant has a 52(a) by majori- Rule standard invoked right under Rule 43 to know the contents ty), compelled I am to conclude juror’s protest judge’s of a note and to government to failed meet burden im- a right answer. At think such v. Remmer United States. posed by implicates protections the minimum to by also majority’s am troubled con- which defendant is entitled under the trial clusion that failure to right Due Clause: Process to notice jurors’ to that, 2. The foreperson receipt upon testified of there was a risk that the foreman would have interpreted keep the court’s answer: his answer a as direction Indeed, deliberating may____’’ come what Id. I didn’t know what to do after that. I mean district court observed "that the was any send didn’t more notes that I recall that foreperson] eleven to one for conviction. [The just we were deadlocked. I mean we decided being Transcript, Hearing the one." [sic] of trying. keep he had said had to we December 1984 at 131. Transcript, Hearing of December at 27. trial, 3. The majority During 4. long concedes that deadlock the course of a 17-month judge's response pose prosecution and the trial action a in introduced certain to im- evidence problem. peach judge testimony difficult At 328. a "The defense witness. The did not juror’s prompted at the know locked____ time whether the was dead- recollection of the murder juror he And should known that of a childhood friend. The twice ex- Phillips, did not con Smith v. Rushen 217 n. deed, 455 U.S. defendant juror harbored 946 n. that whatever bias tend time, against the result of the conversa the same the Federal him was At such, judge. As severely the trial limit a tions with Rules of Evidence defend- very is not different from one where of inquiry case ant’s into the effect outside con- juror’s See Fed.R. of has learned jury’s defense counsel on the deliberations. tact trial, 606(b).5 help in the course of the potential concluding bias I cannot Evid. here, denied motion for judge where, a preclud- the trial has as a defendant hearing in of instead offering, timing the middle due to the ed from Rushen v. post-trial hearing. hearing, significant testimony, has held and relevant Spain, 126 n. S.Ct. at 460 frequently meaningless.6 464 U.S. at such J., concurring). (Stevens, post-tri n. however, essentially majority, Rushen hearing in established that al important brushes aside the ramifications juror’s impartial impair the did not incident by clinging the trial error to this ity. juror repeatedly testified finding district court’s Spain, effect. at 120- deadlocked, finding upon never based The Court further at 457. subsidiary support for facts which find parte communica the ex emphasized that therefore, respectfully in the record.7 I dis- did not involve “innocuous” tion was sent. any applica law controversy or “any fact 121, 104 S.Ct. at Id. the case.” ble to circumstances

457. The however, here, of a more serious are

error ef nature, prejudicial and the elusive that can be not of sort error is

fect of the hear post-trial aat

adequately determined

ing. as us fre- such the one before

Cases upon testimony

quently turn judge. approached who

juror has processes concerning his mental pressed that she ment her concern the trial therewith, juror may except might composure if the murder of her connection lose her Quite explored testify question detail. col- whether extraneous more friend question improperly laterally prejudicial the evidence also raised a information was against Party any imputed brought jury's the Black Panther attention or whether bias through brought against Spain improperly defendant and therefore outside influence was Party. membership may upon any juror. in the Black Panther Nor his affidavit bear (The testimony the murderer of revealed that or evidence of statement him concern- Panther.) juror’s On friend was a Black pre- ing a matter about which would juror whether occasion the asked testifying each be received for these cluded from affected, disposition of the case would her purposes. that it would not. and she assured him 606(b). Fed.R.Evid. conversation, made no record either testify defendants or their may did not inform the juror and he as a While not witness sitting counsel about them. Rushen as a the trial of the case in which he 115-16, 606(a), S.Ct. at 454. juror, not oth Fed.R.Evid. the Rules do prohibit inquiry of a before a ver erwise Fed.R.Evid, 606(b). 606(b) as follows: dict is reached. See 5. Rule reads validity Inquiry of verdict or indictment. into foreperson, juror, other than testified 7. No validity —Upon inquiry a ver- into jury’s deliberations. While indictment, as deadlocked testify dict or she did not know wheth- occurring testified that during any matter or statement court, any notes written to the er there were jury’s or to the deliberations the course deadlock, alleged ju- asked about the upon anything other effect testimony on influencing was no other this therefore there him to or emotions ror’s mind subject. indict- from the verdict or assent or dissent show notes counsel and allow an opportunity to be heard in a mean responding them to comment before ingful a meaningful manner at time. not rise to the level of constitutional Manzo, Armstrong See v. 380 U.S. See at 329. A violation. failure 85 S.Ct. jurors’ notes to show to counsel and allow (1965). majority, however, inexplica responding them comment before unde- bly passes on without so much as a word 43(a). niably violates Fed.R.Crim.P. In ad- procedural on this most basic of safe dition, such an at error least in some guards. Quite contrary, it has con instances violate constitution. at Cf. dispute cluded “if is about Supreme 329. The Court has recognized timing protest it is not one about process right that a defendant has a due rights.” fundamental constitutional At present contemporaneously judge-ju- (emphasis added). required ror communications when en- “to noted, I agree As can preju that “the ‘reasonably sure fundamental fairness dicial a judge’s effect of failure to discuss opportunity substantial ... to defend ” with counsel communications from and to against charge.’ United States v. normally by — ‘can be determined Gagnon, -, ” post-trial hearing.’ At 329. Yet “nor (1985) curiam), (per L.Ed.2d 486 mally” Payne See “always.” citing Snyder Massachusetts, Wood, (7th Cir.1985). L.Ed. De- Supreme The circumstances led the which the time participation fense Rushen v. Court informs the apparent deadlock (1983) (per L.Ed.2d 267 is a matter of critical moment to a defend- curiam), prejudicial to conclude that ant. Chaney, United States v. parte ex effect unrecorded communi Cir.1977) (misunder- F.2d place cations which took there could be stood in response possibly instruction adequately by post-trial remedied hung “imped[e] a would defendant’s parte In ex are absent here. impartial jury and to process”). juror’s due communication dealt jury’s notification to bias in a specific the court of a deadlock in its deliberations matter unrelated to the issues that hardly qualifies a “minor upon occur- called decide.4 In

Case Details

Case Name: United States v. William A. Widgery, Sr.

Court Name: Court of Appeals for the Seventh Circuit

Date Published: Nov 25, 1985

Citation: 778 F.2d 325

Docket Number: 85-1068

Court Abbreviation: 7th Cir.