In the
United States Court of Appeals
For the Seventh Circuit
Nos. 01-1110, 01-1111 & 01-1185
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
v.
AHMAD BISHAWI, ADOLPH BRADLEY
and CARLAN D. HODGES,
Defendants-Appellees.
Appeals from the United States District Court
for the Southern District of Illinois.
Nos. 97-40044, 98-30149 & 99-40009-- Richard Mills,/1 Judge.
Argued September 7, 2001--Decided November 14, 2001
Before BAUER, EASTERBROOK and MANION,
Circuit Judges.
BAUER, Circuit Judge. The three
defendants-appellees in this case were
convicted and sentenced following
individual jury trials over which former
District Judge Paul E. Riley presided.
Each of the three appellees appealed
their convictions and/or sentences, and
while these direct appeals were pending,
Judge Riley left the bench. Subsequent to
Judge Riley’s retirement, all three
appellees filed motions for new trials
pursuant to Federal Rule of Criminal
Procedure 33, claiming that Judge Riley
engaged in improper ex parte
communications with the juries before
whom their cases were tried. Judge
Richard Mills adjudicated the new trial
motions, granting all of the appellees
new trials without any evidentiary
hearings or oral argument. The appellees’
cases were consolidated for this appeal.
For the following reasons, we VACATE the
granting of appellees’ motions for new
trials and REMAND for further proceedings.
I. Background
On December 7, 1999, the Chief Judge of
the Southern District of Illinois, J.
Phil Gilbert, sent letters to the
defendants-appellees, by way of their
separate counsel, informing them that
Judge Riley had ex parte contact with
deliberating jurors in each of their
cases. The letters did not specify or
otherwise identify the nature of the
referenced ex parte communications. Judge
Gilbert sent these notifications after
receiving information regarding ex parte
contacts between Judge Riley and certain
deliberating juries discovered during the
process of reassigning Judge Riley’s
cases. Lawyers for the appellees as well
as government counsel were given files
containing the portions of such informa-
tion relevant to each of their respective
cases on January 11, 2000. On the bases
of this information, which is summarized
below, Judge Mills granted the appellees
new trials on August 28, 2000.
A) Ahmad Bishawi
Specific to the Bishawi case, the
information file provided by Judge
Gilbert included a note from the jury
asking to view a particular exhibit, to
which Judge Riley replied in longhand
that the jury had all exhibits introduced
at trial in their possession. Also
included was a typewritten note from the
court reporter, Brenda Orsborn, and a
memorandum to file from Judge Gilbert,
both of which indicated that no jury
notes were ever made of record with
counsel. Lastly, the file contained
summaries of interviews conducted by
Judge Gilbert with the court security
officer, Glenn Wright, and one of Judge
Riley’s law clerks, David Agay. According
to these interview summaries, Mr. Wright
and Mr. Agay each recalled that Judge
Riley communicated with deliberating
juries ex parte, but neither could
specify when such communications occurred
or what was said.
B) Adolph Bradley
Among the information provided by Judge
Gilbert to parties interested in the
Bradley case was a jury note, which
sought clarifications of particular jury
instructions. Typewritten at the bottom
of that note was: "Three attached
instructions given to the jurors,
12/17/98." Judge Gilbert’s file
memorandum indicated that after this note
was made of record with the attorneys,
Judge Riley proceeded to the jury room to
speak with the jurors. Beyond the
transcript of this conversation, the only
other noteworthy information provided in
Bradley were summaries of interviews with
Mr. Wright and Mr. Agay that mirrored
those contained in the Bishawi file.
C) Carlan D. Hodges
In Hodges, the file provided by Judge
Gilbert included two pages of notes sent
by the jury to Judge Riley during
deliberations as well as Judge Riley’s
answers to the same. The record reveals
that Judge Riley informed and consulted
with all interested parties before having
his written responses to these notes
delivered to the jury. The Hodges file
also included the same summaries of
interviews with Mr. Wright and Mr. Agay
provided in the Bishawi and Bradley
cases.
II. Discussion
We review the grant of a motion for a
new trial under the abuse of discretion
standard. United States v. Boyd, 55 F.3d
239, 242 (7th Cir. 1995). However, as the
appellant points out, this Court has
recognized that application of the defer
ential abuse of discretion standard to a
successor judge who granted a new trial
based upon review of a cold record may
not be warranted. Bankcard America, Inc.
v. Universal Bankcard Sys., Inc., 203
F.3d 477, 481 (7th Cir. 2000). Indeed,
the question of whether a lesser standard
of review is proper here was extensively
briefed by the parties. Because we find
that in these circumstances it was an
abuse of discretion to grant defendants-
appellees’ motions for new trials without
evidentiary hearings or any oral
argument, we need not engage in a
hypothetical discussion regarding the
applicability of a lesser standard of
review to the decisions of the successor
judge who reviewed the records in
appellees’ cases.
"[T]he mere occurrence of an ex parte
conversation between a trial judge and a
juror does not constitute a deprivation
of any constitutional right. The defense
has no constitutional right to be present
at every interaction between a judge and
a juror, nor is there a constitutional
right to have a court reporter transcribe
every such communication." Rushen v.
Spain, 464 U.S. 114, 119 (1983) (Stevens,
J., concurring in judgment); see also
Verdin v. O’Leary, 972 F.2d 1467, 1481-82
(7th Cir. 1992) (explaining that the con
stitutional right to presence is not
implicated per se by a judge’s ex parte
communication with a deliberating jury).
Rather, the constitutional right to
presence, which derives from the Sixth
Amendment’s Confrontation Clause and the
Due Process Clause of the Fourteenth
Amendment, exists where there is a
reasonably substantial relation to the
fullness of opportunity to defend against
the charge and to the extent that a fair
and just hearing would be thwarted by the
defendant’s absence. United States v.
Gagnon, 470 U.S. 522, 526 (1985) (citing
Snyder v. Massachusetts, 291 U.S. 97,
105-06, 108 (1934)). The broader,
procedural right to be present afforded
by Federal Rule of Criminal Procedure 43
is likewise not without limits,
alleviating the presence requirement when
the proceeding involves only a conference
or hearing upon a question of law. Fed.
R. Crim. P. 43(c)(3); see also United
States v. Johnson, 859 F.2d 1289, 1294
(7th Cir. 1988) ("[A] defendant’s
presence is not required ’[a]t a
conference or argument upon a question of
law.’") (citing Rule 43(c)(3)) (emphasis
in original). Moreover, a defendant’s
absence from any trial proceeding should
be considered in light of the entire
record. United States v. Moore, 936 F.2d
1508, 1523 (7th Cir. 1991) (citations
omitted).
The defendant bears the burden of
proving the occurrence of ex parte
contact with the jury. Owen v. Duckworth,
727 F.2d 643, 646 (7th Cir. 1984). Once
established, determination of whether the
ex parte contact violates either the
defendant’s constitutional or procedural
right to presence is subject to a
harmless error analysis. See, e.g.,
Rushen, 464 U.S. at 118-19; Rogers v.
United States, 422 U.S. 35, 40 (1975). An
error is harmless, and therefore does not
mandate reversal and a new trial, unless
it affects "substantial rights." Fed. R.
Crim. P. 52(a); United States v.
Patterson, 23 F.3d 1239, 1255 (7th Cir.
1994). Substantial rights are those that
affect the outcome of the case.
Patterson, 23 F.3d at 1255. Thus, a right
to presence violation entitles the
defendant to a new trial only if the ex
parte communication at issue likely
affected the jury’s verdict. United
States v. Pressley, 100 F.3d 57, 60 (7th
Cir. 1996).
"In a criminal case, any private
communication, contact, or tampering
directly or indirectly, with a juror
during a trial about the matter pending
before the jury is, for obvious reasons,
deemed presumptively prejudicial, if not
made in pursuance of known rules of the
court and the instructions and directions
of the court made during the trial, with
full knowledge of the parties." Remmer v.
United States, 347 U.S. 227, 229 (1954)
(emphasis added). The presumption is, of
course, not conclusive. Id. The
prejudicial effect of an ex parte contact
is without question rebuttable by way of
showing harmless error. Id.; Rushen, 464
U.S. at 118-19; Rogers, 422 U.S. at 40.
Further, a post-trial evidentiary hearing
may be proper to determine whether any
such contact was merely harmless or in
fact prejudicial to the defendant.
Remmer, 347 U.S. at 229-30; Rushen, 464
U.S. at 119-20.
Where, as here, the record is void of
any specific information regarding the
occurrence and nature of, as well as the
circumstances surrounding the ex parte
contacts, the impact thereof upon the
jurors, and whether or not the juries
were prejudiced, a hearing in which all
interested parties are permitted to
participate is not only proper but
necessary. Remmer, 347 U.S. at 229-30;
Rushen, 464 U.S. at 119-20. The holding
of an evidentiary hearing in this case
would have afforded the parties an
opportunity to interview jurors and
determine "whether extraneous prejudicial
information was improperly brought to the
jury’s attention or whether any outside
influence was improperly brought to bear
upon any juror." Fed. R. Evid. 606. Once
these factual determinations were made,
the trial court would have been equipped
to adequately assess the impact of any ex
parte contacts on the juries before whom
appellees’ cases were tried and decide
whether or not such communications were
harmless error. Remmer, 347 U.S. at 229-
30; Rushen, 464 U.S. at 119-20.
A court faced with a post-verdict
question of jury prejudice is obligated
to ascertain and examine these basic
facts. United States v. Smith, 26 F.3d
739, 759 (7th Cir. 1994) (citing Owen v.
Duckworth, 727 F.2d at 647). To hold
otherwise would undermine the integrity
of the jury process. See United States v.
Berry, 64 F.3d 305, 307 (7th Cir. 1995)
("A jury verdict is not lightly to be
disturbed through a grant of a motion for
a new trial."); Remmer, 347 U.S. at 229-
30 ("The integrity of jury proceedings
must not be jeopardized by unauthorized
invasions."). The trial court abused its
discretion in failing to hold such a
hearing. Accordingly, we vacate the
judgments of the district court granting
defendants-appellees’ new trial motions
and remand with directions to hold an
evidentiary hearing to determine what ex
parte contact occurred and whether such
contact was prejudicial to the appellees.
III. Conclusion
The judgments are VACATED and the cases
REMANDED for further proceedings
consistent with this opinion.
FOOTNOTE
/1 Sitting by designation pursuant to an Order of
Chief Judge Posner.