United States District Court, E.D. Kentucky, Central Division, Frankfort
OPINION AND ORDER
K. CALDWELL, CHIEF JUDGE
matter is before the Court on a motion for a new trial (DE
81) and a motion for judgment of acquittal (DE 80) filed by
defendant James F. Sullivan.
was charged with three counts of illegally giving cash
payments to Timothy Longmeyer, who was a Deputy Attorney
General of Kentucky and Secretary of the Kentucky Personnel
Cabinet. The indictment charged that Sullivan gave Longmeyer
the money in order to secure government contracts for
entities and individuals who Sullivan represented as a
consultant, in violation of 18 U.S.C. § 666(a)(2).
Sullivan was also charged with one count of illegally
conspiring with Longmeyer to make such payments.
jury trial, Sullivan was convicted of one count (Count 2) of
illegally giving Longmeyer money to secure a government
contract; he was acquitted on the remaining three counts.
Motion for new trial
his motion for a new trial, Sullivan argues that he is
entitled to a new trial because transcripts of certain
recorded conversations between him and Longmeyer were in the
jury deliberation room while the jury was deliberating even
though the transcripts were not admitted into evidence. This
does not require a new trial. “As long as the trial
court instructs the jury that the tapes and not the
transcripts are evidence it is not error to allow a jury to
have transcripts in deliberations, even if the transcripts
were not admitted into evidence.” United States v.
Scarborough, 43 F.3d 1021, 1024-25 (6th Cir. 1994)
(citing United States v. Puerta Restrepo, 814 F.2d
1236, 1242 (7th Cir.1987)).
case, the Court instructed the jury that the tapes themselves
were evidence, but the transcripts were not. It further
instructed the jury that if they noticed any difference
between what they heard on the tapes and what they read in
the transcripts, they should rely on what they heard, not
what they read. Finally, the Court instructed the jury to
ignore the transcripts as to any parts of the recording they
could not hear or understand. (DE 78, Jury Instructions, No.
23.) After learning the jurors possessed the transcripts
during deliberations, the Court retrieved the transcripts
from the jurors and reiterated these instructions.
United States v. Pennell, 737 F.2d 521 (6th
Cir.1984), the Sixth Circuit held that the district court did
not err in denying the defendant's motion for a mistrial
after an anonymous person contacted jurors by phone and urged
them to convict. The court held that the defendant had not
met his burden of proving “actual prejudice.”
Id. at 533, 534. Later, the Sixth Circuit applied
that same standard in determining whether a new trial was
required when a jury used a dictionary to define terms in the
jury instructions. United States v. Griffith, 756
F.2d 1244, 1252 (6th Cir. 1985). The “actual
prejudice” standard is also appropriate here, where the
defendant moves for a new trial because the jurors had access
to unadmitted transcripts during deliberations.
Scarborough, 43 F.3d at 1025.
has not demonstrated actual prejudice. The recordings
themselves were admitted into evidence and Sullivan does not
argue that the transcripts were inaccurate. Further, as
discussed, the Court instructed the jurors that the
transcripts were not evidence and that they should rely on
the recordings themselves if they found any differences
between the transcripts and recordings. “Use of
transcripts not in evidence is permissible where the tape is
in evidence, the defendant has not questioned the accuracy of
the transcript, and the defendant has shown no
prejudice.” Scarborough, 43 F.3d at 1025.
reply brief, Sullivan concedes that Scarborough
required a showing of “actual prejudice” where
the jurors had access to transcripts not in evidence while
deliberating. Nevertheless, Sullivan argues the Court should
not employ that standard because it is “virtually
impossible” to meet. Regardless of the difficulty of
meeting this burden, the Court must follow Sixth Circuit
also argues that the Court should not require a showing of
“actual prejudice” because, in this case, the
jurors had difficulty reaching a verdict. After deliberating
several hours, the jury returned a note requesting more
details on Counts 2 and 3. Then, at the end of the day, the
jurors returned another note stating that they could not
reach a unanimous decision, which prompted the Court to
deliver an Allen charge. Sullivan cites no case law
indicating that a showing of “actual prejudice”
should not be employed in these circumstances.
determining that Sullivan was not prejudiced by the
jurors' access to the transcripts during deliberations,
the Court has considered the jury's difficulty in
reaching a verdict in this case. Nevertheless, the Court
cannot find prejudice sufficient to warrant a new trial. The
jury heard the actual recordings, which were in evidence.
There is no argument that the transcripts deviated from the
actual recordings. Further, the jurors were instructed to
rely on the recordings, not the transcripts.
interest of justice does not require a new trial under these
circumstances. See Fed. R. Crim. P. 33(a).
Motion for ...