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United States v. Sullivan

United States District Court, E.D. Kentucky, Central Division, Frankfort

October 10, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
JAMES F. SULLIVAN, Defendant.

          OPINION AND ORDER

          KAREN K. CALDWELL, CHIEF JUDGE

         This 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.

         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.

         After a 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.

         I. Motion for new trial

         With 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)).

         In this 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.

         In 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.

         Sullivan 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.

         In his 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 precedent.

         Sullivan 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.

         In 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.

         The interest of justice does not require a new trial under these circumstances. See Fed. R. Crim. P. 33(a).

         II. Motion for ...


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