United States v. Ava Pittman and Paula Wynn, Also Known as Paula M. Lynn

Convicted of violating 26 U.S.C. § 4705 (a) (sale of narcotics without an order form) and 18 U.S.C. § 371 (conspiracy), Pittman and Wynn appeal. We reverse and remand for a new trial because the privacy of the jury room was improperly invaded by an agent of the prosecution.

After the jury in this case had retired to deliberate, it notified the trial judge that it wished to listen again to a tape recording that had been played during the course of the trial. Since the tape could be erased by inept use of the recorder, the court, seeking to prevent a loss of evidence, directed the Government agent who had played the tape during trial to accompany the court clerk into the jury room to play the tape there for the jury. The government agent had been prominently aligned with the Government’s case during the trial. He had testified at length as a material witness about surveillance and chain of custody of the physical evidence', and he had been permitted to sit at the prosecutor’s table throughout the trial.

The trial court’s directions were given without the knowledge or consent of appellants or their counsel. Appellants learned what had occurred only after the jury returned its…