United States v. Jean D. Littlefield, United States of America v. George G. Nicoladze, United States of America v. Fred F. Solomon, Jr.

Littlefield, Nicoladze, and Solomon appeal their convictions for conspiracy to violate the tax laws and for various tax-related criminal offenses arising from tax shelter activities. We remand for a new trial because a Time magazine article on similarly fraudulent tax shelters was carried by one of the jurors into the jury room during deliberations and was read and discussed by one or more of the other jurors.

Because defense counsel all knew of the publication of the Time article before the verdict was announced (although they did not know it had been carried into the jury room), the government argues that they have waived any right to seek a new trial. Defense counsel contend they were entitled to rely on the general cautionary instructions to the jury. We believe the case comes close to the disfavored practice of testing the verdict and then complaining if it goes against one’s side, but in this case there was no waiver in the technical sense.

The interest in fair administration of justice weighs against holding that defendants waived any opportunity to seek second trial *1431 in this case, even though a second trial could perhaps have been avoided had the defense immediately…

dissenting:

The district judge held a hearing to determine whether the Time magazine article influenced the jury’s verdict and concluded beyond a reasonable doubt that it did not, in part because he found that none of the jurors discussed the Time magazine article together. I conclude that this finding of fact is not clearly erroneous, and thus I dissent from the majority’s holding that there was “at least a reasonable doubt about the magazine’s influence on the jury’s verdict.” Maj. op. at 1432.

The Court has stated “that due process does not require a new trial every time a juror has been placed in a potentially compromising situation. Were that the rule, few trials would be constitutionally acceptable.” Smith v. Phillips, 455 U.S. 209, 217 , 102 S.Ct. 940, 946 , 71 L.Ed.2d 78 (1982). The Court suggested that the government meets its burden of proof in a partiality hearing if it shows that the “jury [was] capable and willing to decide the case solely on the evidence before it, and [the] trial judge [was] ever watchful to prevent prejudicial occurrences and to determine the effect of such occurrences when they happen.” Id.

*1433 The district judge explored the effect of the…

752 F.2d 1429 55 A.F.T.R.2d 85 -1244, 85-2 USTC P 9579 UNITED STATES of America, Plaintiff-Appellee, v. Jean D. LITTLEFIELD, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. George G. NICOLADZE, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Fred F. SOLOMON, Jr., Defendant-Appellant. Nos. 83-1154, 83-1160 and 83-1175. United States Court of Appeals, Ninth Circuit. Argued and Submitted June 11, 1984. Decided Feb. 5, 1985. As Amended on Denial of Rehearing March 29, 1985. James Springer, Dept. of Justice, Washington, D.C., for U.S. Geoffrey Hansen, Asst. Federal Public Defender, San Francisco, Cal., for defendant-appellant Jean D. Littlefield. Stephen Kaus, Kaus & Kerr, San Francisco, Cal., for defendant-appellant George C. Nicoladze. Peggy A. Stone, Oakland, Cal., for defendant-appellant Fred F. Solomon. Appeals from the United States District Court for the Northern District of California. Before GOODWIN, WALLACE and BOOCHEVER, Circuit Judges. GOODWIN, Circuit Judge. 1 Littlefield, Nicoladze, and Solomon appeal their convictions for conspiracy to violate the tax laws and for various tax-related criminal offenses arising from tax…