GERARD E. LYNCH, Circuit Judge:
Defendant-appellant George Esso was convicted, following a jury trial in the United States District Court for the Southern District of New York (Scheindlin, J.),
On July 26, 2010, Esso and six other individuals were indicted for participating in a mortgage fraud scheme that operated from 2006 to 2007. The indictment charged Esso with conspiracy to commit wire and bank fraud, in violation of 18 U.S.C. § 1349, and with bank fraud, in violation of 18 U.S.C. § 1344. At Esso's trial, which was held from August 9 to August 26, 2010, the government presented evidence that the scheme operated through a mortgage brokerage, GuyAmerican Funding Corp. ("GuyAmerican"). As part of the scheme, GuyAmerican employees arranged loans by submitting false information to lenders, including false information regarding the supposed buyers' net worth, employment, income, and plans to live in the homes.
Esso was a loan officer in a branch office of GuyAmerican managed by Peggy Persaud.
Jury deliberations began on August 25, 2010, at about 3:20 p.m. At 4:25 p.m., the jury sent two notes to the district court. The first informed the court that "[t]he jury has decided to leave today at 4:30," and that it planned to return "tomorrow morning at 10 a.m. to further deliberations." The second note asked whether the jury could "take the indictment home to carefully read." Esso's attorney opposed this request, stating that reading the indictment at home is "akin to deliberating" and "akin to asking to take exhibits home." He also objected that the indictment "serves as the government summation," and suggested that the jury could instead read the indictment the following day "when they are gathered together to deliberate." The attorney representing Esso's codefendant said that his "only concern" was that if the jurors took the indictment home, "it would possibly tend to cause maybe some family discussions."
After hearing these arguments, the district court told the jury that it could take the indictment home. However, the court instructed the jurors not to discuss the indictment with anyone or show it to anyone. Specifically, the court told them
The court also reiterated its previous instruction "not to do any research on your own," including research on the criminal defendant, the victim lenders, or the federal bank fraud statute. The court further instructed the jury not to "even think of going on the Internet" to research anything related to the case. After again asking whether any juror would "have any trouble following ... these instructions," the court told the jurors that they could "take the indictment home, if you wish to read it carefully, to read it carefully overnight." At the request of Esso's counsel, the court also reminded the jurors of its previous instruction that "[a]n indictment is not evidence in any way. It's just a charge by the government."
The jury then took home a redacted version of the indictment that had been provided to them.
We have long recognized that trial courts may, in their discretion, "permit[] the jury to take a copy of the indictment into the jury room, after taking care to instruct the jury that the indictment [is] not to be considered evidence." United States v. Giampino, 680 F.2d 898, 901 n. 3 (2d Cir.1982); see also United States v. Press, 336 F.2d 1003, 1016-17 (2d Cir.1964) (holding that "it is not error to give the indictment to the jury for use during its deliberations," but noting the "particular importance" of giving proper limiting instructions regarding the indictment in such circumstances). Esso argues that he was denied his constitutional right to a fair trial when the district court allowed the jury to take home the copy of the indictment that had already been provided for use in the jury room. This is an issue of first impression in our court, and — so far as we are aware — in any federal or state court. Though we have doubts about the wisdom of the practice, and urge caution on district courts considering it, we conclude that, so long as jury deliberations
It is certainly true, as Esso emphasizes, that "the jury system is meant to involve decisionmaking as a collective, deliberative process." United States v. Resko, 3 F.3d 684, 689 (3d Cir.1993); see also United States v. Thomas, 116 F.3d 606, 619 (2d Cir.1997) (noting that "the deliberative process ... lies at the heart of our system of justice"). Esso claims that permitting the jury to take the indictment home to read
Appellant's Reply Br. at 3. Insofar as Esso is suggesting that it is inappropriate for individual jurors to think about the case before them on their own time, we disagree. We see no harm in such private "deliberations," which may in fact enable jurors to participate more thoughtfully in the collective process of reaching a verdict. It would also, of course, be "entirely unrealistic to expect jurors not to think about the case ... when at home." People v. Ledesma, 39 Cal.4th 641, 47 Cal.Rptr.3d 326, 140 P.3d 657, 722 (2006). Thus, we reject the argument that permitting the jury to take the indictment home was in error merely because it might lead jurors to form "ideas about the case by themselves."
That is not to say that allowing the indictment to be taken home is without risk. Sending trial materials home with jurors increases the chance of exposing the jury to outside influences. "Due process requires that the accused receive a trial by an impartial jury free from outside influences." Sheppard v. Maxwell, 384 U.S. 333, 362, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966); see also Manley v. AmBase Corp., 337 F.3d 237, 251 (2d Cir.2003) ("Justice demands that jurors `decide the case solely on the evidence' before them, without any outside influence." (quoting United States v. Olano, 507 U.S. 725, 738, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993))).
As Esso notes, a court can control the jury's use of documents associated with the trial when the jury is in the jury room, and the jurors can monitor each other's compliance with the court's instructions. Once a juror leaves the courthouse, however, the court cannot ensure that the juror's family or friends "will not gain access to, and engage the juror in a discussion about," any materials that the juror has taken home. Appellant's Br. at 33. In the familiar surroundings of home, a juror might feel an understandable — albeit misguided — impulse to discuss trial materials with loved ones curious about the case that the juror had spent days or weeks hearing. And with documents from the trial immediately available for reference, a juror might also be more willing to engage in independent research on the facts or legal issues in the case on the internet.
Moreover, permitting the jury to take home the indictment in particular raises yet another concern. As Esso argues, allowing the jurors to take the indictment home may "overemphasize[] its significance, since it is a one-sided presentation of the prosecution's view of the
As we discuss further below, these considerations lead us to believe that district courts should not make a general practice of sending indictments home with the jury. Nonetheless, in light of the district court's clear and emphatic limiting instructions, we cannot say that the court committed a trial error — much less "structural error," see id. at 35 — by allowing the jurors to take the indictment home. As noted above, the court instructed the jurors not to show the indictment to or discuss it with anyone. The court also stressed that the jury was still bound by its earlier instruction not to conduct independent research, including research on the internet. And the court strongly reminded the jurors of the function of the indictment, and of their obligation under no circumstances to consider it evidence of the guilt of the accused.
There is no evidence even remotely suggesting that any juror disregarded these instructions. Absent such evidence, "we presume that jurors remain true to their oath and conscientiously observe the instructions and admonitions of the court." United States v. Rosario, 111 F.3d 293, 300 (2d Cir.1997) (internal quotation marks omitted); see also United States v. Snype, 441 F.3d 119, 129 (2d Cir.2006) ("[T]he law recognizes a strong presumption that juries follow limiting instructions."). While this presumption "can evaporate where there is an overwhelming probability that the jury will be unable to follow a limiting instruction that demands mental acrobatics of the jurors," Snype, 441 F.3d at 130 (internal quotation marks and alteration omitted), the instructions with respect to the indictment were clear, uncomplicated, and in significant part a reiteration of instructions that the district court had previously given.
In the age of electronic information, there is already a significant risk that jurors will conduct research, given how easy it is to search online for a defendant's name or for a particular legal concept, just as there has always been a risk that jurors will be tempted to discuss the case, which consumes their daily attention, with family members and friends. The marginal additional risk created by allowing jurors to take home a copy of the indictment seems to us small compared to the risks that already exist due to modern technologies and the persistent features of human nature. Necessarily, the main protections against such dangers must be the district court's cautionary instructions and the honesty and integrity of the members of the jury.
The parties have identified, and our own research has uncovered, no appellate decision reviewing a trial court's decision to allow a jury to take home an indictment. However, our holding that such an action does not deprive a defendant of a fair trial if accompanied by appropriate cautionary instructions is consistent with cases allowing jurors to take home copies of jury
Id. (internal citation omitted).
While recognizing the special caution appropriate with respect to the handling of indictments, we do not believe that the fact that the jury took the indictment home, rather than the jury instructions, requires a different conclusion.
In considering the claim that the practice followed in this case is constitutionally forbidden, we are mindful of the great discretion accorded to trial judges to manage their own courtrooms, and of the desirability of allowing a measure of careful experimentation with trial management procedures that may at first appear undesirable simply because they are untraditional. Practices that were once controversial — such as permitting jurors to take notes — are now commonplace. Compare United States v. Davis, 103 F. 457, 470 (C.C.W.D.Tenn.1900) (describing note-taking as "improper" and declaring that "[t]here is no protection against [its] dangers except to forbid the practice") with United States v. Bertolotti, 529 F.2d 149, 159 (2d Cir.1975) (noting that "[i]t has been long established in this Circuit that it is within the trial court's discretion to allow the jury to take notes and use them in the course of their deliberations"); see also Leonard B. Sand & Steven Alan Reiss, A Report on Seven Experiments Conducted by District Court Judges in the Second Circuit, 60 N.Y.U. L. Rev. 423, 423-24 (1985) (describing a series of experimental procedures adopted by district judges that were designed to explore "ways of improving the work of juries throughout federal courts of the Second Circuit," including an experiment in which judges "affirmatively advis[ed] jurors that they may take notes" (internal quotation marks omitted)). We therefore hesitate to forbid new practices like the one involved in this case, particularly when undertaken for the salutary purpose of saving time for busy jurors and district judges.
Nonetheless, like the court in Morgan, we "hasten to add that the better practice weighs against" the experiment undertaken here. 423 N.J.Super. 453, 33 A.3d at 539. Allowing the jury to take home the indictment or the jury instructions "leaves the deliberative process needlessly vulnerable to a variety of potential problems" by "increas[ing] the chances that individual jurors may want to discuss these matters with family members or friends" and by "mak[ing] it easier for jurors to research legal issues on their own." Id. Accordingly, while we affirm Esso's conviction, our opinion should not be taken as a general endorsement of the practice of permitting the jury to take the indictment home. But the Constitution does not prohibit every practice that may appear of questionable value to appellate judges. We leave it to the wise discretion of trial judges to weigh the risks and benefits of this, as of other trial innovations, should the issue arise in cases before them.
For the foregoing reasons, the Defendant-Appellant's conviction is AFFIRMED, and for the reasons stated in the accompanying summary order his sentence is VACATED and the matter is REMANDED