Mimesis Law
25 June 2021

11th Circuit To District Courts: No Secret Note Passing

January 31, 2017 (Fault Lines) – Getting caught passing notes in class was high on the list of childhood embarrassments. Whatever your message that just couldn’t wait was, there was nothing worse than the risk of getting singled out in school. Or, even worse, having to read the note out loud to your classmates.

The stakes are a little higher when a major federal criminal case is going on, and it’s the trial judge passing secret notes to the jury. Even though federal courts are a surprisingly good place to screw around, (as long as the government signs your paychecks) a federal appeals court in Atlanta, Georgia deserves recognition for putting its rubber stamp away and doing some justice.

Martin Bradley was a Miami businessman involved in the drug business. No, not the speedboats and machine guns drug business. The other kind. The pharmaceutical industry. Bradley and his father owned a wholesaler that sold blood-derivative medications, a complex medicine for various diseases.

According to prosecutors, the Bradleys and their associates were involved in a variety of fraudulent schemes related to their pharmaceutical products. The Bradleys allegedly dispensed medicine that was never used, billed it to Medicaid, bought it back at a fraction of its price, and then sold it again. It sounds like the Bradleys were also accused of buying medicine from shady sources and altering records to make it look legit.

Nothing like a little simple Medicaid fraud. Not the best way to make a living, but it happens. But remember, this is America, where the stroke of a prosecutor’s pen can make a little fraud a whole lot of crime.

After six weeks of trial, and seven days of deliberations, a jury convicted Bradley of 247 felonies, including racketeering, mail fraud, wire fraud, and money laundering. The district court sentenced Bradley to a total of 300 months’ imprisonment, and we affirmed his convictions and sentence on appeal.

You read that right. The alleged fraud resulted in the classic “mobster crimes” of racketeering, fraud, and money laundering. And 25 years in prison. At least for the Bradleys, a co-conspirator, and their company. The jury wasn’t as wowed when it came to some of the other defendants.

As noted, the jury convicted Bradley of 247 charges; Bradley, Jr., of four charges; Albert L. Tellechea, another co-conspirator, of one charge; and Bio-Med of 53 charges. The jury acquitted five other defendants on all charges against them.

This has been winding around the court system for a while. The actual convictions took place over a decade ago, back in 2006. Fraudulent healthcare company. Racketeering charges. A 25-year sentence. Who cares? Sounds pretty standard for federal court. Dog bites man.

At some point during that decade, Bradley’s lawyers noticed something about the docket sheet for the case. In federal court, everything gets filed electronically and remains right there on the computer. One of Bradley’s lawyers noticed some jury notes that didn’t look familiar. It turned out that two notes were sent to the judge no one knew about. And no one knew about the notes the judge passed back.

In the first note, the jury asked for a dictionary. Pretty standard. Also pretty standard for a court to tell a jury they don’t need some simple dictionary definition of a word. This is a courtroom and we will tell you what words mean. Or the government will, anyway.

Without notifying or consulting the parties, the district court responded:

“I cannot provide you with a dictionary. You have the charts and exhibits which are replete with definitions. You also have the charge and summary charts.”

The problem with the district court’s response, besides the fact that it was sent without the parties’ knowledge, is that at trial the charts, summary charts, and exhibits were primarily (though not exclusively) introduced by the government.

So not only do they not get a dictionary, the judge basically says, “use the Government definition!”

Another note asked about treating a company and the owner differently. The parties all agreed on an appropriate response:

In answer to your question, the owners and the corporation are separate defendants, so you must consider them separately as to each count. Of course, the corporation can only act through its agents who can be its owners, employees, etc.

That’s a pretty accurate statement of the law. The next morning, the district court sent another note addressing this point further.

If my answer to your question yesterday was insufficient let me know. I shall explain further. Once again, a corporation can only act through its agents and employees, who may also be the owners.

Of course, that doesn’t really add to the point, other than to make sure the jury understands it needs to convict the owners of the company on trial. The language in the second note was the language the prosecutors had wanted the day before. It’s always easier to convict when only one side’s position makes it to the jury.

For some reason, the judge decided to include the notes in the record after the trial ended, but did it in a way that made it hard to figure out what had happened.

On March 31, 2006, two days after trial ended, the clerk docketed the undisclosed notes and the district court’s responses. But the docketing was done in a way that made it appear as though they had been filed contemporaneously on the day the communications actually occurred, even though the notes and responses were not docketed until after trial was over and counsel had been excused. So, even if defense counsel had been monitoring the docket for new entries made after trial, it would have appeared as if no new entries were made on March 31.

To make detection even more difficult, the new docket entries were simply labeled “jury notes,” an innocuous description that would not have alerted government or defense counsel that the entries contained anything other than the jury notes and responses they were made aware of during trial. Perhaps not surprisingly, defense counsel did not discover the undisclosed ex parte notes until after Bradley’s convictions and sentence were affirmed on direct appeal, and raised them for the first time in the subsequent § 2255 motion.

The district court considered its own actions in the 2255 motion. Even though it begrudgingly agreed it probably shouldn’t have done what it did, and it might have affected the outcome of the case, the district court found no help for Bradley. Turns out the issue was raised to late.

In summary, the district court found it had done such a good job hiding its own acts that the defendant’s late discovery of the hidden notes was too late to do him any good. Only in federal court.

Luckily the 11th Circuit Court of Appeals was in no mood to aid and abet such behavior. Kind of. Recognizing the jury had struggled with assessing liability separately against Bradley and his corporations, the 11th Circuit said no to the secret note passing.

It is likely, we think, that the note led the jury to believe that an individual defendant also must be held responsible for each crime committed by the corporation. This second instruction, the last word the jury heard on the matter, was likely to carry special weight. It is significant, as well, that Bradley and Bio-Med were convicted of all 53 crimes with which they were jointly charged. 

Of course, this is federal court, where even your wins are losses. So Bradley just gets a new sentence minus the 53 counts that overlapped with the corporation. A jury trial purist might argue this is nonsense, because juror shenanigans affect the whole verdict.

But at least it’s a start.

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