The Honorable Gary S. Feinerman of the Northern District



of Illinois, is sitting by designation.

In the

United States Court of Appeals

For the Seventh Circuit

No. 11-1208

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

RAYMOND M. MARTIN,

Defendant-Appellant.

Appeal from the United States District Court

for the Southern District of Illinois.

No. 09-CR-40037-JPG—J. Phil Gilbert, Judge.

ARGUED DECEMBER 2, 2011—DECIDED AUGUST 28, 2012

Before RIPPLE and ROVNER, Circuit Judges, and

FEINERMAN, District Judge.



ROVNER, Circuit Judge. Raymond M. Martin was the

Sheriff of Gallatin County, Illinois, from 1990 until his

conviction on fifteen counts including marijuana distribution, possession of a firearm during a drug traf-
2 No. 11-1208

ficking crime, conspiracy to distribute marijuana, witness

tampering, conspiracy to tamper with witnesses, and

attempted structuring of financial transactions. The

evidence at trial demonstrated that Martin solicited

Jeremy Potts to sell marijuana supplied by Martin, with

Martin taking a cut of the profits from that sale. Martin

obtained the marijuana from other persons and also

obtained marijuana from the Gallatin County evidence

storage facilities. When Potts sought to end the relationship and discontinue selling the marijuana, Martin

threatened him using his county-issued service weapon.

The government obtained audio and video recordings

of three deliveries of marijuana by Martin to Potts, and

Martin was in uniform, in his patrol vehicle, and in possession of his service revolver for those deliveries.

Martin was then arrested and charged with three counts

of marijuana distribution and two counts of carrying

a firearm in relation to a drug trafficking crime.

While incarcerated at the jail, Martin separately solicited

two inmates to kill Potts and another witness, and

Martin took steps to obtain payments for the murders

and to provide directions to the homes of those intended victims. Those actions formed the basis for the

convictions for witness tampering and illegal structuring

of financial transactions to avoid Currency Transaction

Reports.

Martin raises only two challenges on appeal. First, he

argues that the presence of a non-juror in the jury room

for a short period of time deprived him of his right to

an impartial jury. Second, he asserts that the district

court committed plain error in relying on an incorrect

Guidelines calculation in sentencing him.
No. 11-1208 3

The jury issue arises from a rather bizarre sequence

of events on the second day of trial. The first day had been

devoted entirely to jury selection and opening statements. The morning of the second day, one of the jurors—

who hailed from Christopher, Illinois—was late for jury

duty. A court security officer waiting for the late juror

saw a woman, whom we will call CM, drive up, and

asked CM if she was coming from Christopher. When

CM replied in the affirmative, the security officer

escorted her to the jury room, believing that CM was

the late juror from Christopher. No one apparently

asked CM if she was a juror. CM was in the jury room

for no more than 5 minutes when the jurors lined up

to proceed into the courtroom. CM then informed

a security officer that she did not think she was supposed to be there.

When only 13 of the 14 jurors filed into the courtroom,

it became apparent to the district court judge that there

was a problem. The judge was informed that a non-juror

had been mistakenly taken to the jury room, and the

court began an investigation into the matter.

In response to questioning by the court marshal, CM

had indicated that she had no connection to the case, and

that she lived in Junction, Illinois. That was a cause

of concern to the court and the parties, because it

appeared to conflict with the statement that she was

from Christopher, Illinois. In addition, she had been in

the courtroom taking notes the previous day as an observer, and had a pad and pencil on this day as well.

With the agreement of the parties, the judge decided to
4 No. 11-1208

question each juror individually to determine whether

CM had communicated with them in any way in the

jury room, and to question CM. The prosecutor and

defense attorney elected to be present for the questioning of CM but not for the individual jurors.

Without exception, each juror testified that CM did not

speak to anyone in the jury room. The consistent testimony was that she entered the jury room and, after

using the restroom, went to a seat at the far end of the

jury table and sat quietly there. Martin seizes upon the

initial remarks of one juror that it was “a little scary”

when she entered. That person acknowledged, however,

that he did not talk to her or see anyone else talk to her,

and when the judge queried as to whether CM realized

that she was in the wrong place when the jurors

walked out, that juror acknowledged “I guess so.” Another

juror concurred with that assessment, stating “[y]ou

could tell she was feeling the same way. That she wasn’t—

had been sent to the wrong place.”

The sole communication that CM had with a juror

consisted of a brief interaction in the hallway as CM

was being escorted from the jury room and the late

juror was coming to the jury room. That late juror, seeing

CM, asked CM if she was a late juror too and CM

replied “No.” There was no other testimony of any other

communication between CM and any juror.

The judge, with the government and defense attorneys present, then questioned CM. She testified that

she did not speak with anyone in the jury room and even

asked whether there were security cameras that could
No. 11-1208 5

confirm her testimony (there were not.) The court

then explored her connection to the case, asking why

she had stated that she was not connected with the

trial. The court determined that CM was not herself

connected to the case, but that her husband was an

unindicted coconspirator. She also clarified that the

court security officer had asked her whether she had

come from Christopher, not whether she was from

there, and she responded affirmatively because that is

where she had come from that day. Finally, CM testified

that she initially thought that the security officer was

taking her to a holding room as part of the court security

for visitors to the courtroom. Once she realized that she

did not belong there, she informed the court security

officer of that fact.

After hearing the testimony from the jurors and CM,

the court notified the parties that it intended to proceed with the trial. Defense counsel did not object to

that determination. Martin now complains on appeal

that the brief encounter of the jurors with CM deprived

him of his right to an impartial jury.

Because Martin did not raise any such objection at

trial, we review for plain error. United States v. Ambrose,

668 F.3d 943, 963 (7th Cir. 2012); United States v. Thibodeaux,

758 F.2d 199, 202 (7th Cir. 1985). Accordingly, we

will reverse only if we find an error that is plain, that

affects the defendant’s substantial rights, and that

seriously affects the fairness, integrity or public reputation of judicial proceedings, effectuating a miscarriage

of justice. Id.; United States v. Olano, 507 U.S. 725, 732-34
6 No. 11-1208

(1993). Martin first argues that the court failed to

remedy actual jury bias, asserting that such an error is a

structural error that is automatically reversible. See

United States v. Warner, 498 F.3d 666, 679 (7th Cir.

2007)(discussing structural errors not subject to harmless

error analysis); United States v. Harbin, 250 F.3d 532, 542-43

(7th Cir. 2001). The basis for this argument is the statement by one juror that it was “a little scary” when CM

entered the jury room instead of the actual 14th juror.

Martin argues that because the trial involved allegations

of witness tampering, it was reasonable to assume that

the juror could make the connection between witness

tampering and potential jury tampering, and that the

juror was therefore prejudiced by that encounter.

Martin reads far too much into the relatively innocuous

statement that it was “a little scary” when CM came

into the room. She had been escorted there by the

court security officer who believed her to be the 14th

juror, and the juror who made the statement knew that

she was not a juror. In that context the juror described

the situation as “a little scary.” That same juror

appeared to agree with the judge’s statement that CM

then realized that she did not belong there. No follow-up

statements by the juror indicated any concerns once

CM separated herself from the jurors. Moreover, the

court repeated to many of the jurors that CM’s presence

there was the fault of the court security officer, not

CM. Although the court allowed CM to remain in the

courtroom as a spectator afterward to take notes, there

is no reason to believe that her presence would cause

concern among the jurors. In fact, CM’s continued
No. 11-1208 7

presence in the courtroom would indicate to the jury

that the court at least did not perceive her to present a

threat. There is simply no evidence of actual bias here.

We are left then with Martin’s more general claim of

improper jury tampering. We have repeatedly held that

alleged errors related to improper communication with

jurors do not constitute structural errors subject to automatic reversal, but rather are the type of trial errors

subject to the harmless error standard. Warner, 498 F.3d

at 679; Whitehead v. Cowan, 263 F.3d 708, 722 (7th Cir.

2001); see also Olano, 507 U.S. at 737-38. Because

Martin failed to object, as pointed out earlier he must

meet the plain error standard.

Martin’s argument in this area relates to the court’s

handling of the allegedly improper contact with the

jurors. Martin argues that the court applied the incorrect

legal standard under Remmer v. United States, 347 U.S.

227, 229 (1954), in that it presumed that the contact was

not prejudicial, and that the court improperly focused

only on the facts of the contact and failed to inquire

as to the effect of that contact on the jurors.

In Remmer, the Supreme Court held that “[i]n a

criminal case, any private communication, contact, or

tampering directly or indirectly, with a juror during a

trial about the matter pending before the jury is, for

obvious reasons, deemed presumptively prejudicial, if

not made in pursuance of known rules of the court and

the instructions and directions of the court made during

the trial, with full knowledge of the parties.” Id. at 229.

That presumption of prejudice may be rebutted if the
8 No. 11-1208

government demonstrates that the contact was harmless. Id. The Court further held that in cases of such

tampering, the trial court should conduct a hearing to

determine the circumstances, the impact upon the juror,

and whether or not it was prejudicial. Id. at 229-30.

District courts nevertheless retain some flexibility

in determining the type of inquiry appropriate in a case

alleging such improper communications. Warner, 498

F.3d at 680. Where a comment heard by a juror was

ambiguous or innocuous, no Remmer hearing may be

necessary. Id.; Whitehead, 263 F.3d at 725-6. For instance, in

Whitehead, the defendant complained of an outburst

overheard by the jury during the trial. The judge,

counsel, and court reporter had retired to chambers,

but the jury remained present in the courtroom when

the mother of the victim rose and began shouting at

the defendant asking him why he killed her daughter.

Id. at 723. We noted in Whitehead that the mother did

not attempt to persuade the jury, nor did she provide

the jury with any extraneous information about the

facts of the case. Id. at 724. Because only an innocuous

comment was involved, we held that no Remmer hearing

was necessary. Id. at 724-25. Nor was the off-the-record

nature of the communication dispositive. Id. at 725. Although the absence of the judge at the time meant

the judge could not observe the impact of the outburst

on the jury, Whitehead held that the content and duration

of the outburst was such that it was not reasonable

to imagine that it would affect the jury’s deliberation.

Id. Mere speculation concerning prejudice to the defendant was insufficient to warrant reversal. Id. at 726.
No. 11-1208 9

Similarly, in Brown v. Finnan, 598 F.3d 416, 419 (7th Cir.

2010), the jury potentially could have overheard an incourt statement by the victim’s mother to the effect

that “the situation [was] racist.” We noted in that case

that the meaning of the statement was equivocal

because the victim and the accused were of the same

race, and that it was unclear how the jury could

perceive the comment in a manner injurious to the defendant. Id. at 422. Because the comment was not one

that would reasonably affect a reasonable juror’s deliberation as to guilt or innocence, we held that no Remmer

hearing was necessary. Id. at 423. We noted that a communication must be read in its context, and that no

Remmer hearing is needed when the challenged communication is both ambiguous and innocuous. Id.; see

also United States v. Li Xin Wu, 668 F.3d 882, 887 (7th

Cir. 2011); Thibodeaux, 758 F.2d at 202.

Those cases stand in contrast to the facts presented in

Remmer, in which a person had informed a juror that

he could profit by returning a verdict favorable to the

petitioner. 347 U.S. at 228. The situation in Remmer presented an unauthorized invasion of the jury, jeopardizing the integrity of the jury proceedings. The Whitehead and Brown cases, on the other hand, involved communications that did not threaten such an adverse

impact on the jury proceedings; the communications

did not provide any new information about the case to

the jurors, nor did the nature of the communications create any likelihood that it would affect the deliberations.
10 No. 11-1208

There is even less evidence of any potential impact on

the jury in the present case than was evident in

Whitehead and Brown. The only jury “contact” here

was CM’s mere presence in the jury room while the

jury was waiting to be called into the courtroom for the

morning session. Because the improper contact with the

jurors occurred outside the presence of the judge and

counsel, the judge properly chose to question each of

the jurors as well as CM to ascertain the nature of

the contact and whether any inappropriate communications had taken place. The uncontradicted testimony

was that no communication was made of any kind, with

the exception of the one-word response to a question by

a late juror as to whether she was a late juror as well.

There is no evidence at all of any “communication,

contact or tampering . . . about the matter pending

before the jury.” See Remmer, 347 U.S. at 229. Martin

cannot contest that conclusion. Accordingly, Martin

cannot succeed on his claim that the court should have

taken the next step to determine whether the government had overcome the presumption that the communication was prejudicial; there was in fact no communication

at all here, and therefore nothing that could have been

prejudicial. Even if mere presence was deemed to be a

communication of sorts under these facts, there was no

need for a further inquiry because it was an ambiguous

and innocuous communication if any, which we have

repeatedly held merits no further inquiry. Brown, 598

F.3d at 423. In Olano, the Supreme Court rejected an

argument that the mere presence of an alternate juror

in deliberations presented a sufficient risk of a chilling
No. 11-1208 11

effect to justify a presumption of prejudice. 507 U.S. at 740-

41. We have a less significant inappropriate presence in

the jury room here as the presence was fleeting and

did not occur at a time during which the jurors were

discussing the case. There was absolutely no indication

that the incident had any lasting impact on the jury.

Therefore, the district court did not err in its inquiry

into the potential jury tampering and in its determination that no improper communication or influence

had occurred. The district court’s decision to proceed

with the trial was proper given the undisputed facts

concerning the contact with the jurors.

The sentence, however, is more problematic, and requires a remand for resentencing. The government concedes that the court was operating under a misunderstanding regarding the Guidelines range for Counts 4

and 5, involving violations of 18 U.S.C. § 924(c) for

carrying a firearm in connection with a drug trafficking

crime. The Presentence Investigation Report (“PSR”) stated

that the Guidelines range for Count 4 was 5 years to

life, and the range for Count 5 was 25 years to life, and

Martin did not object to those calculations. The district

court then adopted the PSR findings and sentenced

Martin to life on both counts. The PSR range, however,

was incorrect. Pursuant to U.S.S.G. § 2K2.4(b), for a

conviction under § 924(c) the guideline sentence is the

minimum term of imprisonment required by statute.

See United States v. Lucas, 670 F.3d 784, 788 n.3 (7th

Cir. 2012). The minimum term of imprisonment for

Count 4 was 5 years and for Count 5 was 25 years. Accordingly, the Guidelines range for Counts 4 and 5 was
12 No. 11-1208

5 years and 25 years respectively, not 5 years to life and

25 years to life.

Because Martin failed to object to the calculation at the

time of sentencing, we review only for plain error. As

stated earlier, under the plain error standard, we

reverse only if we find an error that is plain, that affects

the defendant’s substantial rights, and that seriously

affects the fairness, integrity or public reputation of

judicial proceedings. Ambrose, 668 F.3d at 963; Olano, 507

U.S. at 732-34. We have repeatedly held that “[a] sentencing based on an incorrect Guidelines range constitutes plain error and warrants a remand for

resentencing, unless we have reason to believe that the

error in no way affected the district court’s selection of

a particular sentence.” United States v. Farmer, 543

F.3d 363, 375 (7th Cir. 2008); United States v. Garrett,

528 F.3d 525, 527 (7th Cir. 2008); United States v.

Pineda-Buenaventura, 622 F.3d 761, 767 (7th Cir. 2010).

Here, we have no reason to believe that the error had

no impact on the sentence. The court explicitly tied the

sentence to the Guidelines range, making it clear that

it was imposing a sentence at the high end of the Guidelines range when it gave the consecutive life sentences.

Therefore, we cannot assume that the court would have

imposed the same sentence had it understood that the

consecutive Guidelines range extended to 30 years

rather than life. Although the court clearly wanted to

impose a significant sentence, there is no way to know

whether that would have been 30 years, a lower or higher

number of years, or life. Therefore, we must remand for
No. 11-1208 13

the court to determine the sentence in light of the

proper Guidelines recommendation.

The conviction is AFFIRMED and the sentence is VACATED. The case is REMANDED for resentencing in consideration of the proper Guidelines range.

8-28-12