Majority Affirms Conviction; Dissent Would Have Found Jury Instruction Error Tainted Trial

U.S. v. Schwartz, 702 F. App'x 748 (7/31/17) (Col.) (unpub'd) - This majority affirmance of a pill-mill conviction isn't all that noteworthy, but Judge Bacharach's dissent is. In a packet of written jury instructions given to jurors at the beginning of trial was an instruction on how to treat Mr. Schwartz's prior felony conviction. The jurors could have had as much as 29 minutes to look at the instructions. The district court didn't realize its error until it started reading the felony conviction instruction. "This shouldn't be in here," the court said before getting to the felony conviction part . The court had that instruction taken away. The court instructed the jurors to disregard the instruction. The court denied a mistrial motion. After the verdict, the court polled the jury and the jurors assured the judge they had disregarded everything the judge told them to disregard. The majority assumes the jurors read the bad instruction at some point, but holds the error was harmless for reasons you could easily predict - jurors presumably follow instructions, the incident was a small part of the trial, the evidence was strong, etc. Plus the defendant's character witness was questioned about charges - not convictions - against Mr. Schwartz. Judge Bacharach does not buy that. He thinks evidence of a prior felony conviction, as opposed to just charges, was devastating. He relies on U.S. v. Maestas, 341 F.2d 493, 496 (10th Cir. 1965). In that case, 10th found an informant's testimony that the defendant had previously been imprisoned was so prejudicial that no jury instruction could cure the prejudice. Here the error was even more prejudicial because the court, not a witness, gave that information to the jury and that happened at the beginning of the trial, the crucial first impression tainting the next 11 days of trial. Interestingly, Judge Bacharach cites articles noting jurors will get tired and bored during a long trial. So what happens at the beginning matters more than what happens at the end of the trial. Judge Bacharach also points out the jury poll asked questions that were too vague. There was no reason for the court not to ask specifically whether they considered the fact Mr. Schwartz had a prior felony conviction. And Mr. Schwartz put up a valid defense that he talked to a lawyer and consulted regulations to ensure he was following the law.