                            In the
 United States Court of Appeals
              For the Seventh Circuit
                         ____________

No. 06-1353
UNITED STATES OF AMERICA,
                                               Plaintiff-Appellee,
                                v.

MARK MANNIE,
                                           Defendant-Appellant.
                         ____________
           Appeal from the United States District Court
      for the Northern District of Illinois, Eastern Division.
         No. 04 CR 705—Rebecca R. Pallmeyer, Judge.
                         ____________
 ARGUED SEPTEMBER 12, 2007—DECIDED DECEMBER 12, 2007
                         ____________


 Before POSNER, FLAUM, and WILLIAMS, Circuit Judges.
  FLAUM, Circuit Judge. This case involves an excep-
tional set of circumstances that compels this Court to
grapple with the concept of a fair trial. The defendant,
Mark Mannie, appeals his conviction after a trial by jury.
The jury found Mannie guilty of conspiracy to knowingly
and intentionally possess marijuana with intent to dis-
tribute, knowingly and intentionally distributing mari-
juana, and knowingly possessing a machine gun. He
argues that the district court abused its discretion by
denying his motions for mistrial and severance given his
co-defendant’s severe and violent disruptions during the
trial and the fact that some jurors felt threatened by
2                                                No. 06-1353

members of the gallery. For the reasons stated herein, we
vacate the conviction and remand for a new trial.


                      I. Background
    A. Pre-arrest Factual History
  Mark Mannie worked as a paper deliveryman by day
and at a Wendy’s restaurant by night. The government
alleges that he was also a low-ranking member of the
Black P Stones street gang. His co-defendant and long-
time friend, Aaron Patterson, was convicted of double
murder and sentenced to death in 1989, only to be par-
doned by Governor George Ryan in 2003 after it was
revealed that his convictions rested on perjured testimony
coerced by the government. Upon his release, Patterson
emerged as a vocal community activist,1 though the
government maintains that he also operated as a high-
ranking member of the Black P Stones gang. Another
individual, Mario Maldonado, was a member of the Latin
Kings gang and a known drug dealer with a criminal
record. After being arrested for possession with intent to
distribute marijuana and rock cocaine, Maldonado agreed
to cooperate with the authorities in their investigation of
Patterson in exchange for having his charges dropped.
  Mannie played what was essentially a bit role in a series
of transactions between Patterson and Maldonado in-
volving the sale of marijuana, heroin, and firearms.
Specifically, Patterson sold or arranged for the sale of
heroin and/or marijuana to Maldonado on nine occasions
between April 3, 2004 and August 5, 2004. Each deal was
recorded, videotaped, and/or viewed by law enforcement


1
  He worked on issues involving police brutality and prosecuto-
rial misconduct, coordinated voter registration efforts, and
advocated for greater job opportunities for African-Americans.
No. 06-1353                                              3

officials. At nearly each of the first several meetings,
Patterson indicated his desire to buy guns from
Maldonado. That exchange ultimately took place on
August 5, 2004. Early that day, Patterson and Maldonado
discussed bringing a second driver so that they would not
have guns on them as they drove in Patterson’s car to
get drugs as a part of their exchange. Patterson called
Mannie and asked him to meet him at a CITGO gas
station. Mannie claims that Patterson asked him to pick
up some “replicas.” Regardless, Mannie met Patterson and
Maldonado at the gas station. The deal was for him to
exchange, on behalf of Patterson, marijuana for the guns.
It is unclear whether Mannie had the marijuana before
he arrived at the gas station or whether one of Patterson’s
associates gave it to him at the gas station. In any case,
the drugs were wrapped up, and Mannie asserts that he
did not know that the package contained marijuana.
Mannie then drove and followed Maldonado to his apart-
ment, where they then exchanged the marijuana for the
guns. Mannie maintains that he thought that the guns
were only replicas, though video surveillance at
Maldonado’s apartment indicates that Mannie knew that
the guns were not fake. As Mannie left Maldonado’s
apartment, he was arrested.


 B. Proceedings Below
  On August 11, 2004, Mannie was indicted and charged
with conspiracy to knowingly and intentionally possess
marijuana with intent to distribute in violation of
21 U.S.C. § 841(a)(1); knowingly and intentionally distrib-
uting marijuana in violation of 21 U.S.C. § 841(a)(1); and
knowingly possessing a machine gun as defined in viola-
tion of 18 U.S.C. § 922(o)(1) and (2). He and Patterson
were tried as co-defendants. The trial started on July 12,
2005 and ended on July 28, 2005. Mannie moved for a
4                                               No. 06-1353

mistrial or severance on July 25 and July 27 based on
Patterson’s conduct during the trial. The district court
denied both motions. On July 29, 2005, the jury found
Mannie guilty on all three counts. Mannie filed a timely
motion for a new trial, and on December 16, 2005, the
court denied the motion and sentenced him to 60 months’
imprisonment and three years of supervised release.


    C. Disruptive Conduct During Proceedings
  With Mannie initially sitting idly at the sidelines,
Patterson stole the show at their joint proceedings. It was
clear from the beginning that Patterson believed that he
was again being set up by the government, and that he
had no intention of peacefully cooperating during the
trial. Specifically, Patterson engaged in the following
disruptive conduct during pretrial proceedings:
     –   On August 6, 2004, after both defendants were
         arrested, they appeared in court, and Patterson
         disrupted the court several times (even receiving
         applause from the audience). He admonished the
         court to “get used to this.”
     –   On May 25, 2005, the court held a pretrial confer-
         ence, and Patterson repeatedly spoke out of turn
         and yelled, threatening the trial judge that “you’re
         going to have to run me out of this courtroom [sic]
         if you’re not going to listen to me.”
     –   On May 26, 2005, during pretrial motions,
         Patterson again disrupted the proceedings, and he
         was subsequently removed from the courtroom.
     –   On May 27, 2005, the court held a pretrial confer-
         ence regarding Patterson’s competency to stand
         trial. An expert psychologist testified that Patter-
         son characterizes himself as a revolutionary, that
No. 06-1353                                               5

        he takes a very active and personal role in his
        defense, and that he goes to extremes to get his
        point across. Patterson was present and repeatedly
        interrupted the proceedings.
  In addition, Patterson engaged in the following disrup-
tive conduct during jury selection:
    –   On June 30, 2005, Patterson (who was wearing
        an orange jumpsuit during the proceedings) argued
        with the court and threatened his own lawyers.
        His lawyer warned that Patterson “will go off,” and
        asked to be withdrawn because “we are now on an
        escalating scale and I do not wish to be a part
        of this circus.” The court eventually ordered
        Patterson removed from the courtroom because he
        was using it as a forum to invite members of the
        audience to engage in civil disobedience. The entire
        panel of jurors from that day was dismissed. When
        Patterson returned for the afternoon session he
        was disruptive again, and the court excused him
        from the session.2
    –   On July 1, as prospective jurors were being inter-
        viewed, Patterson’s counsel asked for a sidebar
        and told the court that he was interfering with
        counsel. The court excused the jurors and
        Patterson, enraged, started to shout and swear.
        The court then had Patterson removed from the
        courtroom, and dismissed the jurors and started
        over with a third panel.
  Patterson then refused to attend the trial. The court
asked Patterson to return on nearly every day of the trial.
The court had conditioned Patterson’s return on a repre-
sentation that he would behave, and he made it clear that


2
  The district court did note at this point that Patterson’s
conduct could jeopardize Mannie’s right to a fair trial.
6                                              No. 06-1353

he had no intention of doing so. In fact, he explicitly
related to the court that if he returned, he would deliber-
ately disrupt the proceedings. Nevertheless, he did finally
return to the trial on July 21st wearing his prison garb.
  Given the tension that had mounted during pretrial
proceedings, it is not altogether surprising that the
following events unfolded during the joint trial:
    –   On July 15, one juror identified “unsavory” individ-
        uals in the gallery who were staring down mem-
        bers of the jury.
        –   The court conducted a voir dire of this juror
            who expressed that this would not affect his
            impartiality, and that he was mostly speculat-
            ing and did not truly think that he or any
            juror perceived there to be a serious problem.
    –   On July 20, at least one juror witnessed what some
        of them believed to be gang members making gang
        signs with Mannie. Some jurors noticed members
        of the gallery staring at them in order to memorize
        their faces.
        –   The court conducted a voir dire of the jury.
            One juror noticed the gang signs between
            Mannie and a spectator, and expressed that
            she did not “want people coming to [her] home
            in the middle of the night to kill [her].” She
            also declared that “many of us don’t want to be
            here . . . [w]e don’t want to be involved for
            safety reasons.” This juror was dismissed. The
            rest of the jury gave equivocating responses
            with respect to how they felt about the gallery,
            but nevertheless maintained that they could
            remain impartial.
    –   On July 21, Patterson gestured at the jury. In
        addition, a juror (and a court security officer)
        noticed a member of the gallery staring at the jury.
No. 06-1353                                              7

       –   This individual was eventually barred from the
           building, and the court reminded the jurors
           that if they had any concerns at any time, they
           should raise it with the court.
   –   On July 25, the courtroom drama escalated to a
       new level. While Mannie’s counsel was cross-
       examining a government witness, Patterson inter-
       rupted and yelled at counsel to “get off [his] case”
       and accused the defense attorneys of setting him
       up for a fall. He then stood up, knocked one of his
       attorneys to the ground, grabbed the other attor-
       ney by his necktie, and threw him to the ground
       as well. Both attorneys were in a tangle in the
       corner and one limped around afterwards.
       –   At this point Mannie moved for a mistrial or
           severance. The court then conducted a voir
           dire of each juror individually. One juror
           acknowledged that she was “human” but
           “hoped” that she could be fair. This juror was
           dismissed. The rest of the jury expressed an
           awareness of the extreme nature of these
           actions, but indicated that they could still
           remain impartial. The court then denied
           Mannie’s motion for a mistrial and severance.
       –   The next day the government motioned to bar
           Patterson from returning from the courtroom
           for his own testimony and instead testify via
           video feed (which the court had already set
           up). The district court eventually denied this
           motion.
   –   On July 26, the gallery became vocal during
       Mannie’s testimony.
   –   On July 27, Patterson refused to answer questions
       during cross-examination and instead invoked
8                                               No. 06-1353

        conspiracy theories and referred to the proceedings
        as a legal lynching.
        –   Mannie moved for a mistrial. The court denied
            the motion almost immediately without polling
            the jury. Instead, it instructed the jury to
            disregard Patterson’s conduct and testimony.
  Before deliberations, the district court instructed the
jury to give separate consideration to both defendants,
disregard any noise or outburst, and give no weight to
Patterson’s absence during the trial. After the verdict,
Mannie moved for a new trial arguing that the court erred
in denying his motions for severance or mistrial. The court
rejected his motion and issued a written opinion, con-
cluding that Mannie sought a severance well after the
trial had begun, and that the court’s use of voir dire and
cautionary instructions were sufficient to eliminate bias.


                     II. Discussion
  This Court reviews the district court’s refusal to grant a
mistrial for abuse of discretion. United States v. Canino,
949 F.2d 928, 937 (7th Cir. 1991) (citations omitted). A
district court abuses its discretion when it commits an
error of law or makes a clearly erroneous finding of fact.
Shakman v. City of Chicago, 426 F.3d 925, 932 (7th Cir.
2005). Consistent with this standard, it is presumed that
the trial judge is in the best position to determine whether
a cautionary instruction, rather than a mistrial, is suffi-
cient to address any potential prejudice. Canino, 949 F.2d
at 937; see also United States v. Tejeda, 481 F.3d 44, 53-54
(1st Cir. 2007) (stating that the district judge is in the
best position to assess the candor and credibility of the
jurors during the voir dire following a motion for mistrial).
Nevertheless, when reviewing the denial of a mistrial in
this context, this Court must ultimately determine
No. 06-1353                                                9

whether the defendant was deprived of a fair trial. United
States v. Clarke, 227 F.3d 874, 881 (7th Cir. 2000).
  The government contends that the district court did not
err in denying Mannie’s motion for a mistrial because
the trial judge: 1) conducted a voir dire of each individual
juror; 2) dismissed the only two jurors who expressed
reservations about being fair; and 3) issued cautionary
instructions to the jurors. For additional support, the
government relies on a number of cases. See United States
v. Bamberger, 456 F.2d 1119, 1128 (3d Cir. 1972) (regard-
ing courtroom outbursts by co-defendant, court noted
that “[s]o long as [the trial judge] accords the necessary
protection to the passive defendant within the parameters
of sound judicial discretion we should not disturb his
decision.”); Tejeda, 481 F.3d at 54 (regarding threats
by spectators, court concluded that the district court
“observed the demeanor of each juror and concluded that
each could be impartial” and that the district court
handled the matter correctly); United States v. Copeland,
51 F.3d 611, 613-14 (6th Cir. 1995) (regarding threats
by spectators, the court concluded that the district court
did not abuse its discretion because the trial judge investi-
gated the merits of each charge and gave cautionary
instructions).
  While it is true that in the vast majority of cases, the
trial judge can cure the bias that may develop in jurors’
minds by issuing cautionary instructions and conducting
voir dire, this case clearly involves a unique set of cir-
cumstances that compels this Court to return to first
principles and ascertain what the right to a fair trial
truly means. Certain courtroom situations are so bey-
ond the pale, so prejudicial, that no amount of voir dire
and cautionary instructions can remedy the defect. The
Supreme Court has identified a number of these scenarios.
See, e.g., Holbrook v. Flynn, 475 U.S. 560, 570 (1986)
10                                            No. 06-1353

(customary courtroom security force supplemented by four
uniformed state troopers sitting in the first row of the
gallery); Bruton v. United States, 391 U.S. 123, 137 (1968)
(admission of co-defendant’s confession implicating
defendant); Sheppard v. Maxwell, 384 U.S. 333, 363 (1966)
(pretrial publicity combined with disruptive influences
in the courtroom); Remmer v. United States, 350 U.S. 377,
381 (1956) (associate of defendant attempted to bribe
juror). The essential standard in this area of jurispru-
dence, as articulated by the Supreme Court, is that an
episode is deemed inherently prejudicial if “an unaccept-
able risk is presented of impermissible factors coming
into play.” Holbrook, 475 U.S. at 570 (quoting Estelle v.
Williams, 425 U.S. 501, 505 (1976)). The toxic nature of
the potential prejudice in such cases is so inherent to the
misconduct that “little stock need be placed in jurors’
claims to the contrary.” Id.
  Previous cases where the courtroom behavior and
atmosphere spiraled out of control in this manner are
indeed rare. The Fifth Circuit dealt with a similar set of
circumstances in Braswell v. United States, 200 F.2d 597,
602 (5th Cir. 1952). In that case, there were seven co-
defendants who were being tried jointly for possession of
marijuana. During the trial and in the presence of the
jury, two of the co-defendants physically assaulted a
United States Marshal. In addition, one of the defendants
had to be physically restrained from swallowing a capsule.
The Fifth Circuit ruled that these actions prejudiced the
other defendants in the mind of the jury, and reversed
the district court’s denial of a mistrial.
  In the instant case, it is without question that the
district court was judicious in its use of voir dire and
cautionary instructions. But sometimes this is not enough;
things should have never evolved and erupted in this
manner. To be sure, the district court has wide latitude to
No. 06-1353                                                11

control courtroom atmosphere and unruly defendants. See
Illinois v. Allen, 397 U.S. 337 (1970). The combination of
what the jury was exposed to in this case—Patterson
garbed in prison attire verbally assaulting his attorneys,
a campaign of intimidation by members of the gallery, a
violent courtroom brawl—amounts to prejudice. This is
especially true when considering that the government’s
theory of the case was that Patterson and Mannie were
dangerous members of a street gang.3 If the jury had
witnessed these events in the context of a tax evasion case,
it would likely be viewed as less prejudicial. But given
the government’s theory, and given the air of intimida-
tion, the outbursts, and the violence that the jury wit-
nessed, it is clear that there was an impermissible risk
that some jurors voted to convict based on the perception
that Mannie was a violent gangster who needed to be
incarcerated for the safety of the community.
  To reiterate, this set of circumstances is truly rare, and
it should remain so, or, ideally, nonexistent. Yet trials
are, in the end, human events: disruptions are bound
to occur. Cautionary instructions and jury interviews
should remain the primary weapons against improper
jury bias. It is axiomatic in our system of justice that
an individual is entitled to a fair trial—not a perfect one.
Nevertheless, the distance between the concepts of fair
and perfect cannot be so great as to render the former
meaningless. To rule that Mannie received a fair trial
in the context of this courtroom scene would be to do
exactly that.




3
  The defense’s theory of the case, in relation to Mannie, was
that he was by no means a gang member, but instead Patterson’s
long-time friend who was doing a favor for one of his heroes.
12                                         No. 06-1353

                  III. Conclusion
  For the foregoing reasons, we VACATE Mannie’s con-
viction and REMAND for a new trial.

A true Copy:
      Teste:

                     ________________________________
                     Clerk of the United States Court of
                       Appeals for the Seventh Circuit




                USCA-02-C-0072—12-12-07
