09-4056 U.S. v. Vasquez

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Evidence
Relevance; harmless error

Although it was error to admit jail recordings that concerned defense counsel’s opinion of the case, the error was harmless.

“The admission into evidence of the MCC recordings themselves, however, is a horse of a different color. The government argues that the judge did not err because it never sought to admit the recordings for their truth. But the government’s argument ignores the fact that the judge said, without question, that ‘[w]ith respect to interest, bias, and prejudice . . . if any of these statements can be interpreted as such to indicate an interest, bias or prejudice, they would go in for their truth.’ (emphasis added). Vasquez is correct—on this point, the judge made the wrong call. But Vasquez gets no traction on this point if the error in admitting the MCC recordings for their truth was harmless. See United States v. Olano, 507 U.S. 725, 734 (1993). ‘The test for harmless error is whether, in the mind of the average juror, the prosecution’s case would have been “significantly less persuasive” had the improper evidence been excluded.’ United States v. Emerson, 501 F.3d 804, 813 (7th Cir. 2007). On appeal, the burden lies on the government to prove that a reasonable jury would have reached the same verdict without the challenged evidence. United States v. Williams, 493 F.3d 763, 766 (7th Cir. 2007).”

Affirmed.

09-4056 U.S. v. Vasquez

Appeal from the United States District Court for the Northern District of Illinois, Norgle, J., Evans, J.

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