In discussing our standard of review on this issue, both Defendants and the government in their briefs cite our cases in which material that had not been admitted in evidence was present in the jury room. See, e.g., United States v. Sababu, 891 F.2d 1308, 1333 (7th Cir. 1989) ("A criminal defendant in our system has `a right to be tried on the basis of the evidence admitted at his trial, and this right may be violated if the jury gets access to extra-record evidence . . . even if the access is not the result of any prosecutorial misconduct.'" (quoting United States v. Bruscino, 687 F.2d 938, 940 (7th Cir. 1982) (emphasis added)).

First, we have held, and we reaffirm, that district courts "retain . . . substantial discretion over the determination of whether the prejudice arising from the unauthorized contact is rebutted or harmless." United States v. Sababu, 891 F.2d 1308, 1335 (7th Cir.1989); see also Evans v. Young, 854 F.2d 1081, 1084 (7th Cir.1988). The relevant question is thus whether the court abused its discretion in making that determination.

A criminal defendant has "a right to be tried on the basis of the evidence admitted at his trial, and this right may be violated if the jury gets access to extra-record evidence . . . even if the access is not the result of any prosecutorial misconduct." United States v. Sababu, 891 F.2d 1308, 1333 (7th Cir. 1989) (quoting United States v. Bruscino, 687 F.2d 938, 940 (7th Cir. 1982) (en banc), cert. denied, 459 U.S. 1228 (1983)). However, a jury verdict should not hastily be disturbed through the grant of a motion for a new trial, Berry, 64 F.3d at 306, and a defendant is not entitled to a new trial every time a jury is exposed to material not admitted into evidence.

"Whether the evidence at trial established a single conspiracy is a question of fact for the jury." United States v. Sababu, 891 F.2d 1308, 1322 (7th Cir. 1989). Accordingly, we will reject a sufficiency challenge if any rational jury could have found the defendant guilty beyond a reasonable doubt.

To do this we would scrutinize the agreement around which the conspiracy turned, for "[t]he scope of the agreement determines the scope of the conspiracy," id., and, in this particular context, "[i]t is the nature and scope of the agreement that is the determinative factor in distinguishing between single and multiple conspiracies." United States v. Sababu, 891 F.2d 1308, 1322 (7th Cir. 1989); United States v. Napue, 834 F.2d 1311, 1332 (7th Cir. 1987); United States v. Towers, 775 F.2d 184, 189 (7th Cir. 1985). These things we would do were we to take up the question suggested by the appellants.

While Rosales-Lopez and certain of the other cases I have cited arose from the context of jury selection voir dire, the "abuse of discretion" standard of review, and, I think, the principles underlying that standard, apply as well to voir dire conducted during the trial to determine the continuing impartiality of the jurors. In United States v. Sababu, 891 F.2d 1308 (7th Cir. 1989), a transcript of a taped phone conversation, which the court had excluded since the tape was "largely inaudible," found its way into the jury room, and certain of the jurors had reviewed it. 891 F.2d at 1333. The judge asked counsel to draft a curative instruction, and soon instructed the jury that the transcript was "not in evidence.

Direct Sales Co. v. United States, 319 U.S. 703, 709, 63 S.Ct. 1265, 1268, 87 L.Ed. 1674 (1943) (interpreting United States v. Falcone, 311 U.S. 205, 61 S.Ct. 204, 85 L.Ed. 128 (1940)). The scope of a conspiracy is determined by the scope of the agreement, United States v. Sababu, 891 F.2d 1308, 1322 (7th Cir. 1989), and if the jury is to infer an agreement to join a conspiracy that transcends the scope of a more limited conspiracy, there must be some additional evidence to justify taking the inference further: A seller of narcotics in bulk surely knows that the purchasers will undertake to resell the goods over an uncertain period of time, and the circumstances may also warrant the inference that a supplier or a purchaser indicated a willingness to repeat.

The common criminal objective of the conspiracy was cocaine distribution; there was ample evidence at trial for a jury to find that the attempt to murder Stauss, who was cooperating with police to provide evidence of cocaine sales, was done to further or to promote the overall drug conspiracy. See United States v. Sababu, 891 F.2d 1308, 1322-24 (7th Cir. 1989). The parties involved in a conspiracy do not have to know the other conspirators or to participate in every aspect of the conspiracy.

He therefore lacked a subjective expectation of privacy in his recorded jail calls. See United States v. Doyle, No. 06 CR 224, 2007 WL 707023, at *1 (E.D. Wis. Feb. 16, 2007) ("[W]here, as here, a jail provides notice that calls will be monitored, there is no reasonable expectation of privacy in such communications, United States v. Sababu, 891 F.2d 1308, 1329 (7th Cir. 1989). In the present case, defendant was plainly advised in several ways that his calls were being monitored and recorded.

Citing to U.S. v. Linwood, 142 F.3d 418, 422 (7th Cir. 1998). Citing to U.S. v. Sababu, 891 F.2d 1308, 1325 (7th Cir. 1989). Citing to Fay v. People of State of New York, 332 U.S. 261, 284 (1947).