United States v. Raymond Watson, Herbert L. Williams, Walter Arthur Parker, William Harrison King, Michael D. Berry, A/K/A "Jerry Forsh" and J. B. McGlocklin, 669 F.2d 1374, 11th Cir. (1982)
United States v. Raymond Watson, Herbert L. Williams, Walter Arthur Parker, William Harrison King, Michael D. Berry, A/K/A "Jerry Forsh" and J. B. McGlocklin, 669 F.2d 1374, 11th Cir. (1982)
2d 1374
10 Fed. R. Evid. Serv. 31
Appellants Watson, Williams, Parker, King, Berry, and McGlocklin were each
THE FACTS
2
The Tri-County Airport is located in Holmes County, Florida-a rural area in the
panhandle. Patrick Campbell and his wife lived in a trailer at the airstrip in
April, 1979. On the evening of April 8, 1979, appellants Bill King, J. B.
McGlocklin, and Mike Berry appeared at the Campbell's trailer. King told
Campbell that a load of marijuana was being flown into the airport that night
and offered him $5,000 to keep silent. Pursuant to an agreement with Agent
Rowell, of the Florida Department of Law Enforcement, Campbell informed
King that he was a pilot and offered to help in future ventures. King said that he
would "contact the people down south" to see if Campbell could act as pilot on
future trips.
About the end of June, 1979, the Campbells vacated the trailer and Phil
Robbins, who was also working with Agent Rowell, moved in. Appellants King
and Berry came to the trailer looking for Campbell on August 8th. They asked
Robbins where Campbell was and after a short conversation Robbins offered to
help the smugglers. King then told Robbins that there were plans to bring about
five loads of marijuana into the Tri-County Airport and he offered Robbins
$5,000 each trip for his cooperation. King said that his responsibility in the
"organization" was to provide protection at the airstrips and to see to the
unloading and delivery of the marijuana.
A couple of days after the West Palm Beach meeting, Campbell, Parker, and
Dirk Winky flew out of Lakeland, Florida to Port-au-Prince, Haiti. The trio
spent the night at Parker's house in Haiti. The next day, Parker, Campbell, Dirk
Winky, and "Jim" flew to Colombia. They landed on an airstrip adjacent to a
river. But it was the wrong airstrip and, to make matters worse, the plane was
stuck in mud. Dirk Winky went upriver and returned with Herb Williams and a
few other people. While all hands were attempting to free the plane, a
Colombian airplane appeared and began circling. The group jumped into
motorized canoes and proceeded upriver to a farmer's shack. From their
vantage point at the shack they observed the Colombian aircraft dropping
bombs in the vicinity of the stranded plane. Herb Williams left the group at the
shack, but all five met up later that evening at the airstrip where the plane
should have landed. From that airstrip, Campbell, Jim, Dirk Winky, and Parker
went further upriver to the spot where the marijuana was stored. They stayed at
that site for three days.
Then commenced the return trip. The route back took the group to Bogota, an
airstrip on the Colombian coast, Port-au-Prince, and Nassau-with mishaps
occurring at every turn. Campbell, accompanied by the McCoys (friends of
Parker), finally arrived back in the United States on August 29, 1979. He was
picked up at the West Palm Beach Airport by Herb Williams.
Sometime after the August fiasco, Campbell, King, Watson, and McGlocklin
waited on a planeload of marijuana at Watson's house in Okeechobee, Florida.
After a few hours, Watson announced that the plane had been stolen by its
pilot, no "dope" was coming in, and everyone should go home. At the last
meeting Campbell had with King, in December, 1979, King indicated that he
feared they were all going to jail because the "people down south had their
telephone records subpoenaed."
THE ISSUES
10
Although we find that the District Court's exclusion of witnesses who would
give their opinion of Patrick Campbell's ability to testify truthfully requires
reversal, we will also address all other issues presented by the appellants.
Guidance at this point, we believe, will serve as an aid to proceedings on retrial.
11
The issues roughly fall into three categories: the sufficiency of the
government's proof; the exclusion of character witnesses and other evidentiary
matters; and matters occurring at the end of trial.
Two issues concern the sufficiency of the evidence. All appellants argue that
the government charged one, but proved two conspiracies. Appellant Williams
also challenges the sufficiency of the evidence to support his conviction.
13
Appellants argue that the District Court's denial of their severance motions was
improper because the government presented proof at trial of two conspiracies
when the indictment charged a single conspiracy to possess with intent to
distribute marijuana.2 They maintain that the first conspiracy centered around
the April incident at the Tri-County Airport while the second conspiracy
involved the aborted smuggling trip to Colombia, that the government failed to
prove any connection between the two incidents, and that the government failed
to prove that either group of participants was aware of the activities of the other
group.
14
denied, 439 U.S. 865, 99 S.Ct. 188, 58 L.Ed.2d 174 (1979); United States v.
Morrow, 537 F.2d 120, 130 (5th Cir. 1976), cert. denied, 430 U.S. 956, 97 S.Ct.
1602, 51 L.Ed.2d 806 (1977); United States v. Perez, 489 F.2d 51, 62 (5th Cir.
1973), cert. denied, 417 U.S. 945, 94 S.Ct. 3067, 41 L.Ed.2d 664 (1974). The
factors we examine to determine whether there is one overall conspiracy are
"the existence of a common goal, the nature of the scheme, and an overlapping
of participants in the various dealings." Becker, 569 F.2d at 960.
15
The government presented substantial evidence in this case to support the jury's
verdict of a single conspiracy. The common goal of the conspiracy was the
importation and distribution of marijuana into this country. The nature of the
scheme, involving as it did the unloading of marijuana off planes at the TriCounty Airport and flights to Colombia to pick up the marijuana, renders it
inconceivable that the appellants were unaware of the participation of others in
the conspiracy. Finally, there was proof of overlapping membership; King,
McGlocklin, and Berry were together at the Tri-County Airport, Watson and
Parker met with Campbell to plan the Colombia flight, and King, Watson, and
McGlocklin waited together on another planeload of marijuana. That some of
the defendants were responsible for smuggling the marijuana out of Colombia
and others were responsible for offloading and distribution at the Tri-County
Airport makes no difference. The government's evidence established that they
were working together "with a single design for the accomplishment of a
common purpose." United States v. Johnson, 585 F.2d 119, 128 (5th Cir. 1978).
We conclude that appellants' motions for severance were properly denied by
the District Court.
16
17
On appeal, we must determine whether, taking the view most favorable to the
government, Glasser, 315 U.S. at 80, 62 S.Ct. at 469, the evidence could be
found to exclude every reasonable hypothesis of innocence. United States v.
Berry, 644 F.2d 1034, 1039 (5th Cir. 1981); United States v. Marable, 574 F.2d
224, 229 (5th Cir. 1978). To establish individual guilt in the context of a
conspiracy charge, the government must prove that the defendant knew of the
conspiracy and voluntarily participated in it. United States v. Middlebrooks,
618 F.2d 273, 278 (5th Cir.), modified on other grounds, 624 F.2d 36 (5th
Cir.), cert. denied, 449 U.S. 984, 101 S.Ct. 401, 66 L.Ed.2d 246 (1980); United
States v. Harbin, 601 F.2d 773, 781 (5th Cir. 1979). Mere association with other
conspirators, or presence at the scene of the crime, without more, is insufficient
to prove knowing participation in the conspiracy. United States v. Littrell, 574
F.2d 828, 833 (5th Cir. 1978). But participation in the conspiracy may be
demonstrated by circumstantial evidence and the jury may draw inferences that
are supported by proof. United States v. Fitzharris, 633 F.2d 416, 422 (5th Cir.
1980), cert. denied, 451 U.S. 988, 101 S.Ct. 2325, 68 L.Ed.2d 847 (1981). See
United States v. Alvarez, 625 F.2d 1196, 1198 (5th Cir. 1980) (en banc), cert.
denied, 451 U.S. 938, 101 S.Ct. 2017, 68 L.Ed.2d 324 (1981).
18
19
Williams postulates as an innocent motive for his activities that he might have
been "boondock stomping" in Colombia. The evidence, however, supports a
finding that Williams was not taking a stroll in the jungle. The jury could
reasonably infer, from the phone conversation and Williams' subsequent
appearances and assistance at the Colombia airstrips, that Williams agreed to
have the marijuana ready to load when the plane landed and that his presence
at the airstrips was for that purpose. It was for the jury to decide whether such
activity was a part of the conspiratorial effort or an innocent sojourn. The
evidence supports the conclusion that Williams was a knowing and voluntary
participant in the conspiracy.
21
The issue on appeal is whether the trial court's exclusion of the five character
witnesses was prejudicial error. One of the excluded witnesses was offered
solely to give reputation testimony. The rest would have given opinion
testimony or a combination of opinion and reputation testimony.3
22
Rule 608, Federal Rules of Evidence, governs the use of character evidence to
attack credibility. The rule provides: "The credibility of a witness may be
attacked or supported by evidence in the form of opinion or reputation ...."
Fed.R.Evid. 608(a) (emphasis supplied).
23
We deal with the reputation witness first. A proper foundation must be laid
before the admission of reputation testimony. The reputation witness must be
qualified through a showing of "such acquaintance with the (person under
attack), the community in which he has lived and the circles in which he has
moved, as to speak with authority of the terms in which generally he is
regarded." Michelson v. United States, 335 U.S. 469, 478, 69 S.Ct. 213, 219, 93
L.Ed. 168 (1948). See also United States v. Augello, 452 F.2d 1135, 1139-40
(2d Cir. 1971), cert. denied, 406 U.S. 922, 92 S.Ct. 1787, 32 L.Ed.2d 122
(1972); United States v. Salazar, 425 F.2d 1284, 1286 (9th Cir. 1970).
Appellants' reputation witness testified that she had lived in Bonifay (the
location of the Tri-County Airport) for thirty-three years; she worked with
Campbell every day from July, 1978 to October, 1978; she talked with
customers about Campbell; and his reputation for truthfulness at that time was
bad.
24
25
The District Court's exclusion of the opinion witnesses is the most troubling
issue in this case. The inclusion of opinion testimony in Rule 608(a) represents
a deviation from common law practice. See 3 Weinstein's Evidence P 608(04)
(1981). Whether a foundation such as that required for reputation testimony is
also required for opinion testimony was decided by the Fifth Circuit in United
States v. Lollar, 606 F.2d 587 (5th Cir. 1979). In Lollar, the defendant argued
that the district court erred when it permitted a government witness to give an
opinion of the defendant's character for truthfulness. The Fifth Circuit
determined that prior questioning of the opinion witness regarding his
That opinion testimony does not require the foundation of reputation testimony
follows from an analysis of the nature of the evidence involved. The reputation
witness must have sufficient acquaintance with the principal witness and his
community in order to ensure that the testimony adequately reflects the
community's assessment. Michelson, 335 U.S. at 478, 69 S.Ct. at 219. In
contrast, opinion testimony is a personal assessment of character. The opinion
witness is not relating community feelings, the testimony is solely the
impeachment witness' own impression of an individual's character for
truthfulness. Hence, a foundation of long acquaintance is not required for
opinion testimony. Of course, the opinion witness must testify from personal
knowledge. See Fed.R.Evid. 602. But once that basis is established the witness
should be allowed to state his opinion, "cross-examination can be expected to
expose defects." 3 Weinstein's Evidence P 608(04), at 608-20 (1981).
27
The record reveals that the opinion witnesses offered by appellants had formed
an opinion based on personal knowledge.6 Consequently, we find that the
District Court's exclusion of their testimony for failure to meet a foundation
requirement was error. We recognize that trial courts, in the exercise of their
discretion, may limit the number of character witnesses a party may call and,
absent an abuse of discretion, the district court's ruling will not be disturbed on
appeal. United States v. Haynes, 554 F.2d 231, 234 (5th Cir. 1977); United
States v. Gray, 507 F.2d 1013, 1016 (5th Cir. 1975). But this case does not
involve such an exercise of discretion. The four opinion witnesses were
excluded because the District Court was mistaken regarding the necessity of a
foundation for opinion testimony. See United States v. Oliver, 492 F.2d 943,
947 (8th Cir. 1974). 7 Moreover, the District Court's error denied appellants
their sixth amendment right to compulsory process. United States v. Davis, 639
F.2d 239, 244 (5th Cir. 1981); United States v. Goodwin, 625 F.2d 693, 700
(5th Cir. 1980). The Supreme Court has termed this right "a fundamental
element of due process of law." Washington v. Texas, 388 U.S. 14, 19, 87 S.Ct.
1920, 1923, 18 L.Ed.2d 1019 (1967). Constitutional error such as this mandates
reversal unless we are convinced that the error was harmless beyond a
reasonable doubt. Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828,
17 L.Ed.2d 705 (1967).
28
29
30
King, Berry and McGlocklin claim that the District Court erred when it failed
to exclude from evidence fuel receipts and ledger entries as a discovery
sanction against the government. Discovery matters are ordinarily committed to
the sound discretion of the trial court. Ginsberg v. United States, 257 F.2d 950,
956 (5th Cir. 1958). A discovery ruling will not be reversed on appeal unless it
is shown that the trial court exceeded its discretion and that the error prejudiced
the substantial rights of the party seeking reversal. United States v. Bullock,
551 F.2d 1377, 1384 (5th Cir. 1977); United States v. Saitta, 443 F.2d 830, 831
(5th Cir.), cert. denied, 404 U.S. 938, 92 S.Ct. 269, 30 L.Ed.2d 250 (1971).
31
At trial the government called Sue Foran, owner of a flight fuel station, who
testified that large quantities of fuel were purchased from her station by a man
resembling Mike Berry. She produced three fuel receipts and a ledger.
Appellants objected to the introduction of the documents into evidence because
they had not been disclosed in discovery.8 The trial judge ruled that discovery
had been made and overruled the objection. The record reflects that the
government's amended response to defendants' request for discovery, filed three
days before trial, lists the fuel receipts and certifies that a copy of the amended
response was furnished by hand delivery to all appellants. The ledger was not
listed. The trial transcript also reflects that one defense attorney (although not
the one representing these three appellants) was orally notified of the
government's intended use of the documents.
32
Although the discovery made by the government was on short notice and was
not as complete as it could have been, the District Court's ruling that the
government had made disclosure is supported by the record. We do not believe
that allowing the documents into evidence was an abuse of discretion. Nor do
we find that appellants were prejudiced by the introduction of the documents.
The documents were merely corroborative of Sue Foran's testimony, added little
to the government's case, and their introduction fell short of affecting
appellants' substantial rights.
The remaining issues can best be addressed by setting forth briefly the
sequence in which they arose.
34
Prior to closing arguments the trial judge held a charge conference. At the
conference appellants were informed that the jury instructions would be tape
recorded and a copy sent with the jurors into the jury room. An objection was
made to this procedure. Near the close of the conference a request was made
under Rule 30, Federal Rules of Criminal Procedure, that after the charge, the
jury be excused in order to give appellants an opportunity to make objections
out of the presence of the jury. After the jury was charged, however, appellants
were required to make their objections at the bench in the presence of the jury.
Thirty-five minutes after the jury retired, the trial judge realized that an
alternate juror had retired with the jury. The jury was called back and the
alternate was immediately discharged.
35
The tape recorded charge, the Rule 30 violation, and the failure to discharge the
alternate before the jury retired are cited on appeal as instances of reversible
error. We believe that these problems and, indeed, our reversal predicated on
the exclusion of the opinion witnesses could have been avoided by more careful
attention to the rules of evidence and the rules of criminal procedure. We
recognize that presiding over a complex conspiracy case such as this can be
confusing and vexatious. When a trial involves multiple defendants and their
attendant lawyers opportunities for mistake increase dramatically. It is
imperative that the trial judge adopt some method for containing the confusion
inherent in such trials. One solution, adopted successfully by other district
courts, is the use of a checklist. The list sets forth important evidentiary and
procedural points and the order in which they must occur. Through the use of
such a list the trial is kept on an orderly course and errors due to simple
inadvertence are prevented. We suggest that on retrial a checklist, or some
other similar method, might be employed by this District Court. We also feel
compelled to remind all counsel that they are "officers of the court." Being
advocates for specific clients does not relieve such officers of their obligation to
assist the court, particularly in areas of procedure. We must all be concerned
with the smooth operation of our judicial machinery for its ability to function is
the cornerstone for protecting the rights of all.
36
37
Whether it is error to provide the jury with a taped copy of the instructions to
refer to during its deliberations has never been addressed by this Court or any
other Court of Appeals.9 The decision of United States v. Schilleci, 545 F.2d
519 (5th Cir. 1977), however, is closely analogous. In Schilleci, the trial court
furnished the jury with a written copy of its instructions. The Fifth Circuit
explained that "(w)hile not error in itself, the practice is conducive to dissection
of the charge by the jury and overemphasis of isolated parts rather than
consideration of the charge as a whole." Id. at 526.10 Schilleci criticizes the
practice of giving the jury a copy of the instructions, but it does not label that
practice error. It was the presence of other factors prejudicial to the defendant
which convinced the Schilleci court that reversal was necessary. Id. at 526. See
United States v. Perez, 648 F.2d 219, 222 (5th Cir.), cert. denied, 449 U.S.
1084, 101 S.Ct. 872, 66 L.Ed.2d 810 (1981); United States v. Hooper, 575 F.2d
496, 499 (5th Cir.), cert. denied, 439 U.S. 895, 99 S.Ct. 256, 58 L.Ed.2d 242
(1978).11
38
Appellant Parker argues that providing the jury with a taped copy of the charge
is reversible error because prejudicial factors were present. First, Parker claims
the trial judge's instruction to the jury that they could replay "all or any part of
the instructions" permitted the jury to single out and overemphasize portions of
the charge. Second, he asserts that the trial judge's misreading of a sentence
when instructing the jury could confuse the jury if that portion of the charge
were replayed in the jury room.
39
As to the first assertion, the trial court was careful to instruct the jury at the
beginning of the charge that they should consider the charge as a whole:
40
Unless
otherwise stated, you should consider each instruction to apply separately
and individually to each Defendant on trial and you must follow all of my
instructions as a whole. You have no right to disregard or give special attention to
any one instruction or to question the wisdom or correctness of any rule I may state
to you.
41
42
Unlike Schilleci, this jury was adequately informed that the whole charge must
be considered in reaching their verdict. Against that background, the judge's
further instruction regarding use of the tape recorder was not prejudicial.
43
Appellant's second claim of prejudice also lacks merit. The district judge
corrected himself in mid-sentence: "But do not consider your-surrender your
honest conviction as to the weight or effect of the evidence solely because of
the opinion of your fellow jurors or for the mere purpose of returning a
verdict." Record, vol. XIV, at 1807. Taken as a whole the intent of the
instruction is clear. It is not confusing or misleading and is certainly not
equivalent to the erroneous instruction which was sent into the jury room in
Schilleci.
44
45
Appellants ask too much. The additional risk of overemphasis which might
result from use of a tape recorder does not justify automatic reversal. Schilleci
points out that the practice of providing a written copy of the instructions is
"conducive to .... overemphasis of isolated parts" and the same would apply to a
taped copy. But when the jury is cautioned to consider the charge as a whole
and the jury charge is accurate and complete, reversal solely because a taped or
a written charge was provided to the jury is not warranted. In fact, under
appropriate circumstances, the use of a taped charge or a written charge could
well aid juror comprehension, as well as expedite the proceedings. See Perez,
648 F.2d at 224 (Fay, J., specially concurring) ("furnishing a (written) copy of
the court's instructions to the jury is both sound and proper").
46
In any event, appellants in this case were not prejudiced by the taped charge
and its use does not constitute reversible error.
47
Appellants King, Berry, McGlocklin, Parker, and Watson claim the District
Court's refusal to follow the dictates of Rule 30 was reversible error.
48
Under Rule 30, after the jury has been instructed, counsel must be given an
opportunity to object to the instructions out of the hearing of the jury. The rule
was amended in 1966 to provide that opportunity must be given to object out of
the presence of the jury, as well as out of its hearing, if requested by counsel.12
49
At the conference held prior to closing arguments, counsel for appellant Parker
specifically requested that a hearing out of the presence of the jury be given at
the conclusion of the court's charge:
50 COURT: What I do is after I send the jury to deliberate on the record I say are
THE
there any objections to the charge the Court has given other than as previously
noted.
51 GOLDSTEIN (counsel for appellant Parker): All right. That will satisfy us. In
MR.
the event that there are additional objections, may we make a request at this time
under Rule 30 that the jury be excused so we can make any objections out of their
presence, Your Honor?
THE COURT: You mean if I misread something?
52
53 GOLDSTEIN: Yes, Your Honor. If we have something that was not previously
MR.
logged.
THE COURT: Okay.
54
55
56
57
(THE
COURT): Let's give these to the lawyers, a copy of the verdict form for each
counsel. Do you wish to approach the bench before the jury retires?
MR. GOLDSTEIN: We would request a Rule 30 conference, Your Honor.
58
THE COURT: Okay. Approach the bench.
59
(Whereupon, a bench conference was held.)
60
61 COURT: Does counsel have any objections to the instructions as given other
THE
than as noted in our previous Rule 30 conference?
62 GOLDSTEIN: Yes, Your Honor. First we would respectfully request a hearing
MR.
out of the presence of the jury.
THE COURT: What is the basis of it?
63
MR. GOLDSTEIN: Rule 30.
64
THE COURT: Well, we are.
65
66 GOLDSTEIN: I have an objection and we are out of the hearing of the jury but
MR.
not out of the presence and I would like the record to reflect that the jury is in the
courtroom, and is looking at us right now.
THE COURT: Well, state what your objections are.
67
68 GOLDSTEIN: I would like to do this out of the presence of the jury and if the
MR.
Court insists, I will proceed, Your Honor.
69 COURT: All right.MR. GOLDSTEIN: We are preceding (sic) in the presence
THE
of the jury. Your Honor, my first objection is ....
70
71
The trial judge obviously misunderstood the distinction between "out of the
hearing" and "out of the presence." The rule clearly makes such a distinction.
Again, we suggest that one way to avoid procedural errors is to establish a
routine and follow it at every trial by means of a checklist. For example, the
preferred procedure for a trial court to follow after completing its charge is to
excuse the jury with the admonition that they are not to start their deliberations.
Counsel could then be permitted to make objections to the charge out of the
presence of the jury. After all objections have been made, the judge should
bring the jury back, make any corrections to the charge that are merited, and
explain to the jury that they may now start their deliberations. This would also
be an appropriate point to check the jury one last time to make sure that all
alternates have been discharged before the jury retires to deliberate.
72
In the present case, the District Court did not follow the procedure outlined
above. Over counsel's proper request for a hearing out of the presence of the
jury, the trial judge required counsel to make objections at a bench conference.
This was a clear violation of Rule 30, but reversal based on this error is not
required unless we find that appellants were in some way prejudiced. Hamling
v. United States, 418 U.S. 87, 135, 94 S.Ct. 2887, 2916, 41 L.Ed.2d 590
(1974); United States v. Salinas, 601 F.2d 1279, 1282-85 (5th Cir. 1979).
73
Salinas indicates that two different standards have been utilized by the Fifth
Circuit in determining prejudice: "(1) such a violation is not reversible error
unless the defendant demonstrates that he has been prejudiced; or (2) such a
violation is not reversible error where it affirmatively appears that the
defendant was not prejudiced." 601 F.2d at 1283. Sultan v. United States, 249
F.2d 385 (5th Cir. 1957), was cited as applying the first standard and Hodges v.
United States, 243 F.2d 281 (5th Cir. 1957), was cited as applying the second.
No attempt was made in Salinas to resolve the two cases since the record
demonstrated clearly that the defendants were prejudiced. 601 F.2d at 1285. We
also find it unnecessary to delve into the propriety of either standard. Applying
the more lenient standard (from appellants' viewpoint), we find that it
affirmatively appears from the record that appellants were not prejudiced.
74
Two types of prejudice may result from a failure to allow objections outside the
presence of the jury. First, harm may occur if counsel for the defense is placed
in a posture of apparent hostility to the trial judge. Second, to avoid that
posture, counsel may feel pressured to cut short argument on objections and the
court, not being fully advised as to the nature of an objection, may erroneously
instruct the jury. See generally Hamling, 418 U.S. at 134-35, 94 S.Ct. at 2916;
Salinas, 601 F.2d at 1283. If prejudice of either type occurs, reversal is
required. See Hodges, 243 F.2d at 284 (trial judge's remarks in presence of jury
were disparaging of criminal lawyers); Salinas, 601 F.2d at 1285 (trial judge
erroneously instructed jury over defendants' objection in the presence of the
jury). Prejudice will not be found, however, if the objections made in the
presence of the jury have been previously argued and ruled on by the trial
court, or are clearly meritless. See Hamling, 418 U.S. at 135, 94 S.Ct. at 2916;
Sultan, 249 F.2d at 388. In that event, "(w)hatever reaction the jury might have
had from seeing or hearing any part of the bench conference (is) the result of
counsel's own doings and unnecessary for the preservation of appellant's record
of objections." United States v. Hamling, 481 F.2d 307, 325 (9th Cir. 1973),
aff'd, 418 U.S. 87, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974).
75
On appeal, appellants stress the validity of three objections that were made at
the bench conference: the tape recorded charge and the judge's failure to
require that a record be made of its use; the judge's misreading of a portion of
the charge; and the use of a single verdict form. The first objection was
repetitious of objections made during the conference held prior to closing
arguments and the second objection borders on the frivolous. The third
objection also lacks merit. When verdict forms are provided to the jury, "any
reasonable form will suffice." United States v. Lustig, 555 F.2d 737, 746 (9th
Cir. 1977), cert. denied, 434 U.S. 1045, 98 S.Ct. 889, 54 L.Ed.2d 795 (1978).
Appellants' objection was that the court had not instructed the jurors that they
could return a partial verdict and with the single verdict form the jurors might
not understand that they could return guilty verdicts against fewer than all of
the defendants. The verdict form listed all defendants and next to each name
was a space to check either "guilty" or "not guilty". The trial judge explained
the verdict form to the jurors and during the charge the jury was instructed that
each defendant "should be considered separately and individually."13 We are
satisfied that the jurors understood the nature of their obligation.14
76
Two other objections, not discussed by appellants on appeal, were made at the
bench conference. Appellants objected that the court gave an improper
instruction regarding the fifth amendment right not to testify and that the court
should not have instructed the jury that "other defendants who have not been
apprehended are of no concern to you." We have reviewed the charge and find
no error in either instruction.
77
In summary, five objections were made at the bench conference. All were
promptly and properly overruled. The jury was not erroneously instructed, nor
were appellants subjected to disparaging remarks by the trial judge in the
presence of the jury. Appellants have suffered no prejudice and reversal would
be inappropriate for this Rule 30 violation.
78
excused the alternate who, it turned out, had been elected foreman. About three
hours later, in response to a request from the jury for a portion of the trial
transcript, the jury was brought back into the courtroom and given a cautionary
instruction to disregard any deliberations prior to the alternate being excused.15
The jury again retired and in forty-five minutes returned with a verdict of guilty
as to all appellants. The trial judge then put the following question to each
juror: "Did the presence of Mr. Durden (the alternate) in the jury room play any
part in the verdict you just rendered?" Record, vol. XIII, at 1843. The jurors
were individually questioned out of the presence of the other jurors. All
responded in the negative. Counsel for appellants asked the judge to inquire of
the jurors what, if anything, the alternate said while in the jury room. This
request was denied. Consequently, the record, except in two instances, reflects
a simple "no" answer from each juror. One juror amplified by stating, "No. We
just more or less asked him to be the foreman and we had just started." Id. at
1845. Another juror answered, "No, it didn't. We had just elected him." Id. at
1848.
79
When the trial judge failed to discharge the alternate juror, Rule 24(c), Federal
Rules of Criminal Procedure, was violated. The rule provides: "An alternate
juror who does not replace a regular juror shall be discharged after the jury
retires to consider its verdict." The rule is couched in mandatory language and
"should be scrupulously followed." United States v. Allison, 481 F.2d 468, 472
(5th Cir.), aff'd after remand, 487 F.2d 339 (5th Cir. 1973), cert. denied, 416
U.S. 982, 94 S.Ct. 2383, 40 L.Ed.2d 759 (1974). Bearing this in mind, our task
on appeal is to determine what remedy would be appropriate under the
circumstances of this case.
80
Appellants ask us to treat this violation in the manner taken by the Tenth Circuit
in United States v. Beasley, 464 F.2d 468 (10th Cir. 1972). In Beasley, as in
this case, the alternate retired with the jury. About twenty minutes elapsed
before the trial court realized the alternate had not been excused. During that
time the alternate voted on the foreman and voted to take a lunch break. The
Tenth Circuit noted that two approaches could be taken: (1) the trial court
could hold an evidentiary hearing to determine "whether the alternate juror's
participation exceeded some defined standard"; or (2) the alternate's inclusion
"in any proceeding commenced by the jury itself after it retires to deliberate is
ground for a mistrial." Id. at 469.
81
Reasoning that the alternate's presence in the jury room invaded the sanctity of
the jury and that an evidentiary hearing would also be an intrusion into that
sanctity, the Beasley court adopted the second alternative.
82
When
the case was submitted and the jury retired to deliberate, it then, with the
selection of the foreman or with any other act to organize or plan the deliberation,
began its own proceedings. Once these proceedings commenced, "the jury"
consisted only of the prescribed number of jurors. The alternate then became as any
other stranger to the proceedings regardless of whether she had been discharged.
83
Id. (emphasis added). Thus, a critical point was articulated which, if crossed,
would require reversal.
84
85
The Fifth Circuit indicated that it "might agree" under the facts of Beasley that
reversal was required, but under circumstances where the alternate's presence
was stipulated and the alternate was instructed not to participate, remand for an
evidentiary hearing was a more appropriate course of action. Id. at 471-72. If
the hearing revealed that the alternate had participated in the jury's
deliberations or that in some other way the alternate's presence might have
affected the jury's verdict, then reversal would be required. But, if there was no
"reasonable possibility that the presence of the alternate affected the jury's
verdict," reversal would not be necessary. Id. at 472.16
86
Under the facts presented, Allison followed an approach similar to the first
approach noted in Beasley. Appellants in the present case urge that, presented
as we are with facts so close to the Beasley situation, we must follow Beasley's
rule of automatic reversal rather than Allison. It will be recalled that Beasley
held the idea of jury sanctity to be inviolate. Once the jury took any action after
it retired to deliberate, it had begun its proceedings as a separate entity, the
alternate was a stranger to those proceedings, and the presence of the alternate
required a mistrial. We note that the Second and Fourth Circuit Courts of
Appeals have adopted a similar approach. United States v. Mahler, 579 F.2d
730 (2d Cir.), cert. denied, 439 U.S. 991, 99 S.Ct. 592, 58 L.Ed.2d 666 (1978);
United States v. Nash, 414 F.2d 234 (2d Cir.), cert. denied, 396 U.S. 940, 90
S.Ct. 375, 24 L.Ed.2d 242 (1969); United States v. Hayutin, 398 F.2d 944 (2d
Cir.), cert. denied, 393 U.S. 961, 89 S.Ct. 400, 21 L.Ed.2d 374 (1968); United
States v. Chatman, 584 F.2d 1358 (4th Cir. 1978); United States v. Virginia
Erection Corp., 335 F.2d 868 (4th Cir. 1964). But see Johnson v. Duckworth,
650 F.2d 122 (7th Cir. 1981) (in state court trial alternate's presence during jury
deliberations did not deny appellants a fair trial); Potter v. Perini, 545 F.2d
1048 (6th Cir. 1976) (same). We have carefully considered these cases and the
implications of a rule of automatic reversal. Although it is tempting from the
standpoint of ease and consistency of application to establish a "critical point"
beyond which reversal is required, we believe that such an approach sacrifices
too much to achieve simplicity.
87
88
In this case the trial judge questioned each juror regarding whether the alternate
had played any part in the verdict.18 We are unable to decide based on the
jurors' answers to this limited inquiry whether the alternate did deliberate on the
question of guilt or otherwise affected the verdict. Were this the only issue
presented on appeal, we would remand with instructions to conduct a detailed
evidentiary hearing
91
possibility that the alternate in any manner affected the verdict. This
determination will, in most cases, necessitate an evidentiary hearing.
Conclusion
92
We reverse and remand for a new trial because of the District Court's error in
excluding opinion witnesses offered to impeach the credibility of a government
witness.
93
Four other persons, William Pitts, Earl Johnson, Dirk Winky, and "Jim", were
named in the indictment but were not tried with appellants
The parties differ regarding which witnesses were reputation witnesses and
which ones were opinion witnesses. The government asserts that witnesses
Marquette and Kyle were the only witnesses offered to give opinion testimony.
Appellants claim that all but witness Messer were offered to give opinion
testimony. We have reviewed the testimony of each witness and conclude that
witness Messer was offered to give reputation testimony and witnesses Kyle,
Price, and Ellis were offered as opinion witnesses. Although the status of
On voir dire examination the following was elicited from the witnesses:
(1) John Marquette testified that he had lived near the Tri-County Airport for
six years, that he had worked with Patrick Campbell on two or three occasions
for less than an hour on each occasion, that he had talked with three to five
people in the community about Campbell, and that in his opinion Campbell was
not a truthful person and that Campbell had a reputation in the community for
being untruthful.
(2) Dean Kyle testified that he had employed Campbell for approximately three
months and that he had a bad opinion of Campbell's character for truthfulness.
(3) Carlo Price testified that he was a supervisor at Sowell Aircraft in Panama
City, that Campbell had been employed by Sowell Aircraft for about two
weeks, that he had observed Campbell during that time, and that in his opinion
Campbell had made untrue statements regarding his skills as a mechanic.
(4) Denny Ellis testified that he was an employee of the Florida Department of
Agriculture, that Campbell had made a false complaint against a crop duster,
and that in his opinion Campbell was not worthy of belief under oath.
The Seventh Circuit, in dicta, has approved taped charges. "(T)he need for
supplemental instructions may be reduced by sending into the jury room at the
time the jury retires either a written copy or a tape recording of ... the complete
instructions as given by the court." United States v. Silvern, 484 F.2d 879, 883
(7th Cir. 1973) (en banc). But cf. Bustamante v. Eyman, 456 F.2d 269, 273 (9th
Cir. 1972) (defendant had a constitutional right to be present when jury returned
to courtroom to hear replay of taped instructions); Wagner v. State, 76 Wis.2d
30, 250 N.W.2d 331 (1977) (better practice is to bring jury back into courtroom
if instructions are to be replayed)
10
Prior to Schilleci, Fifth Circuit case law held that the determination of whether
or not to furnish the jury with a written copy of the instructions was a matter of
discretion for the trial court. Stephens v. United States, 347 F.2d 722, 725 (5th
Cir.), cert. denied, 382 U.S. 932, 86 S.Ct. 324, 15 L.Ed.2d 343 (1965);
McDaniel v. United States, 343 F.2d 785, 789 (5th Cir.), cert. denied, 382 U.S.
826, 86 S.Ct. 59, 15 L.Ed.2d 71 (1965). This is the rule followed by other
circuits. E.g., United States v. Calabrese, 645 F.2d 1379, 1388 (10th Cir.), cert.
denied, --- U.S. ----, 101 S.Ct. 3008, 69 L.Ed.2d 390 (1981); United States v.
Brighton Building & Maintenance Co., 598 F.2d 1101, 1107-08 (7th Cir.), cert.
denied, 444 U.S. 840, 100 S.Ct. 79, 62 L.Ed.2d 52 (1979); United States v.
Hill, 589 F.2d 1344, 1352 (8th Cir.), cert. denied, 442 U.S. 919, 99 S.Ct. 2843,
61 L.Ed.2d 287 (1979); United States v. Blane, 375 F.2d 249, 255 (6th Cir.),
cert. denied, 389 U.S. 835, 88 S.Ct. 41, 19 L.Ed.2d 96 (1967)
11
Specifically, the trial court erroneously instructed the jury by giving a Mann
charge, see Mann v. United States, 319 F.2d 404 (5th Cir. 1963), cert. denied,
375 U.S. 986, 84 S.Ct. 520, 11 L.Ed.2d 474 (1964), and by failing to charge
that ignorance of the law may be considered in determining whether the
accused had specific intent. This error was compounded by the court's failure to
instruct the jury to consider the charge as a whole and by the provision of
written instructions. 545 F.2d at 524-26
12
13
The judge instructed: "The case of each defendant and the evidence pertaining
to him should be considered separately and individually. The fact that you may
find one of the defendants guilty or not guilty should not control your verdict as
to any other defendant." Record, vol. XIV, at 1806
14
15
17
We recognize that the hearing itself represents an intrusion into the privacy of
the jury. Under circumstances such as this we believe a hearing limited to a
determination of whether the alternate's presence could have affected the
verdict is justified. See generally United States v. Howard, 506 F.2d 865 (5th
Cir. 1975) (allegation of jury irregularity requires evidentiary hearing)
18
Appellants complain that the trial judge "telegraphed" the appropriate response
to the jurors. They assert that the judge's earlier cautionary instruction to the
jury to disregard any deliberation which occurred while the alternate was
present preconditioned the jurors to give a negative response to his inquiry.
Such an instruction, however, may well have a salutary effect. Courts assume
jurors follow instruction. Were it not so it would be a waste of time to give
instructions and to review instructions in as much detail as we do. There is
nothing improper about "telegraphing" a proper course of action to a
deliberating jury. See United States v. Phillips, 664 F.2d 971 (5th Cir. 1981)
(instruction to jury to begin deliberations anew after an alternate was
substituted for a regular juror was one of several factors which prevented the
possibility of undue prejudice)