U.S. v. Segines

• Decision Date: 23 February 1994
• Docket Number: 92-4060,92-4059,Nos. 92-4051,s. 92-4051
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Antoine SEGINES (92-4051); Michael Alston (92-4059); Adrian Ayers (92-4060), Defendants-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 847

17 F.3d 847

UNITED STATES of America, Plaintiff-Appellee, v. Antoine SEGINES (92-4051); Michael Alston (92-4059) Adrian Ayers (92-4060), Defendants-Appellants.

Nos. 92-4051, 92-4059, 92-4060.

United States Court of Appeals Sixth Circuit.

Argued Dec. 7, 1993.

Decided Feb. 23, 1994.

Blas E. Serrano, Asst. U.S. Atty. (Briefed and Argued), Cleveland, OH, for U.S.

Roger M. Synenberg (Briefed and Argued), Synenberg & Marein, Cleveland, OH, for Michael Alston.

Donald Krosin (Argued and Briefed), Federal Public Defender's Office, Cleveland, OH, for Antoine Segines.

Jacqueline A. Johnson (Argued and Briefed), Graves, Haley, Horton & Muttalib, Cleveland, OH, for Adrian Ayers.

Before: KEITH and JONES, Circuit Judges; and BROWN, Senior Circuit Judge.

BAILEY BROWN, Senior Circuit Judge.

The three defendants in this case, Antoine Segines, Michael Alston, and Adrian Ayers, were convicted by jury verdict on charges of conspiracy to possess with intent to distribute cocaine, in violation of 21 U.S.C. Sec. 846; of distributing cocaine base, in violation of 21 U.S.C. Sec. 841(a)(1); and of committing these acts within 100 feet of a video arcade, in violation of 21 U.S.C. Sec. 860(a). Ayers was sentenced to incarceration for a period of 400 months, Segines received a sentence of 292 months and Ayers received 262 months. The appellants claim errors in the trial, properly preserved for appeal. They also contend that statements made by the trial judge had such a "chilling effect" upon defense counsel that they constituted "plain error," denying their right to a fair trial. ¹

The claims of error that were expressly preserved for appeal are that the trial court improperly: (1) admitted into evidence a composite tape recording; (2) allowed the jurors to use a written transcript of that composite tape, prepared by the government, to help them in deciphering the tape's contents; (3) after properly excluding from admission into evidence the original tapes, from which the composite tape was made, allowed the jurors to listen to those tapes during their deliberations; (4) limited the defendants' right to fully cross-examine the government's "star" witness and failed to properly restrict the scope of the redirect examination of that same witness; (5) failed to grant a judgment of acquittal on the conspiracy count of the indictment; and (6) failed to give a requested "multiple conspiracies" instruction to the jury. Appellants raise several other issues, most of which concern their sentencing levels.

We agree with the appellants that they should be given a NEW TRIAL. We reach this conclusion because of the comments made by the trial judge, of which we take cognizance under the "plain error" doctrine, that revealed such bias towards defense counsel as to deny the defendants their fundamental right to a fair trial. ² In remanding this case for a new trial, we also rule on the admissibility of the original tapes, the composite tape, the transcript, and other evidence at issue in the first trial.

I

Alston and Ayers came under investigation in September 1991 by members of the Caribbean/Gang Task Force in Cleveland, Ohio. Four separate "controlled drug purchases" were made at 6325 Carl Avenue, a residence owned by Ayers, during the period spanning September 30 through December 5, 1991. These purchases involved the use of a cooperating individual ("CI") who was, prior to each transaction, searched by the authorities to insure that he had no money or drugs in his possession. He was issued money, for which the serial numbers had been recorded, so that he could purchase the drugs. He was then placed under continual surveillance until he entered the Carl Avenue residence. If he drove his own vehicle to Carl Avenue, that vehicle was also searched prior to the purchase. Once the transaction had been completed, the drugs and any money not used in the purchase were turned over to the authorities. This CI did not testify at the trial.

A search warrant was executed at the Carl Avenue residence on December 6, 1991, at which time only Alston and Ayers were present. As law enforcement agents entered, they observed Ayers throwing bags of marijuana and Alston throwing a small scale onto the floor. The scale was later found to have cocaine residue on it.

On February 11, 1992, Robert Smith, a cooperating government informant who later became the government's "star" witness in this case, made a controlled purchase of one-half ounce of crack cocaine from Ayers at the A & A Gameroom, a video arcade owned and operated by Ayers' sister. Smith testified that Ayers called Alston to bring the cocaine needed to conclude the transaction, which Alston did. Also present was Segines, who produced a large bag of cocaine rocks and handed it to Ayers, so that Ayers and Smith could complete their transaction. Smith made similar purchases from Ayers and Segines during the remainder of the month of February 1992. A total of approximately 103 grams of cocaine base was purchased in these transactions. The indictment against the three defendants alleged a conspiracy dating from September 1991 through February 27, 1992. On March 12 and March 13, 1992, Smith made further cocaine purchases from Segines at an apartment located on Linn Drive. These latter transactions were not included as separate counts in the indictment, but testimony concerning them was admitted at trial.

II

A. THE PLAIN ERROR DOCTRINE

We begin with the well-established principle that a defendant is entitled to "a fair trial, not a perfect one," Delaware v. Van Arsdall, 475 U.S. 673, 681, 106 S.Ct. 1431, 1436, 89 L.Ed.2d 674 (1986), because an "error-free, perfect trial" is not humanly possible. United States v. Hasting, 461 U.S. 499, 508, 103 S.Ct. 1974, 1980, 76 L.Ed.2d 96 (1983). To implement this principle, Congress and the federal courts have developed the "harmless error" doctrine, which " 'block[s] setting aside convictions for small errors or defects that have little, if any, likelihood of having changed the result of the trial.' " Id. (quoting Chapman v. California, 386 U.S. 18, 22, 87 S.Ct. 824, 827, 17 L.Ed.2d 705 (1967)); see also FedR.Crim.P. 52(a) (directing courts to disregard harmless errors, i.e., "[a]ny error, defect, irregularity or variance which does not affect substantial rights"). Moreover, this harmless error analysis applies even to constitutional errors, provided that they are so "unimportant and insignificant" as not to affect a defendant's substantial rights. Hasting, 461 U.S. at 508, 103 S.Ct. at 1980; see Chapman, 386 U.S. at 23, 87 S.Ct. at 827-28. A reviewing court engages in harmless error analysis under Rule 52(a) only when alleged errors are properly preserved both at trial and on appeal.

The converse of harmless error is embodied in the "plain error" doctrine: "Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court." Fed.R.Crim.P. 52(b). The Supreme Court has recently analyzed the "single category of forfeited-but-reversible error" provided for by Rule 52(b). United States v. Olano, --- U.S. ----, ----, 113 S.Ct. 1770, 1776, 123 L.Ed.2d 508 (1993), construed in United States v. Thomas, 11 F.3d 620 (6th Cir.1993). Appellate authority "under Rule 52(b) is limited in three significant respects." Thomas, 11 F.3d at 629 (citing Olano, --- U.S. at ----, 113 S.Ct. at 1777). First, there must have "indeed been an 'error.' " Olano, --- U.S. at ----, 113 S.Ct. at 1777. Second, the error must be "plain," i.e., "clear" or "obvious." Id. Third, the plain error must have affected "substantial rights." Id. --- U.S. at ----, 113 S.Ct. at 1777-78. In most cases, a reviewing court must find the "plain error" to have been prejudicial to the defendant, using the same "harmless error" analysis as required by Rule 52(a), "with one important difference: It is the defendant rather than the Government who bears the burden of persuasion with respect to prejudice." Id. --- U.S. at ----, 113 S.Ct. at 1778. The Supreme Court has stopped short, however, of establishing a blanket rule that shifts the burden of persuasion onto the defendant in all cases. "There may be a special category of forfeited errors that can be corrected regardless of their effect on the outcome.... [There also may be] errors that should be presumed prejudicial if the defendant cannot make a specific showing of prejudice." Id. (emphasis added).

The Court emphasized the discretionary nature of the plain error doctrine: "The Court of Appeals should correct a plain forfeited error affecting substantial rights [only] if the error 'seriously affects the fairness, integrity or public reputation of judicial proceedings.' " Olano, --- U.S. at ----, 113 S.Ct. at 1779 (quoting United States v. Atkinson, 297 U.S. 157, 160, 56 S.Ct. 391, 392, 80 L.Ed. 555 (1936)). This discretionary application of Rule 52(b), however, does not require that a defendant be "actually innocent." Id. The Thomas court summarized the four-part process of analysis that we must undertake pursuant to Rule 52(b):

First, we are to consider whether an error occurred in the district court. Absent any error, our inquiry is at an end. However, if an error occurred, we then consider if the error was plain. If it is, then we proceed to inquire whether the plain error affects substantial rights. Finally, even if all three factors exist, we must then consider whether to exercise our discretionary power under Rule 52(b), or in other words, we must decide whether the plain error affecting substantial rights seriously affected the fairness, integrity or public reputation of judicial proceedings.

Thomas, 11 F.3d at 630.

B. TRIAL COURT CONDUCT

Our precedents reveal that we have found violations of a defendant's due process rights under circumstances similar to those reflected in the record of this case. In United States v. Poindexter, 942 F.2d 354, 360 (6th Cir.), cert. denied, --- U.S....