U.S. v. Richards

• Decision Date: 13 March 2001
• Docket Number: No. 99-3966,99-3966
• Citation: 241 F.3d 335
• Parties: (3rd Cir. 2001) UNITED STATES OF AMERICA, v. DON RICHARDS, APPELLANT
• Court: U.S. Court of Appeals — Third Circuit

Page 335

241 F.3d 335 (3rd Cir. 2001)

UNITED STATES OF AMERICA, v. DON RICHARDS, APPELLANT

No. 99-3966

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

Argued December 5, 2000

Filed February 26, 2001

As amended March 13, 2001.

Appeal from the District Court of the Virgin Islands (Divisions of St. Thomas and St. John) District Judge: Honorable Thomas K. Moore

Counsel for Appellee: James A. Hurd, Jr. United States Attorney Carl F. Morey (Argued) Assistant U.S. Attorney Office of the United States Attorney 1108 King Street, Suite 201 Christiansted, St. Croix Usvi, 00820

Counsel for Appellant: Richard Della Fera, Esquire (Argued) Alvin E. Entin, Esquire Entin, Margules & Della Fera, P.A. 200 East Broward Boulevard Suite 1210 Fort Lauderdale, FL 33301

Before: Mansmann and Alito, Circuit Judges, and Ackerman, District Judge.^*

OPINION OF THE COURT

Mansmann, Circuit Judge.

Don Richards appeals his conviction for crimes involving the robbery¹ of a Brink's armored van in St. Thomas, the Virgin Islands. He contends that he is entitled to a new trial for three separate reasons: (1) violation of his Sixth Amendment right arising from the admission of an out-of-court statement given by a non-testifying co-defendant; (2) violation of the Jencks Act based on the government's failure to produce an FBI agent's written report concerning the co-defendant's oral statements; and, (3) juror misconduct.

We conclude that the admission of the co-defendant's statement violated Richards' Sixth Amendment right to confront witnesses under Bruton v. United States, 391 U.S. 123 (1968). Richards' failure to object to this admission during trial, however, allows him relief only if the plain error tenets of Fed. R. Crim. P. 52(b) apply. Under this doctrine, we find that the error was not reversible. Overwhelming evidence of Richards' guilt exists independent of the statement; therefore, no manifest injustice occurred at trial.

The Jencks Act argument fails for the identical reason. We hold that the government's failure to produce the FBI agent's written report of the co-defendant's oral statement violated the Act, but Richards' concomitant failure to object necessitates plain error review. As with the Sixth Amendment issue, because the fairness of the trial was not seriously affected, a new trial is not justified.

Finally, we hold that the District Court did not abuse its discretion in denying two motions for mistrial based on juror misconduct. Deciding the first motion alleging intra-jury influence would require the court delving into the jurors' deliberative process -- an inquiry prohibited by Fed. R. Evid. 606(b). The second motion alleging juror bias was unfounded. The juror acknowledged during voir dire that he knew one of the government witnesses but remained capable of impartially evaluating the evidence. There is no evidence to demonstrate that the juror disregarded his obligation to remain unbiased.

We will, therefore, affirm.

I.

Don Richards and Theodore Greenaway were tried jointly on offenses arising from the robbery of the Brink's armored van. According to the trial testimony, Richards and Greenaway ambushed the Brink's messenger, Mark Kuffy, and Richards put a gun to Kuffy's head, demanding money. Richards hit Kuffy in the head with the gun and knocked him to the floor of the van. He then collected the bags of money from the van and tossed them to Greenaway.

Two days after the robbery, the driver of the van, Ignatius Stevens, confessed to being the inside man in the robbery. He identified Richards as the person who assaulted Kuffy and Greenaway as his accomplice.

Greenaway was arrested and interviewed by law enforcement officers. In his interview Greenaway revealed that "Don and the other guy who works for Brink's planned the robbery." Greenaway then signed a written confession conceding participation in the robbery, but withholding the name of the individual collaborating in the crime. FBI Special Agent Steven Harker documented the interview, including Greenaway's oral statement, in an FBI FD302 report. When Richards was arrested later that day he made no statement.

Richards and Greenaway were tried jointly. In pretrial discovery, Richards' counsel received a report authored by Special Agent Harker, which informed that Greenaway confessed that he and his "friend" had committed the robbery. The report noted that Greenaway declined to give a name to his "friend."

At trial, Stevens, the Brink's driver, testified that he and Richards planned the robbery for two weeks. On the day of the crime, he observed Richards walk by the van, turn around and walk back. Although Richards was sporting Rastafarian dreadlocks and sunglasses, Stevens recognized Richards by his distinctive walk (a pronounced limp).

Stevens then testified that on the following morning he met with Richards, who told him that he hid Stevens' share of the money, $25,000, in a particular location. At that designated spot, Stevens retrieved the money.

Special Agent Harker testified next and read Greenaway's written statement into the record. The portion relevant to this appeal follows:

The first time I heard about the idea of robbing the Brink's armored van was when a friend, whom I do not wish to name, spoke to me about it. He and I talked and my friend told me it would be easy to rob the armored car since there was an inside man.... The next time I met with my friend was on the day of the robbery.

The statement continued with the description of the different roles Greenaway and his "friend" played in the robbery.

On cross-examination, Richards' attorney asked Special Agent Harker whether Greenaway had mentioned Richards by name. The exchange was as follows:

Q: Mr. Harker, the statement Mr. Greenaway made, he made this statement after you had Mr. Richards in custody, correct?

A: Yes, that's correct.

Q: And you questioned Mr. Greenaway, right?

A: Yes, I did.

Q: About who is his friend, correct?

R: That's correct.

Q: And he never told you his friend was Don Richards, correct? That the friend that he refers to in here is Don Richards.

A: (Pause)

Q: You don't remember?

A: I do remember.

Q: Tell me who he said his friend was since you know.

A: He told me that he had a friend named Don, yes.

Q: Excuse me?

A: He told me he had a friend named Don.

Q: But Don is not the friend that he is referring to as committing the robbery with him?

A: That is not correct.

Q: That's not correct?

A: That is not correct.

Q: You're saying the friend he referred to in here is Don Richards? That's what you are saying?

A: What I'm saying is that when we interviewed Mr. Greenaway, in the beginning of the interview--

At this point, the attorney for the government requested a side bar conference:

MR. ADAMS: One of the things that we want to take evidence is to prevent a Bruton problem with one defendant Greenaway implicating the other defendant.

THE COURT: That's only in the Government's case. So what is your problem?

MR. ADAMS: One of the reasons my agent is hesitated (sic) --

THE COURT: You told him never to mention it. That is on your examination, not defense counsel's examination.

MR. ADAMS: I want to make sure you realize that.

On redirect, the government further explored the mention of Richards in Harker's interview with Greenaway:

Q: You were asked questions by [the defense attorney] about whether or not the defendant during your conversations with him mentioned Don Richards at all; do you remember that?

A: Yes, I do.

Q: He doesn't mention it in the written statement, correct?

A: That is correct.

Q: Does he mention Don Richards' name at all during the time you interviewed him, that night?

A: He mentioned the name of Don during the interview.

Q: Tell us why that name came up, why did he mention that name?

A: In the beginning of the interview, one of the things we asked him -- because of the information we developed during the case was, we did not believe that he was the number one participant, the head king pin in this. So we asked him, we said, I said to him, "you weren't the one who planned this, were you?" And Mr. Greenaway's response was no, that was Don and the other guy who works for the Brinks, for Brinks.

Then, on recross, it was first ascertained by the defense that Harkin's FD302 report reiterated Greenaway's oral statement implicating Richards.

Q: Mr. Harker, of course you don't have any memorandum of that statement, correct?

A: That's not correct.

Q: You have one?

A: I don't have one on my person, no.

Q: Does the U.S. Attorney have one?

A: He has, yes.

Q: The memorandum of that kind of information?

A: We did a report, an FD302 to that effect, yes. It would have accompanied or should have accompanied the statement.

THE COURT: You don't have it, counsel?

MR. WATLINGTON: Of course not, your Honor.

When the government was questioned about Harker's FD 302 Report, it responded that although the document had been produced in discovery, it was not disclosed because the government had made a conscious decision that the evidence should not go in to avoid the Sixth Amendment dilemma which surfaces in joint trials of co-defendants. The report was then provided to defense counsel.

After some discussion of the complication posed by Harker's testimony, the court asked the parties how they wished to proceed. Both defense counsel concurred that they were ready to proceed and no objection was made.

The trial progressed. The remaining significant testimony introduced by the prosecution was elicited from Richards' mother, who testified that Greenaway and Richards were "friends." This testimony obviously led the jury to assume that the "friend" mentioned in Greenaway's statement was Richards.

When it came time to instruct the jury, at the government's request, the District Court instructed the jury not to consider the portion of Special Agent Harker's testimony relating to Greenaway's statement referring to "Don." There were...