U.S. v. Holman
| Decision Date | 22 July 1982 |
| Docket Number | No. 80-5954,80-5954 |
| Citation | 680 F.2d 1340 |
| Parties | 11 Fed. R. Evid. Serv. 209 UNITED STATES of America, Plaintiff-Appellee, v. Deral Gene HOLMAN, Donald Bruce Holman, John Mallory Obert, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
James K. Jenkins, Atlanta, Ga., for Donald Holman and John O'Bert.
Michael T. Simpson, Asst. U. S. Atty., Tallahassee, Fla., for plaintiff-appellee.
Appeals from the United States District Court for the Northern District of Florida.
Before GODBOLD, Chief Judge, and SIMPSON and FAY, Circuit Judges.
In August of 1980, Deral Gene Holman and his three sons, Deral Keith Holman, Donald Bruce Holman and Michael Holman, together with a family acquaintance, John Mallory ("Johnny") Obert, were indicted for conspiring to possess marijuana with intent to distribute, in violation of 21 U.S.C. § 841(a)(1) and 846, and for possessing with intent to distribute marijuana, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. Prior to trial, the government dismissed charges against Michael Holman. His brother, Deral Keith, obtained immunity from prosecution in exchange for his testimony as chief government witness. Following trial, verdicts of guilty were returned as to the remaining defendants.
Deral Gene Holman, Donald Bruce Holman and John Mallory Obert presently appeal from their convictions on eight distinct evidentiary and constitutional grounds. After fully reviewing their objections, we hereby reject each.
Deral Gene Holman owns the Holman Seafood Company, a fishing concern in Southport, Bay County, Florida. The company's operations consist of catching fish aboard Holman's commercial snapper boat, the Red Fin II, unloading them at company-owned docks and processing them at the Holman Seafood House. Deral Gene's three sons, Deral Keith, Donald Bruce and Michael, are employees of the company. Together with Johnny Obert, they assist as fishermen on the Red Fin II.
Around midnight one evening in July, 1979, Johnny Obert, Donald Bruce and Deral Keith steered the Red Fin II to a spot in the Gulf of Mexico, approximately 150 miles south of Pensacola. There, the Red Fin II met a one-hundred foot Colombian boat and proceeded to load from it bales of marijuana wrapped in burlap bags. Together with its crew, the Red Fin II immediately returned to the Holman Seafood House. Later that same night, trucks arrived at the House. Donald Bruce, Deral Keith and Johnny Obert loaded the bales of marijuana onto the vehicles; Deral Keith retained several bales for subsequent sale. His father, Deral Gene, was present intermittently during the entire unloading period. After the trucks departed, Deral Keith, Donald Bruce and Johnny Obert cleaned up the residue of marijuana.
One week later, Deral Keith obtained approximately $60,000.00 from his father, as payment for his services in the drug transaction; Donald Bruce and Johnny Obert each received in the neighborhood of $25,000.00, together with a bale of marijuana. For his part, Deral Gene was paid more than $60,000.00.
A federal grand jury indicted Deral Gene, Deral Keith, Donald Bruce, as well as Johnny Obert, for committing drug offenses in connection with the July '79 transaction. In order to obtain immunity from prosecution, Deral Keith agreed to testify on behalf of the government. After a polygraph examination revealed that his accusations implicating his brother, Michael, were false, allegations in the indictment against Michael were dismissed. Deral Keith went on to testify at trial against his father, Donald Bruce and Johnny Obert, following which all pending charges against Deral Keith were likewise dismissed.
Throughout the trial, Johnny Obert and Donald Bruce Holman denied any participation whatsoever in the illicit scheme. Deral Gene admitted granting Keith permission to use the Red Fin II for the operation; he maintained, however, that his consent was involuntarily obtained. Insisting that he had refused at first to go along with the scheme proposed by Deral Keith, he stated that it was not until his son informed him that he, Deral Keith, had been threatened with machine guns, that Deral Gene finally acquiesced.
The jury rejected these defenses and found the defendants guilty as charged. Deral Gene Holman was sentenced to ten years' imprisonment and payment of a $30,000.00 fine. Donald Bruce Holman and Johnny Obert each were sentenced to serve a prison term of six years and to pay a penalty of $30,000.00.
The appellants attack the voir dire of prospective jurors at their trial as unduly perfunctory. They contend that the court failed to conduct a probe sufficient to assure the discovery of potential prejudice and reasonable cause for challenge, as well as to protect against bias stemming from pre- and mid-trial publicity.
Entrusted to the broad discretion of the trial judge, conduct of the voir dire is reversible only for abuse in the exercise thereof. United States v. McDowell, 539 F.2d 435, 437 (5th Cir. 1976); United States v. Salazar, 480 F.2d 144 (5th Cir. 1973). Where "the procedure used for testing impartiality created a reasonable assurance that prejudice would be discovered if present," United States v. Nell, 526 F.2d 1223, 1229 (5th Cir. 1976), no abuse of discretion may be found.
At the outset of voir dire, the judge announced: "I intend to get it done before twelve o'clock today." R. Vol. V at 4. The defendants expressly decline to label the judge's completion of voir dire within a prearranged time of an hour and a half as reversible error per se; nevertheless, they contend that coupled with his failure to capitulate to defense requests for further inquiry of individual jurors, his conduct resulted inevitably in prejudicial abuse.
While the practice of adhering to a pre-scheduled voir dire time frame certainly merits no commendation, we decline to hold as a matter of law that it constitutes abuse of discretion. We note that Rule 24(a) of the Federal Rules of Criminal Procedure commits the direction and scope of inquiry of prospective jurors to the trial judge. 1 Although permitted to ask questions submitted by counsel, he need not do so. 2 Thus, unless the appellants meet their burden of demonstrating prejudice ensuing from the interrogation of the venire, their challenge must be rejected.
By 10:24 a. m., a panel of prospective jurors entered the courtroom. At the outset, fourteen were called into the jury box, introduced to the parties and queried by the court. Following counsel's exercise of challenges to the first panel, a new group was called. After further challenges were made, six additional jurors took seats in the box. The process was repeated until, after an examination of three sets of panels, a complete petit jury was finally selected.
Counsel for the appellants now complain of the court's failure to probe more deeply into the particulars of jurors' relationships with law enforcement personnel. The appellants contend that had members of the venire been questioned individually rather than as a whole, information indicative of potential bias supporting additional challenges for cause would more readily have come to light. They point specifically to the failure of one prospective juror to reveal, in response to the court's general inquiry as to law enforcement affiliation, that he worked as a prison guard. Although pressed by counsel to follow up his general query by interrogating the juror individually, the judge declined to do so. The appellants contend that, were the court to have acquiesced and the pertinent information to have been made known on further inquiry, the juror might have been challenged for cause. As it was, they were required to use a peremptory challenge to unseat him. The transcript reflects, however, that in requesting additional individual inquiry, counsel for the appellants neglected to apprise the judge of the juror's vocation, although it was well known to them from information in the questionnaire filled out by jurors prior to the voir dire examination. Having failed to inform the court of the juror's affiliation, they deprived the judge of any valid reason to question him further. We find meritless, therefore, the appellants' present complaint, based as it is on a skewed and misleading assessment of the trial judge's conduct.
The questionnaire answered by prospective jurors supplied the appellants with substantial background information regarding each one's family and work. The judge took care to query individually those venirepersons who failed to fill out the questionnaire. Every member of the venire who responded in the affirmative to the judge's question of whether any of them had law enforcement ties was then asked if he or she could set aside those ties and render a fair and impartial verdict. We find that such inquiry sufficed to protect the appellants' rights. Prior consideration by this and other circuits of closely analogous voir dire examinations supports our conclusion:
In United States v. Mitchell, 556 F.2d 371 (5th Cir. 1977), the defendant claimed error in the trial judge's failure to excuse upon challenge for cause a retired police officer acquainted with a policeman who was to testify at trial. The challenge was rejected because of the juror's statement that he could serve with impartiality. In upholding the trial court's determination, the Fifth Circuit noted the following While it would have been the better practice to have excused juror Ray under the circumstances, we are unable to hold that the failure to do so was such an abuse of discretion as to warrant the reversal of Mitchell's conviction. Neither personal knowledge by Ray of appellant's case nor any prejudice by Ray was disclosed. Ray was not at the time of the trial a member of the police department. In any event, "the mere fact...
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