U.S. v. Beaty, s. 83-5021

• Decision Date: 12 December 1983
• Docket Number: 83-5045,Nos. 83-5021,s. 83-5021
• Citation: 722 F.2d 1090
• Parties: 14 Fed. R. Evid. Serv. 1253 UNITED STATES of America v. BEATY, William Edwin, Appellant in 83-5021 and UNITED STATES of America v. John BALLOUZ, Appellant in 83-5045.
• Court: U.S. Court of Appeals — Third Circuit

Page 1090

722 F.2d 1090

14 Fed. R. Evid. Serv. 1253

UNITED STATES of America v. BEATY, William Edwin, Appellant in 83-5021 and UNITED STATES of America v. John BALLOUZ, Appellant in 83-5045.

Nos. 83-5021, 83-5045.

United States Court of Appeals Third Circuit.

Argued Sept. 12, 1983.

Decided on Dec. 12, 1983.

Dominic F. Amorosa (argued), South Orange, N.J., for appellant, beaty.

David A. DePetris (argued), New York City; Genay Ann Leitman, New York City, for appellant, Ballouz.

Robert Fettweis, Asst. U.S. Atty. (argued), W. Hunt Dumont, U.S. Atty., Samuel Rosenthal, Chief, Appeals Div., Edna F. Ball, Asst. U.S. Attys., Newark, N.J., for appellee.

Before ADAMS, HUNTER, and GARTH, Circuit Judges.

OPINION OF THE COURT

JAMES HUNTER, III, Circuit Judge:

Defendants John Ballouz and William Beaty appeal from their convictions on a number of drug-related offenses. ¹ The principal question presented in both cases is whether the trial judge, by his conduct, deprived the defendants of a fair trial. Both defendants also claim to have been prejudiced by prosecutorial misconduct. ² After carefully reviewing the trial transcript, we conclude that the judge's conduct with regard to defendant Beaty, while sometimes unfortunate, did not rise to the level of prejudicial error. With respect to defendant Ballouz, however, we conclude that the trial judge's conduct was prejudicial. We will therefore reverse Ballouz's conviction and remand his case for a new trial. We have also considered the allegations of prosecutorial misconduct with respect to defendant Beaty, but are not persuaded that any errors in the prosecutor's conduct were prejudicial. Because we do not believe that any of the errors in Beaty's trial, considered individually or cumulatively, prejudiced him, we will affirm defendant Beaty's conviction.

I. FACTS

A brief recital of the evidence adduced at trial is helpful in considering defendants' claims. According to the Government, William Beaty asked a longtime friend, John Clark, if he would be interested in helping Beaty smuggle hashish into the United States. Clark was interested. Beaty explained that he needed a boat and a crew to ferry the hashish from the "mother ship" to shore. Clark arranged for Beaty to meet Robert Soleau, a commercial fisherman. Soleau agreed to provide the Falcon to carry the hashish, and a "safe boat," the Tanqueray, to carry people to count the bales of hashish and then return those people to shore separately from the drugs.

The operation was carried out on the night of October 9, 1981. Government witnesses testified that Ballouz was on the Falcon and Beaty was on the Tanqueray. Due to a combination of factors, the operation was unsuccessful. The weather was bad, the sea was rough, and the Falcon was overloaded. Eventually, after its crew was transferred to the Tanqueray, the Falcon sank. Government witnesses testified that Beaty was subsequently involved in two unsuccessful attempts to salvage the lost hashish.

Defendant Beaty presented no evidence. Defendant Ballouz presented an alibi defense. He testified that he lived in California, but had come to New Jersey the week of October 9th to surprise his parents for his birthday. He discovered only after his arrival that they had gone to California to surprise him. He testified that he could not have been on the Falcon because he spent the evening of October 9th having dinner with Mrs. Axelson, an old friend. He presented Mrs. Axelson, his father and brother, and Mr. Rumolo, an old friend, as witnesses.

II. THE TRIAL JUDGE'S CONDUCT: DEFENDANT BEATY

Beaty claims that the judge "chilled" his counsel, thereby denying Beaty effective assistance of counsel, by showing "favoritism" to the Government while constantly criticizing Beaty's counsel. He also claims that the judge's "favoritism" communicated the judge's belief in Beaty's guilt to the jury, thereby prejudicing Beaty and depriving him of a fair trial.

The law governing judicial participation in trials, while easy to state, is difficult to apply. On the one hand, it is clear that "[i]n a trial by jury in a federal court, the judge is not a mere moderator, but is the governor of the trial...." Quercia v. United States, 289 U.S. 466, 469, 53 S.Ct. 698, 698, 77 L.Ed. 1321 (1933). Indeed, this court has emphasized that:

We have long abandoned the adversary system of litigation which regards opposing lawyers as players and the judge as a mere umpire whose only duty is to determine whether infractions of the rules of the game have been committed. A trial is not a contest but a search for the truth so that justice may properly be administered. For the purpose of eliciting the germane facts, a judge may on his own initiative and within his sound discretion interrogate witnesses.

Riley v. Goodman, 315 F.2d 232, 234 (3d Cir.1963) (citations omitted). On the other hand, a judge must not "abandon his proper role and assume that of an advocate...." United States v. Green, 544 F.2d 138, 147 (3d Cir.1976), cert. denied, 430 U.S. 910, 97 S.Ct. 1185, 51 L.Ed.2d 588 (1977). We have cautioned that "[t]he judge's participation must never reach the point where 'it appears clear to the jury that the court believes the accused is guilty.' " United States v. Nobel, 696 F.2d 231, 237 (3d Cir.1982) (quoting United States v. Robinson, 635 F.2d 981, 984 (2d Cir.1980), cert. denied, 451 U.S. 992, 101 S.Ct. 2333, 68 L.Ed.2d 852 (1981)).

Unfortunately, "the manner in which interrogation should be conducted and the proper extent of its exercise are not susceptible of formulation in a rule." United States v. Green, 544 F.2d at 147 (citations omitted). The task of an appellate court asked to review a trial judge's conduct is therefore a difficult one. We approach this case cautiously, aware that "no absolute, rigid rule exists. Each case must be viewed in its own setting. The pattern of due process is picked out of the facts and circumstances of each case." Riley v. Goodman, 315 F.2d at 234 (citations omitted).

The judge's conduct of this trial undeniably left much to be desired. Whether or not his conduct was ideal, however, is not the issue before us. We must determine whether his conduct was so prejudicial as to deprive defendant Beaty of a fair, as opposed to a perfect, trial. See United States v. Parodi, 703 F.2d 768, 776 (4th Cir.1983); United States v. Robinson, 635 F.2d at 984. A careful and detailed review of this trial record of more than 1600 pages satisfies us that, while the decision is not an easy one, Beaty has not made a sufficient showing of prejudice to require a new trial.

Initially, we note that the court's rebukes of Beaty's counsel, serious as some of them were, ³ occupy but a small portion of the extensive trial court record. Furthermore, the bulk of these rebukes occurred out of the presence of the jury. The record also reveals that these reprimands were far from unprovoked. Beaty's lawyer apparently believed that he should be allowed to elicit otherwise inadmissible hearsay on the grounds of relevance. He also believed that he could ask questions tending to impugn the veracity of the prosecution's witnesses without any good faith basis. The trial judge, quite correctly, flatly disagreed. The record reveals a judge who was increasingly frustrated by counsel's repeated attempts to do that which he had properly been forbidden to do.

When considered in this context, the only really serious altercation between the judge and Beaty's counsel is less troubling. The judge essentially cross-examined Beaty's counsel in the jury's presence concerning counsel's basis for a question that intimated that a prosecution witness was lying. We cannot condone the judge's conduct or say that the ensuing colloquy would not better have been conducted outside the jury's presence. But "misconduct by defense counsel may properly be taken into account by us in determining whether a defendant was prejudiced by the judge's response." United States v. Robinson, 635 F.2d at 985 (citations omitted). In United States v. Weiss, 491 F.2d 460, 468 (2d Cir.1974), cert. denied, 419 U.S. 833, 95 S.Ct. 58, 42 L.Ed.2d 59 (1974), the Second Circuit recognized that, "Judges, while expected to possess more than the average amount of self-restraint, are still only human. They do not possess limitless ability, once passion is aroused, to resist provocation." We likewise reject any suggestion that defense counsel may inject reversible error into a trial by baiting the trial judge.

In considering Beaty's claim we also consider whether the judge exhibited partisanship by favoring Government trial counsel or holding them to lesser standards than those applied to counsel for the defendant. See United States v. Robinson, 635 F.2d at 985. He did not. The judge appeared to resolve all doubts concerning the admissibility of evidence in favor of the defense and repeatedly sustained defense objections to the prosecutor's questions. On occasion, he expressed disapproval of the prosecutor's conduct and, in general, he expected her to conform to a very high standard. Although we do not approve of the judge's rebukes of counsel, his relatively even-handed treatment of Government and defense counsel persuades us that his admonitions of Beaty's counsel did not convey a belief in Beaty's guilt to the jury.

Furthermore, we are persuaded that Beaty was not denied effective assistance of counsel because Beaty's counsel never acted as though he felt chilled. He zealously represented Beaty throughout. He extensively and vigorously cross-examined each prosecution witness. He pursued every possible avenue in testing their credibility and recollections. He frequently objected during the prosecutor's examinations. In sum, the record reveals no evidence that Beaty's counsel was chilled.

Beaty also claims that the judge frequently "rehabilitated" prosecution witnesses, and in so doing, conveyed to the jury his belief that they were credible. The...