U.S. v. Filani
| Decision Date | 11 January 1996 |
| Docket Number | D,No. 73,73 |
| Citation | 74 F.3d 378 |
| Parties | UNITED STATES of America, Appellee, v. Joseph Omotunde FILANI, Defendant-Appellant. ocket 95-1051. |
| Court | U.S. Court of Appeals — Second Circuit |
Colleen P. Cassidy, New York City (The Legal Aid Society, Federal Defender Division, Appeals Bureau, New York, New York, of counsel), for Appellant.
Jo-Anne Weissbart, Assistant United States Attorney, Brooklyn, New York (Zachary W. Carter, United States Attorney, Susan Corkery, Assistant United States Attorney, Eastern District of New York, Brooklyn, New York, of counsel), for Appellee.
Before: CARDAMONE, MINER, and CALABRESI, Circuit Judges.
On November 30, 1993 Joseph O. Filani landed at John F. Kennedy International Airport in New York City, arriving on an Air France flight from Paris. He was returning home to Little Rock, Arkansas from a trip to Nigeria. Filani, a lawful permanent resident of the United States, is the father of four children, and at the time of these events he had been a U.S. resident for 14 years and owned a janitorial business in Little Rock. After landing, Filani went through a routine U.S. Customs Service inspection. What happened at the customs stop was the subject of conflicting evidence at trial.
A briefcase, understood by customs agents to be the defendant's, was opened and emptied of its contents. Believing the now emptied case too heavy, the investigating agent poked a sharpened screwdriver through its lining and found hidden bags containing white powder. When on-the-spot testing revealed the powder to be heroin, defendant was arrested. He was charged the following month in a two count indictment with importing heroin into the United States, in violation of 21 U.S.C. Secs. 952(a), 960(a)(1) and 960(b)(1)(A), and 18 U.S.C. Secs. 3551 et seq., and possession of heroin with intent to distribute in violation of 21 U.S.C. Secs. 841(a)(1) and 841(b)(1)(A)(i), and 18 U.S.C. Secs. 3551 et seq. Filani was convicted on both counts after a two-day jury trial in the United States District Court for the Eastern District of New York (Tsoucalas, J.) and sentenced to serve ten years in prison.
At trial the prosecution called three witnesses: Inspector Wuehler, the customs agent who stopped defendant and arrested him; Detective Brosnan, who later questioned the defendant; and Special Agent Amentas, who testified as a heroin expert. The only witness for the defense was the defendant himself. He testified that he did not own the heroin-filled briefcase and never imported or possessed the contraband. Filani acknowledged having possession of the briefcase, and explained that he had assisted an elderly couple with their bags by carrying their attache case on his baggage trolley. When he arrived at the customs checkpoint, defendant continued, he left the couple's bag on his trolley. He brought it to Agent Wuehler only because the customs agent specifically directed him to.
When the brief trial concluded, the jury had been presented with two divergent accounts of the events at J.F.K. Customs. In order for the government to prove its case, it had to show that the defendant's story was implausible in light of the other evidence or that Filani's version of those events lacked credibility. Thus, the outcome of the trial hinged on credibility. During its course the district court actively questioned the several witnesses presented, frequently interrupting their testimony and counsel's questioning. Some of its comments plainly were designed to prevent jury confusion or to clarify ambiguous testimony. Most of the court's questions, however, served only to discredit defendant. A number of these latter questions were asked directly of Filani; others were posed to government witnesses. Their effect was largely to bolster the government's case and to challenge the theory of the defense.
All the testimony was given in one day; defendant took the stand for half of that day. Since the defense called no other witnesses, Filani's own testimony was obviously the key to his defense. While defendant was being cross-examined by the prosecutor, the court repeatedly interrupted to make its own inquiry. For example, the court asked numerous questions concerning the location of the luggage trolley and defendant's use of it in the airport. Although our review is limited to the printed record, and we do not have the benefit of seeing the facial expressions of the questioner or the tone used, the trial judge's questions nonetheless betray a tone of incredulity. Some questions may perhaps even be described as argumentative:
Ms. Weissbart: Did you have your trolley at immigration?
The Defendant: Yes.
The Court: You know whether you had a trolley when you are going through Immigration?
The Defendant: Yes.
The Court: Did you have a trolley?
The Defendant: Yes, I do.
The Court: Did you have the trolley when you went through Immigration?
The Defendant: Yes, I do.
The Court: If I told you you can't take the trolley when you go through Immigration, would you believe me?
The Defendant: (No response.)
The Court: You only get the trolley when you go to the customs area, don't you?
The Defendant: It's the Customs area before you pick up your luggage, that's when you get the trolley.
The Court: Well, I told you to listen to the questions before you answer.
The trial judge also questioned the defendant extensively about his finances. The court first asked Filani how he could afford to pay $200 in monthly child support, asserting that this would consume $12,000 of the defendant's $13,000 salary. After realizing its mathematical error, the trial court terminated this line of questioning and started a series of questions about Filani's two houses. It continually confused Filani's explanation of the amounts owed on each house, effectively detracting from defendant's credibility. Moreover, the district court peppered this exchange with comments and asides .
The district court also challenged the defendant's veracity with respect to his asserted transactions with the elderly couple whom defendant insisted he was attempting to help. On another occasion, it not only corrected a mistake defendant made but scolded him and forced him to admit his error before the jury:
The Court: You said you went there the latter part of October?
The Defendant: Yes.
The Court: How long did you stay?
The Defendant: Just about a week.
The Court: Two weeks?
The Defendant: A week.
The Court: Then you came back?
The Defendant: I came back, yes.
The Court: How come you came back November 30, if it was only a week, and you went in October?
The Defendant: I take that back. It was November ending.
The Court: Wait a minute. You said that you went to Nigeria. Did you make a mistake?
The Defendant: I do make a mistake.
The Court: Okay. I just want to make sure.
The Defendant: Yes, it was a mistake.
The Court: Go ahead.
The questioning cited above exemplifies the many instances where the district court conducted its own cross-examination of a witness. Other witnesses were asked questions with the obvious purpose of challenging the defendant's theory of the case. For instance, after defense counsel questioned Special Agent Amentas regarding whether drug lords ever "hide the narcotics with unsuspecting travelers," the agent replied, "I believe there are occasions when that happens." The district court then intervened with a series of follow-up questions that entirely demolished the helpful concession defense counsel had elicited from a prosecution witness:
The Court: Is it often?
The Witness: Based on my experience I would have to answer that no. But it has happened.
The Court: Would you say no because a drug lord wouldn't want to lose the drugs.
The Witness: Yes.
The Court: If you don't know the person you give it to it could be lost and you may never get it back?
The Witness: That's correct.
The Court: A lot of money is involved.
The Witness: Yes. They have a vest[ed] interest for one purpose. That is to make money. They are interested in seeing the narcotics delivered.
The trial transcript includes other similar examples of the district court injecting itself into the questioning of witnesses. On 16 of the 60 pages of the trial transcript where defendant's testimony appears, his credibility or the theory of his defense were challenged by inquiries from the presiding judge. During the presentation of the prosecution's case, the court intervened 13 times in 74 pages, but it never did so to the detriment of the government's position.
Upon Filani's appeal from his conviction, the sole issue raised is whether the trial judge's persistent questioning of witnesses so interfered with the presentation of appellant's defense as to deprive him of a fair trial. Appellant asserts those questions were so skeptical that they amounted to a second cross-examination, suggesting to the jury that the trial judge agreed with the government's version of what occurred at J.F.K. Customs. Despite a curative instruction and despite the failure by defense counsel to object, the district court's conduct, appellant believes, was plain error and sufficiently prejudicial to entitle him to a new trial.
To place the complained-of actions in proper perspective, it is helpful to discuss briefly what is the province of a judge in a jury trial. In many civil law countries, the judicial officer has the primary responsibility for developing the evidence and questioning witnesses. The prosecutor and...
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