757 F.2d 594 (3rd Cir. 1985), 84-5404, United States v. Wilensky

Docket Nº:84-5404.
Citation:757 F.2d 594
Party Name:UNITED STATES of America, Appellee, v. Kerry David WILENSKY, Appellant.
Case Date:March 21, 1985
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

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757 F.2d 594 (3rd Cir. 1985)

UNITED STATES of America, Appellee,


Kerry David WILENSKY, Appellant.

No. 84-5404.

United States Court of Appeals, Third Circuit

March 21, 1985

Argued Jan. 14, 1985.

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Richard A. Sharpstein (argued), Janice Burton Sharpstein, Sharpstein & Sharpstein, P.A., Miami, Fla., for appellant.

Patty Merkamp Stemler, Dept. of Justice, Washington, D.C. (argued), W. Hunt Dumont, U.S. Atty., Jonathan Feld, Asst. U.S. Atty., Dist. of N.J., Newark, N.J., for appellee.

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Before ADAMS and WEIS, Circuit Judges, and HARRIS, District Judge. [*]


OREN HARRIS, District Judge.

Defendant Kerry David Wilensky appeals his convictions on three counts of obstruction of justice. 1 Wilensky raises two points on appeal, first, whether the trial judge's conduct deprived him of his Sixth Amendment right to effective assistance of counsel and his Fourteenth Amendment right to a fair trial, and second, whether the trial judge erred in denying defendant's Motion to Disqualify and Motion for Mistrial.

After a careful and thorough review of the trial transcript, we conclude that the trial judge's conduct, while approaching the level of prejudicial error, did not rise to such level as to warrant a reversal of the convictions. The evidence adduced at trial by the government overwhelmingly supports the jury's verdicts of guilty on each of the three counts charged in the indictment. We also find that the trial court did not abuse its discretion in denying Wilensky's Motion to Disqualify and Motion for Mistrial. Therefore, we affirm.


Wilensky, an attorney admitted to practice before the New Jersey Bar, was retained as counsel for Thomas Jerry Stewart by third parties after Stewart had been tried and convicted on violations of Federal Narcotics Laws, i.e., importation of marijuana. Wilensky had visited Stewart prior to Stewart's trial while Stewart was being held at the Metropolitan Correctional Center in New York. 2 During this meeting Wilensky informed Stewart that "his bosses" had not forgotten him and that they would provide for his financial needs. Stewart testified at length concerning an "insurance" program which the bosses provided for incarcerated employees. Under the program the employee could expect financial assistance from the employer for his family and self through the period of incarceration in exchange for that person's loyalty.

Following Stewart's conviction, a federal grand jury investigation was commenced, probing into the upper tier of the drug operation in which Stewart had been working. The government sought the cooperation and testimony of Stewart in this investigation. Wilensky advised the government that he was representing Stewart and that Stewart had elected to not cooperate in the investigation. However, Stewart, without Wilensky's knowledge, informed DEA agents that he desired to testify before the grand jury.

Stewart inquired of Wilensky as to when his family would receive the money which had been promised him. Wilensky arranged for the payments to commence, with the money being paid to Stewart's wife by money order. Wilensky stated to

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Stewart that if he testified "six or seven real nice people will go down the tubes." Stewart, at Wilensky's insistence, signed a statement to the effect that it was solely Stewart's decision to not testify.

During the trial the government introduced into evidence a number of audio tapes containing various conversations between Stewart, his wife, Wilensky and DEA agent Roy Clagg who was posing as Mrs. Stewart's cousin, "Woody Woodson." The content of these taped conversations revolved around the continued payments to Mrs. Stewart, through "Woody" and the purpose for the payments.

Wilensky refused to make a lump sum payment of $50,000 as there would be no assurances that Stewart would not testify after receiving the payment. Wilensky's clients demanded weekly payments to ensure Stewart's silence. Clagg ("Woody") informed Wilensky that a sum of money had been received, to which Wilensky responded that he planned to visit Stewart the following day "to reassure him (Stewart) not to testify." During that visit Stewart informed Wilensky that he intended to testify unless he received more money. Wilensky understood this demand and stated he would request that Stewart be paid additional amounts. Soon thereafter, more money was received by "cousin Woody" for Mrs. Stewart from the bosses. These incidents led to Wilensky being indicted and, subsequently, convicted on the charges set out above.


Wilensky interjected the insanity defense at trial. The basis of his primary contention of error by the trial judge lies in the extensive examination of his expert witness, Dr. Arthur Stillman, a psychiatrist, by the trial judge. 3 Dr. Stillman testified that in his professional opinion the defendant was unable to appreciate the consequences of his acts and to conform his conduct to the requirements of the law.

The trial judge often interrupted both the direct and cross examination of Dr. Stillman, with his questions delving deeply into the basis for the opinion and the extent of Wilensky's involvement with the usage of drugs. At various points the trial judge assumed the entire examination of the witness, posing numerous questions to Dr. Stillman in succession. (App. 192-195, T. 414-417; App. 196-201, T. 433-438).

While much of his questioning was directed at establishing facts pertinent to the defense, the trial judge intruded into the roles of the attorneys. However, the trial judge is not forbidden from participating in the conduct of a trial, as "a trial is not a contest but a search for the truth so that justice may be properly administered." United States v. Beaty, 722 F.2d 1090, 1093 (3rd Cir.1983), citing Riley v. Goodman, 315 F.2d 232, 234 (3rd Cir.1963).

In Beaty this Court was faced with similar allegations against the same trial judge. There this Court pointed out that the trial judge may elicit germane facts through interrogation of witnesses on his own initiative. See also, Riley v. Goodman, supra. The federal judge is more than a "mere moderator" or umpire in the proceeding. See Geders v. United States, 425 U.S. 80, 86-87, 96 S.Ct. 1330, 1334-1335, 47 L.Ed.2d 592 (1976); United States v. Allsup, 566 F.2d 68, 72 (9th Cir.1977); Nordmann v. National Hotel Co., 425 F.2d 1103, 1109 (5th Cir.1970); Warner v. Transamerica Insurance Co., 739 F.2d 1347, 1351 (8th Cir.1984). However, this role is not without limitations. The trial judge must not "abandon his proper role and assume that of an advocate...." United States v. Beaty, 722 F.2d at 1093; United States v. Green, 544 F.2d 138, 147

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(3rd Cir.1976), cert. denied, 430 U.S. 910, 97 S.Ct. 1185, 51 L.Ed.2d 588 (1977).

While this Court noted that no absolute, rigid rule has been espoused by the Courts concerning the limitations of the trial judge's participation in this manner, United States v. Beaty, 722 F.2d at 1093, the Eighth Circuit Court of Appeals has held that "[i]n order to reverse on grounds of excessive judicial intervention, the record must either 'disclose actual bias on the part of the trial judge (or) leave the reviewing court with an abiding impression that the judge's remarks and questioning of witnesses projected to the jury an appearance of advocacy or partiality.' (citation omitted)." Warner v. Transamerica Insurance Co., 739 F.2d at 1351. This Court must view each case on its particular facts and circumstances in resolving allegations of denial of rights as contended here.

Although a few isolated, allegedly prejudicial comments by...

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