U.S. v. Mosely

• Decision Date: 22 January 1987
• Docket Number: No. 85-3898,85-3898
• Citation: 810 F.2d 93
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Fred M. MOSELY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 93

810 F.2d 93

UNITED STATES of America, Plaintiff-Appellee, v. Fred M. MOSELY, Defendant-Appellant.

No. 85-3898.

United States Court of Appeals,

Sixth Circuit.

Argued Oct. 7, 1986.

Decided Jan. 22, 1987.

Richard A. Damiani, argued, James A. Draper, Cleveland, Ohio, for defendant-appellant.

Ann C. Rowland, argued, William J. Edwards, Asst. U.S. Atty., Cleveland, Ohio, for plaintiff-appellee.

Before ENGEL, JONES and NELSON, Circuit Judges.

NATHANIEL R. JONES, Circuit Judge.

Defendant Mosely appeals from a jury conviction on a six-count indictment charging violations of the Hobbs Act, 18 U.S.C. § 1951 (1982). Mosely asserts that three errors of the district court require reversal of his conviction. These alleged errors involve the method of exercising peremptory challenges employed by the court, the district court's denial of defendant's motion to act as co-counsel in his own defense under a hybrid representation theory, and comments on the testimony made by the district judge to the jury. As more fully set forth below, we find no reversible error and, therefore, affirm the judgment of conviction entered in this case.

The facts material to this appeal are as follows. In November of 1981, Mosely was elected judge of the East Cleveland Municipal Court. He was indicted by a federal grand jury on December 20, 1984, for multiple violations of the Hobbs Act. Count one of the indictment charged that Mosely conspired with John Urban, the Finance Director of the City of East Cleveland, to use Mosely's judicial position to extort money (approximately $200,000) under color of official right from Thomas Skingel and On Line Secretarial Services ("OLSS"). The alleged conspiratorial scheme called for Mosely and Urban, on behalf of the city, to contract with OLSS to recover past-due parking tickets. OLSS then overcharged the city, and the amount of the overcharge was kicked back to Mosely. Counts two and three charged Mosely with substantive acts of extortion under color of official right in furtherance of this conspiracy. Count four charged that Mosely and Urban conspired to extort money under color of official right by contracting, on behalf of the city, with two builders to board up vacant buildings and then take kickbacks from said builders. Counts five and six charged Mosely with substantive violations in furtherance of this latter conspiracy.

Mosely pleaded not guilty to the six counts of the indictment. Both Urban and Skingel pled guilty to various charges and testified for the government at Mosely's trial.

Mosely filed a pretrial motion on September 20, 1985, requesting that, as a member of the state and federal bars, he be allowed to participate in his own defense as co-counsel along with his two court-appointed counsel. On the morning of September 23, immediately before the commencement of the jury selection process, the district judge denied this motion, assuring the defendant that the court would "allow ample time for you to confer with your counsel considering the cross-examination of witnesses."

Following voir dire of 50 potential jurors, which was conducted by the court with the allowance of follow-up questions submitted by counsel, peremptory challenges were exercised by the "blind strike" method. Pursuant to the blind strike method, each side exhausted all of its peremptory challenges simultaneously (Mosely had 12 peremptories), without the benefit of knowing which venirepersons the adversary chose to strike. All venirepersons that were stricken by one or both parties were excused. The remaining panel members in the first 16 boxes then constituted the jury of 12 and four alternates.

Approximately mid-way through the trial, after the direct examination of the government's fourth witness, Mosely indicated to the district court his desire to proceed pro se. Although he stated that he had been satisfied with his appointed counsel up to that point, he disagreed with their strategy in cross-examination. The district judge honored defendant's constitutional right to self-representation. Moreover, it was on the judge's suggestion that Mosely requested and received the right to have the two court-appointed attorneys retained in an advisory capacity for the remainder of the trial.

Subsequently, Mosely personally conducted the cross-examination of the government's witness, Thomas Skingel. In an attempt to impeach the witness' credibility and in an apparent attempt to call into question the government's motivation in prosecuting him (Mosely), defendant questioned Skingel on the terms of his plea bargain agreement. He established that in return for Skingel's guilty plea and truthful testimony, the government would refrain from making any sentencing recommendation to the court as to Skingel and would not pursue prosecution of Skingel's wife. The cross-examination further established that Skingel had, in fact, lied under oath before the grand jury but that the government had not indicated its intention to recant the plea agreement. Immediately following the completion of appellant's cross-examination of this witness, the district judge, of her own volition, made the following statement to the jury:

I just want to make one thing clear to the Jury so that there will be no confusion on your part, that when a plea agreement is entered into between the government and a defendant who chooses to plead guilty, rather than be tried, that any agreement between them as to the sentence is not binding on the Judge.

The sentence is a matter that is the responsibility of the Court.

App. 105-06.

Mosely was ultimately convicted by the jury on all six counts of the indictment. He was sentenced to 10 years imprisonment on each count--terms to run concurrently. Mosely appeals directly from this conviction.

I.

Essentially, Mosely's argument on the first issue is that the blind strike method of exercising peremptory challenges deprived him of the ability to assess the potential jury incrementally as each peremptory was exercised. He maintains that this system frustrated his ability to intelligently exercise his peremptories and therefore denied him his full sixth amendment right to a trial by jury. It has long been established that the accused's right to peremptory jury challenges constitutes a "necessary part of trial by jury." Swain v. Alabama, 380 U.S. 202, 219, 85 S.Ct. 824, 835, 13 L.Ed.2d 759 (1965) (citing Lewis v. United States, 146 U.S. 370, 376, 13 S.Ct. 136, 138, 36 L.Ed. 1011 (1892)). While the right is not constitutional in origin, any system which denies or impairs the accused's right to exercise peremptories is reversible error without a showing of prejudice. Id. See also St. Clair v. United States, 154 U.S. 134, 148, 14 S.Ct. 1002, 1008, 38 L.Ed. 936 (1894). Furthermore, discriminatory use of the peremptory challenge to strike venirepersons solely on the basis of race may violate the accused's constitutional rights. Batson v. Kentucky, --- U.S. ----, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986) (14th amendment equal protection rights); Booker v. Jabe, 775 F.2d 762 (6th Cir.1985), vacated and remanded for reconsideration, --- U.S. ----, 106 S.Ct. 3289, 92 L.Ed.2d 705 (1986), reinstated on remand, 801 F.2d 871 (6th Cir.1986) (sixth amendment rights). Otherwise, the manner in which the peremptory challenges are exercised is a matter of local custom and traditionally has been left to the sound discretion of the district court. United States v. Blanton, 700 F.2d 298, 308-09 (6th Cir.), rev'd on other grounds, 719 F.2d 815 (6th Cir.1983) (en banc), cert. denied, 465 U.S. 1099, 104 S.Ct. 1592, 80 L.Ed.2d 125 (1984); United States v. Anderson, 562 F.2d 394, 396-97 (6th Cir.1977).

The blind strike method of exercising peremptory challenges was specifically sanctioned by the Supreme Court in Pointer v. United States, 151 U.S. 396, 412, 14 S.Ct. 410, 416, 38 L.Ed. 208 (1894). Further, the government has cited reported opinions from three circuits upholding this manner of jury selection under Fed.R.Crim.P. 24(b). See United States v. Roe, 670 F.2d 956, 961 (11th Cir.), cert. denied, 459 U.S. 856, 103 S.Ct. 126, 74 L.Ed.2d 109 (1982); United States v. Sarris, 632 F.2d 1341, 1343 (5th Cir.1980); Carbo v. United States, 314 F.2d 718, 748 (9th Cir.1963), cert. denied, 377 U.S. 953, 84 S.Ct. 1625, 12 L.Ed.2d 498 (1964).

Mosely's counsel argued before this court that the Pointer decision was not controlling because it presented a different challenge to the blind strike method. The error asserted in Pointer was that the simultaneous exercise of peremptory challenges in a federal criminal trial was illegal as in substantial derogation of the Court's prior decision in Lewis v. United States, 146 U.S. 370, 13 S.Ct. 136, 36 L.Ed. 1011 (1892), and in conflict with the law of the forum state. In rejecting the analogy to the Lewis decision, the Pointer Court indicated that a judgment of conviction would be reversed for the reasons stated in Lewis only where:

it did not appear affirmatively from the record of [the] case that the accused was, in fact, brought face to face with all the jurors who were examined [on voir dire], and whose names were on the list ... furnished to him, or that he was not present during such examination, or that they were not all in his presence when he exercised his right to challenge....

151 U.S. at 406, 14 S.Ct. at 413-14. The Court also rejected the argument that the manner of exercising challenges is constrained by the laws of the forum state. To the contrary, such matters are left to the discretion of the particular court subject only to acts of Congress and applicable federal court rules. Id. at 407-08, 14 S.Ct. at 414.

The Pointer decision also refuted the argument that the accused was entitled to have the government exercise its peremptory challenges first, noting that the opposite was true under English common law. Id. at 409-10, 14 S.Ct. at 415 (citing Brandeth's Case, 32 Howell's St.Tr. 755 ...