U.S. v. Douglas

Citation818 F.2d 1317
Decision Date24 June 1987
Docket Number86-2221 and 86-2222,86-2220,Nos. 86-2219,s. 86-2219
PartiesUNITED STATES of America, Plaintiff-Appellee, v. James "Jamie" DOUGLAS, Martin L. "Marty" Pruitt, Leon Mason, and James Anderson, Defendants-Appellants.
CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)

Julie L. Friedman, Brian M. Collins, Chicago, Ill., Michael Higgins, Willowbrook, Ill., for defendants-appellants.

Frances C. Hulin, U.S. Atty., U.S. Atty's Office, Danville, Ill., for plaintiff-appellee.

Before CUDAHY, FLAUM, and RIPPLE, Circuit Judges.

FLAUM, Circuit Judge.

The defendants were indicted for conspiring to possess cocaine and heroin with the intent to distribute, and for conspiring to distribute cocaine and heroin. After a jury trial, the defendants were found guilty. The defendants raise a number of objections to their convictions. We conclude that, because the jury was inadequately instructed on the defendants' theory of defense, their Fifth Amendment rights were violated. We therefore vacate the defendants' convictions and remand for a new trial.

I.

The defendants allegedly conspired to distribute heroin and cocaine in violation of 21 U.S.C. Secs. 841(a)(1) and 846 (1982) and 18 U.S.C. Sec. 2 (1982). Because the facts surrounding the alleged conspiracy are disputed, we set forth only those facts that are necessary to understand our disposition of this case on appeal. We do not attempt to discern what sales occurred and how much was involved in the alleged sales.

The prosecution's theory was that the defendants were part of a large conspiracy to distribute cocaine and heroin. It is undisputed that each defendant, between the fall of 1983 and the spring of 1984, purchased cocaine and/or heroin from Jose ("Kiki") Castro. The quantity that each defendant purchased is in dispute. However, each defendant alleges that he bought cocaine and/or heroin solely for his own use. During the cross-examination of Castro, and other government witnesses, the defense attorneys attempted to show that the defendants were mere buyers. Castro's testimony, although confusing and contradictory, does state that he was not concerned with what the defendants did with the drugs. Moreover, at one point, he characterized Anderson as a "customer."

At the conclusion of the trial, the defendants collectively proffered five instructions. The instruction that is critical to this case read:

Mere proof of the existence of a buyer-seller relationship is not enough to convict one as a co-conspirator on drug conspiracy charges.

The court declined to give the instruction, believing that its instruction, which was based on the Seventh Circuit's model jury instructions, adequately incorporated the defendants' theory of defense. 1 The defendants did not object to this decision.

During the jury's deliberations, the jury sent a note to the trial judge. This note read:

If person A accepts controlled substances from person B and person B is part of the conspiracy does A become part of the conspiracy by the act of receipt of the controlled substance alone.

The district court responded to the jury's request, without notifying the parties, stating, "Read the Court's instructions. The answer is contained in the instructions." The jury later returned a verdict finding the defendants guilty of conspiracy with the intent to distribute cocaine and heroin and conspiracy to distribute in violation of 21 U.S.C. Secs. 841(a)(1) and 846 (1982), and 18 U.S.C. Sec. 2 (1982). Douglas, Mason, and Anderson were each sentenced to fifteen years in jail; Pruitt received nine years. The defendants filed a timely notice of appeal.

II.

On appeal, the defendants raise numerous objections to their convictions. They object to the sufficiency of the evidence, the admission of certain evidence at trial, and the trial court's refusal to incorporate their proposed instructions into the court's jury charge. We conclude that the defendants' Fifth Amendment right to have the jury consider their theory of defense was violated in this case, because even though the record shows that the defendants' theory of defense at trial was that they were mere purchasers from the conspiracy, the trial court, relying on the pattern jury instructions, did not instruct the jury on this theory. Moreover, we believe that because the defendants' right to have their defense go to the jury was violated, they were denied a fair trial. We conclude that the jury may well have reached a different result had a buyer-seller instruction been given, and we therefore vacate the defendants' convictions, and remand the case for a new trial. 2

A.

Initially we must set forth our standard of review. Rule 30 of the Federal Rules of Criminal Procedure contains the requirements for preserving an objection to a district court's refusal of a proposed jury instruction for appeal. Merely submitting instructions is not sufficient. Instead, a defendant must object, on the record, to the judge's refusal to tender the defendant's instructions, and must clearly state the reasons for his or her objections. United States v. Green, 779 F.2d 1313, 1320 n. 6 (7th Cir.1985). Failure to meet the requirements of Rule 30 means that this court will analyze a defendant's objections on appeal under a "plain error" standard. Green, 779 F.2d at 1319-20; United States v. Brown, 739 F.2d 1136, 1143 (7th Cir.), cert. denied, 469 U.S. 933, 105 S.Ct. 331, 83 L.Ed.2d 268 (1984).

In this case, the defendants tendered their proposed instructions. The trial judge, at the instructions conference, refused them. However, after this refusal at the conference, the defendants failed to object. Thus, the defendants did not preserve their objections for appeal, and we must, accordingly, analyze this case under a plain error analysis.

Plain error must be of such a great magnitude that it probably changed the outcome of the trial. United States v. Silverstein, 732 F.2d 1338, 1349 (7th Cir.1984), cert. denied, 469 U.S. 1111, 105 S.Ct. 792, 83 L.Ed.2d 785 (1985); see also United States v. Windfelder, 790 F.2d 576, 583 (7th Cir.1986) (quoting United States v. Jackson, 569 F.2d 1003, 1010 (7th Cir.), cert. denied, 437 U.S. 907, 98 S.Ct. 3096, 57 L.Ed.2d 1137 (1978)) (stating the test as " 'whether the instructional mistake had a probable impact on the jury's finding that the defendant was guilty' "). Judge Posner has explained the distinction between plain error and harmless error:

No doubt the difference between the standards of plain and of harmless error is small, but there is some, and there is a reason for it. Reversing a conviction on the basis of an error that the defendant's lawyer failed to bring to the judge's attention is inconsistent with the premises of an adversary system and disruptive of the efficient operation of the criminal justice system. It is justifiable only when the reviewing court is convinced that it is necessary in order to avert an actual miscarriage of justice....

Silverstein, 732 F.2d at 1349. Plain error analysis is not a panacea for every error of counsel; it is successfully employed only in the most compelling case. We must determine whether this is such a case, and whether the record reflects that the defendants were denied a fair trial.

B.

We initially set forth the standard we use for determining whether the defendants in this case were entitled to their proposed jury instruction. " '[T]he defendant in a criminal case is entitled to have the jury consider any theory of the defense which is supported by law and which has some foundation in the evidence, however tenuous.' " United States v. Boucher, 796 F.2d 972, 975 (7th Cir.1986) (quoting United States v. Grimes, 413 F.2d 1376, 1378 (7th Cir.1969)); United States v. Patrick, 542 F.2d 381, 386 (7th Cir.1976), cert. denied, 430 U.S. 931, 97 S.Ct. 1551, 51 L.Ed.2d 775 (1977); accord United States v. Prieskorn, 658 F.2d 631, 636 (8th Cir.1981). However, the defendant is not necessarily entitled to have his or her particular instruction presented to the jury, Green, 779 F.2d at 1320; rather, the defendant is only entitled to have his or her theory presented to the jury, Boucher, 796 F.2d at 976 (citations omitted).

We hold that a defendant is entitled to an instruction on his or her theory of defense if: the defendant proposes a correct statement of the law; the defendant's theory is supported by the evidence; the defendant's theory of defense is not part of the charge; and the failure to include an instruction on the defendant's theory of defense in the jury charge would deny the defendant a fair trial. Cf. United States v. Walker, 720 F.2d 1527, 1541 (11th Cir.1983), cert. denied, 465 U.S. 1108, 104 S.Ct. 1614, 80 L.Ed.2d 143 (1984) (discussing when a trial judge's failure to give a requested instruction is reversible error). A district court should state its reasons on the record, based on the standard that we set forth, if it declines to give an instruction on the defendant's theory of defense.

1.

We first examine whether the defendants' proposed instruction correctly stated the law. The defendants' proposed instruction was that "[m]ere proof of the existence of a buyer-seller relationship is not enough to convict one as a co-conspirator on drug conspiracy charges." Our cases make clear that merely purchasing drugs or other property from a conspiracy, standing alone, can never establish membership in the conspiracy. See United States v. Manzella, 791 F.2d 1263, 1265 (7th Cir.1986); United States v. Keck, 773 F.2d 759, 768 (7th Cir.1985); United States v. Hyman, 741 F.2d 906, 914 (7th Cir.1984); United States v. Creamer, 555 F.2d 612, 615 (7th Cir.), cert. denied, 434 U.S. 833, 98 S.Ct. 118, 54 L.Ed.2d 93 (1977); accord United States v. Kapp, 781 F.2d 1008, 1010 (3d Cir.), cert. denied, --- U.S. ----, 106 S.Ct. 1220, 89 L.Ed.2d 330 (1986); United States v. Dickey, 736 F.2d 571, 583 (10th Cir.1984), cert....

To continue reading

Request your trial
128 cases
  • U.S. v. Marren
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • November 29, 1989
    ... ... In United States v. Douglas, 818 F.2d 1317 (7th Cir.1987), we held that a defendant is entitled to an instruction on his or her theory of defense if: (1) the defendant proposes ... From the limited record before us, it appears that in No. 85 CR 555 Marren and five police officers employed by the Office of the Sheriff of Cook County were charged with RICO ... ...
  • State v. Adkisson
    • United States
    • Tennessee Court of Criminal Appeals
    • December 8, 1994
    ... ... Davis continually referred to "we" and "us," meaning Davis and the appellant. Davis referred to Kneisel as "the money man" and "the doctor" who worked at Donelson Hospital. 11 Kneisel's ... 71 838 F.2d 932 (7th Cir.1988) ... 72 838 F.2d at 937, quoting United States v. Douglas, 818 F.2d 1317, 1320 (7th Cir.1987) ... 73 United States v. Young, 470 U.S. at 16, 105 S.Ct. at 1046, 84 L.Ed.2d at 13; United States v. Greene, ... ...
  • U.S. v. Herrero
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • January 16, 1990
    ... ... Douglas, 818 F.2d 1317, 1320-21 (7th Cir.1987), we held that ... '[a] defendant is entitled to an instruction on his or her theory of defense if: the ... It appears to us ... ...
  • U.S. v. Grier
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • February 8, 1989
    ... ... See United States v. Douglas, 818 F.2d 1317, 1320 (7th Cir.1987) ...         Turning to the substantive law applicable to review of the jury instructions given in both ...         Our examination of these instructions, thus, leads us to only one logical conclusion, that the jury instructions, when viewed in their entirety, properly separate the individual defendants from one ... ...
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT