823 F.2d 1457 (11th Cir. 1987), 85-3399, United States v. McLain

Docket Nº:85-3399.
Citation:823 F.2d 1457
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Dennis McLAIN, a/k/a
Case Date:August 07, 1987
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit

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823 F.2d 1457 (11th Cir. 1987)

UNITED STATES of America, Plaintiff-Appellee,


Dennis McLAIN, a/k/a "Del Brenner," a/k/a "Dennis Hogan,"

Seymour Sher, a/k/a "Bruce," a/k/a "Sy,"


No. 85-3399.

United States Court of Appeals, Eleventh Circuit

August 7, 1987

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Arnold D. Levine, Tampa, Fla., for McLain.

Thomas J. Nolan, Finley, Kumble, Wagner, Heine, Underberg, Manley & Casey, Beverly Hills, Cal., Jeffrey M. Smith, Arnall, Golden & Gregory, Randy Evans, Jeffrey Bogart, Atlanta, Ga., for Fisher.

Lee Atkinson, Asst. U.S. Atty., Lynn Cole, J. Kirk Brandfass, Tampa, Fla., Ernst D. Mueller, Asst. U.S. Atty., Jacksonville, Fla., Joel Gershowitz, Crim. Div., U.S. Dept. of Justice, Washington, D.C., for plaintiff-appellee.

Appeal from the United States District Court for the Middle District of Florida.

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Before FAY and KRAVITCH, Circuit Judges, and MORGAN, Senior Circuit judge.

MORGAN, Senior Circuit Judge:

Appellants Dennis McLain and Seymour Sher were convicted by jury trial in the United States District Court for the Middle District of Florida of violating the federal RICO statute 18 U.S.C. Sec. 1962(c), conspiring to commit that offense in violation of 18 U.S.C. Sec. 1962(d); and using extortionate means to collect an extension of credit, in violation of 18 U.S.C. Sec. 894. McLain was also convicted of possessing cocaine with intent to distribute, in violation of 21 U.S.C. Sec. 841(a)(1). Both appellants contend that the trial schedule imposed by the district court and the prosecutor's misconduct denied them a fair trial. Each appellant also raises a number of errors on procedural grounds. Although not every claim is meritorious, we agree with the appellants that they did not receive a fair trial. Therefore, we reverse and remand this case to the district court.


In March 1984, Dennis McLain and Seymour Sher, along with Barry Nelson, Larry Knott, Jose Rodriguez, Frank Cocchiaro, and Mel Kaplan, were indicted for various offenses, ranging from racketeering, to extortion, to importing and distributing cocaine. After a mistrial, 1 a second trial began on November 26, 1984, lasting four months. Eventually, Sher was convicted of loansharking in violation of the federal RICO statute 18 U.S.C. Sec. 1962(d), conspiring to violate said statute, and of extortion in violation of 18 U.S.C. Sec. 894. He was sentenced to three concurrent twenty-year terms. Cocchiaro was convicted of the racketeering, conspiracy, and extortion counts and also received three concurrent twenty-year terms. McLain was also convicted of these offenses plus the offense of possessing cocaine with intent to distribute. He received concurrent eight-year terms for the first three counts and a fifteen-year sentence for the drug charge. Kaplan, Nelson and Knott pled guilty to the cocaine charge 2 and received lesser sentences. Finally, Rodriguez was acquitted along with McLain of conspiring to import cocaine.

At trial, the government introduced evidence to prove that the criminal racketeering charges originated in the offices of First Fidelity Financial Services in Hollywood, Florida. The government argued that Cocchiaro, Sher, and Nelson used these offices as a front for their loansharking activities. McLain ran a First Fidelity office in Tampa, Florida, and was also involved in these activities. These defendants allegedly made loans up to $40,000 and charged usurious interest rates (up to 130%). They also allegedly received large kickbacks for processing several loans. The government claimed that these offices were also a cover for illegal bookmaking.

The government further contended that after First Fidelity was closed by the State of Florida pending the adjudication of charges that it violated regulations governing mortgage brokers, McLain and others embarked upon large-scale drug running and distribution. The government accused McLain of distributing three kilograms of cocaine on one occasion, and of possessing ten kilograms with the intent to distribute on another. He also allegedly conspired to import four hundred kilograms of cocaine. At trial, the government introduced evidence showing that the defendants buttressed their loansharking and narcotics distribution efforts with threats of physical harm and with electric cattle prods and automatic weapons.


The facts garnished from the voluminous trial transcript brand this trial as a classic example of judicial error and prosecutorial misconduct combining to deprive the appellants of a fair trial. To begin, the trial judge, in her efforts to expedite the trial, allowed the discipline and decorum, inherently necessary to the proceedings, to unravel

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before her. With the trial barely underway, it soon became clear that the court's time allotment of eight weeks (200 hours) was an insufficient estimate of how long the trial would last. The judge became increasingly agitated about the pace at which the trial was proceeding. (R. 9-282). 3 When the trial did not speed up to her liking, the trial judge carried out her threat of extended daily court sessions and ordered that henceforth the trial would commence at 7:30 each morning and end at 5:00 each evening, Mondays through Thursdays. (R. 11-1043). This schedule commenced December 3, 1984, and continued through January 29, 1985.

Throughout the trial, the judge's insistence on completing the trial as scheduled manifested itself in constant reminders to the attorneys to pick up the trial's pace. (R. 19-3609). Furthermore, she informed the attorneys that they were being clocked by the courtroom deputy clerk, and she periodically announced how much court time had passed and how much time each attorney had used. (R. 23-4887B, 4887C, 26-5947, 50-3309, 68-5606, 82-7599). The judge's emphasis on speed stemmed from her desire to prevent any backlog of other cases on her docket. 4 The judge's final ultimatum to the attorneys best typifies the emphasis on haste throughout the trial: "[t]his case better go to the jury the week of March 12th. I'm telling you all that right now or you are really going to see a show in here the week of March 18th like they haven't seen around this building." (R. 69-5824).

Of course, this court is cognizant of the maxim that the trial judge has broad discretion in handling the trial and that the reviewing court should restrain itself from interposing its opinion absent a clear showing of abuse. United States v. Gomez-Rojas, 507 F.2d 1213, 1223 (5th Cir.1975), cert. denied, 423 U.S. 826, 96 S.Ct. 41, 46 L.Ed.2d 42 (1975). Indeed, "[t]he judicial role extends to ... controlling the trial and its participants so as to minimize confusion and delay while maximizing orderly, clear, and efficient presentation of the evidence." United States v. McDonald, 576 F.2d 1350, 1358 (9th Cir.1978), cert. denied, 439 U.S. 830, 99 S.Ct. 105, 58 L.Ed.2d 124 (1978) (emphasis added). With respect to the case at bar, the trial judge's efforts to speed up the pace not only rushed the attorneys, but also allowed the proceedings to get out of hand, seriously impeding appellants' rights to a fair trial.

There are numerous examples of how this excruciating trial schedule reduced the effectiveness of the jury. To begin, the trial judge and counsel noticed that the jurors were becoming restless and inattentive. Although she outwardly praised their

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efforts, 5 the judge began to take steps to ensure their attentiveness. She began by allowing the jury to stand during breaks in the testimony. (R. 12-1321, 1395, 1475, 1477, 13-1572, 1583, 1655, 1690, 1795, 1819, 1846, 1881). She instructed the marshals present in the courtroom to observe the jurors to prevent their slumber. (R. 13-1626, 1627). Food and coffee were available to jurors while they were seated in the jury box. (R. 24-5200). Eventually, the jurors and witnesses were allowed to stand while the attorneys were conducting their examinations. (R. 17-2990, 3105, 3202, 3204). This occurred during the cross-examination of Alton Dale Sparks, an important witness for the government. At one point after the judge instructed the jury and Mr. Sparks to stand, counsel for defendant McLain asked incredulously "[y]ou want me to proceed?" We likewise find it unsettling that the court ordered such actions. This continuous motion in the jury box interfered with the attorney's performance. More importantly, the standing, and eating only served to break the jurors' concentration. Allowing this kind of behavior was deleterious to the jury's appreciation of their important responsibilities. 6

Not only were the judge's attempts to keep the jury alert disturbing, they were also ineffective. There were complaints of jurors sleeping the very first day of the seven-thirty schedule. (R. 12-1411). This continued throughout the trial. (R. 13-1625, 16-2694, 17-3003, 3004). Finally, the court discharged one juror before the jury deliberations. (R. 88-8214). 7 "Due process means a jury capable and willing to decide the case solely on the evidence before it, and a trial judge ever watchful to prevent prejudicial occurrences and to determine the effect of such occurrences when they happen." Smith v. Phillips, 455 U.S. 209, 217, 102 S.Ct. 940, 946, 71 L.Ed.2d 78 (1982), on remand 552 F.Supp. 653, (S.D.N.Y.1982), aff'd, 717 F.2d 44 (2d Cir.1983), cert. denied, 465 U.S. 1027, 104 S.Ct. 1287, 79 L.Ed.2d 689 (1984). Although the court eventually discharged the sleeping juror, this is but one example of the lower court's failure to ensure a fair trial to the defendants.

The lower court's insistence on preserving its extended daily timetable also had a serious effect upon the attorneys' ability to stay alert and provide adequate...

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