U.S. v. Joshi

• Decision Date: 22 March 1990
• Docket Number: No. 88-5730,88-5730
• Citation: 896 F.2d 1303
• Parties: 29 Fed. R. Evid. Serv. 1114 UNITED STATES of America, Plaintiff-Appellee, v. Kishor JOSHI, Jitendra Panchal, Jagadish Panchal, Defendants-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1303

896 F.2d 1303

29 Fed. R. Evid. Serv. 1114

UNITED STATES of America, Plaintiff-Appellee, v. Kishor JOSHI, Jitendra Panchal, Jagadish Panchal Defendants-Appellants.

No. 88-5730.

United States Court of Appeals Eleventh Circuit.

March 22, 1990.

Janice Burton Sharpstein, Richard Sharpstein, Sharpstein & Sharpstein, Coconut Grove, Fla., for Kishor Joshi.

Theodore J. Sakowitz, Federal Public Defender, Richard Kough, Asst. Federal Public Defender, Miami, Fla., for Jitendra and Jagadich Panchal.

Dexter Lehtinen, U.S. Atty., Carol Wilkinson, June C. Seraydar, Linda C. Hertz, Harriett R. Galvin, Asst. U.S. Attys., Miami, Fla., for plaintiff-appellee.

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

Before FAY and KRAVITCH, Circuit Judges, and CASTAGNA ^*, District Judge.

KRAVITCH, Circuit Judge:

Jagadish Panchal, Jitendra Panchal, and Kishor Joshi appeal their convictions on three narcotics counts relating to a conspiracy to import and distribute in excess of 1,000 kilograms of hashish. The Panchals claim that the district court deprived them of the right to an impartial jury by permitting the trial to be bifurcated. Joshi contends that he was deprived of a fair trial due to inadequate translation by his interpreter, the admission of an incriminating statement made by a confederate that Joshi is alleged to have adopted by nodding his head, and the failure of the trial court to provide several jury instructions. We affirm the judgment of the district court.

FACTS

The Panchals, in March 1986, unknowingly hired two undercover Drug Enforcement Administration (DEA) agents to assist their importation of 5,726 pounds of hashish from Bombay, India. The DEA arranged to have the cargo seized in Newark, New Jersey, on March 12, 1986, by the United States Customs Service without compromising the cover of the agents.

The Panchals and the DEA agents subsequently planned to import a second load of hashish into Miami, Florida. On June 11, 1987, two DEA agents met with Jitendra Panchal and Joshi in the agents' car. Panchal introduced Joshi as his partner in both the Newark and the Miami hashish importation plans. Joshi responded by nodding his head. During this meeting they agreed that Joshi would travel to India to obtain the shipping documents that the agents would need in order to receive the cargo in Miami.

On November 19, 1987, Jitendra Panchal and Joshi were arrested after assisting the agents in unloading and identifying barrels containing 2,540 pounds of hashish. Following their arrest, travel documents were seized indicating that Joshi and Jitendra Panchal had planned their travel from Chicago, the Panchals' residence, to Miami and then to Montreal, Canada where they intended to distribute the hashish. Most of the meetings and conversations relating to these plans were recorded.

The three defendants were tried together after the court considered and later denied their motion for severance. Following the presentation of the government's case, the court acceded to the request of the defendants and bifurcated the remainder of the trial. Joshi did not testify or present any evidence. During Joshi's and the government's closing arguments on the Joshi phase of the trial, the Panchals were excluded from the courtroom. Their attorneys, however, were permitted to remain during the arguments. After the jury returned and found Joshi guilty on all counts, it heard testimony from the Panchals, their sister, and Jagadish Panchal's wife. The same jury found the Panchals guilty on all counts.

TRIAL BIFURCATION

The Panchals contend that the district court's bifurcation of the trial denied the defendants the right to have an impartial jury as guaranteed by the sixth amendment. See Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 551, 96 S.Ct. 2791, 2799, 49 L.Ed.2d 683 (1976); Irvin v. Dowd, 366 U.S. 717, 722, 81 S.Ct. 1639, 1642, 6 L.Ed.2d 751 (1961); United States v. Bolinger, 837 F.2d 436, 438 (11th Cir.), cert. denied, 486 U.S. 1009, 108 S.Ct. 1737, 100 L.Ed.2d 200 (1988). The Panchals argue that the impartiality of the jury was tainted because it had already decided the guilt of a codefendant for the same conspiracies before hearing testimony from the Panchals and witnesses called on their behalf.

The Panchals rely on this court's decision in United States v. McIver for the proposition that "a jury which has convicted two co-defendants cannot impartially evaluate the case of the third co-defendant." 688 F.2d 726, 731 (11th Cir.1982). In McIver, as in this case, the trial judge bifurcated the proceedings mid-trial. The jury heard the defense case for two of the defendants and returned a guilty verdict. The same jury then heard the third defendant's case and also found him guilty. This court reversed the conviction of the third defendant "because the jury might consider, even if inadvertently, the guilt of the defendant before it ... heard the defendant's case." McIver, 688 F.2d at 729. The court explained:

[T]he three defendants were all charged with the same crimes. The government's evidence presented during the McIvers' phase of the trial pertained to all three defendants. It is unlikely in such a situation that the jury could convict two of the three defendants without forming an opinion regarding the third defendant. Such a jury cannot be impartial; rather, it is "predisposed to find guilt."

Id. (quoting United States v. Stratton, 649 F.2d 1066, 1082 (5th Cir. Unit A 1981)). ¹

We do not retreat today from this precedent. Nevertheless, we do not reverse the Panchals' convictions because of a critical distinction between this case and McIver. In McIver, the court denied the third defendant's request to sever and initiated the idea of bifurcating the trial. McIver, 688 F.2d at 728. The third defendant's lawyer objected to the procedure and "continued throughout the trial to note his objection to the bifurcation." Id. at 728.

In contrast, the request to bifurcate the proceedings in this case was made by the defendants over the objections of the government. At the close of the government's case, counsel for Joshi renewed a motion to sever his case from that of the Panchals. During a colloquy with the trial judge, attorneys for the Panchals expressed concern that their clients might offer perjurious testimony implicating Joshi. After reading a summary of the testimony proffered by the Panchals, Joshi's attorney repeated his request for a severance. The court took the motion under consideration and the following colloquy ensued:

MR. GALANTER [Joshi's attorney]: Judge, because I have an alternative, if the government would agree. I am prepared to go forward at this time and rest my case based on the evidence that the government has presented. I am putting on no evidence.

THE COURT: And then let the jury decide your case and then let them come back and decide the other case?

MR. GALANTER: Exactly.

THE COURT: Does anybody object to that procedure?.... That occurred to me as we were talking, but I didn't know if anybody would want to proceed that way.

MR. GALANTER: Judge, that is my preference, based upon what I have just been shown.

MR. DURKIN [Jagadish Panchal's attorney]: I would concur in that.

MR. WITLIN [Jitendra Panchal's attorney]: I concur, your Honor.

The sixth amendment right to an impartial jury, as with other constitutional rights, can be waived. See Government of Virgin Islands v. Parrott, 551 F.2d 553, 554-55 (3rd Cir.1977). This court recently noted in the context of a juror bias claim that "where the defendant or defense counsel knows of juror ... bias before the verdict is returned but fails to share this knowledge with the court until after the verdict is announced, the ... [bias] may not be raised as a ground for a new trial." Bolinger, 837 F.2d at 439. It is evident from the colloquy between the trial judge and the Panchals' attorneys that the attorneys consented to the bifurcated procedure.

The more difficult question is whether the defendants themselves must personally have consented to the procedure. In Poole v. United States, this court acknowledged that "[i]t is difficult to articulate a bright line distinction between those rights an attorney can waive without the defendant's consent and those the attorney cannot waive." 832 F.2d 561, 564 (11th Cir.1987), cert. denied --- U.S. ----, 109 S.Ct. 54, 102 L.Ed.2d 33 (1988). This circuit has differentiated those rights requiring the defendant's personal waiver from those that can be waived by defendant's counsel by focusing on whether the waiver involves a fundamentally important personal right or merely a tactical decision with constitutional implications.

Where an "inherently personal right of fundamental importance is involved," the defendant's consent is required. Poole, 832 F.2d at 564. Among those rights that a defendant must personally waive are the right to go to trial or plead guilty, Boykin v. Alabama, 395 U.S. 238, 242, 89 S.Ct. 1709, 1711, 23 L.Ed.2d 274 (1969); the right to be tried by a judge or jury, Adams v. United States ex rel. McCann, 317 U.S. 269, 278, 63 S.Ct. 236, 241, 87 L.Ed. 268 (1942), the right to be represented by counsel, Faretta v. California, 422 U.S. 806, 835, 95 S.Ct. 2525, 2541, 45 L.Ed.2d 562 (1975); and the right to appeal. Fay v. Noia, 372 U.S. 391, 439, 83 S.Ct. 822, 849, 9 L.Ed.2d 837 (1963).

In contrast, myriad tactical decisions made by defense attorneys throughout the course of their defense implicitly involve the waiver of constitutional rights but do not necessitate the personal consent of the defendant. ² Poole, 832 F.2d at 564. As the Court noted in Estelle v. Williams, "the vast array of trial decisions, strategic and tactical, which must be made before and during trial rests with the accused and his attorney." 425 U.S. 501, 512, 96 S.Ct. 1691, 1697, 48 L.Ed.2d 126 (1976). "A defendant may not remain silent ... and thereafter claim error." Id. at 508, 96 S.Ct....