954 F.2d 23 (1st Cir. 1992), 91-1168, United States v. Parent

Docket Nº:91-1168.
Citation:954 F.2d 23
Party Name:UNITED STATES of America, Appellee, v. Barry H. PARENT, Defendant, Appellant.
Case Date:January 21, 1992
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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954 F.2d 23 (1st Cir. 1992)

UNITED STATES of America, Appellee,

v.

Barry H. PARENT, Defendant, Appellant.

No. 91-1168.

United States Court of Appeals, First Circuit

January 21, 1992

Heard Dec. 4, 1991.

David Berman, Medford, Mass., with whom Ronald J. Chisholm, Jr. and Chisholm & Ganak, Boston, Mass., were on brief, for defendant, appellant.

Carolyn Stafford Stein, Asst. U.S. Atty., with whom Wayne A. Budd, U.S. Atty., Boston, Mass., was on brief, for appellee.

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Before SELYA, Circuit Judge, COFFIN, Senior Circuit Judge, and POLLAK, [*] Senior District Judge.

SELYA, Circuit Judge.

A federal court jury found defendant-appellant Barry H. Parent guilty of possessing firearms, he being a previously convicted felon. 18 U.S.C. § 922(g)(1) (1988). The district court imposed sentence under the Armed Career Criminal Act, 18 U.S.C. § 924(e) (1988). On appeal, Parent assigns error in three respects. He claims that the court below acted impermissibly in (1) circumscribing the cross-questioning of a prosecution witness, (2) instructing on the issue of constructive possession, and (3) mishandling a note from the jury. Finding the last point to be valid, we vacate the judgment and remand for a new trial.

The Events

Because the lower court's treatment of the jury note comprises the dispositive issue on appeal, we abjure a rote recital of the evidence and proceed directly to the circumstances germane to that issue.

The testimony in Parent's trial concluded on December 4, 1990. The next day, following the lawyers' summations, the court delivered its charge ore tenus. 1 The jury retired to deliberate at 10:50 a.m. That afternoon, the deliberating jury sent the judge a note containing two questions. One query need not concern us. The second asked the judge to "clarify the term constructive possession ... in all of its aspects."

After consulting with the attorneys, the judge returned the jury to the courtroom. He proceeded to reinstruct on constructive possession, first reemphasizing that the offense required scienter. 2 The defendant's objection to the supplementary instruction was overruled. The jury again retired. Deliberations continued. At 4:40 p.m., no verdict ascendant, court was adjourned.

On December 6, the jurors resumed consideration of the case. Shortly before noon, the judge received a note which, we are told, asked if the jurors could "visually review" the instruction on constructive possession. 3 The judge did not inform the lawyers of this communique, but instead took two sheets from the government's requests to charge and sent those sheets into the jury room. The sheets, attached as an appendix hereto, defined the term "constructive possession" and cited authority in support of the asserted definition. Approximately two hours later, presumably having lunched in the interim, the jury returned a guilty verdict. Only thereafter did the facts emerge as to the final jury note and the court's unilateral response to it. 4

The Error

It cannot be doubted that the district court's handling of the jury note was

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in error. In United States v. Maraj, 947 F.2d 520 (1st Cir.1991)--an opinion which announced no innovative principle and which drew upon long-settled precedent--we stated that a jury note should customarily "be shown, or read fully, to counsel," with counsel thereafter being "given an opportunity to suggest an appropriate rejoinder." Id. at 525. We also indicated that, where the judge favors a written response to such a note, the lawyers should review the intended reply and "be afforded an opportunity to register objections before the reply is transmitted to the jury." Id. Maraj, then, stands foursquare for the proposition that messages from a deliberating jury, pertaining to ongoing deliberations, ought to be fully disclosed to the lawyers when received, so that the latter may be heard before the judge implements a course of action. See id.; see also Shields v. United States, 273 U.S. 583, 588, 47 S.Ct. 478, 479, 71 L.Ed. 787 (1927) ("Where a jury has retired to consider of its verdict, and supplementary instructions are required, either because asked for by the jury or for other reasons, they ought to be given either in the presence of counsel or after notice and an opportunity to be present; and written instructions ought not to be sent to the jury without notice to counsel and an opportunity to object.") (quoting Fillippon v. Albion Vein Slate Co., 250 U.S. 76, 81, 39 S.Ct. 435, 436, 63 L.Ed. 853 (1919)); cf. Fed.R.Crim.P. 43(a) (defendant's presence required at every stage of trial). The court below--by responding to the jury's note before sharing it with counsel--violated the Maraj rule.

The Harm

Determining that a bevue was committed does not complete the appellate task. A trial court's error in failing seasonably to inform counsel about a jury note does not require reversal if the error is benign. See Maraj, 947 F.2d at 526. Here, however, regardless of the standard under which the harmlessness inquiry is conducted, 5 the conviction must yield.

We begin our analysis by acknowledging that the giving, or withholding, of a supplemental instruction, or the contents of it if given, are matters committed to the trial court's sound discretion. See United States v. Andrew, 666 F.2d 915, 922 (5th Cir.1982); United States v. Braverman, 522 F.2d 218, 224 (7th Cir.), cert. denied, 423 U.S. 985, 96 S.Ct. 392, 46 L.Ed.2d 302 (1975). When a question is posed by a deliberating jury, the trial court is often best advised to avoid gratuitous pererrations, "confin[ing] its response to the approximate boundaries of the jury's inquiry." United States v. Ladd, 885 F.2d 954, 961 (1st Cir.1989). In ordinary circumstances, then, a trial court, confronted with a specific query, may appropriately limit its response to the particular question posed. See, e.g., id.; United States v. Piatt, 679 F.2d 1228, 1231 (8th Cir.1982); United States v. Chatham, 568 F.2d 445, 451 n. 10 (5th Cir.1978); Whiting v. United States, 321 F.2d 72, 75 & n. 3 (1st Cir.), cert. denied, 375 U.S. 884, 84 S.Ct. 158, 11 L.Ed.2d 114 (1963).

In this instance, the court's proffer responded directly to the inquiry presented, stated the law with reasonable fidelity, and

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contained nothing new. 6 Under ordinary circumstances, the reply might well prove unexceptionable. Here, however, the circumstances were far from ordinary. One salient circumstance, of course, is that the critical exchange between judge and jury took place without the parties' knowledge. The Court has made clear that, in such a situation, the real harm is not that the trial judge might have misstated the law--that sort of error, after all, could be meaningfully evaluated after the fact--but that the aggrieved party will have lost the value of the chance: the opportunity to convince the judge that some other or different response would be more appropriate, the circumstances considered. See Fillippon, 250 U.S. at 82, 39 S.Ct. at 436 (describing such an error as "presumptively injurious"). This case is a paradigmatic example of the point; it is entirely plausible that defense counsel, if seasonably apprised, might successfully have prevailed upon the district court to withhold the written version, or to couple the supplemental instruction with, say, an instruction on guilty knowledge, 7 or at least to remind the jury of its obligation to heed the charge as a whole. Being kept in the dark, defense counsel was powerless to prime the pump of persuasion.

To be sure, the presumption of injury can sometimes be rebutted. But on the facts of this case, the error looms particularly large and, hence, the likelihood of harm is correspondingly difficult to rebut. For one thing, there is some reason to believe that defense counsel's timely intervention might have been productive. For another thing, human experience teaches that people frequently give special credence to the written word. Cf., e.g., Job 19:23 ("Oh that my words were now written!"). Thus, when a judge who has charged jurors orally elects thereafter to give them a fragment of the charge in written form, the danger of overemphasis is acute. It is all too easy for jurors to dwell upon a few sentences, in black and white, at the expense of straining to recall what else the judge may have said. The Third Circuit put it well:

Giving supplemental instructions to the jury is usually a delicate and sensitive task requiring the exercise of judgment and skill. The task [is] more delicate when the principal charge is oral and the supplemental instructions are in writing because of the risk of accentuating a segment of the charge by reducing it to writing.

Beardshall v. Minuteman Press Int'l, Inc., 664 F.2d 23, 28 (3d Cir.1981). In this case, moreover, the uncertain effect of the supplemental instruction was compounded by the list of citations gracing the second page. See Appendix, infra, p. 28. No explanation was offered as to the meaning of these citations. It is fair to assume, at the very least, that including the list created a fertile source of possible confusion for lay jurors.

It is also noteworthy that, in addition to being out of balance, the supplemental...

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