German v. United States, 85-1621.

Citation525 A.2d 596
Decision Date07 May 1987
Docket NumberNo. 85-1621.,85-1621.
PartiesJames Neil GERMAN, Appellant, v. UNITED STATES, Appellee.
CourtCourt of Appeals of Columbia District

Allan P. Feigelson, for appellant.

Larry R. Parkinson, Asst. U.S. Atty., with whom Joseph E. diGenova, U.S. Atty., and Michael W. Farrell, Thomas E. Zeno, and Blanche L. Bruce, Asst. U.S. Attys., were on the brief, for appellee.

Before PRYOR, Chief Judge, FERREN, and ROGERS, Associate Judges.

ROGERS, Associate Judge:

Appellant James Neil German was convicted by a jury, upon retrial after the first jury was unable to return a verdict, of one count of trafficking in stolen property, D.C. Code § 22-3831 (1986 Supp.), and sentenced to 40 months to ten years and fined $10,000. On appeal he contends that the trial judge improperly participated in the plea negotiations, and that he was later penalized with a heavier sentence for exercising his right to a jury trial. He also challenges the validity of the trafficking statute on the grounds that it was improperly enacted, is unconstitutionally overbroad and void for vagueness, and unconstitutionally deprives him of the defense of impossibility. Further, he argues that the trial court committed reversible error by admitting into evidence (1) the testimony of George Melson, which constituted evidence of other crimes, and (2) a tape, a copy of the tape, and a derivative transcript of an undercover conversation between German and a police officer, which allegedly were not supported by a sufficient chain of custody, and by excluding the testimony of German's accountant, who sought to introduce German's income tax returns. Finally, German challenges the refusal of the trial judge to give requested jury instructions that an adverse inference could be drawn from the government's failure to call as a witness one of the officers engaged in the undercover operation, and that the government must have had reasonable suspicion to commence an investigation in order to avoid an entrapment defense.

We agree the trial court's pretrial remarks violated Super. Ct.Crim.R. 11(e)(1); however, German has failed to meet his burden to show prejudice in that he was penalized for exercising his sixth amendment right to a jury trial. We find no merit to his statutory challenges and no evidentiary or instructional error. Accordingly, we affirm.

I.

The investigation of James German began when George Melson complained to a criminal investigator at the United States Department of Agriculture that his friend, Jessie Weems, was illegally exchanging food stamps at German's grocery store for cash, liquor, and other non-food items. The Agriculture Department investigator, Mel Bowling, contacted the Metropolitan Police and, after substantial planning, Officer Rufus Archer, who had worked in an undercover capacity several thousand times, was supplied with bait property and $250 worth of food stamps. On January 4, 1983, he and Russell Anderson, a special Department of Agriculture employee, entered German's store, the G & G Grocery Store, while Bowling provided surveillance from a parking lot. After a short conversation inside, a store employee, Kenneth Henson,1 told Archer that he could handle the stamps, but that Archer would have to see German about the goods. German entered the room shortly thereafter, instructed Henson to pay Archer $125 for the stamps, and went outside to inspect the property, which he later purchased. Archer testified he told German that the goods, a stereo receiver and a cordless telephone, had been stolen by a buddy who worked at the Hecht Company, and were worth $550. German purchased the goods for $150, and inquired into the possibility of obtaining more food stamps and property.

Archer made a similar sale of food stamps to German eight days later. This time, Archer stated that the food stamps had been stolen by a friend who worked at 300 Indiana Avenue, where the stamps were produced. German asked about the method used to steal the stamps and instructed Archer on how the stamps should be stolen in order to prevent the tracing of the serial numbers.

On February 10, 1983, Archer was fitted with a body recorder and returned to the G & G Grocery Store with another cordless telephone and a digital clock. German purchased the goods for either $50 or $55, and later asked, "What else can you get me." A conversation ensued in which German expressed his interest in purchasing more goods, especially televisions with remote control, to be stolen from the Hecht's warehouse by a "friend," whose identity he did not want to know; he also stated that he had "been in this business 15 years."2 German was arrested on a warrant five days later.

German did not testify at the trial. In his defense he called three witnesses who testified that on January 4, 1983, they had seen a man fitting Archer's description offer to sell some Christmas gifts in order to avoid an eviction, that German had left the store with Archer, and that they had returned with boxes resembling Christmas gifts. Michael Dearring, a sales manager at Circuit City, testified that on January 4, 1983, German purchased two color television sets. Susy Miles testified as a character witness that German's reputation for truth and honesty "as far as I can explain, [is] excellent."

German's initial trial before Judge Salzman resulted in a mistrial when the jury failed to return a verdict. At the second trial, also before Judge Salzman, a jury convicted German of trafficking in stolen property, and he was sentenced to 40 months to ten years and fined $10,000. This appeal followed.

II. Judicial Participation.

German first contends that the trial judge improperly participated in the plea bargaining process by suggesting a plea bargain, by expressing his view that the case was not very serious and the evidence not very strong, and by commenting on the likely sentence. The statements occurred as follows:

THE COURT: Well, I will put it this way. How about an attempted trafficking in stolen property? That would be an offense, and it would be a misdemeanor. I would suggest — Does that seem reasonable to your client? That would carry no more than a year. I would put it to you this way. This is not the most overwhelming criminal conspiracy I have seen in my lifetime, to put it politely; and the government's case may be strong enough to get a conviction, but I am not sure it's overwhelming. It did not get a conviction last time. I am not sure, you know, this does not seem to be odd, if something involves conspiracy, that the Agriculture Department is dying to stamp out or the world will come to an end unless a finding of trafficking is returned in this matter. It's not the oldest or the newest case on the calendar, nor is it one that appears to be life-threatening, that would require the incarceration of any of these individuals if convicted, and surely they would be released pending appeal in any event. And it's a question of commitment of resources to a matter like that. And if you would, we will continue this until eleven.

MS. BRUCE [the prosecutor]: Yes, sir. THE COURT: And if you would be kind enough to simply convey my thoughts? I have no opinion as to whether the defendant is or is not guilty; whether it's worth a five day trial on the part of the Government, whatever the outcome, and if that would seem a reasonable disposition of the whole thing to you? . . .

But I will proceed to trial at eleven o'clock, this morning; and if you wish to go to trial, so be it. I will simply try something else. This is far more interesting than the usual drug dealing.

(Emphasis supplied.) German argues that these statements constituted impermissible judicial participation in the plea bargaining process in violation of Super. Ct.Crim.R. 11(e)(1), and that he relied on the trial judge's projections in choosing to go to trial rather than to accept a plea bargain.3 He further contends that, after his conviction, the judge imposed the maximum sentence as a penalty for German's exercise of his sixth amendment right to a trial by jury.

A.

Rule 11(e)(1) provides that a trial judge "shall not participate in any . . . discussions" leading to a plea agreement between a defendant and the government.4 As interpreted by the federal courts,5 the rule prohibits a trial judge "from assuming the role of an active negotiator in the plea bargaining process." Frank v. Blackburn, 646 F.2d 873, 880 (5th Cir.1980) (en bane) (applying identical federal provision), modified, 646 F.2d 902 (deleting statement that lack of remorse demonstrated by failure to plead guilty is itself a justification of a more severe sentence), cert. denied, 454 U.S. 840, 102 S.Ct. 148, 70 L.Ed.2d 123 (1981). The rule, according to United States v. Werker, 535 F.2d 198, 201 (2d Cir.), cert. denied, 429 U.S. 926, 97 S.Ct. 330, 50 L.Ed.2d 296 (1976),

leaves no room for doubt that its purpose and meaning are that the sentencing judge should take no part whatever in any discussion or communication regarding the sentence to be imposed prior to the entry of a plea of guilty or conviction, or submission to him of a plea agreement.

The Werker court issued a writ of mandamus prohibiting the trial judge from disclosing, prior to the pleadings, the sentence to be imposed if a guilty plea was entered. Id. at 201-04. This prohibition is absolute because of the "role required of the judge once an agreement is reached: the court must decide for itself whether to accept or reject the plea bargain." United States v Adams, 634 F.2d 830, 835 (5th Cir.1981). Appellate courts have, however, shown more tolerance6 to judicial commentary on likely sentences when the judge's statement is made at the specific request of the defendant. See Frank v. Blackburn, supra, 646 F.2d at 880, 883; Blackmon v. Wainwright, 608 F.2d 183, 184 (5th Cir. 1979) (per curiam), cert. denied, 449 U.S. 852, 101 S.Ct. 143, 66 L.Ed.2d 64 (1980).

In the instant case, the...

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