U.S. v. Ajmal

• Decision Date: 20 September 1995
• Docket Number: Nos. 1782,D,2093,s. 1782
• Parties: 42 Fed. R. Evid. Serv. 1189 UNITED STATES of America, Appellee-Cross-Appellant, v. Mohammad AJMAL, Defendant-Appellant-Cross-Appellee, Muhammad Afzal and Hassan Sabghat Ullahkhan, Defendants. ockets 94-1627, 94-1649.
• Court: U.S. Court of Appeals — Second Circuit

Page 12

67 F.3d 12

42 Fed. R. Evid. Serv. 1189

UNITED STATES of America, Appellee-Cross-Appellant, v. Mohammad AJMAL, Defendant-Appellant-Cross-Appellee, Muhammad Afzal and Hassan Sabghat Ullahkhan, Defendants.

Nos. 1782, 2093, Dockets 94-1627, 94-1649.

United States Court of Appeals, Second Circuit.

Argued June 22, 1995.

Decided Sept. 20, 1995.

Darrell B. Fields, The Legal Aid Society Federal Defender Division, Appeals Bureau, New York City, for defendant-appellant-cross-appellee.

Paul D. Silver, Assistant United States Attorney, Northern District of New York, Albany, New York (Thomas J. Maroney, United States Attorney, on the brief), for appellee-cross-appellant.

Before: KEARSE, ALTIMARI, and PARKER, Circuit Judges.

ALTIMARI, Circuit Judge:

Defendant-appellant-cross-appellee Mohammad Ajmal ("Ajmal") appeals from a judgment entered in the United States District Court for the Northern District of New York (Scullin, J.), convicting him, following a jury trial, of possession of heroin with intent to distribute and sentencing him principally to 84 months' imprisonment. At trial the district court allowed extensive juror questioning of witnesses, which Ajmal asserts was an abuse of discretion meriting a new trial. Moreover, Ajmal argues that the district court erred in allowing the government's principal witness to testify on direct examination almost entirely through leading questions. The government cross-appeals, asserting that the district court miscalculated Ajmal's sentence. Because we agree that the district court abused its discretion in encouraging juror questioning, we vacate and remand for a new trial. We further conclude that the district court properly exercised its discretion in allowing leading questions of a non-English speaking witness on direct examination. Finally, we address the district court's sentencing determinations.

BACKGROUND

On July 23, 1993, Mohammad Ajmal and two alleged co-conspirators, Muhammad Afzal ("Afzal") and Hassan Ullahkhan ("Ullahkhan"), were indicted for possessing with intent to distribute heroin, 21 U.S.C. Sec. 841, and conspiring to distribute and to possess with intent to distribute approximately one kilogram of heroin, 21 U.S.C. Sec. 846. In exchange for a lesser sentence, Afzal pled guilty and assisted the government in its prosecution of Ajmal and Ullahkhan. An initial trial of the remaining co-defendants ended in an acquittal of Ullahkhan and a hung jury as to Ajmal. On May 10, 1994, a second trial of Ajmal commenced.

At the outset of the trial, in his general instructions to the jury, Judge Scullin stated:

Also I will allow questions. You'll have to submit your questions in writing to the court before a witness leaves the stand. I will ask you if anybody has any questions of this witness. If you do, just raise your hand and write the question down, give it to the clerk and I'll review it, and unless there is some problem with asking the question, I'll normally ask it. Sometimes you may ask a question that you can't ask, but I'll let you know that as well.

Just as the district court had instructed, as each witness's testimony concluded the court would ask the jury members if they had any questions. After screening the proposed questions for evidentiary problems, the district court would then ask the witness on the stand those questions which it deemed permissible. The jury took extensive advantage of the opportunity to ask questions of the witnesses, including questioning Ajmal himself. Despite the objection of Ajmal's attorney, the district court allowed the jurors to continue questioning witnesses throughout the trial as a matter of course. On May 24, 1994, after a day of deliberation, the jury convicted Ajmal of possession of heroin with intent to distribute, but acquitted him of the conspiracy charge. On October 27, 1994, Ajmal was sentenced principally to 84 months' imprisonment.

Ajmal now appeals. The government cross-appeals the district court's sentencing determination.

DISCUSSION

1. Juror Questioning of Witnesses

At trial, over the objection of Ajmal's attorney, the district court allowed extensive juror questioning of witnesses. While conceding that the decision to allow or disallow juror questioning of witnesses lies within the district court's discretion, see United States v. Witt, 215 F.2d 580, 584 (2d Cir.), cert. denied, 348 U.S. 887, 75 S.Ct. 207, 99 L.Ed. 697 (1954), Ajmal asserts that the district court abused its discretion by allowing such questioning as a matter of course. We agree.

As we recently noted in United States v. Bush, 47 F.3d 511, 515 (2d Cir.1995), the practice of allowing juror questioning of witnesses is well entrenched in the common law and in American jurisprudence. Indeed, the courts of appeals have uniformly concluded that juror questioning is a permissible practice, the allowance of which is within a judge's discretion. See, e.g., id.; United States v. Stierwalt, 16 F.3d 282, 286 (8th Cir.1994); United States v. Cassiere, 4 F.3d 1006, 1017-18 (1st Cir.1993); United States v. Polowichak, 783 F.2d 410, 413 (4th Cir.1986).

Nonetheless, the courts of appeals are similarly unified in their disapproval of the general practice of juror questioning of witnesses. As we stated in Bush, "[a]lthough we reaffirm our earlier holding in Witt that juror questioning of witnesses lies within the trial judge's discretion, we strongly discourage its use." 47 F.3d at 515 (emphasis added); accord Cassiere, 4 F.3d at 1018 ("the practice should be reserved for exceptional situations, and should not become routine, even in complex cases"); United States v. Sutton, 970 F.2d 1001, 1005 (1st Cir.1992) ("Allowing jurors to pose questions during a criminal trial is a procedure fraught with perils. In most cases, the game will not be worth the candle."); United States v. Lewin, 900 F.2d 145, 147 (8th Cir.1990) ("[the court] does not condone the practice of inviting juror questions"); DeBenedetto v. Goodyear Tire & Rubber Co., 754 F.2d 512, 516 (4th Cir.1985) ("the practice of juror questioning is fraught with dangers which can undermine the orderly progress of the trial"). It is clear from our exhortation in Bush that district courts may not exercise their discretion without regard to the balance of potential benefits and disadvantages of juror questioning of witnesses.

In our recent discussion of juror questioning of witnesses, we made clear the danger inherent in such a practice. See Bush, 47 F.3d at 515-16. When acting as inquisitors, jurors can find themselves removed from their appropriate role as neutral fact-finders. See id. at 515; United States v. Johnson, 892 F.2d 707, 713 (8th Cir.1989) (Lay, C.J., concurring). If allowed to formulate questions throughout the trial, jurors may prematurely evaluate the evidence and adopt a particular position as to the weight of that evidence before considering all the facts. See id. at 714 ("The factfinder must remain neutral until it is time to make its findings."); DeBenedetto, 754 F.2d at 517. "The practice also delays the pace of trial, creates a certain awkwardness for lawyers wishing to object to juror-inspired questions, and runs a risk of undermining litigation strategies." Sutton, 970 F.2d at 1005; see also Bush, 47 F.3d at 515. Moreover, juror questioning is particularly troublesome when it is directed at the defendant himself in a criminal trial. See Sutton, 970 F.2d at 1006 n. 6; Lewin, 900 F.2d at 147. In such circumstances, premature deliberation and expressed skepticism by jurors can be highly prejudicial.

The case at hand does not present sufficiently "extraordinary or compelling circumstances" as to justify juror questioning of witnesses. Bush, 47 F.3d at 516 ("Balancing the risk that a juror's question may be prejudicial against the benefit of issue-clarification will almost always lead trial courts to disallow juror questioning, in the absence of extraordinary or compelling circumstances."). The district court's decision to invite juror questioning was not necessitated by the factual intricacies of this banal drug conspiracy, nor was it prompted by the urging of the jurors themselves. Rather, the district The government urges us to sustain the district court's actions because it incorporated prophylactic procedures to lessen the potential prejudice caused by juror questioning of witnesses. Specifically, the district court only accepted questions in writing and posed from the bench only those questions which it viewed to comport with the Federal Rules of Evidence. Although the district court substantially complied with the procedures this Court advocated in Bush, 47 F.3d at 516 (juror questions should be 1) in writing; 2) reviewed by counsel in camera; and 3) put to the witness by the court), such measures alone cannot purge the harm caused by the extensive juror questioning in the case at hand. Regardless of the procedures adopted by the district court to vet juror questions, there must be ample justification for adopting the disfavored practice in the first instance. To hold otherwise would sanction juror questioning of witnesses in any circumstance, so long as appropriate prophylactic measures are adopted. We cannot accept such a proposition.

court, as a matter of course, established at the outset of the trial that jurors would be allowed to question witnesses. Indeed, the district court encouraged juror questioning throughout the trial by asking the jurors at the end of each witness's testimony if they had any queries to pose. Not surprisingly, the jurors took extensive advantage of this opportunity to question witnesses, including Ajmal himself. Such questioning tainted the trial process by promoting premature deliberation, allowing jurors to express positions through non-fact-clarifying questions, and altering the role of the jury from neutral fact-finder to inquisitor and advocate. Accordingly, the district court's solicitation of juror questioning absent a...