U.S. v. Berry

• Decision Date: 08 September 1980
• Docket Number: No. 79-1698,79-1698
• Parties: 6 Fed. R. Evid. Serv. 1232 UNITED STATES of America, Plaintiff-Appellee, v. Richard S. BERRY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 193

627 F.2d 193

6 Fed. R. Evid. Serv. 1232

UNITED STATES of America, Plaintiff-Appellee, v. Richard S. BERRY, Defendant-Appellant.

No. 79-1698.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 12, 1980.

Decided Sept. 8, 1980.

David M. Ochoa, Phoenix, Ariz., for defendant-appellant.

Dale A. Danneman, Asst. U. S. Atty., Phoenix, Ariz., for plaintiff-appellee; Stephen M. Dichter, Asst. U. S. Atty., Phoenix, Ariz., on brief.

ORDER

Before WRIGHT, CHOY and ALARCON, Circuit Judges.

The panel as constituted in the above case has voted to deny the petition for rehearing and to reject the suggestion for a rehearing en banc.

The full court has been advised of the suggestion for an en banc hearing, and no judge of the court has requested a vote on it. Fed.R.App.P. 35(b).

The petition for rehearing is denied and the suggestion for a rehearing en banc is rejected.

The court's opinion filed on July 7, 1980 is withdrawn and an Amended Opinion is substituted therefor.

AMENDED OPINION

Appeal from the United States District Court for the District of Arizona.

WRIGHT, Circuit Judge:

The court's opinion filed on July 7, 1980 is withdrawn and the following Amended Opinion is substituted.

Berry argues that his conviction for conspiracy to commit fraud should be reversed because (1) the Arizona District's jury selection system improperly excluded Indians and (2) the cumulative effect of several errors and instances of prosecutorial misconduct prejudiced him and foreclosed his right to a fair trial. We reject both arguments and affirm the conviction.

Berry was indicted for offenses related to perjury and the obstruction of justice by a grand jury selected from the combined Phoenix and Prescott divisions of the District of Arizona. Under the jury selection system then in operation, prospective jurors in each division living more than 100 miles from the division courthouse could exempt themselves from consideration for service. Berry attempted to show that this exemption caused an unconstitutional underrepresentation of Indians. The government challenged his statistical evidence as stale and inaccurate.

At his trial, Barnes and Herzberg testified against Berry. Each had been convicted of offenses related to a fraud scheme but, in exchange for their cooperation, the prosecutor informed the parole commission of their cooperation. ¹ They testified that Berry advocated their hiding of evidence and lying to the SEC. They were virtually the government's only witnesses. Berry offered eight witnesses, each of whom testified that the two were untrustworthy.

During a recess, the jury foreman read the first few lines of a newspaper story from which he learned that Berry had been disbarred. The foreman was questioned in chambers where he declared that he could still be fair. The court denied the defendant's motion for a mistrial.

In closing argument, the prosecutor declared that the government had separated Barnes and Herzberg so they could not compare their stories. He argued that this made their testimony credible.

In rebuttal argument, the prosecutor responded to defense counsel's attack on Barnes' credibility by blaming Berry for his criminal conduct. He argued that if Berry had not hidden evidence Barnes would have been incarcerated sooner and could not have committed several crimes.

The jury found Berry guilty of conspiracy but not guilty of subornation of perjury or obstruction of justice. On appeal, he argues that his indictment was invalid because the grand jury was selected from a pool in which Indians were unconstitutionally underrepresented and contends that he was prejudiced by the immediate and cumulative effect of various errors and instances of prosecutorial misconduct.

CONSTITUTIONALITY OF THE JURY POOL:

Berry's timely motion to dismiss his indictment on the ground that Indians were unconstitutionally excluded by the jury selection system was denied. We review under the test established in Duren v. Missouri, 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979):

In order to establish a prima facie violation of the fair-cross-section requirement, the defendant must show (1) that the group alleged to be excluded is a "distinctive" group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to systematic exclusion of the group in the jury-selection process.

Id. at 364, 99 S.Ct. at 668.

The first element is well satisfied. United States v. Brady, 579 F.2d 1121 (9th Cir. 1978), cert. denied, 439 U.S. 1074, 99 S.Ct. 849, 59 L.Ed.2d 41 (1979). Berry attempts to establish the second element statistically. He offers figures purporting to show that, although 4.27% of the population in the combined Phoenix and Prescott divisions are Indians, they comprise only 1.15% of the venire. He seeks to prove the third element, that the jury selection system causes the exclusion of Indians, by linking their alleged underrepresentation to the 100-mile exemption. ²

The Duren test combines a fourth element, however, which is fatal to Berry's argument. The Court declared:

Finally, in order to establish a prima facie case, it was necessary for petitioner to show that the underrepresentation of women, generally and on his venire, was due to their systematic exclusion in the jury-selection process.

Id. at 366, 99 S.Ct. at 669 (emphasis added). Berry's jury was selected from jury wheels filled on January 15, 1977. His statistics purport to show that Indians were underrepresented on jury wheels filled during the following two years. He failed to introduce any evidence showing underrepresentation on his venire.

PREJUDICIAL ERROR AND PROSECUTORIAL MISCONDUCT:

Berry objects to several alleged errors and instances of prosecutorial misconduct. He argues that he was prejudiced by them separately and cumulatively. Our discussion of his argument follows the three-step analysis outlined in United States v. Roberts, 618 F.2d 530 (9th Cir. 1980). We address these questions:

(1) Did any error or prosecutorial misconduct occur?

(2) Were the issues preserved for appeal?

(3) Was the defendant prejudiced?

If all are answered affirmatively, we must reverse.

We will discuss each alleged error and instance of misconduct under the three-step analysis and then address their cumulative effect.

NEWSPAPER INCIDENT:

During the course of the trial, the jury foreman informed the court that he had inadvertently read the first few lines of a newspaper article which described Berry as a disbarred attorney. Later in the article, the cause of disbarment was revealed. Evidence of the disbarment had been ruled inadmissible. Berry argues that the district court failed to make an adequate investigation of the incident and should have declared a mistrial.

THE TRIAL COURT'S INVESTIGATION:

With all counsel present, the judge questioned the foreman in chambers. He asked whether the juror continued to read the article after he realized it concerned Berry and whether he read anything which might influence him. He responded negatively to both questions. The judge asked the other jurors in open court whether they had read the article. They indicated they had not. Berry insists the judge should have asked the foreman precisely what he remembered from the article and should have questioned each of the other jurors individually in chambers.

The decision to conduct a hearing into alleged jury misconduct and to determine its extent and nature is discretionary. United States v. Hendrix, 549 F.2d 1225, 1227-28 (9th Cir.), cert. denied, 434 U.S. 818, 98 S.Ct. 58, 54 L.Ed.2d 74 (1977). We find no abuse of discretion.

The judge's response was commendable. He questioned the jurors enough to satisfy himself that no significant bias had been caused but refused to conduct such an inquisition that the jurors might conclude that Berry had been involved in other criminal activity.

DENIAL OF MISTRIAL MOTION:

Berry argues that the judge erred in refusing to grant a mistrial. A mistrial was required if "the misconduct (prejudiced) the defendant to the extent he (did) not receive a fair trial," United States v. Klee, 494 F.2d 394, 396 (9th Cir.), cert. denied, 419 U.S. 835, 95 S.Ct. 62, 42 L.Ed.2d 61 (1974); United States v. Hendrix, supra, 549 F.2d at 1229.

The conscientious foreman volunteered that he had read the opening lines of the article. In response to the court's questions, he declared that he stopped reading when he realized Berry was mentioned and that he would not be influenced by it. The foreman learned only that Berry was a disbarred attorney. This information may not have impressed him favorably, but we conclude it was not so prejudicial as to deny Berry a fair trial. Id.

Whether this incident contributed to a cumulative prejudicial effect we shall consider later in this opinion.

ADMITTING EVIDENCE OF OTHER MISCONDUCT:

On the first day of trial, the court let the prosecutor develop evidence concerning Berry's relationship with Barnes and Herzberg but prohibited detailed inquiries about misconduct not covered by the indictment. On the next day, over Berry's objection, the prosecutor elicited testimony from Barnes that Berry warned him against cooperation with the government:

(he told me,) however, be careful as to what areas that I touch on, so that I didn't harm either he or several business deals that he and I were involved in together.

The prosecutor pursued this line until the court sua sponte ruled the evidence inadmissible and cautioned the jury:

conversations alluded to by the witness that occurred at the County Jail with the defendant, the Court has decided that those conversations are not material, or not relevant to the charges before this Court. The jury is therefore instructed to disregard that evidence. The Court strikes the same.

A timely instruction...