U.S. v. Brooks

• Citation: 567 F.2d 134,185 U.S.App.D.C. 267
• Decision Date: 09 December 1977
• Docket Number: 76-1819 and 77-1018,Nos. 76-1818,s. 76-1818
• Parties: , 2 Fed. R. Evid. Serv. 1177 UNITED STATES of America v. Anthony J. BROOKS, Appellant. UNITED STATES of America v. John J. HAZEL, Jr., Appellant (two cases).
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 134

567 F.2d 134

185 U.S.App.D.C. 267, 2 Fed. R. Evid. Serv. 1177

UNITED STATES of America v. Anthony J. BROOKS, Appellant.

UNITED STATES of America v. John J. HAZEL, Jr., Appellant (two cases).

Nos. 76-1818, 76-1819 and 77-1018.

United States Court of Appeals District of Columbia Circuit.

Argued March 1, 1977.

Decided Nov. 10, 1977.

Rehearing Denied Dec. 9, 1977.

J. Richard Colbert, ^* with whom Michael E. Geltner, Washington, D. C., (appointed by this Court) was on the brief for appellant in No. 76-1818.

Aurora C. Jose, * with whom Michael E. Geltner, Washington, D. C. (appointed by this Court) was on the brief for appellant in Nos. 76-1819 and 77-1018.

Mary Ellen Abrecht, Asst. U. S. Atty., Washington, D. C., with whom Earl J. Silbert, U. S. Atty., John A. Terry and James M. Hanny, Asst. U. S. Attys., Washington, D. C., were on the brief for appellee.

Before TAMM, ROBINSON and ROBB, Circuit Judges.

Opinion for the Court filed by ROBB, Circuit Judge.

Opinion filed by SPOTTSWOOD W. ROBINSON, III, Circuit Judge, dissenting in part.

ROBB, Circuit Judge:

After a trial by jury the appellants Brooks and Hazel were convicted of possession of an unregistered sawed-off shotgun in violation of 26 U.S.C. § 5861(d). They appeal.

At trial the evidence for the government was that between September 1975 and March 1976 the Metropolitan Police and the Federal Bureau of Investigation collaborated in an undercover operation known publicly as P.F.F., Inc., and privately as Police-FBI Fencing Incognito. At a warehouse in northeast Washington officers pretending to be underworld characters purchased stolen goods and contraband with government funds. All transactions between the undercover agents and their customers were recorded by hidden cameras and microphones.

On February 5, 1976 Brooks and Hazel came to the warehouse in an automobile driven by Hazel. Stopping at a nearby telephone Hazel called P.F.F., Inc., and got permission to enter. At the time Officers Gately and Lilly were on duty at the fencing operation. From a window Gately saw Hazel open the trunk of his automobile, remove a long item, and wrap a cloth around it. Then Brooks and Hazel entered the warehouse together. Hazel was carrying the long item wrapped in a cloth, and Gately recognized him as a P.F.F. customer he had seen several times before. Hazel placed on the counter the long item he was carrying, unwrapped it, and offered it for sale. It was a 12-gauge sawed-off shotgun. A little later Hazel placed four shotgun shells on the counter for sale with the weapon. Brooks said the shotgun was his and it was for sale. He said he had fired it a couple of times, it held five shells, and it had already been sawed off when he obtained it. The officers paid Brooks $125.00 for the shotgun and gave Hazel $10.00 "for bringing in a new customer." The videotape of the entire transaction was played to the jury and we have seen it.

Brooks testified that on February 5 he was innocently walking towards his house when Hazel came along in an automobile and asked him to take a ride "over to Northeast". Brooks accepted the invitation because he thought he would visit a friend who lived in that area. Hazel did not tell Brooks why he was going to Northeast, nor did he explain his call from the telephone booth, or tell Brooks what was in the package he took out of the trunk of the car. As they were entering the warehouse, however, Hazel asked him to say the wrapped item was his "so he could get some money". Brooks did not know what the item was, but agreed to go along with Hazel's request. When he got inside the warehouse he saw a man with a gun pointed at him and he was afraid, so he went along with Hazel's instructions and when he saw that the item on the counter was a sawed-off shotgun he said he had fired it before, and that it was sawed off when he acquired it. He denied that he had ever possessed a shotgun, and swore that he turned over the entire proceeds of the sale, $125.00, to Hazel.

Hazel testified that he first became familiar with the P.F.F. operation in October 1975. He said he found he could earn money by bringing new customers to the warehouse; that Officer Lilly said he "would pay me to bring people up there", $20.00 per person brought in. He averred that on his second visit Lilly lent him $200.00 with the warning that harm could come to him if he did not repay the money. Throughout that fall and winter he would return to the warehouse with items to sell. Sometimes he came alone, sometimes with a new customer. Whenever he entered alone, he said, there was a potential new customer, whom he did not know well enough to trust, waiting in the car outside. He testified that all his sales to P.F.F., Inc., were made for others, he was only a middleman trying to repay his loans.

"Numerous times" said Hazel, Lilly asked him to bring in people with guns, saying "he would pay top dollar for them." This led to the visit to the warehouse with Brooks on February 5. According to Hazel In rebuttal Officer Lilly denied ever having lent $200.00 to Hazel. He explained that small loans of about $20.00 were occasionally made to customers to provide a reason for the undercover police to demand identifications and telephone numbers; also the officers offered as much as $20.00 to old customers who brought in new ones.

he was driving in his car when Brooks called and "started waving". When Hazel "pulled over" Brooks told him he had a shotgun he wanted to sell, his asking price being between $100.00 and $125.00. Hazel telephoned P.F.F., made arrangements for the two to go there, and Brooks went and got the shotgun and four shells. The gun, which Brooks had wrapped in a red blanket, was put into the car and the two men proceeded to the warehouse. Hazel carried the gun and shells because P.F.F. had instructed him that if he "ever got anybody with a gun, to make sure it wasn't loaded and to bring it upstairs himself". According to Hazel, when the sale was made Brooks received $125.00 which he kept. Lilly paid Hazel $10.00 "because they said I had owed money . . . and that they would give me another $10.00 the next time Mr. Brooks came to see them".

On this appeal both appellants contend that the District Court erred by failing to explore the extent to which prospective jurors were affected by pretrial publicity. As a corollary of this argument the appellants say the court on its own motion should have granted a continuance. In addition Hazel argues that in his case the court should have instructed the jury on entrapment. Brooks also contends that the court should have severed the trials of the two defendants and that it was error to receive in evidence a portion of the videotape on which Brooks stated that his main "hustle" was stealing. Finding that none of these contentions warrants reversal we affirm.

PRETRIAL PUBLICITY

Hundreds of persons who had done business with P.F.F., Inc., were invited to a party at the warehouse on February 28, 1976. Once inside the doors they were arrested and told that the men who had posed as underworld figures were really police officers and FBI agents. This party was dubbed "Operation Sting", and given extensive coverage in newspapers and magazines and on radio and television broadcasts. Before the voir dire of prospective jurors for the Brooks-Hazel trial began counsel for Hazel called the court's attention to this publicity, noting that Hazel's name in particular appeared in at least one newspaper article. Counsel stated that if examination of the prospective jurors confirmed his suspicions of prejudice he would ask for an extended continuance; but, said counsel, "I would not ask the Court to rule on that now, (but) to see what we come up with in the voir dire". At the conclusion of voir dire counsel did not ask for a continuance or any other relief. Nevertheless, Brooks and Hazel now contend that they were denied a fair trial because the voir dire questions were not probing enough to uncover the jurors' prejudices and because the court did not grant a continuance on its own motion.

Having read the transcript we find the examination of prospective jurors was adequate. The court questioned fifty-five prospective jurors before empaneling twelve regular jurors and two alternates. The court explained to the jurors that the case "resulted from a police operation known as P.F.F., Inc., the store-front operation or fence or Sting operation group". Then the court directed any prospective jurors who "have either read about it or seen it on television or heard about it on the radio, whatever, (to) line up in front of the jury box and approach the bench one at a time". All but twelve veniremen indicated they had heard of the operation and consequently they were questioned individually at the bench out of the hearing of the other jurors. No veniremen had heard anything about Hazel or Brooks. Only four had formed an opinion as to the guilt of persons arrested in the Sting operation and they were excused by the court. All who had previously been on the jury in another "Sting" trial were excused. All the jurors The method and manner of conducting a voir dire are left to the discretion of the trial judge. United States v. Bryant, 153 U.S.App.D.C. 72, 471 F.2d 1040 (1972), cert. denied, 409 U.S. 1112, 93 S.Ct. 923, 34 L.Ed.2d 693 (1973); United States v. Liddy, 166 U.S.App.D.C. 95, 509 F.2d 428 (1974), cert. denied, 420 U.S. 911, 95 S.Ct. 833, 42 L.Ed.2d 842 (1975). Here we find no indication that the District Court improperly exercised its discretion. The examination of the prospective jurors developed no significant possibility of prejudice against the defendants, and there was no reason to believe that further cross examination would have thrown more light on the matter. As was the case in United States v. Chapin, 169 U.S.App.D.C. 303, 515 F.2d 1274, cert. denied, 423 U.S. 1015, 96 S.Ct. 449, 46 L.Ed.2d 387 (1975), the pretrial publicity had not...