U.S. v. Cardall

• Decision Date: 29 December 1976
• Docket Number: 75-1780,Nos. 75-1768,s. 75-1768
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Richard T. CARDALL and Golden Rule Associates, Defendants-Appellants.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 604

550 F.2d 604

UNITED STATES of America, Plaintiff-Appellee, v. Richard T. CARDALL and Golden Rule Associates, Defendants-Appellants.

Nos. 75-1768, 75-1780.

United States Court of Appeals Tenth Circuit.

Argued Sept. 22, 1976.

Decided Dec. 29, 1976.

Rehearing Denied in No. 75-1768 April 8, 1977.

Richard W. Beckler, Crim. Div., Dept. of Justice, Washington, D. C. (Ramon M. Child, U. S. Atty., Ronnie L. Edelman, and Hugh P. Mabe, III, Crim. Div., Dept. of Justice, Washington, D. C., Rodney G. Snow, Asst. U. S. Atty., Denver, Colo., on the brief), for plaintiff-appellee.

Dean R. Mitchell, Salt Lake City, Utah (Mitchell & Dahl, Salt Lake City, Utah, on the brief), for defendants-appellants.

Before SETH, McWILLIAMS and BARRETT, Circuit Judges.

McWILLIAMS, Circuit Judge.

Richard T. Cardall and Golden Rule Associates, a corporation controlled by Cardall, along with one Frank L. Parks, were convicted by a jury in a joint trial of conspiring together, and with others, to use the mails and interstate commerce to sell unregistered securities and to defraud the purchasers of those securities, in violation of 18 U.S.C. § 371. All three were also convicted on In our view the principal matter urged in these two appeals is the alleged misconduct by the trial judge, which misconduct, it is said, evidenced continuing hostility towards defense counsel which, in turn, operated to the prejudice of both Cardall and Golden Rule. Such a charge should not be lightly made and, once made, should not be casually treated by a reviewing court. Indeed, a fair trial is the keystone of our entire judicial system.

seven substantive counts of mail fraud in the sale of securities, in violation of 15 U.S.C. §§ 77q(a), and on one substantive count of the sale of unregistered securities, in violation of 15 U.S.C. § 77e(a)(2). Cardall and Parks were sentenced to two years imprisonment on each of the nine counts, such sentences to be served consecutively, and not concurrently. Each was also fined $50,000, as was Golden Rule Associates. In the present appeals Cardall and Golden Rule seek reversal of their respective convictions. Parks has by separate appeal sought review of his conviction, but such is not a part of the present proceeding.

Our study of the record indicates to us that although the trial judge's handling of the case is certainly not a model of judicial conduct, such is nevertheless insufficient to dictate a reversal. Attached to this opinion as an Appendix are excerpts from the trial transcript, which set forth most of the statements made by the trial judge in the presence of the jury that counsel relies on as showing hostility towards both counsel and his clients. As indicated, in our view the comments by the trial court are not grounds for reversal, though no doubt such caused considerable discomfort to counsel. This was a four-day trial with the Government calling some twenty-five witnesses and the defendants calling seven. Viewed in this context, the comments from the trial judge were but minor incidents in the total trial.

In both United States v. Mackay, 491 F.2d 616 (10th Cir. 1973), cert. denied, 416 U.S. 972, 94 S.Ct. 1996, 40 L.Ed.2d 560 (1973) and Whitlock v. United States, 429 F.2d 942 (10th Cir. 1970), it was urged on appeal that the trial judge, who is the same judge who tried the instant case, had so abused counsel that their clients had failed to receive a fair trial. In both Mackay and Whitlock we concluded that the comments from the trial judge had not interfered with the fairness of the trial. In our best judgment the instant case comes well within the rule of Mackay and Whitlock. In sum, then, the comments of the trial judge were indeed unjudicial, but were not such as would prejudice the jury against either Cardall or Golden Rule. It is inconceivable that a jury would convict the defendants of nine felony counts simply because of the trial judge's unjudicial remarks to counsel. A jury is made of sterner stuff. See also in this general connection, Cooper v. United States, 403 F.2d 71 (10th Cir. 1968).

A word of explanation concerning excerpt No. 1 is perhaps in order. The trial court was initially laboring under a misapprehension that the three defendants, i. e., Cardall, Golden Rule, and Parks, were collectively entitled to only six peremptory challenges, the same number as granted the Government. However, when the trial court was advised that under Fed.R.Crim.P. 24(b) the defendants were entitled to ten challenges, the trial court changed its ruling and allowed the defendants a total of ten peremptory challenges, only six of which were used.

An employee of the Securities and Exchange Commission was called as a Government witness. On direct examination this witness was asked whether during the course of his investigation he had ascertained the role played by Golden Rule. In response to that question he volunteered that "Mr. Cardall took the Fifth." Motion was made for mistrial on the grounds that the fact that Cardall had remained silent could not be used against him, or Golden Rule. Johnson v. Patterson, 475 F.2d 1066 (10th Cir. 1973), cert. denied, 414 U.S. 878, 94 S.Ct. 64, 38 L.Ed.2d 124 (1973). The trial judge indicated that he was uncertain whether the volunteered statement of the witness had in fact even been heard by the jury. In any event, the trial judge nonetheless Prior to closing argument, both the Government and defense counsel had requested the trial court to give certain instructions. At the close of the testimony, and before closing argument, the trial court failed to rule on these several requests, and, without objection, closing argument ensued. Later defense counsel brought to the attention of the trial judge that he had failed to rule on these requested instructions prior to oral argument, as required by Fed.R.Crim.P. 30. This failure to comply with Rule 30 is now assigned as error.

instructed the jury to disregard the utterance, but refused to grant a mistrial. We find no error in refusing to declare a mistrial. Even assuming the jury heard the witness' response, instructing the jury to disregard the same was under the circumstances sufficient. A mistrial is not the only remedy for an error of this sort. United States v. Mandell, 525 F.2d 671 (7th Cir. 1975) and United States v. Smith, 515 F.2d 1028 (5th Cir. 1975).

We have heretofore held that the failure to rule on requested instructions prior to oral argument is not an "absolute," and that prejudice must be shown as to a specific matter, point, or issue before such omission by a trial court will constitute reversible error. See United States v. Pommerening, 500 F.2d 92 (10th Cir. 1974), cert. denied, 419 U.S. 1088, 95 S.Ct. 678, 42 L.Ed.2d 680 (1974) and Whitlock v. United States, 429 F.2d 942 (10th Cir. 1970). In the instant case defense counsel made no objection until after closing argument, and on appeal there is no indication as to precisely how there was resulting prejudice stemming from this inadvertent omission by the trial court. The claim of prejudice is made in most general terms. In such circumstance the failure to comply with Rule 30 does not constitute grounds for reversal.

Counsel asserts here he was denied his right to allocution at time of sentencing as provided for by Fed.R.Crim.P. 32(a). Contrary to the assertions of counsel, the record reveals that when Cardall and Golden Rule were first sentenced both Cardall and counsel advised the court that they had nothing to say. When Cardall and Golden Rule were brought before the court for resentencing, about which more will be said later, neither Cardall nor counsel gave any indication that they desired to make any statement. In fact the contrary was indicated. We find no violation of Rule 32(a).

Complaint is also made here that the sentences imposed on Cardall and Golden Rule were cruel and excessive, and should be either modified or set aside. Such is also used in support of the defendants' basic contention that the trial judge was prejudiced against them. Initially, the trial judge sentenced Cardall to five years imprisonment on each of the nine counts, such terms to be served consecutively, and assessed a total fine of $50,000. A fine of $50,000 was also assessed against Golden Rule. Later Cardall was returned to court and was resentenced to two years imprisonment on each of the nine counts, such terms again to be served consecutively. The fines as previously imposed remained unchanged. The sentences imposed, both as concerns imprisonment and fines, were within the limits of the applicable statutes. Such being the case, the rule in this Circuit is that we, as a reviewing court, are without power to modify the sentence. United States v. Sierra, 452 F.2d 291 (10th Cir. 1971). However, as noted in Sierra, a trial court under Fed.R.Crim.P. 35 may consider a reduction in sentence within 120 days after receipt of a mandate issued upon affirmance of a judgment on appeal.

In United States v. Mackay, 491 F.2d 616 (10th Cir. 1973), a case which bears resemblance to the instant one, the trial judge, who was the trial judge in the instant case, imposed fifteen consecutive one-year sentences, plus substantial fines in a mail fraud case. In Mackay we held that we lacked legal authority to interfere with the sentences thus imposed, but made mention of Rule 35 as an "avenue open to the defendant." Thereafter the trial court reconsidered the matter of sentences, and adhered to its earlier pronouncement. See United States v. Mackay, 374 F.Supp. 502 (D.C.Utah, 1973). In declining to modify the Judgment affirmed.

earlier sentences imposed, the trial court set forth its reasons. Much of what the trial court commented upon in Mackay, on remand, would appear to apply here. In the instant case the trial court was of the view that Cardall had "stashed away" money received from his fraudulent operations. And Cardall's operations were definitely not of the penny-ante...