U.S. v. Conn, 82-1308

• Decision Date: 22 June 1983
• Docket Number: No. 82-1308,82-1308
• Citation: 716 F.2d 550
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Stuart Eugene CONN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 550

716 F.2d 550

UNITED STATES of America, Plaintiff-Appellee, v. Stuart Eugene CONN, Defendant-Appellant.

No. 82-1308.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 13, 1983.

Decided June 22, 1983.

John Steven Gordon, Law Student, San Francisco, Cal., for plaintiff-appellee.

Brenda Harbin, Harris, Alexander & Burris, Oakland, Cal., for defendant-appellant.

Appeal from the United States District Court for the Northern District of California.

Before BROWNING, PECK ^*, and ALARCON, Circuit Judges.

ALARCON, Circuit Judge:

Conn appeals from his conviction for receiving as a convicted felon three different firearms from Ray Musante which had been shipped or transported in interstate commerce in violation of 18 U.S.C. Sec. 922(h) (counts one, three and five) and for being a felon in possession of the same weapons in violation of 18 U.S.C.App. Sec. 1202 (counts two, four, and six). In addition, he seeks reversal of his conviction for receiving, as a convicted felon, a weapon from Paul Lehman which had been shipped or transported in interstate commerce in violation of 18 U.S.C. Sec. 922(h) (count ten) and for being a felon in possession of the same weapon in violation of 18 U.S.C.App. Sec. 1202 (count seven). Conn was sentenced to three years probation on counts one through six and count ten, and to three years probation and a $2,500 fine on count seven. The court ordered the probationary period on each count to run concurrently.

We discuss Conn's contentions and the pertinent facts separately.

One. Conn contends that the trial court abused its discretion in failing to grant a mistrial or a new trial because of prejudicial jury misconduct.

Conn has failed to point out any conduct of any of the jurors which demonstrates that he was denied a fair trial. Where jury misconduct is alleged, "the test is whether or not the misconduct has prejudiced the defendant to the extent that he has not received a fair trial." United States v. Klee, 494 F.2d 394, 396 (9th Cir.1974). While it is true that the jury's deliberations were difficult and marked with apparent acrimony between some of the jurors, the record is silent as to whether the jury's fact finding function was affected in any manner. Conn's counsel must share the responsibility for this barren record. At the time that a motion for a mistrial was made on Conn's behalf, following the tea pouring incident, the trial judge suggested that the jury be questioned to determine whether any misconduct had in fact occurred. Counsel replied: "To answer your question directly, no, I do not think that the court should inquire into any verdicts. I think the court has enough evidence at its hand right now to declare a mistrial, based on the conduct of the jurors." Heated discussions and shouted disagreement can be a human part of group decision making without prejudice to any one's rights. In the absence of proof of prejudice to Conn resulting from the jury's conduct, we must find that the trial court did not abuse its discretion in denying a mistrial or the motion for a new trial on jury misconduct grounds.

Two. Conn contends that the district court abused its discretion in denying discovery of information in the possession of the San Francisco Police Department. The contention is unsupported by the record. At a pretrial hearing documents were provided to Conn's attorney. The prosecutor advised the court that other documents requested by Conn's attorney did not exist. The court then ruled: "It will be the ruling of the court that you complied with the subpoena by the production of the documents that have been presented to Mr. Barris." Conn's attorney made no attempt to object to this ruling or to advise the court that discovery was not complete. From this record, we can only conclude that the district court did not deny discovery.

Three. Conn contends that the district court applied the wrong standard in denying his motion to dismiss on the ground of vindictive prosecution. This contention...