U.S. v. Eldred

• Decision Date: 28 December 1978
• Docket Number: No. 77-3246,77-3246
• Citation: 588 F.2d 746
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. A. Gordon ELDRED, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 746

588 F.2d 746

UNITED STATES of America, Plaintiff-Appellee, v. A. Gordon ELDRED, Defendant-Appellant.

No. 77-3246.

United States Court of Appeals, Ninth Circuit.

Dec. 28, 1978.

Oscar B. Ladner, Gulfport, Miss., for defendant-appellant.

E. G. Noyes, Jr., Asst. U.S. Atty., Phoenix, Ariz., for plaintiff-appellee.

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

Before WRIGHT and CHOY, Circuit Judges, and POOLE, District Judge. ^*

PER CURIAM:

Eldred appeals his conviction for intentional misapplication of funds belonging to the Navajo Housing Authority (18 U.S.C. § 1163), conspiracy to defraud the United States (18 U.S.C. § 371), transportation in interstate commerce of securities valued in excess of $5,000 knowing them to have been obtained by fraud (18 U.S.C. § 2314), and aiding and abetting (18 U.S.C. § 2). He contends that multiple errors in the course of his jury trial denied him a fair trial. We affirm.

In 1974, Eldred, representing the American Funding Corporation (AFC), entered into an oral agreement with Pat Chee Miller, executive director of the Navajo Housing Authority (NHA), ¹ and Leslie Joel Hadden, Vice President and General Manager of Window Rock Constructors, Inc., a company that had completed several construction contracts on the Navajo Reservation. Under the agreement, Eldred offered to invest excess NHA funds in certificates of deposit at a higher rate than that offered by local banks. In return, Hadden and Miller were to split kickbacks in the form of "finders' fees" of 1% Of the funds invested. Mervin Schaffer, head of the AFC, was to receive another 1%. During the remainder of 1974, Miller invested $13,297,161.74 with Eldred. ²

There was no written agreement between the parties, no written memorandum, and no receipts for funds. Miller received small amounts as kickbacks until December 1974. About that time, Eldred stated that Miller and Hadden would split a finder's fee of about $144,000.

By July 1975, Miller was concerned because he had not received the amount promised. He and Hadden met with Eldred in Los Angeles. Eldred said that the three of them would split the money three ways and that Miller would receive $25,000. Eldred also told Miller that there would be an additional distribution later in the year. In October, Miller received from Hadden $10,000; in November, an additional $3,000; and in December, $1,500.

I. PARTICIPATION BY TRIAL JUDGE AT TRIAL

Eldred first claims that he was denied a fair trial because of the court's excessive participation in the trial. He contends that the court repeatedly belittled defense counsel in the presence of the jury, intimidated defense counsel so as to deny Eldred his right to effective assistance, demonstrated marked bias in questioning witnesses, and exhibited disbelief of Eldred's testimony in a manner calculated to influence the jury. None of these claims has merit.

A trial judge must constantly be aware of the sensitive role he plays in a jury trial and avoid even the appearance of advocacy or partiality. See, e. g., United States v. Calhoun, 542 F.2d 1094, 1105 (9th Cir. 1976). However, as Mr. Justice Frankfurter observed, "federal judges are not referees at prize-fights but functionaries of justice." (Johnson v. United States,333 U.S. 46, 54, 68 S.Ct. 391, 395, 92 L.Ed. 468 (1948). They are not expected to sit mute and impassive, speaking only to rule on motions or objections. See Bollenbach v. United States, 326 U.S. 607, 66 S.Ct. 402, 90 L.Ed. 350 (1946).

A trial judge may participate in the examination of witnesses for the purpose of "clarifying the evidence, controlling the orderly presentation of the evidence, confining counsel to evidentiary rulings, and preventing undue repetition of testimony." United States v. Malcolm, 475 F.2d 420, 427 (9th Cir. 1973). Unless his intervention prejudiced the accused, we must affirm. Fed.R.Crim.P. 52(b).

A. BELITTLING DEFENSE COUNSEL.

Eldred cites 19 incidents in a record of more than 1,000 pages to support his claim that the trial judge disparaged and criticized defense counsel. Four of these incidents occurred when the court asked defense Five of the alleged incidents involved the court's attempts to ascertain the relevance and admissibility of a specific line of questioning. On four occasions the court ruled on objections concerning lack of proper foundation and improper impeachment. On another occasion the court asked whether defense counsel objected to the admission into evidence of a government exhibit and was told that counsel did not.

counsel to stop questioning a witness on matters about which the witness had no knowledge. The court once instructed defense counsel to proceed after exhausting the same subject with a witness for the third time. On another occasion the court asked defense counsel to proceed after covering a matter with a witness for the fourth time.

The remaining instances defy characterization and show little more than the judge's attempt to confine the evidence to relevant matters. Taken collectively, they show only the routine interplay between court and counsel during the course of a lengthy and complex trial.

As we have stated, "(t)o warrant a reversal because of the conduct of the trial judge in rebuking or punishing an attorney during the trial, it must appear that the conduct measured by the facts of the case presented together with the result of the trial, was clearly prejudicial to the rights of the party." Paddock v. United States, 320 F.2d 624, 627 (9th Cir. 1963) (quoting Newman v. United States, 28 F.2d 681, 683 (9th Cir. 1928)). It is clear from this record that the comments by the judge to defense counsel were neither calculated to disparage Eldred in the eyes of the jury (Paddock v. United States, 320 F.2d at 627), nor likely to affect the outcome of the trial.

B. INTIMIDATION OF DEFENSE COUNSEL.

Eldred also cites instances that purportedly demonstrate judicial efforts to intimidate and unnerve counsel. He argues that the effect was to render counsel incapable of assisting his client effectively.

Many of the supporting references are identical to those complained of above. In addition, he complains of words spoken by the trial court outside the presence of the jury. Although blunt and probably ill-considered, they could not have influenced the jury, having taken place outside its presence.

Moreover, the record clearly shows that Eldred received effective assistance of counsel, well "within the range of competence demanded of attorneys in criminal cases." McMann v. Richardson, 397 U.S. 759, 771, 90 S.Ct. 1441, 1449, 25 L.Ed.2d 763 (1970). Cooper v. Fitzharris, 586 F.2d 1325 (9th Cir. 1978) (en banc).

C. EXAMINATION OF WITNESSES.

Eldred contends that the court's intrusion into the examination of Hadden, who testified under a grant of immunity, was prejudicial and improperly usurped the prosecutor's role. Eldred notes that in the 184 pages of testimony by Hadden the court interrupted 18 times and asked a total of 86 questions of the witness.

It is proper for the court to question witnesses to clarify and develop facts, as long as the questioning is done in a nonprejudicial fashion and the court does not adopt a partisan stance. See Glasser v. United States,315 U.S. 60, 82-83, 62 S.Ct. 457, 86 L.Ed. 680 (1942); United States v. Sidman, 470 F.2d 1158, 1162-63 (9th Cir. 1972), Cert. denied, 409 U.S. 1127, 93 S.Ct. 948, 35 L.Ed.2d 260 (1973); McConney v. United States, 421 F.2d 248, 250 (9th Cir. 1969), Cert. denied, 400 U.S. 821, 91 S.Ct. 39, 27 L.Ed.2d 49 (1970); Robinson v. United States, 401 F.2d 248, 252 (9th Cir. 1968).

The examination of Hadden shows that the court was trying to clarify testimony that at times was confused, imprecise, and in need of clarification. For example, the court sought to clarify the amount of money Hadden had given to Miller in kickbacks.

The court also corrected defense counsel during cross-examination, observing that statements made earlier by Hadden were not under oath and that an admission that defense counsel intimated Hadden had made to F.B.I. agents was not in the agent's report. Nothing the judge said suggested that he was adopting a partisan role.

Though the remarks by the court may have had some effect in diminishing the thrust of the attempted impeachment, they were clearly proper and fell far short of the assumption of the prosecutor's role criticized in Quercia v. United States, 289 U.S. 466, 470, 53 S.Ct. 698, 77 L.Ed. 1321 (1933).

D. INTERRUPTION OF ELDRED'S TESTIMONY.

Eldred alleges that the trial court's frequent interruption of his testimony exhibited an attitude of disbelief, mockery, and disrespect calculated to influence the jury against Eldred. However, the majority of these were designed to clarify and elicit testimony before the jury. Nothing the judge said suggested that he did not believe Eldred or was hostile to him.

From our hindsight we might say that a greater reluctance to intervene may have been warranted, but we conclude that the court's conduct does not amount to reversible error. Cf. United States v. Allsup, 573 F.2d 1141 (9th Cir. 1978) (conduct amounting to reversible error); United States v. Polizzi, 500 F.2d 856 (9th Cir. 1974) (reversible error).

In sum, the trial judge's intervention throughout the trial was at no single point nor cumulatively so prejudicial as to deprive Eldred of a fair trial. Furthermore, any possible taint caused by the court's conduct was dissipated by admonitions to the jury following its questioning of witnesses and in jury instructions at the close of the trial. Even were we to conclude that the trial court overstepped its proper boundaries, any error was clearly harmless.

II. PREJUDICIAL PUBLICITY

Eldred asserts that the trial judge erred in refusing to grant a change of venue or, alternatively, a continuance due to prejudicial pretrial publicity. ³ He also alleges error in the denial of an order...