U.S. v. Florea, s. 75-1613

• Decision Date: 30 August 1976
• Docket Number: 75-1614,Nos. 75-1613,s. 75-1613
• Citation: 541 F.2d 568
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. George M. FLOREA and Raymond Paul Vara, Defendants-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 568

541 F.2d 568

UNITED STATES of America, Plaintiff-Appellee, v. George M. FLOREA and Raymond Paul Vara, Defendants-Appellants.

Nos. 75-1613, 75-1614.

United States Court of Appeals Sixth Circuit.

Argued Feb. 13, 1976.

Decided Aug. 30, 1976.

Ralph W. Ross, Canton, Ohio, for appellant in No. 75-1613.

Louis Martinez, Canton, Ohio, for appellant in No. 75-1614.

Frederick M. Coleman, U. S. Atty., David S. Felman, U. S. Dept. of Justice, Cleveland, Ohio, Harvey M. Stone, William G. Otis, Washington, D. C., for appellee.

Before WEICK, CELEBREZZE and McCREE, Circuit Judges.

McCREE, Circuit Judge.

Raymond P. Vara and George M. Florea appeal from a jury conviction of three counts of transmitting wagering information across state lines in violation of 18 U.S.C. § 1084. ¹ Count I of the indictment, charging conspiracy to transmit wagering information, was dismissed on the government's motion after the first trial ended in a mistrial because the jury was unable to reach a verdict. Counts II, III, and IV, charging the substantive offenses, refer to three telephone calls that were monitored pursuant to court-ordered interception.

A number and variety of issues are presented on appeal. ² Appellants contend first that the district court erred in permitting two communications to be made to the jury in the absence of appellants or their counsel. Second, appellants contend that the district court erred in denying their motion to suppress the tapes of the intercepted conversations. Finally, appellants argue that the evidence was insufficient to support their convictions. We conclude that no reversible error was committed and affirm.

I. COMMUNICATIONS WITH THE JURY IN APPELLANTS' ABSENCE.

The first communication of which appellants complain concerns the participation of an FBI agent who was present when tapes admitted as evidence were replayed for the jury after it commenced its deliberations. The other occurred when a juror told the judge of an attempt to influence his verdict. Appellants contend that because F.R.Crim.P. 43 provides that a criminal defendant is entitled to "be present . . . at every stage of the trial," they were entitled to be present in both cases. They claim that because they were not present they did not receive a fair trial. We disagree.

The first issue we consider is whether the district court erred in allowing, without notice to appellants or counsel, a prosecution witness to replay tape recordings of the intercepted conversations for the jury during its deliberations. After the jury commenced deliberations, it notified the court that it wanted to hear again certain tapes that had been admitted as evidence. Pursuant to the court's instructions and without notification of counsel, the courtroom deputy clerk brought the jurors into the locked courtroom where Special Agent Ault replayed the tapes. The judge had referred to Ault as the "court's technician," ³ and Ault had operated the tape recorder during the trial.

On August 28, 1974, after the jury announced that a verdict had been reached, but before it had been given to the court, appellants learned that the tapes had been replayed. They immediately moved for a mistrial on the ground that this event occurred during a "stage of the trial" at which they were entitled to be present, as provided in Rule 43. Appellants vehemently objected to the participation of Agent Ault who had been a witness for the prosecution.

The judge overruled the motion at that time, and then on the day of sentencing, September 20, 1974, he indicated that a record should be made to reflect in more detail what transpired. Accordingly, the courtroom deputy clerk, Special Agent Ault, and a law clerk who had knowledge of the proceedings were called as witnesses to testify about what happened after the jury's request to rehear the tapes. The witnesses testified out of the presence of each other, and there was no conflict in their testimony. After the court and all counsel had an opportunity to question the witnesses, the court summarized the procedure as follows:

The tapes were replayed pursuant to the instructions of the Court in a locked courtroom after everyone had been excluded therefrom except the technician (Ault) and the Deputy Clerk. . . . (The Deputy Clerk then advised the jury) that there was to be no conversation with the exception of a request to play any entire specific tape or a portion thereof, that no notes were to be taken, and there was to be no conversations (sic) with any of the individuals present.

Although Rule 43 does not entitle a defendant to be present during the jury's deliberations (which are not "a stage of the trial" at which he is entitled to be present), arguably he may be entitled to be present when a jury returns to the courtroom to rehear evidence, just as the defendant's presence is required when a jury receives additional instructions after it begins deliberations. The Supreme Court recently held that Rule 43 requires a trial judge to answer jury questions in open court, and to afford counsel an opportunity to be heard before the court's response. Rogers v. United States, 422 U.S. 35, 95 S.Ct. 2091, 45 L.Ed.2d 1 (1975). The rationale of Rogers would also seem to require the presence of the defendant and counsel when a deliberating jury requests a reprise of evidence that requires the communication of third persons with the jury. In this case, however, we need not formulate a general rule because we have the practical equivalent of a stipulation by counsel that the court could permit the tapes to be replayed before the jury in counsel's absence.

An examination of the transcript reveals that in part of his instructions, the judge informed the jurors that all exhibits were available for their consideration and assistance during deliberations. Thus, at that time, defense counsel knew that the tapes, Exhibits 19, 20, 21, 22, and 73, would be available to the jury, and made no objection. Furthermore, when counsel for appellants finally did object, their primary objection was directed at the presence of Agent Ault, because of his "interest in the outcome of this lawsuit." Appellants have not demonstrated to us any prejudice that resulted from the judge's failure to answer the request in open court. We do not readily infer a waiver of a defendant's right to be present in court. However, under these circumstances, we determine that appellants constructively stipulated to the replay of the tapes at the jury's request.

Although we have found no violation of Rule 43, we must still decide whether the presence of Agent Ault during the jury deliberations requires reversal. First, we conclude that there was no violation of due process. Second, although a district court should not permit anyone other than authorized court personnel to communicate with a jury during its deliberations, nevertheless we conclude that in this case reversal is not required under our supervisory authority, because Ault's presence did not affect appellants' " substantial rights." Rule 52(a), F.R.Crim.P.

On at least one occasion, the Supreme Court has held that unauthorized contact with a jury violates due process. In Turner v. Louisiana, 379 U.S. 466, 85 S.Ct. 546, 13 L.Ed.2d 424 (1965), two deputy sheriffs who were prosecution witnesses were placed in charge of a jury which had been sequestered. The Court reversed Turner's conviction because it determined that the association between the witnesses and the jury deprived Turner of the right to trial by an impartial jury. 379 U.S. 471, 85 S.Ct. 546.

Clearly a jury must be protected against unauthorized communication, but the Court in Turner did not adopt a per se rule that any contact between a witness for the prosecution and a jury requires reversal of a conviction. See Helmick v. Cupp, 437 F.2d 321 (9th Cir. 1971), cert. denied, 404 U.S. 835, 92 S.Ct. 120, 30 L.Ed.2d 67 (1971). Furthermore, Turner is distinguishable from this appeal. In Turner, the jury contact was continuous and intimate association with a sequestered jury on three consecutive days, which provided an opportunity for the prosecution witnesses "to renew old friendships and make new acquaintances among the members of the jury." 379 U.S. at 473, 85 S.Ct. at 550. Here, in contrast, Agent Ault was never alone with the jury and was in its presence only long enough to replay the tapes.

The opinion in Turner discloses that the deputies who had testified for the prosecution and were in charge of the jurors were "the two principal witnesses for the prosecution." 379 U.S. at 467, 85 S.Ct. at 547. Their testimony established that one of them had conducted the investigation leading to Turner's arrest, and the other had "prevailed upon Turner to make a written confession." And they were the officers who arrested Turner and accompanied him to the location where part of the murder weapon was located. 379 U.S. at 467, 85 S.Ct. at 547. Agent Ault, on the other hand, was but one of sixteen witnesses for the government, and he testified only to the fact that appellants' telephone conversations had been intercepted and that their residences had been searched. After a review of all the evidence, we conclude that appellants were not deprived of a fair trial.

Although we do not hold the contact with the jury in this case violated due process as it did in Turner, we nonetheless do not and in the future we will not condone similar acts. We are required to exercise supervisory authority over the administration of justice in courts of this circuit even in cases where departures from ideal procedures fall short of a violation of due process. See McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819 (1943); Mallory v. United States, 354 U.S. 449, 77 S.Ct. 1356, 1 L.Ed.2d 1479 (1957). Therefore, we hold that without prior stipulation a trial court should not permit any unauthorized person especially one associated with either prosecution or defense to...