U.S. v. Gravely

• Citation: 840 F.2d 1156
• Decision Date: 29 February 1988
• Docket Number: No. 87-5579,87-5579
• Parties: 1988-1 Trade Cases 67,906, 24 Fed. R. Evid. Serv. 1185 UNITED STATES of America, Plaintiff-Appellee, v. Armand GRAVELY, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

Page 1156

840 F.2d 1156

1988-1 Trade Cases 67,906, 24 Fed. R. Evid. Serv. 1185

UNITED STATES of America, Plaintiff-Appellee, v. Armand GRAVELY, Defendant-Appellant.

No. 87-5579.

United States Court of Appeals, Fourth Circuit.

Argued Dec. 3, 1987.

Decided Feb. 29, 1988.

James Hamilton Walsh, Richmond, Va. (Anne M. Whittemore, Robert E. Draim, McGuire, Woods, Battle & Boothe, Richmond, Va., James D. Welch; Popham, Haik, Schnobrich & Kaufman, Washington, D.C., on brief), for defendant-appellant.

Laura Heiser, Dept. of Justice (Charles F. Rule, Asst. Atty. Gen., Kenneth G. Starling, Deputy Asst. Atty. Gen., John J. Powers, III, David C. Jordan, William H. Gitlow, Karen E. Sampson, Robert E. Bloch, Dept. of Justice, Washington, D.C., on brief), for plaintiff-appellee.

Before WINTER, Chief Judge, and MURNAGHAN and WILKINS, Circuit Judges.

MURNAGHAN, Circuit Judge:

Armand Gravely was charged with one count of conspiring to fix the prices of soft drink products in the Norfolk and Richmond, Virginia areas in violation of Section 1 of the Sherman Act, 15 U.S.C. Sec. 1, and three counts of obstruction of justice, 18 U.S.C. Sec. 1503. Count III, an obstruction count involving destruction of tapes, was dismissed by the court at the close of the government's case. On February 12, 1987, after eight days of trial, the jury returned a verdict of guilty on the Sherman Act count and Count II, an obstruction of justice count involving the destruction of memoranda. The defendant was acquitted of Count IV, an obstruction count involving influencing a witness. On May 28, 1987, the district court denied Gravely's motion for a judgment of acquittal, an arrest of judgment, or a new trial.

Gravely, at times relevant to the present case, was division manager for the Richmond, Virginia division of Allegheny Pepsi-Cola Bottling Co. (Allegheny). Stan Fabian was division manager of Allegheny's Norfolk division. Jerry Pollino was Allegheny's Senior Vice-President of Marketing.

The defendant offers four arguments in support of his contention that he was improperly convicted of violating Sec. 1 of the Sherman Act and a single count of obstruction of justice. They are:

(A) The trial court erred by refusing to grant Gravely leave to interview jurors.

(B) The trial court denied Gravely due process and the right to present an effective defense by permitting the government selectively to use its immunity power.

(C) The jury's verdict of guilt was contrary to the law and the evidence.

(D) The trial court's conduct and erroneous rulings denied Gravely due process and a fair and impartial trial.

Though defendant raises many issues and argues them at length, he does not succeed in demonstrating that his conviction was improper.

A. The contention that the trial court erred by refusing to grant leave to interview jurors.

Defendant states that, before returning with their decision, the jurors requested an opportunity to comment on their verdicts, but the request was denied. Following the trial's completion, several jurors interviewed by the press reported that they rendered the verdicts because of "technicalities" and were under "extreme pressure at the end of a two week trial." Another juror, defendant contends, approached a spectator and stated that some jurors believed Gravely innocent but changed their view because of "time pressure." The juror also expressed his belief that given more time the jury would have found Gravely innocent and noted that the trial judge showed "partiality" toward the Government.

Based on these reports, and these alone, defendant sought leave to interview the jurors to determine if the pressure and lack of adequate time for deliberation were self-imposed or the result of outside influence. The request was denied by the district judge.

Requests to impeach jury verdicts by post-trial contact with jurors are disfavored. Tanner v. United States, --- U.S. ----, 107 S.Ct. 2739, 97 L.Ed.2d 90 (1987). Fed.Rule Evid. 606(b) reflects that policy by prohibiting the interrogation of jurors except with regard to "whether extraneous prejudicial information was improperly brought to the jury's attention or whether any outside influence was improperly brought to bear upon any juror."

Defendant's request was properly denied because he made no threshold showing of improper outside influence. Big John, B.V. v. Indian Head Grain Co., 718 F.2d 143, 150 (5th Cir.1983). In Tanner, the Supreme Court indicated that in the absence of such a showing neither the sixth amendment nor Fed.Rule Evid. 606(b) requires an inquiry into possible external influence when a threshold showing of external influence has not been made. The trial court's decision not to allow such an inquiry was found not in error. Tanner, 107 S.Ct. 2745, 2750-51. The alleged pressure could have been brought by one juror on another and if so the court will not take cognizance of it. United States v. Barber, 668 F.2d 778 (4th Cir.1982), cert. denied, 459 U.S. 829, 103 S.Ct. 66, 74 L.Ed.2d 67 (1982). Without a threshold showing of improper outside influence, defendant's request is a mere fishing expedition. The Fourth Circuit follows the view that the trial court may deal with such claims as it feels the particular circumstances require and only reverse for abuse of discretion. United States v. Duncan, 598 F.2d 839, 866 (4th Cir.1979), cert. denied, 444 U.S. 871, 100 S.Ct. 148, 62 L.Ed.2d 96 (1979). We perceive no abuse in the trial court's denial of the request to interview jurors. Defendant's suggested rule would allow a convicted defendant to interrogate the jury about occurrence of the not unlikely event of a juror publicly stating that contention was present in the jury room.

B. The assertion that the trial court denied Gravely due process of law and the right to present an effective defense by permitting the government selectively to use its immunity power.

Gravely argues that his sixth amendment right to compulsory process and his fifth amendment due process rights were violated when the court refused to grant immunity or compel the government to grant immunity to coconspirators Randy Allen and Mike Hedges ¹ or, alternatively, to suppress the testimony of Pollino and Fabian, the government's immunized witnesses.

The district court lacks power to itself grant immunity. United States v. Klauber, 611 F.2d 512, 517 (4th Cir.1979), cert. denied, 446 U.S. 908, 100 S.Ct. 1835, 64 L.Ed.2d 261 (1980). The decision of whether to grant immunity is in general vested with the prosecution. The defendant bears a heavy burden when seeking to have the district court compel the grant of immunity. United States v. Karas, 624 F.2d 500, 505 (4th Cir.1980), cert. denied, 449 U.S. 1078, 101 S.Ct. 857, 66 L.Ed.2d 800 (1981). The Fourth Circuit rule is that the prosecution will be required to confer immunity when (1) the defendant makes a decisive showing of prosecutorial misconduct or overreaching and (2) the evidence supplied would be clearly material, exculpatory and unavailable from any other source. United States v. Tindle, 808 F.2d 319, 326 (4th Cir.1986).

The defendant must first show misconduct. The mere fact that the government chose to immunize some witnesses but not others does not constitute misconduct. In Klauber, the court concluded that the government's decision to grant a witness immunity before the grand jury but refusal to immunize that witness for the defense at trial did not amount to bad faith or misconduct. 611 F.2d at 519. Conduct of like nature is the only possible misconduct that Gravely could allege. Without misconduct there is no requirement that the government provide immunity to defense witnesses.

C. The claim that the jury's verdict of guilt was contrary to the law and the evidence.

Gravely was convicted on two counts: violation of Sec. 1 of the Sherman Act and obstruction of justice under 18 U.S.C. Sec. 1503.

1. Asserted insufficiency of evidence and law to support the verdict as to the obstruction of justice count

The obstruction of justice count related to destruction of memoranda. Gravely admitted to the destruction but contends that there was insufficient evidence to prove: a) that they were under subpoena, b) that they were material to the grand jury investigation, and c) that he acted with the intent to interfere with that investigation.

The documents do not have to be under subpoena, it is sufficient if the defendant is aware that the grand jury will likely seek the documents in its investigation. United States v. Fineman, 434 F.Supp. 197, 202 (E.D.Pa.1977), aff'd, 571 F.2d 572 (3d Cir.1978), cert. denied, 436 U.S. 945, 98 S.Ct. 2847, 56 L.Ed.2d 786 (1978).

The grand jury investigation began in the fall of 1984 as an inquiry into pricing of soft drinks in Virginia Beach, part of the Norfolk division of Allegheny. Richmond was not the initial focus. A subpoena was not directed to the Richmond division until August, 1985. The memoranda destruction occurred in December 1984.

Defendant argues that there was absolutely no evidence to rebut the defendant's testimony that as of late 1984, he understood that the grand jury sought only Norfolk division documents and that he first learned that the Richmond division's documents were sought in the spring of 1985. Further, he argues, the evidence showed that he knew that the originals of the Fabian memoranda had been produced so he had no reason to believe that his copies might later be demanded by the grand jury. Fabian was Gravely's counterpart in the Norfolk division.

This is, on investigation, not true. There was sufficient evidence for the jury to infer that Gravely obstructed justice. Jim Jones and Joe Richardson, Gravely's subordinates, testified that Gravely told them about the grand jury investigation and that Gravely held up a file containing the memoranda and said that he feared the investigation would come to Richmond. Further, Fabian testified that he told Gravely that Fabian made...