U.S. v. Halliburton

• Decision Date: 24 March 1989
• Docket Number: No. 88-5051,88-5051
• Citation: 870 F.2d 557
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Larry HALLIBURTON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 557

870 F.2d 557

UNITED STATES of America, Plaintiff-Appellee, v. Larry HALLIBURTON, Defendant-Appellant.

No. 88-5051.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Jan. 9, 1989.

Decided March 24, 1989.

J. Douglas McVay, Phoenix, Ariz., for defendant-appellant.

Ellyn M. Lindsay, Asst. U.S. Atty., Los Angeles, Cal., for plaintiff-appellee.

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

Before ALARCON, BRUNETTI and THOMPSON, Circuit Judges.

ALARCON, Circuit Judge:

Larry Halliburton appeals from the judgment of conviction entered after a jury found him guilty of conspiracy to distribute cocaine pursuant to 21 U.S.C. Sec. 846 and possession with intent to distribute cocaine pursuant to 21 U.S.C. Sec. 841(a)(1). Halliburton was sentenced to concurrent sentences of eleven years in prison and an additional five years of supervised release.

During trial, after the prosecution rested its case and Halliburton had testified, the district court issued an order terminating Halliburton's release on the ground that he was a flight risk. The district court found that the government's proof was overwhelming and Halliburton's version of the facts was not credible. The district court also considered the fact that Halliburton had no community ties and that he faced a lengthy prison term upon conviction.

Halliburton seeks reversal on the ground that his right to a fair trial was unfairly prejudiced when members of the jury observed him in handcuffs outside the courtroom following the district court's order terminating his release. We disagree and affirm.

I

Whether a defendant's right to a fair trial is violated because members of the jury observe him in handcuffs is a question of law that is reviewed independently without deference to the district court's determination of this issue. United States v. McConney, 728 F.2d 1195, 1201 (9th Cir.) (en banc), cert. denied, 469 U.S. 824, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984). If we determine constitutional error occurred, we must decide whether it was harmless beyond a reasonable doubt. Chapman v. State of California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967).

II

On September 25, 1987, a federal grand jury returned an indictment charging Halliburton and his four co-defendants with conspiracy to distribute cocaine pursuant to 21 U.S.C. Sec. 846 and possession with intent to distribute cocaine pursuant to 21 U.S.C. Sec. 841(a)(1).

On October 5, 1987, Halliburton appeared before the United States Magistrate and entered a plea of not guilty. The trial was set for November 17, 1987.

Jury selection began on November 17, 1987. The next day the jury was impaneled and sworn. At the start of trial on November 18, 1987, Halliburton was the only defendant who was not in custody. On the second day of trial, the Assistant United States Attorney advised the court that some jurors had seen Halliburton's co-defendants in custody. The district judge did not pursue a request to excuse those jurors because he felt the jurors already knew that some defendants were in custody because of the placement of the marshals in the courtroom. The court stated:

We assiduously work in this court to try to conduct the trial in such a way as to minimize the appearance of custody....

As I say, in the real world, if you don't think those jurors know that there is custody involved here, you aren't very realistic.

On Friday, November 20, 1987, after the government rested its case and Halliburton had testified on direct and cross-examination, the trial was suspended for one-and-a-half weeks because of a scheduled vacation of one of the defense attorneys. After the jury left the courtroom, the trial judge held a hearing regarding the status of Halliburton's bail. The district court concluded that Halliburton's release should be terminated because he posed a flight risk. The court based its decision upon the strength of the government's case, the incredible nature of Halliburton's testimony, the probable lengthy prison sentence which Halliburton faced, and the fact that Halliburton had no community ties.

The trial resumed one-and-a-half weeks later on December 1, 1987. Halliburton was in custody along with the other defendants.

On December 4, 1987, Halliburton moved for a mistrial because some jurors had seen him in handcuffs outside the courtroom. The court denied the motion for a mistrial because there was no showing of prejudice and because the evidence against all defendants was overwhelming. The court held a hearing, however, to entertain suggestions for taking curative measures to eliminate any possible prejudicial effect that might result from the jurors observations. The court suggested to counsel that the jurors could be examined to assess the impact, if any, of the jurors' view of the defendants in handcuffs. All counsel rejected this suggestion. Counsel also rejected the court's suggestion that the parties agree to a trial by a jury of less than twelve persons. Instead, counsel agreed to the following measures:

1) The court would direct that the marshals arrange what it termed a "charade" during recesses to deceive the jurors by causing them to believe that Halliburton was no longer in custody. For the balance of the trial, during recesses, Halliburton was allowed to sit without handcuffs with his girlfriend in the hallway outside the courtroom.

2) The marshals would remain out of the jury's sight during the remainder of the trial.

3) The court would instruct the jury that a defendant's custody status is not a relevant factor in deciding guilt and should not be considered during jury deliberation.

Halliburton agreed to these measures without waiving his right to this appeal.

III

Halliburton raises two issues on appeal.

One. Did the district court abuse its discretion by terminating Halliburton's release during trial?

Two. Did the order remanding Halliburton into custody during trial result in the impairment of his right to a fair trial because jurors who had seen him outside the courtroom, without handcuffs, prior to the suspension of trial on November 20, 1987, later saw him in handcuffs?

Whether the court abused its discretion in terminating Halliburton's release on bail is not determinative of the novel question presented in this appeal: Does prejudicial error automatically occur whenever jurors who had earlier seen a defendant freely moving about in the public corridor during recesses in the trial without visible restraints, later observe him outside the courtroom in handcuffs? For example, in United States v. Allison, 414 F.2d 407, 414 (9th Cir.) cert. denied, 396 U.S. 968, 90 S.Ct. 449, 24 L.Ed.2d 433 (1969), we concluded that the order terminating release after a jury trial commenced was "erroneously entered." Nevertheless, we affirmed because we found that the error did not deny the accused his right to a fair trial. Id. Clearly, if the district court had not terminated Halliburton's release in the matter sub judice, this issue would not be before this court. It does not follow, however, that we should affirm if we conclude that the district court did not abuse its discretion in terminating Halliburton's release during trial. Rather, we must determine whether the record demonstrates that prejudice resulted from the jurors' view of Halliburton in handcuffs.

A jury's observation of a defendant in custody may under certain circumstances "create the impression in the minds of the jury that the defendant is dangerous or untrustworthy" which can unfairly prejudice a defendant's right to a fair trial notwithstanding the validity of his custody status. Holbrook v. Flynn, 475 U.S. 560, 569, 106 S.Ct. 1340, 1346, 89 L.Ed.2d 525 (1986) (quoting Kennedy v. Cardwell, 487 F.2d 101, 108 (6th Cir.1973), cert. denied, 416 U.S. 959, 94 S.Ct. 1976, 40 L.Ed.2d 310 (1974)). Therefore, the dispositive issue is whether Halliburton's right to a fair trial was prejudicially impaired because jurors, who had seen him earlier move about without visible restraint, later briefly observed him in handcuffs outside the courtroom.

IV

Halliburton contends that he was unfairly prejudiced by the fact that his custody was terminated after the government had rested its case and he had testified in his own defense, because the jury was aware that he had not been in custody at the start of the trial. Upon questioning by the court Halliburton testified, in support of his motion for a mistrial, that on December 3, 1987 he was observed handcuffed to a co-defendant by at least two jurors as the elevator doors opened. The marshals prevented Halliburton from entering the elevator because "there was a juror in the elevator." Later on the same day, the same female juror again saw him in handcuffs "downstairs."

Neither the judge nor the government prosecutor was responsible for this brief and inadvertent display of Halliburton in handcuffs in the presence of the jurors. Nevertheless, we agree with Halliburton that the questionable practice of the United States Marshal's Office, of transporting prisoners in restraints through public corridors, inadvertently created a risk of prejudice to the accused's right to a fair trial. The question we must decide is whether knowledge by certain jurors that an accused is under restraint or in custody "was so inherently prejudicial that respondent was thereby denied his constitutional right to a fair trial." Holbrook, 475 U.S. at 570, 106 S.Ct. at 1346. If we find that the jurors' brief view of Halliburton in handcuffs was not inherently prejudicial, we must then determine whether appellant has carried his burden of affirmatively showing actual prejudice. Id.

V

The Supreme Court has distinguished the discrete levels of prejudice that may result from a jury's viewing an accused under government restraint. Compelling an accused to appear in prison attire before a jury presents "an unacceptable risk" of prejudice....