U.S. v. Howard

• Decision Date: 11 January 1985
• Docket Number: 83-5436,Nos. 83-5434,83-5533 and 83-5534,s. 83-5434
• Citation: 752 F.2d 220
• Parties: 17 Fed. R. Evid. Serv. 383 UNITED STATES of America, Plaintiff-Appellee, v. Clifford HOWARD (83-5434, 83-5533), and Charles Wayne Shelton (83-5436, 83- 5534), Defendants-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 220

752 F.2d 220

17 Fed. R. Evid. Serv. 383

UNITED STATES of America, Plaintiff-Appellee, v. Clifford HOWARD (83-5434, 83-5533), and Charles Wayne Shelton (83-5436, 83- 5534), Defendants-Appellants.

Nos. 83-5434, 83-5436, 83-5533 and 83-5534.

United States Court of Appeals Sixth Circuit.

Argued June 14, 1984.

Decided Jan. 11, 1985.

C. David Hagerman (argued), Williams & Hagerman, Robert F. Houlihan, Ashland, Ky., for Howard.

Louis DeFalaise, U.S. Atty., Fred A. Stine, V, Asst. U.S. Atty. (argued), Lexington, Ky., for U.S.

Robert Templeton (argued), E.J. Walbourn, Hermansdorfer & Templeton, Ashland, Ky., for Shelton.

Before ENGEL and MARTIN, Circuit Judges, and SWYGERT, Senior Circuit Judge. ^*

SWYGERT, Senior Circuit Judge.

Defendants Clifford Howard ("Clifford") ¹ and Charles Wayne Shelton ("Charles") appeal from their convictions in the United States District Court for the District of Kentucky for conspiracy and mail and wire fraud. The indictment alleged that defendants conspired with Harriet Shelton Howard ("Harriet") (wife of defendant Clifford and sister of defendant Charles) and Johnny Howard ("Johnny") (unrelated to the other Howards) to defraud Grange Mutual Casualty Company by burning the residence of Clifford and Harriet. The indictment alleged that the residence was burned by Charles with the assistance of Johnny. The indictment further charges that the scheme continued after the fire with substantive acts of mail and wire fraud in an attempt to perfect the claim for insurance proceeds on the fire loss.

The case was referred by the district court to a magistrate for consideration of various pretrial matters. After a hearing, the magistrate found that the tape recording of conversations between Charles and Johnny did not implicate Charles' sixth amendment rights and that the tapes met the authenticity and accuracy requirements set forth in United States v. Starks, 515 F.2d 112, 121 n. 11 (3rd Cir.1975). The magistrate recommended that the defendants' motion to suppress the tapes be denied, Magistrate's Report and Recommendation filed October 15, 1982, and the district court adopted this recommendation, Order filed December 23, 1982.

The case was tried to a jury. After ten hours of deliberation, the jury found defendants guilty on all counts. Defendants thereafter filed a motion for a new trial on the ground that one juror deliberately concealed material information on voir dire. Defendants also moved for a new trial on the ground that two other jurors were exposed to extraneous prejudicial information. The motion was referred to the magistrate who recommended that a new trial be granted on the basis that a juror deliberately concealed information on voir dire. The magistrate recommended that the motion for a new trial be denied in all other respects. Magistrate's Report and Recommendation filed May 20, 1983. After additional testimony in the district court, the court concluded that a new trial was not warranted on any grounds. Opinion and Order filed June 9, 1983; Findings of Fact, Conclusions of Law, and Order filed July 20, 1983. The defendants were sentenced to ten years each with five years probation following their release from prison.

Defendants argue on appeal that: (1) the district court erred in denying their motion for a new trial on the ground that a juror deliberately concealed information on voir dire; (2) the district court abused its discretion by denying their motion for a new trial on the ground that another juror was shown to lack impartiality; (3) the court erred in permitting the United States to introduce tape recordings of conversations between Charles and Johnny which were held in violation of Charles' sixth amendment right to counsel; (4) the court erred in admitting evidence illegally seized from the Howards' residence; and (5) the court erred in admitting out-of-court statements of Charles and Johnny against defendant Clifford.

I

Sandra Rae Huffman was impaneled as an alternate juror but replaced a regular juror who was dismissed for illness. During voir dire, defense counsel asked whether any of the prospective jurors had "any relatives or close personal friends ... who happen ... to be a law enforcement officer?" Excerpted Transcript of Voir Dire on February 28, 1983 at 66. At least six persons responded affirmatively and were subjected to additional questioning. Id. at 66-70. Huffman did not respond. At the posttrial hearing, Huffman admitted that her brother-in-law was an officer with the Portsmouth, Ohio Police Department at the time of the trial and that she considered him a relative. When asked why she did not respond to the question, Huffman stated:

Well, they were asking, in other words, if it would have any effect if I was chosen to sit on the jury, would it make a difference in what I decided. It wouldn't have any effect whatsoever, and he was in the State of Ohio, and I just--this was my first time being called to jury service, and I just didn't realize that it would be important, you know, that I didn't mention his name.

Transcript of Magistrate's Hearing on April 29, 1983 at 80. Huffman gave similar responses each time she was asked why she failed to respond to the question on voir dire. See id. at 82, 88.

Defendants argue that bias on the part of Huffman must be presumed as a matter of law under the rule set forth in McCoy v. Goldston, 652 F.2d 654 (6th Cir.1981). In McCoy, this court stressed the importance of peremptory challenges, id. at 657-58, and found that the right to the exercise of such challenges is prejudicially impaired by a prospective juror's deliberate concealment of information on voir dire, id. at 658. The court concluded that bias must be presumed and a new trial granted "when a juror deliberately concealed information or gave a purposefully incorrect answer." Id. at 659. McCoy set forth three factors to be considered in determining whether a juror has deliberately concealed information or purposefully given an incorrect answer:

A. Whether the question asked sufficiently inquired into the subject matter to be disclosed by the juror.

B. Whether the response of other jurors to the question asked would put a reasonable person on notice that an answer was required.

C. Whether at any time during the trial the juror became aware of his false or misleading answer and failed to notify the district court.

Id. at 658-59 (footnotes omitted).

The government argues that McCoy has been limited if not overruled by Supreme Court decisions in Smith v. Phillips, 455 U.S. 209, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982), and McDonough Power Equipment, Inc. v. Greenwood, 464 U.S. 548, 104 S.Ct. 845, 78 L.Ed.2d 663 (1984). Cf. United States v. Pennell, 737 F.2d 521 at 533 n. 11 (6th Cir.1984) (after Phillips, a "hearing at which the defendant bears the burden of proving actual bias ... is adequate in most cases involving ... juror misconduct"). In Smith, supra, the Court held that the due process clause does not require the district court in a habeas proceeding to presume bias on the part of a juror in a state criminal proceeding who had an application for employment pending in the state prosecutor's office. 455 U.S. at 214-18, 102 S.Ct. at 944-46. In McDonough, a plurality of the Court held that a new trial is warranted only where a party demonstrates "first ... that a juror failed to answer honestly a material question on voir dire, and then further ... that a correct response would have provided a valid basis for a challenge for cause." 104 S.Ct. at 850. Two Justices concurred in the judgment only and three Justices joined a concurring opinion which stated that bias may be presumed in some cases. Id. (Blackmun, J., with whom Stevens, O'Connor, JJ., join, concurring); id. (Brennan, J., with whom Marshall, J., joins, concurring in judgment).

We need not decide whether these cases overrule McCoy v. Goldston, supra, because we find that even under McCoy, implied bias is not warranted in the instant case. Defendants have failed to prove that Huffman deliberately concealed information. McCoy involved a voir dire question almost identical to that involved in the instant case. The juror in McCoy gave no response to the question although her son was training to become a probation officer. The court found this evidence sufficient to establish a prima facie case of deliberate concealment by the juror and to require a posttrial hearing at which the juror could be examined. 652 F.2d at 659. The court did not find the evidence necessarily sufficient to require a new trial.

We do not doubt that the defendants in the instant case established a prima facie case of deliberate concealment by Huffman under the criteria established in McCoy. Thus, the court was required to hold a posttrial evidentiary hearing. The court held such a hearing. On the basis of the evidence adduced at the hearing, the court found that "Huffman's failure to respond was an honest mistake. Huffman failed to respond because she honestly believed that she did not have to answer the question." Opinion and Order filed June 9, 1983 at 6. We find no error in the district court finding.

Huffman testified that she did not intend to conceal information and did not know she was misleading the court. She explained that she concluded for herself that the question was intended to find out only whether her judgment would be affected by a relative's employment as a police officer. She then concluded that her brother-in-law's employment would not affect her judgment and therefore did not respond to the question. Huffman was wrong to decide for herself what information was important. Nevertheless, her testimony was sufficient to rebut the defendant's prima facie case of deliberate concealment. First, defendants failed to establish the third factor listed in McCoy. Huffman claimed that she did not realize before or during the trial that her failure to respond to the question was false or...