U.S. v. Hynes
| Decision Date | 07 November 2006 |
| Docket Number | No. 05-2036.,05-2036. |
| Citation | 467 F.3d 951 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Donald HYNES, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Elizabeth L. Jacobs, Detroit, Michigan, for Appellant. Sarah Resnick Cohen, United States Attorney, Detroit, Michigan, for Appellee.
ON BRIEF:
Elizabeth L. Jacobs, Detroit, Michigan, for Appellant. Sarah Resnick Cohen, Jonathan Tukel, United States Attorneys, Detroit, Michigan, for Appellee.
Before CLAY and GILMAN, Circuit Judges; OBERDORFER, District Judge.*
Donald Hynes, a former Detroit police officer, appeals his convictions on six counts arising from a scheme to remove seized drugs from the Evidence and Property Room at the Detroit Police Department and sell those drugs for profit. Hynes argues that (1) remarks and conduct by the district judge deprived him of his right to a fair trial, (2) the government's proof at trial so varied from the indictment that it violated his constitutional rights, (3) the evidence introduced by the government was insufficient to support the jury's verdict on three of the counts, and (4) his attorney rendered constitutionally ineffective assistance. For the reasons set forth below, we AFFIRM the judgment of the district court.
Donald Hynes worked as a police officer in the Detroit Police Department's Evidence and Property Room (subsequently referred to simply as the Property Room), the repository where many of the items seized by the police are stored. Among those items were large quantities of cocaine that Lieutenant Arthur McNamara had seized during a series of drug raids in the 1990s. In 2001, McNamara went to the Property Room to secure a portion of this cocaine that he wanted to use in a reverse sting — an operation in which police officers pose as drug dealers. He was looking specifically for 30 kilograms of cocaine that he had previously seized from Andres Colmines and 10 kilograms of cocaine taken from William Quazada. After neither cache of drugs could be located, McNamara notified the department's Internal Affairs Section, which launched an audit and investigation in conjunction with the FBI.
The investigation revealed that 101 kilograms of cocaine were missing from the Property Room, along with approximately 10,000 other pieces of evidence. One of the packages examined during the investigation was labeled as "cocaine," but was discovered to contain bags of flour manufactured years after the cocaine supposedly in that package had been seized. Investigators therefore concluded that someone had taken the cocaine long after its seizure and replaced it with bags of flour. This information, along with a tip from a witness, led law enforcement officials to suspect that the person responsible for this substitution was John Cole, Sr., a former civilian employee in the Property Room. Cole, in turn, implicated Hynes and Anthony Lasenby. The latter was a nephew of Cole's who allegedly sold the drugs that Cole and Hynes took from the Property Room.
According to his testimony at trial, Cole enlisted Hynes's help out of fear that others would become suspicious of the frequent presence of a civilian employee in the narcotics vault of the Property Room. Cole did not know how Hynes went about selecting the particular drugs that would be stolen, but remembered that the name of Lieutenant McNamara appeared on most of the packages. McNamara confirmed that he had given Hynes his password to the department computer so that Hynes could update the status of the evidence. Printouts from the department computer likewise indicate that someone had changed the status of three cocaine seizures by McNamara — constituting 2, 10, and 31 kilograms in quantity, respectively — from "Live" to "To be destroyed." This change in status was designed to explain the absence of the drugs, which others would assume had already been destroyed.
The police also conducted a search of Cole's residence in Detroit, uncovering banking and real estate records, as well as personal papers. Those records and papers included Hynes's name, telephone number, and a carbon copy of a cashier's check that came to play a significant role in the police investigation. The cashier's check, which had been used by Cole to purchase a barbershop in his son's name, stated on the remitter line that it had been drawn on funds belonging to William Hynes, the defendant's father. William Hynes later confirmed that he had purchased the check at his son's direction, and further investigation revealed that the funds used to purchase the check came from cash deposited into William Hynes's account in two increments of $9,000 each and one increment of $6,000 in the days proceeding the transaction. Although Cole testified that this was the precise manner in which Hynes had told him that the cashier's check would be secured, Hynes later told the grand jury that he did not know anything about a cashier's check drawn by his father being used to purchase the barbershop.
In studying Hynes's finances, agents from the Internal Revenue Service (IRS) also noticed suspicious discrepancies between the salaries earned by Hynes and his wife and their spending habits. The Hyneses' expenditures between 1998 and 2001 greatly exceeded their income, and account records revealed unexplained cash deposits totaling $129,910 between October of 1997 and April of 2001.
The third superseding indictment charged Hynes with (1) conspiracy to distribute five kilograms or more of cocaine, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A)(ii)(II), and 846; (2) distribution of five kilograms or more of cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A)(ii)(II); (3) conspiracy to steal or embezzle property under the care or custody of the Detroit Police Department that was valued at $5,000 or more, in violation of 18 U.S.C. §§ 666(a)(1)(A) and 371; (4) embezzlement or theft of property under the care of the Detroit Police Department that was valued at $5,000 or more, in violation of 18 U.S.C. § 666(a)(1)(A); (5) conspiracy to launder money, in violation of 18 U.S.C. § 1956(h); and (6) making a false declaration to a grand jury, in violation of 18 U.S.C. § 1623(a).
During the four-day trial, the government introduced testimony from Hynes's alleged coconspirators, Cole and Lasenby, as well as from various law enforcement officials involved in the investigation. The jury deliberated for two days before returning a verdict of guilty on all counts. Hynes then filed a motion for a new trial, arguing that (1) the evidence introduced at trial had constructively amended and/or impermissibly varied from the indictment with respect to Counts V and VI, (2) the evidence was insufficient to support the jury verdict on Counts III, IV, and VI, (2) defense counsel had rendered constitutionally ineffective assistance, and (4) the jury's verdicts on Counts I, II, III, and IV were against the great weight of the evidence. The district court, after finding no merit to any of these claims, denied Hynes's motion. This timely appeal followed.
Hynes's contention that the district court deprived him of his right to a fair trial has three components. He argues that (1) a comment by the district judge prior to voir dire denied him the presumption of innocence, (2) the judge's interventions during trial interfered with the presentation of his defense and violated the Confrontation Clause, and (3) the court's criticism of defense counsel rose to the level of impermissible judicial bias. These arguments will be addressed in turn.
After the district court had read the indictment and just prior to commencing voir dire, it made the following statement to the prospective jurors: "Now, a criminal defendant who does not acknowledge his culpability must be tried and found to be guilty or not guilty." Hynes contends that "this statement alone ... extinguished the presumption of innocence and put in its place a finding of guilt." We respectfully disagree. The statement, especially when considered in its context, did nothing of the kind. At the time, the district court was explaining to potential jurors the essential role of the jury in the criminal justice system and was preparing them for the types of questions that they would be asked during voir dire. Neither the statement cited by Hynes nor the remainder of the judge's introductory comments indicates "that the judge had found or thought that the defendant was guilty," as Hynes contends, or that Hynes, rather than the government, bore the burden of proving the charges against him. The district court's statement, in other words, was not in any way improper.
But even if the isolated statement could be interpreted as improper, the district court avoided any prejudice to Hynes by twice instructing the jury on the presumption of innocence. In its preliminary instructions to the jury, the district court stated:
Three things are more important than anything else in your consideration ... of the facts and doing your job here. First of all, the Defendant is presumed to be innocent unless proven guilty. The indictment against the Defendant is only an accusation, nothing more. It's not proof of guilt or anything else. The Defendant starts out with a clean slate. Second, the burden of proof is on the Government throughout. Defendant has no burden to prove his innocence or to present any evidence or to testify. Since the Defendant has the right to remain silent, the law prohibits you from considering the fact that the Defendant may not have testified in arriving at your verdict. And, third, the Government must prove the Defendant's guilty beyond a reasonable...
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