U.S. v. Jake
| Decision Date | 14 February 2002 |
| Docket Number | No. 00-1501.,00-1501. |
| Citation | 281 F.3d 123 |
| Parties | UNITED STATES of America, Appellant, v. Tony R. JAKE, a/k/a Smiley. |
| Court | U.S. Court of Appeals — Third Circuit |
William S. Houser, Theodore B. Smith, III, Office of the United States Attorney, Scranton, PA, Counsel for Appellant.
G. Scott Gardner, Williamsport, PA, Counsel for Appellee.
Before: ALITO, McKEE, and
OPINION OF THE COURT
The government asks us to review the district court's order granting Tony Jake a new trial after a jury convicted him of conspiracy to obstruct justice by bribery. The district court awarded a new trial because of a perceived error in jury instructions regarding the statute of limitations. For the reasons that follow, we will reverse and remand for sentencing.1
On January 28, 1999, Tony Jake was indicted on one count of murder (Count I), and one count of conspiracy to obstruct a criminal investigation by bribery in violation of 18 U.S.C. §§ 2, and 1111(a) (Count II). The indictment resulted from the stabbing death of Santos Rosario, Jake's fellow inmate at the United States Penitentiary at Lewisburg, Pennsylvania. The indictment alleged that Jake had been involved in the murder of Rosario and that Jake thereafter paid another inmate to admit to the crime in order to conceal Jake's involvement.
Jake and Rosario had been involved in smuggling drugs into the Lewisburg penitentiary since at least the summer of 1991. However, sometime after they began bringing drugs into the institution, Jake began suspecting that Rosario was "skimming" some of the drugs for himself. Consequently, Jake blamed Rosario when several drug shipments were smaller than Jake expected them to be. Things apparently reached a climax a few days before Rosario was killed. Jake was expecting a shipment of drugs that he never received, and he blamed Rosario for its disappearance. However, unbeknownst to Jake, that shipment had actually been intercepted and turned over to law enforcement authorities.
Tape recordings of Jake's conversations on a prison telephone on October 8, 1991 (the day of Rosario's murder), revealed Jake's displeasure over the missing shipment. His comments clearly showed that he blamed Rosario and suggested that he (Jake) was going to do something about it shortly after the telephone call. App. at 1578 (); App. at 1607 ().
Rosario was stabbed to death by a homemade knife (a "shank") a few minutes after that conversation. A corrections officer saw Jake hastily leave the area of the stabbing shortly after Rosario was stabbed. Approximately 45 seconds later, another inmate reported that Rosario was dying inside the block. Jake was strip searched because of his proximity to the area, and prison officials noticed a fresh wound on his right leg.
Two days later, a prison official found clothing and a shank under a window in the gymnasium bathroom where Jake had gone immediately after the stabbing. The pants and shirt were splattered with small amounts of blood, and subsequent DNA testing disclosed that the blood was Rosario's. In addition, the pants that were recovered had a cut on the right leg which corresponded to the wound on Jake's leg.
Based on this and other evidence, officials began an investigation into Jake's involvement with Rosario's death. During the investigation, Jake was detained in the administrative detention unit of the penitentiary. While there, he had conversations with George Allred, an inmate who was assigned to the unit as an orderly. According to Allred's trial testimony, he and Jake agreed that Allred would write an affidavit admitting to the Rosario murder in order to insulate Jake from the investigation. In exchange for this false confession, Jake was to pay Allred $10,000.2 Pursuant to that agreement, Jake arranged to have his sister and a friend named Deldon Echols wire money to Naomi Yarboski, a friend of Allred's. Jake made several payments pursuant to this arrangement during the early 1990s.
The government alleged this conspiracy to obstruct a criminal investigation in Count II of the indictment. Both sides agree that the applicable statute of limitations for that offense is five years.3 However, most of the overt acts alleged indicate that the conspiracy occurred between 1991 and 1995. Only one of the alleged overt acts occurred within five years of January 28, 1999, the date of the indictment. That was a telephone conversation between Jake and Echols. The conversation occurred after Echols received a subpoena to appear before the grand jury investigating Rosario's murder. During that conversation, Jake told Echols to tell the grand jury that the money that he had caused to be sent to her for Allred was really to pay for pornographic magazines. The money had actually constituted Allred's payments for taking responsibility for stabbing Rosario.
Jake testified at trial and admitted to having those conversations. He also testified that he knew that the money was not actually for pornographic magazines when he told Echols to testify to that effect before the grand jury. He did not, however, admit that the money was a bribe. Rather, he testified that the payments were his way of rewarding Allred for coming forward and truthfully accepting responsibility for admitting that he (Allred) had actually been the one who murdered Rosario. App. at 1005-14 to 1005-21. At no time during the trial did Jake or anyone else dispute the date of the conversation with Echols.
At the conclusion of the trial, the prosecutor and defense attorney consented to the district court instructing the jury before closing arguments. Neither counsel objected to the charge the court subsequently gave. The district court's charge included an instruction on the statute of limitations and the overt acts. However, the court did not inform the jury that it must agree that the defendant committed at least one act within five years of the date of the indictment in order to convict under Count II.4 The court instructed the jury, in part, as follows:
The government must prove beyond a reasonable doubt that at least one overt act was committed by a member of the conspiracy. You must unanimously agree that the same overt act was committed. I will emphasize this point, before you can conclude that Mr. Jake is guilty of conspiracy you must unanimously agree that the same overt act was committed. It is not sufficient for five jurors to believe overt act # 1 was committed and 7 jurors to believe overt act # 2 was committed. All of you must agree and be convinced beyond a reasonable doubt that the same overt act was committed.
Even though defense counsel did not object to that charge during the charge conference, he asked to see the court at sidebar after the court finished its instructions and the prosecution finished its principal closing argument. There, the following exchange occurred:
THE COURT: Now, what did you want to put on the record, Mr. Gardner?
MR. GARDNER [defense counsel]: Your honor, with regard to count two, the conspiracy to obstruct a criminal investigation by means of bribery.
MR. HOUSER [the prosecutor]: My view is that's simply not the law. As long as there's one overt act committed within the statute of limitations it's entirely appropriate for the others to be considered as well.
THE COURT: Yeah. Well, that's my understanding, so we'll deny the motion. If you're right we'll probably have to retry it.
App. at 1476-2 to 1477-3 (emphasis added). Following the completion of argument, the jury retired to deliberate and thereafter returned a verdict of not guilty as to the murder charged in Count I, but guilty of the conspiracy to obstruct a criminal investigation under Count II.
Thereafter, Jake filed a motion for a new trial based upon the district court's failure to inform the jury that it could not convict on Count II unless all jurors were convinced beyond a reasonable doubt that Jake committed at least one overt act within five years of the date of the indictment. The district court agreed, and granted Jake's motion for a new trial. The court held that defense counsel had put the court on notice of the defect in the jury instructions during the sidebar colloquy we have set forth above. Accordingly, the court held that the objection was preserved, and that the failure to give the requested charge constituted reversible error.
This appeal followed.5
The government argues that (1) Jake failed to object to the charge, and thereby waived any problem under the statute of limitations; (2) even if the statute of limitations was not waived, Jake nonetheless failed to preserve an objection to the court's charge and; (3) any error the court may have committed in initially refusing to give the requested charge was harmless.
It is well settled that a criminal defendant is entitled to an instruction on the applicable statute of limitations. See Grunewald v. United States, 353 U.S. 391, 396-397, 77 S.Ct. 963, 1 L.Ed.2d 931 (1957). See also United States v. Schurr, 794 F.2d 903 (3d Cir.1986). Accordingly, the trial court should have informed the jury of the need to prove at least one overt act within five years of the date of the indictment, just as defense counsel argued in his...
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