U.S. v. Kupau

• Decision Date: 25 March 1986
• Docket Number: No. 84-1034,84-1034
• Citation: 781 F.2d 740
• Parties: 19 Fed. R. Evid. Serv. 1513 UNITED STATES of America, Plaintiff-Appellee, v. Walter H. KUPAU, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 740

781 F.2d 740

19 Fed. R. Evid. Serv. 1513

UNITED STATES of America, Plaintiff-Appellee, v. Walter H. KUPAU, Defendant-Appellant.

No. 84-1034.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Dec. 10, 1984.

Decided Jan. 28, 1986.

As Amended March 25, 1986.

Mark J. Bennett, Asst. U.S. Atty., Honolulu, Hawaii, for plaintiff-appellee.

Addison M. Bowman, Pyun, Okimoto, & Fukumoto, Honolulu, Hawaii, for defendant-appellant.

Appeal from the United States District Court; for the District of Hawaii.

Before WALLACE, HUG, and SCHROEDER, Circuit Judges.

HUG, Circuit Judge:

Walter H. Kupau appeals his convictions for three counts of perjury under 18 U.S.C. Sec. 1621 (1982) and three counts of false declaration under 18 U.S.C. Sec. 1623 (1982). Kupau maintains that he was denied a fair trial because the district court (1) allowed an FBI agent to play tapes for the jury with no one present to record communication between the jury and the agent, (2) communicated ex parte with the jury, (3) contaminated the jury by giving it a dictionary, (4) refused to allow Kupau to introduce the expert testimony of a linguist, and (5) committed error in excluding portions of the defense's proffered testimony of a labor law attorney. We disagree with Kupau's contentions and affirm his convictions.

BACKGROUND

On January 6, 1981, Local 745, United Brotherhood of Carpenters and Joiners of America, AFL-CIO began picketing C & W Construction Co. ("C & W"), a nonunion firm. The chief executive officer of C & W was Walter Mungovan. Defendant Kupau, who was the statewide head of the union, characterized the purpose of the picketing as informational, i.e., intended to alert the public that C & W paid below union scale wages. Mungovan filed a complaint with the National Labor Relations Board ("NLRB") alleging that the purpose was not informational but organizational. Informational picketing may continue indefinitely but organizational picketing must culminate in a request for election pertaining to union representation by the targeted work force at least within thirty days from the commencement of the picketing. The NLRB agreed with Mungovan and sought to enjoin the picketing in federal district court.

Kupau opposed the NLRB action and submitted to the court affidavits that the picketing was solely informational. Kupau also testified at the perjury trials of other union officials that the picketing was not organizational. These characterizations conflicted with conversations--covertly taped by Mungovan--between Mungovan and Kupau, and between Mungovan and various Kupau subordinates. Counts one through three were based on the affidavits. The remaining four counts alleging false declarations resulted from Kupau's testimony at the trials of the other union officials. The jury convicted Kupau of six of the seven counts.

ANALYSIS

A. FBI Agent's Presence

As noted above, certain taped conversations were important evidence in the case against the defendant. The jury desired to hear these conversations again during its deliberations and requested that the court provide someone capable of running the The jury returned to the courtroom after the hearing and was informed by the court that Lui would act as the tape machine technician. The court instructed the jury that Lui "will be here only for the purpose of playing the Nishibayashi tape and the Torres tape. That's just so that by accident somebody doesn't erase the tape and, you know, be in trouble. But, he cannot answer any questions, so don't even talk to him. He'll just be here like a nonentity. And he can't comment as to any evidence...." The district judge also announced that he would clear the courtroom of all but the jury and Lui for the playing of the tapes, which he did. The judge also requested that Lui run the tapes for the jury on a second occasion.

tape player. At a hearing outside the jury's presence, the court decided to allow FBI Agent Hilton Lui to play the tapes for the jury. Lui had played no role in the trial, but apparently had sat at the Government's table during a portion of the trial. Counsel for the defense objected to Lui for this reason.

On appeal the defense argues that it violated the sixth amendment for the court to allow "an FBI agent and the jurors to be alone together without a record of what was said." This argument is new. The defense did not object because the agent and the jury were to be alone in the courtroom during the tape playing. Nor did the defense object because Lui was an FBI agent. The sole reason given the judge to consider in ruling on the objection to Lui was that Lui had sat at the Government's table during the trial, a point not pressed on appeal.

The ground cited on appeal was not raised during the hearing, prior to sentencing when counsel were given further opportunity to "make a record" for appeal, or as part of the motion for a new trial. Where the district court has been denied the opportunity to consider an issue, the appellate courts will not entertain it absent manifest injustice. Professional Seminar Consultants v. Sino Am. Tech., 727 F.2d 1470, 1472 (9th Cir.1984).

There was no objection made to playing the tapes, which the jury quite understandably wished to hear again. There was a problem in providing someone able to operate the equipment and to ensure that the tape would not be erased or otherwise damaged. The judge solved this practical problem by permitting Lui to operate the tape machine but with cautionary instructions. There was no request that the judge or a reporter or counsel remain while the tape was being played to ensure that there was no communication with the jury.

After a case has been submitted to a jury, there are serious concerns about any outside contact with the jury. Special care is taken by the bailiffs and marshals during meals or when attending to the personal needs of the members of the jury to ensure that the jury deliberation is free from outside influence. Here there was a risk that someone associated with the prosecution, while alone with the jury after submission, could, in some fashion, influence its deliberations. In hindsight it would have been better to have run the machine in open court with the reporter, the judge, counsel, and the defendant present. The defense made no objection to the clearing of the courtroom of all but the jury and Lui.

If the jury and Lui followed the instructions of the judge that Lui operate the machine solely as a mechanic and be treated as a non-entity, there was no improper influence on the jury. There is no indication that the instructions were not followed. There is only the potential danger of outside influence on the jury deliberations and the lack of the presence of the judge, counsel, or a reporter to verify that nothing untoward did occur.

With appropriate cautionary instructions having been given and no indication that they were not followed, and with no request having been made for a reporter, the judge, the defendant, or counsel to remain in the courtroom, we find that the procedure followed does not require reversal.

It is apparent that the district court viewed the tape playing as merely mechanical assistance to enable the jury to hear the evidence as a part of the jury's deliberation and not as "a stage of the trial" under Fed.R.Crim.P. 43, at which the presence of the defendant was required. However, the procedure is more properly viewed as a stage of the trial at which the presence of the defendant is required. It differs from the kind of technical assistance rendered by the marshals in dealing with the physical needs of the jury, because it involves the crucial jury function of reviewing the evidence. The defendant did not raise this objection in the district court but has raised it on appeal. We will therefore consider the matter under the plain error standard. We recognize that the defendant had a right to be present when the tape was being played, and this was a right which could not be waived by counsel. Bustamante v. Eyman, 456 F.2d 269, 274 (9th Cir.1972). It was error to permit the playing of the tape without defendant's personal waiver of his right to be present, and it was also error to permit the replay without a reporter present to make a record. Similar errors were, however, held harmless beyond a reasonable doubt in Bustamante v. Cardwell, 497 F.2d 556 (9th Cir.1974). In this case, given the court's emphatic cautionary instructions, the obvious efforts of the court, by clearing the courtroom, to prevent any outside influences, and the absence of any suggestion that extraneous matters came before the jury, we similarly hold that the error was harmless beyond a reasonable doubt.

B. Judge-Jury Ex Parte Communication

During the deliberations the jury sent a series of notes to the court. These ranged in nature from innocuous requests for bus fare, gas money, or early adjournment of the day's deliberations to queries concerning the identities of various witnesses and other substantive matters. ¹ The court informed both Government and defense counsel of each substantive request and obtained their suggested responses. When the court had prepared a response, counsel were informed of its decision and their views were again solicited, before the court finally submitted the response to the jury.

Rule 43 of the Federal Rules of Criminal Procedure provides that "the defendant shall be present ... at every stage of the trial including the impaneling of the jury and the return of the verdict...." That right is not absolute, however, and even involuntary absence may be harmless error. United States v. Ford, 632 F.2d 1354, 1378 (9th Cir.1980). The absence of the defendant during a portion of the trial proceedings is harmless error if there is no reasonable possibility that prejudice resulted from the absence. United States v. Birges, 723 F.2d 666, 670 (9th Cir.), cert. denied, 466 U.S. 943, 104 S.Ct. 1926, 80 L.Ed.2d...