U.S. v. Langford
| Decision Date | 05 April 1993 |
| Docket Number | No. 852,D,852 |
| Parties | 38 Fed. R. Evid. Serv. 1141 UNITED STATES of America, Appellee, v. Edward LANGFORD, M.D., Defendant-Appellant. ocket 92-1353. |
| Court | U.S. Court of Appeals — Second Circuit |
Joseph M. Guerra, III, Asst. U.S. Atty., Buffalo, NY (Dennis C. Vacco, U.S. Atty., W.D.N.Y., on the brief), for appellee.
Douglas W. Rhodes, Buffalo, NY (Edwin Gonzalez, on the brief), for defendant-appellant.
Before VAN GRAAFEILAND, KEARSE, and CARDAMONE, Circuit Judges.
Defendant Edward Langford, M.D., appeals from a final judgment of the United States District Court for the Western District of New York, entered following a jury trial before Richard J. Arcara, Judge, convicting him on five counts of dispensing controlled substances in violation of 21 U.S.C. § 841(a)(1) (1988); five counts of aiding and abetting the unlawful distribution of the same substances, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2 (1988); and conspiracy to commit those offenses, in violation of 21 U.S.C. § 846 (1988). Langford was sentenced principally to 151 months' imprisonment, to be followed by three years' supervised release. On appeal, he contends principally that he is entitled to a new trial because a juror deliberately failed to answer truthfully a question during the jury selection process. For the reasons below, we find no basis for reversal, and we therefore affirm.
A 13-count indictment charged that from approximately January to October 1988, Langford, a physician, unlawfully dispensed prescriptions for a variety of controlled substances. The evidence at trial, the sufficiency of which is not challenged, showed that Langford sold the prescriptions to three persons, Emma Latham, Therman Johnson, and Ronald Wilk, who had them filled and sold most of the drugs. During that period Langford wrote more than 1,500 prescriptions in the names of some 24 persons. Most of the names were provided to Langford by Latham and Johnson; the amounts prescribed greatly exceeded any amount that could have been prescribed legitimately; and no more than one or two of the persons in whose names the prescriptions were written had been Langford's patients.
In addition to placing in evidence 1,577 such prescriptions written during the period covered by the indictment, together with evidence that Langford had written them and had falsely denied having written certain of them, the government introduced testimony by Latham as to her relationship with Langford dating back to 1983. Latham had become Langford's patient in about 1985 and at that time began paying him to write unlawful prescriptions. She told Langford she was selling the drugs. She would visit him every other day and receive 8-20 prescriptions, for which she usually paid him $200-400 and occasionally paid him as much as $1,000. Her purchases continued through the period covered by the indictment. In late 1985, when Langford needed additional money, Latham introduced him to Johnson. Langford proceeded to sell numerous prescriptions to Johnson and his associate Wilk, until Wilk was arrested in October 1988.
Prior to submission of the case to the jury, one count of distribution and one count of aiding and abetting were withdrawn on motion of the government. The jury found Langford guilty on the remaining 11 counts of the indictment.
After the jury returned its verdict, Langford moved pursuant to Fed.R.Crim.P. 33 for a new trial on the ground, inter alia, that juror Vanessa James had concealed during the jury selection process that she had a criminal record. In the voir dire, the court had asked prospective jurors whether The hearing revealed that during the period 1974-1976, James had been arrested three times and charged with prostitution. The arrests resulted in one conviction of a noncriminal infraction, one conviction of a B misdemeanor, and one acquittal. In addition, in 1985, she had been charged with grand larceny, resulting in a conviction of an A misdemeanor with a sentence of conditional discharge.
they or any close friends had "ever been arrested or charged with any offense, federal[ or] state." One potential juror stated that he had previously been arrested for possession of marijuana; another stated that her brother had been arrested in a foreign country for a drug offense. James made no disclosure in response to the court's question. In support of his Rule 33 motion, Langford's attorney submitted an affidavit stating that the attorney had been told by one of James's neighbors that James had been convicted of crimes. The attorney then investigated James's record and found a number of arrests and convictions. The district court held an evidentiary hearing on the motion
At the hearing, James testified that she had not mentioned the 1985 larceny charge because she believed it had ultimately not resulted in a record of arrest or conviction. She stated that it had been her understanding that if she repaid the welfare money that was the basis of that charge, the charge would be dropped and the record expunged. She had repaid the money and believed she had no record of a larceny arrest or conviction.
James acknowledged, however, the accuracy of the record with respect to her arrests in the mid-1970's on prostitution charges. At the time of the trial in 1991, James was employed as a mental health assistant and had just taken board examinations to become a nurse; she had a six-year-old daughter and taught Sunday School. She testified that she had not disclosed the prostitution arrests or convictions because the disclosures would have caused her substantial embarrassment.
James also testified that she had no particular interest in being on the jury to try Langford. She did not know him and had never had any contact with him prior to trial. She testified that she was in no way biased or prejudiced against him. No contradictory evidence was offered. Her neighbor who had spoken to Langford's attorney and who was a friend of Langford, testified that James had never exhibited any hostility toward or dislike of Langford.
After the hearing, the district court denied Langford's motion for a new trial. In a Decision and Order dated December 12, 1991 ("Decision"), it found James's testimony to be
credible, despite the fact that she withheld the information concerning her prior arrests during voir dire. The Court is convinced that the only reason Ms. James withheld this information was to save herself embarrassment. She was not trying to get on the jury, and she had no animosity or "axe to grind" against Langford. There was absolutely no evidence introduced at the hearing to show that Ms. James was in any way biased or prejudiced against Langford.
The court rejected Langford's contention that proof that James had deliberately withheld the truth entitled him automatically to a new trial. Rather, it ruled that in order to succeed in his motion, Langford was required to prove "(1) that Ms. James failed to answer honestly a material question on voir dire; and (2) that a correct response would have provided a valid basis for a challenge for cause." Id. at 6. It found that the second element was unproven. The court noted that none of the convictions was for a felony, which would have automatically disqualified her from sitting on the jury. It found that the prostitution arrests, having occurred 15 or more years before jury selection, did not indicate any bias or prejudice against Langford. And it found that "the evidence at the hearing and otherwise in the record shows absolutely no bias, prejudice or hostility on the part of Ms. James against Langford." Id. at 7. Concluding that Langford had not shown that James would have been excusable for Judgment was entered sentencing Langford as indicated above, and this appeal followed.
cause, the court denied the motion for a new trial.
On appeal, Langford contends principally that a juror's intentional nondisclosure of information during voir dire raises "a per se presumption of bias" that entitles him to a new trial. In addition, he contends that the district court erred in admitting Latham's testimony as to crimes committed by Langford prior to the period covered by the indictment, and in calculating his sentence. We reject all of his contentions. Only the voir dire issue requires extended discussion.
The Supreme Court addressed the principles governing a party's right to a new trial on the ground of juror nondisclosure during voir dire in McDonough Power Equipment, Inc. v. Greenwood, 464 U.S. 548, 104 S.Ct. 845, 78 L.Ed.2d 663 (1984) ("McDonough "). There, a juror had given an honest, though mistaken, response to a voir dire question. The Court observed that
[o]ne touchstone of a fair trial is an impartial trier of fact--"a jury capable and willing to decide the case solely on the evidence before it." Smith v. Phillips, 455 U.S. 209, 217 [102 S.Ct. 940, 946, 71 L.Ed.2d 78] (1982). Voir dire examination serves to protect that right by exposing possible biases, both known and unknown, on the part of potential jurors. Demonstrated bias in the responses to questions on voir dire may result in a juror's being excused for cause; hints of bias not sufficient to warrant challenge for cause may assist parties in exercising their peremptory challenges. The necessity of truthful answers by prospective jurors if this process is to serve its purpose is obvious.
McDonough, 464 U.S. at 554, 104 S.Ct. at 849. The Court noted, however, that the judicial system cannot be held to a standard of perfection, and that unless the correct disclosure would have provided a basis for a challenge for cause, a new trial was not required:
[T]o obtain a new trial in such a situation, a party must first demonstrate that a juror failed to answer honestly...
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