U.S. v. Love

• Citation: 535 F.2d 1152
• Decision Date: 27 April 1976
• Docket Number: Nos. 75-1590,75-1591,s. 75-1590
• Parties: UNITED STATES of America, Appellee, v. Robert Llewelyn LOVE, Appellant. UNITED STATES of America, Appellee, v. Arthur Luray LYON, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 1152

535 F.2d 1152

UNITED STATES of America, Appellee, v. Robert Llewelyn LOVE, Appellant.

UNITED STATES of America, Appellee, v. Arthur Luray LYON, Appellant.

Nos. 75-1590, 75-1591.

United States Court of Appeals Ninth Circuit.

April 27, 1976.

As Amended on Denial of Rehearing in No. 75-1590 May 27, 1976.

Rehearing Denied in No. 75-1591 June 1, 1976.

Thomas J. McLaughlin (argued), Phoenix, Ariz., for appellants.

Thomas N. Crowe, Asst. U. S. Atty. (argued), Phoenix, Ariz., for appellee.

OPINION

Before HUFSTEDLER, KILKENNY and SNEED, Circuit Judges.

KILKENNY, Circuit Judge:

Appellants were indicted, tried by a jury, and convicted of numerous violations of 18 U.S.C. § 1341, the Mail Fraud statute. They were indicted with three others, one defendant entered a plea of guilty and another was found not guilty. Love was convicted on eight counts. Lyon was convicted on nine counts. The fifth, also convicted, is not a party to this appeal.

FACTUAL BACKGROUND

We agree with appellee that the contentions on appeal do not require an exhaustive review of the evidence. The evidence presented by the government, if believed, was sufficient to show that appellants, with the others named in the superseding indictment, participated in the operation of an illegal scheme under which victims were induced to make investments on which a high interest rate was promised. Investments were generated in response to newspaper and direct mail solicitations with most of the investments being made in response to advertisements in two newspapers, each with large circulations, published in the state of Arizona. Over two hundred solicitations appeared in each newspaper between April 22, 1972, and July 18, 1973. The advertisements, quite uniformly, promised an investor 12 percent interest on his money, payable monthly, the principal to be returned in one year with all investments "100% secured." The newspaper advertisements were followed by a series of mail solicitations.

Contrary to the representations in the newspaper articles and the mail solicitations, the appellants and their co-indictees had no assets to secure any investments and operated no finance company, other than placing a name on an office door. The only interest paid to investors was that which was paid out of the principal of their own investments.

THE COMMON APPEALS

One issue is common to both appeals. Both appellants moved for a mistrial on the ground of misconduct of a juror during the course of the trial and the alleged failure of the court to hold an adequate hearing on the juror's conduct.

On the opening day of a nine day trial, the court ordered members of the jury not to discuss the merits of the case or anything about it among themselves or with anyone else until the case was submitted for deliberation at the end of the trial.

Despite this cautionary instruction, the juror Quail, an obvious busybody, called a courtroom deputy clerk and started a general discussion of the witnesses and the trial in general, and made other calls of like nature. Appellants do not challenge this conduct. However, during the lunch recess on the sixth day of the trial, Quail observed juror Russey and appellant Love sitting on a bench at a bus stop and seemingly engaged in conversation. Immediately after lunch, Quail reminded Russey of the court's admonition. This was in the presence of all jurors save one. She suggested that the juror's conduct should be reported to the judge.

The juror MacIntosh also observed the occurrence at the bus stop and also inquired whether Russey should report the matter to the court. Appellants concede that the conversation between Russey and Love on the bus stop bench was entirely innocent. One was sitting at one end of the bench and the other some distance away. As an automobile passed by, Russey said that he would give a hundred dollars for it, and Love responded that the owner might accept. Immediately after this exchange, appellant Love reported the occurrence to his lawyer and the extent of the conversation. His lawyer felt the incident was so innocuous as not to require a report to the court.

After being advised of the incident and after discussions with counsel, the court decided to hold a hearing and explore: (1) the significance of the bus stop contact between Russey and Love, and (2) the importance of the subsequent conversation in the jury room between Quail and Russey relating to the bus stop incident.

The first issue was evidently resolved to the satisfaction of everyone, although at the time appellant Lyon's attorney had a fear that the incident might prejudice his client because juror Russey might have been impressed with his conduct and consequently turn his wrath on the other defendants.

On the appeal, however, both appellants emphasize the second issue and urge that the conversation between Quail and Russey in the jury room created an atmosphere prejudicial to both appellants. It is argued that the conversation was prejudicial (1) because Quail, in front of the jury, accused Love and Russey of misconduct, and (2) because the jury never learned of the innocence of the incident. We hold that the record does not support these contentions. Conceding that Quail accused Russey of a violation of the court order in front of all but one juror, the record also reveals that Russey explained the innocence of the affair to the jurors present. During the course of the hearing, Quail testified she told Russey that he had violated the order and should report the incident to the judge. The court thereupon asked Quail what Russey had said in response to her accusation. Her answer, ¹ and other testimony, ² set forth in the footnotes, demonstrate that the innocence of the conversation was made clear to the jury. Even a casual reading of Quail's testimony makes it manifest that when confronted in the jury room, Russey emphasized that he and Love were just talking about the price and model of an automobile. That Russey explained to all eleven jurors who were present is made even clearer by his own testimony. ³ The testimony in the footnotes demonstrates that Russey told all members present in the jury room that the bus stop bench conversation had nothing whatsoever to do with what was going on in court.

Thus, the undisputed evidence at the hearing shows that when Quail confronted Russey in the jury room, eleven members of the jury were present. She told him that he had been seen talking to Love, that this violated the court's order and that he should report this to the court. Russey explained that the conversation with Love had nothing whatsoever to do with the trial, but with the price and model of an automobile. Quail insisted that he should report it to the court anyway because "The little book" said they weren't supposed to talk at all. The twelfth member of the jury was not present but, insofar as the record discloses, heard nothing whatsoever about the incident. Russey testified that none of the other jurors said anything. Quail said that MacIntosh, who had also observed the exchange, had decided that the incident was trivial.

Appellant Lyon's additional contention that prejudice resulted from the bus stop conversation because the other jurors did not know " . . . whether or not the communication concerned the trial . . . " is refuted by Russey's testimony and there is no evidence to the contrary. We believe that any possible prejudice that might be implied from Quail's concern was completely eliminated when the court excused her from further participation in the trial.

At this point we observe that appellants' counsel stood on their motions for a mistrial and did not press the court for an instruction to disregard the incident, which the court indicated it would give. Evidently, counsel thought that the giving of such an instruction would just emphasize the incident.

CONTROLLING AUTHORITIES

Both the government and appellants rely, in large measure, on Remmer v. United States, 347 U.S. 227, 74 S.Ct. 450, 98 L.Ed. 654 (1954). Remmer had been convicted in a jury trial of willful evasion of income taxes. During the course of the trial, an unnamed third person approached a juror and told him it would be profitable to find for Remmer. The juror reported the incident to the court. The incident and the subsequent FBI report were considered only by the prosecutors and the judge. The Supreme Court vacated the judgment and remanded to the district court with instructions to hold a hearing to determine whether the entire incident was prejudicial to defendant and, if so, to grant a new trial. The Court there said that "in a criminal case, any private communication, contact, or tampering, directly or indirectly, with a juror during a trial about the matter pending before the jury is, . . . presumptively prejudicial," Id. at 229, 74 S.Ct. at 451, 98 L.Ed. at 656, but that the presumption was not conclusive, the burden being on the government, after notice to defendant and a hearing, to show that such contact with the juror was harmless. The Remmer Court went on to say that in the hearing the court should determine the consequences, the impact thereof upon the juror, and whether or not it was prejudicial, with all interested parties being permitted to participate.

Manifestly, Remmer is to be distinguished from the case before us. On our record, we are not dealing with a private communication between a juror and someone who is obviously interested in the acquittal of a defendant. The record before us clearly demonstrates that the conversation between the juror and the appellant Love was entirely innocent. Beyond that, the court followed the mandate of Remmer and held a hearing with all interested parties being permitted to participate.

Somewhat more closely in point is Parker v. Gladden, 385 U.S. 363, 87 S.Ct. 468, 17 L.Ed.2d 420 (1966). There, the court bailiff in speaking of the defendant, told a juror, "Oh that wicked fellow he is guilty." D...