U.S. v. Middlebrooks, 79-5191

• Decision Date: 02 June 1980
• Docket Number: No. 79-5191,79-5191
• Citation: 618 F.2d 273
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. David Leslie MIDDLEBROOKS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 273

618 F.2d 273

UNITED STATES of America, Plaintiff-Appellee, v. David Leslie MIDDLEBROOKS, Defendant-Appellant.

No. 79-5191.

United States Court of Appeals Fifth Circuit.

June 2, 1980.

Rehearing Granted Aug. 14, 1980.

Paul G. Komarek, Lynn Haven, Fla. (Court-appointed), for defendant-appellant.

Nicholas P. Geeker, U. S. Atty., Pensacola, Fla., Donald S. Modesitt, Asst. U. S. Atty., Tallahassee, Fla., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of Florida.

Before AINSWORTH and HENDERSON, Circuit Judges, and HUNTER ^*, District Judge.

HENDERSON, Circuit Judge:

David Leslie Middlebrooks was indicted by a grand jury in the Northern District of Florida for knowingly conspiring with various persons to possess with the intent to distribute marijuana (Count One) and conspiring with the same persons to possess with the intent to distribute cocaine (Count Two). 21 U.S.C.A. §§ 841(a)(1), 846.

At the time of his alleged participation in the conspiracies, the defendant was a deputy sheriff in Bay County, Florida. At the trial, the government sought to prove that his co-conspirators paid the defendant to keep them informed of local drug enforcement activities, especially the authorities' knowledge of the co-conspirators' illegal drug operation. ¹

The jury returned a verdict of guilty on both counts and the district judge sentenced the defendant to five years on each count, to run concurrently, as well as a concurrent special parole term of three years, imposed pursuant to the provisions of 21 U.S.C.A. § 841(b)(1)(A). In this appeal he raises a number of issues.

At the trial, the government introduced tapes of telephone conversations made during a court-ordered wiretap of Louie Hyde's residence telephone. The district court denied the defendant's motion to suppress the contents of the intercepted conversations and the defendant appeals that ruling on the basis of statements made at the trial by Drug Enforcement Agent Clarence S. Rowell, Jr. The defendant charges that Agent Rowell, upon whose affidavit the wiretap authorization was granted, testified that he had no idea of how many surveillances of the illegal drug operations were made prior to the wiretap application, or when or where they took place, and thus his statement in the affidavit that normal investigatory techniques had failed was untruthful. The defendant makes a similar attack on Agent Rowell's veracity based on his statement at the trial that he did not believe there was any direction of surveillance.

The defendant takes Agent Rowell's testimony completely out of context. Agent Rowell actually said that there was no way he could remember the number or location of all surveillances made before he applied for a wiretap, although he affirmed that an extensive investigation took place. We note also that in United States v. Hyde, 574 F.2d 856, 867-69 (5th Cir. 1978), an exhaustive review was made of the investigative procedures used by the government before this same wiretap and the panel was satisfied that normal surveillance techniques had indeed failed. And, in making his statement concerning the "direction of surveillance," Agent Rowell was simply stating that he personally did not direct the investigation at this time, but rather that it was a joint operation of several law enforcement agencies. The district court was correct in denying the motion to suppress.

The most troubling assignment of error is the defendant's contention that he did not get a fair trial because of the district judge's conduct. He points to several instances where the judge interjected himself into the trial by questioning witnesses, telling the defendant's attorney that he was going into irrelevant matter, complaining about too many bench conferences, and warning the defendant's attorney that he should move faster. Only three of these occurrences warrant our attention. The rest either took place outside the presence of the jury or were legitimate attempts by the trial judge to control the proceedings.

John Louie Johnson, a defense witness, testified that while he was a police officer the defendant told him about his brother Joe Middlebrooks' involvement in illegal drug trafficking, and sought his advice as to what he should do about it. Johnson related that he set up a meeting between Agent Rowell and the defendant at which time they discussed the problem. After the government's cross-examination of Johnson, the judge asked the witness why the defendant would have come to him, a law enforcement officer, concerning his brother's implication in criminal activity. While this may not have been the judge's purpose, the jury could have concluded that he was questioning the witnesses' credibility. ²

Tondola Evans, a crucial witness for the defense who had been closely connected with the co-conspirators, testified that the defendant was not connected with the drug conspiracies. The district judge interrupted the government's cross-examination to ask her several questions about her motive in testifying, clearly indicating that he doubted her credibility. ³

Finally, David Middlebrooks took the stand in his own behalf. During his testimony the judge interrupted him two times to get him to clarify his answer. And, while the government was cross-examining the defendant, the judge interrupted to admonish him to answer a question with a "yes" or a "no." ⁴

A judge may question a witness but he must be "careful to preserve an attitude of impartiality and guard against giving the jury any impression that the court (is) of the opinion that the defendant (is) guilty." Gomila v. United States, 146 F.2d 372, 374 (5th Cir. 1944).

When a judge interjects himself into a trial by questioning witnesses, the judge places the opposing counsel in a disadvantageous position. The attorney may hesitate to object to the judge's examination for fear of creating a conflict, or appearing to create a conflict, between the judge and himself. Therefore, when the attorneys are competently conducting their cases, it is improper for the trial judge to question the witness.

United States v. Daniels, 572 F.2d 535, 541 (5th Cir. 1978) (emphasis added, citation omitted). Accord, United States v. Welliver, 601 F.2d 203, 208-09 (5th Cir. 1979). While error may sometimes be cured by an instruction to the jury to disregard the judge's questions or comments, some remarks are so prejudicial that even the strongest admonition to the jury will not suffice. Bursten v. United States, 395 F.2d 976, 983 (5th Cir. 1968).

Looking at the proceedings as a whole, we are satisfied that the defendant received a fair and impartial trial. The judge's questions of Johnson and Evans were not exactly a model of judicial decorum, particularly the judge's critical interrogation of Evans. And, while his remarks to the defendant were a sincere attempt to clarify his answers, they too should have been phrased differently. When a defendant takes the stand in his own behalf, any unnecessary comments by the court are too likely to have a detrimental effect on the jury's ability to decide the case impartially. "It is well known . . . that juries are highly sensitive to every utterance by the trial judge, the trial arbiter . . . ." Bursten v. United States, 395 F.2d at 983. This is especially true where the judge's remarks are directed to the defendant. In this instance, though, the judge strongly admonished the jury that they must ignore any opinions as to the facts which the court may have given during the trial, and that they were the sole arbiters of the credibility of the witnesses. ⁵ These were isolated incidents in a four-day trial in which there was ample evidence upon which to convict the defendant for his part in the marijuana conspiracy.

The defendant's contentions that the trial court erred in imposing two concurrent three-year special parole terms and in refusing to allow into evidence results of a polygraph test are foreclosed by Cantu v. United States, 598 F.2d 471 (5th Cir. 1979), and United States v. Frogge, 476 F.2d 969 (5th Cir.), cert. denied, 414 U.S. 849, 94 S.Ct. 138, 38 L.Ed.2d 97 (1973), respectively; see also United States v. Masri, 547 F.2d 932, 936 (5th Cir.), cert. denied, 434 U.S. 907, 98 S.Ct. 309, 54 L.Ed.2d 195 (1977).

Equally without merit is the defendant's insistence that the trial court erred in refusing to give his requested jury instructions numbered 8 and 10, which stated, in essence, that more is required for conviction than association with alleged co-conspirators or performance of an act which aids the conspiracy. The court charged that mere presence, similarity of conduct or association did not necessarily establish proof of a conspiracy, that one with no knowledge of the conspiracy who happens to act in a way that advances the objective of the conspiracy does not thereby become a conspirator, that the gist of conspiracy is an agreement to disobey the law, that the defendant must have willfully become a member of the conspiracy, and that the defendant must have had specific intent. Both "willfully" and "specific intent" were defined for the jury. This instruction adequately covered the same points addressed by the defendant's requested charges, and, in fact, stated the same principles more clearly and articulately.

The defendant makes his most vigorous attack on the sufficiency of the evidence supporting his conviction. The essence of a conspiracy is an unlawful agreement. ⁶ Iannelli v. United States, 420 U.S. 770, 95 S.Ct. 1284, 43 L.Ed.2d 616, 622 (1975). The conspirator must knowingly agree to join others to bring about a common goal. United States v. Perez, 489 F.2d 51, 61 (5th Cir. 1973), cert. denied, 417 U.S. 945, 94 S.Ct. 3067, 41 L.Ed.2d 664 (1974). However, proof that a defendant may have intentionally aided a criminal act or that he may have intended to do so in the future is not sufficient; the government must show the...