U.S. v. Polowichak
| Citation | 783 F.2d 410 |
| Decision Date | 06 February 1986 |
| Docket Number | Nos. 84-5173,s. 84-5173 |
| Parties | UNITED STATES of America, Appellee, v. Steven J. POLOWICHAK, a/k/a David Dan Dennison, Appellant. UNITED STATES of America, Appellee, v. Robert HOLSHUE, Appellant. UNITED STATES of America, Appellee, v. Walter A.J. PRICKETT, Appellant. UNITED STATES of America, Appellee, v. William J. RAWLE, Appellant. UNITED STATES of America, Appellee, v. James A. RAWLE, Jr., Appellant. UNITED STATES of America, Appellee, v. Walter H. MALDONADO, a/k/a Carl Walter Wedemo, Appellant. UNITED STATES of America, Appellee, v. Edward F. WIESMANN, Appellant. (L), 84-5175, 84-5176, 84-5177 and 84-5198. |
| Court | United States Courts of Appeals. United States Court of Appeals (4th Circuit) |
Sarah F. Crandall, Constance L. Rudnick (Gargiulo & McMenimen; Stephen H. Rosen, Lionel S. Lofton, O. Grady Query on brief) for appellants.
Thomas E. Booth (Henry Dargan McMaster, U.S. Atty., Dale L. DuTremble, Asst. U.S. Atty., Patty Merkamp Stemler, Dept. of Justice, Robert J. Erickson, Deputy Chief, Appellate Section, Dept. of Justice on brief) for appellee.
Before WINTER, Chief Judge, WILKINSON, Circuit Judge, and McMILLAN, United States District Judge for the Western District of North Carolina, sitting by designation.
Seven defendants 1 appeal their jury convictions of various charges stemming from the importation of 111,600 pounds of marijuana, including violations of the Travel Act, 18 U.S.C. Sec. 1952(a)(3). All of the defendants contend that the manner in which the district court conducted the trial deprived them of a fair trial, that the district court committed reversible error by limiting the cross-examination of a government agent designed to reveal the identity of an unapprehended co-conspirator, and that the district court impermissibly amended the indictment when it instructed the jury regarding the charge of conspiracy to import marijuana. All of defendants attack their convictions of violating the Travel Act and aiding and abetting a violation of the Travel Act, contending that the district court committed error in its Travel Act instructions and that the jury's verdict on the Travel Act count was inconsistent with its verdict on other counts.
We conclude that there was reversible error in the submission of the Travel Act charges to the jury. We reverse the convictions of those charges and grant a new trial. Otherwise the judgment of the district court is affirmed.
The six appealing defendants, together with fifteen others, were named in an eleven-count indictment charging a conspiracy to import marijuana into the District of South Carolina (Count 1), conspiracy to possess marijuana with intent to distribute it within the District of South Carolina (Count 2), importation of marijuana (Count 3), possession of marijuana with intent to distribute (Count 4), travel in interstate commerce from Charleston, South Carolina to Philadelphia, Pennsylvania while in possession of marijuana with intent to promote a business involving marijuana (Count 6), similar travel in interstate commerce from Charleston, South Carolina to Middletown, New York (Count 7), and use of a telephone to transmit information between Florida and South Carolina to facilitate a narcotics violation (Count 10). 2 Defendants were convicted as follows:
Briefly stated, the various charges stemmed from the importation of a shipment of 111,600 pounds of marijuana off-loaded from a ship from South America to the Charleston, South Carolina area and trans-shipment of parts of the load, disguised as a load of paper products, to Philadelphia and New York. Other facts concerning the case will be stated in the discussion of the contentions to which they relate.
We consider first the contentions relating to the trial as a whole and then the contentions limited to the convictions under the Travel Act (Counts 6 and 7), and conspiracy to possess marijuana with intent to distribute it (Count 2).
Defendants' contention that they did not receive a fair trial rests upon the cumulative effect of numerous procedural and substantive irregularities. They identify as erroneous the district court's freely inviting and permitting jurors to question witnesses, permitting jurors to take notes, submitting to the jury an unredacted indictment reflecting charges and defendants not on trial, and failing to preserve the jury's written requests for supplemental instructions. While we do not approve of the manner in which the district court conducted the trial in a number of respects, we cannot conclude that the defendants were prejudiced or deprived of a fair trial.
In a case decided after the trial we review, we had occasion to examine at length the subject of questioning by jurors. See DeBenedetto v. Goodyear Tire & Rubber Co., 754 F.2d 512 (4 Cir.1985). 3 There we pointed out the perils of questioning by jurors, and we suggested the means by which those dangers could be held to a minimum. We disapprove of the district court's inviting juror questioning in the instant case as well as permitting a juror to state his question within the hearing of the other jurors. Preferably, the district court should require jurors to submit questions in writing, without disclosing the question to other jurors, whereupon the court may pose the question in its original or restated form upon ruling the question or the substance of the question proper. Although we do not perceive that any question by any juror prejudiced any defendant, we strongly urge the district court in the exercise of its discretion to permit juror questioning in future cases only in strict adherence to the principles of DeBenedetto and what is said herein.
Note taking by jurors is a matter of discretion with the district court. See, e.g., United States v. Rhodes, 631 F.2d 43, 45 (5 Cir.1980). Without doubt, the complexity of a multi-count, multi-party drug prosecution such as the instant case would appear to justify permitting jurors to take notes. See United States v. MacLean, 578 F.2d 64 (3 Cir.1978); United States v. Bertolotti, 529 F.2d 149 (2 Cir.1975). But if jurors are permitted to take notes, they should be instructed that their notes are not evidence and should not take precedence over the jurors' independent recollections of the proceedings. Rhodes, 631 F.2d at 45-56; MacLean, 578 F.2d at 66-67; Bertolotti, 529 F.2d at 160. No such instruction was given in the instant case, but none was requested, and we do not think that the failure to give such an instruction was plain error warranting reversal and a new trial. See Rhodes, 631 F.2d at 45-46; United States v. Marquez, 449 F.2d 89, 93 (2 Cir.1971), cert. denied, 405 U.S. 963, 92 S.Ct. 1173, 31 L.Ed.2d 239 (1972).
The submission of an indictment to the jury is a discretionary matter with the district court. See, e.g., United States v. Coward, 669 F.2d 180, 184 (4 Cir.), cert. denied, 456 U.S. 946, 102 S.Ct. 2014, 72 L.Ed.2d 470 (1982). If the indictment contains irrelevant allegations, ordinarily they should be redacted. But where, as here, the jury is unequivocally instructed that the indictment is not evidence, that the indictment is distributed solely as an aid in following the court's instructions and the arguments of counsel, and that certain counts should be disregarded as irrelevant to the defendants currently before the district court, we perceive no reversible error. See United States v. Coward, supra.
Immediately before the jury began its deliberations, defense counsel requested that any communications from the jury be in writing and that counsel be permitted to address the court as to its proposed response. The district court, however, only permitted counsel to be present when it addressed the jury and entertained objections following the issuance of supplemental instructions. The court summarized each question prior to answering it but did not preserve the questions themselves for the record. On at least two occasions, the district judge returned the jury to its deliberations after issuing supplemental instructions only to recall the jury immediately upon obtaining the views of counsel.
Unquestionably, the district court should obtain the views of counsel before giving a supplementary instruction, should require communications from the jury to be in writing or made in open court, and should preserve written questions as part of the record. See, e.g., United States v. Bascaro, 742 F.2d 1335, 1355 (11 Cir.1984)- ; United States v. Johnpoll, 739 F.2d 702, 710-11 (2 Cir.1984); United States v. McDuffie, 542 F.2d 236, 240-41 (5 Cir.1976). Again, however, we see no prejudice to defendants in the district court's failure to follow the preferred practice.
Finally, we do not think that after giving a supplementary instruction on the law of possession and possession with intent to distribute, the district court committed reversible error in refusing to recall the jury for an instruction that the government had the burden of proving each offense beyond a reasonable doubt. That instruction had been repeatedly given previously and was repeated sua sponte once again in a later supplemental instruction.
We do not think that the district court erred in refusing to compel a government agent to disclose the identity of "Jay", a key co-conspirator still at large. The defense intended to use this information in three ways: (1) to impeach the credibility of Jay's statements as recounted by the agent, (2) to impeach the agent's testimony by showing his selective belief in Jay's statements, and (3) to lead to the discovery of exculpatory evidence. However, the marginal impeachment value of Jay's use of a pseudonym cannot overbalance the public interest in apprehending the fugitive Jay. See Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957).
Similarly, the withholding of Jay's identity did not deprive the defendants of potentially exculpatory evidence in violation of Brady...
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