U.S. v. Prawl, 885

• Decision Date: 19 February 1999
• Docket Number: D,No. 98-1259,No. 885,885,98-1259
• Citation: 168 F.3d 622
• Parties: 51 Fed. R. Evid. Serv. 600 UNITED STATES of America, Appellee, v. Arlynton L. PRAWL, a/k/a Pooh, Defendant-Appellant. ocket
• Court: U.S. Court of Appeals — Second Circuit

Page 622

168 F.3d 622

51 Fed. R. Evid. Serv. 600

UNITED STATES of America, Appellee, v. Arlynton L. PRAWL, a/k/a Pooh, Defendant-Appellant.

No. 885, Docket No. 98-1259.

United States Court of Appeals, Second Circuit.

Argued Dec. 8, 1998.

Decided Feb. 19, 1999.

John Humann, Buffalo, NY (Federal Public Defender's Office, Western District of New York, Marybeth Covert, Research & Writing Specialist, on the brief), for Defendant-Appellant.

James P. Kennedy, Jr., Assistant United States Attorney, Buffalo, NY (Denise E. O'Donnell, United States Attorney for the Western District of New York, on the brief), for Appellee.

Before: WINTER, Chief Judge, OAKES and JACOBS, Circuit Judges.

JACOBS, Circuit Judge:

Arlynton Prawl appeals from his conviction on four drug-related offenses in the United States District Court for the Western District of New York (Elfvin, J.). The district court omitted from the jury charge several instructions requested by Prawl, including: one directing the jury to disregard the guilty plea of a testifying co-defendant (a Mr. Graham) when assessing the charges against Prawl; and four advising wary consideration of testimony by government witnesses who are accomplices or informers, or beneficiaries of immunity or plea agreements. We conclude that the omission of the instruction concerning the guilty plea of a co-defendant was error; that the failure of the charge taken as a whole to express the substance of the four other requested instructions prevents us from relying on the testimony of the cooperating witnesses to support a finding of no prejudice; and that the judgment of conviction must therefore be vacated. Prawl also challenges the omission of certain other charges; alleges a violation of the rule requiring the court to inform counsel of its proposed jury charge in advance; and argues that the court erred in not declaring a mistrial on two occasions. We need not decide whether these arguments furnish additional grounds for vacating the judgment.

BACKGROUND

In June, 1995, postal inspector Ronald Meesig obtained a search warrant for three Express Mail packages routed from Los Angeles to Buffalo. After discovering that they contained marijuana, he made controlled deliveries, one to addressee Valerie McCoy, and the others to an address where the packages were received by Errol Graham.

McCoy testified that she was (at that time) Prawl's girlfriend, that Prawl had on other occasions arranged for her to receive mailings of parcels containing marijuana for pick up by him, and that as to the shipment that became the subject of a controlled delivery, Prawl had arranged for her to call one "John" to pick it up when it arrived. After her arrest, McCoy agreed to make a controlled delivery to "John," who turned out to be an unsuspecting college student, John Batson. McCoy testified that, as of the time of trial, she had not been charged with any offense, but understood that she remained subject to possible prosecution (as she was).

Batson testified that Prawl lent him a car, and asked him to pick up a package from McCoy, but did not say what the package contained.

Errol Graham and David Sawyers testified that they and Prawl, who were old friends, had worked together to distribute marijuana in Buffalo, and that Prawl supplied the drug from sources in California. Typically, Prawl and Graham would wire money to California, and packages of marijuana would be shipped to them in Buffalo. Graham testified that he and Prawl had arranged eight or nine shipments in this way, including the controlled deliveries.

Graham testified pursuant to a cooperation agreement in which he agreed to plead guilty to one count of conspiracy to possess marijuana, 21 U.S.C. §§ 844(a) and 846. The prosecutor elicited the fact of Graham's guilty plea during direct examination, and read to the jury the information in which At the close of the evidence, Judge Elfvin conducted a charge conference. Prawl's lawyer asked whether Judge Elfvin intended to give the jury nine proposed instructions counsel had previously submitted. ¹ One of those requested charges, drawn from the reference work, 1 Leonard B. Sand et al., Modern Federal Jury Instructions Instruction 7-10, at 7-46 (1998), was the following:

Graham was charged. At the time of trial, Graham faced a deportation order but had not yet been sentenced. Sawyers had not been charged.

Government Witness--Not Proper To Consider Guilty Plea

You have heard testimony from a government witness who pled guilty to charges arising out of the same facts as this case. You are instructed that you are to draw no conclusions or inferences of any kind about the guilt of the defendant on trial from the fact that a prosecution witness pled guilty to similar charges. That witness' decision to plead guilty was a personal decision about his own guilt. It may not be used by you in any way as evidence against or unfavorable to the defendant on trial here.

The ensuing colloquy between the court and Prawl's lawyer imperfectly disclosed the court's intentions regarding the charge. One could read the exchange to indicate that the court would deliver all nine requested instructions in substance. Certainly, the court did not reject them.

In particular, the transcript includes the following exchange on the requested instruction concerning Graham's guilty plea:

Mr. Humann [Prawl's attorney]: ... There was a, on page nine of mine, Judge, Errol Graham pled guilty to crimes arising out of this incident and I think I'm entitled to have the jury told that they * * * [c]annot consider the fact that he pled guilty to a piece of paper that alleges he conspired with my client, that's no evidence against my client.

The Court: Oh no--I'll tell them they have to find the involvement by the particular individual, Mr. Prawl.

The court did not provide counsel with a copy of the charge it intended to deliver.

During closing arguments, Prawl's lawyer alluded to requested instructions. At one point, he advised the jury that "the Judge will give you all kinds of tools for" evaluating witnesses' credibility; at another point, he told the jury that the judge would charge on how to assess the credibility of a felon.

When the court delivered the charge, none of the nine instructions at issue on appeal were given verbatim. Elements of some of the instructions were incorporated into a general credibility charge; others were omitted altogether.

After the charge, the court solicited any objections in writing. Defense counsel handed up a note reminding the court about the nine requested instructions, and the Judge then supplemented his charge as follows:

Mr. Humann has handed up to me, already been covered I think adequately, but I will say and I think it's obvious to you and more so in this case than probably any other that believability of witnesses and evidence is a great factor in this case. You will be able to deal with that out of listening to the witnesses, having watched their demeanor, having known their background and out of your own experiences in life.

After excusing the jury, the judge told defense counsel that he had "looked at [the nine requested instructions] again and capsulized the matter in this aspect of believability which is present, as an issue in this case more so than in many cases." Defense counsel emphasized that he nonetheless had a "particular problem" with the charge because Defense counsel reiterated that the "specifics" of the instructions were significant, and began going through them one by one, but the court stopped him and noted counsel's exception to the charge. After two hours of deliberations, the jury convicted Prawl on four counts ² and acquitted him of a simple possession count.

"I relied on the fact that I thought the Court was going to give the instructions, as I set forth in, I think for the record, I should say I asked the Court to give." The judge responded that he never "give[s] word for word what are requested, even though I say, you know, that this will be in there. It's covered in substance and in my words in my charge." Although the judge had not advised defense counsel of that practice, he expressed confidence that he had done so in other cases in which the same lawyer had appeared.

DISCUSSION

A. Co-Defendant's Guilty Plea

We will vacate a conviction on account of a missing requested instruction if (1) the requested instruction was legally correct; (2) it "represents a theory of defense with basis in the record that would lead to acquittal"; and (3) "the theory is not effectively presented elsewhere in the charge." See United States v. Vasquez, 82 F.3d 574, 577 (2d Cir.1996). We have already held that when there is a basis for an instruction concerning a co-defendant's guilty plea, an appropriate instruction must be given if requested, and that "[a] ruling of reversible error must follow unless we conclude there existed no reasonable possibility of prejudice." United States v. Ramirez, 973 F.2d 102, 105 (2d Cir.1992) (internal quotation marks omitted) (quoting United States v. Mackey, 915 F.2d 69,75 (2d Cir.1990)); see also United States v. Toliver, 541 F.2d 958, 967 (2d Cir.1976) (noting importance of instruction on this subject); United States v. Light, 394 F.2d 908, 914 (2d Cir.1968) (same); United States v. Kelly, 349 F.2d 720, 767 (2d Cir.1965) (same).

A limiting instruction is justified when evidence--such as the guilty plea of a testifying co-defendant--is admissible for a limited purpose but might also be considered for a purpose that is impermissible. See Fed.R.Evid. 105. A co-defendant's guilty plea may be admissible to impeach a government witness, or may upon occasion be brought out on the government's direct examination in order to anticipate and defuse a cross-examiner's effort to impeach credibility on that basis. See, e.g., Government of Virgin Islands v. Mujahid, 990 F.2d 111, 115 (3d Cir.1993). When a plea is introduced for any proper reason,...