U.S. v. Rhodes

Citation631 F.2d 43
Decision Date17 November 1980
Docket NumberNo. 79-5492,79-5492
PartiesUNITED STATES of America, Plaintiff-Appellee, v. James Fred RHODES, Jr., a/k/a Allan Duncor, Defendant-Appellant. . Unit B
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

Walter E. Gwinn, Miami, Fla., for defendant-appellant.

Melissa S. Mundell, William H. McAbee, II, Asst. U.S. Attys., Savannah, Ga., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Georgia.

Before GEWIN, RONEY and FRANK M. JOHNSON, Jr., Circuit Judges.

FRANK M. JOHNSON, Jr., Circuit Judge:

James Fred Rhodes, Jr., was convicted of conspiracy to import marijuana into the United States in violation of 21 U.S.C.A. §§ 952(a), 963 and conspiracy to possess with intent to distribute marijuana in violation of 21 U.S.C.A. §§ 841(a)(1), 846. He appeals, urging as error that, first, the trial court erred by failing to rule on his motion for judgment of acquittal at the close of the Government's case; second, the evidence is insufficient to support the conviction; and, last, the trial court erroneously permitted jurors to take notes during the trial and use the notes during deliberations. We find no reversible error and accordingly affirm.

Defendant Rhodes moved for judgment of acquittal at the close of the Government's case. The trial court deferred ruling on the motion, and Rhodes then presented evidence in his behalf. Rhodes now argues that the court erred in deferring its ruling. We agree that the trial court erred, but we find the error harmless.

It is settled law in this Circuit that, when a motion for judgment of acquittal is made at the close of the Government's case, the trial court is not permitted to reserve its ruling. Montoya v. United States, 402 F.2d 847, 849 (5th Cir. 1968). Rather, the trial court must issue its ruling before the defense presents its case. If upon denial of the motion the defendant presents evidence, the defendant foregoes or waives appellate review of the denial of the motion. E.g., United States v. White, 611 F.2d 531, 536 (5th Cir. 1980); United States v. Evans, 572 F.2d 455, 479 (5th Cir.) cert. denied, 439 U.S. 870 (1978); United States v. Perez, 526 F.2d 859, 863 (5th Cir. 1976). This so-called "waiver rule" is founded on the principle that, if a defendant "presents the testimony of himself or of others and asks the jury to evaluate his credibility (and that of his witnesses) against the government's case, he cannot insulate himself from the risk that the evidence will be favorable to the government." United States v. Belt, 574 F.2d 1234, 1236-37 (5th Cir. 1978).

Nevertheless, if the trial court erroneously defers ruling on the motion for acquittal and the defendant presents evidence, the appellate court in reviewing the sufficiency of the evidence will only consider the evidence presented in the Government's case-in-chief. United States v. Cook, 586 F.2d 572 (5th Cir. 1978); Cooper v. United States, 321 F.2d 274 (5th Cir. 1963). Even though this limited review has the effect of undermining the waiver rule by excluding from appellate review all evidence presented by the defendant, application of any other rule would penalize a defendant for a trial court's refusal to issue a ruling at the time clearly required by our previous cases.

Defendant Rhodes was entitled to a ruling on his motion before he presented his case. Although the trial court erred, the error is harmless if the evidence presented in the Government's case-in-chief is sufficient to support the verdict. Thus, in reviewing the sufficiency of the evidence we confine our review to the evidence presented in the Government's case-in-chief. Examining the evidence thus limited, we nevertheless find that the evidence is sufficient 1 to support the jury's determination that the alleged conspiracies existed and that Rhodes knew of and knowingly and voluntarily joined the conspiracies. 2 See United States v. Alvarez, 625 F.2d 1196 (5th Cir., 1980) (en banc).

Defendant Rhodes also argues that the trial court should not have allowed the jurors to take notes during the trial and to use those notes during deliberations without giving an instruction concerning the proper use of the notes. During the trial, defense counsel noticed that a juror was taking notes and, at a bench conference, objected. At that time the trial court promised to instruct the members of the jury that they take care not to be distracted and not to miss any of the evidence. Immediately before the next recess, the trial judge cautioned the jury as follows:

I noticed that some of you are taking notes. I am not going to prohibit you from taking notes; however, I want to caution you that when you are taking notes, not to allow yourself to become so engrossed in note taking that you might overlook the testimony of some witness on the stand at that time.

No other reference to note taking was made until after the jury retired. At that time the defendant requested that the court collect the notes from the jurors and not permit the jurors to take the notes into the deliberations. The court refused.

Allowing jurors to take notes and use them during deliberations is a matter within the discretion of the trial court; absent abuse of discretion, the action of the trial court will not be disturbed. United States v. Pollack, 433 F.2d 967 (5th Cir. 1970); see, e.g., United States v. Johnson, 584 F.2d 148 (6th Cir. 1978); United States v. Maclean, 578 F.2d 64 (3d Cir. 1978); United States v. Anthony, 565 F.2d 533 (8th Cir. 1977); United States v. Riebold, 557 F.2d 697 (10th Cir.), cert. denied, 434 U.S. 860, 98 S.Ct. 186, 54 L.Ed.2d 133 (1977); United States v. Bertolotti, 529 F.2d 149 (2d Cir. 1975); United States v. Braverman, 522 F.2d 218 (7th Cir.), cert. denied, 423 U.S. 985, 96 S.Ct. 392, 46 L.Ed.2d 302 (1975); Toles v. United States, 308 F.2d 590 (9th Cir. 1962), cert. denied, 375 U.S. 836, 84 S.Ct. 79, 11 L.Ed.2d 66 (1963); Goodloe v. United States, 188 F.2d 621 (D.C.Cir.1950), cert. denied, 342 U.S. 819, 72 S.Ct. 35, 96 L.Ed. 619 (1951); Chicago & N.W. Ry. v. Kelly, 84 F.2d 569 (8th Cir. 1936). Trial courts often allow jurors to take notes in simple as well as complex cases, and it is within their discretion to do so. See Gates v. L. G. DeWitt, Inc., 528 F.2d 405, 413, corrected on other grounds, 532 F.2d 1052 (5th Cir. 1976). While it is the better practice for a trial court to explain to the jury the...

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