U.S. v. Richardson

Decision Date03 November 2000
Docket NumberNo. 99-11126,99-11126
Citation233 F.3d 1285
Parties(11th Cir. 2000) UNITED STATES of America, Plaintiff-Appellee, v. Phyllis RICHARDSON, Defendant-Appellant.
CourtU.S. Court of Appeals — Eleventh Circuit

[Copyrighted Material Omitted] Appeal from the United States District Court for the Southern District of Florida.(No. 97-08124-CR-DTKH), Daniel T.K. Hurley, Judge.

Before BARKETT, WILSON and MAGILL*, Circuit Judges.

BARKETT, Circuit Judge:

Phyllis Richardson appeals her conviction for embezzlement, money laundering, and mail fraud. The Indictment against Richardson consisted of forty-one counts which included sixteen counts of embezzlement of funds of a federally insured financial institution, in violation of 18 U.S.C. 657; nine counts of mail fraud, in violation of 18 U.S.C. 1341; fifteen counts of money laundering, in violation of 18 U.S.C. 1956(a)(1)(B)(i); and one count of engaging in a monetary transaction involving funds of a value greater than $10,000 embezzled from a financial institution, in violation of 18 U.S.C. 1957. Factually, the Indictment was based upon allegations that between 1986 and 1996, Richardson, while employed at Community Savings Bank, embezzled approximately $870,000 from at least fourteen bank customers and laundered those funds in her own accounts.

After a jury trial, Richardson was found guilty on thirty-eight counts1 and was sentenced to 120 months imprisonment and three years supervised release. The district court also ordered Richardson to pay restitution of $1,215,605.81 and a special assessment of $2,500. On appeal, Richardson argues that three errors by the district court require reversal of her conviction: 1) the district court erred by allowing jurors to submit written questions through the court to witnesses, thereby denying her a fair trial; 2) the district court erred in instructing the jury on the law relating to power of attorney; and 3) the district court erred by admitting into evidence summary exhibits with a column heading labeled "unauthorized activity" when whether that activity was in fact "unauthorized" was a jury issue. We address each of Richardson's contentions in turn.

A. Jury Questioning

At the outset of Richardson's trial, the district court instructed the jury that if they did not understand a part of a witness's testimony they could submit written questions to the court after the lawyers ended the examination of that witness. The court explained to the jurors that some of their submitted questions might not be asked because the question might be improper under the rules of evidence and instructed them not to speculate on what the answer to such questions might be or why the court did not ask a particular question. Richardson did not object to this practice at the time.

Throughout the trial, in accordance with the judge's instructions, jurors occasionally submitted one or more questions for a witness. Upon receipt, the district court would review the questions with the lawyers at sidebar in order to hear, discuss and rule on objections, and then address those questions that were permitted to the witness. At mid-trial, Richardson objected to any future questions by the jury, arguing that the questions demonstrated that the jurors were becoming adversarial and engaging in premature deliberation. The district court disagreed with both of Richardson's contentions and overruled her objection. The court, however, again instructed the jury, explaining that they were allowed to ask questions only for the purpose of clarifying a witness's testimony; that jurors should not become advocates for either side; and that they must decide the case after they retired to the jury room based only the evidence presented to them in court.

During the course of the six-week trial, the court asked witnesses twenty-three sets of questions that had been submitted by the jury. Prior to Richardson's objection, the court had addressed questions to five witnesses based on ten sets of questions submitted by jurors. Following Richardson's objection, jurors submitted thirteen sets of questions to the court, twelve of which were addressed to two witnesses. Most of these questions came during the government's case-in-chief, and the jurors did not ask any questions of Richardson. On appeal, Richardson first argues that permitting jurors to ask any questions at all deprived her of her constitutional right to a fair trial. Alternatively, Richardson argues that at least ten of the questions-all asked after her objection-were specifically prejudicial to her.

Because Richardson did not object to the practice of jury questioning until mid-trial, two standards of review apply. Questions submitted prior to Richardson's objection are reviewed for plain error, see United States v. Olano, 507 U.S. 725, 732-36, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993), while questions submitted after Richardson's objection are reviewed for abuse of discretion. See United States v. Johnson, 914 F.2d 136, 138 (8th Cir.1990). "Plain error, when examined in the context of the entire case, is so obvious that failure to notice it would seriously affect the fairness, integrity and public reputation of judicial proceedings." United States v. Walther, 867 F.2d 1334, 1343-44 (11th Cir.1989). Thus, in order to establish plain error, Richardson must demonstrate prejudice-that is, she must demonstrate that the error affected the outcome of the district court proceedings. See Olano, 507 U.S. at 734, 113 S.Ct. 1770.

As an initial matter, under either standard, we reject outright Richardson's argument that permitting juror questioning of witnesses is per se error. Indeed every circuit to consider the practice has permitted it, holding that the decision to allow juror questioning rests within the discretion of the trial judge. See United States v. Collins, 226 F.3d 457 (6th Cir.2000); United States v. Hernandez, 176 F.3d 719, 724 (3d Cir.1999); United States v. Feinberg, 89 F.3d 333, 336 (7th Cir.1996); United States v. Bush, 47 F.3d 511, 515 (2d Cir.1995); United States v. Cassiere, 4 F.3d 1006, 1017-18 (1st Cir.1993); United States v. Groene, 998 F.2d 604, 606 (8th Cir.1993) ("The use of the procedure itself is not plain error (prejudicial per se)."); United States v. Polowichak, 783 F.2d 410, 413 (4th Cir.1986); United States v. Callahan, 588 F.2d 1078, 1086 (5th Cir.1979) ("There is nothing improper about the practice of allowing occasional questions from jurors to be asked of witnesses.").2 In addition, virtually every state court to consider the issue has permitted jurors to ask questions of witnesses,3 and the legislatures of Arizona and Florida have enacted statutes specifically mandating the practice. Ariz. R. Ct. 39(b)(10); Fla. Stat. ch. 40.50(3).

In American jurisprudence, a jury serves to "assure a fair and equitable resolution of factual issues." Standard Oil Co. of Cal. v. Arizona, 738 F.2d 1021, 1031 (9th Cir.1984) (quoting Colgrove v. Battin, 413 U.S. 149, 157, 93 S.Ct. 2448, 37 L.Ed.2d 522 (1973)). In order to discharge this duty, it is incumbent upon jurors to listen to the evidence, taking care to understand it so that the facts can be determined and then applied to the relevant law. The underlying rationale for the practice of permitting jurors to ask questions is that it helps jurors clarify and understand factual issues, especially in complex or lengthy trials that involve expert witness testimony or financial or technical evidence. If there is confusion in a juror's mind about factual testimony, "it makes good common sense to allow a question to be asked about it." Callahan, 588 F.2d at 1086. "Juror-inspired questions may serve to advance the search for truth by alleviating uncertainties in the jurors' minds, clearing up confusion, or alerting the attorneys to points that bear further elaboration." United States v. Sutton, 970 F.2d 1001, 1005 n. 3 (1st Cir.1992). Indeed "[t]here may be cases ... in which the facts are so complicated that jurors should be allowed to ask questions in order to perform their duties as fact-finders." Feinberg, 89 F.3d at 337; see Sutton, 970 F.2d at 1006 ("Because this was a factually complex case in which a greater-than-average risk of jury confusion existed, the positive value of allowing juror-inspired questioning was relatively high."). Moreover, juror questioning leads to more attentive jurors and thereby leads to a more informed verdict. See Larry Heuer & Steven Penrod, Increasing Juror Participation in Trials: A Field Experiment with Jury Notetaking and Question Asking, 12 Law. & Hum. Behav. 231, 233-34 (1988) (addressing benefits of juror questioning); see also, Sutton, 970 F.2d at 1005, n. 3. ("[I]t is at least arguable that a question-asking juror will be a more attentive juror.").

At the same time, in conjunction with the practice's near unanimous acceptance, courts have cautioned district courts about the possible danger of juror questioning. In particular, courts have expressed concern that juror questioning risks distorting the adversarial process by "turning jurors into advocates, [thereby] compromising their neutrality." Bush, 47 F.3d at 515; United States v. Johnson, 892 F.2d 707, 713 (8th Cir.1989) (Lay, C.J., concurring) ("The fundamental problem with juror questions lies in the gross distortion of the adversary system and the misconception of the role of the jury."). Courts have also expressed concern that juror questioning may be "a subliminal invitation to launch prematurely into evaluating the evidence." Bush, 47 F.3d at 515 (citing DeBenedetto v. Goodyear Tire & Rubber Co., 754 F.2d 512, 517 (4th Cir.1985)). Moreover, courts have noted that the practice can "impale attorneys on the horns of a dilemma" when confronted by an improper juror question. Bush, 47 F.3d at 515- 16. In such a situation, attorneys are faced with the prospect of either "objecting to questions proffered by the arbiters that [they] are...

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