U.S. v. Robinson

• Decision Date: 21 November 1980
• Docket Number: D,Nos. 922,932 and 933,s. 922
• Citation: 635 F.2d 981
• Parties: 7 Fed. R. Evid. Serv. 663 UNITED STATES of America, Appellee, v. Warren ROBINSON, Clarence Jackson, a/k/a "Bubba," and Bernard Wright, a/k/a "Block," Defendants-Appellants. ockets 79-1361, 79-1378 and 79-1379.
• Court: U.S. Court of Appeals — Second Circuit

Page 981

635 F.2d 981

7 Fed. R. Evid. Serv. 663

UNITED STATES of America, Appellee, v. Warren ROBINSON, Clarence Jackson, a/k/a "Bubba," and Bernard Wright, a/k/a "Block," Defendants-Appellants.

Nos. 922, 932 and 933, Dockets 79-1361, 79-1378 and 79-1379.

United States Court of Appeals Second Circuit.

Argued March 31, 1980.

Decided Nov. 20, 1980.

As Amended Nov. 21, 1980.

Victor J. Herwitz, New York City (Donald E. Nawi, New York City, of counsel), for defendant-appellant Robinson.

Joel A. Brenner, East Northport, N.Y., for defendant-appellant Jackson.

Domenick J. Porco, New York City, for defendant-appellant Wright.

Richard F. Lawler, Asst. U. S. Atty., New York City (John S. Martin, Jr., U. S. Atty. for the Southern District of New York, Mary Jo White, Asst. U. S. Atty., New York City, of counsel), for appellee.

Before MANSFIELD, VAN GRAAFEILAND, and NEWMAN, Circuit Judges. ^*

MANSFIELD, Circuit Judge:

Warren Robinson, Clarence Jackson and Bernard Wright appeal from judgments of the District Court for the Southern District of New York convicting them after a jury trial of conspiracy to violate federal narcotics laws, 21 U.S.C. § 846, of engaging in a continuing criminal narcotics enterprise, 21 U.S.C. § 848, and of distribution of heroin, 21 U.S.C. 841, and, in addition, convicting appellant Robinson of obstruction of justice, 18 U.S.C. 1503. ¹ Appellants contend that they were deprived of a fair trial by intrusive misconduct of the trial judge, that the judge improperly implied to the jury his belief in the veracity of Government witnesses and in appellant Wright's guilt, that the court erroneously admitted prejudicial evidence, and that the sentence imposed upon appellant Robinson was excessive. We affirm.

The proof of the defendants' guilt, construed in the Government's favor, was overwhelming. Beginning in 1975 Robinson, who was then in prison on other federal narcotics charges, formed a small group through which substantial quantities of pure heroin were smuggled into the United States from Amsterdam, Holland, and distributed in New York City and Washington, D.C. Appellants Jackson and Wright supplied most of the funds used to buy the heroin in Holland and successively served as the principal distributors after it was smuggled into the United States. Helena Garces, a close friend of Robinson, served as the main link with the Amsterdam suppliers, visiting them in Amsterdam at Robinson's directions, purchasing the heroin from them and smuggling it on her person into the United States where she turned it over to Wright. In furtherance of the conspiracy Garces also made one trip in May 1976 to Amsterdam with a friend, Aileen Martin, whom she induced to act as a drug courier, obtaining heroin which was smuggled into the United States and delivered to Wright, and a trip in June 1976 with a courier-friend, Myrna Rivera, with whom another heroin smuggling operation was completed.

In August 1976 Garces was arrested in Amsterdam while on a heroin purchasing expedition. She signed a statement admitting illegal drug purchasing but containing untruths. After her return to the United States, she and Jackson, who was brought into the conspiracy by Robinson to succeed Wright, purchased and smuggled more heroin from Amsterdam into the United States with the assistance of Ramona Manners, Jackson's friend, who acted as courier. In the United States the heroin, with the help of subordinate co-conspirators, was packaged and distributed. There followed more successful smuggling trips in which others participated.

In the meantime the Government embarked upon investigation and prosecution of the participants in the conspiracy. Efforts were made by appellants to obstruct the investigation by threatening the life of Garces, who had agreed to cooperate with the Drug Enforcement Administration (DEA). In August 1978, after she had been convicted in the Eastern District of New York of narcotics charges based on her August 1976 trip to Amsterdam, Robinson advised her that if she discontinued her cooperation he would provide money to support her children and for a lawyer. He also unsuccessfully sought to induce her to sign a letter exonerating himself, Jackson, Wright and others. For a while she did stop cooperating with the Government but later resumed. Jackson attempted to induce one of her cosmugglers, Ramona Manners, to state falsely that she had gone to Europe on jewelry business, not to smuggle drugs.

The principal witness for the Government was Helena Garces, who was by the time of trial serving a five-year sentence imposed following her narcotics conviction in the Eastern District of New York after a jury trial in which she committed perjury. She had not yet been sentenced upon her plea of guilty in the Southern District of New York to related federal narcotics charges. She described in detail the entire operations of the conspiracy in the present case.

The testimony of Garces was corroborated by that of Ramona Manners regarding her trip to Amsterdam with Garces and Jackson in November 1976, the latter two travelling under false passports, to obtain heroin which Manners smuggled into the United States under her girdle and turned over to Jackson. In addition the Government introduced the testimony of other participants in appellants' unlawful activities, including Adrian Hicks, Garces' sister, and Isaiah Crutch. The trips to Amsterdam were corroborated by hotel records, passport applications and U.S. Customs declarations forms. Letters between Robinson and Garces established that they were in communications with each other during the conspiracy. Visiting records at the United States penitentiary at Lewisburg showed that Robinson was visited there by Garces and Hicks. Other records and testimony established that Wright had substantial sums of money.

Robinson took the stand in his own defense, admitting that he knew Garces but denying that he had anything to do with her bringing heroin into the United States from Amsterdam. On rebuttal the Government introduced testimony of a U.S. Marshal, who had the three appellants in custody, to the effect that during a trial recess, after Garces had described on the witness stand some of her trips to Amsterdam to obtain heroin for Robinson, the latter had stated, among other things, in response to a comment by Jackson that Garces was lying about a particular trip, "Believe it or not she is telling the truth.... The case is air-tight, the government, she has planes, dates, trips and plane tickets and she has the receipts and all that stuff, which indicates we are part of this conspiracy." The jury found each appellant guilty of all charges against him.

DISCUSSION

The principal claim made by appellants is that they were deprived of a fair trial and of effective assistance of counsel by statements and actions of the trial judge during the course of the two-week trial. In considering this claim we are guided by the principle that while the district judge "is more than a moderator or umpire and has an active responsibility to see that a criminal trial is fairly conducted," United States v. Curcio, 279 F.2d 681, 682 (2d Cir.), cert. denied, 364 U.S. 824, 81 S.Ct. 59, 5 L.Ed.2d 52 (1960), his "participation during trial-whether it takes the form of interrogating witnesses, addressing counsel, or some other conduct-must never reach the point at which it appears clear to the jury that the court believes the accused is guilty," United States v. Nazarro, 472 F.2d 302, 303 (2d Cir. 1973).

Unquestionably the trial judge's conduct of the trial left much to be desired. However, that is not the issue before us. The question is whether his behavior was so prejudicial that it denied any or all of the appellants a fair, as distinguished from a perfect, trial. After a careful combing of the trial testimony we conclude that, while the question is a troublesome one, appellants have not made a sufficient showing to require a new trial. In the first place, the instances of criticism of counsel, serious as some of them are, occupy but a small part of an extensive trial record, which is more than 2,300 pages long. More important, the vast majority of the remarks relied upon by appellants were made outside of the jury's presence or hearing. For the most part the rulings or statements in the jury's presence, which are relied upon by appellants, do not appear sufficiently harmful in cold print ² to indicate that they could reasonable be viewed as influencing the jury in favor of the Government or against any one of the defendants. Almost all of the criticisms voiced in the jury's presence were relatively mild. Moreover, any prejudice to appellants was at least partially mitigated by a lengthy instruction at the close of the trial in which the judge expressed gratitude to each of the defense counsel for their conscientious efforts and for "work well done" and cautioned the jury that the lawyers were not on trial, that it was their duty to offer evidence and press objections, that whether or not they or the judge liked a lawyer was irrelevant, and that it was their duty to render a verdict according to the facts as found by them and the law as instructed by the court. See United States v. Boatner, 478 F.2d 737, 741-42 (2d Cir.), cert. denied, 414 U.S. 848, 94 S.Ct. 136, 38 L.Ed.2d 96 (1973); United States v. D'Anna, 450 F.2d 1201, 1206 (2d Cir. 1971); United States v. Curcio, supra, 279 F.2d at 682.

Some of the judge's comments and criticisms of defense counsel in the jury's presence would better have been left unsaid. However, most of the objected-to comments in the jury's presence appear to have been relatively innocuous. The record also indicates that at least some of the trial judge's objectionable remarks were provoked by improper conduct on the part of appellant Wright's counsel. ³ According to statements made by the judge in the record, which the Assistant United States Attorney who...