U.S. v. Robinson

• Decision Date: 02 October 1989
• Docket Number: No. 87-5880,87-5880
• Citation: 887 F.2d 651
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. John Anthony ROBINSON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 651

887 F.2d 651

UNITED STATES of America, Plaintiff-Appellee, v. John Anthony ROBINSON, Defendant-Appellant.

No. 87-5880.

United States Court of Appeals, Sixth Circuit.

Argued Feb. 24, 1989.

Decided Oct. 2, 1989.

Suzanne Philbrick (argued), Oak Lawn, Ill., for defendant-appellant.

Thomas Self (argued), Asst. U.S. Atty., Lexington, Ky., for plaintiff-appellee.

Before MARTIN and RYAN, Circuit Judges, and POTTER, District Judge. ^*

JOHN W. POTTER, District Judge.

Defendant-appellant, John Anthony Robinson, appeals his criminal conviction for intimidating and threatening a witness with intent to influence the witness' testimony in violation of 18 U.S.C. Sec. 1512. Appellant raises two issues for review. First, appellant argues that the district court committed prejudicial error when it refused to give an entrapment instruction to the jury on Count II of the indictment unless appellant admitted the elements of the offense alleged in Count II. Appellant contends that the court's instructions as to Count II therefore deprived him of his Fifth Amendment right to be presumed innocent and his Sixth Amendment right to have his guilt or innocence decided by a jury since it effectively directed a partial verdict against defendant-appellant on the two identical elements of the offenses alleged in Counts I and II. Although the jury was unable to return a verdict on Count II, it convicted appellant of the offense charged in Count I. Second, appellant contends that his right, under the Speedy Trial Act, to be indicted within 30 days of his arrest was violated and that the district court erred in denying his motion to dismiss on that ground. We find that defendant's first issue is well taken, and for the reasons set forth below, we reverse the judgment of the district court.

On October 9, 1986, a criminal complaint was filed in United States District Court, Eastern District of Kentucky, charging defendant-appellant with violations of Sections 1512 (threatening or intimidating a witness) and 201 (bribing a witness) of Title 18, United States Code. Magistrate James F. Cook issued a warrant for defendant-appellant's arrest on that same date. On the following day, October 10, 1986, Robinson was arrested on the warrant by the Federal Bureau of Investigation in Louisville, Kentucky. Robinson was taken before Magistrate George J. Long, Western District of Kentucky, for his initial appearance on the complaint. In an order dated October 14, 1986 Magistrate Long ordered that Robinson be removed to the Eastern District of Kentucky. Also on October 14, 1986, Magistrate Long ordered Robinson temporarily detained without bail until October 24, 1986. On the same day, October 14, 1986, a writ of habeas corpus ad prosequendum was issued by Magistrate Robert Steinberg commanding the United States Marshal to produce Robinson before The Honorable S. Arthur Spiegel on October 15, 1986 for trial in United States District Court for the Southern District of Ohio in the case of United States v. John Anthony Robinson, CR-1-86-0074.

Robinson was tried in the Southern District of Ohio on October 16 and 17, 1986. On October 17, 1986, the jury convicted Robinson. Pending sentencing Robinson remained in the custody of the United States Marshal for the Southern District of Ohio but was returned to the Boone County Detention Center in the Eastern District of Kentucky.

He was sentenced on January 16, 1987 in the Southern District of Ohio and returned to Boone County, Kentucky. On February 4, 1987, an indictment was returned in the Eastern District of Kentucky charging defendant with two separate violations of federal criminal laws. Count I charged that on or about September 30, 1986, Robinson knowingly used intimidation and threatened David A. Geoghegan and attempted to do so with intent to influence his testimony in the criminal case against Robinson in the Southern District of Ohio. Count II charged that, on or about October 8, 1986, Robinson offered and gave $500.00 to David Geoghegan with the intent to influence his testimony in the case against Robinson in the Southern District of Ohio.

On February 4, 1987 a writ of habeas corpus ad prosequendum was issued for Robinson's appearance at a February 5, 1987 arraignment on the indictment. On February 20, 1987 Robinson moved to have the case dismissed on the ground that the government had violated the Speedy Trial Act by failing to indict defendant within 30 days of his arrest as required by 18 U.S.C. Sec. 3161(b). The motion was denied.

At trial, Robinson requested a jury instruction on entrapment on the second count of the indictment. However, the district court, relying on previous precedents of this court, ¹ declined to give the instruction unless Robinson admitted the elements of the offense alleged in Count II. Robinson eventually conceded the elements of Count II of the indictment solely for the purpose of obtaining the court's instruction to the jury on entrapment. On July 16, 1987 Robinson was convicted by the jury on Count I of the indictment and sentenced to 10 years imprisonment to be served consecutive to his prior federal sentence. However, the jury was unable to return a verdict as to Count II of the indictment and Count II was eventually dismissed by the government. Subsequently, the Supreme Court decided Mathews v. United States, 485 U.S. 58, 108 S.Ct. 883, 99 L.Ed.2d 54 (1988). The Mathews court held that a criminal defendant cannot be compelled to admit the elements of the offense in question in order to receive a jury instruction on entrapment where there is sufficient evidence from which a reasonable jury could find entrapment. Robinson contends that, although Count II of the indictment was eventually dismissed, the trial court's instruction that he conceded the elements of Count II amounted to a partial directed verdict against him on Count I. It was not contended in the lower court by the defendant that the court's holding and instructions on Count II would taint Count I. However, it has not been argued in this Court that error as to Count I was not preserved for review. See 9 Fed.Proc., L.Ed. Sec. 22:1203 (1984).

The first issue with which we are confronted is whether the district court committed prejudicial error as to Count I of the indictment by requiring Robinson to admit the elements of the offense alleged in Count II in order to receive a jury instruction on the defense of entrapment as to that count. Robinson contends that the district court in effect granted a partial directed verdict in favor of the government since two of the elements contained in Count I are identical to those he was required to admit in order to receive an entrapment instruction on Count II. Since this case was on direct appeal when Mathews was decided, Robinson is clearly entitled to the benefit of the Mathews rule. See Griffith v. Kentucky, 479 U.S. 314, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987) (holding that even where a new rule of criminal procedure represents a "clear break with past precedent" the new rule must be applied to all cases pending on direct review). Thus, without question it was error to require Robinson to admit the elements of Count II in exchange for an entrapment instruction. However, since the jury was unable to return a verdict on Count II, the focus of our inquiry is whether that error spilled over to Count I, and, if it did, was it harmless.

With respect to Count I of the indictment the trial court instructed the jury that Robinson could be found guilty only if the government established each of the following elements by proof beyond a reasonable doubt: (1) that the person described in the indictment was scheduled to be a witness in the case of United States v. Robinson; (2) that the defendant used intimidation against or threatened such person as charged; and (3) that the defendant did so knowingly and willfully with the intent to influence the testimony of the witness. Tr. Vol. 7, p. 14. As to Count II of the indictment the trial court instructed the jury that the defendant

relies upon a defense of entrapment. In doing so, he conceded or admits or stipulates that he committed the offense that is alleged in Count Two, thus, he admits that David Geoghegan was to be a witness under oath at the trial of United States versus Robinson, number 1-86-0074, in the Southern District of Ohio. Second, that the defendant corruptly offered and gave something of value to Geoghegan. And, third, he admits that he acted with intent to influence Geoghegan's testimony. Although admitting these elements of the offense, the defendant contends, however, that he is not guilty of the offense that is charged in Count Two of the indictment because of entrapment.

Tr. Vol. 7, p. 17. The trial court also instructed the jury as follows regarding defendant's plea of not guilty and the separate nature of each count:

This plea puts in issue each of the essential elements of the offense that is described in Count One, and puts in issue the entrapment issue as to Count Two. It imposes upon the government the burden of meeting its burden as to each count by proof beyond a reasonable doubt. The indictment in question, as we've referred to several times, has two counts. A separate crime or offense is charged in each count. Each charge and the evidence pertaining to it must be considered separately. The fact that you may find an accused guilty or not guilty as to one of the offenses charged should not control your verdict as to the other offense that is charged.

Tr. Vol. 7, pp. 12-13.

Defendant-appellant contends, as previously stated, that the effect of the instruction on Count II was to direct a verdict against him on two elements of Count I. These elements are (1) that Robinson knew Geoghegan was to be a witness against him in the other federal case and (2) that Robinson acted with the intent to influence Geoghegan's testimony. The government contends, however, that each count related to...