U.S. v. Roe, 80-5282
| Decision Date | 15 March 1982 |
| Docket Number | No. 80-5282,80-5282 |
| Citation | 670 F.2d 956 |
| Parties | 10 Fed. R. Evid. Serv. 266 UNITED STATES of America, Plaintiff-Appellee, v. Neil ROE, a/k/a Nick Shelby and Ray Tietjen, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
James D. Whittemore, Robert W. Knight, Fed. Public Defender, Tampa, Fla., for Tietjen.
Harley Edward Riedel, II, Stichter & Riedel, Tampa, Fla., for Roe.
Judy S. Rice, Asst. U. S. Atty., Tampa, Fla., for plaintiff-appellee.
Appeals from the United States District Court for the Middle District of Florida.
Before FAY, ANDERSON and CLARK, Circuit Judges.
In this direct criminal appeal, defendants-appellants Neil Roe, a/k/a Nick Shelby, and Ray Tietjen each were convicted of one count of conspiracy to defraud, two counts of wire fraud, and two counts of inducing a person to travel in interstate commerce in the execution of a fraudulent scheme, in violation of 18 U.S.C. §§ 2, 371, 1343, and 2314. The district court sentenced each defendant to five years on each of the five counts, with the sentences to run concurrently. We affirm.
The defendants were officers and shareholders of Deltron Industries, Inc. ("Deltron"), located in Tampa, Florida. Through a franchising arrangement, Deltron sold manufacturing packages to several individual investors who agreed to manufacture automobile hood scoops out of polyurethane, using equipment and supplies provided by Deltron. Many of these investors attempted to produce these hood scoops in their garage at home. Deltron agreed to buy the hood scoops from the investors and represented that Deltron had contracts to resell the items to auto parts stores and directly to auto manufacturers.
In order to attract investors, Deltron placed advertisements in several northern newspapers. The advertisements included Deltron's telephone number in Tampa and advised interested parties to call collect. A Deltron salesperson in the caller's area then would contact the prospective investor and attempt to convince him to become involved in manufacturing hood scoops. After the individual signed a contract to invest the required $7,900, he would fly to Deltron's facilities in Tampa for instruction on the manufacturing process.
After this training, the investor could choose whether to continue with Deltron, or to withdraw and to receive a partial refund of the $7,900. Investors deciding to continue their involvement returned home and awaited delivery of equipment and supplies for the manufacturing.
The defendants made numerous representations to prospective investors that induced them to join the manufacturing venture. As the indictment alleged, some of these representations were (1) that Deltron would provide, in a timely fashion, the necessary equipment and supplies for the manufacture of the hood scoops, (2) that Deltron would purchase the hood scoops produced by the investor, and (3) that Deltron had contracts with various other companies for the resale of hood scoops. The indictment also alleged that the defendants knew that these representations were false and fraudulent when made to the investors.
This case presents ten issues: (1) whether the district court improperly required the simultaneous exercise of peremptory challenges to the jury, (2) whether the district court properly admitted the statements of each defendant against the other defendant, as statements by a co-conspirator, (3) whether certain statements by a Deltron salesman were properly admitted, (4) whether the district court improperly admitted evidence of Tietjen's association with a company evidently similar to Deltron, (5) whether the district court improperly restricted Tietjen's cross-examination of a federal agent, (6) whether the government adequately demonstrated that certain interstate telephone calls and interstate travel occurred, (7) whether some of the government's statements in closing argument were overly inflammatory, (8) whether Tietjen's closing argument to the jury was overly curtailed, (9) whether the district court should have stricken the government's position statement on sentencing, and (10) whether the district court improperly pressured the defendants to admit their guilt and then imposed a harsher sentence for their failure to do so.
Roe contends that the district court improperly required the government and the defendants to exercise simultaneously their peremptory challenges to prospective jurors. Roe points out that of the defendants' ten challenges and the government's six challenges, two challenges overlapped. Because of this overlapping, Roe argues that he was improperly deprived of two other challenges that he would have made had he been aware of the government's challenges. We uphold the district court's requirement that the government and the defendants exercise their peremptory challenges simultaneously.
The district court's decision as to the order in which the government and the defendant exercise their peremptory challenges under Fed.R.Crim.P. 24(b) is reviewable only for abuse of discretion. United States v. Durham, 587 F.2d 799, 801 (5th Cir. 1979). Moreover, the former Fifth Circuit has specifically held that in its discretion, the district court may require the government and the defendant to exercise their peremptory challenges simultaneously. 1 United States v. Sarris, 632 F.2d 1341, 1343 (5th Cir. 1980); accord, Carbo v. United States, 314 F.2d 718, 748 (9th Cir. 1963), cert. denied, 377 U.S. 953, 84 S.Ct. 1625, 12 L.Ed.2d 498 (1964). See generally Criminal Procedure Project, 1980-81 Term, 70 Geo.L.J. 365, 677-78 (1981) (). In conjunction with Tietjen, Roe exercised all of the ten peremptory challenges to which he was entitled under Fed.R.Crim.P. 24(b). We cannot agree that he suffered undue prejudice simply because "the government united with him in excluding particular persons from the jury." Pointer v. United States, 151 U.S. 396, 412, 14 S.Ct. 410, 416, 38 L.Ed. 208 (1894); see Carbo v. United States, 314 F.2d at 748 () (citing Hanson v. United States, 271 F.2d 791, 793 (9th Cir. 1959) ()). Accordingly, we hold that the district court here did not abuse its discretion in requiring the government and the defendants to exercise their peremptory challenges simultaneously.
Each defendant contends that the district court improperly admitted against him the statements of his co-defendant as statements by a co-conspirator. The district court did not conduct a hearing outside the presence of the jury to determine whether the challenged statements should be admitted. Instead, the district court admitted the statements subject to the government's promise to "connect them up" by laying a proper independent foundation for the statements during the course of trial. The district court did not expressly conclude that it was not reasonably practical to require the necessary independent showing before admitting the statements. However, at the conclusion of the government's case, the district court found that the government had produced substantial independent evidence showing that a conspiracy existed between the defendants and that the statements were made in furtherance of the conspiracy. T-873. In addition, at the conclusion of all the evidence, the district court found that by a preponderance of the independent evidence, a conspiracy existed between the defendants and the statements were made in furtherance of the conspiracy. T-1011-12. We conclude that the challenged statements were properly admitted against both defendants as statements by co-conspirators under Fed.R.Evid. 801(d)(2)(E).
We cannot agree with the defendants' argument that the district court's failure to conduct a hearing outside the presence of the jury before admitting the challenged statements, by itself, requires a new trial. In United States v. James, 590 F.2d 575 (5th Cir.) (en banc), cert. denied, 442 U.S. 917, 99 S.Ct. 2836, 61 L.Ed.2d 283 (1979), the former Fifth Circuit, sitting en banc, established the "preferred order of proof" concerning the admission of co-conspirator statements. Under the James standards, the initial admissibility of co-conspirator statements depends upon whether the government can produce substantial independent evidence showing that a conspiracy existed between the defendant and the declarant, and that the statements were made during the course of and in furtherance of the conspiracy. Id. at 581. Because the district court "normally" should make this threshold determination before the jury hears the challenged statements, id., the procedure by which the district court makes this determination has come to be known as a "James hearing."
The James court also stated that if the district court concludes that a James hearing is not reasonably practical, the district court could admit the statements subject to the government's "connecting them up" with enough independent evidence by the end of trial. Id. at 582. In either situation, however, the James court cautioned that on appropriate motion at the conclusion of all the evidence, the district court must determine that by a preponderance of the independent evidence, a conspiracy existed between the defendant and the declarant and the statements were made in the course of and in furtherance of the conspiracy. Id.
At least one post-James case has suggested that a James hearing is required. See United States v. Grassi, 616 F.2d 1295, 1300 (5th Cir.), cert. denied, 449 U.S. 956, 101 S.Ct. 363, 66...
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