U.S. v. Russell, 81-6079
| Decision Date | 17 October 1983 |
| Docket Number | No. 81-6079,81-6079 |
| Citation | 717 F.2d 518 |
| Parties | 14 Fed. R. Evid. Serv. 641 UNITED STATES of America, Plaintiff-Appellee, v. Joe Thomas RUSSELL, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Donald A. Lykkebak, Orlando, Fla., for defendant-appellant.
Joseph T. Urbaniak, Jr., Asst. U.S. Atty., Orlando, Fla., Mervyn Hamburg, Atty., U.S. Dept. of Justice, Appellate Section, Crim. Div., Washington, D.C., for plaintiff-appellee.
Appeal from the United States District Court for the Middle District of Florida.
Before TJOFLAT and HILL, Circuit Judges, and SIMPSON, Senior Circuit Judge.
Appellant Russell appeals from his conviction for conspiring to possess marijuana with intent to distribute, in violation of 21 U.S.C. Sec. 841(a)(1), and causing the importation of marijuana, in violation of 21 U.S.C. Secs. 952 and 960 and 18 U.S.C. Sec. 2. He asserts two grounds on which the trial court erred in denying his motion for a new trial.
We affirm.
Appellant first contends that the trial court erred in failing to grant a continuance to allow appellant to call a witness. At the commencement of the trial on Monday, September 21, 1981, it was made clear to counsel that it was important that the case be completed by the end of the day on Friday of that week. Counsel estimated that it would take three and one-half days to complete the trial.
During the course of the presentation of the government's case, the trial judge detected undue tediousness in the examination of the government's witnesses by the prosecutor. On several occasions the judge criticized the slowness of the presentation of the case and, prior to the commencement of trial on Wednesday morning, the judge had the Chief Prosecutor from the United States Attorney's office come to his chambers in the presence of defense counsel and the Assistant United States Attorney trying the case. There, the judge pointed out what he felt to be the inappropriate tediousness of the prosecutor's examination, the delays between the witnesses' answers and his questions, and other inappropriate time-consuming activities on the part of the prosecutor and defense counsel. The judge made it clear that he expected the taking of evidence to be concluded by Thursday evening so that the arguments and instructions could be completed on Friday morning. The prosecution predicted with assurance that the government's case would conclude by noon on Thursday, but it was not completed until mid-afternoon on that day.
Evidence against the appellant was substantial, bordering on overwhelming, though it was primarily the testimony of accomplices. Thus, the defense sought to discredit the government's witnesses. The last witness presented by the prosecutor testified to some incriminating statements made to him by appellant when appellant visited this witness some days after the occurrence under investigation. On cross-examination appellant's counsel sought to have the witness agree that the purpose of the visit had nothing to do with drugs and was occasioned by a transaction dealing with the upholstery of some cushions in a motor vehicle owned by appellant. The witness denied this, asserting that the cushion upholstery transaction had taken place earlier.
The defense then produced three witnesses substantially consuming the balance of Thursday. Whereupon, defense counsel moved for a "continuance," with the taking of evidence to resume on Friday morning, but the judge ordered that he proceed with the next witness. At a bench conference, appellant's counsel represented to the court (and this representation was later confirmed in an affidavit of the proposed witness submitted in support of the motion for new trial) that the brother of the last government witness was out of state but had agreed to be present on Friday morning. His testimony would have been that, contrary to the testimony of the government witness, the cushion upholstery transaction had not been completed prior to the time of appellant's visit to his brother. The judge stated, "that's an insignificant point" and, after hearing from counsel, declined to recess the trial in order to take the expected testimony.
We conclude that the trial judge correctly analyzed this particular situation and did not abuse his discretion in declining to recess the trial. See Foster v. United States, 296 F.2d 65, 68 (5th Cir.1961); see generally, Ungar v. Sarafite, 376 U.S. 575, 84 S.Ct. 841, 11 L.Ed.2d 921 (1964). We are not unmindful of the fact that there are occasions when it is desirable that a trial be concluded within a reasonable period of time. Some jurors who are selected for trial may have, as was the case here, made it known that there are important events scheduled to commence on a future date. In such instances, the law requires the juror to remain until the case is completed. Nevertheless, the last party offering evidence, should the case run beyond its expected duration, may be expected to incur the wrath of that juror. It is misconduct on the part of the attorney presenting the opening case--the prosecutor in a criminal case--to engage in trial tactics calculated to consume practically all of the "available" time, leaving the defense with the alternative of incurring the wrath of a juror or presenting a skimpy case. Where such a tactic is detected by this court, we shall not hesitate to reverse a conviction thus obtained. See Fed.R.Crim.P. 33 ().
We have, however, carefully reviewed the record in this case. We agree with the trial judge that the testimony which the appellant sought to present would have been of minimal interest in the deliberation of the jury. The proffered testimony was not calculated to controvert any of the damaging testimony of the...
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