U.S. v. Salinas, 77-5824

• Decision Date: 04 September 1979
• Docket Number: No. 77-5824,77-5824
• Citation: 601 F.2d 1279
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Enrique M. SALINAS, Dan Sanchez, Jr. and Lewis Woodul, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1279

601 F.2d 1279

55 A.L.R.Fed. 701

UNITED STATES of America, Plaintiff-Appellee, v. Enrique M. SALINAS, Dan Sanchez, Jr. and Lewis Woodul,

Defendants-Appellants.

No. 77-5824.

United States Court of Appeals, Fifth Circuit.

Sept. 4, 1979.

Gerald H. Goldstein, San Antonio, Tex., for Salinas.

Roy R. Barrera, Terrence W. McDonald, San Antonio, Tex., for Sanchez and Woodul.

LeRoy M. Jahn, W. Ray Jahn, Asst. U. S. Attys., San Antonio, Tex., for plaintiff-appellee.

Appeals from the United States District Court for the Western District of Texas.

Before GODBOLD, SIMPSON and RONEY, Circuit Judges.

SIMPSON, Circuit Judge:

On May 19, 1977, a grand jury returned a forty-nine count indictment against appellants Enrique M. Salinas, Dan Sanchez, Jr., and Lewis Woodul, as well as others, ¹ charging violations of 18 U.S.C. §§ 371 (conspiracy), ² 656 (misapplication of bank funds), ³ and 1005 (false entries on bank records). ⁴ These charges grew out of the operation of the Citizens State Bank in Carrizo Springs, Texas. Following a lengthy trial, ⁵ the jury returned guilty verdicts on various counts against appellants. ⁶

For the reasons set forth below we reverse the judgments of conviction entered on all counts on which the jury found appellants guilty of violating 18 U.S.C. § 656 (1976) (misapplication of bank funds), and remand for a new trial consistent with this opinion. In all other respects the judgments of conviction are affirmed.

I. FED.R.CRIM.P. 30

Appellants assert that the district judge committed reversible error in denying their ⁷ repeated and specific requests to present objections to the court's charge to the jury outside the hearing And presence of the jury, as mandated by Rule 30 of the Federal Rules of Criminal Procedure. Conceding a technical failure by the district judge to comply with Rule 30's "out of the presence of the jury" requirement, the government maintains that appellants were not prejudiced by this allegedly harmless procedural error. See Fed.R.Crim.P. 52(a). We hold that the district court committed reversible error in violating the express requirements of Rule 30 where the court's instructions to the jury, to which objection was made in the jury's presence, modified an essential element of the offense charged and thereby effectively amended the grand jury's indictment in violation of the fifth amendment. Stirone v. United States, 361 U.S. 212, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960).

A. The Rule, Its Purposes, & Violations Requiring Reversal

Rule 30 of the Federal Rules of Criminal Procedure provides:

At the close of the evidence or at such earlier time during the trial as the court reasonably directs, any party may file written requests that the court instruct the jury on the law as set forth in the requests. At the same time copies of such requests shall be furnished to adverse parties. The court shall inform counsel of its proposed action upon the requests prior to their arguments to the jury, but the court shall instruct the jury after the arguments are completed. No party may assign as error any portion of the charge or omission therefrom unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects and the grounds of his objection. Opportunity shall be given to make the objection out of the hearing of the jury and, on request of any party, out of the presence of the jury.

This multifaceted rule has several purposes. The purpose of limiting assignments of error to those portions of the court's charge to which objections have been made and grounds therefore stated is to "provide the trial court an opportunity to correct any error or omission in the charge before the jury begins its deliberations. If prompt objection is made, the error can then be corrected." United States v. Arteaga-Limones, 529 F.2d 1183, 1192 (5th Cir.), Cert. denied, 429 U.S. 920, 97 S.Ct. 315, 50 L.Ed.2d 286 (1976). See also 2 C. Wright, Federal Practice & Procedure § 484, at 284 (1969). The purpose of permitting parties to object to the court's charge out of the presence of the jury is "to permit full argument of objections to instructions." Fed.R.Crim.P. 30, 1966 Amendment Advisory Committee Notes, Title 18 U.S.C.A. at 240 (1975); 8A Moore's Federal Practice P 30.04, at 30-19 (2d ed. 1977). It is also "designed to avoid the subtle psychological pressures upon the jurors which would arise if they were to view and hear defense counsel in a posture of apparent antagonism toward the judge. . . . While that goal might be served in many cases by a sufficiently low-tone bench conference, the ultimate way to assure the goal is to comply with the Rule." Hamling v. United States, 418 U.S. 87, 134, 94 S.Ct. 2887, 2916, 41 L.Ed.2d 590 (1974). ⁸

Petitioners in Hamling sought reversal of their convictions because the district court denied their request to make objections to the court's instructions out of the jury's presence. While finding that the district court erred in refusing to permit counsel to make objections, which could not have been previously formulated, out of the presence of the jury, the Supreme Court held this procedural error did not mandate reversal in the absence of prejudice. In so holding the Court specifically rejected petitioners' position that failure to comply with Rule 30 constituted reversible error per se and, instead, approved the soundness of approaches taken by various courts of appeals "which have in some manner examined the prejudice to the defendant in deciding whether reversal is required where there is a failure to comply with Rule 30." Id. at 135, 94 S.Ct. at 2916.

These two approaches, taken by various courts of appeals in deciding whether a failure to comply with the provisions of Rule 30 constitutes reversible error, are: (1) such a violation is not reversible error unless the defendant demonstrates that he has been prejudiced; or (2) such a violation is not reversible error where it affirmatively appears that the defendant was not prejudiced. Id. at 133, 94 S.Ct. at 2915. The former standard places the burden upon a defendant to demonstrate the existence of prejudice resulting from a violation of Rule 30, whereas the latter would seem to require the government to establish a lack of prejudice.

While accepting both standards the Court did not endorse either, ⁹ merely holding that the Court of Appeals for the Ninth Circuit was correct in determining under the standard announced in United States v. Schartner, 426 F.2d 470 (3d Cir. 1970), that there was no prejudice to the petitioners from the failure to hold the instruction-objection session out of the jury's presence. Id. 418 U.S. at 135, 94 S.Ct. at 2916.

Under the Schartner standard a district court's failure to comply with Rule 30's "out of the presence of the jury" requirement constitutes reversible error "unless it be demonstrable on an examination of the whole record that the denial of the right did not prejudice" the defendant's case. 426 F.2d at 480. By way of contrast, the Supreme Court, in Hamling, cited several cases, including two from this circuit, as holding that such a violation is not reversible error unless the defendant demonstrates that he has been prejudiced. See, e. g., Sultan v. United States, 249 F.2d 385 (5th Cir. 1957); Hodges v. United States, 243 F.2d 281 (5th Cir. 1957). Upon close examination, however, Sultan and Hodges do not take the same perspective in assessing the prejudice sustained by a defendant as a result of a Rule 30 violation. ¹⁰

In Sultan appellants maintained that they were prejudiced by the district court's denial of counsel's right, under Rule 30, to make objections to the court's supplemental instructions to the jury. Upon inquiry by the jury as to the offense of aiding and abetting, the district judge gave a supplemental instruction correctly reiterating the principles covering conspiracy, but declined to instruct on aiding and abetting "for the obvious reason that aiding and abetting was not in the case." 249 F.2d at 388. Appellant's counsel was Not cut off in his objections to this refusal, his contentions on such additional instructions being clearly and immediately set forth, and properly rejected. This Court, per then Circuit Judge, and now Chief Judge, Brown found that "nothing in either the Judge's words or the setting indicates that Saul's counsel or Saul was prejudicially placed in the hard position of challenging the Judge in the jury's presence. Hodges v. United States, supra." Id.

In Hodges, also written by then Circuit Judge Brown, this Court reversed appellant's convictions and remanded for a new trial "because we (were) unable to satisfy ourselves on (the) record that substantial harm was Not done . . . when the Court required Hodges' counsel to state his objections to the Court's charge in the presence of the jury." 243 F.2d at 283 (citations omitted, emphasis added). The Hodges Court viewed Rule 30 as:

a wholesome rule bottomed on good sense which ought not to be weakened by tacit approval of breaches under a too easy application of the rule on harmless error, Fed.R.Crim.P. 52(a). Promulgated presumably because the administration of criminal justice demonstrates that substantial and irretrievable harm can come if persons charged with crimes and their counsel are compelled in the presence of the jury to engage in what to untrained laymen may appear to be criticism and condemnation of the Court or the judge presiding over it, the avoidance of that harm can best be assured by genuine adherence to the spirit and practice of the rule. Where the breach is not technical, momentary or inadvertent, and the record indicates that the defendant has as best he might in the awkward embarrassment of the situation registered opposition to such proceeding, that there may be no affirmative, actual demonstration of harm does not relieve the reviewing court from most careful appraisal.

243 F.2d at 283 (emphasis...