U.S. v. Singer
| Decision Date | 20 June 1983 |
| Docket Number | 81-1678 and 81-1679,Nos. 81-1654,81-1673,81-1677,s. 81-1654 |
| Citation | 710 F.2d 431 |
| Parties | 14 Fed. R. Evid. Serv. 1235 UNITED STATES of America, Appellee, v. Mark Lewis SINGER, Appellant. UNITED STATES of America, Appellee, v. Oakley Bechtel CLINE, III, Appellant. UNITED STATES of America, Appellee, v. Joseph Michael SAZENSKI, Appellant. UNITED STATES of America, Appellee, v. Arturo IZQUIERDO, Appellant. UNITED STATES of America, Appellee, v. John Patrick REYNOLDS, Appellant. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Meshbesher, Singer & Spence, Ltd., Ronald I. Meshbesher, Carol M. Grant, Minneapolis, Minn., for Mark Lewis Singer.
Bruce Hartigan, Minneapolis, Minn., for Oakley Bechtel Cline, III.
James M. Rosenbaum, U.S. Atty., Daniel W. Schermer, Asst. U.S. Atty., D. Minnesota, Minneapolis, Minn., for appellee.
Friedberg & Peterson, Mark W. Peterson, Minneapolis, Minn., for Joseph Michael Sazenski.
Phillip S. Resnick, Resnick & Bartsh, Minneapolis, Minn, for Arturo Izquierdo.
Before LAY, Chief Judge, HEANEY, BRIGHT and ROSS, Circuit Judges, HENLEY, Senior Circuit Judge, and McMILLIAN, ARNOLD, JOHN R. GIBSON and FAGG, Circuit Judges, en banc.
Defendants Mark Lewis Singer, Oakley Bechtel Cline, III, Arturo Izquierdo, Joseph Michael Sazenski, and John Patrick Reynolds appeal from their convictions on a number of drug-related offenses. The principal question presented is whether the District Court so far injected itself into the trial as to give the jury the impression that it favored the prosecution, thus depriving defendants of a fair trial. Although this is by no means a case of actual bias on the part of the trial judge, our review of the record constrains us to hold that his repeated remarks in the presence of the jury, culminating in a reference to his "helping the Government to try its case," prevented the defendants from having their guilt or innocence determined in a proceeding free of a fatal appearance of unfairness. We therefore, in the exercise of our supervisory power over the administration of criminal justice in this Circuit, reverse the judgments of conviction and remand this case for a new trial.
This case was originally submitted to a panel of this Court, and an opinion was filed affirming the convictions, one judge dissenting. United States v. Singer, 687 F.2d 1135 (8th Cir.1982). We adopt the statement of facts contained in part I of the panel opinion. We also adopt parts III and IV of the panel opinion. Specifically, we agree with the panel that the grounds urged by appellants in support of reversal (apart from the question of the District Court's conduct of the trial) are without merit. The panel's unanimous decision rejecting each of these grounds is adopted and reaffirmed.
This case was tried before a jury from December 8, 1980, to December 18, 1980. It was a complex multi-defendant trial, with each of the six 1 defendants who went to trial retaining his own lawyer. An Assistant United States Attorney tried the case on the government side alone. The District Court early became dissatisfied with the conduct of the government's case. On December 10, the third day of the trial, the court summoned the United States Attorney to a conference in chambers. The conference began as follows (Tr. 311):
THE COURT: You may recognize an array of faces as being the cream of the crop of the Criminal Bar of the State of Minnesota, most of them specializing in Federal practice.
Yesterday I wrote a note which was delivered to Mr. Berg [the United States Attorney] which said I thought he ought to have a backup man for [the Assistant United States Attorney trying the case] in Court here. It's Christmastime, it's the beginning of winter, it's the flu time, and I thought we don't want this case delayed because we lost somebody.
Now I could go on to give you some other reasons why I thought you should have a backup man. But can't you assign somebody up here this morning to start with us?
Mr. Berg declined. The District Court then ordered the United States to send another Assistant United States Attorney (Tr. 312-13). The United States Attorney asked for a recess to consider the matter, following which the judge relented and agreed to allow the trial to proceed without additional counsel on the prosecution side. The court warned that "I am not going to try the Government's case for it, like I've been doing up to this time " (Tr. 317) (emphasis ours).
The trial judge nevertheless continued to help government counsel in the presence of the jury. As the trial continued, the court helped the government again and again. The judge admonished the prosecutor:
You've just about got that question so that it's unintelligible because it's about four questions in one.
What do you want him to say?, did he look at the stuff coming back from Minnesota? (Tr. 1057).
He instructed him on when, how, and on what grounds to object.
The question has been asked and answered now, but you might be just a little more aggressive here--or we'll be here for a month (Tr. 630-31).
The judge was concerned that government counsel elicit testimony properly and avoid objections. (Tr. 677). He directed government counsel when to end questioning (Tr. 789), and, apparently exasperated over the inability of government counsel to examine a witness properly, he took over the questioning himself.
Q. You've described material you seized as marijuana?
Does he know marijuana from a bale of hay?
[GOVERNMENT COUNSEL]:
Q. Do you know what marijuana looks like?
A. Yes, I do.
Q. How do you know what marijuana looks like?
A. Because I've come in contact with marijuana on numerous occasions in the course of my duties with the Police Department.
* * *
* * *
Q. Could you describe what the substance looked like that you seized?
Q. What does marijuana look like?
THE COURT: In a bale.
A. Marijuana in a bale--just like a hay bale, but it's wrapped up, usually, in burlap, sometimes in plastic.
A. Yes, I would, Your Honor.
THE COURT: You would?
Wouldn't it take a kind of a little smell to confirm that?
(Laughter.)
A. Yes, Your Honor.
THE COURT: What does marijuana look like, what does it smell like, what does it feel like?
If you know all of those things, we'll let you go on.
If you don't, we'll send you back to Florida.
I've given you a hint as to what you might ask him.
Q. Would you tell the members of the jury what marijuana looks like and smells like, just a physical description?
Q. What does marijuana look like?
THE COURT: What color is it?
A. Sometimes it's green, sometimes it's gold, goldish-tan color, depending on where it comes from.
THE COURT: What is the texture of it? What do the little things look like?
A. It has the texture of a leaf. And the marijuana plant has five leaves on it.
Q. Does it have seeds on it?
A. Yes, it does.
THE COURT: Do the leaves have any little pointees [sic] on them? (Tr. 648-53).
These examples are only illustrations. The trial court injected itself into the proceedings in a similar fashion on several other occasions. See, e.g., Tr. 677, 1014-15, 1057.
Matters came to a head on Monday, December 15, 1980, the sixth day of trial. That morning, government counsel of his own accord corrected a statement he had made earlier to the effect that Izquierdo's fingerprints had been found on a certain lease application. Counsel for Izquierdo moved for a mistrial. 2 The District Court (properly) found that the prosecutor's error had been unintentional. When Izquierdo's lawyer then attempted to press his motion, the court interrupted him (Tr. 974):
Now, Jurors, there is no fingerprint of Mr. Izquierdo on that thing.
Mr. Schermer made a mistake.
So I think you can...
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