U.S. v. Sloan, 86-1591

• Decision Date: 17 February 1987
• Docket Number: No. 86-1591,86-1591
• Citation: 811 F.2d 1359
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Lloyd D. SLOAN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1359

811 F.2d 1359

UNITED STATES of America, Plaintiff-Appellee, v. Lloyd D. SLOAN, Defendant-Appellant.

No. 86-1591.

United States Court of Appeals Tenth Circuit.

Feb. 17, 1987.

John E. Green, First Asst. U.S. Atty., Oklahoma City, Okl. (William S. Price, U.S. Atty., with him on the briefs), for plaintiff-appellee.

Gary Peterson, Oklahoma City, Okl., for defendant-appellant.

Before McKAY, MOORE and BALDOCK, Circuit Judges.

JOHN P. MOORE, Circuit Judge.

This is the second appeal in this case following a conviction of the crime of kidnapping, 18 U.S.C. Sec. 1201. ¹ Following our reversal of the first conviction, defendant was tried two more times. The first ended in a mistrial when the jury was unable to reach a verdict, and the second in the present conviction. Defendant Sloan presents several issues for review, the most significant of which is the question whether the trial court's denial of defendant's request to present objections to the instructions outside the presence of the jury (as specifically required by Fed.R.Crim.P. 30) is reversible error. We hold that where, as here, the denial is coupled with an instruction that effectively adds elements which are not charged in the indictment, reversible error has been committed.

I.

Defendant was charged in an indictment which accused him of willfully and knowingly transporting a named woman in interstate commerce from Oklahoma to Mississippi. The indictment further charged that the woman had been "unlawfully seized, abducted, confined and kidnapped" by the defendant and "held for ransom, reward or otherwise." The evidence established that the defendant approached his victim at an Oklahoma City car wash and, with a knife in his hand, told her that he was an escaped convict and that he wanted a ride. After getting in the victim's car, defendant launched upon a twenty-four hour odyssey that took the pair through three states. Ultimately, the victim was able to escape when defendant ordered her to enter a truck stop in Hattiesburg, Mississippi, to obtain a road map. Upon the arrival of law enforcement officers who had been called to the scene, defendant sped away, only to be captured after a short chase.

The trial was very brief. After closing arguments and the delivery of the charge, the court called counsel to the bench. The following colloquy then occurred out of the hearing of the jury:

THE COURT: You have heard my instructions. Does the government have any record to be made in their regard?

MR. GREEN: No, sir, Your Honor.

THE COURT: Mr. Peterson?

MR. PETERSON: Your Honor, I request a hearing on my objections outside the presence of the jury.

THE COURT: What?

MR. PETERSON: I request a hearing outside the presence, in other words, in a different room than the jury is in.

THE COURT: For what purpose?

MR. PETERSON: So the jury will not hear the bench conference, and it will not appear that I am taking a position antagonistic to the trial judge.

THE COURT: Well, number one, they can't hear us. Number two, it's never been necessary before in ten-and-a-half years of trying cases in this Court.

Third, you are now given the opportunity to make any record on the instructions that you may want to make so that if I agree with you I can instruct the jury accordingly.

So I'll ask you to proceed.

MR. PETERSON: Very well.

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I would object to the language concerning inveigled or decoyed on the grounds that it's not applicable to this case. It's not charged in the indictment, and the instruction effectively amends the indictment.

The court did not respond to this objection. While the court discussed two other objections, it did not specifically rule on any of them.

Defendant's request for the opportunity to make objections outside the presence of the jury was made in light of Fed.R.Crim.P. 30 which states, in part:

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.... The court shall inform counsel of its proposed action upon the requests prior to their arguments to the jury, ² but the court shall instruct the jury after the arguments are completed.... 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.

(Emphasis added.)

The importance of the last clause of Rule 30 cannot be gainsaid. Properly applied, the rule prevents the jury from assuming that counsel and the court have become antagonistic over a point of law. Hamling v. United States, 418 U.S. 87, 134, 94 S.Ct. 2887, 2916, 41 L.Ed.2d 590 (1974); United States v. Salinas, 601 F.2d 1279, 1283 (5th Cir.1979), cert. denied sub nom. Adamson v. United States, 464 U.S. 833, 104 S.Ct. 116, 78 L.Ed.2d 116 (1983). When counsel for the government or the defendant takes issue with proposed instructions, the jury should not be placed in the position to surmise from the actions of the participants a circumstance which may not exist. Even though the jury might be unable to hear what is taking place, the subtle psychological inferences that can easily be drawn from the mere appearance of confrontation would be grossly unfair to the objecting party.

More importantly, when counsel is restricted to a few moments of whispered allocution at sidebar, effective advocacy is seriously diminished. That point can be no more evident than in this case where essential arguments had to be confined to hastily expressed conclusions.

It is difficult to conceive of a more critical stage of a jury trial than the preparation and delivery of the charge. The charge effectively converts the jury from a collection of citizens ignorant of the law into true judges of the facts. Thus, trial courts must be painstaking in superintending the process of conversion. A few extra moments taken to insure the propriety of the charge is an investment in the fairness of the trial which will be returned many times in the justice achieved.

Essential to the process of preparing a proper charge is counsel's participation in the task. Counsel must be allowed a fair opportunity to express and argue views on the instructions. It also follows that allowing a full airing of objections will permit the court the opportunity to discover and correct errors in the charge before deliberations commence.

The plain language of Rule 30 makes evident in this case that the trial court erred in refusing defendant's request. ³ See United States v. Watson, 669 F.2d 1374, 1388 (11th Cir.1982); Hall v. United States, 378 F.2d 349 (10th Cir.1967). This conclusion does not dispose of the issue, however, because we must determine whether the error was prejudicial. Hamling, 418 U.S. at 135, 94 S.Ct. at 2916; Watson, 669 F.2d at 1388.

In Hamling, the Supreme Court concluded that failure to grant a Rule 30 hearing out of the presence of the jury is not per se reversible error. The court held reversible error occurs only when the failure results in prejudice, without deciding where the burden lies for establishing that prejudice on appeal.

We find ourselves in the same posture as the Hamling court, for the prejudice in this instance is manifest. Thus, we need not decide now if the government or the defendant has the burden of proving whether a Rule 30 violation resulted in prejudicial error.

As noted already, one of defendant's principle contentions was that the instruction defining the crime of kidnapping added means of committing the offense that were not charged in the indictment. Thus, defendant argues, he was called upon after all the evidence was in to defend himself against a charge not before the jury until the instructions were delivered. ⁴ This point is not academic because of the state of the evidence.

The original indictment charged that the defendant effected the kidnapping by force because it stated he committed the criminal act by seizing and abducting the victim. Yet, using the statutory definition of the crime, the court instructed the jury that "[w]hoever unlawfully seizes, confines, inveigles, decoys, kidnaps, or carries away ... any person" is guilty of violating 18 U.S.C. Sec. 1201. (emphasis added). The court further instructed the jury that the essential elements of kidnapping are transporting a person in interstate commerce and "[d]oing such act ... while such person was unlawfully seized or confined or inveigled or decoyed...." (emphasis added).

The distinction is important because the testimony of the victim was equivocal regarding the use of force. She testified that the defendant approached her with a knife in his hand, but she added nothing further. She did not state directly that the knife was brandished or otherwise used in a threatening way. At the same time, she implied that she initially complied with the defendant's wishes because of a falsehood. She stated that when she asked defendant what he wanted, he replied that he was an escaped convict (which was untrue) and that he just wanted a ride. Potentially negating the implication that force was employed by the defendant, the victim also testified she was told that he was not going to hurt her. Immediately after the defendant told her what he wanted, the victim got in her car and, at defendant's direction, slid over to the passenger side and allowed the defendant to drive. This was the totality of the evidence of defendant's initial assertion of dominion over the victim. In this scenario, it is easily conceivable that the jury believed he committed the crime by the ruse that he was an escaped convict and that force had not been employed. ⁵

The government takes solace from the fact that the instruction providing the definition of the offense was faithful to the statute. Yet, that contention provides us no comfort. The defendant was not...