U.S. v. Smith, 77-5387

• Decision Date: 17 January 1979
• Docket Number: No. 77-5387,77-5387
• Citation: 588 F.2d 111
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Samuel S. SMITH and Grover Lamar Lee, a/k/a Poss, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 111

588 F.2d 111

UNITED STATES of America, Plaintiff-Appellee, v. Samuel S. SMITH and Grover Lamar Lee, a/k/a Poss Defendants-Appellants.

No. 77-5387.

United States Court of Appeals Fifth Circuit.

Jan. 17, 1979.

Eugene Loftin, Jacksonville, Fla. (Court-appointed), for Lee.

James L. Harrison, Jacksonville, Fla., for Smith.

John J. Daley, Jr., Curtis Fallgatter, Asst. U. S. Attys., Jacksonville, Fla., for plaintiff-appellee.

Appeals from the United States District Court for the Middle District of Florida.

Before BROWN, Chief Judge, GODBOLD and FAY, Circuit Judges.

JOHN R. BROWN, Chief Judge:

Appellants Samuel S. Smith and Grover Lamar "Poss" Lee were tried with two other defendants ¹ on charges of possession with intent to distribute marijuana and with conspiracy to distribute. A jury found Smith guilty on both counts and Lee guilty only of conspiracy. Both appeal, alleging various defects in their trial. Upon consideration of these claims, we affirm Smith's conviction but reverse Lee's and remand his case for a new trial.

The conspiracy alleged in this case began in July of 1976 when Lamar Lee, an investigator for the Public Defender's office, suggested that Sheriff Leonard of Suwannee County, Florida, participate in a scheme to sell marijuana that the sheriff's office had seized incident to drug arrests. ² Lee told Leonard that Sam Smith, a state circuit judge, ³ would issue a destruction order as a cover-up and would arrange to dispose of the marijuana. Leonard replied that he would have to think about the proposal.

Several days later Leonard contacted FBI agent Gary Ramsey, ⁴ who instructed him to maintain contact with Lee but not to give definite answers. ⁵ On about the first of August, Smith and Lee visited Leonard and asked whether he had thought about the proposal and was willing to participate. Although he showed some interest, Leonard remained noncommittal, insisting that he had to think about it. When Judge Smith approached him in the Suwannee County Court House a week later, the Sheriff reiterated his indecision.

Finally, on September 9, ⁶ Sheriff Leonard, pursuant to FBI instruction, ⁷ called Judge Smith to find out if he still wanted to do business. Smith invited Leonard to meet with him the next day to discuss the deal. During that meeting Leonard informed Smith that he had 1,500 pounds of marijuana of which he could let 500 go he had to burn some in order to avoid suspicion. Five days later, Lee delivered a destruction order to Leonard. The Sheriff, however, refused the order and said he would not go through with the deal. ⁸

Nothing more transpired between the appellants ⁹ and Leonard until November 16, when the Sheriff contacted Judge Smith to say that he had "changed (his) mind." The two agreed that Leonard would deliver 1,500 pounds of marijuana to the county land fill and that Smith would handle it from there. Smith then contacted Homer Ratliff, ¹⁰ who arranged to have Richard Bradley pick up the marijuana. ¹¹ Bradley was arrested with the marijuana on November 17. FBI agents arrested Judge Smith the next day. Within a week, Lee, Ratliff, and Charles Ethridge were arrested.

Smith and Lee now both complain that their petit jury was selected in violation of the Jury Selection and Service Act of 1968, 28 U.S.C.A. § 1861, Et seq. They contend that an emergency shortage of jurors existed in the Middle District of Florida, and that the clerk ignored the statutory procedure provided for such a situation. Proper consideration of this claim requires an examination of the entire jury selection procedure.

The first step of the procedure is a random drawing of names from voter registration lists, lists of actual voters, or "other lists." § 1863(b)(2). These names are then placed in a master jury wheel, which must be periodically emptied and refilled at specified intervals, not to exceed four years. ¹² § 1863(b)(4). Next, the statute requires that the clerk maintain a qualified jury wheel, which shall consist of "all persons drawn from the master jury wheel who are determined to be qualified as jurors and not exempt or excused pursuant to the district court plan." ¹³ § 1866(a), § 1864. Finally, the clerk shall from time to time draw at random the number of names necessary to fill grand and petit jury panels. § 1866(a).

The action appellants complain of here is the Clerk's having put back into the qualified jury wheel the names of persons who had served more than two years previously and those who had been called but for some reason did not serve. This method of supplementing the wheel, they assert, violates the specific requirements of § 1866(f) ¹⁴ and thus amounts to substantial non-compliance with the Act. ¹⁵ Moreover, they contend that this procedure frustrates the purposes of the Act ¹⁶ by preventing a random selection of jurors.

Section 1866(f), which constitutes the basis of appellants' challenge, states that in the event of an "unanticipated shortage," the District Court May order the marshal to summon jurors directly from the voter registration or other appropriate lists. Thus, if a District Court faces the possibility, due to an unexpectedly large number of trials, of having no qualified jurors to serve on its juries, it may go outside the statutory process and summon jurors without placing their names in any wheel. This statute, however, does not require that the Court employ this procedure. Its use of the permissive "may" contemplates that less extreme methods not inconsistent with the statute may be used. Therefore, unless some other provision of the statute prohibits the clerk's action in this case § 1866(f) surely does not appellants' claim must fail. ¹⁷

In examining other subsections of § 1866, we find that (c), ¹⁸ which states that persons excluded on certain grounds may sit on other juries, contemplates that many persons who have been called but have not served may be called again. Moreover, subsection (e), ¹⁹ which prohibits requiring any person to serve more than 30 days within any two year period, ²⁰ recognizes that some jurors may serve more than once in four years. The fact that a person is called a little over two years after prior jury service does not, in and of itself, violate the statute. And since the inherent random nature of the selection process is not significantly affected by such an occurrence, ²¹ we find that the actions appellants complain of did not frustrate the purpose of the Act. ²²

Smith raises two further points, ²³ both relating to his entrapment defense. First, he claims that the trial court prevented him from eliciting from FBI agent Gary Ramsey testimony through which he could demonstrate "excessive participation by the Office of the United States Attorney in setting up the criminal acts charged." The record, however, belies this contention. It reveals that although the Judge sustained the Government's objection to Smith's inquiring about a particular grand jury investigation, he allowed appellant to proffer testimony for the record. Later, the Judge limited the scope of the proffer itself, but Only after Agent Ramsey had testified that no active investigation other than that surrounding this particular case had focused on Judge Smith until after November 14, 1976. ²⁴ We find no merit to this claim.

Smith next asserts that the trial judge's vague charge on entrapment did not properly instruct the jury on the burden of proof. Admitting that he did not object at trial, he presents this contention as plain error. Our duty in reviewing this complaint is to examine the challenged charge and to determine whether, when read "in the context of the full charge given the jury," it informed the jury that the government must prove beyond a reasonable doubt Smith's predisposition to commit this crime. ²⁵ United States v. Netterville, 5 Cir., 1977, 553 F.2d 903, 917, Cert. denied, 434 U.S. 1009, 98 S.Ct. 719, 54 L.Ed.2d 752.

The trial judge gave the following charge:

If the jury finds beyond a Reasonable doubt from the evidence in this case that the defendant, Samuel S. Smith committed either of the two acts charged but also finds that before any such offense occurred the Defendant Samuel S. Smith was ready and willing to commit such offense whenever the opportunity was afforded, and that the Government Agents did no more than offer the opportunity for the commission of such offense, the jury must find that the Defendant Smith was not a victim of entrapment, . . .

Smith objects to the underlined portion and insists that the trial judge should have repeated the words "beyond a reasonable doubt" after the words "but also finds." The instruction as given, Smith argues, allowed the jurors to apply any standard of proof they desired to the entrapment issue.

We cannot agree. Immediately after the challenged instruction quoted above, the District Judge added the following further explanation:

On the other hand, if the evidence in the case should leave the jury with a reasonable doubt as to whether or not the Defendant Smith before any acts of inducement by agents of the Government had the intent to commit an offense charged against him in this case and did so only because he was induced or persuaded by some officer or agent of the government, then it is your duty to acquit him of any such offense.

This charge clearly tells the jury that unless the Government proves predisposition beyond a reasonable doubt, Smith must be acquitted. ²⁶

In addition, during the entire charge, the District Judge repeatedly emphasized that the Government bore the burden of proving every element of its case beyond a reasonable doubt. We, therefore, find especially in the face of appellant's burden of proving plain error, F.R.Crim.P. 52(b) ²⁷ that all of the instructions on entrapment and burden of proof, ²⁸ read as a whole, sufficiently informed the jury of how to weigh the evidence and apply the burden of proof. ²⁹ Finding no merit, then, in any of Judge...