U.S. v. Solomon
| Decision Date | 12 October 1988 |
| Docket Number | No. 87-8065,87-8065 |
| Citation | 856 F.2d 1572 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Carlos SOLOMON and Katrina F. Solomon, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Michael K. McIntyre, Atlanta, Ga., for Carlos Solomon.
Suzanne Hashimi, Stephanie Kearns, Federal Defender Program, Inc., Atlanta, Ga., for Katrina F. Solomon.
William L. McKinnon, Asst. U.S. Atty., Atlanta, Ga., for plaintiff-appellee.
Appeal from the United States District Court for the Northern District of Georgia.
Before HILL and EDMONDSON, Circuit Judges, and WISDOM *, Senior Circuit Judge.
The defendants, Carlos Solomon, a former Atlanta police officer, and his wife, Katrina Solomon, were convicted by a federal jury of conspiracy to possess with intent to distribute hydromorphone, commonly known as dilaudid, in violation of 21 U.S.C. Sec. 841(a), and of unlawfully obtaining dilaudid by means of forged prescriptions and misrepresentations.
On appeal, the Solomons contend that there are three grounds for reversal of
their convictions. We reject these contentions.
The defendants contend first that the trial court erred, after closing arguments, in failing to instruct the jury on the defendants' presumption of innocence. Because defense counsel neither requested such an instruction nor objected to the instructions given by the trial judge, the standard for review under Fed.R.Crim.P. 52(b) 1 is whether the trial court judge committed plain error. Plain errors are those seriously affecting the "fairness, integrity, or public reputation of judicial proceedings". 2 Furthermore, the error must be both obvious and substantial. 3 Rule 52(b) is applied in exceptional circumstances where needed to prevent a miscarriage of justice. 4
As stated in United States v. Thaxton, 5 the jury instruction on the presumption of innocence serves a two-fold purpose. First, it reminds the jury that the prosecution has the burden of persuading the fact-finder of the defendant's guilt beyond a reasonable doubt. 6 Second, " 'it cautions the jury to put away from their minds all the suspicion that arises from the arrest, the indictment, and the arraignment, and to reach their conclusion solely from the legal evidence adduced.' " 7 Thus, in determining whether the trial court's failure to repeat the instruction at the close of the case rises to the level of plain error we consider the jury instructions as a whole in the light of the functions of the presumption of innocence.
After the jury was sworn and before any testimony was heard, the trial judge instructed the jury in part as follows:
I want to caution you [that] the fact that the grand jury has returned a bill of indictment against these defendants is not evidence, [or] a hint or inference of guilt.
* * *
I further caution you [that] each of these defendants come[s] into court with the presumption of innocence in their favor. That is they are presumed innocent of any offense there might be until the government produces evidence which is sufficient to show guilt beyond a reasonable doubt and the government has that burden.
In his final instructions the trial judge told the jury:
The law does not require the defendants to prove innocence or produce any evidence at all if they don't want to. The return of the indictment places upon the government the burden of proving each of the defendants guilty beyond a reasonable doubt and if it fails to do so, then you must find each of the defendants not guilty.
The trial judge also warned the jury, "you must base your verdict upon the evidence that I have admitted here in open court." Record, Vol. 6 at 710. In his closing argument the prosecutor remarked to the jury that the "[g]overnment has the burden to establish the defendants' guilt. But the defendants and the defense [do not] have to prove anything. They could In United States v. Fernandez, 8 the Court of Appeals for the Fifth Circuit dealt with the question whether a trial judge's failure to provide a presumption of innocence charge at any time during the trial amounted to plain error even though the charge had not been requested by defense counsel and there had not been objection to its omission. Had there not been reversible error arising from prejudicial comments made by the prosecutor, the Court was inclined to hold that the omission of the instruction was not plain error under Rule 52(b) because of the court's comprehensive charge regarding the government's burden of proof, the defendant's right to remain silent, and the limited function of an indictment. In the instant case the trial judge instructed the jury on each of these issues after closing arguments, in addition to his charging on the presumption of innocence at the beginning of the trial.
have ... not put up any evidence...." Record, Vol. 6 at 704.
Defendants argue that as in Fernandez there were other improprieties that when combined with the omitted presumption of innocense instruction rise to the level of plain error. We find no synergistic effect from these jury instructions 9 that when combined with other allegations of improprieties produces plain error in this case.
Unlike Fernandez the trial judge in this case did instruct the jury about the presumption of innocence at the beginning of the trial. The facts in this case are similar to those in this Court's earlier decision in United States v. Davila-Nater. 10 In that case before any testimony was heard the trial court briefly instructed the jury on the presumption of innocence. 11 At the conclusion of the case the judge told the jury, "As I told you in the beginning ... there is no obligation of the defendant to prove his innocence." 12 In Davila-Nater the prosecutor also referred to the presumption of innocence in his opening argument. The Court found no reversible error. Similarly, here the trial court gave an instruction on the presumption of innocence shortly after the jury had been sworn. And, as already pointed out, after closing arguments the judge, although he did not specifically refer to that part of his opening charge, reminded the jury that "[t]he law does not require the defendant to prove innocence or produce any evidence at all...." The prosecutor's statement in his closing argument that the defendants did not have to prove anything bolstered the impact of the court's charge.
This case is distinguishable from United States v. Dilg, 13 relied on by the defendants. In that case the trial court instructed a jury venire about the presumption of innocence before the trial began but did not repeat the instruction at any time during the trial. Moreover, the Court found that defense counsel adequately objected to the failure to charge the jury on the presumption of innocence. In that case, we did not have to decide whether the omission of the instruction rose to the level of plain error. Applying a lower standard, we found that the lack of such an instruction at any time during the trial presented a risk that the jury did not consider the presumption of innocence; this risk warranted a new trial. Our concern in Dilg stemmed in part from the trial court's failure to caution the jury to reach its conclusion solely from the evidence adduced at trial. In the present case, however, during its final jury instructions the court instructed the jury, "you In the light of the instruction on the presumption of innocence given at the beginning of the trial, the court's reminder at the end that the defendants do not have to prove their innocence or produce any evidence, and the court's warning that only the evidence admitted at trial should be considered, we conclude that the functions of the presumption of innocence instruction set forth in Thaxton were minimally served in this case. 14 Considering all of the court's other instructions, including its instruction that the indictment is not evidence of guilt and its extensive instructions regarding reasonable doubt and burden of proof, 15 we conclude that the court's error was not plain and substantial, and has not materially prejudiced the defendants. Thus applying the standard of Rule 52(b), reversal of the defendants' convictions on this ground is not warranted.
must base your verdict upon the evidence that I have admitted here in open court." Record, Vol. 6 at 710
Defendants also contend that the trial court erred because it provided inadequate jury instructions regarding the credibility of one of the government's chief witnesses, Patricia Caldwell. Specifically, the defendants argue that reversal is required because the court failed to instruct the jury that the credibility of this witness should be viewed with suspicion: she was an admitted drug addict and an accomplice who was given immunity from prosecution under a plea bargain agreement. Because the defendants did not request these instructions nor object at trial to the court's credibility instructions, these assignments of error must also be evaluated using the plain error standard of Rule 52(b). 16
Rule 52(b) is a backstop protection against substantial injustice that might otherwise result from application of the usual rule, Fed.R.Crim.P. 30. That rule prohibits an appellate level complaint against a trial court's failure to furnish a particular jury instruction in absence of a request or objection at trial. 17 An appellant asking the Court to reverse his conviction because of an omitted jury instruction must demonstrate that when considered in its entirety, the charge was so deficient that there is a "likelihood of a grave miscarriage of justice" 18 or point to an error so obvious that failure to notice it would seriously affect the fairness, integrity, or public reputation of judicial proceedings. 19 In reviewing the trial court's jury...
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