U.S. v. Sutton

• Decision Date: 03 June 1992
• Docket Number: No. 91-1536,91-1536
• Parties: UNITED STATES of America, Appellee, v. Arthur SUTTON, Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 1001

970 F.2d 1001

UNITED STATES of America, Appellee, v. Arthur SUTTON, Defendant, Appellant.

No. 91-1536.

United States Court of Appeals First Circuit.

Heard June 3, 1992.

Decided Aug. 3, 1992.

Brian J. McMenimen, with whom Boudreau, Burke & McMenimen was on brief, for defendant, appellant.

Paul G. Levenson, Asst. U.S. Atty., with whom A. John Pappalardo, Acting U.S. Atty., was on brief, for U.S.

Before SELYA, Circuit Judge, LAY, ^* Senior Circuit Judge, and PIERAS, ^** District Judge.

SELYA, Circuit Judge.

Defendant-appellant Arthur Sutton and a codefendant, James T. Cornwell, were indicted by a federal grand jury and charged with various counts of mail and wire fraud. See 18 U.S.C. §§ 1341, 1343 (1988 & Supp. II 1991). According to the indictment, the charges arose out of "a scheme and artifice to defraud investors by means of a fraudulent real estate venture." Cornwell pleaded guilty. Sutton stood trial. The district court dismissed the wire-fraud counts on a technicality (the government having bollixed the dates of relevant events in the charging papers). After considering the four mail-fraud counts, the jury found appellant guilty on three of them.

Appellant's main point on appeal involves the trial judge's decision to allow the jury some freedom to participate in the examination of witnesses during the trial. Although we think that this practice may frequently court unnecessary trouble, we find no error in the circumstances of this case. Because we conclude that Sutton's other ground of appeal is also bootless, we affirm the judgment below.

I. Juror Participation in the Questioning of Witnesses

The issues raised on this appeal do not require an exegetic account of the evidence. Thus, in approaching appellant's principal contention, we begin by focusing the lens of our inquiry on what transpired in connection with the judge's adventurous enlargement of the jury's traditional role. Next, we review the applicable law. Finally, we tackle the underlying issue.

A. What Transpired

After the jury was sworn, Judge Young gave some preliminary instructions. In the course of those instructions, he stated:

You can take notes.... You can ask questions. If you want to ask a question, you just rip a page out of your notebook, write your question on the page, pass it ... to the foreman, who will give it to the clerk, who will give it to me. I'm a lawyer, I'll read it. If your question even possibly could make any legal difference in the case, if it's relevant as the lawyers say, I'll ask it for you. Indeed, I'll ask some other questions to follow up, to find out what this witness has to say about what it is that you're concerned about.... If I don't think that your question could make any legal difference, it doesn't mean it was wrong of you to ask it, you can't go wrong by asking a question, I simply won't ask it. Don't you take that as some reflection on you. It's not at all. I just don't think legally it makes any difference. But what I do is put the question out on the table here where the lawyers can look at it. And they may think of a way to get at the issue. At least they'll know what's on your mind[s], which may be helpful to them in the proper presentation of the case.

No objections were lodged to this portion of the precharge. The trial began.

The first significant mention of a juror question occurred on February 25, 1991 (the fourth day of trial). During the direct examination of a disappointed investor, Stephen Ginsburg, Judge Young responded in open court to a note inquiring about the jury's right to question witnesses:

Here's a good question ..., and it's addressed to me ..., from a juror: May we submit questions to be addressed to witnesses while the witness is on the stand?

Yes. That really is the essence of your right to ask questions. You can ask questions of me. You can ask questions of me about the law, but I really can't ask a question on your behalf about the evidence, unless a witness who could answer that question is on the witness stand. I can't just launch off, you see, asking questions. And so your right to ask questions, your right to use me as, as I am still a lawyer, and hope I still know how to ask questions as a lawyer, to ask questions of the witnesses.... But really, the essence of your right to ask questions is that right to question these witnesses. It's just that you have to question them through written questions, because that's an orderly and a fair way to do it, lest we get some question that's off the mark. So, of course, you have the right at any time to ask a question of any witness, and really, you should pass the question up while I've still got the witness on the stand.

No one voiced an objection to the judge's response.

Later that same day, Judge Young asked Ginsburg a series of questions prompted by a juror's note. The queries were directed to when Ginsburg had last seen Sutton ("about three months ago") and the nature of their relationship at that time ("strained"). After the witness vouchsafed these answers, defense counsel approached the bench. A colloquy ensued:

[DEFENSE COUNSEL]: I want to object to the Court having posed the question, the questions asked by the juror.... I think I probably would have had an objection as to relevancy. I'm kind of frightened to object to a question asked by a juror lest they misconstrue and ascribe an improper motive to it, and I would only ask if the Court would consider conferring with counsel before putting questions.

THE COURT: Well, if I think there's any doubt about it, I will confer with counsel....

Defense counsel expressed no dissatisfaction with the trial court's rejoinder. The court resumed its line of inquiry, asking when Ginsburg learned that Cornwell had falsified certain documents. ¹ Counsel thereupon renewed the objection and moved for a mistrial. He hypothesized in an entirely conclusory fashion that the court's interjection "could affect ... how I'm going to present my defense" and might, therefore, "be troublesome for me." Judge Young overruled the objection and refused to declare a mistrial.

The next relevant vignette occurred on February 26. During the defense's cross-examination of a prosecution witness, Philip Capello, Judge Young received a written question from a juror. He posed it to Capello, along with a series of follow-up questions. No objections were recorded. Some time later, Judge Young directed another set of juror-inspired questions at Capello. These questions dealt with when Capello had last seen Sutton ("probably the summer [of 1989]") and the nature of their relationship at that time ("still cordial"). After these answers had been recorded, defense counsel asked to be heard and lodged a general objection at sidebar:

[DEFENSE COUNSEL]: I would object to some of those questions that the Court put to ... the witness on behalf of the jurors. I think if [the prosecutor] or I had asked some of them and there had been objection, that it would have been excluded.

THE COURT: Why didn't you object to my asking it?

[DEFENSE COUNSEL]: Because it's a question from a juror, your Honor, being asked by the Court.

At three more points during the trial, jurors asked Judge Young to direct questions to a witness. ² Judge Young obliged. Defense counsel did not object on any of these occasions.

B. Applicable Legal Principles

The appellant asserts that the questioning of witnesses by jurors in a criminal trial is inherently prejudicial, invades counsel's province, distorts the roles of judge and jury, and unfairly inhibits objections. Accordingly, he urges us to ban the practice outright and, in the bargain, vacate his conviction.

We do not treat this exhortation lightly. Allowing jurors to pose questions during a criminal trial is a procedure fraught with perils. In most cases, the game will not be worth the candle. Nevertheless, we are fully committed to the principle that trial judges should be given wide latitude to manage trials. We are, moreover, supportive of reasoned efforts by the trial bench to improve the truth-seeking attributes of the jury system. Consistent with this overall approach, and mindful that the practice of allowing jurors to participate in the interrogation of witnesses may occasionally be advantageous, especially in complex cases and under carefully controlled conditions, we hold that allowing juror-inspired questions in a criminal case is not prejudicial per se, but is a matter committed to the sound discretion of the trial court. Accord United States v. Lewin, 900 F.2d 145, 147 (8th Cir.1990); United States v. Polowichak, 783 F.2d 410, 413 (4th Cir.1986); United States v. Callahan, 588 F.2d 1078, 1086 (5th Cir.), cert. denied, 444 U.S. 826, 100 S.Ct. 49, 62 L.Ed.2d 33 (1979); United States v. Gonzales, 424 F.2d 1055, 1056 (9th Cir.1970) (per curiam); United States v. Witt, 215 F.2d 580, 584 (2d Cir.), cert. denied, 348 U.S. 887, 75 S.Ct. 207, 99 L.Ed. 697 (1954); see generally United States v. Nivica, 887 F.2d 1110, 1123 & n. 9 (1st Cir.1989) (discussing practice), cert. denied, 494 U.S. 1005, 110 S.Ct. 1300, 108 L.Ed.2d 477 (1990).

We hasten to add that the practice, while not forbidden, should be employed sparingly and with great circumspection. The dynamics of a criminal trial are extremely sensitive. Innovations that carry the potential for disrupting those dynamics are risky. Juror participation in the examination of witnesses represents a significant innovation, transforming the jurors' role from a purely passive one to a partially interactive one. The practice also delays the pace of trial, creates a certain awkwardness for lawyers wishing to object to juror-inspired questions, and runs a risk of undermining litigation strategies. We suspect that, in most situations, the risks inherent in the practice will outweigh its utility. ³ Thus, juror participation in the examination of witnesses should be the long-odds exception, not the rule. Cf., e.g., Niv...