U.S. v. Treatman, 75-1048
| Decision Date | 31 October 1975 |
| Docket Number | No. 75-1048,75-1048 |
| Citation | 524 F.2d 320 |
| Parties | UNITED STATES of America, Appellee, v. David M. TREATMAN, Appellant. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Joseph Taback, Beverly Hills, Cal., for appellant.
Paul Madgett, Asst. U. S. Atty., Omaha, Neb., for appellee.
Before VAN OOSTERHOUT, Senior Circuit Judge, and LAY and HEANEY, Circuit Judges.
David M. Treatman was convicted by a jury on three counts of a seven-count indictment charging use of the United States mail for the transportation of obscene material in violation of 18 U.S.C. § 1461. Treatman has filed a timely appeal from a final order of the District Court overruling his post-trial motions for a new trial and for judgment of acquittal. He raises six issues. We consider only one: whether the trial court's communications with the jury outside the presence of the defendant and his counsel is grounds for reversal. 1 We hold that it is.
The appellant argues his constitutional and statutory right 2 to be personally present at all stages of the criminal proceedings was violated by communications between the trial judge and the jury after the jury began its deliberations and without notice to the appellant and his counsel.
Immediately prior to the commencement of the jury's deliberation, the trial court called the jury into court without notice to or the presence of the appellant or his counsel for the purpose of correcting the wording of one of the instructions.
On the morning of the second day of deliberations, the jury sent a note to the trial judge advising him that they had reached a verdict as to four counts of the indictment but were unable to reach a unanimous verdict as to the remaining three counts. The trial judge notified counsel of such communication and of his intention to give the jury a supplemental instruction in the form of the "Allen" charge. The charge was given over defense counsel's objection. Thereafter, the judge received a note on behalf of several members of the jury asking to see a written copy of that instruction. Without notice to the appellant or his counsel, the trial judge complied with the jury's request.
Late in the jury's second day of deliberations, a note was sent to the judge with respect to the instruction on assessing the prurient appeal of the evidence before it. This note read:
We find instruction # 11 confusing.
To have prurient appeal, do we consider the average person's reaction?
Or, do we judge if it has prurient appeal to a deviant group?
Which should be our major consideration in defining "prurient".
If material has some prurient appeal, but is not the dominant theme, in our opinion, do we find "guilty" or "not guilty" on this one requirement of obscenity.
/s/ Willard Stunkel, foreman
The trial court answered this request by stating that he did not believe the instruction required further discussion.
Later the same day, the jury sent another note to the trial judge asking the following questions:
Regarding Purient (sic) interest to be purient (sic), does sexual material have to appeal to the "majority" of the average adults in the so called community or to just "some" of the average? Is the same true for the "majority" or "some" of the deviant group.
/s/ Willard L. Stunkel, foreman
The District Court failed to notify the appellant and his counsel, and responded with the following note:
6:30 p. m.
November 13, 1974
Ladies and Gentlemen:
I have your note regarding prurient interest.
I refer you to Instruction Number 11, particularly to the third paragraph of that Instruction. As stated therein, the material here involved must be measured by its appeal to the average American adult. The instruction does not provide, and there is no requirement, that said appeal be to the majority of the average adults in the entire community.
Further, I again refer you to Instruction Number 11, and particularly the next to last paragraph of said Instruction which provides that you may also consider whether some of the materials involved are designed for a clearly defined deviant sexual group and whether such material appeals to the prurient interest in sex of the members of that group. There is no requirement, and you need not consider, whether said appeal is to a majority of such group.
/s/ A. G. Schatz,
An hour later, the jury reached a verdict on all counts.
Ordinarily, we will not consider assignments of error in criminal cases based on instructions given to the jury unless objections are made as required by Fed.R.Crim.P. 30. United States v. Freeman, 514 F.2d 171, 174 (8th Cir. 1975).
Since neither the appellant nor his counsel were notified of the court's intention to give additional instructions and were not present when they were given, the appellant cannot be faulted for failure to except to the additional instruction given in his absence. We consider the issues properly raised on appeal.
It is settled law that communications between judge and jury in the absence of and without notice to defendant and his counsel are improper. Jackson v. Hutto, 508 F.2d 890, 891 (8th Cir. 1975). The appellant's right to be present is constitutionally guaranteed by both the Fifth and Sixth Amendments to the federal constitution. Id. However, although such communications create a presumption of prejudice, Rogers v. United States,--- U.S. ----, 95 S.Ct. 2091, 45 L.Ed.2d 1 (1975); Jackson v. Hutto, supra 508 F.2d at 892, such presumptions "may be overcome by evidence giving a clear indication of lack of prejudice." Rice v. United States, 356 F.2d 709, 717 (8th Cir. 1966) (footnote omitted). See McClain v. Swenson, 435 F.2d 327, 331 (8th Cir. 1970) (presumption overcome).
We need not decide whether the presumption of prejudice on the first two instructions were overcome by clear evidence indicating lack of prejudice because, in our view, there was fundamental error in the supplemental instruction. First of all, it is obvious from the jury's questions that they did not understand that the prurient...
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...25 L.Ed.2d 353 (1970), private communications with the jury have been said to "create a presumption of prejudice." United States v. Treatman, 524 F.2d 320, 323 (8th Cir. 1975); see United States v. Pfingst, 477 F.2d 177, 198 (2d Cir. 1973) (Government has burden of persuasion as to harmless......
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