U.S. v. Turner
| Decision Date | 30 March 1987 |
| Docket Number | No. 85-7504,85-7504 |
| Parties | UNITED STATES of America Plaintiff-Appellee, v. Albert TURNER, et al., Defendants. In re Howard MOORE, Jr., Appellant. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Morton Stavis, Center for Constitutional Rights, Rafael Anglada-Lopez, New York City, Margaret Carey, Greenville, Miss., Robert H. Turner, Selma, Ala., for appellant.
Gerald Horne, Barbara Dudley, Roxanne Gregory, Larry Smith, New York City, for amicus, National Conference of Black Lawyers, et al.
E.T. Rolison, Asst. U.S. Atty., Mobile, Ala., for plaintiff-appellee.
Brenda F. Harbin, Sabrina A. McCarthy, Oakland, Cal., for amicus Association of Northern California Black Women Lawyers.
Robert L. Harris, Sherry A. Walker, James O. Cole, San Francisco, Cal., for amicus Charles Houston Bar Association.
Fred D. Gray, Thomas J. Broome, Washington, D.C., for amicus the National Bar Association.
Appeal from the United States District Court For the Southern District of Alabama.
Before RONEY, Chief Judge, CLARK, Circuit Judge and DOYLE, * Senior District Judge.
This is an appeal from a judgment of contempt entered against appellant Howard Moore in a summary proceeding pursuant to Fed.R.Cr.P. 42(a). Moore is a lawyer. The contemptuous conduct was determined to have occurred during his cross-examination of a witness in a trial. A fine of $500.00 was imposed. Enforcement of the fine has been stayed, pending the outcome of this appeal. We reverse the judgment of the district court on the ground that the evidence is insufficient to support it.
The indictment charged: (1) a conspiracy, in violation of 18 U.S.C. p 371, to use the mails, in violation of 18 U.S.C. Sec. 1341, in furtherance of a scheme to defraud the citizens of Perry County, Alabama, and of the state of Alabama of a fair and impartial Democratic primary election on September 4, 1984, and, in violation of 42 U.S.C. Sec. 1973i(e), to vote more than once in that In the course of opening statements on June 17, 1985, a J.L. Chestnut, an attorney for one of the defendants, commenced a reference to an order that had been obtained from a state court, apparently by a local prosecutor and another lawyer, just prior to the September 4, 1984, primary. The order had to do with a law enforcement plan to monitor the handling of the absentee ballots received by the elections officials. Counsel noted that both the lawyers who had obtained the order were white. The district court interrupted to summon counsel to sidebar and stated:
primary; (2) 26 instances of the use of the mails in furtherance of that fraudulent scheme; and (3) double-voting. Prior to trial, defendants moved for dismissal on the ground of selective and vindictive prosecution and the motion was denied.
Counsel, there were motions to suppress in this case taking the position that that order was illegal because it violated the confidentiality of the ballot and those motions to suppress have been denied and I don't want you now to submit to the jury the motion to suppress issue and that sounds like to me what you are doing.
Also I want to make one other comment, you are mighty close, if you haven't done it, in arguing a selective vindictive prosecution to this jury.
That is not an issue to be submitted to this jury and if anybody makes that argument to this jury they are going to be held in contempt and I want that clearly understood.
There followed discussion in which Chestnut said what he was trying to get at was that the local prosecutor and others "set up the thing about the absentee ballots and went and got a [state] court order and then the [local prosecutor] went down and got the U.S. Attorney involved in it and this same [local prosecutor] and a group of his cohorts in Perry County are behind it and they seduced the United States government in this." The district court responded:
That is a select prosecution argument if I ever heard one and if you make that argument to this jury I will hold you accountable for it. 2
On June 19 Robert Turner, one of the attorneys for the defense, in cross-examination asked a government witness Anderson whether the race of the people involved had anything to do with how Anderson, a black man, had voted in the September 4, 1984, primary. The United States Attorney objected that the question was irrelevant. The objection was sustained. An extended sidebar discussion ensued.
In the course of it, defense counsel (not Moore) explained that Anderson's grand jury testimony revealed that when he votes, Anderson votes for white people and not black people because white people are in a position to provide black people with the material things black people need. Defense counsel stated they wished to elicit an expression of this viewpoint from Anderson in the courtroom, for impeachment purposes. Such an attitude, the defense contended, might persuade the jury that Anderson's testimony at trial was what he thought the white prosecutors, not the black defendants and black defense counsel, wanted. In the course of the discussion, the district judge said that injection of racial prejudice in the case by the defense was just as improper as would be such conduct on the part of the prosecution. He said that neither the defense nor the prosecution had the right to make an appeal to racial prejudice in the case. He said:
I will let you ask him if he has any bias or prejudice towards the defendant or has any hard feelings toward them or anything else. I just don't want you to make an appeal to this jury based on racial prejudice and I think that that is where we are headed right now. Whether In the concluding portion of this colloquy, the following statements were made:
you intend it or not, that is the result of it.
The Court: Well, I thought I said and if I didn't I will say that I will certainly let you inquire for credibility purposes about any bias or prejudice that he might have against the defendants or against the civic league [in which defendants were active] or against the efforts of the civic league, anything of that sort.
[Defense counsel (not Moore) ]: Or against black people?
The Court: All I am ruling, at this point, for you to go into why [Anderson] did not vote for people whom he says he did not vote for is irrelevant. That's all I am saying. I am saying that this testimony, if it is offered to show that--on the subject of whether he voted or not, his grand jury testimony is inconsistent with his testimony here, it doesn't establish that, in my view, and I don't think you are entitled to go into it for that purpose.
....
The Court: I don't know what else to tell you, counsel. You are asking me now for a lot of advisory opinions. I have made the only ruling I have to make, at this point.
[Defense counsel (not Moore) ]: It is a narrow ruling depending upon the particular objective?
The Court: Yes, sir.
Following this colloquy, and while the witness Anderson remained on the stand, a different defense counsel (again, not Moore) conducted a cross-examination of Anderson, permitted over objection, in which there was extensive questioning concerning the witness's attitude about whites and blacks. The witness's earlier grand jury testimony about whites and blacks, referred to above, was read in the presence of the trial jury.
On June 24, 1985, the government called as its witness a Mary G. Auburtin, since 1963 clerk of the circuit court for Perry County, Alabama, whose duties included serving as absentee election manager in many elections, one of which was the September 4, 1984, Democratic primary. She testified concerning the procedures for handling applications for absentee ballots, mailing the blank ballots to the prospective absentee voters, receiving them back in the mails, stamping them as received and recording the day and hour of receipt, entering in a record that they have been received, and turning them over to the election officials. Specifically as to the absentee ballots found in her official incoming post office box on September 4, 1984, she testified to the chain of custody into the hands of the elections officials, for numbering for identification purposes and for counting in the election, and then back into her hands. She proceeded to identify certain specific absentee ballots which had been received in the September 4, 1984, primary and which the government had marked for identification and which it offered in evidence at the trial in 85-00014. She testified it was an order of a state court, entered prior to the September 4, 1984 election, which required the procedure for marking for later identification the envelopes in which absentee ballots reached Ms. Auburtin through the mail.
Early in the course of the direct examination summarized in the preceding paragraph, the following colloquy occurred:
Q What is the process that a person would have to go through to obtain an absentee ballot for that particular election?
A Well, for any election they would file an application in writing and would be mailed an absentee ballot if they are a qualified voter.
Q Did you keep a list of those names?
A Yes, ma'am.
Q Is that list available to the public?
A Yes, ma'am. Posted on the bulletin board. 3
At the conclusion of Ms. Auburtin's direct examination, a recess was taken. When court reconvened, apparently in the absence of the jury, the United States Attorney informed the court that Robert Turner, one of the defense attorneys, had requested the United States Attorney ...
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