U.S. v. Weeks, 89-2888
| Decision Date | 29 November 1990 |
| Docket Number | No. 89-2888,89-2888 |
| Citation | 919 F.2d 248 |
| Parties | 31 Fed. R. Evid. Serv. 1457 UNITED STATES of America, Plaintiff-Appellee, v. Danny Michael WEEKS, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Roland E. Dahlin, II, Federal Public Defender, Marjorie A. Meyers, Houston, Tex., for defendant-appellant.
Paula C. Offenhauser, Asst. U.S. Atty., Henry K. Oncken, U.S. Atty., Houston, Tex., for plaintiff-appellee.
Appeal from the United States District Court for the Southern District of Texas.
Before JOLLY, HIGGINBOTHAM and JONES, Circuit Judges.
Defendant-appellant Danny Michael Weeks was convicted after a jury trial of two counts of kidnapping, two counts of interstate transportation of a stolen vehicle, and one count each of carrying a firearm during a crime of violence and possessing a firearm as a convicted felon. The district court sentenced Weeks to prison for two consecutive life terms followed by 17 years, plus a fine of $1,250,000. On appeal, Weeks alleges numerous errors by the trial court and the prosecutors. We affirm.
This case has come to us before on appeal. In United States v. Weeks, 870 F.2d 267 (5th Cir.), cert. denied, --- U.S. ----, 110 S.Ct. 92, 107 L.Ed.2d 57 (1989), we upheld against a double jeopardy challenge the district court's decision to grant Weeks' motion for a mistrial without prejudice to the government's right to reprosecute. The background and procedural history of this prosecution are adequately described in that opinion. We now examine here the seven issues on which Weeks seeks reversal of his convictions following remand and retrial.
Weeks first contends that the district court abused its discretion in requiring him to stand trial confined by shackles. We agree with Weeks that "[a]n accused person is presumed innocent and is, therefore, entitled to the indicia of innocence in a jury trial." United States v. Theriault, 531 F.2d 281, 284 (5th Cir.), cert. denied, 429 U.S. 898, 97 S.Ct. 262, 50 L.Ed.2d 182 (1976). This entitlement, however, "must be balanced against the court's obligation to protect the court and its processes, and to attend to the safety and security of those in the courtroom." United States v. Nicholson, 846 F.2d 277, 279 (5th Cir.1988). Moreover, "[t]his balancing of competing interests is entrusted to the sound discretion of the trial court." Id.; see also Theriault, 531 F.2d at 284. The record indicates that the court did not abuse its discretion in requiring Weeks to be shackled.
As to the necessity of restraining Weeks in the first place, the district court displayed awareness that Weeks had escaped from the Louisiana state penitentiary at Angola and that the crimes charged at trial grew out of this escape. The court also relied on the testimony of two United States Marshals. According to Deputy Bright, the Marshal's Service knew that Weeks had planned two escapes from the local county jail before his first trial. According to Deputy Riley, the Marshal's Service twice received notification from the county jail that Weeks was planning to escape prior to his second trial. Weeks attempts to discount these concerns by pointing out that he had been allowed to appear at pretrial matters unchained. We do not see the supposed inconsistency: neither a jury nor large numbers of spectators are present at pretrial proceedings.
Weeks also claims that the court's reliance on the Marshal's Service was an impermissible delegation of discretion in violation of United States v. Samuel, 431 F.2d 610, 615 (4th Cir.1970). Although the Fourth Circuit did hold that a district judge may not delegate his discretion to the Marshal, it went on to say that "he may rely heavily on the Marshal's advice as to what may be required since it is the Marshal who has the experience in the keeping of prisoners and who must provide the guards and bear the major responsibility if untoward incidents occur." Id. Weeks attempts to show an impermissible delegation of discretion by quoting the court's statement that it would "leave Court security to the Marshal's Service." This quotation is entirely misleading. It was uttered in response to a request by counsel at voir dire that the marshals "back up;" it had nothing to do with shackling. The court made an extensive record on the shackling issue, even allowing defense counsel to cross-examine the marshals about Weeks' alleged escape plans.
Finally, the court took steps to minimize any potential for prejudice from the shackles. File-type boxes were placed in front of the desk at which Weeks sat during trial, preventing the jury from seeing the shackles but otherwise not blocking its view of him. Before and after Weeks displayed his forearms to the jury, the jury was excused while Weeks was moved around the courtroom. The court noted that these procedures had successfully hidden the shackles from the jury at co-defendant James ("Jimmy") Colvin's trial--until Colvin had deliberately lifted his legs to show the jurors. With that in mind, the court suggested to counsel before the first trial that she direct Weeks not to do the same thing if he wished to keep the jury ignorant of the shackles. Given its reasonable reliance on the Marshal Service's experience with courtroom security and its efforts to limit any prejudice, the district court did not abuse its discretion in requiring Weeks to be shackled at trial.
Weeks next claims that the district court erred in allowing an assistant warden of the Angola penitentary to testify that Weeks's nickname in prison was "Gato." Because kidnap victims Linda Mayeaux and Karyn Laccheo both testified that their abductors used the names "Jimmy" and "Gato," this testimony helped to establish the identity of Weeks as one of the two abductors of the women. Weeks argues that the court should have excluded the warden's testimony as hearsay not falling within any exception. See Fed.R.Evid. 802. Hearsay is defined as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted;" a statement is "an oral or written assertion." Id. 801(a) and (c). We conclude that the warden's testimony reported non-assertive oral conduct and was therefore not hearsay.
The following exchanges took place between the witness and defense counsel Meyers and prosecutor Woodward (emphasis added):
BY MS. MEYERS:
Q. Have you ever heard, personally heard anyone call Danny Michael Weeks by a nickname?
A. I have heard other inmates. That's my personal knowledge of the inmates, and other security people call him by a nickname.
Q. Personally on the yard or have you heard them use it or just told you that was his name?
A. I've heard an officer before call him by that name.
. . . . .
Q. So the officer told you that name but didn't call Mr. Weeks that name and have him answer to that name?
A. Didn't have him answer to it.
. . . . .
Q. And the only way you have heard this name Gato is some guards used that name with reference to Mr. Weeks; is that correct?
A. I've heard a guard use it.
Q. The guard is not the only person you've heard the name Gato from in regard to Danny Michael Weeks; isn't that true?
A. I have heard other inmates use it.
Had the interrogation ceased after the third question and answer ("So the officer told you ...?"), it is likely that the jury, in order to believe that Weeks' nickname was Gato, would have had to accept as true the out-of-court assertion of an unidentified "officer." The questioning continued, however, and the warden elaborated on his previously vague answer. He stated that he had heard both a guard and other inmates "use" the nickname. The jury could infer that the warden had personal knowledge of the nickname, knowledge acquired as people often acquire knowledge of names--by hearing other people "use" them in a non-assertive manner.
We review a district court's evidentiary rulings for abuse of discretion. LeBoeuf v. K-Mart Corp., 888 F.2d 330, 333 (5th Cir.1989). In the present context, this review is focused on the question whether the reported oral conduct of a guard and other inmates conveyed assertions. According to the drafters of the Federal Rules of Evidence, the "key" to the definition of "statement" is that "nothing is an assertion unless intended to be one." Moreover, "[t]he rule is so worded as to place the burden upon the party claiming that the intention existed; ambiguous and doubtful cases will be resolved against him and in favor of admissibility." Fed.R.Evid. 801(a) advisory committee's note. The district court implicitly ruled that Weeks did not meet his burden. Given our analysis above, the court did not abuse its discretion by admitting the testimony.
Weeks next argues that the district court committed reversible error by taking a partisan stance in favor of the government when the court questioned Linda Mayeaux about her doubts as to the identity of Weeks as one of her kidnappers. The following exchange took place during defense counsel's cross-examination of Mayeaux:
Q. At that time you identified Mr. Weeks as the other individual; is that correct?
A. Correct.
We address this point in light of two propositions: (1) a district judge has the authority to "comment on the evidence [and] question witnesses and elicit facts not yet adduced or clarify those previously presented;" and (2) "[o]nly when the judge's conduct...
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