United States v. Betner

• Decision Date: 08 February 1974
• Docket Number: No. 73-1986.,73-1986.
• Citation: 489 F.2d 116
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Earl Bobby BETNER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

489 F.2d 116 (1974)

UNITED STATES of America, Plaintiff-Appellee, v. Earl Bobby BETNER, Defendant-Appellant.

No. 73-1986.

United States Court of Appeals, Fifth Circuit.

February 8, 1974.

Joseph E. Wilkerson, Atlanta, Ga. (Court-appointed), for defendant-appellant.

John W. Stokes, Jr., U. S. Atty., Eugene A. Medori, Jr., Anthony M. Arnold, Asst. U. S. Attys., Atlanta, Ga., for plaintiff-appellee.

Before RIVES, WISDOM and MORGAN, Circuit Judges.

RIVES, Circuit Judge:

Betner was adjudged guilty on a jury's verdict after trial under an indictment which charged that he "knowingly and intentionally did unlawfully distribute about 4.75 grams of heroin hydrochloride, a Schedule I narcotic drug controlled substance, in violation of Title 21, United States Code, Section 841(a) (1)."

Since the indictment charged unlawful distribution, it did not require proof that Betner sold or aided and abetted in the sale of the heroin. United States v. Johnson, 5 Cir. 1973, 481 F.2d 645, 647. The evidence was sufficient to support the jury's verdict.

Nonetheless, the case must at least be remanded because the district court failed to conduct a full and thorough investigation before ruling on the objection of Betner's counsel to the panel of jurors selected to try the case. The objection was based on a conversation between members of the jury panel and a member of the United States Attorney's staff.

The pertinent part of the written record is extremely brief, consisting entirely of the following:

"MR. WILKERSON Betner\'s Attorney: I would also like to enter an objection to the present panel of jurors based on the fact for the past recess the District Attorney\'s office has had opportunity to discuss and converse with the jurors, thereby prejudicing them against the defendant.

"MR. GAFFNEY Assistant U. S. Attorney who prosecuted Betner: I have been in my office during the entire period.

"THE COURT: Motion overruled. I assume that the conversation Mr. Smith Assistant U. S. Attorney who prosecuted an earlier case had has been with respect to the results of the previous case.

"MR. SMITH: That is what we have been discussing. This case wasn\'t mentioned at all to anyone to my knowledge. As a matter of fact I don\'t even know, I know Mr. Saganar Attorney for a codefendant of Betner, this case was not mentioned at all, the other case was discussed or the one which they were on.

"THE COURT: * * * Okay, bring in the panel.

"MR. WILKERSON: I want to make sure—

"THE COURT: If it\'s of any assistance I will submit to counsel for the defendant my list of the jurors in the Elizabeth Faye Jones case. Do you want that?

"MR. WILKERSON: I\'d like to make sure it\'s entered in the record my objection.

"THE COURT: I think the reporter just took it down.

"(Whereupon, the jury panel was brought into the courtroom.)" (R. pp. 5-6.)

The peremptory and almost casual overruling of Betner's objection to the panel of jurors may be supplemented by the statements of his appointed counsel both in brief and upon oral argument. In brief counsel stated:

"Appellant submits that on the 16th day of March, 1973, a U. S. Attorney, M. Robert L. Smith, without permission or direction of the Court, conversed and fraternized with members of a jury outside the hearing of the Court for an extended period of time during a one and one half hour recess; these said jury members being about to be seated for the trial of the Appellant herein. Counsel for Appellant objected to these prospective jurymen being seated, stating in open court that they had been prejudiced against the Defendant Betner, Appellant herein. Page 5 of Transcript, Lines 2-18. Said motion was overruled by the Court. The Appellant now appeals that ruling.

"It is the contention of the Appellant that the fraternizing by the U. S. Attorney\'s office with the jury created, intentionally or unintentionally, a relationship or common ground between the office of the U. S. Attorney and the jurors. Further, that this fraternizing and conversation created a spirit of friendship and cooperation between the office of the U. S. Attorney and the jurors and that this resulted in prejudice to the Appellant herein.

"As a result of the conversation and fraternization as set out above, said conduct being admitted by the U. S. Attorney\'s office Page 5 of Transcript, Lines 10-18 the Appellant\'s trial was unduly and unnecessarily prejudiced * * *."

The appellee's brief took the following position:

"Defense counsel was content to let the matter rest there, and sought no clarification of the alleged extraneous transaction. The Court asked all counsel if there were any questions that should be propounded to the jury `touching on its legal qualifications.\' (R. 7). The panel roll was called and a jury was selected, without appellant\'s counsel seeking any inquiry into the possibility that any members of the jury had spoken with Mr. Smith. Mr. Smith had stated that the substance of his remarks had been addressed towards the Elizabeth Faye Jones case, and nothing else. The defense made no effort to obtain the list of jurors in that case, which the Court offered. (R. 6)."

Upon oral argument appellant's counsel challenged that position and insisted that the jury was chosen prior to the long recess, and that government counsel conversed and fraternized with members of the jury during most of that period.

Appellee's counsel on oral argument conceded that he had not participated in the trial and had no knowledge or information other than that disclosed by the record. Apparently that is true also of counsel who prepared the appellee's brief. In view of the ambiguous state of the record, and the failure of appellee to challenge the statements of appellant's counsel, we have no reason to doubt the accuracy of those statements and accept them.

The district court's investigation went no further than to ascertain that the case on trial was not mentioned. This was insufficient. True, in Remmer v. United States, 1954, 347 U.S. 227, 229, 74 S.Ct. 450, 451, 98 L.Ed. 654 (rehearing granted,...