United States v. Boatner

• Decision Date: 04 May 1973
• Docket Number: No. 600,Docket 72-2287.,600
• Citation: 478 F.2d 737
• Parties: UNITED STATES of America, Appellee, v. Coye BOATNER, Appellant.
• Court: U.S. Court of Appeals — Second Circuit

478 F.2d 737 (1973)

UNITED STATES of America, Appellee, v. Coye BOATNER, Appellant.

No. 600, Docket 72-2287.

United States Court of Appeals, Second Circuit.

Argued February 15, 1973.

Decided May 4, 1973.

Henry J. Boitel, New York City, for appellant.

Frank H. Wohl, Asst. U. S. Atty. (Whitney North Seymour, Jr., U. S. Atty., S. D. N. Y., and John W. Nields, Jr., Asst. U. S. Atty., of counsel), for appellee.

Before FRIENDLY, Chief Judge, OAKES, Circuit Judge, and DAVIS, Judge.^*

OAKES, Circuit Judge:

Following a six day trial before a jury and Judge Cooper in the Southern District of New York, appellant, Coye Boatner, was convicted of one count of possession of counterfeit money in violation of 18 U.S.C. § 472 and sentenced to three years' imprisonment. His principal claim on this appeal, one which is heard frequently, see, e. g., United States v. Nazzaro, 472 F.2d 302 (2d Cir. 1973); United States v. Pellegrino, 470 F.2d 1205 (2d Cir. 1972), cert. denied, 411 U.S. 918, 93 S.Ct. 1556, 36 L.Ed.2d 310 (1973); United States v. Dellinger, 472 F.2d 340, 385-391 (7th Cir. 1972), cert. denied, 410 U.S. 970, 93 S.Ct. 1443, 35 L.Ed.2d 706 (1973), is that the trial judge's "disparagement" and "intimidation" of defense counsel denied appellant a fair trial.

A brief recital of the evidence introduced at trial will help put appellant's contention in perspective. The Government's proof established that in June, 1971, appellant received $700 in counterfeit bills in the Bronx from a convicted counterfeiter, one Goodson, who was the principal witness against appellant at trial. It also established that at a hamburger stand in New Orleans appellant had passed a phony $10 bill made from Goodson's plates and negatives. The defense's contention was that the Bronx transfer never occurred and that appellant had inadvertently passed the phony $10 bill in New Orleans after receiving it from his girl friend, who in turn had received it from Goodson. The defense claimed that Goodson lied because he sought revenge against appellant for his previous testimony before a grand jury which led to Goodson's indictment and ultimate prison term on a counterfeiting charge. The jury, however, apparently rejected appellant's version of events and credited the Government's case.

The trial began amicably enough, with the judge telling the jury that "both lawyers on both sides have the respect of the Judge, they are fine, upright accredible sic members of the Bar, and we are proud of them, they are fighting, as they should, for their respective sides . . . ." Soon, however, interaction between the trial court and defense counsel, a former Assistant United States Attorney, developed unmistakable overtones of hostility and acrimony. The flames of hostility that were later to blaze were apparently initially sparked by defense counsel's delay in making certain suppression motions until the day of jury impaneling. They were fueled by defense counsel's omission, despite his knowing that the trial was set to begin at 10:00 a. m., to inform the court he had another court appearance that would prevent his being in court at that time. Defense counsel did not appear in the courtroom until 10:20 a. m. on the day that the trial was to begin, and trial did not begin until 10:55 a. m. Hostility between court and counsel first burned openly in an exchange begun by what the trial court believed were defense counsel's unwarranted interruptions of Goodson's testimony on cross-examination after counsel had asked Goodson to "tell me everything" about a particular happening. The trial court reacted strongly to defense counsel's argument with the court's sustaining of the prosecution's objection on the point. Before the jury, after the Government's objection, the court said, "You are right. Please continue." Defense counsel replied, "I disagree. I don't think he is right." This exchange ensued:

The Court: Stop it.

Mr. Gold: I am not—

The Court: I will not take any impudence.

Mr. Gold: I am not being impudent.

The Court: Don\'t do that.

Mr. Gold: I am not doing anything, if it please your honor.

The Court: Excuse the jury.

In the absence of the jury the court then expressed displeasure with the whole course of defense counsel's behavior up to that point in strong terms and at some length. He then asked defense counsel and the Government for comments, which too were at some length. When defense counsel moved for a mistrial, the following interchange occurred:

Mr. Gold: Perhaps your honor would want to relieve me and declare a mistrial and get another.

The Court: You just sit right down. That is what you would like.

Mr. Gold: That is not what I would like.

The Court: Don\'t holler at me, sit down.

Mr. Gold: Your Honor—

The Court: Don\'t.

Mr. Gold: I will not be ordered about like some child in a courtroom.

The Court: You are a child. I am directing you to sit down or I will hold you in contempt.

Mr. Gold: I am not a child. Your Honor, I hope—

The Court: Nothing further, quiet.

Mr. Gold: I am entitled to courtesy.

The Court: Bring the jury in.

Mr. Gold: I want to be treated with courtesy.

The Court: When you deserve it you will be. Sit down.

Mr. Gold: Please, your Honor, don\'t address me in that tone.

The Court: Sit down.

Mr. Gold: I am telling you now, your Honor—

The Court: I am telling you I will hold you in contempt of court if this continues.

Mr. Gold: I am only trying to do what I think is best.

The Court: I find you in contempt.

Mr. Gold: Yes, sir.

The Court: Bring the jury in.

Hostility and acrimony in the interactions between defense counsel and the trial court only increased in intensity thereafter. At a side bar conference at another point in the trial, the court called defense counsel's conduct "disgusting and shyster-like" and "denounced" counsel for "creating a reason for a mistrial." Toward the end of the trial defense counsel's objection to a reference by the trial court to counsel's motive triggered the court in the presence of the jury to call a Marshal to help enforce the court's orders to defense counsel to sit down. Other examples of hostility and antagonism between court and counsel could be detailed at some length but to no particular point. Suffice it here to say that a number of incidents occurred throughout the trial.

Appellant blames the trial court and the Government blames appellant's counsel below for these events. We, however, see little utility in trying to assess proportionate blame on this "cold record." United States v. Grunberger, 431 F.2d 1062, 1067 (2d Cir. 1970). It may well be that much of the trial court's treatment of defense counsel was induced by counsel's lack of ordinary courtesy and close to contemptuous conduct; it is also true that "trial judges must display patience with counsel so as not to prejudice a party or create an impression of partisanship before the jury." United States v. Pellegrino, supra, 470 F.2d at 1207. Instead of seeking to apportion blame we prefer to consider the course of events as regrettable for all concerned and look rather to other "tiles in the mosaic of the trial," United States v. Nazzaro, supra, 472 F.2d at 304, to determine if a new trial is necessary. We conclude that it is not.

First, appellant has not substantiated his claim of prejudice flowing from the hostility between trial judge and defense counsel. In contrast to United States v. Nazzaro, supra, and United States v. Dellinger, supra, the trial court's comments did not create an impression that he personally believed in the appellant's guilt. United States v. Pellegrino, supra, 470 F.2d at 1207; United States v. Brandt, 196 F.2d 653, 656 (2d Cir. 1952). The trial court's comments were directed exclusively at the conduct of appellant's counsel, not—with one exception to be referred to below—at appellant's credibility or the strength of his case. United States v. Ross, 321 F.2d 61, 66 n. 3 (2d Cir.), cert. denied, 375 U.S. 894, 84 S.Ct. 170, 11 L.Ed.2d 123 (1963). While the trial court's annoyance was directed primarily at defense counsel, the prosecutor too received a share.¹ More importantly, the trial court's rulings on objections during the trial were quite evenhanded and displayed no bias toward one side or the other.

There may be a point, however, where hostility between court and defense counsel alone creates the kind of embattled and prejudicial atmosphere in the courtroom that makes a fair trial impossible. This case falls just short of it, however. Defense counsel in no way could be said to have been "intimidated" by the trial court. Rather his advocacy of his client's interests was vigorous throughout and only increased in vigor in proportion to the hostility from the trial court.² The key question is whether the jury was prejudiced against appellant by the interchanges between the trial court and defense counsel. Most, fortunately, took place outside the presence or hearing of the jury. While it would have been much better had none of the hostility evidenced itself in the jury's presence, we cannot say that the few brief incidents in which it did inherently prejudiced the jury against appellant. The one of these that comes closest to the line occurred in the course of the cross-examination of the defendant himself the reporting of which (with colloquies) consumed over 160 pages of trial transcript. The cross-examiner was inquiring of the defendant as to his interrogation by two United States attorneys after the New Orleans bill passing incident. After several objections to the line of questioning and to specific questions, primarily on the basis that the interview was not used in the Government's case in chief and that it was unfair to confront the witness accordingly, defense counsel reiterated his objections as follows:

Mr. Gold: I have one more thing to bring up, to your Honor\'s attention, and that is that the Government did not make an offer of this conversation in its case in chief and they are deprived of

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