United States v. Eastwood, 73-2417 Summary Calendar.
Decision Date | 25 January 1974 |
Docket Number | No. 73-2417 Summary Calendar.,73-2417 Summary Calendar. |
Citation | 489 F.2d 818 |
Court | U.S. Court of Appeals — Fifth Circuit |
Parties | UNITED STATES of America, Plaintiff-Appellee, v. Steven Harry EASTWOOD, Defendant-Appellant. |
Joseph Neves Marcal, III, New Orleans, La., for defendant-appellant.
Gerald J. Gallinghouse, U. S. Atty., Mary Williams Cazalas, Asst. U. S. Atty., New Orleans, La., for plaintiff-appellee.
Before BROWN, Chief Judge, and DYER and SIMPSON, Circuit Judges.
Appellant and co-defendant Bruno were convicted under 21 U.S.C.A. § 841(a)(1) for unlawful possession with intent to distribute a controlled substance—approximately 100,000 tablets of d-methamphetamine hydrochloride. Appellant seeks to have his conviction reversed challenging the District Court's exercise of its discretion in (1) refusing to ask the prospective jurors a question requested by appellant's counsel on voire dire, (2) declining to declare a mistrial after government witnesses violated the Court's sequestration order, and (3) denying appellant's motion for severance after counsel for co-defendant raised the issue of entrapment. We affirm.
The Court immediately excused this juror.
The Court denied the request after the Assistant United States Attorney objected.
The scope of the examination of prospective jurors on voire dire is committed to the sound discretion of the District Court. But, of course, a refusal to inquire into a particular subject which affects the basic fairness of the trial is not accepted. Ham v. South Carolina, 1973, 409 U.S. 524, 93 S.Ct. 848, 35 L.Ed.2d 46; United States v. Gassaway, 5 Cir., 1972, 456 F.2d 624. See also F.R.Crim.P. 24(a).
Since we do not believe that the refusal to propound the requested inquiry could affect the basic fairness of appellant's trial where the District Court posed careful though general questions pertaining to the possibility of bias to the prospective jurors, we conclude that the District Court did not abuse its wide discretion in conducting the voir dire. Ham, supra.1
At the beginning of the trial, the District Court declared that 2
Later the same morning, a member of the jury was seen talking in the hall with a federal narcotics agent, who was to be a government witness in the case. The juror told the Court that he had worked with the agent four years earlier and did not know that he was now a narcotics agent. The juror was dismissed and replaced by one of the alternates.
Appellant's counsel instructed one of his own witnesses to sit in the hall and observe whether any of the government's witnesses conversed. The witness reported back that there had been some conversation and appellant's counsel relayed this information to the Court.
After placing the parties involved under oath, the Court inquired into the incidents. The incidents involved Danny Valliere and Bill Burandt, government witnesses who had pleaded guilty after originally having been indicted along with appellant.
An employee of the Clerk's office who was an acquaintance of Valliere's saw Valliere in the hall and asked him why he wasn't in the courtroom. Valliere said he was not allowed in the courtroom while other witnesses were testifying. As this clerk's employee entered the courtroom, Valliere admits having said "you can let me know what's going on." He insisted that this was simply a figure of speech. There was no testimony that Valliere ever talked to this employee after he entered the courtroom.
Valliere testified that he did not discuss the courtroom proceedings with his wife.
When Burandt finished testifying and left the courtroom, he encountered Valliere in the hall and apparently said "I can't talk here." The two proceeded down the hall where they encountered the Assistant United States Attorney who was trying the case. The three then ate lunch together. The Assistant United States Attorney testified that he discussed Valliere's future testimony with him but Burandt's previous testimony was not mentioned.
At the outset, the determination of whether to sequester witnesses at all is a matter for the District Court's discretion. See United States v. Ruacho-Acuna, 5 Cir., 1971, 440 F.2d 1199. The appropriate remedy for breach of a sequestration order is also committed to the sound discretion of the trial court. Holder v. United States, 1893, 150 U.S. 91, 14 S.Ct. 10, 37 L.Ed. 1010.3
Whether to declare a mistrial is also a matter within the District Court's discretion. United States v. Pritchard, 5 Cir., 1969, 417 F.2d 327. We think that the District Court in the sound exercise of its discretion could fairly conclude that none of these incidents considered individually or in their totality provided sufficient opportunity for prejudice to warrant a mistrial.
At the commencement of the trial, appellant's counsel informed the Court that he might make a motion for severance at a latter date if it appeared that codefendant's strategy of defense might prejudice appellant. Appellant did not intend to raise a defense of entrapment but rather intended to maintain, and did so maintain, that he had never intended to engage in an actual sale of narcotics but was instead under the impression that he was a party to a mere bogus sale —"a rip-off."
In his opening argument, counsel for co-defendant implied that appellant and co-defendant may have been "induced" to come to New Orleans by the prospect of the illegal narcotics transaction proposed by a government agent. Appellant made and the Court denied a motion for severance at this time.4
Shortly thereafter counsel for co-defendant suggested that the Government had "entrapped" co-defendant into participating in the...
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