J. Minos Simon, Lafayette, La., for defendant-appellant in No. 75-3615.
James A. McPherson (Court-appointed), New Orleans, La., for defendants-appellants in Nos. 75-3792 and 75-4155.
Milton P. Masinter, New Orleans, La., for defendant-appellant in No. 75-4010.
Donald E. Walter, U. S. Atty., Shreveport, La., Douglas M. Gonzales, U. S. Atty., Stephen A. Mayo, Asst. U. S. Atty., Baton Rouge, La., for plaintiff-appellee in Nos. 75-3615, 75-3792, 75-4010 and 75-4155.
James D. Carriere, Asst. U. S. Atty., New Orleans, La., for plaintiff-appellee in Nos. 75-3615, 75-3792 and 75-4155.
Appeals from the United States District Court for the Western District of Louisiana.
Before MORGAN and HILL, Circuit Judges, and NOEL, District Judge.
LEWIS R. MORGAN, Circuit Judge:
Defendant-appellants Partin, Russell, and Sykes were convicted in three separate trials, and Don and Hugh Marionneaux in a fourth, of conspiring to obstruct the due administration of justice. Because the conviction of each defendant was based on the same three count indictment, and because some of the appeals involve common issues, we consolidated the appeals for argument and decision. For the reasons stated in the opinion that follows, we must reverse the convictions of Partin. We affirm as to the other four appellants.
I. BACKGROUND AND CHRONOLOGY.
The events leading to the indictments in the instant cases began in 1969, when a federal grand jury in Baton Rouge, Louisiana indicted Edward Grady Partin, the business manager of Teamsters Local No. 5 in Baton Rouge, and others for violations of the Hobbs Act and Sherman Act. Following a change of venue, Partin was tried in Butte, Montana beginning June 14, 1971. The jury was unable to reach a verdict and a mistrial was declared. After another change of venue, Partin was retried in Atlanta, Georgia beginning January 31, 1972. The jury found Partin guilty on four counts, but the district court granted a new trial. At the new trial, also in Atlanta, Partin was found guilty on one count. We reversed that conviction and remanded for a new trial. United States v. Partin,
493 F.2d 750 (5th Cir. 1974). At this point, the government elected to dismiss the indictment.
Wade McClanahan, a former Teamster ally of Partin, was the government's star witness against him in Partin's Hobbs Act trials. In February of 1970 Richard Baker and Claude Roberson testified before a federal grand jury in New Orleans that they had overheard Partin threaten McClanahan in an attempt to dissuade McClanahan from testifying against him in those trials. The New Orleans grand jury indicted Partin for obstruction of justice. Trial on this charge was set to begin October 10, 1972 in Houston.
In September of 1972 the government's key witnesses for the Houston trial, Baker and Roberson, dropped from sight. A trial subpoena was issued on September 25, 1972 for Baker to appear at the scheduled October 10 trial. Agents for the Federal Bureau of Investigation located Baker on a tugboat in West Virginia on September 27 and told him that he was expected to appear. Baker told them that he would not appear because he feared for his own and his family's lives.
The FBI agents communicated this information to the United States Attorney in New Orleans, Gerald Gallinghouse. Gallinghouse, fearing that his witnesses had been tampered with, immediately obtained a subpoena for Baker to appear before the federal grand jury in New Orleans on October 5, 1972. This subpoena, together with the trial subpoena, was served on Baker on September 30, 1972.
Baker thereupon dropped from sight once again. He did not appear before the New Orleans grand jury on October 5, and a material witness warrant was issued for him. Partin's Houston trial was continued to October 31 because of Baker's and Roberson's disappearance.
On October 31 Baker appeared at the federal courthouse in Houston and was arrested. On November 2 he testified at Partin's trial, stating that he never had heard Partin threaten McClanahan. Baker admitted that he had met with Teamster lawyer Jerry Millican and Don Marionneaux in Pittsburgh on October 3 and had given them a statement favorable to Partin. He denied that Marionneaux had given him $500 at that time, testifying instead that Marionneaux had loaned him $75. Roberson did not appear for the Houston trial at all. The jury found Partin not guilty of threatening McClanahan.
On November 9 Baker appeared under subpoena before a federal grand jury in Baton Rouge that had begun an investigation into possible obstruction of justice in connection with Partin's Houston trial. Baker repudiated his testimony at that trial, stating that he had, in fact, received $500 from Don Marionneaux in Pittsburgh. He also implicated several people in an apparent conspiracy to obstruct justice in connection with Partin's Houston trial.
On January 24, 1973 Baker again went before the Baton Rouge grand jury. He repudiated his November 9 testimony, stating (as he had at the Houston trial) that Don Marionneaux had loaned him $75, not given him $500, in Pittsburgh.
The Baton Rouge grand jury investigation continued. Baker was indicted for giving false material declarations before the grand jury, pleaded guilty on February 14, 1973, and was sentenced to prison. On October 4, 1973 the same grand jury returned the three count indictment upon which the instant cases were prosecuted. Count I charged that beginning October 1, 1972 Partin, brothers Don and Hugh Marionneaux, Jerry Thomas, Jeffrey Roy Brasseaux, Joseph Green, and Millican had conspired to obstruct the due administration of justice by inducing and helping Baker not to appear before the New Orleans grand jury on October 5 and to give false material declarations at the Houston trial. Count II charged that beginning in September of 1972 Partin, Jack P. F. Gremillion, Jr., Harold Sykes, Ben Trantham, and Crockett Carleton had engaged in a similar conspiracy to obstruct the due administration of justice by inducing and helping Roberson not to appear for the Houston trial. Count III charged that beginning November 9, 1972 Partin and O. Romaine Russell, a Teamster lawyer, had conspired to obstruct the due administration of justice by inducing Baker to repudiate his November 9 testimony to the Baton Rouge grand jury.
A series of seven trials on this indictment began in June of 1974. From June 10 through June 14, 1974 Judge Nauman S. Scott of the Western District of Louisiana, designated by Chief Judge Brown of this court to sit ad hoc for the Middle District of Louisiana, presided over the trial of Brasseaux on Count I in Baton Rouge. A jury found Brasseaux guilty, and we affirmed the conviction. United States v. Brasseaux,
509 F.2d 157 (5th Cir. 1975).
From July 8 through July 11, 1974 Judge Scott, after granting a change of venue to Shreveport in the Western District of Louisiana, presided over the trial of Thomas on Count I. A jury found Thomas not guilty.
From August 12 through August 17, 1974 Judge Scott, after granting a change of venue to Shreveport, presided over the trial of Don and Hugh Marionneaux on Count I and Sykes, Trantham, and Carleton on Count II. A jury found the Marionneaux brothers, Sykes, and Trantham guilty and found Carleton not guilty. On appeal, we reversed the four convictions and remanded for a new trial. United States v. Marionneaux,
514 F.2d 1244 (5th Cir. 1975).
On January 20, 1975 Gremillion changed his plea to guilty on Count II. Judge Scott, finding a factual basis existed for the plea, accepted it and deferred sentencing until after the next trial.
From February 17 through March 4, 1975 Judge Scott, after granting a change of venue to Shreveport, presided over the trial of Partin on Counts I, II, and III. A jury found Partin guilty on all three counts. These convictions now are before us in No. 75-3615.
From May 26 through June 4, 1975 Judge Scott, after granting a change of venue to Alexandria in the Western District of Louisiana, presided over the trial of Russell on Count III. A jury found Russell guilty. This conviction now is before us in No. 75-4010.
From July 14 through July 18, 1975 Judge Scott presided over the retrial in Shreveport of Don and Hugh Marionneaux on Count I, together with Green, also on Count I. A jury found Don and Hugh Marionneaux guilty and found Green not guilty. These convictions of Don and Hugh Marionneaux now are before us in No. 75-4155.
From July 28 through July 30, 1975 Judge Scott presided over the retrial in Shreveport of Sykes and Trantham on Count II. A jury found both guilty. Trantham since has died, and this conviction of Sykes now is before us in No. 75-3792.
Millican, who testified for the government in all four trials on review here, has not been tried for his part in the Count I conspiracy.
II. NO. 75-3615: PARTIN.
A. The "Slight Evidence" Instruction. We are bound by precedent to reverse Partin's convictions. The district court gave the jury the following " slight evidence" instruction:
Since a conspiracy by its very nature is born and clothed in secrecy, the first element of the offense agreement is seldom susceptible of direct proof. Proof of the agreement or common purpose must therefore rest upon inferences drawn from relevant and competent circumstantial evidence ordinarily, the acts and conduct of the conspirators themselves. Once the existence of the agreement or common scheme of conspiracy is shown, however, slight evidence is all that is required to connect a particular defendant with the conspiracy.
Record Vol. 40 at 4243-44 (emphasis added). Partin's counsel objected to this instruction on the ground that it "is at war with the elementary proposition that every act of guilt must be established beyond a reasonable doubt." Id. at 4253; see also Record Vol. 9 at 1422-23 (Motion for New Trial). The objection should have been sustained.
We first considered the propriety of the "slight evidence" instruction in United States v. Brasseaux,
509 F.2d 157 (5th Cir. 1975), where we reviewed the conviction of another Count I conspirator. We held that, although the instruction's language states the appropriate standard for appellate review of the sufficiency of the evidence, but cf. United States v. Alvarez,
548 F.2d 542, 543-45 (5th Cir. 1977), it is error to give the instruction to the jury because,
(f)irst, the jury might be led to conclude that a defendant's participation in the alleged conspiracy need not be proved beyond a reasonable doubt. Second, they might simply become confused regarding the proper standard for linking a defendant to a conspiracy.
509 F.2d at 162. Because defense counsel in Brasseaux did not object to the instruction at trial, we had to determine whether, in that case, the instruction was plain error. Fed.R.Crim.Pro. 52(b). We held that, in view of counsel's failure to object and the balance of the trial court's instructions, the instruction did not constitute plain error. 509 F.2d at 161-62.
We next considered the "slight evidence" instruction in United States v. Marionneaux,
514 F.2d 1244 (5th Cir. 1975), where we reviewed convictions of Count I and Count II conspirators. In Marionneaux, unlike Brasseaux, defendants did object to the instruction. We held that, "Under Brasseaux, the district court's use of the 'slight evidence' instruction over defendants' objection was reversible error," 514 F.2d at 1249, and remanded for new trials.
We condemned the instruction again in United States v. Hall,
525 F.2d 1254 (5th Cir. 1976). There, where the instruction was given and duly objected to, the government argued that the error was harmless and was cured by other instructions. We refused even to entertain the argument, and reversed the conviction:
The government concedes error in the instruction but contends that the error was harmless and that the trial judge cured it by other instructions. Despite the lack of provable prejudice to defendant's case because of other instructions giving the reasonable doubt standard, however, the erroneous instruction reduced the level of proof necessary for the government to carry its burden by possibly confusing the jury about the proper standard or even convincing jury members that a defendant's participation in the conspiracy need not be proved beyond a reasonable doubt.
525 F.2d at 1256 (footnote omitted). Reduction of the government's burden of proof, we said, "is impermissibly inconsistent with the 'constitutionally rooted presumption of innocence.' See Cool v. United States,
409 U.S. 100, 93 S.Ct. 354, 34 L.Ed.2d 335 (1972) (per curiam)." 525 F.2d at 1256 n. 2. We have reiterated our strong condemnation of the instruction in dicta in two other cases. United States v. Murray,
527 F.2d 401, 409 (5th Cir. 1976); United States v. Nicholson,
525 F.2d 1233, 1237 (5th Cir. 1976).
Despite this line of cases, the government implores us to find that the instruction here, although erroneous, was harmless or was cured by other instructions. We, however, are barred from searching for harmless error or for cure by Judge Gee's opinion in Hall, supra, where he flatly refused to undertake such a search. We are bound to hold, and do hold, that it was reversible error to give the "slight evidence" instruction over Partin's objection.
This error alone requires reversal. Because Partin is liable to be retried, however, we deem it proper to discuss two other questions that are likely to recur at any retrial.
B. Two Challenges to the Indictment. Partin, under the guise of challenging the sufficiency of the evidence, makes two attacks on the indictment itself. The first goes to the portion of Count I that charges he conspired with others to obstruct the due administration of justice in the Eastern District of Louisiana by inducing and helping Baker to ignore his subpoena to appear before the New Orleans grand jury on October 5, 1973. The argument, in essence, is that the New Orleans grand jury did not have jurisdiction to investigate witness-tampering because there was no evidence that any such offense had been committed in the Eastern District of Louisiana. Hence, Partin argues, a conspiracy to induce Baker not to appear at that investigation could not be one to obstruct the due administration of justice in that district.
We reject this argument because we cannot accept its premise that the New Orleans grand jury was without authority to investigate possible witness-tampering in connection with Partin's first obstruction-of-justice trial or to subpoena Baker for that purpose. The indictment in that case was brought in the Eastern District of Louisiana, and the events involved in it were centered there. United States Attorney Gallinghouse, who was handling that case, received word from FBI agents on September 27 that Baker, who had been missing for a month, had just told them in West Virginia he would not testify at that trial because he feared for his and his family's lives.
Because Baker had been out of sight for so long, at this point Gallinghouse could make only an educated guess about where and by whom (if anyone) Baker had been put in fear of his life. Because Partin's first obstruction-of-justice indictment had been brought in the Eastern District of Louisiana, and because its events had centered there, Gallinghouse decided to put the matter before the grand jury for that same district. Although hindsight teaches that in fact no obstruction of justice had occurred yet we think that, on the facts then before him, Gallinghouse acted properly both in becoming suspicious and in choosing to bring the matter before this grand jury to investigate. "(T)he court and grand jury have authority and jurisdiction to investigate the facts in order to determine whether the facts show a case within their jurisdiction." Blair v. United States,
250 U.S. 273, 282-83, 39 S.Ct. 468, 471, 63 L.Ed. 979 (1919). "Mere suspicion that a crime is being committed is sufficient reason for a grand jury to issue a subpoena. Indeed, a desire simply to assure itself that a crime is not being committed will suffice." United States v. Sahley,
526 F.2d 913, 915-16 (5th Cir. 1976). "(A grand jury) investigation may be triggered by tips, rumors, evidence offered by the prosecutor, or the personal knowledge of the grand jurors." Branzburg v. Hayes,
408 U.S. 665, 701, 92 S.Ct. 2646, 2667, 33 L.Ed.2d 626 (1972). See Also United States v. Dionisio,
410 U.S. 1, 9-13, 93 S.Ct. 764, 35 L.Ed.2d 67 (1973). Under Partin's theory, no grand jury would have had jurisdiction to investigate possible tampering with Baker because, although Gallinghouse had evidence strongly suggesting that tampering had occurred, he had only a hunch as to where it might have occurred. We think such a conclusion would be absurd, and reject it.
Partin's second attack on the indictment goes to the remaining portion of Count I and to Count III. He argues that these counts charge, at most, that he conspired to endeavor to induce Baker to commit perjury at the Houston trial and before the Baton Rouge grand jury. Relying on United States v. Essex,
407 F.2d 214 (6th Cir. 1969) for the proposition that one who commits perjury does not, by that fact alone, violate the "due administration" clause of § 1503, Partin argues that one who endeavors to induce another to commit perjury does not violate that clause either. Hence, he concludes, he cannot be guilty of conspiring to do so.
Even assuming that the Essex court was correct, but see United States v. Cohn,
452 F.2d 881 (2d Cir. 1971), cert. denied,
405 U.S. 975 , 92 S.Ct. 1196, 31 L.Ed.2d 249 (1972), it does not follow that one who endeavors to induce another to commit perjury does not violate the "due administration" clause. See Falk v. United States,
370 F.2d 472, 475-76 (9th Cir. 1966), cert. denied sub nom. Wendell v. United States,
387 U.S. 926 , 87 S.Ct. 2044, 18 L.Ed.2d 982 (1967). It is plain that the object of the conspiracies charged was to obstruct the due administration of the Houston trial and the Baton Rouge grand jury proceeding. The means allegedly chosen inducing Baker to give false testimony may well have violated the more specific first clause of § 1503. See, e. g., Smith v. United States,
234 F.2d 385 (5th Cir. 1956); Samples v. United States,
121 F.2d 263 (5th Cir.), cert. denied,
314 U.S. 662 , 62 S.Ct. 129, 86 L.Ed. 530 (1941). But we do not think that would prevent the endeavor from violating the broader "due administration" clause as well; for as we have said, that clause "is broad enough to cover any act, committed corruptly, in an endeavor to impede or obstruct the due administration of justice." Samples v. United States, supra, 121 F.2d at 266. We hold that the indictment, charging violation of the due administration clause, was sufficient.
C. Mrs. Gremillion's Fifth Amendment Claim. We wish to comment briefly on Partin's claim that the district court committed reversible error in upholding Mrs. Gremillion's claim of Fifth Amendment privilege from testifying. The record developed below on this point is not very edifying on why the district court first denied the claim of privilege, or why it later upheld it. Part of the confusion can be traced, we think, to the government's eleventh hour announcement that it intended to cross-examine Mrs. Gremillion on matters that were not in the parties' contemplation when she appeared to claim the privilege and when the district court first ruled on the claim. The briefs before us do little to dispel the confusion.
Because the record is unclear and because the case must be remanded anyway, we do not decide whether error was committed here. We think it best simply to note that a witness may not claim the privilege out of fear that he will be prosecuted for perjury for what he is about to say, although he may claim the privilege if his new testimony might suggest that he had perjured himself in testifying on the same subject at a prior proceeding. United States v. Wilcox,
450 F.2d 1131, 1140-41 (5th Cir. 1971), cert. denied,
405 U.S. 917 , 92 S.Ct. 944, 30 L.Ed.2d 787 (1972). We also note our recent statements in United States v. Melchor Moreno,
536 F.2d 1042 (5th Cir. 1976):
A court must make a particularized inquiry, deciding, in connection with each specific area that the questioning party wishes to explore, whether or not the privilege is well-founded. (cites) As to each question, the test is whether the witness is confronted with substantial and 'real,' and not trifling or imaginary hazards of incrimination.
Id. at 1049. A witness should be excused from testifying "only if the court (finds) that (he) could 'legitimately refuse to answer essentially all relevant questions.' " Id., quoting United States v. Gomez-Rojas,
507 F.2d 1213, 1220 (5th Cir.), cert. denied,
423 U.S. 826 , 96 S.Ct. 41, 46 L.Ed.2d 42 (1975). "Only as to genuinely threatening questions should (a witness's) silence (be) sustained." Id. We deem it unnecessary to discuss Partin's other contentions of error, and hold that his convictions must be reversed.
III. NO. 75-4010: RUSSELL.
Russell, who was tried and convicted on Count III of the indictment, alleges two errors in his trial. First, he argues that the district court erred in admitting evidence relating to events involved in Counts I and II of the indictment, because he was not named as a defendant in those counts. Second, he argues that the court erred in refusing to declare a mistrial or to hold a hearing into his competency under 18 U.S.C. § 4244, after he became ill with a diabetic episode while testifying. Upon careful consideration, we reject both arguments.
A. Admission of Evidence. Russell is an attorney whose firm was on retainer from Teamsters Local No. 5. Count III charges that following Baker's November 9, 1972 testimony to the Baton Rouge grand jury, where Baker gave testimony damaging to Partin and others, Russell and Partin conspired to influence Baker to change his testimony. After Baker's appearance before the grand jury, Russell met Baker's parents at a party and told them to have Baker get in touch with him. Baker did, and in December of 1972 Russell put Baker on his law firm's payroll at $300 per month. He also loaned or gave Baker additional sums of money. Baker, Partin, and Russell met some number of times in December and January, and Partin also gave Baker some money. On January 24, 1973 Baker, with Russell as his counsel, appeared before the Baton Rouge grand jury and recanted his earlier testimony.
Before Russell's trial, prosecution and defense attorneys met with the district court to try to decide how best to give the jury background about the complicated series of events leading up to those for which Russell had been indicted. Although these meetings are not of record, we know that they produced the stipulation printed here in the margin, which was put into evidence at Russell's trial. Russell's complaint is that the district court also permitted other evidence of events that occurred before November 9, 1972 the date on which the Count III conspiracy was alleged to have started to be introduced into evidence.
Russell's counsel on this appeal has not deigned to designate those portions of the record where prejudicial material supposedly was introduced. Nonetheless, we have read the entire trial transcript and are convinced that no error was committed. First of all, there is absolutely no support for Russell's contention that evidence relating to Count II the count dealing with the conspiracy to hide Roberson was introduced. Instead, we find that the district court took great pains to prevent even the slightest reference to Roberson or to that conspiracy. See 2nd Supp. Record (No. 75-4010) Vol. 2 at 208, 247-48. This contention is frivolous.
Second, we find that evidence relating to other events before, during, and after Partin's Houston trial was properly admitted. Insofar as this evidence was not merely repetitious of that contained in the agreed stipulation, it was aimed primarily at explaining the circumstances of a meeting between Russell and Baker that took place in Houston on October 30, 1972, the day before Partin's trial was to begin.
Millican, a partner in Russell's law firm, had met Baker in Pittsburgh on October 3. Millican appeared before the New Orleans grand jury on October 5, and he was subpoenaed to appear before the Baton Rouge grand jury October 27 and at Partin's Houston trial October 31. Millican asked Russell to represent him for his October 27 grand jury appearance, and Russell agreed.
Russell and Millican met at the federal courthouse in Baton Rouge for that appearance, but at the last minute Millican panicked and fled. Russell, fearing Millican would not appear for Partin's trial, drove to Houston to protect his client. There he learned from Millican, who had resurfaced briefly, and from Partin's attorney, that Baker and Roberson were missing. Fearing that the absence of the prosecution's two key witnesses would have an adverse impact on Partin, Russell sent word through Teamster channels that it was essential that Baker be found.
On October 30, Don Marionneaux telephoned Russell and told him that Baker had been found. Russell went to a motel in Houston where he met Marionneaux and Baker, the latter for the first time. While there, he took two statements from Baker accusing Gallinghouse and other government officials of violating his civil rights. Russell, who made no attempt then or at his later trial to disguise his dislike for Gallinghouse, readily agreed to represent Baker at the Houston trial and in a $300,000 damage suit against Gallinghouse. After taking these statements, Russell telephoned Gallinghouse and told him Baker had been found.
We think this evidence was properly admitted. Counsel already had agreed on a stipulation relating to events surrounding the Count I conspiracy, up to October 3. See note 13, supra. This other evidence served to bridge the gap in time between that covered by the stipulation and that covered by the indictment, so that the jury would not become confused or be left to speculate about this period. The evidence also helped to put Russell and Baker's later relationship into perspective, which is a permissible purpose: "Evidence of behavior antedating the period covered by the indictment is generally admissible as bearing on the existence and purpose of the conspiracy and the significance of later behavior." United States v. Crockett,
514 F.2d 64, 72 (5th Cir. 1975); see also, e. g., United States v. Harrell,
436 F.2d 606, 612 & n. 7 (5th Cir. 1970), appeal after remand,
458 F.2d 655 (5th Cir.), cert. denied,
409 U.S. 846 , 93 S.Ct. 49, 34 L.Ed.2d 86 (1972); United States v. Del Purgatorio,
411 F.2d 84, 85-86 (2d Cir. 1969).
In addition, we doubt whether the prejudicial potential of this evidence was great, for its tendency to link Russell with the Count I conspiracy was weak. This estimate is strengthened by the facts that Russell's counsel objected only sporadically to evidence from the pre-November 9 period; and that, when asked to do so, the district court conscientiously limited the prosecution's pursuit of these events. 2nd Supp.Record (No. 75-4010) Vol. 1 at 18-19, 36-37, 67-68; Vol. 2 at 225. We hold the court did not err in its handling of this evidence.
B. The Competency Issue. Before Russell's trial began, defense counsel told the district court that Russell suffered from diabetes and, as a result, sometimes became very tired. The court agreed to grant recesses when defense counsel felt it would be in Russell's interest. Record Vol. 11 at 1771-72 (order denying new trial).
The trial began on Monday, May 26, 1975. On Wednesday, May 28 Russell took the stand to testify in his defense. His testimony on direct examination that day covers 60 pages of transcript. 2nd Supp. Record (No. 75-4010) Vol. 3 at 390-450. His testimony that day ended when defense counsel, believing that his client was becoming ill, asked for and was granted a recess. Id. at 450.
The district court immediately ordered that Russell be examined by Dr. Lloyd M. Godley in order to determine the seriousness of his condition. Dr. Godley examined Russell on May 28 and again on May 29. He determined and reported to the court that Russell was suffering elevated blood sugar, a sign that his diabetes condition was not under control. Record Vol. 10 at 1528 (letter dated May 29, 1975). He suggested that Russell be treated by a physician for this condition. Id. On the afternoon of Thursday, May 29 Russell, prosecution and defense counsel, and the court met to decide the best course of action. Russell spoke on his own behalf, asking that he be released to the care of his own doctor. 2nd Supp. Record (No. 75-4010) Vol. 3 at 455-56. After some discussion, id. at 454-63, the court decided to continue the trial, release the jury from its sequestration, and order Russell to the Federal Medical Center in Springfield, Missouri for treatment. At this meeting defense counsel expressed concern about releasing the jury, id. at 459-62, but neither he nor Russell raised an issue as to Russell's competency on the day he became ill.
On Friday, May 30 a federal marshal accompanied Russell on the airplane trip to Springfield. Doctors there treated Russell over the weekend, changing the dosage of his diabetes medicine, and released him on Tuesday, June 3. Record Vol. 10 at 1530 (letter dated June 3, 1975).
Russell was flown back to Alexandria the morning of Wednesday, June 4. Before he arrived, the court met with prosecution and defense counsel to update them on developments in Russell's condition. At this meeting, defense counsel, for the first time, raised the possibility that Russell had not been competent on the stand Thursday because of his elevated blood sugar, although he admitted that, "I don't have anything to back it up." 2nd Supp. Record (No. 75-4010) Vol. 4 at 470; see also id. at 472. The district court, noting that Russell's demeanor on the stand the previous Wednesday had not appeared to change during his testimony, id. at 471-72, and that Russell had appeared to be "totally in control of himself" the following day when he had pleaded not to be sent to Springfield, id. at 467, denied a motion for mistrial on this ground. Shortly thereafter Russell arrived, took the stand, and resumed his testimony. Id. at 479.
Defense counsel raised the competency issue again on motion for new trial. Alleging that "while defendant was testifying on direct examination in his own defense, the defendant was obviously confused," Record Vol. 11 at 1740 (memorandum in support of motion for new trial), he requested, for the first time, a hearing on whether defendant had been competent during his first day of testimony. The district court denied the motion in a written order without holding the requested hearing. Relying on its own recollection and on an examination of the transcript of Russell's testimony, the court found that "throughout the trial (Russell) was fully capable, mentally and physically, of aiding and advising his counsel and of testifying whenever he was called upon to do so," Record Vol. 11 at 1772, and that "his testimony as a witness was coherent, logical, deliberate and responsive and is ample evidence that he was mentally and physically able and competent to testify at all times that he was called upon to do so," id. at 1774.
It is well settled that, "the ordering of (a § 4244) examination requires an exercise of judicial discretion to determine if there is 'reasonable cause to believe' that the defendant may be incompetent." United States v. Hall,
523 F.2d 665, 667 (2d Cir. 1975); Accord, e. g., Reed v. United States,
529 F.2d 1239, 1241 (5th Cir. 1976); United States v. Curtis,
520 F.2d 1300, 1304 (1st Cir. 1975); Rice v. United States,
420 F.2d 863, 866 (5th Cir. 1969), cert. denied,
398 U.S. 910 , 90 S.Ct. 1705, 26 L.Ed.2d 70 (1970). It is equally clear that the district court, in making this determination, may rely on its "opportunity to observe (the defendant's) demeanor and the quality of his responses." Reed v. United States, supra, 529 F.2d at 1241; see United States v. Curtis, supra, 520 F.2d at 1304; United States v. Jones,,
415 F.2d 753, 754 (5th Cir.), cert. denied,
396 U.S. 948 , 90 S.Ct. 390, 24 L.Ed.2d 251 (1969); cf. United States v. Makris,
535 F.2d 899, 902 (5th Cir. 1976).
The only indication in the instant record that Russell might not have been competent some time before he left the stand on the first day of his testimony is contained in Dr. Godley's letter of May 29 to the court. That letter states that Russell's "subjective story was that . . . he had come near collapse in the courtroom with a deviation from rationality in speech and manner . . ." Record Vol. 10 at 1528. This self-serving account plainly is at odds with the district court's first hand observations, as set forth in its order denying a new trial. In addition, we have examined the transcript of Russell's testimony that day and agree with the district court's characterization of it as "coherent, logical, deliberate and responsive." We hold that, on the facts of this case, the district court did not abuse its discretion in concluding there was not reasonable cause to order a § 4244 examination or hearing. We therefore affirm Russell's conviction.
IV. NO. 75-4155: DON MARIONNEAUX AND HUGH MARIONNEAUX.
Don and Hugh Marionneaux, who were tried and convicted on Count I of the indictment, allege seven errors in their trial. We find the allegations to be without merit, and affirm.
A. Refusal of Judge Scott to Recuse Himself. As we noted in Part I, Judge Scott presided over the seven separate trials on the indictment in this case, including the instant retrial of Don and Hugh Marionneaux after we reversed and remanded their convictions in United States v. Marionneaux,
514 F.2d 1244 (5th Cir. 1975). Before retrial, defense counsel filed what was styled a "motion to withdraw" and memorandum in support thereof in the district court, requesting that Judge Scott recuse himself on the retrial. Record Vol. 11 at 1621-23. The judge denied the motion in a written order, id. at 1640-41. In this court, the defense filed a motion to stay the trial and for mandamus to the district court, which we denied. In re Marionneaux, No. 75-2826 (July 10, 1975), copy at Record Vol. 11 at 1643.
The recusal motion did not rely on 28 U.S.C. § 144 or 28 U.S.C. § 455, nor was it accompanied by the affidavit required by the former section. Neither did it allege or intimate in any way that Judge Scott harbored any personal bias against the defendants or that he had prejudged their case. Rather, the motion relied on certain statements by the Second Circuit in United States v. Bryan,
393 F.2d 90 (2d Cir. 1968) (which sometimes is cited as United States v. Simon) regarding the propriety of the same judge presiding over the retrial of defendants whose first trial ended in a hung jury. In their instant appeal, defendants also intimate that it is improper for the same judge to preside over the separate trials of alleged co-conspirators, or for a judge who has accepted a guilty plea from one co-defendant to preside over the trial of another co-defendant. We, however, reject the argument that any of these factors, or all of them together, required Judge Scott to grant the motion to recuse.
This court previously has said that it sees nothing wrong, per se, with the same judge presiding over a retrial after reversal. In Smith v. United States,
360 F.2d 590 (5th Cir. 1966) the district court, in a bench trial, found the defendant guilty. The court then read a pre-sentence report on defendant. Thereafter the court, on defendant's motion, reopened the proof and, after hearing further evidence, again found defendant guilty.
On appeal, defendant, relying on Fed.R.Crim.Pro. 32(c)(1), argued that the district court should have declared a mistrial because he had read the pre-sentence report before he reopened proof and found defendant guilty again. We rejected the argument in these words:
The receipt by a trial judge of a presentence investigation report, in a manner not prohibited by Rule 32(c)(1), does not disqualify him from hearing evidence on a reopening of a trial. To suggest otherwise would suggest also that he thereby renders himself incompetent to hear a retrial of the same case, should he be reversed on appeal . . . That would be highly untenable . . .
360 F.2d at 592 (emphasis added). We since have expressed similar views in United States v. Harris,
458 F.2d 670, 678 (5th Cir.), cert. denied sub nom. Scott v. United States,
409 U.S. 888 , 93 S.Ct. 195, 34 L.Ed.2d 145 (1972) and United States v. Hernandez-Vela,
533 F.2d 211, 213-14 (5th Cir. 1976). See also Jones v. Caddo Parish School Board,
499 F.2d 914, 918 (5th Cir. 1974). And no lesser light than Mr. Justice Frankfurter, writing for the Supreme Court, has expressed the same view:Certainly it is not the rule of judicial administration, that, statutory requirements apart, (citing the predecessor of 28 U.S.C. § 144), a judge is disqualified from sitting in a retrial because he was reversed on earlier rulings.
NLRB v. Donnelly Garment Co.,
330 U.S. 219, 236, 67 S.Ct. 756, 765, 91 L.Ed. 854 (1947); see also United States v. Crovedi,
467 F.2d 1032, 1038 (7th Cir. 1972), cert. denied,
410 U.S. 990 , 93 S.Ct. 1510, 36 L.Ed.2d 189 (1973) and sub nom. Bratko v. United States,
410 U.S. 982 , 93 S.Ct. 1510, 36 L.Ed.2d 178 (1973).
It is against this line of precedent that we weigh the Second Circuit's per curiam opinion in Bryan, upon which appellants rely so heavily, and that case's progeny. In Bryan, a district court judge in the Southern District of New York was assigned to preside at the retrial of criminal defendants after he had presided at a mistrial in the same case, despite the long-standing practice in that district of having "the second trial of a criminal case of any length and complexity tried before a judge other than the judge who presided at the first trial." 393 F.2d at 90. The judge denied a motion by the government that he recuse himself. On the government's petition for mandamus, the Second Circuit strongly urged the judge to reconsider his denial, stating, id. at 91:
We believe that at least in a multi-judge district such as the Southern District of New York where the necessity of retrial before the same judge is not present, the practice of retrial before a different judge is salutary and in the public interest, especially as it minimizes even a suspicion of partiality. Because we believe that this outweighs any considerations of judicial economy and convenience, we hold that it is the wiser practice, wherever possible, that a lengthy criminal case be retried before a different judge unless all parties request that the same judge retry the case.
Almost as soon as it announced this "rule," the court of appeals began to undermine its rationale and to limit its application. In Wolfson v. Palmieri,
396 F.2d 121 (2d Cir. 1968) the court denied a petition for mandamus to direct a district court judge not to try criminal defendants whom he previously had tried on different charges. The court quoted United States v. Grinnell Corp.,
384 U.S. 563, 583, 86 S.Ct. 1698, 16 L.Ed.2d 778 (1966) for the proposition that, "The alleged bias and prejudice to be disqualifying must stem from an extrajudicial source and result in an opinion on the merits on some basis other than what the judge learned from his participation in the case." 396 F.2d at 124. Then, stating that "(i)t is no answer to refer to the large number of trial judges in the Southern District (of New York)," id. at 125, and that "(i)n the absence of proof, there should be at least a presumption that the trial court will conduct an errorless trial," id. at 126, the court limited Bryan to its facts, id.:
Much reliance is placed by petitioner on (Bryan ), which involved the retrial of the same case by the same judge. That decision, as all these decisions must be, was based upon the particular facts there presented. To extend the rule there announced to the trial of different charges against the same defendants would take this Court too far into problems necessarily left to the good judgment of the district judges.
The process of limiting Bryan continued apace in United States v. Di Lorenzo,
429 F.2d 216 (2d Cir. 1970), cert. denied,
402 U.S. 950 , 91 S.Ct. 1609, 29 L.Ed.2d 120 (1971), where the court of appeals refused to read Bryan as requiring that different judges preside at the separate trials of alleged co-conspirators. Noting that it had declined to extend Bryan in Wolfson, the court went so far as to state that, "(a)bsent special considerations, judicial economy and calendaring demands often make it desirable that the same judge preside at seriatim trials of co-conspirators." 429 F.2d at 221. We think it is significant that two of the same judges who sat on Bryan also sat on Di Lorenzo, and that they appear to have had second thoughts about the balance of considerations in cases of this kind.
The process of erosion reached its culmination in United States v. Newman,
481 F.2d 222 (2d Cir.), cert. denied,
414 U.S. 1007 , 94 S.Ct. 367, 38 L.Ed.2d 244 (1973), where the court of appeals held that it was not error for a district court judge to retry a criminal case after the first trial ended in a hung jury, despite the Bryan "rule":
(T)he court in Bryan was speaking of reassignment as the 'wiser practice' in retrials of 'lengthy criminal cases,' . . . not setting down a requirement in every case. See also Wolfson v. Palmieri,
396 F.2d 121, 126 (2d Cir. 1968) (per curiam) (Bryan . . . limited to 'particular facts' there presented).
481 F.2d at 223. The court followed Newman, not Bryan in similar circumstances in United States v. Edmonds,
535 F.2d 714, 717 (2d Cir. 1976).
Far from supporting appellants' position, this line of Second Circuit cases after Bryan reaffirms our conviction that we ought not lightly announce a per se rule that a district court judge should not retry a case after mistrial or reversal. The cases demonstrate, we think, that such a rule is not the sine qua non for either the substance or the appearance of justice. Those causes are served admirably when the district court judge who retries the case conscientiously attempts to conduct a trial that is fair to both the defendant and the government, as is his duty. Furthermore, a per se rule inevitably would create serious calendaring problems and might well increase delays in going to trial, especially in this circuit's smaller districts. Altogether, we see little to commend such a rule, and we decline to hold that it is required by law. See United States v. Hernandez-Vela, supra; United States v. Harris, supra; Smith v. United States, supra.
For the same reasons, we decline to hold that a trial judge is disqualified because he presided over the separate trial of a co-defendant, United States v. Di Lorenzo, supra, 429 F.2d at 220-21; see United States v. Jeffers,
532 F.2d 1101, 1111-12 (7th Cir. 1976), or because he accepted the guilty plea of a co-defendant, United States v. Bernstein,
533 F.2d 775, 784-85 (2d Cir. 1976); United States v. Myers,
381 F.2d 814, 817 (3d Cir. 1967), cert. denied sub nom. Bennett v. Myers,
390 U.S. 973 , 88 S.Ct. 1065, 19 L.Ed.2d 1185 (1968). In the instant case, appellants do not allege and the record does not show that Judge Scott harbored a personal bias that would disqualify him. See United States v. Grinnell Corp.,
384 U.S. 563, 86 S.Ct. 1698, 16 L.Ed.2d 778 (1966). In the absence of such allegations and showing, we hold it was not error for him to deny the motion to recuse.
B. Denial of Change of Venue. Appellants were retried in July of 1975 in Shreveport, which also had been the site, after a change of venue, of their first trial in August of 1974, of Thomas' trial in July of 1974, and of Partin's trial in February and early March of 1975. Before the retrial, they moved for a change of venue to Lake Charles, Opelousa, or New Orleans under Fed.R.Crim.Pro. 21(a), alleging that publicity in the Shreveport area from the previous trials had created an atmosphere in which they could not receive a fair trial. Record Vol. 11 at 1616-19. They now complain that the district court committed reversible error in denying the motion.
We do not agree. The transcript of the district court's scrupulous voir dire of the jury panel, 2nd Supp. Record (No. 75-4155), reveals that of fifty panel members, only eleven thought they remembered having seen or heard anything about the previous or pending trials. Id. at 32-33, 57, 63, 71. The district court questioned each of these panel members out of the presence of other panel members to determine whether they could serve impartially, and one was excused by the court for cause. Id. at 82. The responses of the others indicate only the slightest familiarity with the previous or pending cases, and no prejudice.
It is axiomatic that a Rule 21(a) motion is addressed to the sound discretion of the district court. E. g., Ehrlichman v. Sirica,
419 U.S. 1310, 1312, 95 S.Ct. 6, 42 L.Ed.2d 25 (1974) (Burger, C. J., Circuit Justice); United States v. Williams,
523 F.2d 1203, 1209-10 (5th Cir. 1975); United States v. Thaggard,
477 F.2d 626, 630 (5th Cir.), cert. denied,
414 U.S. 1064 , 94 S.Ct. 570, 38 L.Ed.2d 469 (1973); United States v. Nix,
465 F.2d 90, 95-96 (5th Cir.), cert. denied,
409 U.S. 1013 , 93 S.Ct. 455, 34 L.Ed.2d 307 (1972). A careful voir dire is invaluable in gauging whether community prejudice is so great that a defendant cannot receive a fair trial in a given locale. See, e. g., Murphy v. Florida,
421 U.S. 794, 799-803, 95 S.Ct. 2031, 44 L.Ed.2d 589 (1975); United States v. Williams, supra, 523 F.2d at 1209 n.10; Calley v. Callaway,
519 F.2d 184, 208-09 & ns. 42-45 (5th Cir. 1975) (en banc), cert. denied,
425 U.S. 911 , 96 S.Ct. 1505, 47 L.Ed.2d 760 (1976). Our "independent evaluation of the facts," United States v. Williams, supra, 523 F.2d at 1208, and in particular of the responses on voir dire, convinces us that the district court acted well within its permissible range of discretion in concluding that appellants could receive a fair trial in Shreveport. See Murphy v. Florida, supra, 421 U.S. at 799-803, 95 S.Ct. 2031; United States v. Nix, supra, 465 F.2d at 95-96.
C. Joinder of Hugh Marionneaux and Joe Green with Don Marionneaux. The district court denied a motion under Fed.R.Crim.Pro. 14 to sever Hugh Marionneaux and his father-in-law Joseph Green from Hugh's brother Don for trial. Hugh Marionneaux now complains this was error. It is firmly established that a motion to sever alleged coconspirators is committed to the sound discretion of the district court, under the test we set forth in Tillman v. United States,
406 F.2d 930, 935 (5th Cir. 1969), citing Peterson v. United States,
344 F.2d 419, 422 (5th Cir. 1965):
(C)an the jury keep separate the evidence that is relevant to each defendant and render a fair and impartial verdict as to him? If so, though the task be difficult, severance should not be granted.
We will overturn the district court's ruling only upon a showing by the defendant that actual prejudice resulted from denial of severance. United States v. Dearden,
546 F.2d 622, 625 (5th Cir. 1977); United States v. Morrow,
537 F.2d 120, 134 (5th Cir. 1976).
Hugh Marionneaux does not point to evidence that was introduced against his brother Don but was not admissible against him, so we do not have here the "troublesome problem of limiting the jury's consideration of testimony admissible against some defendants but not others." United States v. Davis,
546 F.2d 617, 620 (5th Cir. 1977). Nor does he complain that a co-defendant's exculpatory testimony was unavailable, see United States v. Morrow, supra, 537 F.2d at 134-35, or that he and Don had antagonistic defenses, see United States v. Larson,
526 F.2d 256, 260 (5th Cir. 1976). Instead, he argues that the case against him was weaker than against his brother, and that the jury might have attributed greater knowledge to him of his brother's actions than in fact was the case, simply because they were brothers.
This argument is untenable. "A defendant cannot claim prejudice from failure to sever merely because his likelihood of acquittal is not as great in a joint trial as in a separate trial." United States v. Larson, supra, 526 F.2d at 260. The district court carefully instructed the jury that it must give separate consideration to the case of each defendant. 1st Supp. Record (No. 4155) Vol. 4 at 931; see United States v. Larson, supra, 526 F.2d at 260. That the jury followed its instructions is demonstrated by the fact that it found Joseph Green not guilty. We hold that the district court did not abuse its discretion in denying the motion to sever.
D. Voir Dire. Defense counsel complains that "the trial court committed reversible error when it refused to interrogate prospective jurors, at defense counsel's request, with respect to their and their spouses' employment, education, etc." Brief for Appellees at 35. The record reveals that, in fact, the district court asked each of the fifty panel members "to rise and state your name, state your marital status, state your occupation or your job and your education, the furthest you went in education. And if you are a lady please also state the name of your husband and his occupation or his job." 2nd Supp. Record (No. 75-4155) at 7. Each panel member did so. Id. at 7-25. This assignment of error therefore is patently frivolous, and it evidences a disturbing inattention to counsel's duty to represent the facts to this court accurately.
E. Jury Instructions: "Corruptly." The district court instructed the jury as follows:
The substantive offense alleged in the indictment is a violation of
18 U.S.C. 1503, which reads as follows: Whoever corruptly, or by threats or force, endeavors to influence, intimidate, or impede any witness, in any court of the United States or corruptly or by threats or force, influences, obstructs, or impedes the due administration of justice, violates the laws of the United States.
The word corruptly means a defendant acted with improper motive or with bad or evil or wicked purpose. Any endeavor to influence or intimidate or impede a witness falls within the meaning of the word corruptly.
While proceedings are pending any threat or other corrupt endeavor to influence a participant is an offense. And such endeavor need not be successful to be punishable as an offense against the United States.
The administration of justice it should be pointed out means the performance of acts required by law in the discharge of duties such as appearing as a witness and giving truthful testimony when subpoenaed. The statue (sic) herein describing corrupt endeavor to influence and obstruct or impede the due administration of justice was enacted for the purpose of safeguarding the administration of justice.
1st Supp. Record (No. 75-4155) Vol. 4 at 923-24. Although "defendants did not expressly object to the Court's charge defining 'corruptly,' " Brief for Appellants at 43, they did request an additional instruction "that it is not against the law to obstruct an injustice." 1st Supp. Record (No. 75-4155) Vol. 4 at 940. The district court denied the request, and appellants urge this was reversible error.
Appellants' theory, which they did not articulate to the district court, is that the second paragraph of the instructions quoted above would permit the jury to convict even if a defendant had endeavored merely to "influence" a witness to testify truthfully. This is so, they argue, because the second sentence of that paragraph states that "any endeavor to influence . . . a witness falls within the meaning of the word corruptly."
Because appellants did not object to the portion of the charge defining "corruptly," because their own proposed instruction "that it is not against the law to obstruct an injustice" was much broader than necessary to correct the infirmity they urge here, and because they did not articulate their theory here to the court below, the objection below was not sufficient to put the district court on notice as to the problem they complain of now. For this reason, we test the instruction given against the plain error standard, see Fed.R.Crim.Pro. 30, 52(b), and conclude that even if the charge was less than happily phrased, it did not amount to plain error.
The second paragraph begins by stating, correctly, that the word " corruptly" in § 1503 "means a defendant acted with improper motive or with bad or evil or wicked purpose." United States v. Ryan,
455 F.2d 728, 734 (9th Cir. 1971); See United States v. Abrams,
427 F.2d 86, 90 (2d Cir.), cert. denied,
400 U.S. 832 , 91 S.Ct. 64, 27 L.Ed.2d 63 (1970) (construing 18 U.S.C. § 1505). This instruction, standing alone, is sufficient to inform a jury that § 1503 does not encompass an attempt to influence a witness to testify truthfully. United States v. Abrams, supra.
The next sentence, stating that "any endeavor to influence or intimidate or impede a witness falls within the meaning of the word corruptly," plainly is not intended to expand this definition of "corruptly" to encompass an endeavor to influence a witness to tell the truth. Instead, it is meant to remind the jury as the first paragraph quoted above states explicitly that an endeavor either to influence or to intimidate or to impede a witness may be undertaken "corruptly," that is, with "improper motive or with bad or evil or wicked purpose;" and that if it is, it violates § 1503. Read in its context, we think it is very unlikely that this sentence would lead the jury to believe that "influencing" a witness to testify truthfully was punishable under § 1503.
This assessment is strengthened by the presence of the third paragraph quoted above, which states, as does the first paragraph, that it is a "corrupt endeavor to influence" a witness that is an offense. And the last paragraph quoted above, defining the "administration of justice" as the "performance of acts required by law in the discharge of duties such as appearing as a witness and giving truthful testimony when subpoenaed," would itself preclude conviction for endeavoring to influence a witness to tell the truth; for it plainly implies that only an endeavor to influence a witness not to tell the truth is an endeavor to influence the "administration of justice." Thus, although we agree with appellants that the second sentence of the second paragraph quoted above might have been better phrased, we hold it was not plain error to give it.
F. Jury Instructions: "Nothing Particularly Different." Near the end of its charge, the district court instructed the jury as follows:
There is nothing particularly different in the way a jury should consider the evidence in a criminal case from that in which all reasonable persons treat any question depending upon evidence presented to them. You are expected to use your good sense, consider the evidence in the case for only those purposes for which it has been admitted and give it a reasonable and fair construction in the light of your common knowledge of the natural tendencies and inclinations of human beings. If the defendant be proved guilty beyond a reasonable doubt, say so. If not so proved guilty, say so.
1st Supp. Record (No. 75-4155) Vol. 4 at 932. Appellants did not object to this instruction at trial, but they now urge that it was plain error to instruct in the terms of the first sentence quoted above because the "nothing particularly different" language tends to dilute the requirement that guilt be proven beyond a reasonable doubt.
It is true that this language, which appears to have been adapted from 1 Devitt & Blackmar, Federal Jury Practice and Instructions § 17.06 (2nd Ed. 1970), see also 1 Devitt & Blackmar, Federal Jury Practice and Instructions § 15.01 (3rd Ed. 1977), has been criticized on this ground. See United States v. Pepe,
501 F.2d 1142, 1143-44 (10th Cir. 1974); United States v. Downen,
496 F.2d 314, 321-22 (10th Cir.), cert. denied,
419 U.S. 897 , 95 S.Ct. 177, 42 L.Ed.2d 142 (1974); United States v. Cummings,
468 F.2d 274, 280-81 (9th Cir. 1972); Tarvestad v. United States,
418 F.2d 1043, 1048-49 (8th Cir. 1969), cert. denied,
397 U.S. 935 , 90 S.Ct. 944, 25 L.Ed.2d 116 (1970). It is also true, however, that even where defendants have objected to it, the language has been held not prejudicial in view of repeated references to the reasonable doubt standard elsewhere in the instructions. United States v. Pepe, supra; United States v. Downen, supra; United States v. Cummings, supra; Tarvestad v. United States, supra.
In the instant case, the district court gave a complete and correct reasonable doubt instruction, 1st Supp. Record (No. 75-4155) Vol. 4 at 907-08, and the court referred to the reasonable doubt standard many additional times throughout the instructions, id. at 909, 914, 915, 917, 922, 925, 926, 927, 928, 929, 930, 932. In fact, the final sentence of the paragraph complained of and quoted here repeats the reasonable doubt requirement. In these circumstances, although "we do not believe the instruction provides any particular assistance to the jury in the performance of its tasks," United States v. Pepe, supra, 501 F.2d at 1144, we hold that use of the language complained of was not plain error. See cases cited supra.
G. Jury Instructions: Witness Security Program. On direct examination by the government Millican testified that he had entered the federal witness security program in April of 1973. He stated that under the program, administered by the Department of Justice, he had been given a new name and social security number. He also stated that under the program, he and his family received $1080 per month subsistence from the government. When the government asked who he was hiding from, Millican answered, without objection, that he was hiding from Partin. 1st Supp. Record (No. 75-4155) Vol. 3 at 582. The defense did not cross-examine Millican.
The district court gave the following instruction to the jury:
All evidence of a witness whose self-interest is shown from either benefits received, whether they be received in money, in protective custody afforded by the Government or any other benefit, or any detriments suffered, threats or promises made, or any attitude of the witness which might tend to prompt testimony either favorable or unfavorable to the accused should be considered with caution and weighed with care.
The Attorney General of the United States is authorized by law to provide for the security of Government witnesses, potential Government witnesses, and the families of Government witnesses and potential witnesses. The Attorney General is likewise authorized by law to provide for the health, safety and welfare of witnesses and their families. This may include the payment of money, providing a new identity and securing a job to minimize physical and economic harm to the witnesses and their families.
1st Supp. Record (No. 75-4155) Vol. 4 at 912. Although the defense did not object to this instruction, it did request an additional instruction to the effect that the second paragraph of the instruction quoted above did not imply "the Court's acceptance or rejection of Millican's expressed fear" of appellants' alleged co-conspirator, Partin. Id. at 939. The court denied the request on the ground that the instruction given "makes it clear that the Attorney General of the United States is authorized" to provide security for witnesses, id. (emphasis added), evidently being of the opinion that the instruction carried no implication that the court itself believed Millican's fear had a basis in fact. Appellants assign this denial as reversible error.
Disclosure of the fact that a government witness is participating in the witness security program, authorized by the Organized Crime Control Act of 1970, Pub.L. No. 91-452, tit. V, 84 Stat. 933, is a matter that must be handled delicately. The defense has a right to show that a witness, while in the program, has received substantial benefits, see United States v. Librach,
536 F.2d 1228, 1231 (8th Cir. 1976); United States v. Librach,
520 F.2d 550, 552-554 (8th Cir. 1975); United States v. Muckenstrum,
515 F.2d 568, 569-70 (5th Cir.), cert. denied,
423 U.S. 1032 , 96 S.Ct. 564, 46 L.Ed.2d 406 (1975); United States v. Howell,
514 F.2d 710, 715 (5th Cir.), cert. denied sub nom. Harris v. United States,
423 U.S. 914 , 96 S.Ct. 220, 46 L.Ed.2d 143 (1975) and Allen v. United States,
423 U.S. 987 , 96 S.Ct. 396, 46 L.Ed.2d 304 (1975); United States v. Partin,
493 F.2d 750, 757-60 (5th Cir. 1974). At the same time, however, there often is a danger that the jury will infer, even without further evidence, that the defendant himself was the source of the threat that moved the Justice Department to approve the witness's participation in the program. See United States v. Librach, supra, 536 F.2d at 1231-32 & n. 6; United States v. Librach, supra, 520 F.2d at 554 n. 4. Although that risk may be to some extent unavoidable, the prosecution should not be allowed to exploit it. Cf. United States v. Librach, supra, 536 F.2d at 1231-32 & n. 6.
In the instant case, it was the government, not the defense, that brought out Millican's participation in the program and his fear of Partin. It did so without objection, and it made no attempt to exploit these facts during closing argument. The defense, on the other hand, attacked Millican's credibility during closing argument by referring to the fact that he had received substantial amounts of money from the government. See 1st Supp. Record (No. 75-4155) Vol. 4 at 874.
The instruction that the district court gave was calculated to erase any implication that the benefits Millican received from the government were bestowed improperly. We agree with the district court that the instruction did not imply that the court itself believed or disbelieved Millican. Hence, we hold that the additional instruction was properly refused.
Any injury to appellants from disclosure of Millican's participation in the witness security program occurred when the government brought this evidence out in the first place, not when the jury was instructed. Although appellants have not argued that it was error to permit the government to pursue these questions during direct examination of Millican, we nonetheless have considered the possibility. The defense did not object to the questions, and because the government did not further exploit the facts elicited, we have concluded that it was not plain error to allow these questions. We therefore affirm the convictions of Don and Hugh Marionneaux.
V. NO. 75-3792: SYKES.
Sykes, who was convicted on Count II at his retrial in Shreveport, raises three of the same issues raised in No. 75-4155. For the reasons stated in Part IV.A. supra, we hold that Judge Scott did not err in denying Sykes' recusal motion. We have examined the jury instructions in Sykes' case and find that the jury was correctly and repeatedly instructed on reasonable doubt in a manner substantially identical to that used in No. 75-4155. We therefore hold, for the reasons stated in Part IV.F. supra, that the "nothing peculiarly difficult" instruction did not constitute plain error. Finally, we have examined the voir dire of prospective jurors, in which only seven of 52 panel members indicated any familiarity with the case, 2nd Supp. Record (No. 75-3792), and hold, for the reasons stated in Part IV.B. supra, that the district court did not err in denying a change of venue. We therefore affirm Sykes' conviction.
RSS