United States v. Patrick GreenUnited States v. Patrick Green
Thе defendant, Patrick Green, was convicted of willfully and knowingly conspiring to possess the chemical piperidine knowing and having reasonable cause to believe that the piperidine would be used to manufacture phencyclidine (PCP) in violation of
I.
On May 27, 1983, a federal grand jury in the Northern District of Illinois returned a three-count indictment against the defendant, Patrick Green, and Jose Burgos and William Steffy. Count 1 of the indictment charged that Green, along with Burgos and
On July 22, 1983, Green filed various pre-trial motions, including motions to dismiss Counts 1 and 2 of the indictment. The court considered the defendant’s motions at an August 26,1983 hearing, and at this same hearing the Government orally moved the court to sever Green’s trial from that of Burgos and Steffy. By a written order dated August 31, 1983, the court granted the Government’s motion to sever Green's trial from that of the other defendants and dеnied Green’s motions.
The Government next filed a motion requesting that Green’s trial be reassigned to another judge. In another motion the Government requested that the court exclude from the 70-day time period of the Speedy Trial Act 4 the period from August 31 until the date the case was reassigned. On October 24 the court ruled on the two motions, denying the request to reassign the case, and sua sponte directed that the period of time from July 22, the date Green filed his pre-trial motions, until the date the court ruled on the pre-trial motions, August 31, be excluded from the computation of the 70-day time period of the Act. The court also excluded the time from August 26 until August 31 because “the ruling was not to be made until the opinions had been completed and issued and so that would be ruling by mail, in effect, and the official date would be the date of the completion of the ruling and that was August 31.” At the August 26 hearing, the court stated with respect to Green’s pre-trial motions:
“[W]hat I am going to do with respect to those two [motions] is not to read the sort of initial draft of the opinion that we are going to write on that because it is just going to take too much time but we áre going to deny the motions on both theories, the motion to dismiss Count 1 and 2 and the motion to dismiss Count 1. On the motion for a Santiago hearing, I will indicate that orally, even though, again, that will be a part of a written order on this — and all of these will be effective as of the date that they are issued, and, in effect, I am ruling by mail on all of these but I do want to let you know exactly what the rulings are.”
At the conclusion of the hearing on August 26, the court again stated, “All right. That will be the orders and they will be out just as quickly as we can get them out, in the next day or two. They will be effective as of the dates that appear.” In addition, the district court’s minute order from the August 26 hearing recites: “Status hearing held. Ruling on pretrial motions to follow. Status hearing and ruling on any pending
On November 14, immediately before trial, Green moved to dismiss, claiming that the Government failed to bring him to trial within the 70-day time limit set forth in the Speedy Trial Act.
At trial the Government presented the testimony of several Drug Enforcement Administration undercover agents who testified that Green had stolen a bottle of piperidine from his employer, the Borg-Warner Corporation, as part of a conspiracy with Burgos and Steffy to manufacture phencyclidine (PCP). Green testified that he accomplished the theft of a bottle of piperidine by adding piperidine to a purchase order for chemicals after his supervisor at Borg-Wamer had approved and signed the purchase order. Green also admitted under oath that he gave the piperi-dine to Burgos in exchange for a quantity of cocaine and that he had personally used cocaine in the past, but denied any knowledge of, or any involvement in a plan to manufacture PCP.
After trial, during the jury instruction conferenсe, the defense counsel submitted a number of requested instructions, including: “The relationship of buyer and seller, absent any prior or contemporaneous understanding beyond the sales agreement itself, does not prove a conspiracy to possess piperidine with knowledge or reasonable cause to believe that phencyclidine will be manufactured.” The Government objected to this instruction stating it was argumentative and the court agreed. Green’s counsel argued that the instruction was “a correct statement of the law” and was the “flip side” of the Government’s requested instruction. The court proposed a modification to the Govеrnment’s requested instruction in lieu of accepting the defense counsel’s instruction. The defense counsel replied, “Every purchase and sale is an agreement. The jury needs to be told which agreements count.” The court then suggested to further modify the Government’s instruction to provide: “If persons enter into an agreement for an unlawful purpose they become agents for one another for that purpose.” The court noted that adding “for that purpose” to the instruction “obviates the problem about the technical agreement between buyer and seller.” The Government agreed to this modification, but the record is silent as to whether the defense counsel made any further comment or objection. The court adopted its own modified instruction after hearing no objection from either the prosecutor or the defense counsel, and submitted the modified instruction to the jury.
While the jury was deliberating, a deputy United States marshal escorted the jurors to a local restaurant for dinner. Upon returning to the court, the marshal filed a report with the court disclosing that as he led the jurors to their seating area in the restaurant, he passed a group of people seated at a table he recognized as federal employees and mentioned that he was escorting a jury. According to the marshal’s
The next day the court heard testimony from the person who had allegedly made the remark, and from another individual seated at the same table. The speaker, an Internal Revenue Service agent, testified that he had not heard the marshal mention that jurors were present and that he was discussing a search warrant episode he had participated in the previous weekend. The fact situation he was discussing related to an entirely different case, and he stated, “Based on all that I am sure that they are guilty,” referring exclusively to the individuals who were the subjects of the search warrants they (the agents) were discussing. The other witness, also an agent of the IRS, corroborated the speaker’s testimony. The court found the testimony of the mаrshal, the speaker and the other IRS agent to be credible, stating, “I do not find [the speaker] deliberately shouted at the jury or that there was any attempt in any way to influence the jury in connection with this case,” and suggested that the incident was the result of an “unfortunate combination of circumstances.” The court then set about to discuss with the respective counsel possible approaches to be used in questioning the jurors “to determine whether anyone [on the jury] ... heard anything and ... whether it had any effect at all on their deliberations[.]” The court decided to conduct a post-verdict examination of the jurors in accordance with the guidelines оf Rule 606(b) 5 of the Federal Rules of Evidence to determine what, if any, awareness they had of the remark.
During this period of time the jury was deliberating and shortly thereafter returned verdicts of guilty as to both counts in the indictment. After the return of the verdicts, the court proceeded to examine all the jurors individually with respect to the “Guilty!” remark allegedly made in their presence the previous evening. Of the twelve jurors, only one testified as having heard any remark, and he testified that he “just forgot about it immediately until you brought it up just now,” and that “[i]t was just such a quick thing that I don’t really have any clear recollection of it.” In response to the court’s questioning, this same juror also stated, “No one acknowledged having heard it and no one, to my knowledge, acted as though they had been affected by it, by any comment of that nature.”
The court denied Green’s subsequent motion for a new trial based on the jury incident, stating, “I am absolutely convinced beyond any reasonable doubt that none of the jurors were at all affected by it.”
The court suspended sentence on Counts 1 and 2 and placed Green on concurrent terms of probation for a period of five years on the condition that he reside in and participate in a work release program for three months, perform one hundred hours of community service as directed by the U.S. Probation Office, and receive drug abuse counseling and monitoring as directed by the U.S. Probation Office. Green appeals his convictions on several grounds. He contends that Count 1 of the indictment failed to charge a cognizable offense as he argues that Count 1 charged him with willfully and knowingly conspiring to commit a negligent act, thаt the Government failed to prove that PCP was ever actually manufactured with the piperidine in question as Green believes is required for conviction on Count 2, that the court erred in refusing to give a requested jury instruction concerning the difference between a conspiracy and a “buyer-seller relationship,” that he was not brought to trial within the 70-day time period mandated in the Speedy Trial Act, and that the court applied an incorrect legal standard in denying Green’s motion for a new trial based on an improper contact with the jury during a dinner break from its deliberations.
II.
On appeal, Green renews the argument initially presented in his pre-trial motion to dismiss Count 1 of the indictment. He contends that count one failed to charge a cognizable offense because “it is legally impossible to
conspire
to a possession that requires
reasonable cause to believe
that the possessed item will be used for a particular purpose” — that is, to conspire to possess piperidine “knowing or having reasonable cause to believe” that the piperidine will be used to manufacture PCP. The defendant posits that the phrase “ ‘reasonable cause to believe’ appears to set up a standard of negligence or recklessness that is different from knowledge,” without providing any authority for this novel legal theory. Using this interpretation, Green argues that one cannot conspire to violate
The district court properly rejected this argument as “erroneous and misleading” as
III.
Green argues with respect to Count 2 that proof beyond a reasonable doubt that the piperidine in question was actually used to manufacture PCP is a necessary element for conviction under 841(d)(2). We disagree.
“Any person who knowingly or intentionally — ... possesses any piperidine knowing, or having reasonable cause to believe, that the piperidine will be used to manufacture phencyclidine except as authorizеd by this subchapter, shall be sentenced to a term of imprisonment of not more than 5 years, a fine of not more than $15,000, or both.”
Green has failed to present any support for his novel theory of law nor any language from the legislative history of this statute, much less any caselaw in support of his interpretation. Indeed, the plain language of the statute reveals that Congress intended to impose a broad prohibition against the manufacture of PCP, criminalizing both the actual manufacture of PCP as well as the possession of piperidine (an essential ingredient of PCP) when knowing or having reasonable cause to believe the piperi-dine would be used to manufacture PCP. See 7 U.S.Code Cong. & Adm.News 9518-9522 (1978).
Green attempts to analogize
Green’s attempt to analogize
IY.
Green’s next contention is that the district court erred in refusing his proposed jury instruction regarding the existence of a “buyer-seller relationship.” On appeal, our review of the district court’s decision is
Green’s proposed instruction No. 7 stated, “The relationship of buyer and seller, absent any prior or contemporaneous understanding beyond the sales agreement itself, does not prove a conspiracy to possess piperidine with knowlеdge or reasonable cause to believe that phencyclidine will be manufactured.” Green claims that the trial court should have given this proffered instruction to the jury because it stated a valid theory of defense. We disagree. We are aware of no case law, nor has any been presented to us, stating that a defendant is entitled to the particular instruction he requests. In fact case law holds to the contrary — the defendant is not entitled to the particular instruction he requests as long as the instructions given adequately express his theory of defense.
United States v. Emalfarb,
V.
Green also challenges the district court’s denial of his pre-trial and post-trial motions to dismiss for failure to comply with the 70-day time limit imposed by the Speedy Trial Act,
Contrary to the defendant’s contention, we find that the court’s statements at the August 26 hearing did not constitute final rulings on the pending motions. The district court’s minute order from the August 26 hearing recited, “Status hearing held. Ruling on pretrial motions to follow by mail. Status hearing and ruling on any pending motions continued to October 7, 1983 at 12:00 noon.” Further, at the August 26 status hearing, the court stated:
“[W]hat I am going to do with respeсt to those two [motions] is not to read the sort of initial draft of the opinion that we are going to write on that because it is just going to take too much time but we are going to deny the motions on both theories, the motion to dismiss Counts 1 and 2 and the motion to dismiss Count 1. On the motion for a Santiago hearing, I will indicate that orally, even though, again, that will be part of a written order on this — and all of these will be effective as of the date that they are issued, and, in effect, I am ruling by mail on all of these but I do want to let you know exactly what the rulings are.
* * * * sft *
All right. That will be the orders and they will be out just as quickly as we can get them out, in the next day or two. They will be effective as of the dates that appear.”
Initially we note the minute order reflects that the court intentionally declined to rule on any motion at the August 26 status hearing, stated that the rulings would follow by mail and that any rulings on pending motions were ordered continued to а subsequent status hearing. In addition, the dispositive portions of the court’s statements are the repeated references to the issuance of orders in the future. The court referred to “the opinion we are going to write,” and stated “we are going to deny the motions,” “that will be a part of the written order,” “I am ruling by mail,” and most importantly
“all of these will be effective as of the date that they are issued”
and “They will be effective as of the dates that appear.” Thus, the court’s clear and unambiguous language expressed its intent that it was not officially ruling on the motions at this time. Absent any indication of willful delay or desire to circumvent the provision of the Speedy Trial Act,
see, e.g., United States v. Janik,
VI.
Finally, we consider Green’s argument that the court erred in denying the motion for a new trial based on the alleged improper remark of a third party made in the presence of the jury, and further that the district court improperly evaluated testimony given at the post-verdict examination of the jurors in violation of
Rule 606(b) provides:
“Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement ocсurring during the course of the jury’s deliberations or to the effect of anything upon his or any other juror’s mind or emotions as influencing him to assent to or dissent from the verdict or indictment or concerning his mental processes in connection therewith, except that a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury’s attention or whether any outside influence was improperly brought to bear upon any juror.”
In Wiedemann, this court stated:
“So far as the testimony of trial jurors is concerned, the district court’s inquiry into the validity of a verdict is governed byFed.R.Evid. 606(b) . The Rule was designed to protect the entirety of the jury’s deliberative process, including arguments, statemеnts, discussions, mental and emotional reactions, and votes.Fed. R.Evid. 606 advisory committee note. The Rule does allow jurors to testify as to whether extraneous information or an outside influence reached them. However, it prohibits jurors from giving post-verdict testimony as to whether their deliberations, in fact, were prejudiced by the extraneous information or outside influence.”
In denying the motion for a new trial, the court stated:
“[Tjhere was an individual voir dire of each of the jurors, and, as I indicated at that time, I am absolutely convinced beyond any reasonable doubt that none of the jurors at all were affected by it. Only one or — as I recall, one really, heard anything at all, and I was very impressed with his sort of matter-of-fact response that it didn’t have any effect upon him whatsoever.”
According to Green:
“The court applied an incorrect legal standard in ruling on the motion. The court should have assessed the impact of the statement made to the jurors by assessing the probable prejudice created when a typical juror would hear such a statement. Instead, the court erroneously relied on the foreman’s testimony thathe in fact discounted the statement, which, in the court’s view, avoided the ‘problem.’ ”
Green has failed to provide this court with any caselaw support for the proposition that the court should have assessed “the probable prejudice created when a typical juror would hear such a statement.” In contrast, this court stated in
Wiedemann,
“[
VII.
The judgment of the district court is Affirmed.
Notes
.
.
. Count 3 charged Burgos and Steffy with knowingly and intentionally distributing cocаine in violation of
. Title
"In any case in which a plea of not guilty is entered, the trial of a defendant charged in an information or indictment with the commission of an offense shall commence within seventy days from the filing date (and making public) of the information or indictment, or from the date the defendant has appeared before a judicial officer of the court in which such charge is pending, whichever date last occurs.”
.
Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury’s deliberations or to the effect of anything upon his or any other juror’s mind or emotions as influencing him to assеnt to or dissent from the verdict in connection therewith, except that a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury’s attention or whether any outside influence was improperly brought to bear upon any juror. Nor may his affidavit or evidence of any statement by him concerning a matter about which he would be precluded from testifying be received for these purposes.
. We disagree with the defendant’s argument that he properly preserved his objection for appeal under Rule 30 of the Fed.R.Crim.P. "Merely submitting instructions is not sufficient to preserve the right to appeal. A defendant must object [on the record] to the judge’s refusal to tender the defendant's instructions, and must clearly state the reasons for his objection [on the record].”
United States v. Brown,