*1 allega- support its witnesses two duced America, UNITED STATES grand lied to Hatter that tions Plaintiff-Appellee, Hatter fuel. he delivered where regarding fuel delivered to have claimed locations three different barges located RICHARDSON, Defendant- Phyllis in New Or- River Mississippi along the Appellant. Hatter, testimony According leans. directly contradict- witnesses these two 99-11126. No. these to one of respect other with ed each pro- sites, government Appeals, and
delivery Court of respect at all with no evidence Circuit. duced Eleventh Furthermore, one sites. other two 3, Nov. photographs that testified witnesses these claims Hatter sites which of these he took he told his contention support
would deliveries his regarding truth dis- subsequently Agent Ruka
sent
appeared. testimony care have reviewed
We any inconsistencies
fully and conclude for the was evidence government’s
in the not so The evidence
jury to resolve. completely inadmissible or as to
tainted be on guilt the evidence While
unreliable. overwhelming, is, not again, charges
these satisfy it was sufficient
we conclude standard. evidence”
the “substantial Clavis, F.2d 538 Cir.1992).
VII. reasons, Gaudet forgoing
For the RE- I are on Count convictions
Hatter’s Doherty’s convictions
VERSED. As to III are VACATED. I and
Counts are V, Hatter’s convictions IV and
Counts case is REMANDED.
AFFIRMED. *2 Def., Fort Fed. Pub. Lopez,
Bernardo Lauderdale, FL, Defendant-Appellant. Justice, Rao, Washing- Dept, of Sangita Karadbil, DC, Atty., West ton, Neil U.S. *3 FL, Beach, Eagleson, Stephen Marc Palm Schultz, Miami, FL, R. Anne Schlessinger, Plaintiff-Appellee. for BARRETT, and WILSON Before *, Judges. MAGILL Circuit BARRETT, Judge: Circuit appeals her convic- Phyllis Richardson embezzlement, laundering, money for tion against fraud. The Indictment and mail forty-one counts consisted of Richardson of embezzle- sixteen which included counts finan- federally of a insured ment of funds institution, in violation of U.S.C. cial fraud, 657; in viola- of mail § nine counts § counts of fifteen tion of 18 U.S.C. of 18 U.S.C. money laundering, violation 1956(a)(l)(B)(i); engag- and one count § involving monetary in a transaction $10,000 em- greater than funds of value institution, in vio- financial bezzled from Factually, the § 1957. U.S.C. lation of 18 allegations upon based Indictment Richardson, and that between Community Savings at employed while $870,000 Bank, approximately embezzled and bank fourteen customers from least own accounts. funds her those laundered trial, was found Richardson After a was sen- counts and thirty-eight guilty on and imprisonment months tenced to dis- supervised release. years three pay court also ordered trict $1,215,605.81 special and restitution $2,500. Richard- appeal, On assessment by the district three errors argues that son conviction: of her reversal court require allowing (1) court erred district * government abandoned trial the Judge During the Magill, Circuit J. U.S. Frank Honorable one count of of embezzlement sitting two counts Appeals, Eighth Court of Circuit mail fraud. designation. questions through only to submit written room based on the presented evidence witnesses, thereby court denying to them in court. (2) trial; her a fair erred trial, During the course of the six-week in instructing relating on the law the court twenty-three asked witnesses (3) power attorney; sets of that had been submitted by admitting court erred into evidence by jury. objec- Prior to Richardson’s summary exhibits with a column heading tion, the court had addressed activity” “unauthorized when labeled five ques- witnesses based on ten sets of activity
whether that inwas fact “unautho- by jurors. tions submitted Following rized” was a issue. We each address objection, jurors Richardson’s submitted of Richardson’s contentions turn. court, thirteen sets of *4 twelve of which were addressed two to Jury Questioning A. witnesses. questions Most of these came trial, At the of outset Richardson’s during government’s ease-in-chief, jury instructed that if jurors .district any did not ask questions of they did not understand a of a part wit- appeal, Richardson. On Richardson first testimony they ness’ could submit written argues permitting jurors that any ask questions to the court after lawyers questions all deprived her of her consti- ended the examination that .of witness. tutional to a fair trial. right Alternatively, explained jurors The court to the that argues Richardson that at least ten of some of questions might their submitted questions objection— asked after her —all question not be asked might; because specifically were prejudicial to her. improper be under the rules of evidence Because Richardson did not ob them speculate and instructed not to ject practice to the questioning what questions the answer to such might mid-trial, until two standards of review why be or the court particu- did not ask apply. Questions prior submitted to Rich question. lar object Richardson did not objection ardson’s plain are reviewed for practice this at the time. error, Olano, see United States v. 507 U.S. trial, Throughout the in accordance with 725, 732-36, 1770, 113 S.Ct. 123 L.Ed.2d instructions, judge’s jurors occasionally (1993), 508 questions while submitted after one or questions submitted more for a objection Richardson’s are reviewed for Upon receipt, witness. the district court abuse of discretion. See United States v. questions would review the with the law- Johnson, (8th 136, Cir.1990). F.2d 914 138 yers hear, at sidebar in order to discuss error, “Plain when examined in the context objections, and rule on and then address of the entire is so obvious that failure questions those that permitted were to notice would seriously it affect fair mid-trial, witness. At objected ness, integrity public reputation of any questions by future jury, argu- judicial proceedings.” United States v. that ing demonstrated that Walther, (11th 1334, 1343-44 Cir. jurors becoming adversarial and 1989). Thus, in order to plain establish engaging premature deliberation. The error, Richardson prej must demonstrate disagreed district court with both of Rich- is, udice—that she must that demonstrate ardson’s contentions and overruled her ob- the error affected the outcome of dis jection. court, however, again in- trict court proceedings. Olano, 507 jury, explaining structed they 734, 113 U.S. at S.Ct. 1770. were allowed questions only to ask for the purpose clarifying testimony; matter, witness’ As an initial under either should not standard, become reject advocates outright we Richardson’s side; for either and that they must argument decide that permitting juror question the case they after retired to the Indeed, of witnesses per is se error.
1289
of wit-
mitted
to ask
has
practice
to consider
every circuit
nesses,3
of Arizona
it, holding
legislatures
the decision
permitted
rests within
juror questioning
specifi-
allow
and Florida have enacted statutes
judge. See United
the trial
discretion
practice.
Ariz. R. Ct.
cally mandating
(6th
Collins,
457
Cir.
v.
226 F.Bd
States
40.50(3).
39(b)(10); Fla. Stat. ch.
Hernandez, 176
States v.
2000);
United
jurisprudence,
In American
(3d Cir.1999);
United States
719,
724
F.3d
equitable
“assure a fair and
reso
serves to
(7th
333,
Cir.
Feinberg, 89
F.3d
336
v.
Standard Oil Co.
factual
lution of
issues.”
511,
v.
F.3d
States
1996);
47
United
(9th
Arizona,
1021, 1031
Cal. v.
F.2d
738
v. Cassi
(2d Cir.1995);
States
United
515
Battin,
Cir.1984)
v.
(quoting Colgrove
(1st Cir.1993);
ere,
1006,
1017-18
149, 157,
37 L.Ed.2d
U.S.
S.Ct.
Groene,
F.2d
(1973)).
discharge
In order
Cir.1993) (“The
(8th
procedure
use of the
jurors to listen
duty,
upon
it is incumbent
not
(prejudicial per
plain
error
itself is
evidence, taking care to understand
Polowichak,
se).”);
United States v.
can
determined and
it so that the facts
be
(4th Cir.1986);
the relevant
law. The
applied
then
Callahan,
1078, 1086
Cir.
practice
for the
underlying rationale
1979) (“There
nothing improper about
is
is that it
permitting jurors
to ask
*5
ques
occasional
allowing
practice
clarify
factual
helps jurors
and understand
of witn
jurors
to be asked
tions from
issues,
complex
lengthy
or
especially
esses.”).2
addition, virtually every
In
testimony
expert
trials that involve
witness
per-
the issue has
to consider
state
1972);
1206,
(Mich.
Prichard,
Minnesota: State v.
N.W.2d 73
661 F.2d
1209
In
v.
2.
Bonner
banc),
95,
(Minn.
Cir.1981) (en
Crawford,
Cir-
N.W. 822
the Eleventh
96 Minn.
104
precedent
1905).
Fifth
adopted
binding
all
cuit
as
Glen
v. Cardinal
Missouri: Callahan
prior
1993);
down
(Mo.
Circuit decisions handed
Hosp.,
852
non
863 S.W.2d
30,
September
1981.
of business on
64,
close
Ry.,
S.
128 Mo.
30
v. St. Louis &
Schaefer
(Mo.1895);
Jersey: State v.
S.W.
New
331
Co.,
Bridge
Prather v. Nashville
Alabama:
514,
N.J.Super.
602
Jumpp,
619 A.2d
261
3,
(Ala.1970). Ari
So.2d 322
286 Ala.
236
(NJ.Super.Ct.App.Div.1993);
New Mexico:
Superior
Pittsburg Copper Co. v. To
&
zona:
611, 762 P.2d
Rodriguez,
v.
N.M.
State
107
1917),
182,
(Ariz.
mich,
expressed the fear not of the jury would lead the to treat breach pursuant power attorney.5 of Not- arising power from a fiduciary obligation withstanding posi- Richardson’s ultimate offense, attorney separate as a or of tion, power attorney of was introduced embezzlement, a breach with equate such testimony regarding into evidence and it of mail fraud and or confuse the elements received, and we review the issue of The district court over- embezzlement. jury this instruction in this context. objection gave and ruled Richardson’s proposed instruction. Jury instructions are reviewed attorney power The issue of of arose they de novo “to determine whether mis regard to one of Richardson’s four- jury state the law or mislead the victims, Virgi- alleged teen embezzlement prejudice objecting party.” of the Craig. Craig nia was a customer of the Chandler, 1073, 996 F.2d Craig and Richardson had befriended bank (11th Cir.1993). “The court has In point prior August at some in formulating broad discretion 1995, August Craig, being placed after in a charge long charge so as the as a whole home, nursing gave power Richardson a accurately reflects the law and the facts.” attorney over her financial affairs. The Turner, 1574, United States v. in power attorney was written broad (11th Cir.1989) (citing stating that could language, Richardson Silverman, gifts Craig’s money property make and Cir.1984)). appeal, “On we examine apply 'Craig’s for loans in name. Sub- jury charge, whether the considered as a sequently, made various with- whole, sufficiently instructed the so Craig’s drawals from accounts and ordered that the understood issues and in Craig’s five credit cards name.4 Starke, were not misled.” United States v. government introduced evidence of (11th Cir.1995) (quoting power attorney in its case-in-chief Inc., Lines, Wilkinson v. Carnival Cruise object. Early and Richardson did not (11th Cir.1991)). trial, plain Richardson relied on the Thus, this will not Court reverse convic power attorney justify- terms of the unless, tion examining “after the entire however, Subsequently, her actions. charge, find that [we] the issues of law she abandoned this defense and instead presented inaccurately, charge argued regard that her conduct with included crimes not contained in the indict Craig Craig was authorized because had ment, or charge improperly guided given her access to bank accounts way such a substantial as to violate permission Craig’s to obtain credit in name Turner, process.” gifts. as due 871 F.2d at Richardson testified that she re- (internal omitted). ceived Craig’s the funds in be- accounts citations *8 acquisition 4. The of these credit cards was the district court found that it was not correct as charges. basis of the mail fraud a matter of law and thus would not allow her argument jury. to make that See Gov concerning 5. The briefs are unclear the tim- Gelzer, (citing ernment Br. at 44 Wheeless change of and reasons for this in defense. (N.D.Ga.1991)). F.Supp. brief, According to Richardson's she raised early Richardson stales that in the trial both power attorney during “prelim- the of defense agreed power attorney sides that the al inary discussions.” Richardson Br. at 26-27. Craig's lowed her to use funds from accounts brief, According government's Richard- and to obtain credit cards in her name. See “initially” justification, son on relied but Nevertheless, Richardson Br. at 27. Richard during testimony began her trial to advance power attorney son states that the further theory Craig given gift. the a that had her during became a "non-issue” the trial and See at 39. Government Br. consequently by was abandoned her. Id. at government The asserts that Richardson had to abandon its initial defense when the explaining that limiting a instruction of this with circumstances the
Under activity was Proof whether the was unauthorized reversible error. find no case we the concerning pow jury. Subsequently, the the question at trial a for presented was court and the district attorney given government offered er of summary lati separate court’s broad evidence a district admitted into Craig. Given instructions, and four- jury conjunction with nine the crafting its charts tude in record, totality of In the victims. having alleged reviewed teen embezzlement instructions a gave find that we do not each instance the whole, improperly considered as given, stating instruction to the limiting or vio misstated the law jury, guided activity in the account was whether the process. lated due was an issue for the fact unauthorized also government to decide. The had Summary Exhibits
C. testify that the label “unau- expert witness activity” represented Knorr’s argues that reversal thorized Finally, Richardson heading opinion. used in because is warranted usurped exhibits government’s of the one chart of- summary the ninth was After During govern- jury’s function. evidence, government into fered concerning the embez- case-in-chief ment’s from “unauthorized changed the labels counts, offered government zlement “questioned transaction” transaction” to summary prepared charts into evidence of the trial. Richardson for the remainder Knorr, witness, de- Joseph expert its limiting notwithstanding the argues that histories of the transaction scribing fact given, instructions which alleged embezzle- of the fourteen accounts heading changed prior that the in- summary chart victims. Each ment deliberations, is entitled to jury’s she “un- heading with the cluded one column reversal of conviction. her listed activity.” This column authorized be- amounts that Knorr
transaction use of sum A district court’s the ac- interviews with lieved—based for an mary is reviewed abuse charts financial analysis and an count holder Norton, States v. discretion. See United by the ac- be unauthorized records —to (11th Cir.1989); Gor count holder. States, don v. United of these presentation government’s Cir.1971) (district (5th con rulings court’s First, gov- pattern. charts followed subject summary charts are cerning testimony from would introduce ernment showing a clear of abuse “only upon review noting discrepancies alleged victim an accused”). to an resulting prejudice Next, govern- or her accounts. his generally permitted are Summary charts testimony by Knorr present ment would Evidence 1006 and Rule of by Federal accounts. concerning each of that victim’s to use them lies within decision whether gov- testimony, In with connection court’s discretion. See summary chart introduced ernment Diez, 892, 906 corresponded by Knorr prepared Cir.1975). Nevertheless, has this Circuit admitted being In addition to that victim. are to be used summary charts noted that evidence, was en- spreadsheet into caution, their potential due to during onto a projected screen larged Norton, In at 1362. abuse. *9 testimony. Knorr’s grave with deed, charged court is “a trial an to make certain that responsibilities summary was of- first chart When in ‘trial unjustly convicted is not evidence, objected to accused Richardson into fered ” Gordon, 876 438 F.2d at by charts.’ alleging activity,” “unauthorized the label States, F.2d 226 v. United (quoting Lloyd prejudicial. eonclusory and that it was Cir.1955)). 9, 16 exhibit admitted the The 1294 harm, avoiding jury.
In
such
“the
charts went to the
find no re-
We
error.
is not
versible
requirement
essential
any
charts be free from reliance on
as
reasons,
foregoing
For all the
we find
that these
sumptions,
assump
rather
but
that Richardson’s convictions must be
in
by evidence
the rec
supported
tions be
AFFIRMED.
Diez,
Thus,
at
ord.”
515 F.2d
this
permit
summary
court will
the use of
WILSON,
Judge, concurring:
Circuit
assumptions
certain
incorporating
charts
separately only
express my
I write
to
evidence has been
long
supporting
“so
as
practice
permit-
reservations about the
jury ...
presented previously to the
juries
ting
to submit
to wit-
where
has ‘made it clear that the
the court
during
nesses
the course of a trial. This
ultimate
made
decision should be
provides
finding
record
no basis for a
weight
given
should be
as to what
”
judge permit-
error as a result of the trial
Francis,
v.
evidence.’ United States
ting jurors to
submit written
(11th Cir.1997)
1452,
(quot
131 F.3d
1458
witnesses. The
issues
this case are
Means,
811,
ing United States v.
complex
judge
the trial
utilized suffi-
(5th Cir.1983)).
Norton,
817
F.2d
867
precautions
any possibility
cient
to reduce
Daniels,
986
However,
prejudice.
my
of unfair
view is
(11th Cir.1993)
451,
F.2d
(upholding
practice
permitting jurors
that the
summary
the use of
charts when the court
submit
to witnesses should be
present
instructed the
charts
relegated
extraordinarily
to rare or
com-
government
ed what
contended the
plex
clearly necessary.
cases which it is
shows,
evidence in the record
and that
Few
fit
I
category.
agree
trials
with
therefore the
must
the evi
evaluate
practice
Seventh Circuit
independently);
dence
see also United
encouraged,
should not be
but discour-
Acevedo,
1421,
States v.
F.3d
aged.
Feinberg,
See United
(11th Cir.1998) (“We
assume that
(7th Cir.1996).
F.3d
instructions.”). Furthermore,
follow their
Other
agree.
Circuits
The Second Cir-
opportunity
where the defense has the
“strongly
use,
cuit
discourage[s]” its
concerning
cross-examine a witness
very
same reason that Richardson ob-
disputed
present
issue and to
its own ver
jected to
present
its use
case—it
any
sion of the
“the likelihood of
advocates,
turning jurors
“risks
into
com-
error in admitting summary evidence di
promising
neutrality”
their
and “is a sub-
Norton,
minishes.”
izing the
opinion, given
well-
panel
I concur in
juror
authority
permitting
In Richardson’s
established
mini-
safeguards
appropriate
criminal case is a matter
employed
in a
practice.
with the
risks associated
discretion
mize the
that is vested within
sound
jurors
Sutton,
to reduce
required
The
at
judge
trial court. See id.
of the
writing for
consid-
their
their
Rule
Evi-
Federal
ingly and Sutton, (1st Cir.1992). particularly This is trial where:
true in a criminal extremely sensi- ... are The dynamics HURLEY, Petitioner- Michael Alan carry poten- tive. Innovations Appellant, are dynamics those disrupting tial for in the exami- risky. participation Juror signifi- represents of witnesses nation Secretary, Depart MOORE, Michael W. innovation, transferring jurors’ cant Corrections, But Robert A. ment to a passive one purely role from terworth, Attorney General of practice one. partially interactive Florida, Respondents-Appel State trial, creates of the delays pace also lees. lawyers wish-. awkwardness a certain No. 99-14521 juror-inspired questions, object Non-Argument Calendar. litigation undermining a risk runs strategies. Appeals, Court of judge may take the trial Although Id. Eleventh Circuit. to those measures similar precautionary Nov. 2000. un case to avoid present in the employed may have such measures prejudice,' fair En Banc Rehearing Rehearing and anta or even potential to “embarrass 11, 2001. Jan. Denied they if that their sense gonize the truth has been thwarted pursuit of Bush, 47 not understand.” they do
rules instruc- Even with remedial