UNITED STATES of America, Appellee, v. Robert L. Van MEERBEKE and Donald M. Jones, Appellants.
Nos. 635, 636, Dockets 76-1278, 76-1327
United States Court of Appeals, Second Circuit
Argued Dec. 9, 1976. Decided Dec. 27, 1976.
Certiorari Denied April 18, 1977. See 97 S.Ct. 1663.
548 F.2d 415
We conclude that the lower court erred in permitting Phillips to prosecute this suit pro se, and accordingly, its order denying the motion to dismiss is reversed. Upon this appeal we do not purport to consider the adequacy or qualifications of Phillips as a shareholder to represent other shareholders similarly situated as required by Rule 23.1. However, if Phillips decides to proceed with this suit he may do so only if represented by a member of the bar. We believe that the protection of other shareholders similarly situated requires that such counsel be more than the alter ego or “co-counsel” of this particular plaintiff,8 but be an attorney-at-law who, in accordance with the standards of Eisen v. Carlisle & Jacquelin, 391 F.2d 555, 562 (2d Cir. 1968), is approved by the court as “qualified, experienced and generally able to conduct the proposed litigation.”9
It is a familiar principle that in the conduct of a derivative stockholder‘s action the district court has inherent power in equity to determine the course of its proceedings and determine what notice is appropriate or necessary to be given to shareholders concerning any matter involving the protection of their interest.10 Rule 23.1, in applying this concept, is specific in requiring notice to shareholders to effectuate any settlement or dismissal of the cause of action. Such notice protects nonparty stockholders against prejudice from a discontinuance or dismissal of a derivative suit particularly when the statute of limitations precludes institution of a new suit. Cf. American Pipe & Constr. Co. v. Utah, 414 U.S. 538, 94 S.Ct. 756, 38 L.Ed.2d 713 (1974). In this case the plaintiff claims that his timely institution of this action eliminated the potential defense of the statute of limitations. Consequently, in the event that the plaintiff either refuses to obtain independent counsel satisfactory to the district court or decides not to proceed with the action, the district court is instructed to dismiss the complaint after whatever notice to the other shareholders the court deems appropriate and the failure of any other shareholder to proceed with this action.
Reversed and remanded in accordance with this opinion.
Barry A. Bohrer, New York City (Ivan S. Fisher, New York City, on the brief), for appellant Jones.
Douglas J. Kramer, Asst. U. S. Atty., Brooklyn, N. Y. (David G. Trager, U. S. Atty., Eastern District of New York, Brook-lyn, N. Y., on the brief, Alvin A. Schall, Asst. U. S. Atty., Brooklyn, N. Y., of coun-sel), for appellee.
Before KAUFMAN, Chief Judge, OAKES and GURFEIN, Circuit Judges.
IRVING R. KAUFMAN, Chief Judge:
A courtroom is not always a haven from the more bizarre manifestations of human behavior. In this case, we are asked to decide whether the ingestion of opium by a government witness during his testimony requires reversal of the appellants’ convic-tions for importing approximately ten pounds of opium into the United States,
The Government‘s principal witness was Reuben Fife, a co-conspirator and an impor-tant participant in the illegal scheme. Fife testified that he met appellant Robert L. Van Meerbeke in San Francisco‘s Haight-Asbury district in 1968. In subsequent years, the two met frequently to use and discuss narcotics. On occasion they pur-chased drugs from each other.
In early 1975, these discussions crystal-lized into an ingeniously conceived scheme to smuggle opium into the United States. Fife, financed by Van Meerbeke, was to fly to India and purchase the narcotic. After secreting the opium in the false bottom of his suitcase, he was to proceed to London and meet the third conspirator, appellant Donald M. Jones, an acquaintance of Van Meerbeke‘s. Jones and Fife planned to ex-change identical suitcases. Jones, dressed as conservatively as possible, would then attempt to carry the opium laden suitcase through United States customs. If ap-prehended, he would pretend that he had inadvertently retrieved the wrong suitcase.
These well laid plans went awry, how-ever, when British Customs officials noticed Jones‘s suspicious behavior as he lurked in the air terminal awaiting Fife‘s arrival. To the surprise of the culprits, the British pro-ceeded to inspect Jones‘s and Fife‘s valises. They were arrested on their arrival at Ken-nedy airport after information concerning the search was forwarded by the British. Jones was subsequently released, but Fife eventually pleaded guilty to drug charges and agreed to cooperate with the govern-ment in the prosecutions of Jones and Van Meerbeke.
II. THE OPIUM INGESTING INCIDENTS
Fife was called to testify on March 25, 1976. In the course of describing his ex-ploits, he identified the suitcase that had contained the opium, which was then intro-duced into evidence. Fife pointed out that small pieces of opium remained in the suit-case mixed with bits of fiberglass. At some point during his testimony on March 25, Fife removed a small chip of opium from the suitcase and swallowed it. Though his action was not perceived by either prosecu-tion or defense counsel, it was observed by the trial judge, Judge Bramwell, and possi-bly by some jurors as well. Judge Bram-well did not comment on Fife‘s behavior or take any other action in response to this untoward incident.
When trial resumed on March 29, Fife continued his testimony. Apparently, bits of opium had fallen to the floor from the suitcase and remained in the witness box. Following a recess, a defense counsel ob-served Fife pick up a small piece of opium from the floor and place it in his mouth. The attorney did not immediately object, but questioned Fife about the incident dur-ing cross-examination. Fife admitted he had ingested small amounts of opium both that day and on March 25. The defendants immediately moved for a mistrial, or to strike Fife‘s testimony. Judge Bramwell denied both motions, and in so doing, re-vealed for the first time his own observa-tions of Fife‘s behavior on March 25. He stated:
There was nothing—This is a person who used a lot of drugs. It is true when the suitcase was in front of him he took a small snip, the Court saw him and the jury saw him. I didn‘t see him take any today.
Judge Bramwell stated that Fife‘s credi-bility was a question for the jury, and al-lowed a free-wheeling and uninhibited cross-examination concerning Fife‘s drug use both on and off the witness stand. Fol-lowing the jury‘s guilty verdict, Jones and
III. THE BREACH OF COURTROOM DECORUM
Van Meerbeke and Jones contend that Judge Bramwell‘s inaction during the first opium ingesting incident constituted revers-ible error. They argue that his silence im-plied condonation of Fife‘s breach of court-room decorum. They analogize his action to a private communication with the jury, and argue that prejudice to the defendants should be presumed, even if it is clear from the dynamics of the entire trial that they were not harmed. See Remmer v. United States, 347 U.S. 227, 229, 74 S.Ct. 450, 98 L.Ed. 654 (1954); United States v. Pfingst, 477 F.2d 177, 198 (2d Cir.), cert. denied, 412 U.S. 941, 93 S.Ct. 2779, 37 L.Ed.2d 400 (1973).
The trial judge‘s silence on March 25, in the face of such behavior was surely a serious abdication of his responsibility to maintain order and to control the proceed-ings. It would have been wiser to allow a question or two to pass and, without mak-ing much ado in the presence of the jury, to declare a recess, advise counsel of the inci-dent, and thus enable them to have an informed discussion on the proper course to follow.2 Several courses were available, if sought: suspension of testimony for the day, a medical examination to determine the witness‘s capacity to continue with his testimony, and a stern warning to the wit-ness outside the jury‘s hearing, that such behavior would not be tolerated.
Having said that, however, we cannot ignore a jury verdict grounded in compel-ling evidence that these defendants were guilty of serious narcotics offenses. The ends of justice are not served by lightly disregarding the Government‘s substantial evidence, particularly where we are con-vinced that the error did not affect the judgment. Moreover, the strategy em-ployed by the defense indicates that rather than being harmed by the event, counsel turned it to their advantage by astute and blistering cross-examination. Under such circumstances, reversal would seem to be a reward for adroit gamesmanship.
But, Van Meerbeke and Jones assert that there exists the “possibility” that the jurors might have been “incensed” by Fife‘s graphic demonstration of his addiction. This, however, was not the result of Judge Bramwell‘s failure to advise counsel promptly on March 25. Such a “possibility” would remain throughout the trial unless the judge did nothing short of declaring a mistrial on the first occasion. Judge Bram-well was confronted with a motion for a mistrial after the second ingestion of opium on March 29, on the ground that Fife was “incompetent“. He properly decided to leave the determination of Fife‘s credibility to the jury and counsel—except for after-thought—were satisfied with this.3 They did not raise the issue of possible juror
3500 Statements. The defense was aware, prior to the commencement of trial, that Fife had used drugs very extensively. Statements by Fife, pro-vided by the government to the defense under
Cross-Examination. Fife‘s drug abuse was vividly illustrated on cross-exami-nation. It was revealed to the jury that Fife had taken LSD “somewhere around 300 times“, and during his pre-trial detention, he carried with him a small quantity of opium, secreted in his intestinal tract. After eliciting these lurid confessions, the defense went on to obtain Fife‘s admission he had in-gested opium on the witness stand, both on March 25 and March 29. The jury, of course, heard all of this.
Direct Examination. After their motion for a mistrial was denied, Jones and Van Meerbeke called Fife as a defense witness. Again, he was extensively questioned on his drug abuse, and par-ticularly the opium eating incidents while on the stand. When asked what effect the first ingestion of opium had on him, he responded, “Minor hallucina-tions, the kind that happen to me some-times when I don‘t take drugs“.
Summation. In the summations, Fife‘s egregious record of drug abuse was prominently noted, and his ingestion of opium on the witness stand put for-ward as indicative of the unreliability of his testimony. Fife was described as a “fanatic“, “a drug addict“, “his mind ravaged by drugs“. The defense charged “he didn‘t have the guts to lie without the crutch of opium.”
Charge to the jury. The defense received a favorable charge from Judge Bram-well, who instructed the jury it could take into consideration Fife‘s ingestion of opium in evaluating his ability to observe those events he claimed to ob-serve.
Motion for a New Trial. It was only after the jury had returned a guilty verdict against Jones and Van Meer-beke on both counts, that defendants, in their motion for a new trial, suggest-ed for the first time that a hearing should have been held to determine if any jurors were prejudiced by the trial judge‘s action (or lack of action) on the first day of Fife‘s testimony. Obvious-ly, counsel‘s trial strategy was to use the incident to impeach Fife before the jury in the hope of obtaining an acquit-tal. Failing in that attempt, they sought a new trial, belatedly alleging possible juror prejudice.
Thus, in the context of the entire trial, it is evident that the trial judge‘s lapse did not result in prejudice to the defendants, nor did it affect the ultimate judgment. Fife‘s ingestion of opium on both March 25 and March 29 were fully explained and argued to the jury. It is not without significance that on the second oc-casion, when Fife‘s behavior became known to defense counsel, no request was made for a hearing, a recess, or a doctor‘s examina-tion. Rather, counsel made a conscious and perhaps sound strategy decision to use both the March 25 and 29 incidents to bolster their case. Although we have indicated our belief that the trial judge‘s inaction on March 25 was ill-advised, we cannot ignore that Van Meerbeke and Jones, far from being injured by the incident, aggressively turned it to their advantage.
In sum, we believe the trial was fair and the incidents under contention did not
OAKES, Circuit Judge (concurring):
Chief Judge Kaufman‘s opinion concludes that the trial judge‘s silence on March 25, while “a serious abdication of his responsi-bility” amounting to “error,” did not affect the judgment. I agree with this conclusion and therefore concur in the opinion, but write separately only to emphasize the sig-nificance of the type of error committed here. As the panel opinion implies, it is the type of error on which, in another case, we might be forced to reverse despite strong evidence of guilt, if we could not say that the error did not affect the judgment. See United States v. Robinson, 544 F.2d 611, 619 (2d Cir. 1976), quoting R. Traynor, The Rid-dle of Harmless Error 28 (1970).
I simply do not understand how a trial judge who sees a witness taking a drug can allow the trial to continue as if nothing had happened. It may be that the ingestion by a drug addict of a “small snip” of raw opium would have no effect on the addict‘s capacity as a witness, but that is hardly a question on which federal judges are quali-fied to take sub silentio judicial notice. See McCormick‘s Handbook of the Law of Evi-dence § 329, at 760 (2d ed. E. Clearly 1972). As Judge Kaufman‘s opinion makes clear, there were a number of options available to the judge had he excused the jury and revealed the bizarre opium-eating incident to counsel. The trial judge‘s own observa-tions of the witness after the incident are hardly a substitute for “the benefits which informed discussion and debate between court and counsel may produce even where a court may be aware in the abstract of its own alternatives.” United States v. Robin-son, supra, 544 F.2d 611, 621.
When a trial judge sees a witness do something so unusual and is aware that counsel did not see the incident, he has an obligation to inform counsel as soon as pos-sible as to what he has observed. To fail to do so is, in effect, to exclude the defendant from one of the trial‘s events, in violation of the defendant‘s right to be present “at every stage of the trial.”
The courts have repeatedly expressed condemnation of situations in which a trial judge receives a communication and fails to reveal it to counsel. See, e. g., Rogers v. United States, supra, 422 U.S. at 39-41; United States v. Robinson, su-pra, at 620-621; United States v. Glick, supra, 463 F.2d at 493-94; United States v. Schor, supra, 418 F.2d at 29-30. In such situations, there is a “presumption of preju-dice.” United States v. Treatman, 524 F.2d 320, 323 (8th Cir. 1975). These situations seem to me virtually indistinguishable from the case before us. The trial judge‘s failure to disclose what he knows, be it a juror‘s communication or a witness‘s bizarre action, cannot be lightly passed over.