United States v. Joseph A. Nickerson and Danny Joe Hawkins

FRANK M. JOHNSON, Jr., Circuit Judge,

dissenting:

The majority concludes that any prejudice resulting from the improper questioning of Hernandez was alleviated by the district court’s curative instruction. 1 The majority further deems the erroneous jury instruction concerning the proper proof of a conspiracy to be harmless error. Disagreeing on both points, I respectfully dissent.

The case against defendants turned in large part upon the testimony of Herman Hernandez. Hernandez played an integral role in the drug smuggling scheme, flying numerous plane loads of marijuana from the Bahamas to the United States. He testified that each time he landed with the contraband, defendant Nickerson and, on at least one occasion, co-defendant Hawkins arrived to unload the plane. The testimony constituted the only evidence placing either Hawkins or Nickerson in direct contact with the marijuana.

Defense counsel subjected Hernandez to a vigorous cross-examination. During cross, the witness made a number of statements that severely impugned his credibility. Hernandez admitted that he had been convicted of a felony 2 and had violated his bail terms by flying a plane to Colombia in an effort to obtain cocaine. When asked if he would “tell a lie” in return for money or early release from prison, the witness responded “of course.” The cross-examination uncovered inconsistencies in Hernandez’ testimony and demonstrated that his testimony conflicted with statements made by other government witnesses.

Hernandez also admitted receiving an inordinate amount of assistance from the Government, a possible indication of bias. He obtained immunity from all charges arising out of his 13 attempts to fly marijuana into the United States and his attempt to jump bail in South Carolina. The Government returned to him $10,000 originally forfeited and paid his wife $900 per month while he acted as an informant. Government officials also helped Hernandez regain his pilot’s license, assisted him in obtaining placement in a halfway home and, when medical tests revealed the pres *1024 ence of an opiate in his bloodstream, wrote letters on his behalf seeking leniency. 3

On redirect examination, the prosecutor attempted to rehabilitate the witness. After establishing that Hernandez had testified in three prior trials, the prosecutor asked if the defendant in each prior trial had been convicted on the basis of his testimony. Hernandez responded in the affirmative. The question was blatantly improper. 4 The question and response had the effect of bolstering the witness’ credibility by informing the jury that three previous juries had believed his testimony. Moreover, the jury may have inferred from the colloquy that the three prior trials involved codefendants in the same drug smuggling scheme at issue below. 5

The district court acknowledged that the question was improper but refused to grant a mistrial. Instead, the court instructed the jury to disregard the question and render a verdict solely on the basis of the evidence adduced at trial. The trial judge did note that the question “may have prejudiced these jurors to the extent that we can’t get a fair decision from them.”

Generally, harm caused by the improper admission of evidence can be obviated by a curative instruction. United States v. Ocanas, 628 F.2d 353, 360 (5th Cir. 1980); United States v. Smith, 517 F.2d 710, 711 (5th Cir. 1975). Curative instructions, however, “are impotent to overcome those situations in which there is great risk that the jury will not or cannot abide by the judge’s instructions to the detriment of the defendant’s vital interests.” United States v. Levinson, 405 F.2d 971, 988 (6th Cir. 1968); accord, Bruton v. United States, 391 U.S. 123, 135 , 88 S.Ct. 1620, 1627 , 20 L.Ed.2d 476 (1968); United States v. Miranda, 593 F.2d 590 (5th Cir. 1979). Whether a curative instruction will alleviate the prejudice caused by the improper admission of evidence depends upon the facts and circumstances of each case. E.g., United States v. Miranda, supra, 593 F.2d 590 (improper use of codefendant’s conviction in closing argument); United States v. Coats, 652 F.2d 1002 (D.C.Cir.1981) (improper use of defendant’s prior convictions in closing argument); United States v. Gullo, 502 F.2d 759 (3d Cir. 1974) (improper use of codefendant’s guilty plea during redirect examination of witness); United States v. Camiel, 519 F.Supp. *1025 1238 (E.D.Pa.1981) (improper comments about credibility of defendant’s testimony during closing argument). A court’s analysis must focus on the effect of the improper evidence on the trial rather than the motive of the prosecutor, Smith v. Phillips, - U.S. -, -& n.10, 102 S.Ct. 940 , 947 & n.10, 71 L.Ed.2d 78 (1982), and any doubts concerning the possible prejudice caused by an improper question or statement should be “resolve[d] ... in favor of the accused.” United States v. Miranda, supra, 593 F.2d at 596 .

The instant case turned almost entirely upon the credibility of Hernandez. By informing the jury that Hernandez’ testimony resulted in other convictions, the prosecutor enhanced the witness’ credibility. The trial judge did everything possible to alleviate the prejudice flowing from the improper question. Nonetheless, in light of the pivotal role played by Hernandez’ credibility, I am of the view that no curative instruction could have dissipated the harm caused by the redirect examination.

Reversible error also occurred when the trial judge issued supplementary instructions to the jury. After returning from a five-day recess, the jurors expressed some confusion concerning the elements of proof necessary to establish a conspiracy. The jury submitted questions to the judge asking:

(1) If a defendant is “guilty of one overt act in Count 2 [conspiracy to import marijuana] is he considered guilty of all?”

(2) Is “one overt act in Count 2 sufficient to render [defendant] guilty of the entire act?”

Both questions indicate that the jurors were particularly concerned about whether a conspiracy could be established simply by proof of an overt act.

The trial judge discussed the questions with counsel and agreed that the appropriate response was to reread to the jury the portion of the instructions defining the elements of a conspiracy. Defense counsel sought to have the jury instructed that proof of an overt act alone is insufficient to establish a conspiracy. The trial judge refused the requested instruction. Instead he informed the jury of the elements of a conspiracy and explained the importance of an overt act by noting that an “overt act is a mere way of showing that a conspiracy existed. [The defendants] are not charged with overt acts themselves, but proving overt acts is a way of proving that the conspiracy existed.” Defense counsel immediately objected to the charge. He noted that the jury might interpret the instructions to mean that a conspiracy would be established solely upon proof of an overt act. Defense counsel again asked the court to tell the jury that proof of an overt act alone is insufficient to establish a conspiracy and the trial judge again refused.

The majority concedes that the instruction was erroneous but views the error as harmless. The opinion summarily concludes that the instructions taken as a whole constitute an accurate recitation of the law. Unfortunately the majority totally ignores the events leading up to the supplemental and “clarifying” charge.

The questions sent to the trial judge demonstrated obvious confusion on the part of the jury with the relationship between proof of overt acts and proof of a conspiracy. Thus when reinstructed, the jury was particularly attuned to the instructions concerning overt acts. The trial judge’s charge in effect informed the jurors that proof of an overt act amounted to proof of a conspiracy. Not only was the instruction a misstatement of the law, 6 the erroneous charge was particularly prejudicial in light of de *1026 fendants’ defense. Defendants in effect conceded that the requisite “overt acts” had occurred. Their entire defense revolved around the contention that Hawkins and Nickerson, although present at the scene when the overt acts were committed, never had knowledge of or actually participated in the conspiracy. It was crucial, therefore, for the jury to understand that proof of an overt act alone is insufficient to show a conspiracy. Instead the conspiracy count required proof beyond a reasonable doubt that the defendants willfully combined for an unlawful purpose. Accordingly, defendants were entitled to a new trial.

For the reasons stated herein, I respectfully dissent.

. The question was so obviously prejudicial that it is difficult to comprehend how a United States prosecutor employed by the Justice Department with eight years of legal experience ever imagined that the question was proper. The record contains no justification for the inquiry and the prosecutor acknowledged that it was a “regretfable] . . . blunder.” Even counsel for the Government on appeal admitted that the question was indefensible.

Without actually charging bad faith on the part of the prosecutor, I note that Section 5.6(b) of the ABA Standards Relating to the Prosecution Function expressly prohibits a prosecutor from knowingly asking objectionable questions in the presence of the jury. In addition, prosecutors, as representatives of the United States, are generally expected to comply with the highest standards of dignity and propriety. E.g., United States v. Somers, 496 F.2d 723, 736-37 (3d Cir. 1974).

. Hernandez was convicted of importing 33,000 pounds of marijuana into the United States. He received a five-year sentence.

. At least one other witness indicated that Hernandez was not a credible witness. The following colloquy occurred between Donald Stanton, Hernandez’ business associate, and counsel for the defendant.

ATTORNEY: Do you have an opinion, Mr. Stanton, as to the truth and veracity of Herman Hernandez, Jr., if he came to court and testified under oath? Just yes or no.

STANTON: I would say yes.

ATTORNEY: What is that opinion, Mr. Stanton?

STANTON: Honestly, it wouldn’t be very good.

ATTORNEY: Do you know his reputation in the business community—

STANTON: Yes.

ATTORNEY: —for truth and veracity?

STANTON: Yes.

ATTORNEY: And what is that opinion, Mr. Stanton?

STANTON: That is also not very good.

* * * * * *

ATTORNEY: Would you base any important decision in your life on the word of Herman Hernandez?

STANTON: No, I wouldn’t.

. In a display of unanimity, defendants, the Government, the district court, and the judges on this panel agree that the question was improper.

. During direct examination, Hernandez admitted supplying the government with information in only two cases: the Florida drug smuggling scheme involving Nickerson and Hawkins and a drug case in South Carolina. He further stated that he testified for the Government on three occasions, once in South Carolina and twice in Florida. The Florida trials took place in the courthouse where Nickerson and Hawkins were tried. These statements by Hernandez indicated that the two prior Florida trials involved other participants in the drug smuggling scheme at issue in Nickerson’s and Hawkins’ trial. Thus when the prosecutor brought out that Hernandez’ testimony resulted in the conviction of defendants in all three prior cases, the jury may well have believed that the persons convicted were codefendants.

. To prove a conspiracy, the Government need not establish that the accused committed or participated in the commission of an overt act. United States v. Diaz, 655 F.2d 580, 584 (5th Cir. 1981); United States v. Palacios, 556 F.2d 1359 , 1364 n.9 (5th Cir. 1977). Instead, the essential element of a conspiracy is an agreement by two or more persons to violate the law. United States v. Spradlen, 662 F.2d 724, 727 (11th Cir. 1981). Thus the instruction that proof of an overt act constituted proof of a conspiracy was a clear misstatement of the law and the misstatement related to the basic question the Government was attempting to prove.