United States v. John Anthony Robinson

RYAN, Circuit Judge,

dissenting.

My brothers’ conclusion that the district court’s error in advising the jury that the defendant admitted all of the elements of the crime charged in Count II of the indictment was not harmless beyond a reasonable doubt because it may have tainted the jurors’ verdict on Count I necessarily presupposes that the jurors either ignored or disobeyed the court’s instructions, or were otherwise unwilling or unable to apply them. I have no doubt that there are some cases in which a trial court’s instructional error directly affecting only one of several counts charged in an indictment will, because of the facts of the case, inevitably taint the jurors’ consideration of the other counts, despite the court’s correct instructions as to those counts. However, in my judgment, this is not such a case. Consequently, I must respectfully dissent from the court’s conclusion that the jury’s guilty verdict as to Count I of the indictment must be vacated.

The intimidation offense alleged in Count I occurred on September 30, 1986, and the bribery offense charged in Count II eight days later on October 8, 1986. The trial court’s clear, simple, direct, and understandable instructions to the jury explained that it was only as to the October 8 bribery offense that the defendant was claiming the defense of entrapment and that “in doing so” the defendant admitted “with respect to Count II ... that he committed the offense that is alleged in Count II.” Referring four separate times to “Count II,” the court instructed the jury as to the specific elements the defendant was admitting:

Now, with respect to Count Two, as I told you previously, the defendant relies upon a defense of entrapment. In doing so, he concedes or admits or stipulates that he committed the offense that is alleged in Count Two, thus, he admits that David Geoghegan was to be a witness under oath at the trial of United States versus Robinson, number 186-0074, in the Southern District of Ohio. Second, that the defendant corruptly offered and gave something of value to Geoghegan. And, third, he admits that he acted with intent to influence Geoghe-gan’s testimony. Although admitting these elements of the offense, the defendant contends, however, that he is not guilty of the offense that is charged in Count Two of the indictment because of entrapment. Thus, the only issue for your consideration with respect to Count Two is the entrapment issue. That is whether the defendant was entrapped as to committing the offense that is charged there.

Earlier in its instructions, the court had told the jurors that it was their oath bound duty to consider “[e]ach charge and the evidence pertaining to it separately,” and that the government had the burden of proving "each count by proof beyond a reasonable doubt.” Immediately thereafter, the court instructed the jurors “what facts or elements” the government was obligated to prove beyond a reasonable *659 doubt with respect to “the offense that is charged in Count I” Thus, the court treated the two offenses charged in the indictment separately; and understandably so, since they charged distinctly different offenses, albeit with two common elements, that had occurred approximately a week apart and described wholly different activity. The court, carefully, explicitly, and articulately, advised the jury that the defendant’s admissions related only to the October 8 offense charged in Count II, to which he was offering the entrapment defense.

I can find nothing in the evidence, the arguments of counsel, or the court’s jury instructions that would explain the conclusion reached in the majority opinion, albeit inferentially, that the jurors were incapable or unwilling to follow those instructions, or ignored or disobeyed them. No one at trial suggested to the jury, in argument or otherwise, that the defendant’s concession of guilt of the October 8 offense charged in Count II was an admission of any of the elements of the offense that occurred eight days earlier as charged in Count I.

If there had been any evidence in the case contradicting the government’s proofs that on September 30, 1986 Robinson knew that Geoghegan was scheduled to be a witness against him and that his statements to Geoghegan on that date were for the purpose of influencing Geoghegan’s later testimony, there might have been some risk that the jurors would have been tempted to resolve such conflict by relying upon the defendant’s admissions concerning the October 8 offense. But there was no conflict in the evidence on those two elements of Count I and thus no temptation for the jurors to ignore the court’s instructions to evaluate the two counts separately.

The majority opinion relies in part upon the decision of the Third Circuit in United States v. Berkery, 865 F.2d 587 (3d Cir.1989). However, even a cursory examination of Berkery reveals that the case is clearly distinguishable. The issue resolved by the majority opinion in this case, that results in vacating the defendant’s conviction on Count I, turns on its facts, and the Berkery facts are very different than those presented in this case. In Berkery , the defendant was charged with narcotics offenses in a fifteen-count indictment. In Count I of the indictment, the defendant was accused of conspiring to possess and distribute a controlled substance, P2P, from 1980 to 1982. In Counts II through X, he was accused of the substantive offense of possessing with intent to distribute the same drug, and in Counts XII through XV with distributing a different controlled substance. Id. at 588 . The erroneous entrapment instruction given in this case was also given in Berkery . There the jury was told that Berkery admitted all of the elements of the conspiracy charge in the first count, which alleged a conspiracy from 1980 to 1982 to distribute and possess with intent to distribute the very drug Berkery was charged with possessing with intent to distribute in the substantive counts, II through X. Id. The court stated:

In view of the fact that the substantive charges in counts 2-14 are for possession with intent to distribute and distribution which occurred pursuant to and during the time frame set forth in the conspiracy alleged in count 1, they are closely intertwined with the offense of count 1, conspiracy to possess with intent to distribute and conspiracy to distribute. We can readily see that a jury could have used the above-quoted admission to convict Berkery of counts 2-14.

Id. at 591 . (Emphasis added.)

Plainly, that is not this case. In Berk-ery, the admitted conspiracy covered the same time period as did all of the offenses charged in the substantive counts and amounted to an admission that the defendant conspired with another to do what he was charged with doing in the substantive counts. Obviously there was a “spill over” on those facts. But the facts of this case are not those facts and, indeed, are not close. Here, the defendant, in admitting the events that occurred on October 8, 1986, admitted nothing about the events which were alleged to have occurred a week earlier on September 30, 1986.

*660 Respectfully, I can find no basis in the record for concluding that the jury in this case would not, did not, or could not follow the court’s instructions to consider these different offenses separately, and to confine their consideration of the admitted facts to the October 8 offense only, as they were told to do.

The evidence in support of the defendant’s guilt of the offense charged in Count I is uncontradicted and overwhelming. Any risk that the jury “may have seized” upon the defendant's admissions to the elements of Count II in order to convict him of Count I is, in my judgment, mere speculation and entirely unsupported in the record.

I would affirm the judgment of conviction.