# United States v. Florencia Y. Walker (92-3135) and Tanya M. Powell (92-3136) > Court of Appeals for the Sixth Circuit · September 23, 1993 · 1 F.3d 423 URL: https://www.frixlaw.com/law-library/cases/9485739 ## Case - **Full name:** UNITED STATES of America, Plaintiff-Appellee, v. Florencia Y. WALKER (92-3135) and Tanya M. Powell (92-3136), Defendants-Appellants - **Court:** Court of Appeals for the Sixth Circuit - **Decided:** September 23, 1993 - **Citations:** 1 F.3d 423 - **Precedential status:** Published - **Opinion:** Concurring in part by Batchelder - **Judges:** Keith, Batchelder, Churchill - **Cited by:** 55 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9485739 ## How later opinions describe it (automated extraction) - holding that there was sufficient evidence to convict a police 2 officer of willful deprivation of constitutional rights despite the prosecution’s use of slow-motion 3 video, because the jury also saw the real-time video - finding that the mere fact that defendant courier “was less culpable than ‘organizers, leaders, managers, or supervisors’ [did] not in itself establish that the defendant was a minor participant” - reversing dismissal of claims against state 2 officials based on Eleventh Amendment immunity and reinstating claims against them in their 3 individual capacities where record clearly demonstrates that plaintiff, “acting pro se, did not 4 understand the legal significance betwe… - finding mere fact that defendant courier was less culpable than organizers, leaders, managers, or supervisors does not itself establish that she was minor participant ## Opinion text *432 BATCHELDER, Circuit Judge, concurring in part and dissenting in part, and from the judgment. I agree in large measure with the majority’s disposition of the issues here, and will not discuss that with which I agree. However, I have trouble with my colleagues’ analysis on a few points, most notably with regard to the propriety of the District Court’s handling of the transcripts which found their way into the jury room. Because I reach a different conclusion on that difficult issue, on which the majority’s decision to grant a new trial hinged, I respectfully dissent from the court’s judgment. 1. Denial of motion for mistrial. While appellants do, I think, argue that the jurors were prejudiced by their having read or “at least [been] exposed to” the yellow-highlighted portions of the transcript, I agree with the majority that appellants’ main argument for mistrial is that the jurors were prejudiced by their “double exposure” to the deposition testimony. I believe, however, that the District Court properly questioned the jurors as to this exposure, that the defense lawyers did not object to. the voir dire or request the court to ask additional questions, and that the court adequately■ instructed the jury on the matter. Therefore, I see no abuse of discretion in the District Court’s finding that the jurors’ impartiality had not been tainted by exposure to the transcript. Defendants argue incorrectly that we should consider the transcripts as akin to “extraneous,” “extrinsic,” or “inadmissible” material, exposure to which creates a serious question of the jury’s impartiality due to our system of limiting carefully the information presented to the jury for its consideration. The Government does not dispute that six of the twelve jurors apparently read parts of the deposition transcripts of two key witnesses against defendants, Brenda Givens and Joyce Crawford. “In reading from the transcripts,” defendants argue, “these six jurors, and those six jurors who watched [them] read from the transcript, were able to perceive a greater credibility and reliability from those witnesses than they might have otherwise received..Thus, I believe the issue boils down to whether this extra exposure to deposition testimony which had been admitted in evidence resulted in “actual prejudice” on the part of the jurors. The presence of deposition transcripts in a jury room does not necessarily infect jurors with bias; the court may permit the jury to have transcripts of taped testimony for then-reference during deliberations. United States v. Williford, 764 F.2d 1493, 1503 (11th Cir.1985). “Absent [defendant’s] showing that the transcripts were inaccurate or that specific prejudice occurred, there is no error in allowing transcripts to go to the jury room.” , Id. The decision to admit into evidence transcripts of taped testimony or conversations, or to send transcripts to the jury for their reference, falls within the sound discretion of the trial court. United States v. West, 948 F.2d 1042, 1044 (6th Cir.1991), cert. denied, — U.S. -, 112 S.Ct. 1209 , 117 L.Ed.2d 447 (1992). Had the Government requested that properly redacted 1 transcripts be placed in the jury room, we would review the District Court’s decision only for abuse of discretion; I cannot fathom why we would apply stricter scrutiny to the present circumstances. Admittedly, the transcripts mistakenly placed in the jury room in this case were not in evidence. However, even where the jury is exposed to completely extraneous material or information, we do not presume juror prejudice to result. United States v. Pennell, 737 F.2d 521, 532 (6th Cir.1984), cert. denied, 469 U.S. 1158 , 105 S.Ct. 906 , 83 L.Ed.2d 921 (1985) (following Smith v. Phillips, 455 U.S. 209 , 102 S.Ct. 940 , 71 L.Ed.2d 78 (1982)). 2 In moving for a mistrial, the *433 defendant bears the burden of proving that such exposure resulted in actual prejudice,bias or partiality. Id. We review the District Court’s decision regarding motions for mistrial only for abuse of discretion. United States v. Griffith, 756 F.2d 1244, 1252 (6th Cir.), cert. denied, 474 U.S. 837 , 106 S.Ct. 114 , 88 L.Ed.2d 93 (1985). Here, to its credit, the District Court proceeded with an abundance of caution once it found out about the transcripts, holding a Remmer hearing to determine what had happened and whether the jury’s impartiality had possibly suffered as a result. However, the majority concludes that an unfair trial resulted when the District Court “denfied] a reasonable request to inquire into the jurors’ states of mind [and thus] deprived [defendants] of the opportunity to meet their burden of proving actual juror bias.” Op. at 431. I think the majority has both misstated and mischaracterized the facts of what happened during the Remmer hearing. Once the problem had manifested itself, and counsel for both sides had submitted arguments (including Walker’s motion for mistrial), the judge met with counsel in a conference room and proposed to ask the jurors each four questions, out of the presence of the other jurors: 1. Have you read anything? 2. If so, what did you read? 3. If any of the transcripts were read, did you read any of the highlighted in yellow? 4. If so, what did you read? Jury Deliberations Transcript (JD) 35. The judge specifically asked whether any of the lawyers had “any other suggestions on the type of voir dire or the specific questions.” Id. Defense counsel made no objection to the questions, nor did they request that any additional questions be asked. Mr. Cline, Walker’s lawyer, agreed that the four questions were “appropriate,” adding only his “concern ... whether the responses to those might lead to further questions.” He stated, “[W]e may have a situation where it would be appropriate to ask that particular ■ juror to step outside while we all discuss.” [sic] Id. at 39. The jurors each were brought into the conference room, shown the transcript, and asked the four questions: Mr. Mellot, the first juror, said he had “looked at” Givens’s testimony; he said he did not read from the highlighted portions because “we figured for some reason we weren’t supposed to look at that.” JD-40. Juror Farmer said he (she?) had read from Givens’s testimony aloud, but had not read from the highlighted portions. JD^I6. Juror Wheeler also said he (she?) had read part of Givens’s testimony, but had not read any highlighted transcript. JD-49. Juror Chess said he had read parts of the transcript, but had not read highlighted text. JD-50. Juror Connolly said she had not read anything in the transcript, but noted that one juror had “made the point, you know, I don’t think we should read anything in yellow.” JD-52. Juror Sprague also stated that she had not read any of the transcript, and said that the other jurors thought they “were not to see” the highlighted portions. JD-53. Juror Patricia A. Holley answered similarly, JD-55, as did Juror Patricia Holley. 3 Juror Potts, evidently a bit more agitated than the others, denied reading from the transcript, and said, upon being questioned as to the highlighting, “we did not read the yellow part, I can tell you. I can promise you we did not read the yellow part.” As he exited, he pleaded, “Please don’t declare a mistrial; we have tried- so hard.” JD-58. Juror Wood also denied reading the transcript; she also recalled the jurors’ discussion of the highlighted portions, and the comment of one juror that “it was probably excluded.” JD-59. Juror Hoskins *434 said she did not read the transcript, but said that she “saw the yellow lines” but had not read the highlighted text. JD-60-61. Jury foreperson Andrews stated he read from the Givens testimony, but had not read any of the highlighted portion; he, too, recounted a discussion amongst the jurors about the significance of the highlighted text, but said that “we noted it and we assumed that it didn’t pertain to what we were deliberating about.” JD-62. Several times during the voir dire, between jurors, the court asked if counsel had questions or comments, and- specifically asked the lawyers whether any of them wanted additional questions posed to the jurors; neither defense lawyer objected,, commented, or asked for additional questions. After questioning the jurors, Judge Smith commented that “the only material that was considered was the testimony that had been already admitted and shown in the videotaped depositions,” and that there was “a very, very strong probability that the jurors did not in fact consider the information.” JD-63. The court then asked for comments from counsel. The Government agreed with Judge Smith’s comments, asserting that any testimony the jurors had read was cumulative and arguing against declaring a mistrial. JD-64. Mr. Thomas, Powell’s lawyer, cited two cases holding that “extraneous material in the jury room is reversible error.” Id. Mr. Cline pointed out that some of the transcript had been read aloud, and argued that [ejven if the Court’s ruling is correct, that they did not consider the yellow highlighted portions, nor read any of those portions, it is the position of the defense that the ability to review the testimony of individualized witnesses in general is very dangerous and it is reversible error. But particularly so in a case like this where the defense contends that the critical factor in determination of Florencia Walker’s innocence or guilt is a determination of credibility of Brenda Givens and Joyce Crawford. JD-65. Judge Smith then denied the motion for mistrial, finding only a “slight potential” that any of the jurors had read from the highlighted portions of transcript, and holding that no prejudice to the defendants resulted from either this possibility or from the jurors’ having read from the transcript of admitted videotaped testimony. JD-66. The court also indicated that it would issue an instruction to the jury on the matter. Id. Mr. Cline then asked whether “the whole process of questioning the jurors and so forth, or their exposure to [the transcript], in any way makes any of them feel that they could no longer be a fair and impartial juror.” JD-70. One of the government lawyers commented that in light of the court’s intention to issue an instruction, asking further questions would “open[ ] Pandora’s box.” Id. Cline then stressed that he did not know whether asking further questions would be “necessary,” but stated, “I raise it so we can discuss it.” Id. The judge responded that “once we give them an explanation ... and give them a further instruction that they are not to consider it, I think that’s the best way to do it.” Id. Defense counsel made no further comments or objections, and the discussion ended. Immediately thereafter, Judge Smith reconvened the jury in the courtroom and issued the instruction to the jury which the majority has quoted above. To make a proper objection considered preserved for purposes of appeal, Fed. R.Evid. 51 counsel must, “at the time the ruling or order of the court is made or sought, make[ ] known to the court the action which that party desires the court to take or that party’s objection to the action of the court and the grounds therefor.... ” See United States v. Huffman, 467 F.2d 189, 196 (6th Cir.1972). Counsel must “object with that reasonable degree of specificity which would have adequately apprised the trial court of the true basis for his objection.” United States v. Fendley, 522 F.2d 181, 186 (5th Cir.1975) (quoted in United States v. LeBlanc, 612 F.2d 1012, 1014 (6th Cir.), cert. denied, 449 U.S. 849 , 101 S.Ct. 137 , 66 L.Ed.2d 60 (1980)). Even where defense counsel makes a request for a jury voir dire in order to make a showing of actual prejudice, he must object to preserve the issue on appeal if the court does not rule specifically on his request. United States v. Williams, 809 F.2d 75, 84 (1st Cir.1986), cert. denied, *435 481 U.S. 1030 , 1072, 107 S.Ct. 1959 , 2469, 95 L.Ed.2d 531 , 877; 482 U.S. 906 , 107 S.Ct. 2484 , 96 L.Ed.2d 377 (1987). The Rules of Evidence do not require “formal” objections per se; “[t]he general rule requiring counsel to make clear to the trial court what action they wish taken should not be applied in a ritualistic fashion.” Charles A. Wright, 3A Federal Practice and Procedure § 842 at 289 (1982). However, both counsel’s position and the trial court’s ruling must be “clear” from the record; the problem must be “brought to the attention of the court, and the court [must have] indicated in no uncertain terms what its views are” United States v. Pirovolos, 844 F.2d 415 , 424 n. 8 (7th Cir.), cert. denied, 488 U.S. 857 , 109 S.Ct. 147 , 102 L.Ed.2d 119 (1988) (quoting Wright, Federal Practice and Procedure § 842) (emphasis added). See also King v. Jones, 824 F.2d 324, 326 (4th Cir.1987) (under Fed.R.Civ.P. 46, the civil counterpart of Fed.R.Evid. 51, “[i]f there are particular voir dire questions which counsel deems essential, and that refusal to ask them may be reversible error, counsel must so advise the court, and state his reasons before the court’s voir dire ... is completed”). The majority characterizes as a full-blown objection Mr. Cline’s brief discussion with the court as to whether the voir dire questions sufficiently drew out any feelings on the part of the jurors with regard to their continuing impartiality, and characterizes the court’s response that the jury instruction would be “the best way to do it” as a “den[ial]” of Cline’s “reasonable request to inquire into the jurors’ states of mind.” In my view, and, I think, under the law of this Circuit and others as I have described it, Cline’s comments cannot even be construed as a request to make inquiry, let alone an objection. At the time, Cline stressed that he did not know whether the law required that further questions be asked, but simply stated that he wished to “raise it so we can discuss it.” The judge did not directly respond to Cline’s thoughts, but reiterated his belief that the jury instruction would suffice to cure the problem. Cline did not pursue the issue, saying nothing once Judge Smith had made his comments. At that point, it was clear that the judge intended to walk right back to the courtroom, call in the jury and issue the instruction; no further voir dire would take place. Had Cline wished a different course, he had the right, and the opportunity, to make his objection clear. His lack of any response to the judge’s final comments indicates to me that he waived any objection. 4 For the purposes of argument, I shall retreat to the next trench and assume not only that Cline made a proper objection to the voir dire and specifically requested that the court make particular inquiry into the jurors’ assessment of their own impartiality, but also that the court denied Cline’s request. To make these assumptions, I believe, does not change the result. I stress that we may review this denial only for abuse of discretion. Traditionally, decisions regarding the conduct of voir dire fall within the sound discretion of the judge. For example, the court may decide, as it did in this case, to prohibit counsel from participating in the questioning. See Fed.R.Civ.P. 24(a): With regard to appellate review of the trial court’s handling of the jury, the Supreme Court has observed: Despite its importance, the adequacy of voir dire is not easily subject to appellate review. The trial judge’s function at this point in the trial is not unlike that of the jurors later on in the trial. Both must reach conclusions as to impartiality and credibility by relying on their own evaluations of demeanor evidence and of responses to questions. ■ In neither instance can an appellate court easily second-guess the conclusions of the decisionmaker who heard and observed the witnesses. Rosales-Lopez v. United States, 451 U.S. 182, 188 , 101 S.Ct. 1629, 1634 , 68 L.Ed.2d 22 (1981). The Court noted the “ample discre *436 tion” accorded Federal judges “in determining how best to conduct the voir dire," and restated its longstanding rule that “ ‘the court [has] broad discretion as to the questions to be asked.’ ” Id. at 189 , 101 S.Ct. at 1634 (quoting Aldridge v. United States, 283 U.S. 308, 310 , 51 S.Ct. 470, 471 , 75 L.Ed. 1054 (1931)). This Circuit has cleaved to this principle of deference. See United States v. Fish, 928 F.2d 185, 186 (6th Cir.1991) C‘[j]udges need not use every question submitted by counsel”). While Rosales-Lopez and certain of the other cases I have cited arose from the context of jury selection voir dire, the “abuse of discretion” standard of review, and, I think, the principles underlying that standard, apply as well to voir dire conducted during the trial to determine the continuing impartiality of the jurors. In United States v. Sababu, 891 F.2d 1308 (7th Cir.1989), a transcript of a taped phone conversation, which the court had excluded since the tape was “largely inaudible,” found its way into the jury room, and certain of the jurors had reviewed it. 891 F.2d at 1333 . The judge asked counsel to draft a curative instruction, and soon instructed the jury that the transcript was “not in evidence.... You must disregard this transcript entirely and continue your deliberations.” Id. Defense counsel nonetheless demanded a mistrial, and asked that the court “conduct a voir dire of the jury to probe the effect of the transcript on their deliberations.” Id. The prosecution objected, arguing that questioning the jurors specifically “might give undue significance to the transcript.” Id. The court refused to conduct the voir dire. The Seventh Circuit affirmed the District Court’s decision. The court noted that jury exposure to material not in evidence is handled on a case-by-case basis; “[t]he district court has the primary responsibility for making this determination of prejudice, and an appellate court must review [it] ... under an ‘abuse of discretion’ standard.” Sababu, 891 F.2d at 1333 . In explaining this deferential standard, the court observed: “The district court will always be in a better position than the appellate judges to assess the probable reactions of jurors in a case over which he has presided. As we cannot put ourselves in the district judge’s shoes in these matters we ought to accept his judgment unless we have a very strong conviction of error.” Id. (quoting United States v. Bruscino, 687 F.2d 938, 941 (7th Cir.1982) (en banc), cert. denied, 459 U.S. 1211 , 103 S.Ct. 1205 , 75 L.Ed.2d 446 (1983)). Since “other ample evidence” existed against defendant, since the contents of the transcript were not weighty, inflammatory on their face, nor had they been explained to the jury by counsel, and since the jury is presumed to follow the court’s curative instructions, the court concluded that “there was no ‘reasonable possibility’ that the transcript affected the verdict.” Id. at 1334. The District Court, therefore, having “ ‘broad discretion to remedy prejudicial influences,’ ” id. (quoting United States v. Williams, 737 F.2d 594, 613 (7th Cir.1984)), did not, in the view of the Seventh Circuit, “abuse its discretion in refusing defendant’s request that he question the jury,” id. If the Sababu decision was correct, then a fortiori the majority here has erred, in my opinion. The jury there had read from a transcript of a tape the court had excluded from evidence, not from a transcript of a videotaped deposition which had been admitted and which the jury had seen, as here. In general, where the overwhelming bulk of admissible evidence supports a conviction, the introduction of improper but cumulative evidence is harmless error. Harrington v. California, 395 U.S. 250, 254 , 89 S.Ct. 1726, 1728-29 , 23 L.Ed.2d 284 (1969). Where a document, erroneously present in the jury room during deliberations, is “merely cumulative of other, properly admitted evidence, the transmittal is harmless error.” United States v. Treadwell, 760 F.2d 327, 339 (D.C.Cir.1985), cert. denied, 474 U.S. 1064 , 106 S.Ct. 814 , 88 L.Ed.2d 788 (1986). More importantly, defense counsel in Sababu had specifically requested that the court conduct a voir dire, and the court had expressly denied defendant’s objection. As I have discussed, I do not believe Judge Smith could reasonably have read into Mr. Cline’s comments a demand for further ques *437 tioning of the jury. Judge Smith also acted properly in issuing a thoughtful curative instruction, which the law presumes the jurors understood and followed, in the-absence of evidence to the contrary. United States v. Zalman, 870 F.2d 1047, 1053 (6th Cir.), cert. denied, 492 U.S. 921 , 109 S.Ct. 3248 , 106 L.Ed.2d 594 (1989). And in any event, I see nothing in the record to support the majority’s apparent conclusions that the defendants sustained their burden of demonstrating actual prejudice and that Judge Smith’s positive assessment of the jurors’ continuing impartiality was erroneous. In light of that record, to give weight to Juror Potts’s comment that “we have tried so hard” or to accept defendants’ insinuation that the jurors “had read enough [of the highlighted portions of transcript] to recognize it as forbidden fruit” in the face of twelve jurors’ swearing before the court that they had not, strikes me both as trammeling the discretion of the trial court without warrant and minimizing beyond recognition the defendant’s burden on the issue of actual juror prejudice. I would affirm Judge Smith’s denial of defendants’ motion for mistrial. 2. Objections to the foreign depositions. While I concur with the majority’s rejection of defendants’ objections with regard to the depositions taken in Japan, I wish to clarify three points. First, I note that the majority observes, in commencing its discussion of defendants’ confrontation clause challenge, that “[t]he [United States] government took reasonable steps to enable the appellants to attend the taking of depositions in Japan without being arrested.” Op. at 428. While this statement is true as a matter of fact, I am concerned that it suggests a legal duty on the part of the Government to ensure, or at least take “reasonable steps” to ensure, the safe passage of defendants' to foreign territories where defendants are wanted by authorities. Defendants argued that this duty exists, but the law does not support this argument. The United States has neither the duty, nor arguably the power, to guarantee “safe” passage, unhindered by the actions of foreign law enforcement agencies, to Americans who are in danger of arrest while travelling in a foreign jurisdiction for the purpose of defending a criminal action. In re Grand Jury Subpoena of Flanagan, 691 F.2d 116, 121 (2d Cir.1982); see also United States v. Sines, 761 F.2d 1434, 1440 (9th Cir.1985). The majority also notes that for Sixth Amendment Confrontation Clause purposes, defendants “were effectively prohibited from going to Japan,” but seems to reject defendant’s argument in part because “the United States government was not responsible for the prohibition.” Op. at 428. Once again, there is no basis in law for suggesting the existence of an affirmative duty on the part of the Federal Government in this context. In the very case the majority cites in disposing of the issue, the Ninth Circuit addressed a nearly identical situation where defendant claimed to be faced with a “Hobson’s choice”: either not attend a deposition being taken in Thailand, where he was wanted by authorities, and forgo exercising, his right to confront his adversaries, or show up at the deposition and risk arrest. Sines, 761 F.2d at 1441 . The court deemed the argument to be “without merit”: Sines was given the opportunity to attend [the] deposition, and chose not to attend. His decision, whether reasonable or not in light of the possibility that he might be arrested in Thailand ... does not preclude the government from securing [deponent’s] testimony. Id. Regardless of the risk of arrest appellants faced in going to Japan, the law regards their decision not to attend the depositions as a “choice,” not as a prohibition, and considers their right to confront adverse witnesses therefore to be waived. Lastly, the majority neglects to address the admissibility of the foreign deposition, to which appellants have objected. As with other decisions regarding the admission of evidence, the District Court’s decision to admit a deposition taken.abroad is reviewed only for abuse of discretion. Sines, 761 F.2d at 1439 . Where a witness is incarcerated abroad for a long, prison term, he is considered unavailable, and his deposition may be introduced at trial. Id. Courts are skeptical of foreign depositions only insofar as *438 “the manner of examination required by the law of the host nation is so incompatible with our fundamental principles of fairness or so prone to inaccuracy or bias as to render the testimony inherently unreliable.” United States v. Sturman, 951 F.2d. 1466, 1480 (6th Cir.1991), cert. denied, — U.S. -, 112 S.Ct. 2964 , 119 L.Ed.2d 586 (1992) (quoting United States v. Salim, 855 F.2d 944, 953 (2d Cir.1988)). In this ease, the Japanese Government agreed to allow the deposition to proceed using American law and procedure. Appellants certainly cannot prevail in arguing that the same deposition procedure which would be used in Ohio is somehow tarnished by its employment on foreign soil, particularly where we have recognized much less comparable foreign procedure as satisfying constitutional mínimums. Id. As I have stated, I agree with those parts of the majority opinion I have not mentioned here, but with regard to the points with which I have noted my disagreement, and as to the majority’s decision to grant defendants’ motion for mistrial, I respectfully DISSENT. . In my view, the majority improperly accepts the appellants' factual contentions as to whether the jurors read highlighted portions of transcript. In conducting the Remmer hearing, the District Court found that of the six jurors who had read portions of the transcript, none had read from the highlighted sections, the .jurors apparently having recognized that the highlighting indicated testimony not admitted. The record supports this finding by the District Court. I discuss this issue at greater length below. . I confess surprise to see the majority reach its conclusion after quoting at length from United States v. Zelinka, 862 F.2d 92 (6th Cir.1988), which stresses the point I make here, that we *433 have not strayed from Smith v. Phillips, as applied in Pennell , in placing the burden of proving prejudice squarely on defendants. However, as I already mentioned, and shall discuss further below, I do not see this case as one in which the jurors were exposed to "extrinsic evidence” or "unauthorized contact." Inasmuch as the cases are factually distinguishable on this point, the presumption described in Zelinka and Pennell supports my position all the more strongly. ' . This is not a result of computer malfunction; this jury included two women with the same name. The record distinguishes between them by including the middle initial of Patricia A. Holley. . I also note that since counsel and the judge were alone in the conference room, there can be no suggestion that Cline may have been reluctant to press his "objection" because of the jury's presence. Some courts have seen such reluctance as excusable in that situation, and held the objection not to be waived. See Wright, Federal Practice and Procedure § 842 n. 12 and accompanying text. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9485739. Public record. Not legal advice.