United States v. Carl Brown (99-5613) Carl Scruggs (99-5687)

FEIKENS, District Judge,

dissenting.

I respectfully dissent from the majority’s opinion. With due respect, the court tries to paper over the similarity between the district court’s example and the question asked by the jury — whether in order to have the intent to possess the drugs, the defendants had to know before they arrived at White’s home that cocaine was in the house.

We must take the situation that the judge faced one step at a time. The jury asked whether the defendants had to know before they arrived at White’s house, that there was cocaine there, in order to have the necessary intent. To this the judge said no, but he realized that this would not answer the jury’s question. He correctly inferred that they wanted to know at what point could intent be found. But in trying *220 to help them as to this question, he erred. If, at that point, he did not give the example to the jury that he did and had simply said that they had to decide whether an individual defendant, at any time before he was apprehended, had to have formed the requisite intent, this would have been a proper response to the jury question. But he moved on and gave them an example which exactly fit the evidence in the case. In doing this he took from them the task of finding necessary intent from the evidence in the case.

The court takes comfort in the judge’s reliance on his previous instruction to save it from error. The court correctly cites to U.S. v. Nunez for the proposition that “In response to a jury’s question after it has begun deliberating [ ] a trial judge may and should make clear the law the jury is bound to apply, though it is not his province to advise the jury of collateral aspects of its decision.” United States v. Nunez, 889 F.2d 1564, 1568 (6th Cir.1989) (quoting United States v. Rowan, 518 F.2d 685, 693 (6th Cir.1975)). Nunez , however, also teaches that where a previous instruction does not sufficiently inform the jury of a point of law, the judge cannot, in answering a jury’s query, merely reiterate his or her previous instruction. See id. “In United States v. Giacalone, 588 F.2d 1158 (6th Cir.1978), cert denied, 441 U.S. 944 , 99 S.Ct. 2162 , 60 L.Ed.2d 1045 (1979), we made clear that a supplemental instruction is one that goes beyond reciting what has previously been given; it is not merely repetitive. Reiterating the rule stated in Rowan that a trial court has a duty ‘to clear up uncertainties which the jury brings to the court’s attention,’ we stated that the propriety of a supplemental instruction must be measured ‘by whether it fairly responds to the jury’s inquiry without increasing prejudice.’ Giacalone, 588 F.2d at 1166 .” Id. at 1568. It follows, therefore, that an erroneous supplemental instruction cannot be saved by reference to a previous, ambiguous instruction.

Even had the judge acknowledged his error and retracted his example, such retraction could not have cured the error. In Sunderland v. United States, 19 F.2d 202 (8th Cir.1927), the defendants were charged with conspiracy and use of mails to defraud by sale of corporate securities. The judge, in his charge to the jury, in order to illustrate “the principles of law that are most directly involved” told the story of the “old gold brick swindle” placing himself in the story. Sunderland, 19 F.2d at 212 . In the example, he and another man make an old clay brick appear to be a gold brick by filling it with lead and covering it in gold leaf. A third man arranges for the sale of the brick agreeing to split the proceeds of the sale. Later, however, after the defense counsel objected to the charge the judge rescinded his illustration. “Gentlemen of the jury, I am persuaded that I made a serious error in using before you and picking out the common old swindle, the gold brick swindle, and using that to illustrate the points of law applicable to the conspiracy and swindling scheme.” Id. at 218 . However, the Eighth Circuit held that this could not save such an erroneous instruction. “It requires no argument to convince that this ‘gold brick’ illustration was unfortunate and prejudicial. This was finally conceded by the court and the illustration withdrawn, but we entertain grave doubt whether the prejudice once created could be removed by a mere withdrawal of the words.” Id. (citing Rudd v. United States, 173 F. 912 (8th Cir.1909)). In United States v. Schultz, 235 F.2d 684 (7th Cir.1956), the Seventh Circuit held similarly. The trial judge in that case, when ruling on an objection to witness testimony, said, “ ‘[S]uppose a man were charged with committing a robbery, and then the next *221 day he want [sic] and took the money back, every cent of it. He might still be found guilty in such an instance, even though he returned every cent of it.’ ” Id. at 685 . The judge later repudiated his statement. However, he then attempted another example. After instructing the jury to disregard the example he went on to say, “ ‘It would be more proper probably to say, suppose I were to go over to Peacock’s somewhere and slip my hand in, and got a big diamond ring and took it home and then, after thinking it over, the next day I took it back.’ ” Id. at 686 . The Seventh Circuit held that this attempt to cure was also unsuccessful. “The [first] illustration used by the court was unfortunate and prejudicial. In fact, in the charge to the jury the court termed it ‘inept.’... The second illustration was very little improvement on the first. It is likely the court’s remarks made a dramatic impression on the jury.... We think the illustrations used by the court were preju-dicially erroneous.” Id.

“The standard on appeal for a court’s charge to the jury is whether the charge, taken as a whole, fairly and adequately submits the issues and applicable law to the jury.” United States v. Martin, 740 F.2d 1352, 1360 (6th Cir.1984) (rehearing and rehearing en banc denied). It is well established that “[r]egardless of how overwhelming the evidence may be, the Constitution delegates to the jury, not to the trial judge, the important task of deciding guilt or innocence.” United States v. Mentz, 840 F.2d 315, 319 (6th Cir.1988). Therefore, in instructing the jury, a judge may not invade the jury’s province by unequivocally implying that a defendant’s guilt has been established.

In a criminal trial, the trial judge and the jury have well-defined roles, refined over many years of constitutional adjudication. The trial judge instructs the jury on the law applicable to the issues raised and, in appropriate circumstances, may comment on the evidence. United States v. White Horse, 807 F.2d 1426, 1430 (8th Cir.1986); United States v. Johnson, 718 F.2d 1317, 1322, 1324-25 (5th Cir.1983) (en banc); 8A J. Moore, W. Taggart & J. Wicker, Moore’s Federal Practice ¶ 30.05 at 30-40 (1987). The jury then independently determines the facts, and applies the law to those facts, in reaching its fateful decision. White Horse, 807 F.2d at 1430 ; Johnson, 718 F.2d at 1325 . See also 2 Charles Alan Wright, Federal Practice & Procedure § 485, at 711 (1982). However, the trial judge invades the jury’s province when, instead of simply instructing on the law, he applies the law to facts he has determined. See White Horse, 807 F.2d at 1430 (“when the judge is no longer deciding the law that applies to the evidence, but rather is applying the law to the facts-facts that are determined after assessing the probative value of evidence introduced at trial — the judge has invaded the jury’s province.”).

Id. at 319-20. In the case before us, the district court judge applied the law to the facts that he determined when he stated, after giving his troubling example, “Now the person entered the warehouse without the intent necessary to constitute the attempt ... but he formed or appears to have formed or certainly be proof that he formed the requisite intent once he determined this there was marijuana there and he determined to remove the marijuana and transport it to some other location for distribution.”

In upholding appellants’ convictions in the face of such a clearly erroneous instruction, the court fails to recognize the power, weight and authority a judge’s opinion has upon a jury.

*222 But precisely because it was a “last minute instruction” the duty of special care was indicated in replying to a written request for further light on a vital issue by a jury whose foreman reported that they were “hopelessly deadlocked” after they had been out seven hours. “In a trial by jury in a federal court, the judge is not a mere moderator, but is the governor of the trial for the purpose of assuring its proper conduct and of determining questions of law.” Quercia v. United States, 289 U.S. 466, 469 , 53 S.Ct. 698, 699 , 77 L.Ed. 1321 . “The influence of a trial judge on the jury is necessarily and properly of great weight,” Starr v. United States, 153 U.S. 614, 626 , 14 S.Ct. 919, 923 , 38 L.Ed. 841 , and jurors are ever watchful of the words that fall from him. Particularly in a criminal trial, the judge’s last word is apt to be the decisive word. If it is a specific ruling on a vital issue and misleading, the error is not cured by a prior unexceptional and unilluminating abstract charge.

Bollenbach v. United States, 326 U.S. 607, 612 , 66 S.Ct. 402, 405 , 90 L.Ed. 350 (1946). Not only did the district judge in this case invade the jury’s province, but he did so at a significant time in the jury’s deliberations. He gave the jury its supplemental instruction at 2:25 p.m. At 3:10 p.m. the jury entered its verdict. The short span of time it took for the jury to convict is an indication of the influence of the judge’s instruction.

I therefore must recommend this case be remanded for a new trial.