# United States v. Joseph Wayne Pratt

> Court of Appeals for the Fourth Circuit · December 5, 2003 · 351 F.3d 131

URL: https://www.frixlaw.com/law-library/cases/9496573

## Case

- **Full name:** UNITED STATES of America, Plaintiff-Appellee, v. Joseph Wayne PRATT
- **Court:** Court of Appeals for the Fourth Circuit
- **Decided:** December 5, 2003
- **Citations:** 351 F.3d 131; 62 Fed. R. Serv. 1562; 2003 U.S. App. LEXIS 24479; 2003 WL 22871645
- **Precedential status:** Published
- **Opinion:** Dissent by Motz
- **Judges:** Niemeyer, Luttig, Motz
- **Cited by:** 61 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/9496573

## How later opinions describe it (automated extraction)

- finding that defendant took “substantial step” to possess with intent to distribute illegal drugs when government offered evidence of recorded conversations between defendant and co-conspirator and evidence that defendant promised to serve as a “middleman” in drug transaction
- recognizing that “[a] civil contempt sentence aims to ‘coerce the defendant to do the thing required,’ whereas a sentence for criminal contempt ‘operates ... solely as punishment for the completed act of disobedience’ ”
- concluding that the defendant’s six-month sentences for contempt were properly awarded criminal history points because the sentences “were ‘for a definite period’ and could not be purged by any affirmative act”
- holding that a “substantial step” for federal attempted murder “need not be the last possible act” before the completion of the offense

## Opinion text

DIANA GRIBBON MOTZ, Circuit Judge,
dissenting:
Without the consent or presence of Pratt or his counsel, the district court facilitated a government agent’s access to the jury during its deliberations. The Government has utterly failed to demonstrate that this conceded error is harmless. Thus, I must respectfully dissent.
Unquestionably, the district court erred in directing an important government witness, unaccompanied by any defense representative, to enter the jury room absent the defendant’s consent to this procedure. The majority implicitly acknowledges this; the Government expressly does so. Thus, the only question before us is whether this error is harmless.
Because Pratt’s counsel objected at trial to this procedure, it is the Government’s burden to prove harmlessness beyond a reasonable doubt. Fed.R.Crim.P. 52(a). That is, the Government must prove beyond a reasonable doubt that the jury would have returned guilty verdicts absent this error. See United States v. Camacho, 955 F.2d 950, 955 (4th Cir.1992). Accordingly, the “judgment may stand only” if the Government demonstrates that “there is no reasonable possibility that the practice complained of might have contributed to the conviction[s].” Id. I submit that any fair reading of the record in this case can yield only one conclusion: the Government has failed to carry this burden.
The record in this case contains only these facts:
(1) in response to the jury’s request for assistance with the tape, the district court asked the prosecutor if she “ha[d] a technician,” and the prosecutor responded “[rjight here”;
(2) the district court then ordered someone named Dallas to “go back” with that “technician” to the jury room and “watch him and he is to have no conversation with the jury and try to influence them in anyway”; and
(3) after a recess of an unspecified length, the jury returned with an unrelated question.
J.A. 300-01. Critically, the record does not reveal: how long the “technician,” a Drug Enforcement Administration agent who served as the Government’s designated representative and expert witness at Pratt’s trial, was in the jury room or whether the agent listened to portions of the tape with the jurors in the jury room or whether the agent ever talked, signaled, smiled, nodded, etc., to the jurors during this ex parte process. 1
Indeed, the record in this case is so bereft of evidence supporting the Government’s position that, first the Government in its brief, and now the majority in its opinion, have had to create facts. Thus, *142 without any support in the record, the Government asserts:
(1) “[immediately after locating the spot on the audio tape, the agent left the jury room before the tape was played,” Br. of Appellee at 25; see also id. at 18;
(2) “[t]here was no discussion by jurors or the agent while they were in the room,” id. at 18; and
(3) the district court ordered that the recording was not “to be played for the jury’s hearing while the agent was in the room.” Id. at 26.
The majority adopts, as fact, these assertions, stating “[ujnder the court’s order, as enforced by the court’s security officer, the technician entered a jury room, cued up the audiotape to the designated spot, and exited, without conversing with the jury or remaining present during its deliberations.” See ante. at 138-139. Indeed, the majority goes a step beyond adopting the Government’s nonfacts and invents one of its own, asserting that the court security officer “enforced” the district court’s order. Ante at 138. Again, no record evidence supports any of these assertions.
The majority compounds its erroneous reliance on nonfacts by determining that it can “presume” that “the district court’s order was ... carried out” because purportedly “[tjhere is no suggestion” that it was not. Id. Yet, by contending that the conceded error here “compels reversal,” Br. of Appellant at 28, Pratt does “suggest” that “the district court’s order was not carried out.” True, in so arguing, Pratt offers no evidence of prejudice but, of course, it is not his burden to do so. In “presuming” Pratt suffered no prejudice, the majority improperly transfers the Government’s burden of proof to Pratt. Thus, the majority requires Pratt to prove prejudice, rather than requiring the Government to prove no prejudice.
The majority must improperly shift the burden of proof in this manner to reach its result because the Government did not even attempt to meet its burden. Faced with defense counsel’s objection to an error that may have caused “[a]ny number of prejudicial events [to] have taken place” in the jury room, United States v. Brown, 832 F.2d 128, 130 (9th Cir.1987), the Government did nothing. It did not request the district court to conduct a hearing to determine whether Pratt had been prejudiced by the Government agent’s contact with the jury, or make any other attempt to establish a record as to what transpired when the agent entered the jury room. The Government did not even offer an affidavit or declaration from its agent to substantiate its position that his presence, without any defense representative, caused Pratt no prejudice.
To be sure, such measures might have been insufficient to prove, beyond a reasonable doubt, that the presence of the Government agent in the jury room did not prejudice Pratt. Other courts have so held in similar circumstances. See Brown, 832 F.2d at 130 (holding declaration of agent “fails to convince us beyond a reasonable doubt that no prejudicial contact occurred”); United States v. Pittman, 449 F.2d 1284, 1285 (9th Cir.1971) (holding trial court’s post hoc hearing “to determine whether appellants had been prejudiced by the Government agent’s presence in the jury room” insufficient to demonstrate harmlessness). But in those cases the Government offered at least some evidence to support its contention that the error was harmless. Here the Government offers none.
In sum, the majority can hold the insidious error in this case harmless only by extensively relying on “facts” that lack any evidentiary support in the record, by “pre-sum[ing]” Pratt suffered no prejudice, and *143 by relieving the Government of its burden of proof. 2 Because the Government has offered no evidence, let alone proof beyond a reasonable doubt, that “there is no reasonable possibility” that the conceded error “might have contributed to” Pratt’s convictions, we should vacate those convictions, as we did in Camacho, 955 F.2d at 955 .
. The record does not even disclose the identity of Dallas or the technician. Pratt, however, has waived any objection on this ground by acknowledging in his appellate brief that Dallas was a court security officer and the technician was the Government’s designated representative, DEA Agent Richard Young-bood, who testified as a government expert at Pratt’s trial.
. My colleagues' cavalier treatment of the conceded error in this case (at one point they analogize the error to a technician screwing in a light bulb, ante at 138-139) may stem from a view that the improper ex parte presence in the jury room of a Government agent does not give rise to significant risk of prejudice and will never, therefore, be ground for reversal absent proof by the defendant of actual prejudice. Such an approach not only disregards Fed.R.Crim.P. 52(a), it also ignores the potent risk inherent in "permitting a Government agent,” particularly one who has played an important role in the criminal trial, "to invade the sanctity of the jury room.” Pittman, 449 F.2d at 1285 ; see also Frank v. Mangum, 237 U.S. 309, 349, 35 S.Ct. 582 , 59 L.Ed. 969 (1915) (Holmes, J., dissenting) (noting the likelihood of jurors "to be impregnated” by outside influences). My colleagues forget that even a slight improper jury contact may prejudice a defendant, and that "[s]uch contact could be very subtle, such as a nod at a significant portion of the tape” that was "unintended or even unnoticed by the case agent himself.” Brown, 832 F.2d at 130 . Their failure to recognize this is particularly troubling here given the weakness of the Government’s case, i.e., the jury could not reach a verdict as to Pratt's codefendant and the evidence offered to sustain Pratt's attempt convictions barely suffices.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9496573. Public record. Not legal advice.