Petition — Peed v. United States

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83 -11 3 8 Office - Supreme Court US

FILED

JAN 11 1984

No. 83-___ ALEXANDER L Srevas

| C5 « |

IN THE

Supreme Court of the Gnited States

OCTOBER TERM, 1983

Gary J. PEED

and

JAMES C. CODDINGTON,

Petitioners,

UNITED STATES OF AMERICA

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE FOURTH CIRCUIT

KENNETH R. WEINER

3251 Old Lee Highway, Suite 411

Fairfax, Virginia 22030

(703) 591-0700

STEVEN D. KuPFERBERG

5900 Hubbard Drive

Rockville, Maryland 20852

(301) 231-9480

Attorneys for Petitioners

Of Counsel:

RONALD J. BACIGAL

Georce A. WEINER

Epwarp L. WEINER

PRESS OF BYRON 5. ADAMS PRINTING. INC.. WASHINGTON, D.C. (202) 347-4203

QUESTIONS PRESENTED

I. Are mid-trial chambers conferences between a juror and

a trial judge, regarding the juror’s apprehension for his safety

caused by third party contact with the jury critical stages ofthe

trial, and the intentional exclusion of the Petitioners and Peti-

tioners’ counsel from such proceeding a violation of the Peti-

tioners’ right to be present under Fed. R. Crim. P. 43(a) and

their Sixth Amendment right to counsel?

II. Is the burden on the Government to prove violations of

Petitioners’ right to be present and right to counsel during

mid-trial ex parte juror-judge substantive communications

harmless beyond a reasonable doubt pursuant to Remmer v.

United States, Smith v. Phillips and Rushen v. Spain?

III. Can a due process post-trial hearing authorized in

Remmer v. United States and Smith v. Phillips be conducted

without adequate notice, without an impartial fact finder and

without the right to summon material witnesses and evidence?

PARTIES BELOW

Petitioners, Gary J. Peed and James C. Coddington,’ pray

that a writ of certiorari issue to review the judgment of the

United States Court of Appeals for the Fourth Circuit, affirm-

ing the judgment of the United States District Court for the

Eastern District of North Carolina, Raleigh Division.

' Petitioners Gary J. Peed and James C. Coddington’'s cases were

consolidated for trial in the United States District Court for the

Eastern District ef North Carolina, Raleigh Division, and the United

States Court of Appeals for the Fourth Circuit with Ronald Doyle

Hines, Teresa Eleazar, James Maurice Jackson and Jeffery Craig

Bumgardner.

TABLE OF CONTENTS

Page

I Sa nore Ae biden ode Wéae bakoneese i

ec acncenbsecs sheet oente i

EE RENE Tr 1

ES a ee a 2

CONSTITUTIONAL PROVISIONS INVOLVED ............... 2

PC CCI oc ook nebecesescossceccnceés 2

REASONS FOR GRANTING THE WRIT .............00005- 8

i Mh cece a bce ciedebeeed nbn cones taetecet 12

I. Mid-Trial Chambers Conferences Between A Juror

And A Trial Judge, Re ing The Juror’s Appre-

hension For His Safety Ca By Third Party Con-

tact With The Jury Are Critical S Of The Trial,

And The Intentional Exclusion Of Petitioners

And Petitioners’ Counsel From Such Proceedings Is

A Violation Of The Petitioners’ Right To Be Present

Under Fed. R. Crim. P. 43(a) And Their Sixth

Amendment Right To Counsel. ................ 12

II. The Burden Is On The Government To Prove Viola-

tions Of Petitioners’ Right To Be Present And Right

To Counsel During Mid-Trial Ex Parte Juror-Judge

Substantive Communications Harmless Beyond A

Reasonable Doubt Pursuant To Remmer v. United

States, Smith v. Phillips and Rushen v. Spain... 22

Ill. Notice, An Impartial Fact Finder And

The Right To Summon Material Witnesses And Evi-

dence Essential To Conduct A Due Process

Post-Trial Hearing Authorized In Remmer v.

United States And Smith v. Phillips. ........... 23

I IE ee oF I Pe. 7 aaa age 29

iii

TABLE OF AUTHORITIES

CASES: Page

Allen v. United States, 376 F. Supp. 1886(E.D. Pa. 1974) 26

Bailey v. United States, 410 F.2d 1209 (10th Cir. 1969) 27

Capella v. Braumgartner, 59F.R.D.312(S.D. Fla. 1973) 27

Coleman v. Alabama, 399 U.S. 1 (1970) ............. 12

Estelle vy. Williams, 425 U.S. 501 (1976) ............. 16

Gibson v. Clanon, 683 F.2d 851 (9th Cir. 1980) ...... 20

Jones v. United States, 299 F.2d 661 (10th Cir. 1962). 23

Krause v. Rhodes, 570 F.2d 563 (6th Cir. 1977) . 17, 27, 28

Krische v. Smith, 662 F.2d 177 (2nd Cir. 1981) ....... 15

Mor —" United States, 399 F.2d 93 (5th Cir.

Remmer v. United States, 347 U.S. 227 (1954) ..... 10, 24

Remmer v. United States, 350 U.S. 377 (1956) ..... 16, 27

Rogers v. United States, 422 U.S. 35 (1975) ........ 14, 21

Rushen v. Spain, 464 U.S. ——., (Slip op. Dec. 12,

BOER ie cunavisétigervectesss6¥ipnabos s Ope nes passim

Smith v. Phillips, 455 U.S. 209 (1982) . 9, 17, 22, 24, 25, 29

Stone v. United States, 113 F.2d 70 (6th Cir. 1940) ... 27

Tillman v. United States, 406 F.2d 930 (5th Cir. 1969) 27

Tumey v. Ohio, 273 U.S. 510 (1927) .............005 20

United States v. Aimone, 715 F.2d 822 (3rd Cir. 1983) 26

United States v. Barnes, 604 F.2d 121 (2nd Cir. 1979) 26

United States v. Brown, 571 F.2d 980 (6th Cir. 1978) . 27

United States v. Bufalino, 576 F.2d 446 (2nd Cir. 1978) 21

United States v. Ferguson, 486 F.2d 968 (6th Cir. 1973) 14

United States v. Flaherty, 668 F.2d 566 (1st Cir. 1981) 21

United States v. Fleming, 594 F.2d 598 (7th Cir. 1979) 27

United States v. Gay, 522 F.2d 429 (6th Cir.

TEED ovcccceccecegereeeesetercgneeeseee 14, 15, 21

United States v. Gersh, 328 F.2d 460 (2nd Cir. 1964) . 14

United States v. Guthrie, 387 F.2d 569 (4th Cir. 1967) 26

United States v. Hines, 696 F.2d 722 (10th cir. 1982) . 14

Table of Authorities Continued

Page

United States v. Jones, 542 F.2d 186 (4th Cir. 1976) .. 21

United States v. Khoury, 539 F.2d 441 (5th Cir. 1976) 27

United States v. Myers, 626 F.2d 365 (4th Cir.

BEE sis Fie Cdb abe a celle naceckinckeaes 13, 15, 21

United States v. Rakes, 74 F. Supp. 645 (E.D. Va. 1947) 25

United States v. Ronder, 639 F.2d 931 (2nd Cir.

ED nw didi Racks’ GO padi Mian 6 bide aeks 13, 14, 15, 21

United States v. Schrimsher, 493 F.2d 848 (5th Cir. 1974) 27

Unit 7 States v. Spinella, 506 F.2d 426 (5th Cir. 1975) 26

United States v. Taylor, 562 F.2d 1345 (2nd Cir. 1977) 15

United States v. Treatman, 524 F.2d 320 (8th Cir. 1975) 15

United States v. United States Gypsum Co., 438 U.S. 422

DED idx date Busbinhs ce seesaeanmektaadéus 12, 15, 21

United States v. Wood, 299 U.S. 123 (1986) .......... 26

Ward v. Monroville, 409 U.S. 57 (1972) ............. 25

STATUTES:

Federal Rules of Criminal Procedure Rule 30 ...... 15, 21

Federal Rules of Criminal Procedure Rule 43(a) .... 12, 21

Federal Rules of Evidence Rule 606(b) ........ 11, 12, 26

OTHER AUTHORITIES:

United States Constitution Amendment VI ........ 12, 21

Judges’ Nonverbal Behavior in Jury Trials: A Threat to

Judicial Impartiality, 61 Va. L. Rev. 1266 (1975) . 15

IN THE

Supreme Court of the Anited States

OCTOBER TERM, 1983

No. 83-__

Gary J. PEED

and

JAMES C. CODDINGTON,

Petitioners,

Vv.

UNITED STATES OF AMERICA

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE FOURTH CIRCUIT

The Petitioners respectfully pray that a writ of certiorari

issue to review the judgment of the United States Court of

Appeals for the Fourth Circuit entered in this proceeding on

September 9, 1983.

OPINIONS BELOW

The opinion of the United States District Court for the

Eastern District of North Carolina, Raleigh Division. A copy

of the opinion is attached to this petition (App. 5a-8a). The

opinion of the United States Court of Appeals for the Fourth

Circuit reported at 717 F.2d 1481 (4th Cir. 1983) the relevant

portion of which is attached to this petition (App. la-3a). The

order of the United States Court of Appeals for the Fourth

Circuit denying Petitioners’ Motion for Rehearing is attached

to this petition (Ap. 4a).

JURISDICTION

The judgment of the Court of Appeals for the Fourth Circuit

was entered on September 9, 1983. Rehearing was denied on

November 14, 1983. This petition for writ of certiorari was

filed within 60 days of the latter date. 28 U.S.C. § 2102(c);

Supreme Court Rule 20.1, 20.2, 20.4. This Court’s jurisdiction

is invoked under 28 U.S.C. § 1254(1).

CONSTITUTIONAL PROVISIONS INVOLVED

United States Constitution, Amendment VI

STATEMENT OF THE CASE

The Petitioners herein were indicted, tried and convicted of

conspiracy to possess with intent to distribute cocaine and use

of a communication facility (telephone) in furtherance of that

conspiracy in the United States District Court for the Eastern

District of North Carolina, Raleigh Division. The Petitioners’

appeal from the former conviction was denied by the United

States Court of Appeals for the Fourth Circuit.

A. Facts Relating To Extraneous Jury Contacts

There were three extraneous contacts with jurors during

the course of Petitioners’ and co-defendants’ trial.

During their case in chief, as the jury was exiting the court-

house after the sixth day of Petitioners and four co-defendants’

trial, at least five jurors (9/30 TR 102 Ap. 41a, 122, Ap. 44a)

saw an unidentified individual seated in a parked automobile

across from the courthouse aiming a camera equipped with a

12’’-15’’ telephoto lens at them (9/30 TR 116 Ap. 43a).

Juror Bryant Deaton later testified that because of the na-

ture of the trial, he and the other jurors were “scared,” feared

for their personal safety and believed the defendants were

having pictures taken of the jury (9/30 TR 95, App. 37a-38a, 99,

App. 38a-39a; 100, App. 39a-40a; 101, App. 40a).

As a result of his concern Juror Deaton copied the license

plate number of the automobile and returned tothe courthouse

(9/30 TR 85, Ap. 30a). Juror Deaton first told the trial judge’s

law clerk of the photographing incident. The judge’s law clerk

immediately advised the trial judge that Juror Deaton was in

the outer office. Thereupon, the trial judge had Juror Deaton

brought into his chambers.

Juror Deaton related the photographing incident to the trial

judge and gave the judge the piece of paper on which he had

recorded the license plate number and description of the auto-

mobile (9/30 TR 22, Ap. 20a). (This document was never re-

vealed by the Court, viewed by counsel nor admitted into

evidence.) The trial judge indicated to Juror Deaton that he

was concerned about the incident, that he would look into it

immediately and get back to him (9/30 TR 85, App. 30a-31a; 86,

Ap. 3la).

The trial judge requested the local F.B.I. office to send an

agent to his chambers. Shortly thereafter two F.B.I. agents

reported to the trial judge’s chambers. The trial judge related

Juror Deaton’s account of the incident, and gave the agents the

information Deaton had written. The trial judge requested the

F.B.I. agents to investigate the incident immediately. The

F.B.I. agents informed the trial judge that they would find out

who was taking the pictures by morning.

The next morning one of the F.B.I. agents who had met with

the trial judge the previous afternoon, and F.B.I. Agent James

J. Roche, Jr. presented themselves at the judge’s chambers.

The F.B.I. agents advised the judge that Agent Roche was

the individual who was covertly taking the pictures. That same

morning Juror Deaton informed the other members of the j jury

that he (Deaton) had met with the trial judge the previous

afternoon, had informed the judge of the photographing in-

cident and had given the judge the license plate number and

description of the automobile (9/30 TR 99, App. 38a-39a). Juror

Deaton further told the jury members that the judge was going

to “look into the matter and get back to him.” At about that

time the trial judge’s law clerk entered the jury room and told

Deaton that the judge wanted to see him. Juror Deaton then

left the jury room accompanied by the judge’s clerk and re-

ported to the trial judge’s chambers. The trial judge advised

Juror Deaton that he (the judge) had looked into it (the

photographing incident) and wanted to assure us (the jury)

that our safety was not (threatened). However, the trial judge

said he would discuss this with me (Juror Deaton) after the

trial; and that he would prefer not to now (9/30 TR 86, Ap. 31a).

Juror Deaton then left the trial judge’s chambers and re-

turned to the jury room. He conveyed the trial judge’s assur-

ances to the rest of the jury (9/30 TR 87, 88, App. 3la-33a).

The trial continued that day and concluded early the follow-

ing evening with the jury finding the Petitioners and co-

defendants guilty. (Codefendant Eleazer was found not guilty

of using a communication facility in furtherance of the con-

spiracy).

The trial judge thereafter polled the jury and then thanked

them for their services as jurors. He informed them that his

law clerk would be giving them a questionnaire which he hoped

they would complete and return to him. Then he informed

them regarding the procedure for picking up their wraps from

the jury room and returning their jury buttons.

At that moment Juror Deaton stood up in the jury box. The

U.S. Marshal approached the standing Juror Deaton. The

marshal asked permission of the trial judge to approach the

bench and an unrecorded bench conference between the mar-

shal and the judge took place. The trial judge then made the

following statement.

Members of the jury, an inquiry was made during the

trial to me by one of your number concerned

some of you leaving the courthouse one day and some-

one snapping pictures out at the curbs and one that

ease og yen As — Ja Deaton ben follow-

ing morning, I investiga’ matter deter-

malsed that thore wes saiiiter te is ofeie esianen te

any of you about what happened. I found out the

source of it, what it was and I assure you that it’s

nothing to jeopardize any of your health, welfare or

security.

If any of you desire to learn more about that, you

may communiate with me in private later and I will be

happy to discuss it with you further. All right, ou

may now leave. (TR vol 9 of 9, App. 12a-13a; i26

Ap. 13a).

This statement was the first information or notice to Peti-

tioners, Petitioners’ co-defendants and their counsel regarding

the jury’s concern for their health, welfare and security as the

result of third party contact with the jury and the juror/judge

ex parte mid-trial communications.

The trial judge stated that he did not advise Petitioners,

co-defendants and their counsel of the third party contact with

the jury, or the mid-trial communications with the juror be-

cause he (the trial judge) didn’t feel it would have been proper

to do so (TR VOL 9 of 9:138, Ap. 15a). The trial judge further

stated he had made a determination that the photographing

incident would not affect or jeopardize the right of any of the

defendants to a fair trial (TR VOL 9 of 9:140, Ap. 16a). The trial

judge declined to furnish any additional information to Peti-

tioners, their co-defendants or counsel at that time. The judge

then recessed without answering counsels’ oral motion for a

more complete disclosure of the incident prior to post-trial

motions (TR VOL 9 of 9:140, 141, Ap. 16a).

B. Facts Relating To The Post-Trial Hearing

Petitioners and co-defendants were subsequently notified of

a date for argument of post-trial motions without benefit of a

complete disclosure from the court. Petitioners and co-

defendants nonetheless filed motions for a new trial based upon

the third party (picture taking) contact with the jury and the

trial judge’s ex parte communications with Juror Deaton.

On the date set by the trial judge for argument of post-trial

motions, Petitioners, co-defendants and counsel, without

notice, were then advised by the trial judge (9/30 TR 20, Ap.

19a) that he (trial judge) intended to conduct a hearing (9/30 TR

6, App. 17a-18a) an evidentiary hearing (9/30 TR 17, Ap. 18a)

for the purpose of exploring whether the photographing of the

jury in any way prejudiced Petitioners’ and co-defendants’

trial. The trial judge stated he set this “Remmer Hearing” and

will follow the procedure of bringing such witnesses to the

stand whom I (the judge) will question and then I will allow

counsel to question them also (9/30 TR 24, Ap. 21a).

Petitioners and co-defendants moved the trial judge to re-

cuse himself (9/30 TR 24, 25, App. 2la-22a). The trial judge

denied the motion. The trial judge stated critical evidentiary

facts on the record without first being sworn and without being

subject to cross examination (9/30 TR 21, 22, 23, 24, App.

19a-22a). Counsel moved the court to have the thirteen other

jurors and alternates present and subject to questioning on the

issues of juror impartiality (9/30 TR 27, 28, 169, Ap. 23a-24a,

49a-50a). Counsel objected to the procedure (9/30 TR 6, Ap.

18a) by which the trial judge intended to conduct the post trial

hearing . . . (9/30 TR 27, 28, App. 23a-24a).

Thereafter the trial court called F.B.I. Agents Albert P.

Koehler and James J. Roche, Jr., and Juror Bryant Lee

Deaton as witnesses. The Court permitted Petitioners to call

United States Customs Service Agent Susan Rowley who was

physically present in Court at the time. It is significant that the

Assistant U.S. Attorney asked but one question during the

entire post-trial hearing (9/30 TR 59, Ap. 29a) and moved the

court to conclude the post-trial hearing without questioning

the remaining thirteen jurors and alternates (9/30 TR 188, Ap.

53a).

The trial judge conducted a direct examination of F.B.I.

Agent Albert P. Koehler in which he (the trial judge) repeated-

ly asked the witness leading questions and questions which

were highly suggestive of answers (9/30 TR 28, 29, 31, 32, App.

24a-27a). The direct examination by the trial judge of F.B.I.

Agent Roche was also characterized by leading questions.

Agent Roche admitted on direct examination he focused his

camera on members of the jury (9/30 TR 57, 58, App. 27a-28a).

Juror Bryant Deaton was next called as a witness by the trial

judge who continued to ask leading questions (9/30 TR 84-91,

App. 29a-35a).

The juror stated the photographing incident would have

been a “problem” had he (Juror Deaton) not had the judge’s

personal assurances (instruction) that he (the judge) looked

into it. From that assurance Juror Deaton perceived the trial

judge knew the source of the photographing (9/30 TR 89, 90,

App. 33a-34a).

The trial judge then asked Juror Deaton whether he had

“any feeling or any reason to believe that it (the photograph-

ing) had any impact at all on the jury totally—the deliberations

of the jury in the trial of this case?” (9/30 TR 90, Ap. 34a). This

question was objected to by counsel, but the trial judge over-

ruled the objection (9/30 TR 91, Ap. 34a).

Juror Deaton testified on cross-examination that given the

nature of the case he was concerned that there might be some

reason that someone would like to know something about the

jurors or have pictures of them. He testified he was scared and

concerned for his personal welfare (9/30 TR 93, App. 36a-37a)

Juror Deaton further testified he thought some of the other

jurors were also concerned (9/30 TR 95, Ap. 38a). He testified

that every member of the jury panel was aware of the fact that

he (Deaton) and others had been photographed as they were

leaving the courthouse, and knew he (Deaton) had taken down

the license plate number of the car and reported it to the judge

(9/30 TR 99, App. 38a-39a). Notwithstanding the trial judge’s

personal assurances, Juror Deaton could not testify whether

the other jurors were as assured as he was (9/30 TR 100, App.

39a).

Further cross-examination of Juror Deaton indicated that he

(Deaton) believed the perpetrator(s) of the photographing in-

cident to be the Petitioners and co-defendants (9/30 TR 100,

101, Ap. 40a).

Juror Deaton testified that his fear abided with him over-

night (9/30 TR 101, Ap. 40a). He testified that from September

1, 1982, the date of the incident, until September 30, 1982, the

date of the post-trial hearing, he (Juror Deaton) believed the

photographing incident had something to do with the case; the

trial judge never informed Juror Deaton otherwise (9/30 TR

106, 107, Ap. 42a).

In view of the information elicited from cross-examination of

Juror Deaton, counsel again requested the opportunity to ex-

amine the thirteen other jurors and alternates, and D.E.A.

Agent Johannesen. Counsel also requested that the court initi-

ate a further investigation into the effect of this matter on the

deliberation of the jury. The trial judge did not respond to this

request (9/30 TR 145, 147, App. 47a-48a). e

In his Order of November 8, 1982 (Ap. 8a), the trial judge

summarily denied Petitioners and co-defendants’ right to call

the thirteen additional jurors and alternates for examination

by the court and cross-examination by counsel. The trial judge

found that Juror Deaton was the only juror directly involved

and therefore the only juror who could have been prejudiced or

influenced in any way.

REASONS FOR GRANTING THE WRIT

Important questions are presented involving serious aspects

of federal criminal justice.

Petitioners ask this Court to recognize that the fundamental

rights of a criminal defendant to be present and to be repre- ‘

sented by counsel during mid-trial substantive communica-

tions between judge and jury are of a constitutional dimension.

(Petitioners concede that non-substantive comnunications—

e.g., responding to questions as to the location of the

washroom—are not of a constitutional dimension.) If such

rights are recognized, then Rushen v. Spain, 464 U.S. —_.,

(Slip op. Dec. 12, 1983) [a decided case not yet published in

official advance sheets] established that a violation of such

rights must be proven harmless beyond a reasonable doubt. A

post-trial determination of harmless error must be clearly

distinguished from the type of due process post-trial hearing

authorized in Smith v. Phillips, 455 U.S. 209 (1982).

The Court of Appeals approved the District Court’s denial of

Petitioners’ motion for a new trial without the benefit of a full

hearing with full participation of Petitioners into the issues of

mid-trial third party contact with the jury and mid-trial ex

parte juror judge substantive communications.

The decision in this case illustrates the confusion that exists

after the recent decisions of Smith v. Phillips, Id. and Rushen

v. Spain, supra. Smith and Rushen involved a number of

separate but interrelated constitutional rights: 1. the right to

be present at a critical stage of trial; 2. the right to be repre-

sented by counsel at critical stages of the trial; 3. the right to an

impartial jury; 4. the right to a due process post-trial hearing

on jury bias; and 5. a possible due process right to a mid-trial

hearing on jury bias. As Justice Stevens noted in his concurr-

ing opinion in Rushen, confusion abounds in identifying these

rights and applying them in a factual context.

This confusion led Petitioners’ trial judge to overlook the

Petitioners’ right to be present and to be represented by coun-

sel during mid-trial substantive communications between

judge and jury. This confusion further caused the trial judge to

erroneously relieve the government of its burden to prove

violations of such rights are harmless beyond a reasonable

doubt. The trial judge mistakenly applied the principles of

Smith in conducting the wrong type of post-trial hearing and

erroneously placed the burden upon the Petitioners to prove

actual prejudice. Such confusing application of Smith and

Rushen is likely to recur unless this Court provides clarifica-

tion.

Rushen applied the harmless error doctrine to assumed

violations of a defendant’s right to be present and to be repre-

sented by counsel at mid-trial communications between judge

and jury, but Rushen did not decide the underlying issue of

whether such “fundamental rights” are of “constitutional

dimension.” Slip op. at 3, n. 2. The opinion in Rushen contains

strong language suggesting that trial courts should immediate-

ly notify counsel of communications with the jury, but the

bench and bar require guidance as to whether this suggestion

is a constitutional mandate. As this Court noted in Rushen, /d.

at 4, “There is scarcely a lengthy trial in which one or more

jurors does not have occasion to spe :k to the trial judge about

something. . .” A situation which occurs so frequently should

be directly and clearly addressed by this Court.

Smith authorized a post-trial hearing where the defendant

has the burden to establish a constitutional violation of the

right to an impartial jury. Rushen, however, authorized a

post-trial inquiry into a different constitutional violation—

denial of the right to be present and the right to counsel.

Rushex also recognized a different burden of proof—harmless

beyond a reasonable doubt. The trial court in this case

mistakenly conducted a Smith type hearing thereby placing

the burden of proof upon the Petitioners. The Petitioners were

entitled to both a Smith type hearing and a Rushen type

hearing where the government has the burden of proof.

This case also presents the opportunity to clarify and define

the nature of a Smith type hearing by deciding whether a

Smith hearing is distinct from a Remmer hearing where the

Petitioners would be entitled to a presumption of prejudice.

Prior to Smith, the long standing precedent of Remmer v.

United States, 347 U.S. 227 (1954) had provided guidance for

post-trial inquiries into jury contamination by third parties.

The Smith opinion cited Remmer but did not mention Rem-

mer’s presumption of prejudice. It is now unclear what re-

mains of the Remmer presumption of prejudice. Smith’s hold-

ing that due process merely requires that a defendant have an

“opportunity to prove actual bias” can be read as overturning

the Remmer presumption. However, Smith and Remmer can

both be read as valid law if each is limited to a distinct situation.

Remmer involved third party contact with a juror, and the

presumption of prejudice may apply only when third party

contact exists. Smith, however, did not involve any third party

contact but only the juror’s own possible misconduct which

raised the issue of potential bias. When no third party contact

exists, the Remmer presumption of prejudice may be inappli-

cable and the burden to prove actual prejudice may shift to the

defendant. Because proof of any form of jury bias is often

difficult to obtain in a post-trial hearing, allocation of the bur-

den of proof will often determine the substantive issue. This

Court should provide needed guidance to the lower courts by

explaining whether the Remmer presumption of prejudice sur-

vives the holding in Smith. If the Remmer presumption still

applies to third party contact cases, then the Petitioners’ trial

court improperly charged the Petitioners with the burden of

proving actual prejudice. The apparent photographing of

jurors herein constitutes third party contact and raises the

Remmer presumption of prejudice as does the third party

substantive judicial contacts.

Guidance is also needed as to the nature of the defendant’s

“opportunity to prove prejudice” in a Smith type hearing.

Petitioners believe that all previous cases permitted examina-

tion of every juror who was aware of the extraneous facts

which raised the possibility of juror bias. The present case

stands alone in denying the defense an opportunity to examine

those jurors aware of potentially prejudicial information.

Rushen also appears to hold that the opportunity to prove

prejudice is not restricted by Fed. R. Evid. 606(b). The Circuit

Courts have differed as to whether Rule 606(b) precludes

post-trial examination of jurors. Rushen appeared to define, in

footnote 5, the area of proper inquiry in post-trial examination

of jurors. If this footnote does in fact dispose of the controversy

surrounding Rule 606(b), there should be no legitimate legal

obstacle to tne Petitioners’ questioning of all jurors. The Peti-

tioners’ trial court was thus in error in denying the Petitioners’

right to examine all jurors.

This Court should now advise the Circuits of the proper

procedure to safeguard the integrity of the jury system and

ensure all defendants their constitutional right to a fair and

impartial trial.

ARGUMENT

I. Mid-Trial Chambers Conferences Between A Juror And A

Trial Judge, Regarding The Juror’s Apprehension For His

Safety Caused By Third Party Contact With The Jury Are

Critical Stages Of The Trial, And The Intentional Ex-

clusion Of The Petitioners And Petitioners’ Counsel From

Such Proceedings Is A Violation Of The Petitioners’ Right

To Be Present Under Fed. R. Crim. P. 43(a) And Their

Sixth Amendment Right To Counsel.

In Rushen v. Spain, 464 U.S. —— (Slip op. Dec. 12, 1983)

this Court noted that “the right to personal presence at all

critical stages of the trial and the right to counsel are fun-

damental rights of each criminal defendant” Slip op. at 3, but

this Court did not decide if such rights were of a constitutional

dimension because the government had conceded federal con-

stitutional error. /d. at 3, n. 2. The Petitioners contend that

such fundamental rights are of a constitutional dimension.

The right to counsel exists “at any stage of the prosecution,

formal or informal, in court or out, where counsel’s absence

might derogate from the accused’s right to a fair trial.” Cole-

man v. Alabama, 399 U.S. 1 (1970). This Court has recognized

that “any ex parte meeting or communication between the

judge and the foreman of a deliberating jury is pregnant with

possibilities for error.” United States v. United States Gypsum

Co., 438 U.S. 422, 460 (1978). The defendant and counsel must

be present at such meetings to guard against any unintended

and misleading impression communicated by the trial judge,

and to correct whatever mistaken impression the juror might

otherwise communicate to the other jurors. Jd. at 460-62.

Counsel’s intentional exclusion, without notice, from the trial

court’s chambers conference with Juror Deaton prevented

counsel from protecting the fundamental integrity of his

client’s trial by jury. United States v. Myers, 626 F.2d 365 (4th

Cir. 1980).

The application of the harmless error doctrine in Rushen v.

Spain does not render it any less crucial to determine whether

the underlying constitutional rights exist. The harmless error

doctrine is a useful device for avoiding needless reversals, and

as such, the doctrine affects only the remedy not the existence

of the basic rights. By definition the harmless error doctrine

means that the error which occurred in the progress of the trial

was not prejudicial to the rights of the party assigning it, and

for which, therefore, the Court will not reverse the judgment.

In order to deter excessive reliance on the harmless error

doctrine and to avoid, when possible, the inherent difficulties

of determining prejudice at post-trial hearings, it is important

for this Court to enunciate the correct constitutional proce-

dure. Petitioners contend that the correct constitutional proce-

dure was established in United States v. Ronder, 639 F.2d 931

(2d Cir. 1981) where the Second Circuit identified four neces-

sary components for the proper disposition of any communica-

tion between judge and jury.

“THE JURY’S INQUIRY SHOULD BE SUBMITTED

IN WRITING.”

IT “SHOULD BE MARKED AS A COURT EXHIBIT

AND BE READ INTO THE RECORD IN THE PRE-

SENCE OF COUNSEL AND THE DEFENDANT.”

“COUNSEL SHOULD BE AFFORDED AN OPPOR-

EPONGRE TO SUGGEST APPROPRIATE RE-

“MESSAGES FROM A JURY SHOULD BE

ANSWERED IN OPEN COURT... .”

(1) “Thejury’s inquiry should be submitted in writing. This

is the surest way of affording the court and counsel an appro-

priate opportunity to confer about a response.” /d. at 934. Such

a requirement insures that counsel will have proper notice of

the communication. Secret communications between judge

and jury cannot be tolerated in our criminal justice system.

Had Juror Deaton not spoken up in open court after the verdict

(TR VOL 9 of 9:125, 126, App. 12a-13a) the Petitioners might

never have learned that the communications occurred. The

integrity of the judicial system and the appearance of justice

demand a rule which precludes the possibility that the trial

court’s communications with a juror might remain secret be-

cause of oversight or faulty judgment on the part of the trial

judge. Rogers v. United States, 422 U.S. 35 (1975); United

States v. Ferguson, 486 F.2d 968 (6th Cir. 1973). The communi-

cations in this case were not the result of some inadvertent

encounter between the judge and the juror in a hallway or

elevator. Both communications occurred after the trial judge

summoned the juror to his chambers. (9/30 TR 22, Ap. 20a).

“The judge should have advised counsel immediately on receiv-

ing the [communication].” United States v. Gersh, 328 F.2d

460, 463 (2d Cir. 1964); United States v. Hines, 696 F.2d 722,-

730 (10th Cir. 1982); Rushen v. Spain, 464 U.S. —_ (Slip op.

Dec. 12, 1983).

(2) When the communication is reduced to writing it

“should be marked as a court exhibit and be read into the

record in the presence of counsel and the defendant.” (United

States v. Ronder, 639 F.2d 931, 934 (2d Cir. 1981)). Even

though the trial judge must have some discretion in dealing

with jury communications, “his discretion is always subject to

review for abuse, and a record is necessary for such review.”

United States v. Gay, 522 F.2d 429, 435 (6th Cir. 1975). The

trial judge here attempted to reconstruct the communications

at the post-trial hearing, but at best he could only attempt to

paraphrase the communications. The exact words used can be

crucial and there is little point in having counsel and the trial

court labor over the precise wording of formal instructions

when only the gist of such informal instructions can be recon-

structed for appellate review. There is also no way of knowing

what unintentional messages the juror or judge communicated

during their meetings—a shrug of the shoulders; a tone of

voice; an exchange of knowing glances accompanying an oral

communication, etc. (See generally, Judges’ Nonverbal Be-

havior in Jury Trials: A Threat to Judicial Impartiality, 61 Va.

L. Rev. 1266 (1975)). This Court has recognized that such

unintended and misleading impressions are a very real

possibility—“all the more so when counsel are not present to

challenge the statements.” United States v. United States

Gypsum Co., 438 U.S. 422, 460 (1978). In the absence of a

record of the communication between judge and juror, preju-

dice to the defendant must be presumed. United States v.

Myers, 626 F.2d 365, 366 (4th Cir. 1980); United States v.

Taylor, 562 F.2d 1345, 1365 (2d Cir. 1977); United States v.

Treatman, 524 F.2d 320, 323 (8th Cir. 1975); United States v.

Gay, 522 F.2d 429, 435 (6th Cir. 1975).

(3) “Counsel should be afforded an opportunity to suggest

appropriate responses.” United States v. Ronder, 639 F.2d

931, 934 (2d Cir. 1981)). Fed. R. Crim. P. 30 requires the trial

judge inform counsel of the disposition of proposed requests to

charge prior to summations. It is well established that counsel

has the right to submit proposed instructions and raise objec-

tions to the instructions the court intends to give. In United

States v. United States Gypsum Co., 4388 U.S. 422, 462 (1978)

this Court found it “most troubling” that counsel were denied

any chance to correct whatever mistaken impression the juror

might have taken from his conversation with the judge. “The

issue here is not whether the language of the court’s communi-

cation with the jury in itself constituted reversible error, but

rather whether the input of the defendant and his counsel at

the appropriate moment could have substantially affected the

content of the message to the jurors. . . .” Krische v. Smith,

662 F.2d 177, 180 (2d Cir. 1981). Although Juror Deaton was

told that he had nothing to fear, the trial judge never explained

that the photographing incident was not connected with the

defendants (9/30 TR 106, App. 4la-42a). If any jurors con-

tinued in the belief that the defendants were responsible for

photographing the jury, the jurors might have wished to pun-

ish the defendants for this misconduct. “Jurors required by

the presumption of innocence to accept the accused as a peer,

an individual like themselves who is innocent until proved

guilty, may well see [a person who deserves to be convicted. }”

Estelle v. Williams, 425 U.S. 501, 518-19 (1976) (Brennan, J.,

dissenting).

Juror Deaton, as well as the other jurors, had been subjected

to extraneous influences to which no juror should be subjected,

for it is the law’s objective to guard jealously the sanctity of the

jury’s right to operate as freely as possible from outside unau-

thorized intrusions purposefully made. Remmer v. United

States, 350 U.S. 377, 382 (1956)

The trial court denied counsel the opportunity to inquire into

the jurors’ impartiality. The photographing incident was so

troubling to Juror Deaton that it provoked him to breach an

explicit admonition from the judge not to discuss the case with

anyone. Reasonable concerns were thus raised about the abil-

ity of Juror Deaton and other jurors to continue as impartial

jurors. The Petitioners’ absence from conversations implicat-

ing a juror’s ability to judge impartially the case against them

presents the same possibility for frustrating the fairness of the

proceedings as would their absence from initia! voir dire. Un-

like the situation in Rushen v. Spain, 464 U.S. —_ (Slip op.

Dec. 12, 1983) (Stevens, J., concurring) potential bias arose

after the commencement of the trial and could not have been

uncovered during the initial voir dire. While attempts to recon-

struct the juror’s state of mind at post-trial hearings are

deemed adequate after constitutional error occurs, their in-

herent deficiencies demonstrate that post-trial hearings are

less desirable than an immediate inquiry into a serious ques-

tion of juror impartiality. At the post-trial hearing the juror

and trial judge admitted they had been afraid for the juror’s

safety (9/30 TR 25, 93, App. 22a, 36a-37a) but the memory of

that fear some four weeks after the event does not give an

accurate picture of the situation. Questions posed at a time

when the emotional state prompting the juror’s contacts with

the trial judge was still fresh might well elicit from the juror(s)

different responses from those given at a post-trial hearing.

Courts have taken note of the obvious inadequacies of post-

trial inquiries into a juror’s state of mind. “Even when the

investigation is made immediately upon learning of an in-

trusion it is extremely difficult to learn the extent of the

extraneous influence upon a jury. This difficulty is compound-

ed if questioning is deferred. . . . Considering the problem of

fading memories and the natural reluctance of a juror to admit

that he had been improperly intiuenced . . .” it is almost im-

possible to make such a determination at a post-trial hearing.

Krause v. Rhodes, 570 F.2d 563, 570 (6th Cir. 1977). Smith v.

Phillips, 455 U.S. 209 (1982) is distinguishable from the pre-

sent case because there was no opportunity for a mid-trial voir

dire. In Smith v. Phillips the trial court convened a post-trial

hearing immediately upon being informed that there was an

issue of possible juror misconduct. This Court held that a

post-trial hearing was an adequate remedy in such a situation.

But the situation in Petitioners’ case is quite different. The

trial judge was aware of possible jury contamination during the

trial, and attempted to handle the matter through ex parte and

unrecorded communications with the jury. In such situations

the defendant and counsel have the right to participate in

mid-trial communications and cannot be restricted to partici-

pation in an after-the-fact post-trial hearing. Petitioners are

not asking that Rushen be overruled. Once error occurs it may

still be harmless. The harmless error doctrine only affects the

remedy not the underlying right. A violation of a constitutional

right may ultimately be deemed harmless, but it does not

retroactively eliminate the right. Petitioners seek a

determination of the unresolved issue in Rushen, the initial

right to participate in mid-trial communications regarding jury

bias.

Had counsel been permitted an immediate inquiry into

potential jury bias, the probing questions of counsel would

have more fully illuminated the jurors’ state of mind. This was

amply demonstrated at the post-trial hearing when Juror

Deaton’s characterization of his state of mind in response to

questions from the trial judge is contrasted with his response

to counsel’s questions:

Judge:

Juror:

Counsel:

Juror:

Counsel:

Juror:

Counsel:

Juror:

Counsel:

Juror:

Counsel:

Juror:

Counsel:

As aresult of that incident, did you at any time have

any apprehensions or fear for your safety?

No, I didn’t. (9/30 TR 88, App. 32a-33a).

x « «

Your concern basically was for your own personal

welfare; was it not?

Yes, it was.

Would it be safe to say that you were somewhat

scared?

I think that is—I was scared. Well, yes, sir; sounds

good. (9/30 TR 98, App. 36a-37a).

* * *

And I believe, if you will relate again—didn’t you

talk with the other jurors immediately after talking

with Judge Britt about what had taken place?

Yes; I did.

Can you relate any specific remarks that any partic-

ular juror made at that time?

I will summarize what I think the feeling was. I

don’t remember particular remarks. I think some of

them were, just as I was, concerned. And then

when I came back and relayed the message, it was

not discussed.

But at the time—

(Interposing) I don’t remember any specific re-

marks.

But their concern, then—your testimony is their

concern was basically the same as yours? And that

is your personal welfare and safety?

Juror:

Counsel:

Juror:

Counsel:

Juror:

Counsel:

Yes. (9/30 TR 95, App. 37a-38a).

* * *

. .. When you first experienced this incident, you

have indicated you had concern? And then it was

developed it was concern for safety and other con-

cerns? Who did you think would be the perpetrator

of anything that would affect your safety? What

was going on in your innermost mind as to who was

behind all this—you are in a lawsuit and you are a

juror—the United States of America or the Defend-

ants sitting over here at these tables?

The Defendants.

It didn’t enter your mind at all that the Government

would be doing you bodily harm?

No.

And I realize you have been very tasteful in

communicating it. But I want to be sure that I

understand what was going on in your mind. Is this

an accurate summary of what your apprehension

was: that someone was taking photographs of the

jurors, so that if they voted “guilty” that someone

might come do them bodily harm?

Yes, sir.

That was what you were afraid of?

Yes.

And that fear abided with you for a period of time?

Until the next morning; yes.

Well, a period of time is overnight?

Okay.

It abided with you during that period of time, from

the afternoon experience until you had your com-

munications with the court?

Yes. (9/30 TR 100-101, App. 39a-41a).

The trial judge admitted that he carried the centra! role at

the post-trial hearing in defending the actions he had taken

(9/30 TR 174, Ap. 50a). The trial judge’s efforts to justify his

handling of the matter is understandable in view of the only

remedy available to him at a post-trial hearing—the granting

of a new trial. Had the judge conducted a mid-trial inquiry with

full participation of counsel, the trial court may have been able

to cure any prejudice with a cautionary instruction, or utilize

alternate jurors and proceed with trial. The trial judge’s in-

terest in defending his handling of the matter may not be

sufficient to render him unfit to preside [cf: Tumey v. Ohio, 273

U.S. 510 (1927)] but it certainly affects his impartiality and

openmindness about the prejudice to the defendant. The

acknowledgement of a criminal defendant’s constitutional

right to be present with counsel during mid-trial inquiries

affords the trial court a number of available options, and allevi-

ates the pressure on a trial judge to try to find some way to

uphold the jury verdict. The acknowledgement of this con-

stitutional right would also place a lesser burden on the

government. There are few prosecutors who would not wel-

come a mid-trial opportunity to address jury bias, rather than

face the burden of proving beyond a reasonable doubt at a

post-trial hearing that the defendant was not prejudiced by er

parte communications between judge and jurors.

An open and immediate inquiry into juror impartiality would

also provide an opportunity for counsel to reassess the evi-

dence to be presented or take other “tactical steps” which

might offset or mitigate the juror’s potential bias. Gibson v.

Clanon, 633 F.2d 851, 854 (9th Cir. 1980); Rushen v. Spain,

464 U.S. — (Slip op. Dec. 12, 1983) (Marshall, J., dissent-

ing). This opportunity, once lost, cannot be regained by a

post-trial hearing. Although Petitioners’ trial counsel had no

knowledge of the photographing of the jury, they were aware

that photographs had been taken of defense counsel and others

(9/30 TR 179-180, App. 5la-52a). Trial counsel Kupferberg

indicated at the post-trial hearing that this incident played

some part in tactical decisions regarding the presentation of

the defense case (9/30 TR 141-144, App. 44a-47a). Had defense

counsel been informed that the jury was concerned that Peti-

tioners and co-defendants were a threat to their safety, counsel

may have altered their presentation of evidence to establish

that the defendants were not of a character to harm jurors. It

is, of course, speculation as to how the defense strategy might

have been affected, but it is the denial of Petitioners’ right to be

present and the right to counsel which necessitate this specula-

tion.

(4) “Messages from a jury should be answered in open

court. .. .” United States v. Ronder, 639 F.2d 931 (2d Cir.

1981); United States v. Gay, 522 F.2d 429, 436 (6th Cir. 1975);

Rogers v. United States, 422 U.S. 35 (1975). “Any occasion

which leads to communications with the whole jury through

one juror inevitably risks innocent misstatements of the law

and misinterpretations despite the undisputed good faith of the

participants.” United States v. United States Gypsum Co., 438

U.S. 422, 461 (1978). Juror Deaton communicated his meetings

with the judge to other jurors (9/30 TR 95, 99, App. 37a-38a),

but there is no way to determine precisely what Juror Deaton

said when he returned to the jury room. Nor is there any way

to know how the jurors reacted to this “second-hand instruc-

tion” from the trial judge. As this Court noted in United States

v. United States Gypsum Cu., Id. at 461, any confusion would

have been readily cleared by calling the entire jury into the

courtroom for a clarifying instruction. The trial judge may

have been concerned with contaminating those jurors who

were unaware of the photographing incident, but at a minimum

the judge should have discussed the matter, in the presence of

counsel, with those jurors who already knew of the incident.

The form of ex parte communication between the judge and

jury utilized in this case violates both Fed. R. Crim. P. 43(a),

Fed. R. Crim. P. 30 and the Sixth Amendment. United States

v. Flaherty, 668 F.2d 566, 602 (1st Cir. 1981); United States v.

Myers, 626 F.2d 365, 366 (4th Cir. 1980); United States v.

Bufalino, 576 F.2d 446 (2d Cir. 1978); United States v. Jones,

542 F.2d 186 (4th Cir. 1976).

II. The Burden Is On The Government To Prove Violations

Of Petitioners’ Right To Be Present And Right To Coun-

sel During Mid-Trial Ex Parte Juror-Judge Substantive

Communications Harmless Beyond A Reasonable Doubt

Pursuant To Remmer v. United States, Smith v. Phillips

And Rushen v. Spain.

The trial judge applied an erroneous standard at the post-

trial hearing because he failed to identify the separate con-

stitutional violations which occurred. (Order of Judge Britt

dated 11/8/82, Ap. 8a) (See Rushen v. Spain, 464 U.S. ——

(Slip op. Dec. 12, 1983) (Stevens, J., concurring).) The post-

trial hearing inquired into the possible violation of Petitioners’

right to an impartial jury caused by the photographing in-

cident, but failed to consider any possible prejudice flowing

from the trial judge’s ex parte communications with the jury.

Defense counsel alerted the judge to this separate issue: “part

of the problem here, Judge—and I say this respectfu!ly—was

the non-disclosure to defense counsel.” (9/30 TR 174, App.

50a-5la). But at no point in the hearing nor in the opinions of

the District or Appeals courts is any consideration given to the

possible prejudicial effect of the denial of Petitioners’ right to

counsel at the communications between judge and jury. Thus

the post-trial hearing did not determine that the trial judge’s

handling of this matter was harmless error because the issue

was never addressed although raised by Petitioners.

The trial court attempted to conduct the type of hearing

mandated in Smith v. Phillips, 455 U.S. 209 (1982), but Smith

v. Phillips did not involve any ex parte communications be-

tween judge and jury. Smith v. Phillips places the burden on

the defense to prove a violation of the constitional right to an

impartial jury. In this case the trial court totally ignored the

separate issue of a violation of Petitioners’ constitutional right

to be present and to be represented by counsel at the communi-

cations between judge and jury. “The right to the assistance of

counsel and the right to be present at critical stages of the trial

... Were not at issue in Smith.” Rushen v. Spain, 464 U.S.

——, (Slip op. at 11, n. 20, Dec. 12, 1983) (Marshall, J., dissent-

)

;

ing). By relying exclusively upon Smith, the trial court failed

to appreciate that “the language used by the Court in Smith to

define the burden a criminal defendant must sustain in order to

prove an abridgement of his constitutional right to an impartial

jury thus has no relevance to [the denial of the right to be

present and to be represented by counsel)” /d. Slip op. at 13, n.

23. In Rushen v. Spain this Court applied the harmless error

doctrine to such assumed constitutional violations and gave

great deference to the findings of the lower court. No defer-

ence can be given to the lower courts in this case because the

lower courts never made a determination regarding the pre-

judicial or harmiess effect of such constitutional errors. “We

can let stand no conviction where the defendant was not pre-

sent at all stages of the proceedings unless the record com-

pletely negates any reasonable possibility of prejudice arising

from such error.” Jones v. United States, 299 F.2d 661, 662

(10th Cir. 1962).

III. Adequate Notice, An Impartial Fact Finder And The

Right To Summon Material Witnesses And Evidence Are

Essential To Conduct A Due Process Post -Trial Hearing

Authorized In Remmer v. United States And Smith v.

Phillips.

Petitioners, co-defendants and counsel appeared at the trial

court for argument of their respective motions for new trial

and sentencing on September 30, 1982. Upon arrival in the trial

judge’s chambers, the judge announced that he intended to

conduct a “Remmer type” hearing. (9/30 TR 6, 20, App. 17-18a,

18a-19a) Counsel had not received advance notice of the nature

of the hearing nor were they given an opportunity to collect

factual information or prepare argument prior to the

commencement of the hearing. The record reflects this con-

fusion.

Trial Counsel Tew: Your Honor, may I inquire as to

whether the court intends, in fact, to conduct such a hear-

ing? (9/30 TR 6, App. 17a-18a).

Trial Counsel Sheppard: May I ask the Court to set on the

record—I don’t really know what is ha g—and I

don’t think the record does either. (9/30 PR 508 —

* * * Someone has evaluated what we need . oo

conclude that it was anyone other than the Court that ha os

evaluated what we need for the hearing. (9/30 TR 20-27,

App. 18a-24a).

The due process concept of notice requires that counsel be

informed of the relevant factual situation and legal issue set

forth, be allowed to develop additional facts, and have an

opportunity to prepare legal argument for the court’s consider-

ation. The trial court’s precipitous handling of the hearing

forced Petitioners’ counsels to react spontaneously to previ-

ously undisclosed facts and thus denied Petitioners any oppor-

tunity to be heard in a meaningful fashion.

The post-trial hearing was constitutionally inadequate be-

cause the trial judge did not function as an impartial fact-

finder. The trial judge did not place the burden on the prosecu-

tion to rebut the presumption of prejudice, Remmer v. United

States, 347 U.S. 227 (1954), nor did he place the burden on the

defense to initially prove prejudice. Smith v. Phillips, 455

U.S. 209 (1982). Instead the trial judge shouldered the entire

load and set out to disprove prejudice by testifying without

being placed under oath or subject to cross-examination. The

trial judge’s precipitous handling of the hearing indicates that

he was attempting to make a record justifying his previous

decision that the photographing incident did not “in any way,

affect or jeopardize the right of any of the defendants to a fair

trial... .” (TR VOL 9 of 9:140, Ap. 16a). As counsel pointed

out to the court, this previous decision was made without a

hearing and without participation of counsel (TR VOL 9 of

9:140, Ap. 16a). The trial judge did not function as an indepen-

dent fact finder, but as an advocate defending a previously

Petitioners do not contend that every trial judge is dis-

qualified from conducting the post-trial hearing authorized in

Smith v. Phillips. The Smith case is distinguishable from the

present case because the trial court in S mith was inquiring into

possible misconduct by a juror and/or the prosecution. The

judge’s own conduct was not at issue in Smith. In the present

case, however, the trial judge assumed the position of defend-

ing, then passing judgment upon his own possible contamina-

tion of the jury. When the trial judge’s own conduct is in

question, the judge should disqualify himself as did the judge in

United States v. Rakes, 74 F. Supp. 645, 647 (E.D. Va. 1947).

As this Court stated in Ward v. Monroville, 409 U.S. 57, 60

(1972) the proper test for judicial impartiality is whether the

situation is one “which would offer a possible temptation to the

average man as a judge. . . which might lead him not to hold

the balance nice, clear and true between the State and the

accused . . .” A fair reading of the transcript of the post-trial

hearing demonstrates that the trial judge became an advocate

defending his own actions and did not hold the balance true

(9/30 TR., App. 17a-538a) (TR VOL 9 of 9:138-141, App. 14a-

16a).

Another serious inadequacy of the post-trial hearing was the

denial of Petitioners’ right to participate fully and present

relevant evidence. As Justice O’Connor observed in her con-

curring opinion in Smith v. Phillips, supra at 221: “A hearing

permits counsel to probe the juror’s memory, his reasons for

acting as he did, and his understanding of the consequences of

his actions. A hearing also permits the trial judge to observe

the juror’s demeanor under cross examination and to evaluate

his answers in light of the particular circumstances of the

case.” It is unconscionable to place the burden to prove preju-

dice upon the Petitioners and then deny the Petitioners the

only effective means to establish such prejudice. The trial

judge’s denial of Petitioners’ repeated requests to question all

jurors and others (9/30 TR 27, 169-170, App. 23a-24a, 49a-50a)

denied the Petitioners an adequate hearing under Smith v.

Phillips and Remmer. The request that all jurors be sum-

moned to the hearing was not a mere fishing expedition on the

part of counsel. The record clearly demonstrates that at least

five jurors had witnessed the picture taking incident (9/30 TR

102, 122, App. 4la-44a) and all jurors were aware of Juror

Deaton’s meetings with the trial judge about the incident (9/30

TR 99, App. 38a-39a). Once a juror feels that he may be

subjected to violence at the hands of the defendant, it is ex-

tremely difficult for his judgment to remain free and impartial

as the constitution requires. United States v. Barnes, 604 F.2d

121, 140 (2d Cir. 1979). “Impartiality is not a technical concep-

tion. It is a state of mind.” United States v. Wood, 299 U.S. 123,

149 (1936). Yet the trial judge denied defense counsel any

opportunity to inquire into each juror’s state of mind. In place

of summoning the other jurors, the trial court had Juror

Deaton offer his opinion and impression of the other jurors’

states of mind in violation of Fed. R. Evid. 606(b), Rushen v.

Spain, slip op. at 7, n. 5. (9/30 TR 90-91, App. 34a-35a). The

Fourth Circuit previously condemned the use of ex parte affi-

davits at post-trial hearings. United States v. Guthrie, 387

F.2d 569, 572 (4th Cir. 1967). The situation is aggravated when

the statements which are not subject to cross-examination do

not come directly from the jurors but come second hand from

the impressions of one juror. The “model” (see Allen v. United

States, 376 F. Supp. 1386 (E.D. Pa. 1974)) for proper post-trial

hearings was established in Morgan v. United States, 399 F.2d

93 (5th Cir. 1968) where the court required: “(1) a full hearing

at which counsel were free to introduce any evidence relevant

to the alleged conversation; (2) separate questioning of each

juror by the trial judge; (3) cross-examination of the panel

members by counsel. . . .” Jd. at 97.

Petitioners have been unable to locate any case where the

trial judge refused to examine jurors who were aware of third

party contacts with the jury and had knowledge of private

communications between the judge and a single juror. The only

cases approving the trial judge’s refusal to interrogate jurors

are based on waiver or a lack of factual evidence that the jury

has any knowledge of extraneous matters. For example,

United States v. Aimone, 715 F.2d 822 (3rd Cir. 1983) and

United States v. Spinella, 506 F.2d 426 (5th Cir. 1975) both

involve defense counsel’s acquiescence in the trial court’s deci-

sion that all jurors would not be interrogated. As the court held

in Aimone, supra, at 830, counsel “may not promote action by

the trial judge and then assign that compliance as error.

‘Sandbagging’ will not be countenanced by this court.” There is

no form of waiver or acquiescence in this case as Petitioners at

all times asserted their right to examine all jurors who were

aware of the contact and communication with the jury. (9/30

TR 174, App. 50a-51a).

There is no lack of factual evidence establishing third party

contact with the jury in this case. The courts have recognized

that a full hearing is not required in every instance where an

uncorroborated rumor or conjecture came to the attention of

the trial court. Tillman v. United States, 406 F.2d 930, 938 (5th

Cir. 1969); United States v. Brown, 571 F.2d 980 (6th Cir.

1978); Capella v. Braumgartner, 59 F.R.D. 312 (S.D. Fila.

1973). The present case does not involve conjecture or any

factual dispute regarding the extent of jury contamination.

The record is clear that several jurors were directly involved in

the photographing incident (9/30 TR 122, Ap. 44a) and all

jurors were aware of Juror Deaton’s meetings with the trial

judge about the incident (9/30 TR 99, App. 38a-39a). Every

court which has confronted such a situation has permitted

questioning of “each of the jurors who was aware of the ex parte

communication... .” United States v. Fleming, 594 F.2d 598,

608 (7th Cir. 1979); Krause v. Rhodes, 570 F.2d 563 (6th Cir.

1977); United States v. Khoury, 539 F.2d 441 (5th Cir. 1976);

United States v. Schrimsher, 493 F.2d 848 (5th Cir. 1974);

Bailey v. United States, 410 F.2d 1209 (10th Cir. 1969); Mor-

gan v. United States, 399 F.2d 93 (5th Cir. 1968); Stone v.

United States, 113 F.2d 70 (6th Cir. 1940).

It is the paucity of information relating to the entire situa-

tion coupled with the presumption which attaches to the kind of

facts alleged by Petitioners which manifest the need for a full

hearing. Remmer v. United States, 350 U.S. 377 (1956).

The case of Krause v. Rhodes, supra, is particularly rele-

vant to the present case. In Krause the court held that “it was

error for the trial court to determine ex parte and without any

personal interrogation that a juror who had been threatened

. . . could continue to serve unaffected by these incidents.” Jd.

at 569. Although the trial judge in the present case dealt with

Juror Deaton’s apprehension, the judge refused to examine the

other jurors who also felt threatened and shared Juror

Deaton’s apprehension (9/30 TR 95, App. 37a-38a and Judge

Britt’s Order dated 11/8/82, Ap. 8a). The procedure utilized in

the present case was the very procedure condemned in

Krause. “No attempt was made to determine whether the

remainder of the panel had been possibly contaminated. In-

stead, they were merely told that efforts had been made to

influence one of their number, with alarming references to the

extreme seriousness of the threats, and were left to speculate

about the entire matter.” Jd. at 569. The jurors at Petitioners’

trial felt threatened (9/30 TR 95, App. 37a-38a); they received

only second hand reassurances from Juror Deaton. There was

no disclosure as to the source of the possible threat or what

remedies the trial judge had utilized to protect them. The

jurors could only speculate as to the source, nature, and extent

of the threat. It is only speculation that the other jurors were

sufficiently reassured as Juror Deaton claims he was. But

there is no evidence as to their reassurance or continued fear

except for Juror Deaton’s “opinion” and “impression” as to

their state of mind (9/30 TR 90-91, App. 34a-35a). Such con-

jecture by Juror Deaton cannot dispel the very real possibility

that some, if not all, the jurors either continued to fear the

defendants or were angry at the defendants for having en-

gaged in efforts to intimidate the jury. Juror Deaton candidly

admitted that he did not ask nor did he know whether the other

jurors felt as assured as he (9/30 TR 93, 100, App. 36a-37a,

39a-40a).

Proper concern for protecting and preserving the integrity

of our jury system dictates against speculation about the dis-

persion of the cloud created by both F.B.I. and judicial ex parte

contact while jurors sat for the remainder of the trial and cast

their ballot.

If the situation were reversed and the Petitioners relied

solely on one juror’s impression of other jurors (e.g. “I think

they were all afraid.”), it is difficult to believe that a court

would decline to interrogate all the jurors to determine

whether the Petitioners had conclusively carried their burden

of proving actual prejudice. However, the trial judge here

accepted such conjecture as conclusively establishing the ab-

sence of prejudice, thereby cutting off the Petitioners’ right to

properly inquire into possible prejudice. Smith v. Phillips, 455

U.S. 209 (1982) is premised on the principle that “preservation

of the opportunity to prove actual bias is a guarantee of a

defendant’s right to an impartial jury.” Jd. at 216. The denial of

Petitioners’ opportunity to present evidence deprived the

Petitioners of the due process hearing mandated by Remmer

and Smith v. Phillips.

CONCLUSION

For the foregoing reasons, it is respectfully submitted that

this petition for writ of certiorari should be granted.

KENNETH R. WEINER

3251 Old Lee Highway, Suite 411

Fairfax, Virginia 22030

(703) 591-0700

STEVEN D. KUPFERBERG

5900 Hubbard Drive

Rockville, Maryland 20852

(301) 231-9480

Attorneys for Petitioners

Of Counsel:

RONALD J. BACIGAL

GeorGE A. WEINER

EDWARD L. WEINER

Dated: January 11, 1984

APPENDIX

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 82-5274(L)

UNITED STATES OF AMERICA,

Appellee,

Vv.

RONALD DoyLe HINEs,

Appellant.

No. 82-5275

UNITED STATES OF AMERICA,

Appellee,

Gary J. PEED,

Appellant.

No. 82-5276

UNITED STATES OF AMERICA,

Appellee,

Vv.

TERESA ELEAZAR,

Appellant.

No. 82-5277

UNITED STATES OF AMERICA,

Appellee,

JAMES MAURICE JACKSON,

Appellant.

No. 82-5278

UNITED STATES OF AMERICA,

Appellee,

Vv.

JAMES C. CODDINGTON,

Appellant.

No. 82-5286

UNITED STATES OF AMERICA,

Appellee,

VV.

JEFFREY CRAIG BUMGARDNER,

Appellant.

Appeals From The United States District Court For The

Eastern District Of North Carolina, At Raleigh. W. Ear! Britt,

United States District Judge.

Argued: July 14, 1983 Decided September 9, 1983

Before PHILLIPS, SPROUSE and ERVIN, Cireuit Judges.

William J. Sheppard (Elizabeth L. White on brief) and Gary S.

Lawrence (Steven D. Kupferberg; Hugh Clifton Talton, Jr.;

Christine Witcover Dean; Edwin C. Walker on brief) for

Appellants; William E. Martin, Assistant United States Attor-

ney (Samuel T. Currin, United States Attorney, Wallace W.

Dixon, Assistant United States Attorney, James G. Lindsay,

U.S. Dept. of Justice on brief) for Appellee.

IX.

One day during the trial, an FBI agent photographed per-

sons leaving the courthouse and was noticed by juror Denton.

Juror Denton advised the court and was informed that the

photographs were not being made of jurors, that there was no

cause for concern, and that the matter should be disregarded.

At a post-trial hearing on the possible prejudicial influence of

the picture-taking episode, juror Denton indicated that after

receiving the court’s assurances, he was not concerned about

the photographing and the incident did not affect his delibera-

tions. Nor was the incident further discussed by him or the

other jurors after he conveyed the court’s assurances to the

other jurors. The district court considered Denton’s testimony

credible and found that the episode had no prejudicial influence

on the jury. That finding is not clearly erroneous. Under Smith

v. Phillips, 455 U.S. 209 (1982), and Remmer v. United States,

350 U.S. 377 (1956), appellants were entitled to a hearing,

which they received, on the possible prejudicial impact of the

episode. Absent a showing that the district court’s finding of no

unfair prejudice was clearly erroneous, we cannot reverse.

For the foregoing reasons, the convictions are

AFFIRMED.

No. 82-5278

UNITED STATES OF AMERICA,

Appellee,

JAMES C. CODDINGTON,

Appellant.

No. 82-5286

UNITED STATES OF AMERICA,

Appellee,

JEFFREY CRAIG BUMGARDNER,

Appellant.

ORDER

Upon consideraton of the appellants’ petition for rehearing,

by counsel,

IT IS ORDERED that the petition for rehearing is DE-

NIED.

Entered at the direction of Judge Ervin for a panel consist-

ing of Judge Phillips, Judge Sprouse, and Judge Ervin.

For the Court

‘s/ William K. Slate, II

WiuuiaM K. Sate, II

CLERK

FILED

NOV 14 1983

U.S. Court of Appeals

Fourth Circuit

APPENDIX B

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NORTH CAROLINA

RALEIGH DIVISION

No. 82-8-CR-5

UNITED STATES OF AMERICA,

JEFFREY CRAIG BUMGARDNER, et al.

ORDER

This matter is before the Court on motion of defendants for a

new trial based on an incident occurring during the trial involv-

ing the jury.

FACTUAL BACKGROUND

The trial was begun at 10:00 a.m. on 24 August 1982 with the

selection of a jury consisting of twelve regular and two alter-

nate members. On 25 August 1982, the jury was impaneled and

the trial begun. During the course of the trial, the names of

Costello Ramey and Doug Ross were mentioned as suppliers of

drugs to the organization in which the defendants were in-

volved. On 1 September 1982, Costello Ramey and Doug Ross

were called as witnesses by one of the defendants and each took

the fifth amendment. Court adjourned at 4:30 p.m. on that

date, and shortly therea‘ter juror, Bryant Deaton, reported to

Susan Umstead, law clerk for the presiding judge, that some-

one was taking pictures of jurors as they left the courthouse.

Mr. Deaton was brought into the Judge’s Chambers and, at

that time, advised the Court that as he and some of the other

jurors were leaving the main entrance of the courthouse an

unidentified individual sitting in a car parked at the curb in

front of the courthouse appeared to be taking pictures of the

jurors. Mr. Deaton further informed the Court that he had

taken down the license number of the automobile. The Court,

thereupon, took the slip of paper on which the license number

was written down by the juror, advised the juror that he would

look into the matter and excused him. Immediately thereafter,

the Court requested an FBI agent to come to chambers. Agent

Albert P. Koehler responded, and he was advised of the in-

cident and requested by the Court to immediately investigate

the matter and report back to the Court as promptly as

possible.

At approximately 8:00 a.m. on 2 September 1982, Agent

Koehler came to chambers and reported to the Court that the

photographs were being taken by another FBI agent, James J.

Roche, Jr., of the two suspected drug dealers, Ramey and

Ross. When juror Deaton arrived at court, he was brought to

chambers by Susan Umstead, law clerk for the presiding

judge, at which time he was advised that the Court had ascer-

tained the identity of the photographer. The Court further

assured the juror that photographs were not being made of

jurors, that there was no cause for concern by him or any other

juror, and that he should disregard the incident entirely. The

Court further advised juror Deaton that the Court was not at

liberty to discuss the matter further at that time but cculd

possibly do so at some later date.

On 3 September 1982 at 10:00 a.m., the jury retired to begin

its deliberations. At 7:23 p.m. the jury returned its verdict.

Before leaving the courtroom, juror Deaton inquired of the

Court further concerning the picture-taking incident. The

Court again advised juror Deaton that it was not at liberty to

discuss the matter further at that time but would, at a later

date should he make further inquiry. The jury was then dis-

charged and the Court advised the parties of the incident and

what had transpired thereafter.

Motions for a new trial based on alleged prejudice resulting

from the picture-taking incident have been filed by all defend-

ants. On 30 September 1982, a hearing was conducted at which

a Se ee a eee a ee

time Agents Koehler, Roche and Susan Rowley, who was in

the automobile with Agent Roche at the time of the incident,

and juror Deaton testified. All were examined initially by the

Court and all defense counsel were given an opportunity to

question the witnesses.

CONTENTIONS OF THE DEFENDANTS

The defendants contend first, that the Court erred in not

bringing the matter to their attention at the time it occurred

and conducting a hearing involving one or more of the jurors

and secondly, that the cause of the defendants was prejudiced

by the incident. Defendants principally rely on Remmer v.

United States, 347 U.S. 227 (1954) and Smith v. Phillips, ——

U.S. —~, 71 L.Ed.2d 78 (1982).

DECISION

The presence of cameras of all varieties in and about the

courthouse is an everyday occurrence. In the Eastern District

of North Carolina, the taking of photographs in the courtroom,

court offices, or in corridors immediately adjacent thereto is

prohibited by local rule. Local Rule 8.00, E.D.N.C. The cour-

troom in the Raleigh Courthouse is located on the seventh floor

of the Federal Building. Although the local rule prohibits the

taking of photographs on the seventh floor, it is not unusual for

photographers to be stationed in the lobby where the elevators

empty and out in front of the courthouse. Thus, the taking of

photographs of participants in a court proceeding if not an

everday occurrence is, at least, not an unusual occurrence.

Remmer involved a situation where a remark had been made

to a juror during trial that the juror could profit by bringing in a

verdict favorable to the defendant. Smith involved a situation

where a juror had made application for employment in the

prosecuting attorney’s office while serving as a juror in the

case. Other cases brought to the attention of the Court or

disclosed by its own research involve contact with or by ajuror.

None have been found in which it has been contended that the

jury was prejudiced because of an event not directly involving

a member of the jury panel.

The Court’s concern at the time of the incident was first, to

determine who the photographer was and second, to alleviate

any fears on the part of the juror that there was any threat to

his safety or well-being. Both of these objectives were accom-

plished with a mini: um of effort and without disruption of the

trial. When questioned, juror Deaton testified that he had no

apprehension or concern for his safety. He further testified

that the incident did not in ‘any way affect his deliberations or

decision as a juror and that he felt that it did not in any way

atfect the decision of the other jurors. He specifically testified

that after the Court assured him there was nothing to be

concerned about that the matter was not mentioned by him or

any of the jurors again.

The burden is on defendants to show bias on the part of the

jury. Smith v. Phillips, supra. This they have failed to do.

Defendants contend that the Court should have required all

of the jurors to be brought in as witnesses and subjected to

examination by the Court and cross-examination by the attor-

neys. The Court disagrees, finding that the testimony of the

juror was not mentioned again during the course of the trial or

jury deliberations. That being true, it is inconceivable to the

Court that any of the other jurors, not directly involved in the

incident, could have been prejudiced or influenced in any way.

The motions for new trial are denied.

AND IT IS SO ORDERED.

This 8 November 1982.

/s/ W. Ear! Britt

W. EARL BRITT

United States District Judge

APPENDIX C

AMENDMENT VI

In all criminal prosecutions, the accused shall enjoy the

right to a speedy and public trial, by an impartial jury of

the State and district wherein the crime shall have been

committed, which district shall have been previously

ascertained by law, and to be informed of the nature and

cause of the accusation; to be confronted with the witnes-

ses against him; to have compulsory process for obtaining

witnesses in his favor, and to have the Assistance of Coun-

sel for his defence.

Rule 30. Instructions. At the close of the evidence or at

such earlier time — the trial as the court reasonably

directs, any party may file written requests that the court

instruct the oy on the law as set forth in the requests. At

the same time copies of such requests shall be furnished to

adverse parties. The court shall inform counsel of its pro-

posed action upon the requests prior to their arguments to

the jury, but the court shall instru ’* the jury after the

arguments are completed. No party may assign as error

any portion of the charge or omission therefrom unless he

objects thereto before the jury retires to consider its

verdict, stating distinctly the matter to which he oye

and the grounds of his objection. Mey Gets mp shall be

given to make the objection out of the hearing of the jury

and, on request of any party, out of the presence of the

jury.

Rule 43. Presence of the Defendant. (a) Presence Re-

quired. The defendant shall be present at the arraign-

ment, at the time of the plea, at every stage of the trial

including the impaneling of the jury and the return of the

verdict, and at the iraposition of sentence, except as other-

wise provided by this rule.

(b) Continued Presence Not Required. The further

- ss of the trial to and including the return of the

ict shall not be prevented and the defendant shall be

combate to have waived his right to be present whenev-

er a defendant, initially present,

(1) Voluntarily absents himself after the trial has com-

menced ( whether’ or not he has been informed by the court

of his obligation to remain during the trial), or

10a

(2) After being warned by the court that disruptive

conduct will cause him to be removed from the courtroom,

persists in conduct which is such as to justify his being

excluded from the courtroom.

present in the following situations:

(1) A corporation may appear by counsel for all pur-

poses.

(2) In prosecutions for offenses punishable by fine or

by imprisonment for not more than one year or both, the

court, with the written consent of the defendant, may

permit arraignment, plea, trial, and imposition of sent-

ence in the defendant's absence.

ls (3) At a conference or argument upon a question of

(4) Ata reduction of sentence under Rule 35.

Rule 606. Competency of Juror as Witness. (a) Aft the

Trial. A member of the jury may not testify as a witness

before that jury in the trial of the case in which he is sitting

as a oo, f he is called so to testify, the opposing party

shall be afforded an opportunity to object out of the pre-

sence of the jury.

(b) Inquiry into Validity of Verdict or Indictment.

Upon an inquiry into the validity of a verdict or indict-

ment, a juror may not testify as to any matter or state-

ment occurring during the course of the jury’s delibera-

tions or to the effect of anything upon his or any other

juror’s mind or emotions as influencing him to assent to or

dissent from the verdict or indictment or concerning his

mental processes in connection therewith, except that a

juror may testify on the question whether extraneous

prejudicial information was improperly brought to the

jury’s attention or whether any outside influence was

improperly brought to bear upon any juror. Nor may his

davit or evidence of any statement by him concerning a

matter about which he would be precluded from testifying

be received for these purposes.

lla

APPENDIX D

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF NORTH CAROLINA

RALEIGH DIVISION

File No. 82-8-CR-5

UNITED STATES OF AMERICA

Vv.

JEFFREY CRAIG BUMGARDNER

GARY J. PEED

RONALD DoyLeE HINES

TERESA ELEAZER

JAMES MAURICE JACKSON

JAMES C. CODDINGTON

Trial Before

The Honorable W. Earl Britt

United States District Judge And Jury

Taken At:

The United States Courthouse

Federal Building

310 New Bern Avenue

Raleigh, North Carolina

Taken On:

Friday, September 3, 1982

Volume 9 of 9

Pages 1 to 142

‘ oS * *

12a

[124] courts. So if any of you feel that you are in any way

discriminated against as a result of your jury service, just let

me know and communicate with me or with the clerk of this

court. And I will see that something is done about that or I will

advise you what you can do about it.

Your notes that you took, little note pads that you had, you

may keep those ii you desire. If you don’t want to keep them,

you may leave them in the juryroom and we will dispose of

them. They are yours to do what you want to with. It’s up to

you.

When you start to leave, my law clerk will give you an

envelope that wiil contain in it a questionnaire. Since being on

the bench for some 2 and % years now, I have developed and

revised this questionnaire for my use and the use of others

associated with me in the court process, to try to make the life

of jurors a little easier. And the responses from some of your

fellow citizens before you has made it a little easier for you, I

hope, by getting some refres’ ents in the juryroom and a few

other things that probably have occurred as a result of ques-

tionnaires to other jurors.

So, the information you can give me there will be helpful to

me and to others in the court system. If you don’t mind filling it

out and sticking it back in that self-addressed envelope and

stick it in the mail and return it to me. However, if after 2 solid

weeks of late August and early [125] September, you’ve had

enough of this federal court, you may throw it in the first trash

can you see and you need not worry about the marshal coming

after you. I promise you I won’t do anything.

Finally, to say that it’s been my pleasure to serve as your

presiding judge during this 2-week period and I feel like I’ve

gotten to know you quite well. And I invite any of you to come

by to see me if you are in Raleigh and in or about the federal

court, I will be glad to talk to you about your jury service in

general or the court system in general.

When you leave, if you left your wraps or whatever in the

juryroom, you may go by and pick them up. I must ask also that

13a

you turn your little jury buttons back in. This is a period of

austerity, you know, where we're trying to protect the dollar

and we have to make that go further. So if you will, turn that in

to the marshal or the law clerk as you leave. And you may now

go with my thanks.

THE MARSHAL: May I approach the bench, your honor?

THE Court: Yes, sir.

(Unreported bench conference.)

THE Court: Members of the jury, an inquiry was made

during the trial to me by one of your number concerned about

some of you leaving the courthouse one day and [126] someone

snapping pictures out at the curbs and one that was in an

automobile. As I told Mr. Deaton the following morning, I

investigated that matter and determined that there was noth-

ing to be of any concern to any of you about what happened. I

found out the source of it, what it was and I assure you that it’s

nothing to jeopardize any of your health, welfare or security.

If any of you desire to learn more about that, you may

communicate with me in private later and I will be happy to

discuss it with you further.

All right. You may now leave.

(The jury was excused and exited the courtroom at 7:42

p.m.)

THE Court: What happened to the clock up there? It stopped

sometime. Mr. Wingo, do you have the pre-sentence reports?

Mr. WINGo: Yes, your honor.

THE Court: On all defendants? Before you pass them out, let

me make some inquiry. You can put mine on up here.

I do not propose to pass sentence tonight. With that in mind

and particularly with regard to you out-of-state lawyers, I will

be glad to hear you as to when.

l4a

Mr. KuPFERBERG: Your honor, I would be available at the

court’s discretion and I’m not sure a full

* * x

[137] are. Defendant Peed will be required to file a $25,000.00

unsecured bond because he is the only one that is on a personal

recognizance.

All defendants will be required to report to the nearest

probation office, not less frequently than once a week, except

of course, Mr. Jackson.

Mr. SHEPPARD: Mr. Jackson is in their hands 24 hours a day,

judge. And got more people waiting for him.

THE Court: I will advise you when the sentencing will be

scheduled. And you want to get any motions considered at that

time, I suggest you get them in early and submit them accom-

panied by briefs in support of them.

Mr. WALKER: Your honor, can I inquire for Mr. Bumgardner

right now, who is having to report to the marshal’s office every

day. Is he the—is this report to the probation office in addition?

THE Court: Yes, sir, that was not a change.

Mr. WALKER: Thank-you, your honor.

Mr. LAWRENCE: Your honor, with respect to Mr. Peed, can

we have until Tuesday to post that bond because of the lateness

of the hour?

THE Court: No, sir. The clerk is—it’s worse on her than it is

on you. She says she will stay and get it ready.

Mr. SHEPPARD: If it please the court, I [138] realize the

lateness of the hour, but I am very very concerned about the

communication with the marshal and the court and this

photographing situation.

THE Court: All right. I'll state everything I know for the

public record.

Mr. SHEPPARD: I would appreciate it.

lda

THE CovRrt: I did not do it at the time it occurred because I

didn’t feel that it would have been proper to do so.

The juror, Mr. Bryant Deaton, reported to the court one day

during the trial, I don’t remember the exact date, some con-

cern over the fact that as he and, I believe, he said the two

alternate jurors. One of them, I believe, is sitting back there

now, were leaving the courthouse, that they observed some-

one sitting in a car at the curb taking photographs, apparently

of them. And for that reason, they were somewhat concerned

about it.

And Mr. Deaton stepped on by the car and got the license

number and brought that to me. That was the only communica-

tion between Mr. Deaton and myself and it was in the presence

of my law clerk or somebody, one of the law clerks. In any

event, I told him I would look into it and not to worry about it.

I then called agent Al—I called—I had my law clerk to have

the FBI report to my office. I had agent Al [139] Kohler who

came to my office — K-O-H-L-E-R — and told him what had

transpired and to be sure to check into it. And the next morning

at 8:30, he reported to my office and had determined who the

person was who was taking photographs, the reason for it and

the fact that it was not of the jurors and had nothing to do with

the jurors.

And he satisfied me of that. At this time, I’m not at liberty to

say what else he told me, but it had nothing to do with freedom

or liberty of any of these defendants or their rights to a fair

trial. And I simply communicated then to Mr. Bryant Deaton,

in the presence of my law clerk again, that I had determined

much what I told here in the courtroom, that I had checked into

it and had determined that it was not involving them, that the

person taking photographs was not attempting to take photo-

graphs of them. And that he should not be concerned.

Mr. KuPFERBERG: I might indicate to the court that I, my-

self, had some photographs taken of me as I was leaving the

courtroom—the courthouse and so was Mr. Coddington. And

in fact, I called the police, that I was so apprehensive of that

Pee

—*

l6a

situation. The guard downstairs told me because they’re out-

side of federal property, that he could not investigate the

situation. And would indicate to the court, that eventually we

did find out who it was and that they were, in fact, involved ina

corollary of this case. I didn’t know [140] it was the jurors.

THE Court: Well, I haven't said anything about what was

done. The only thing I’ve said is, that what my determination of

the matter was, that it had nothing that would, in any way,

affect or jeopardize the right of any of the defendants to a fair

trial in this case or that involved the safety or well-being of any

of the defendants, as far as I know, any of the lawyers or any of

the jurors. At the time, I was concerned only, of course, with

the jurors.

Mr. KUPFERBERG: That was one of the reasons I was con-

cerned, your honor.

THE Court: So, at the appropriate time, I will be glad to

discuss it further with anyone. At the appropriate time that I

feel that I can. I can’t right now.

Mr. SHEPPARD: Could you make that appropriate time, your

honor, set the hearings or the sentencings and what have you,

at a time after that appropriate time, so that we might

determine—my concern is that if a juror walks out of the

United States Federal courthouse and people are taking photo-

graphs of them, in a case where they’re talking about people

getting knocked off and what have you, they think that it’s the

defendants. And I’m concerned about the court’s finding with-

out a hearing that it does not deprive the defendants of a fair

trial. Perhaps it does and there may be more in this than we

think. I’ve never run into the problem [141] and I appreciate

the court disclosing to us what you have, so that we might be

able to do some research and determine the appropriateness of

proceeding to get to the bottom of it. But it concerns me. I don’t

know who was taking pictures, but it surely is offensive.

THE Court: All right. Let’s take a recess.

(The proceeding was adjourned at 8:00 p.m., sine die.)

17a

APPENDIX E

[5] PROCEEDINGS 9:30 A.M.

THIS CAUSE CAME ON FOR SENTENCINGS BEFORE

THE HONORABLE W. EARL BRITT, UNITED STATES

DISTRICT JUDGE, AT RALEIGH, ON THURSDAY,

SEPTEMBER 30, 1982, AT 9:30 A.M.

THE Court: Madam reporter, we are here for the purpose of

hearing motions and sentencing hearings in the cases of Jeffrey

Craig Bumgardner and others, 82-8-CR-5. Mr. Bumgardner

himself is not here. And Mr. Walker, if you will state for the

record what you told me in chambers a moment ago about your

client?

Mr. WALKER: Your honor, I have been informed by the

marshal’s office that on the way to the airport last night, Mr.

Bumgardner was arrested for driving while intoxicated and is

presently in the Duval County Jail.

THE Court: Okay. Well, as I have indicated to you, we will

go ahead with the motion hearings and everything which, of

course, you may fully participate in. And I have a sentencing in

a related matter in Fayetteville next week, I think. You can

check with the law clerk and get the day and time. And see if

you can [6] get him sobered up and out of jail and up here for

that. If not, we will send the marshall and let him explain it.

All right. I think the best thing for me to do is to go through

the motions of the respective defendants seriatim and do what

I am going to do. I have read the written motions and memor-

anda, et cetera. It is my intention to rule on the motions as

submitted, with the exception of the motion for a new trial, et

cetera, with regard to the picture incident, on which the court

has arranged for witnesses to be here and to take testimony

and hear arguments concerning that.

Mr. Tew: Your honor, may I inquire as to whether or not the

court intends, in fact, to conduct such a hearing?

THE Court: Yes.

18a

Mr. Tew: I would request at this time your honor, that the

agent or agents who were present and the equipment that they

used be present during the hearing, so that the record can

reflect what, in fact, they did and what, in fact, they had at the

time the incident occurred.

THE Court: Well, the agents will be here, counsel. I am not

sure about the equipment. I will make a determination on that

when I hear their testimony. I have arranged for them to be

here.

* - ”

[17] evidentiary.

Do you have evidence that you think needs to be submitted?

Mr. Tew: No, sir. I just want to recount for the court the

evidence that was presented.

THE Court: Well, no. I heard the trial Mr. Tew. I was here.

No, sir. I can’t do that in fairness to the other attorneys. The

motions of the defendant Teresa Eleazer for a new trial and for

acquittal under rule are denied.

The motions of the defendant James Coddington numbered 4

in his document to incorporate the motions for a new trial filed

by co-defendants is allowed. The court will conduct a hearing

on the secorid motion, in which it is alleged the government

intimated and prejudiced the jury when its agents were in-

structed to take pictures of the participants of the instant trial,

which included at least two members of the jury panel.

Intimidation of the jury and counsel was so severe it caused

counsel for defendant Coddington to call the Raleigh Police

Department to investigate the taking of the former pictures.

The court will, as I have indicated, conduct an evidentiary

hearing on that. Otherwise, the Motion of the defendant Cod-

dington for a new trial is denied.

* = «

(20) Mr. KuPFERBERG: May I ask the court for a sequestra-

tion, your honor?

19a

THE Court: Pardon me?

Mr. KuUPFERBERG: May I ask the court for a sequestration of

all witnesses? I believe at least there was two people in that

automobile. And they are both here.

THE Court: All right. Mr. Koehler, I want you to come

around the take the stand. And the other FBI agents who were

involved in this please remain out in the hall. We will call you

when we need you.

Mr. SHEPPARD: Your honor, on behalf of Defendant Jackson,

may I ask the court to set in the record—I don’t really know

what is happening, and I don’t think the record does either.

I know that when I made inquiry at the conclusion of the trial

who was taking photographs, the court’s response—and I

think I can quote it—is “I am not at liberty to say.” Now we are

back n the record. And everybody knows who this fellow is.

But defendant Jackson's attorney doesn’t. And there is

obviously something going on here that I don’t know about.

THE Court: Mr. Sheppard, if you will give me time, I will try

to explain it to you.

Mr. SHEPPARD: Thank you, your honor.

[21] (Whereupon, Albert B. Koehler was called as a witness,

duly sworn, and testified as follows:)

THE Court: All right. I think I have stated most of this for

the record during the course of the trial or afterwards.

Mr. SHEPPARD: Your honor, on behalf of defendant Jackson,

I object to the court reciting facts in the presence of the witness

after the rule of sequestration has been invoked.

THE Court: Well, the objection is overruled, Mr. Sheppard.

Mr. SHEPPARD: Yes, sir.

THE Court: The court recalls that during the course of the

trial juror number 1 in the back row, Mr. Bryant Deaton,

indicated to either the marshal or one of the law clerks that as

20a

he and the two alternate jurors, as I recall, were going to lunch

that it appeared that somebody was taking their photograph

from a car parked at the curb in front of the Federal Building,

in which the courthouse is located; that he—that is, Mr.

Deaton—walked around the front or back of the car and ob-

served the license number, wrote it down, and then went on to

lunch.

[22] I had the juror, Mr. Deaton, brought into my chambers;

and in the presence of my law clerk or the marshall or both

inquired of him what had happened. He told me substantially

what I have just repeated. And he handed Mr. Marshal the

paper on which he had written down the license number. I

thanked him and told him I would look into the matter. And

nothing further was said.

I then immediately had my law clerk to call the FBI to send

someone down. In response to that, Agent Albert Koehler

came to my chambers. And I recited to him approximately

what I have recited in this courtroom at this present time.

Mr. Koehler returned to my chambers the next morning and

reported to me in sunstance that he had determined that the

people in the car were FBI agents; that they were taking

photographs of the two witnesses—or attempting to—who had

testified during that day, who had been called during that day,

and who were suspects in the pending drug operation; that

there was no intention to take photographs of anyone else. I

thanked Mr. Koehler and he departed.

I then, as I recall, had the juror Mr. Deaton—well, I had told

Mr. Deaton to check with me the next morning. And he check-

ed with my law clerk, as I recall. And I asked him to come into

my chambers. And I advised [23] him that the court had deter-

mined who was doing the photographing; and that the

photographing was not intended to be of jurors and should not

be taken by him as directed toward him in any way. And it was

something that he was not to be concerned about and not to

worry about at all.

2la

At the end of the trial, then, as I recall, in open court—the

record will show exactly what happened—one of the jurors

made some inquiry as to what the court had determined what

the picture-taking incident was or something to that effect. I

have got exactly what was said.

But in any event, as I recall, I also told the entire jury panel

that the incident did not involve them in any way and was

something they should not be concerned about in any way; and

that I was not at liberty at that time to tell what I knew about

it; that I had determined the true facts of the situation; and that

if they cared to look into it further later, if they would contact

me I would be glad to discuss it with them.

Quite frankly, the court perceived the incident as one in

which the jurors expressed some possibilities of fear for their

safety, maybe, and wondering what the event was about. And

when I determined that there was no reason for them to have

any fear of their [24] safety, I felt that that was the proper place

to put an end to it.

The question has now been raised as to whether that incident

in any way prejudiced the trial of these defendants. And for the

purpose of exploring that further, the court has set this Rem-

mer hearing and will follow the procedure of bringing such

witnesses to the stand whom I will question. And then I will

allow counsel to question them also.

Mr. Tew: Your honor, at this time, if you are through, I

would respectfully like to make a motion.

THE Court: All right.

Mr. Tew: I would move that your honor respectfully recuse

himself for this reason: You are, in effect, a participant in it.

And obviously, you determined at the time the incident oc-

curred that it had no effect because you allowed the matter to

go to the jury.

You have recited matters in the record which, in effect,

makes you a witness subject to testifying under oath and

22a

subject to cross-examination by counsel. Therefore, I feel that

it would be only fair, appropriate and p:uper that this court

allow some impartial judge who has no knowledge and has

certainly not participated to make the determination as to

what effect, if any, the events [25] had upon the jurors.

THE Court: I take it the rest of you counsel would like to join

in that motion?

Mr. SHEPPARD: The defendant Jackson joins.

MR. KUPFERBERG: Yes, sir.

THE Court: The Motion is denied.

MR. KUPFERBERG: Your honor, may I inquire as to one fact

that your honor stated—that you did, in fact, call Mr. Koehler.

Could your honor explain to counsel how your honor deter-

mined that the FBI was involved in this?

THE Court: I will get into that right now. You will see.

MR. KuPFERBERG: All right. Thank you, your honor.

Mr. SHEPPARD: Your honor, may I make two other inquiries

to the court with regard to the factual recitation? I am con-

fused. You stated that jurors expressed the possibility of fear

for safety. But I only heard you talking about one juror

communicating with the court.

THE Court: No, sir. No, sir. I said that I perceived it. My

perception of the whole incident was only that there might

possibly have been—no juror has told my anything about any

fear of safety.

[26] Mr. SHEPPARD: Thank you, your honor. The second

thing, your honor: You said at the end of the trial that a juror

asked about the problem.

THE Court: That was from the jury box. Whatever was said

was said here in your presence. The record will reflect exactly

what it was.

Mr. SHEPPARD: Well, I am not sure the record is going to

reflect which juror. And what I am trying to establish is that it

23a

was not Mr. Koehler that made the inquiry at the conclusion of

the trial, if that is the court’s recollection. That is mine.

THE Court: There is no juror named Koehler.

Mr. SHEPPARD: I mean—excuse me—Mr. Deaton.

THE Court: Well, I don’t know who it was. The record will

reflect, I take it.

Mr. KUPFERBERG: It was my understanding, your honor,

that it was the foreman.

THE Court: Sir?

Mr. KUPFERBERG: It was my understanding that the mar-

shal indicated it was the foreman.

Mr. SHEPPARD: Who was not Mr. Koehler—l mean Mr.

Deaton. But I am not sure the record does reflect. That is why I

am asking.

THE Court: Mr. Franklin Wright was the [27] foreman. I am

not expressing any comment at this time as to who made the

inquiry at that time. If the record doesn’t reflect, then some-

thing will have to be done to cure it.

Mr. SHEPPARD: Well, rnaybe now is the time to try and cure

it, rather than four years from now, judge.

THE Court: Well, Mr. Sheppard, the only way I know is we

will ask Mr. Deaton when he comes in. And if he doesn’t know,

the only other way is to subpoena all the other jurors. And I am

not prepared to do that right now. How else do you propose?

Mr. SHEPPARD: I think that the Remmer case and the Smith

v. Phillips, decided at the last term of the United States

Supreme Court, contemplates exactly that. That is my point.

THE Court: Well, I disagree.

Mr. SHEPPARD: Someone has evaluated what we need. And I

think that bolsters Mr. Tew’s position. I can’t conclude that it

vas anyone other than the court that has evaluated what we

need for the hearing. And we as lawyers—

24a

THE Court: (Interposing) That is exactly right, Mr. Shep-

pard. I do think it is important for somebody to evaluate what

is needed. And if after [28] this hearing I feel that it is neces-

sary to inquire of any of the additional jurors, then I may very

well do that.

Mr. SHEPPARD: Fine.

THE Court: If you lawyers will give me an opportunity to

proceed with what I am trying to do without second-guessing

me before I even get a chance to open my mouth.

Mr. SHEPPARD: Judge, respectfully, I am not trying to

second-guess anybody. I am trying to represent my client.

THE Court: Just have a seat, Mr. Sheppard. Have a seat.

EXAMINATION 10:12 A.M.

BY THE COURT:

Q. Mr. Koehler, do you recall when the court called you to

chambers during the course of this trial?

A. Yes, your honor; I do. It was in the late afternoon.

Q. All right. Was anyone with you?

A. Yes. When I came to your office, it was Special Agent

Judson Wray.

Q. All right. As best you recall, please recount for the

record what the court told you and what you told the court.

(29) A. Yes, your honor. I came into your office. And you

said that a juror during a trial that you were presently involved

in thought that someone was taking photographs outside of the

Federal Building; and that the juror had written down what he

thought was the license number of the vehicle that two in-

dividuals were parked in taking the photographs.

He thought it might have been somebody taking a photo-

graph of him—the juror—and that he was walking with an

alternate or a juror when he was coming out at lunch breach.

25a

Q. Doyourecall any response you made to me at that time?

A. Yes. I told your honor that we would immediately try to

find out who was taking the pictures; and if it was possible, if

we needed to interview the juror that we could do so. And you

said to attempt to determine who it was, and then that if need

be that you would make arrangements to have the juror in-

terviewed the next morning. And I said we would know who it

was by tomorrow morning.

Q. Do you recall whether I gave you anything?

A. Yes. You gave me a slip of paper which I believe you

said was what the juror had written down or what was the

license number. I believe it was ZTL 488 [30] with a North

Carolina plate. And I believe that even the color of the car was

on it. It was a dark sedan.

Q. All right. What did you do then?

A. Well, limmediately went down to our office on the sixth

floor of this building here and ran a Department of Motor

Vehicle check on the license number that was handed to me.

And it was not in file. And I looked at the aumber. And I

believe it was “ZTL” which was written down.

And when it was not in file, it occurred to me that most of our

FBI cars in the Raleigh area are prefixed by “ZLT.” And I

figured the juror might have gotten it backwards in his haste to

write the number down.

And I checked our list. And it was one of our vehicles with

the letters reversed. And it was assigned to agent Jim Roche.

And I knew that he works narcotics matters from our office.

And I got a hold of Mr. Roche. And he said yeah, he was outside

the building on that afternoon attempting to take a photograph

of two witnesses who had either testified that day or at some

time during the course of the trial.

He said he was trying to get a picture of one of them because

he already had some photographs of the other. But they were

together. And he was attempting to try to get a photograph of

26a

one because of an ongoing [31] narcotics investigation. He had

no photograph of that individual.

He was in a car with a United States customs agent—a

female customs agent.

Q. What was her name?

A. I don’t recall her name right now, sir. She was in the

courtroom. He also said that he did recall that a juror walked

by at the time he was taking a picture. because he had been

present—Mr. Roche had been present in the courtroom for

some of the proceedings and had recognized the juror walking

by.

He said he was certainly not taking a picture of the juror.

And he does recall the individual walking by the car—the juror

walking by the car with, I think he said, a female alternate.

And he said he could understand why they thought that he was

taking a picture of them, because they walked in front of the

two individuals he was trying to take a picture of.

I then brought Mr. Roche up to your honor’s office the next

morning. And he reiterated that he was, in fact, the individual

that was taking the pictures.

Q. Did he say who the witnesses were whose picture he

was seeking to take?

A. Yes, your honor. But I don’t recall their names right

now. I think he said he was one of them that [32] took the Fifth

during the proceedings.

Q. All right. Now, the next morning you state that you

came to my office and reported back to me?

A. Yes, your honor. It was about 8:30 in the morning.

Q. Did you tell me at that time substantially what you have

told here?

A. Yes, your honor.

Q. At any time, did you make any contact with any of the

jurors?

27a

A. No, your honor. I told you at that point it would not be

necessary for us to talk to the jurors.

THE Court: All right. Mr. Dixon, do you want to ask him any

questions?

Mr. Dixon: No, sir.

Mr. KUPFERBERG: Yes, Sir.

CROSS-EXAMINATION 10:17 A.M.

BY MR. KUPFERBERG:

Q. Doyouknow why the photographs were not taken inthe

courthouse?

A. No, I don't.

Q. Are you aware there is a rule against taking photo-

graphs on Federal Courthouse property?

THE Court: Well, why don’t you confine

- «x =

[57] Q. Was Agent Rowley under the driver’s—

A. (Interposing) she was.

Q. Was the driver? During the course of the time that you

were attempting to take photographs, do you recall ever hav-

ing in focus any of the jurors or a person you recognized as a

juror?

A. Yes, sir; I do.

Q. Tell me about that. How did it happen? And what did

you do?

A. At the time of day that it was—approximately quarter

of 5:00, to the best of my recollection—I was sitting in the

passenger side of this automobile with the window rolled

down. It was parked in the second parking meter west of the

newspaper boxes.

28a

And the traffic exiting the Federal Building was fairly

heavy. I had been given the camera by the individual in the

office who is familiar with that kind of thing. I am not familiar

with cameras. I know if you push a button, it takes a picture.

Other than that expertise, I have none.

So I was attempting to set the focus so that I could clearly see

the individuals who were exiting the doorway of the building

some distance from me, among which I recognized jurors—

most of which had buttons still on them when they came out of

the door. I recognized some [58] defendants and defense attor-

neys, all of which or during which part of the time I probably

had the lens up to my eye attempting to correct the focus of the

camera.

I did not photograph any juror or defense attorney. I was not

interested in it.

Q. Whom did you photograph?

A. Iattempted to photograph Brown Costello Ramey and

Douglas Freeman Ross. I attempted, in a humorous vein, to

photograph assistant United States Attorney Dixon. None of

my pictures were successful.

Q. None were?

A. Well, if you judge a picture on clarity and focus and

identifiability—no; none were.

Q. When you developed the pictures, were there any

photographs of jurors?

A. None that I could recognize.

Q. Do you recall how many occasions you were out in front

of the courthouse taking pictures?

A. Just that one occasion on that one date at that time.

Q. Well, during the course of this trial of the United States

v. Bumgardner and others to which we are referring, were you

in front of the courthouse of anyplace around the courthouse

taking any photographs that may have been in the presence of

any of the jurors in that case?

[59] A. Yes, sir.

Q. When and where?

A. On the date we have been referring to—

Q. (Interposing) Other than on that date?

A. No, sir. No, sir. That was the only occasion I was out

there or anybody else was out there under my supervision.

THE Court: Mr. Dixon?

CROSS-EXAMINATION 10:50 A.M.

BY MR. DIXON:

Q. Who had instructed you to go take photographs or at-

tempt to take photographs?

A. No One.

Mr. Dixon: No further questions.

THE Court: Mr. Kupferberg?

CROSS-EXAMINATION 10:58 A.M.

BY MR. KUPFERBERG:

When were you first aware that Mr. Ross and Mr.

ey were going to be at the courthouse?

Who made you aware of that?

I don’t know.

Did you just happen to be sitting in on the

~ *« x

[84] Mr. Rocue: Yes, sir.

THE Court: Bring the juror Mr. Deaton in please.

(Whereupon, Bryant Lee Deaton was called as a witness, duly

sworn, and testified as follows:)

Ram

A. I can’t tell you what day, sir.

eee

30a

EXAMINATION 11:28 A.M.

BY THE COURT:

Q. Mr. Deaton: I have asked you to come here today to ask

you some questions concerning the trial of the case of the

United States v. Jeffrey Craig Bumgardner and others, which

you served as a juror in. And you will recall that during the

course of that trial, you reported a photograph taking incident

to one of my law clerks. Do you recall that?

A. Yes; I do.

Q. Tell me as best you can recall what happeened on that

date.

A. One afternoon after leaving the court walking through

the main entrance doors, I observed an individual sitting in a

brown Chevrolet—it appeared to be—taking pictures. Now, I

really didn’t know if he was taking pictures of the jurors—of

several of us walking together (85) or if he was taking a picture

of someone in front of us or behind us. It didn’t really matter to

me. I just wanted to know. So I walked around to the back of

the car and took the license number down on a checkbook and

brought it back up to you.

Q. Allright. And now recall as best you can what you told

my law clerk. Did you tell my law clerk essentially what you

just told me?

A. Yes; I did.

Q. Do you recall anything different that you told the law

clerk then other than what you have just summarized?

A. No. I think that is all I really knew about it—that

someone was taking pictures. And I think I may have de-

scribed that there was a female driving the car. This person

was sitting on the passenger side. And I really didn’t get a good

look at the person. That was about it.

A. Allright. And did the law clerk shortly come back and

bring you to my chambers?

—

3la

A. Immediately.

Q. Allright. Do you recall what was said in my chambers?

A. Yes. You said you would look into it immediately; that

you were concerned about it; and that you [86] wanted to

assure me that you would take whatever action necessary to

find out; and that you would get back with me as soon as

possible. And so, you know, the next morning when I came in,

you called me—

Q. (Interposing) Wait a minute. At that time—was any-

thing else said that day between you and me, the best you

recall?

A. No, sir.

Q. My lawclerk, Ms. Umstead, I believe was in the cham-

bers with us at that time?

A. Yes, sir.

Q. All right. Now, the next morning you say you were

called into my chambers again.

A. Yes.

Q. All right. Now, do you recall what was said the next

morning?

A. You said that you had looked into the matter and that

you wanted to assure me that there was nothing that I should

be concerned about, nor any of the other jurors; and that you

would discuss this with me after the trial; that you would prefer

not to now. And I said, “fine.”

Q. Is that all that was said?

A. Yes, sir.

Q. All right. Do you recall who, if any, other [87] jurors

were with you at the time you went out that door?

A. Idon’t remember. It seems like one of the alternates

that we had.

Q. A lady?

A. Yes. And I don’t remember which one right now. As I

was walking up toward the car and walked behind to record the

license plate number, I made the statement, “well, you saw

that, too.” But I don’t know if I even said anything to you about

that. But [ just remember that statement.

Q. All right. Do you recall any photographing incident

occurring before or after that?

A. No.

Q. Did anybody during the course of the trial or since the

trial make any comments to you about the photographing

incident that you recall?

A. No; not at all.

Q. Did you talk with any of your fellow jurors about it?

A. Yes; I did.

Q. Do you recall who or how many or all of them or what?

A. I think in just general conversation after I left your

chambers the morning you told me you had looked into it. I

went back and just sort of in general [88] mentioned what had

taken place; and that you had assured me everything was okay.

Q. Well, do you recall thereafter whether it was discussed

by any of the jurors or not?

A. No, sir. It never was mentioned again.

Q. It was not mentioned again?

A. No, sir.

Q. Was it mentioned at all during your deliberatons—

during the time you were deliberating the guilt or innocence of

the defendants’

A. No, sir.

Q. Asaresult of that incident, did you at any time have any

apprehensions or fear for your safety?

A. No; I didn’t.

Q. Did you have any apprehensions or concern about your

serving on the jury?

A. Not at all.

Q. Following the verdict and the taking of the verdict here

in court, someone made an inquiry about the incident. Do you

recall that being in open court?

A. After the—

(Interposing) Verdict?

A. Yes; I.

Q. Were you the one that did that?

A. Yes.

[89] Q. What is your recollection of what I told you at that

time?

A. You said that—you basically repeated to me at that

time what you had said in your chambers—that you wanted to

assure us that everything was okay; that you had looked into it;

and that our safety was not—

Q. (Interposing) Threatened?

A. Threatened.

Q. Did I at that time disclose to you the source of the

photographing incident?

A. No, sir; you didn’t.

Q. Have you as of yet found out the source of the

photographing incident?

A. No. That is one of the things that I was hoping that I

would be able to get clarified today.

Q. Did you inquire of me when you first got here this

morning?

A. Yes.

Q. Did I tell you anything?

A. No. You said that you would prefer not to discuss it.

Q. Now, Mr. Deaton, do you feel, having been extensively

questioned by the judge before you proceeded to serve as a

juror on this case concerning your qualifications and the im-

portance of having a fair and an [90] impartial jury; and con-

sidering the evidence you heard in the case and my instructions

to you as to the law—that the incident that occurred on that

day in any way had any effect whatsoever on your verdict as a

juror in this case?

A. No. After you assured me that you had looked into it

and I felt like you knew the source. Then It was no longer a

concern for me. Now, I think had I not had that reassurance, it

may have been a problem. But in this case, it was not.

I didn’t think anymore about it. I was curious, you know.

And that is why I asked after the deliberations.

Q. And you say after you went back following my assur-

ance and told the other jurors what you had determined that it

was not discussed among you as jurors after that?

A. No.

Q. All right. Well, based on your total involvement with

the jurors—and this case lasted what, approximately two

weeks?

A. Yes, sir.

Q. Based on your total involvement with the jurors, do you

have any feeling or any reason to believe that it had any impact

at all on the jury totally—the deliberations of the jury in the

trial of this case?

[91] Mr. Tew: Objection. I object to the question, your

honor.

THE Court: The objection is overruled. You may answer.

35a

THe Witness: It is my opinion that it did not have.

By Tue Court:

Q. Do you recall when during the course of the trial that

was? I suppose the time gets confusing over a period of time.

A. Idon’t remember. I think it was in the second seek. But

I am not even real sure of that. It just sort of happened. And it

was over.

Q. Through your communications with me, Mr. Deaton,

was my law clerk Ms. Umstead present at all times?

A. Yes, sir.

Q. Was anyone else present?

A. I don’t think so.

THE Court: All right. I am going to allow the attorneys in

the case now to ask you some questions about this. So try to

answer them as truthfully and forthrightfully as you can. Mr.

Dixon?

Mr. Dixon: I don’t have any, your honor.

Mr. KUPFERBERG: Your honor, may I for the purpose of

expediency reserve my cross so as not to [92] duplicate other

counsel?

THE Court: Yes, I was going to start at the opposite end and

let Mr. Walker start.

Mr. WALKER: No questions, your honor.

THE Court: All right. Who have we got next down there—

Mr. Talton?

CROSS-EXAMINATION 11:40 A.M.

By Mr. TALTON:

Q. Mr. Deaton, I believe you testified that this did not

effect any of the other jurors—this picture-taking incident—

the other jurors; is that correct?

Mr. Tew: Objection.

THE Court: Overruled, Mr. Tew.

Q. THe Witness: That was my opinion; yes.

By Mr. TALTON:

Q. Had you discussed this with any jurors after this time?

A. The only thing I can recall is that immediately after

returning from the judge’s chambers, I went back in and re-

layed the message that he had given me, because before I had

walked into the office, I had sort of just briefly told them what I

was going in there for.

So when I went back in, I explained that the judge said

everything was okay. So then in my best [93] memory, that was

the last it was discussed.

Q. Soreally, you don’t know what went on in the minds of

the jurors when you told them that or what?

A. No; I don't.

Mr. TALTON: No further questions.

THE Court: Mr. Tew?

CROSS-EXAMINATION 11:41 A.M.

By Mr. Tew:

Q. Can you relate what you became concerned—not by the

fact that the pictures were taken, but the fact that there were

being taken caused you to be concerned? Can you verbalize

that concern?

A. Well, I think given the nature of the case, that I was

concerned that there might be some reason that someone

would like to know something about the jurors or have pictures

of them made. I think it is a natural reaction.

Q. Your concern basically was for your own personal wel-

fare; was it not?

A. Yes; it was.

Q. Would it be safe tc say that you were somewhat scared?

A. I think that is—i was scared. Well, yes, sir; sounds

good.

[94] Q. When you first saw Judge Britt and discussed this

with him, where were you?

A. We were in his chambers.

Who else was present?

The law clerk.

Which one?

That voung lady.

i i a

THE Court: Susan Umstead.

By Mr. Tew:

Q. Was anyone else present at that time?

A. Not that I recall.

Q. How long did this conversation last?

A. In total, I think it must have been ten—maybe eight to

ten minutes or somewhere in there, because I originally came

in looking for the marshal. And she said I should—I cornered

her. I said, “where is the marshal?” And I sort of explained

what I needed. She said, “Well, I think we ought to go see the

judge.” So that is the only reason it took that amount of time.

Q. The fact that you were escorted in to see the judge about

this photographing session—did that cause you an even great-

er concern about what had been going n?

A. No; not at all.

Q. The fact that the judge as opposed to the marshal?

[95] A. Ijust thought he would have been too busy to have

handled it.

38a

Q. And I believe, if you will relate again—didn’t you talk

with the other jurors immediately after talking with Judge

Britt about what had taken place?

A. Yes; I did.

Q. Can you relate any specific remarks that any particular

juror made at that time?

A. 1 will summarize what I think the feeling was. I don’t

remember particular remarks, I think some of them, were,

just as I was, concerned. And then when I came back and

relayed the message, it was not discussed.

Q. But at the time—

A. (Interposing) I don’t remember any specific remarks.

Q. But their concern, then—your testimony is their con-

cern was basically the same as yours? And that is your personal

welfare and safety?

A. Yes.

Q. When you were questioned by Judge Britt initially, can

you recall what he asked you specifically?

A. Well, he appeared to be concerned. He said he would

look into it immediately. And he would get right back with me.

That is the general—I don’t remember.

Q. But do you recall the questions that he asked

= x -

(99) A. No; I don’t recall.

Q. Now, did you tell any of the other jurors that you had

gotten the license number of the car?

A. Yes. In fact, just before I walked into the judge’s

chambers—you know, I had just come in myself. And I sort of

relayed what took place the afternoon before briefly. I said I

had gotten the license number and given it to the judge. The

judge was going to look into it and was supposed to get back to

me immediately.

39a

About that time, Susan came in and said, “the judge wants to

see you.” So I walked out.

Q. Would it bea fair statement to say that every member of

the jury panel was aware of the fact that you and possibly

others had possibly been photographed as they were leaving

the courthouse?

A. Yes.

Q. And would it be a fair statement to say that every

member of the jury panel knew that you had gone to thetrouble

to get the license number of the car and reported this to the

court.

A. Yes.

Q. And would it bea fair statement to say that to the best of

your knowledge, you were the only one who personally re-

ceived assurances from the court that there was nothing to

worry about?

{100} A. Yes.

Q. So any assurances that the other jurors might have

received came through you from the judge?

A. Yes.

Q. All right. Now, did you specifically ask the other jury

members whether or not that had allayed all their fears?

A. No.

Q. Soyou don’t know whether or not they felt as assured as

you did? .

A. No.

Mr. LAWRENCE: I have no further questions.

THE Court: Mr. Sheppard?

40a

CROSS-EXAMINATION 11:50 A.M.

By Mr. SHEPPARD:

Q. If it please the court—good morning, sir. When you

first experienced this incident, you have indicated you had

concern? And then it was developed it was concern for safety

and other concerns? Who did you think would be the perpetra-

tor of anything that would affect your safety? What was going

on in your innermost mind as to who was behind all this—you

are in a lawsuit and you are a juror—the United States of

America or the defendants sitting over here at these tables?

[101) A. The defendants?

Q. It didn’t enter your mind at all that the government

would be doing you bodily harm?

A. No.

Q. And I realize you have been very tasteful in

communicating it. But I want to be sure that I understand what

was going on in your mind. Is this an accurate summary of what

your apprehension was: That someone was taking photographs

of the jurors, so that if they voted “guilty” that someone might

come do them bodily harm?

A. Yes, sir.

Q. That was what you were afraid of?

A. Yes.

Q. And that fear abided with you for a period of time?

A. Until the next morning; yes.

Q. Well, a period of time overnight?

A. Okay.

Q. It abided with you during that period of time, from the

afternoon experience until you had your communications with

the court?

S|; Fee,

4la

A. And you took the court’s word for it that it knew what

was going on and would control it, even if it [102] didn’t know

what was going on?

A. Yes.

Q. Could you hear any mechanical noise, such as the shut-

ter on the camera as you were experiencing this incident?

A. No.

Q. Could you estimate as best as possible the number of

individuals—as you put it, you were kind of “the leader of the

pack,” meaning that you were walking physically in front of at

least a portion of the jury. Can you tell me approximately how

many members of the jury observed you as the leader of the

pack leading the pack to go look at the tag number on a car or

get a tag number of a car, and who would have been in earshot

of the other juror who said, “you saw that, too”?

How many members of the jury were you talking about

there?

A. There were only five or six of us that were going out

together. And of that group, I don’t remember except for that

comment I have stated twice before, that anyone really at that

time paid any attention to it.

Q. But you couldn't say that they didn’t?

A. No; I couldn't.

Q. Pick up on what was going on and out of further appre-

hension, didn’t want to let anybody know they

= - od

[106] really discussed that extensively?

A. No.

Q. Other than—pardon me?

A. Yes. That was my testimony.

Mr. SHEPARD: No further questions, your honor.

42a

THE Court: Mr. Kupferberg?

CROSS-EXAMINATION 11:59 A.M.

BY MR. KUPFERBERG:

Q. Mr. DEATON, would it be fair to say that the judge never

told you that this incident had nothing to do with this case?

A. That is fair.

Q. So up until this morning, you were still under the im-

pression that this photographic taking session had something

to do with this case?

A. Would you like to know what I really felt, or just answer

“yes“ or “no.”?

Q. Well, I would like you to answer “yes“ or no” and then

go ahead.

A. Okay. Repeat that again. Let me make sure I get it.

Q. Would it be fair to say that up until this morning, you

were under the impression that this [107] photographic taking

session had something to do with this case?

A. Yes.

Q. Explain.

Q. My assumption was after the judge had said that every-

thing was okay that it was something to do with either the SBI

or the FBI or some law enforcement agency.

Q. Why did that come to your mind?

A. Well, I guess it is just sort of a deduction. I believe my

immediate thought—“well, if it wasn’t the defendants, then it

must be the prosecutor.”

Q. And when you made that deduction, what caused you to

make the deduction as far as why the FBI would be taking

pictures of the jury?

A. Well, I don’t know if there is a lot of logic to it. That is

just what I thought.

43a

Q. Did you feel that the government might have been

taking pictures of the jury because they wanted to have a

record of who sat on this case?

A. No. I guess that what I really had in mind or might have

thought was that well, maybe it was somebody in front of me or

behind me. Maybe it wasn't actually me that they were taking a

picture of. Maybe it was—

Q. (Interposing) You came to that assumption

- « x

[116] A. 12 to 15 inches.

Q. So you are describing that there was lens on this

camera, a long lens of 12 to 15 inches sticking out from the 35

millimeter camera; is that correct?

A. That is correct.

Q. Would you describe the size of the 35 millimeter camera

as a camera that is approximately 3 inches by 5 inches and is

rectangular and about an inch and a half thick without that 12to

15-inch telescopic eye—lens?

A. I would.

Q. Mr. Dixon came upon the scene at some stage of the

program and communicated with you; did he not?

A. Yes, sir; he did.

Q. What did he say?

A. I don’t remember the exact words.

Q. Give me your best recollection of the substance of the

conversation with Mr. Dixon.

A. AsI have testified, sir, he inquired as to the nature of

what I was doing out there. And I informed him. And then he

thereafter informed me that Ross and Ramey were in the

marshal’s office and would be on their way dowm thereafter.

Q. Kind of wished you well in your venture?

dda

A. I don’t recall him doing that.

* - *

(122) citizen?

A. Yes, sir.

Q. Is it your testimony that on the occasion as you were

focusing the camera as people were exiting the front door of the

Federal Courthouse that you observed buttons on the lapel of

some or on the clothing of some?

A. Yes, sir.

Q. And not buttons that you put in buttonholes, but a

different kind of button? Would you describe that button?

A. It was a button of approximately the size of a quarter,

white background and, I believe, perhaps blue letters. And it

said “Juror”.

Q. “J-U-R-O-R?

A. Yes, sir.

Q. In your mind’s eye, can you recall approximately how

many of those buttons came into your field of vision on the

afternoon of this incident?

A. Half a dozen.

Q. How long have you worked in the Federal Building in

Raleigh, North Carolina, approximately?

A. Since the date shortly after it opened.

Q. And from your working in this building, do you know

what those buttons represent?

A. That that individual is on a jury.

* * baal

[141] jury, as well as my advice to my client in this case, had

some effect or was affected by the people out in the car. I can

candidly tell your honor that I didn’t know who those people

were.

bee ce

45a

THE Court: I understand. What do you mean? Well—

Mr. KuPFreRBERG: (Interposing) And that I was told by

agent Johannesen after I had called the police—he had come

down in the elevator. And I said, “who are the people outside

taking pictures?” And before he had even looked outside, he

told me it was the FBI.

THE Court: Well, tell me how that affected your advice to

your client. What do you think could be proved by this witness

that would enhance that any?

Mr. KupPrersBerc: After he found out it wasn’t Ross or

Ramey—which that was my fear originally—and we found out

it was the FBI, the question was posed to me by Mr. Codding-

ton, “why are they taking my picture?” I said, “Jim, I really

cannot explain that to you, because I am not real sure.”

He said, “well, could it be that there will be some repercus-

sions?” And I said, “well, I can’t tell you. I would assume that

there might be some repercussions. And they want your pic-

ture for some particular reason.”

[142] and the reason I assume that is I have had discussions

with an FDLE Agent involved in this case—and I am sure Mr.

Dixon was present—when there was some discussion as to

whether they should seize his car as part of the penalty in this

case—a number of things.

THE Court: Well, none of that—it doesn’t seem to be, Mr.

Kupferberg—goes to the question of whether he has had a fair

trial or not or relating to any motion before me.

Mr. KuPFERBERG: Well, it was part of the discussion as to

whether he should take the stand in his own defense and

whether there would be repercussions for his testimony by the

government by placing further charges against him.

I am not saying that that was a major issue. But we did

discuss it. And it was discussed particularly because of this

FBI issue.

46a

THE Court: Are you telling me—are you representing to

this court as an officer of the court that the defendant did not

take the witness stand because of that incident?

Mr. KuPFERBERG: What I am telling your honor is that it was

part of the discussion. The reason he didn’t take the stand wasa

cumulative effect of what the evidence was. And I think your

honor knew why we were participating [143] the way we were

in this trial. I have made that fairly clear from the outset.

But I can tell the court with all candor that I would never

have called the police in this case had I not felt that there was

some possible harm either coming from Mr. Ross or Mr.

Ramey to me because I had found them for Mr. Coddington.

THE Court: I can understand that. And as it may relate, if I

had a matter before me of investigating the FBI for what they

did, Mr. Kupferberg, I can understand its relevance.

But unless you can tell me that your man didn’t take the

stand because of it or gave up some right that he had or if it in

some way impinged his right to a fair and impartial trial or that

it affected this jury in some way, then I fail to see the relevance

of it at this hearing.

Mr. KuPFERBERG: Weil, | can with all honesty tell you that it

did impair his trial just from the testimony of this witness. And

I am not sure which way your honor is going to lean as far as the

juror himself saying that he was scared of the defendants in

this case. We are not talking about a murder case. We are

talking about a drug case.

I can tell you that we did have a discussion [144] as to what

evidence we would put on and what relevance the FBI taking

pictures of Jim Coddington had. I couldn’t give him an answer

why they took his picture. And I don’t think the court can. And

I am not sure that anybody else can.

But out of all the people in this case, there was a juror who

had a camera pointed at him. I can tell your honor that my wife

also had the camera pointed at her. But I can tell you that they

took a picture of Mr. Coddington, knowing full well that he was

47a

a defendant in this case, and did so with such an attitude—and

the reason I asked the question about laughing was it gave him

the impression that there was something more to it than just

them kidding around.

And I had no explanation for it. I don’t think—to be candid

with the court, I am not sure that this gentleman here can give

an explanation. And I am not really sure Ms. Rowley can give

an explanation.

But what I am trying to say to the court is that there is a fine

line that the court has to say, “well, we are not going to let this

happen,” because of the apparent impropriety just from the

mere fact that it was done. And what effect it may have had on

his presenting evidence or not, I couldn't tell you whether it

was 10 percent or 2 percent or 1 percent, your honor.

[145] And I am not going to tell your honor that it had any

percentage difference, because of what I presented to your

honor as to the reason that we were sitting here and not in the

court trial and sitting, as opposed to a jury trial. I can’t tell your

honor that.

But I can tell your honor that I didn’t know it was an FBI car;

that I was apprehensive: and that it scared the hell out of me as

well as Mr. Coddington at the time it was done. And the fact

that a photograph was taken, I think, is rather significant.

What I would like to do is put Ms. Rowley on the stand and

ask her about the picture taken of Mr. Coddington, their repar-

tee during that period of time, and that is it.

Tue Court: All right. Bring her in.

Mr. Kuprersers: I think the court should also inquire of Mr.

Johannesen as to his rule in this.

Mr. Tew: Your honor, in line with that and further along

those lines. prior to the court making any determination as to

the effect of this, either as it may have affected the delibera-

tions of the jurors or as misconduct by the government in the

conduct of the case, | would request that the court initiate an

investigation into it.

48a

And the reason is this, your honor: we have [146] got a man

who has been investigating for years who testifies, somewhat

incredibly, that he can’t operate a camera to do an important

act. And his recollection of things is so convenient and to me

certainly does not explain a lot of things. We have got a

contradiction—

THE Court: (Interposing) Mr. Tew, you say you are request-

ing that I investigate it?

Mr. Tew: I request that this court order an investigation

into that to determine the origination of it and the location of

things, such as the roll of film or the documentation of those

things.

THE Court: For what reason? With regard to what pending

motion I have in this court do you want that done?

Mr. Tew: Your honor, in the sense of fair play and justice, in

that these defendants are entitled to a fair and impartial trial.

And if it is attributable to the prosecution, then that goes

another step further.

And I don’t know. I can’t determine from the testimony that

we have, which I feel is somewhat inherently incredible and

contradictory, that this court or anybody could make a fair

determination as to who ordered or participated.

Tue Court: Well, okay. I understand [147] your position.

Young lady, come around and be sworn, please.

(Whereupon, Susan Rowley was called as a witness, duly

sworn, and testified as follows:)

Mr. Kuprerserc: Your honor, there is a rule on witnesses. I

ask that Mr. Roche not remain in the courtroom.

Tue Court: He has already testified.

Mr. Kuprersers: I understand that, your honor if there

happens to be something that comes out of the mouth of this

witness that has to be clarified—

49a

THE Court: (Interposing) All right, Mr. Roche. Step outside

the courtroom, please.

EXAMINATION 1:50 P.M.

Y THE COURT:

e your name, please, Ma'am.

A. R-O-W-L-E-Y.

Q. By whom are you employed?

A. United States Customs Service out of Wilmington,

North Carolina.

* * *

[169] event mention the taking of photographs for the pur-

poses of identification or files?

A. No.

Mr. Tew: No further questions.

THE Court: Mr. Talton?

Mr. TALTON: No questions.

THE Court: Mr. Walker?

Mr. WALKER: No questions, your honor.

THE Court: You may step down, young lady.

(Witness excused. )

Tue Court: All right. At this time, does any—well, Mr.

Kupferberg, I guess I am still with you. You requested that I

call this one. Do you have any further witnesses you request to

call in this matter?

Mr. Kuprerserc: | think it is incumbent on the court—the

court is going to make a decision in this case based upon the

upinion of this particular juror. Whether the court can do that

50a

or not, I am not real sure. And I think the court must cajl the

other jurors in and inquire of them. I think that is incumbent

upon the court. It might not be. in my opinion, it is.

And although it may cause us to come back once again—

THE Court: So you would like the \other [170] 11 jurors

ed?

Mr. KUPFERBERG: Yes.

R. SHEPPARD: I3-——_ =

Mr. Kurrenness15, your honor, an Sie

think. If I proffer something to the

standing out there. And he never went out and looked at these

people who were out in the car. I said, “who are they?” And he

said they were the FBI without looking at them. So he knew

that they were out there.

I was standing in the lobby next to the elevators. And I said,

“there are two people out there taking pictures. I am scared

that they might be Ross and Ramey’s men. Who are they?” He

said, “they are the FBI” without even looking.

THE Court: So you contend that that would go toward

prosecutorial misconduct? Is that your contention?

Mr. KuPFERBERG: Yes, your honor. I think there is a fine,

fine line of impropriety that one must not tamper with a jury,

whether it is intentional or not.

THE Court: No doubt about that. All right. So you would

request that I call the other jurors and Agent Johansson. Mr.

Sheppard?

Mr. SHEPPARD: Defendant Jackson has the

(174) THe Court: (Interposing) Be that as it may, I admit

that I carried the central role. I would state for the record—

Mr. Sueprarp: Your honor, I am not saying that is a legal

error. I am just suggesting that part of the problem here,

judge—and | say this respectfully—was the non-disclosure to

5la \

defense counsel, so that the court can’t be in any position other

than a defensive position, having read Smith v. Phillips and

Remmer now. And if this tomorrow, I bet you would

disclose to the defense lawyers, so that it would be resolved at

that time.

It is almost as subtle as what effect does looking down, you

know, or into a lens of a camera that you don’t know whether it

even got film in it. I would suggest to you, your honor, that

I sat back here in this courtroom and clicked a camera that it

ould have the same effect whether it was loaded or unloaded.

whethe

there was a picture taken or not isirrelevant. It

that it has that potential of the effect on mai ng 13.

If that juror’s apprehensions were allayed by your honor’s

personal reassurance that nothing is wrong, how can we then

speculate that everyone else’s

* * *

[179] When we come in here at the very beginning and the

first thing we start out with is that the defendants are pre-

sumed innocent and the government has to prove beyond a

reasonable doubt as to every element of the offense to which

you are charged; and in the middle of the trial you get one juror

who thinks that he has been photographed and that there is

some physical harm that is going to come to him because of one

of these defendants; and once that is in his mind and he thinks

about it for one full day—he goes home and sleeps over it—I

don’t think there is anything you can do to erase that.

You may assure him that none of these defendants are going

to come and bump him off in the middle of the night. But that

does not change the tainted image that he has against these

defendants.

He has made up his mind now that these are bad people who

are going to hurt him. And it has nothing to do with whether or

52a

not they are guilty of what they are charged here. And I think

that is\one of the key issues here.

And the other key issue is the conduct of the government. As

the court is aware by now, my wife was photographed or at

least the camera was pointed at her. I left these proceedings

and went back to my office and worked for a couple of hours.

She conveyed to me the fact [180] that she had been photo-

graphed leaving the courtroom (sic) and had not gone to the

trouble of taking down the license number. And my first re-

sponse was “don't worry about it.”

But I can assure the court that my assurance to her did not

change her concern. Later that night when I talked to Mr.

Kupferberg and found that he had talked with Agent Johans-

and it was and once I explained all that to her,

xa felt better abo the fact was still in her mind, \

what were these people doing-out there photographing. ~————

And that had to be in the minds of the jury—not just this one

man here, but every one of them and especially the lady. I

mean, if they thought these defendants were out to harm them,

I don’t think there is any assurance that the court can give all of

them, let-aione just give one of them and have him convey it to

the rest of them.

Tue Court: Mr. Lawrence, let’s suppose that was a news

photographer sitting in that car. Would your position be any

different?

Mr. LAWRENCE: Your honor, if they walked out there and

there was a car sitting there that had “WRAL-TV” on it—

THE Court: (Interposing) No Let’s

53a

\ [188] I suggest that those decisions are important to keep in

mind, that the court in this case did not take the prosecution

into its counsel in trying to look into the matter of whether a

juror had been improperly influenced in one way or other. The

court has conducted a hearing. And there is testimony on the

record from that hearing that this particular juror was more

than satisfied, I would infer from his statements and his de-

meanor this morning testifying. Learning from you that noth-

ing was wrong, he was more than satisfied; and that that had no

effect on his deliberations and had no effect on his verdict.

So with those distinctions that I submit should be drawn, I

would ask you to bring this thing to a close and make a as Hes

without the necessity of bringing 13 other jurors.

THE Court: All right. Let’s move along now. Each of you

defense attorneys have been provided, have you not, with the

pre-sentence reports? Any of you did not get yours?

= 1s. Walker, Ieealiee your client is not here. And if you don’

care to participate any further, that is all ] am going to condu

the rest of the day—the sentencing hearings. If you want to

stay and be part of it, you may, of course. But since your client

is not here, you don’t have to.

’

> e3

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.