United States of America, Appellee/cross-Appellant v. James P. Groene, Appellant/cross-Appellee

998 F.2d 604, 1993 U.S. App. LEXIS 17236
CourtCourt of Appeals for the Eighth Circuit
DecidedJuly 13, 1993
Docket92-3235, 92-3332
StatusPublished
Cited by24 cases

This text of 998 F.2d 604 (United States of America, Appellee/cross-Appellant v. James P. Groene, Appellant/cross-Appellee) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States of America, Appellee/cross-Appellant v. James P. Groene, Appellant/cross-Appellee, 998 F.2d 604, 1993 U.S. App. LEXIS 17236 (8th Cir. 1993).

Opinions

MORRIS SHEPPARD ARNOLD, Circuit Judge.

In 1991, James Groene, a chiropractor in Schuyler, Nebraska, was indicted on four counts of failure to pay taxes (for 1984, 1985, 1986, and 1987). A year later, after a 10-day trial and three days of deliberation, a jury found Dr. Groene guilty on all counts.

The trial court subsequently sentenced Dr. Groene to 312 days of confinement in the county jail, to be served under conditions allowing work release, followed by 61 weekends of confined community service at a nursing care center; five years’ probation; a fine of $12,000; and payment of restitution in the amount of $115,757.

Dr. Groene challenges his conviction and makes one claim on appeal, namely, that his right to a fair trial was irretrievably compromised by the trial court’s practice of allowing jurors to question witnesses. We affirm the trial court on that issue and therefore uphold Dr. Groene’s conviction.

The government raises one claim in its cross-appeal, namely, that the trial court abused its discretion in departing from the federal sentencing guidelines by imposing local confinement allowing work release, community service, and probation instead of imprisonment in a federal facility. We reverse [606]*606the trial court on that issue and remand the case for resentencing.

I.

The trial court in this case allowed jurors to pose then’ questions aloud. The trial court then either directed the witness to answer, restated the question and directed the witness to answer, or called for a bench conference. Objections were made at the bench conference. Of 29 questions posed by jurors, the trial court allowed 24 to be answered. The jurors were not permitted to ask any questions of Dr. Groene when he testified.

Dr. Groene objected repeatedly to the procedure but did not make any specific eviden-tiary objection to any particular question. In eases where counsel has objected to some questions from jurors but not others, the court has reviewed the objected-to questions for abuse of discretion (even where the basis of the objection was an evidentiary ground rather than juror questioning per se) and the unobjeeted-to questions for plain error. See, e.g., United States v. Johnson, 914 F.2d 136, 138 (8th Cir.1990). (The government evidently believes that an abuse-of-discretion standard controls in this case.) Our cases seem to indicate, however, that when the procedure itself is the only basis for objection, the critical inquiry is whether prejudice has resulted from its use. See, e.g., United States v. Gray, 897 F.2d 1428, 1429-30 (8th Cir.1990), and United States v. Land, 877 F.2d 17, 19 (8th Cir.1989), cert. denied, 493 U.S. 894, 110 S.Ct. 243, 107 L.Ed.2d 194 (1989).

The use of the procedure itself is not plain error (prejudicial per se). See, e.g., United States v. Lewin, 900 F.2d 145, 147 (8th Cir.1990); see also United States v. Gray, 897 F.2d at 1429. Various panels of this circuit, nonetheless, have expressed considerable uneasiness about the practice, especially where, as in this case, the individual jurors posit questions within the hearing of the whole jury. See, e.g., United States v. Welliver, 976 F.2d 1148, 1154-55 (8th Cir. 1992), cert. denied, - U.S. -, 113 S.Ct. 1643, 123 L.Ed.2d 265 (1993); United States v. Lewin, 900 F.2d at 147-48; and United States v. Land, 877 F.2d at 19; see also United States v. Gray, 897 F.2d at 1429.

The reasons given for being skeptical of the procedure employed here are that juror questioning may tend to transform jurors from neutral fact finders into advocates, that the process of formulating questions may precipitate prematurely the deliberation phase of the trial, that jurors may weigh more heavily the answers to questions from each other than the answers to questions from counsel, that jurors may ask questions about legally irrelevant and legally inadmissible evidence, and that an objecting party risks alienating the jury. See, e.g., DeBenedetto v. Goodyear Tire and Rubber Co., 754 F.2d 512, 515-17 (4th Cir.1985) (cited repeatedly by Eighth Circuit panels considering this issue).

In this ease, Dr. Groene raises all of those arguments. The government’s basic response is that in the context of a 10-day trial, the questions at issue were relatively innocuous, since there were so few of them relative to the length of the trial, and since they elicited only clarifications of previous testimony, cumulative evidence, or evidence that supported Dr. Groene’s theory of defense.

After reading the trial transcript, we agree with the government. We believe, however, that if juror questions are allowed, the trial court should carefully weigh using a procedure that requires those questions to be submitted in writing or out of the hearing of (and without discussion with) other jurors, since the practice employed here seems to us to carry serious risks of prejudice to the defendant and even, in a proper case, to the government. See, e.g., United States v. Welliver, 976 F.2d at 1154-55; United States v. Lewin, 900 F.2d at 147-48; and United States v. Gray, 897 F.2d at 1429-30 n. 1; see also United States v. Polowichak, 783 F.2d 410, 413 (4th Cir.1986), and DeBenedetto, 754 F.2d at 516.

II.

The trial court found at the sentencing hearing that the applicable guideline [607]*607range for Dr. Groene’s offenses was 12 to 18 months. Neither probation nor a “split sentence” of confinement and confined community service is available under the guidelines applicable to Dr. Groene. See U.S.S.G. § 5B1.1(b); § 501.1(f); and § 501.1(f), comment 8. Nonetheless, the trial court made what it characterized as a “lateral departure” and imposed what it considered to be “the equivalent of 15 months in prison, but accomplished in order to make [Dr. Groene’s] special services available to persons, particularly elderly persons and children, within the small community of Schuyler, Nebraska, a contingency the Sentencing Commission was unable to take adequately into account, and to make restitution to the government more certain and quicker.” The trial court imposed a sentence of 312 days (about 10]£ months) of confinement in the county jail, allowing for work release every weekday, followed by 61 consecutive weekends of confined community service at a nursing care center (122 days, or about three months), plus five years’ probation, a $12,000 fine, and $115,757 in restitution.

This circuit has adopted a three-step test for reviewing a trial court’s departure from the guidelines. “First, as a question of law, [the appeals court] determine^] whether the circumstances on which the district court based its decision to depart are [legally] sufficient to justify a departure. Second, [the appeals court] reviewfs] whether the circumstances relied on actually exist.

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Bluebook (online)
998 F.2d 604, 1993 U.S. App. LEXIS 17236, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-of-america-appelleecross-appellant-v-james-p-groene-ca8-1993.