United States v. Button Jack Rhodes

32 F.3d 867, 1994 U.S. App. LEXIS 21982, 1994 WL 447258

• Court: Court of Appeals for the Fourth Circuit
• Decided: August 17, 1994
• Docket: 93-5439
• Status: Published

Opinions

Affirmed by published opinion. Judge WIDENER wrote the opinion, in which Judge K.K. HALL concurred. Judge HAMILTON wrote a concurring opinion.

OPINION

WIDENER, Circuit Judge:

Button Jack Rhodes was convicted in the United States District Court for the Western District of Virginia of several firearms and drug offenses. On appeal, Rhodes raises three issues: (1) the admission of certain evidence concerning his prior convictions in New York state court in order to establish the predicate conviction for an 18 U.S.C. § 922(g)(1) offense was plain error; (2) the district court abused its discretion by denying Rhodes’s motion to sever the drug and section 922(g)(1) counts of the indictment; and (3) the district court’s discussion of a question asked by the jury during deliberations with counsel but outside the presence of the defendant was plain error. We find no reversible error in any of these contentions and we affirm Rhodes’s convictions.

I

On March 5, 1992, the Grand Jury handed down a seven-count superseding indictment against Rhodes. The seven counts were: (1) conspiring to make false statements to obtain firearms and to possess with the intent to distribute cocaine¹; (2) aiding and abetting the making of false statements in connection with the purchase of a Bryco .380 pistol²; (3) aiding and abetting the making of false statements in connection with the purchase of a Taurus 9 mm pistol at Earl’s Gun Shop; (4) aiding and abetting the making of false statements in connection with the purchase of a Taurus 9 mm pistol at Woodbrook Sports Supply; (5) possessing with the intent to distribute cocaine base (crack)³; (6) possessing a Beretta .380 pistol despite having been previously convicted of a felony⁴; and (7) carrying and using a firearm during and in relation to a drug trafficking crime.⁵ At arraignment, Rhodes pleaded not guilty to all of the charges. On March 12, 1992, Rhodes filed a motion to sever Counts Five, Six, and Seven (the possession of crack, possession of a firearm by a felon, and use of firearm during a drug offense charges) from the four firearms and conspiracy charges. The district court denied the motion on the morning of the first day of the trial.

Government Exhibits Six and Seven

During the first day of trial, Government Exhibits Six and Seven were admitted into evidence. Exhibits Six and Seven were certified copies of convictions on indictments returned in the Supreme Court of the State of New York, County of the Bronx. Exhibit Six contains an indictment for murder in the second degree, criminal possession of a weapon in the second degree, and criminal use of a firearm in the second degree. The indictment alleged that Rhodes, using a loaded pistol, had shot and killed Roberto Ayon. A felony complaint attached to the indictment alleged that Rhodes had shot Ayon in the head. Pursuant to this indictment, Rhodes pleaded guilty in the New York court to first degree manslaughter. Exhibit Seven contained an indictment for attempted murder in the second degree, criminal use of a firearm in the first degree, criminal possession of a weapon in the second degree, criminal use of a firearm in the second degree,⁶ assault in the first degree, and reckless endangerment in the first degree. The indictment alleged that Rhodes had shot at and injured Sam Johnson. A felony complaint attached to the indictment alleged that Rhodes shot Johnson in the stomach and Johnson had to be hospitalized. A jury found Rhodes guilty of criminal possession of a weapon in the second degree and reckless endangerment in the first degree, and apparently not guilty of the remaining counts of the indictment which were not dismissed. A copy of the transcript of Rhodes’s sentencing is also included in the certified documents.

Government Exhibits Six and Seven were identified by Bureau of Alcohol, Tobacco, and Firearms special agent Brian R. Swann. Agent Swann explained that he had obtained the certified records of conviction from the Clerk of the Supreme Court for the County of the Bronx. The Assistant United States Attorney then moved the exhibits’ admission into evidence. Rhodes’s counsel stated, “No objection” and the district court then ruled, “Be so admitted.”

The Assistant United States Attorney then asked Agent Swann about the convictions contained in the certificates of conviction. Agent Swann commenced to read that part of Exhibit Six to the jury. At that point, Rhodes’s counsel objected to Agent Swann’s reading the exhibits into the record. Rhodes’s counsel stated, “If the exhibits are going to be introduced into evidence, the exhibits would speak for themselves.” The district court ruled in Rhodes’s favor on the objection, and Agent Swann was permitted only to state the crimes for which Rhodes had been convicted under each indictment. The Assistant United States Attorney made reference to Exhibit Six in her opening and closing arguments by mentioning the fact that Rhodes was a convicted felon who had been indicted for murder but pleaded guilty to manslaughter.⁷ No objection or motion for a mistrial was made in response to these remarks.

The Jury’s Question

On the third morning of trial, the district court instructed the jury. After deliberating for approximately one hour (10:20-11:30), the jury sent a written question to the district judge. The question stated:

Concerning: Count 5

Is there a definition as to the amount of crack cocaine in possession considered to be for distribution vs. personal use?

Us/ Foreman]

The court met with counsel in chambers to discuss the question. The defendant was not present. The court read the question to the attorneys. The following discussion about the question occurred between the court and counsel:

THE COURT:....

Now, in the charge, the three elements, of course, first, that the defendant knowingly possessed a controlled substance. Second, the substance was, in fact, cocaine base or crack cocaine. Third, that the defendant possessed the substance with intent to distribute it. In the charge as given there is no mention of quantity though that was argued and there was evidence that the quantity was consonant with distribution as against personal use.

MS. PLAGENHOEF⁸: Isn’t that really a question that is asking if the law requires a specific amount? It sounds to me like they’re asking if the law requires a specific amount to be proved to prove distribution.

THE COURT: Well, they may be, but I’m just reading it in the words she used, “is there a definition.” It seems to me I can do one of two things. Either I can tell them that the question they ask depends on their resolution of the third element, whether the defendant possessed the substance with intent to distribute it. There isn’t any quantity that I know of that says that if it’s above this, it’s for distribution; below this, it’s personal use.

Now, we did not give this charge which you offered, Miss Ruth. “The phrase ‘with intent to distribute’ means to have in mind or to plan in some way to deliver or transfer possession or control over a thing to someone else. In attempting to determine the intent of any person, you may take into your consideration all the facts and circumstances shown by the evidence received in the case concerning that person.

“In determining a person’s ‘intent to distribute’ controlled substances, the jury may consider, among other things, the purity of the controlled substance ...” No evidence as to that. Yes, there is, [prosecution witness] Edwards as to some of the cocaine. “... purity of the controlled substance, the quantity of the controlled substance, the presence of equipment used in the processing or sale of controlled substance and large amounts of cash or weapons.

“The Government must prove beyond a reasonable doubt that the defendant intended to distribute the controlled substance alleged in the indictment.”

MS. PLAGENHOEF: Would you read the note once more, Your Honor, please.

THE COURT: Leaving out the concerning Count 5, is there a definition as to the amount of crack cocaine in possession considered to be for distribution against personal use.

MS. PLAGENHOEF: Your Honor, I think the correct legal answer to that question is no, a plain and simple no.

THE COURT: That or an instruction that they already have the instructions they need I think would answer that question.

MR. HEBLICH⁹: I agree. I don’t think there is—

MS. PLAGENHOEF: Unless you want to put in that you may consider those other things. There is no evidence in the record about some of them that I think it might be confusing. But if we phrased it either a simple no or you may consider the quantity when deciding this issue, but there is no legal definition. I think no is easier.

MR. HEBLICH: I think I would vote for no, Judge. In the response give them back their question.

THE COURT: This I think is an answer that could go back. You all can shoot at it. “The specific answer to the jury’s question is no. The jury must determine from the evidence and beyond a reasonable doubt if the defendant possessed the controlled substance with the intent to distribute it.” That’s the third element.

MS. PLAGENHOEF: That’s fine with the Government, Your Honor.

MR. HEBLICH: That’s fine.

At this point, the district judge had the response he intended to send to the jury typed and then read it back to the attorneys. The Assistant United States Attorney said, “We have no objection.” Rhodes’s counsel also stated, “No objection.” It appears that the typewritten note was then sent to the jury without asking for comment by the defendant or calling the jury back in open court to hear the answer to its question.¹⁰ The note was:

The specific answer to the jury’s question is no. The jury must decide from the evidence, and beyond a reasonable doubt, if the defendant possessed the controlled substance with the intent to distribute it.

The jury rendered its verdict less than one hour later, finding the defendant guilty on all seven charges. Rhodes appealed.

II

Rhodes first argues that his convictions must be reversed because the district court admitted not only the fact of his felony convictions in New York in evidence, but also the surrounding circumstances and details, which were contained in the papers received from the New York state court. Rhodes made no objection to the admission of this information at trial. We therefore review for plain error. Fed.R.Crim.P. 52(b).

We start with the proposition that when a defendant offers to stipulate the fact of his prior felony conviction, evidence of the nature of the conviction is irrelevant and should be stricken. See United States v. Poore, 594 F.2d 39 (4th Cir.1979). The nature of the conviction is not an element of Section 922(g)(1). See 18 U.S.C. § 922(g)(1) (requiring only a conviction without specifying type); Poore, 594 F.2d at 41 (decided under prior version of statute). However, when a defendant does not stipulate the fact of his prior conviction, the Government must prove it because it is an element of the offense. It is the proffer and admission of the extraneous material accompanying the certified records of Rhodes’s convictions that we must examine in this case.

In United States v. Olano, — U.S. -, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993), the Court stated that an appellate court’s authority is limited, for the purposes of Rule 52(b), to correcting errors which meet four requirements: (1) There must be an error — that is, a “[d]eviation from a legal rule;” (2) the error must be plain — that is, clear or obvious; and (3) the error must “affect substantial rights.” Olano, — U.S. at -, 113 S.Ct. at 1776. In addition, appellate courts should exercise their discretion to correct errors under Rule 52(b) only “if the error seriously affects the fairness, integrity or public reputation of judicial proceedings.” — U.S. at -, 113 S.Ct. at 1776 (citation and internal quotation marks omitted).

We need not decide in this case whether the admission of the additional information in the certified records of conviction was error and that it was plain. Assuming, arguendo, that the admission of the evidence was error that was plain, Rhodes cannot meet the third requirement that the error affected his substantial rights. The Supreme Court stated that “in most cases [this requirement] means that the error must have been prejudicial: It must have affected the outcome of the District Court proceedings.” Olano, — U.S. at -, 113 S.Ct. at 1778. This inquiry is substantially the same as a harmless error inquiry, “with one important difference: It is the defendant rather than the Government who bears the burden of persuasion with respect to prejudice.” — U.S. at -, 113 S.Ct. at 1778. We do not find that the error we assume for purposes of deciding this case affected Rhodes’s substantial rights. In light of the overwhelming evidence of guilt offered against him, and the fact that he can point to no prejudice flowing to him by the admission of these materials,¹¹ we cannot say that the error affected the outcome of the proceedings. Olano, — U.S. at -, 113 S.Ct. at 1778. We therefore do not have authority under Rule 52(b) to correct Rhodes’s claimed error.

Ill

Rhodes next contends that the district court erred when it denied his motion to sever Counts Five, Six, and Seven of the indictment. These counts were the possession with intent to distribute charge, the Section 922(g)(1) (felon in possession of a firearm) charge, and the Section 924(c)(1) (use of a firearm during a drug trafficking crime) charge. Rhodes maintains that he was prejudiced by the failure to sever because the evidence of his New York convictions, both of which concerned offenses carried out by use of a gun, improperly influenced the jury to convict him on the conspiracy and three other firearms chargés. There was no request to so instruct, and the district court did not give a limiting instruction about the use of the prior felony evidence. Of course, no objection was made to the lack of a limiting or cautionary instruction in the jury charge.

Rhodes does not take issue with the join-der of Counts Five, Six, and Seven under Fed.R.Crim.P. 8(a).¹² Rather, he argues that the district court abused the discretion given to it under Fed.R.Crim.P. 14 to sever counts of an indictment for separate trial. We review the district court’s denial of a motion to sever counts of the indictment for separate trial for “clear abuse [of discretion] affecting substantial rights of the accused.” United States v. Jamar, 561 F.2d 1103, 1106 (4th Cir.1977); see United States v. Altomare, 625 F.2d 5, 8-9 (4th Cir.1980). We can find no clear abuse of the district court’s discretion in this case. The motion to sever stated only that Rhodes would “be prejudiced by a joinder of [Counts Five, Six, and Seven].” When arguing the motion, Rhodes’s counsel stated that he “would rely on the reasons stated in the motion.” The district court found “no basis for severance” and denied the motion. We cannot say that the district court clearly abused its discretion in denying the severance motion, especially when no specific allegation of prejudice was made and none is apparent from the record.

Rhodes apparently relies on United States v. Silva, 745 F.2d 840 (4th Cir.1984), for the proposition that introduction of a prior felony conviction to prove an element of one count in an indictment requires the district court to give a limiting instruction when a motion to sever is denied. Although the routine giving of a limiting instruction may, indeed, be the better approach, we reject the argument that such is required in each instance. In a case such as this, where three of the narcotics and firearms offenses were all being committed at the same instant, and Rhodes would leave Charlottesville with guns and come back with drugs, the case is so obviously one for joinder under Fed.R.Crim.P. 8(a), we decline to find necessary a limiting instruction absent request or patent prejudice, neither of which was present here.

IV

Rhodes’s final contention is that, although his counsel was present and agreed to the response, the district court erred in discussing the jury’s question and formulating the response in his absence. Rhodes’s claim is governed by Rule 43 of the Federal Rules of Criminal Procedure, which codified the defendant’s right to be present at every stage of the trial under the Fifth and Sixth Amendments. See United States v. Camacho, 955 F.2d 950, 952 (4th Cir.1992), cert. denied, — U.S. -, 114 S.Ct. 571, 126 L.Ed.2d 470 (1993).¹³

Rule 43(a) provides: “The defendant shall be present at the arraignment, 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 imposition of sentence, except as otherwise provided by this rule.” Fed.R.Crim.P. 43(a). In Rogers v. United States, 422 U.S. 35, 39, 95 S.Ct. 2091, 2094-95, 45 L.Ed.2d 1 (1975), after some two hours of deliberation, the jury sent out a note inquiring if the judge would ‘“accept the Verdict — “Guilty as charged with extreme mercy of the Court.” ’ Without notifying the defendant or his counsel, the judge instructed the marshal who delivered the note ‘to advise the jury that the court’s answer was in the affirmative.’ ” 422 U.S. at 36, 95 S.Ct. at 2093. The Court held that Rule 43 was violated, obviously by the defendant’s absence during the interchange, and that the rule required that a note sent out by the jury “should have been answered in open court and ... petitioner’s counsel should have been given an opportunity to be heard before the trial judge responded.” In Rogers the district court, as noted, did neither of these things, and instead answered the jury’s note by way of an oral relay via the marshal without informing the defendant or counsel. 422 U.S. at 36, 95 S.Ct. at 2093. The court stated that a violation of Rule 43 could be harmless error, but after considering the substance of the information in the judge’s answer¹⁴ and the manner in which the judge’s response was relayed to the jury, it would not hold the error harmless in Rogers’s case. 422 U.S. at 40, 95 S.Ct. at 2093. However, a crucial difference between Rogers and Rhodes’s ease is that Rhodes’s counsel was not only given an opportunity to be heard; he was present in chambers, contributed to the discussion, and favored the answer the judge gave.

The narrow question presented in this case — whether the defendant, and not merely defense counsel, must be present when an answer to a jury question sent out during deliberations is formulated and given — is one which also is controlled by Rogers. In two pr e-Rogers cases, this circuit held that a procedure such as the one employed here would not be error under the Due Process Clause or under Rule 43(a). We addressed whether the Due Process Clause of the Fourteenth Amendment was offended by in-chambers discussions that excluded the defendant in Root v. Cunningham, 344 F.2d 1 (4th Cir.), cert. denied, 382 U.S. 866, 86 S.Ct. 135, 15 L.Ed.2d 104 (1965).¹⁵ In Root, we were required, on federal habeas review, to examine whether a practice under Virginia law of conferring on jury instructions in chambers with counsel but without the defendant violated the Due Process Clause of the Fourteenth Amendment. After examining the Virginia cases, discussing the problem and noting the practicalities involved and the judge’s responsibility for formulating jury instructions, we held that the Due Process Clause was not offended by the practice. 344 F.2d at 4. In United States v. Gregorio, 497 F.2d 1253 (4th Cir.), cert. denied, 419 U.S. 1024, 95 S.Ct. 501, 42 L.Ed.2d 298 (1974), we examined the history of Rule 43 and a defendant’s common law privilege to be present at all stages of a proceeding. We then held that because an in-chambers conference on jury instructions is purely legal in nature and the defendant, in most cases, cannot contribute to the legal discussion and may be confused by the conference, a defendant does not have a common law or constitutional right to be present in chambers when jury instructions are being discussed. 497 F.2d at 1260.

Our pr e-Rogers circuit precedent, Gregorio and Root, which hold that the defendant has no right to be present at an in-chambers discussion on jury instructions, have been implicitly overruled by the Supreme Court’s holding in Rogers.16 Rogers holds that Rule 43(a) is violated when the defendant is not present during the formulation of an answer to a jury question such as the one made in this case. However, the Court suggested that it could find a violation of Rule 43 harmless if, in constructing the answer to the jury’s question, defense counsel was given an opportunity to be heard. 422 U.S. at 39, 95 . The court also suggests that the answer should be given in open court. As discussed above, this did not happen in Rogers.

In accord with the Court’s opinion in Rogers, we hold that it is error to conduct, without the presence of the defendant, an in-chambers discussion with counsel for the government and the defendant about a substantive question with respect to its instructions sent out by a deliberating jury. United States v. Harris, 814 F.2d 155 (4th Cir.1987) (per curiam).¹⁷ However, because Rhodes did not raise his claim of error until his second and third motions for a new trial, he must establish plain error under Fed. R.Crim.P. 52(b) for us to vacate his conviction.

Applying the Olano test, Rhodes’s error is indeed error, and it is plain, Rogers having been decided some seven years before his trial. However, Rhodes cannot meet the third requirement that the error affected his substantial rights. Rhodes’s argument is that he was prejudiced by his absence because he would have asked the district court to give the instruction apparently offered earlier by the Government, which the district court mentioned in discussing the jury’s question. The answer that the district court gave to the jury’s question was so patently legally correct that it is beyond argument. It also was the answer which Rhodes’s counsel urged the district court to use. So it is obvious, and we hold, that Rhodes’s absence from the in-chambers discussion did not af-feet his substantial rights. It was harmless beyond a reasonable doubt. We therefore find that the error was not of a type that may be corrected under Rule 52(b), and we do not vacate his conviction.

Rhodes’s convictions are accordingly

AFFIRMED.

1 . In violation of 18 U.S.C. § 371.

2 . In violation of 18 U.S.C. §§ 2, 922(a)(6) & 924(a)(1)(B).

3 . In violation of 21 U.S.C. § 841(a)(1) & (b)(1)(C).

4 . In violation of 18 U.S.C. § 922(g)(1).

5 . In violation of 18 U.S.C. § 924(c)(1).

6 . This count of the New York indictment was later dismissed in the New York court.

7 . Specifically, during her opening statement, she stated, "Mr. Rhodes is from New York, and part of our proof, elements of our proof, is that he’s a convicted felon. One of his convictions is manslaughter. He was charged with murder and then pled guilty to manslaughter and served time. He's a convicted felon from New York.” During her closing argument, the Assistant said, "There is no doubt at all that he was a convicted felon during all of this, convicted of manslaughter on his plea of guilty after being indicted for murder.”

8 . The Assistant United States Attorney.

9 . The defendant's attorney.

10 . As is apparent, the entire in-chambers discussion, the jury note, and the court’s response were placed on the record by the district court.

11 . Rhodes's arguments on this point all go to prejudice resulting not only from the claimed error. He argues that the district court should have given a limiting instruction, although none was requested, and that the prosecutor made prejudicial remarks in her opening and closing statements which referred to information in the records of conviction. See note 7, supra. We hold that it was not plain error for the district court not to give a limiting or cautionary instruction in the absence of a request. We reach the same conclusion on the improper argument issue. As we noted in our discussion of the facts, supra, no objection or motion for a mistrial was made after either comment. We also reject Rhodes's attempt to meet the substantial rights prong of the Olano test by bootstrapping his claimed prejudice to prejudice flowing from other alleged errors.

12 . While the motion stated they were [not] "sufficiently similar to or connected with" the other counts, apparently a Rule 8(a) objection, it is patently without merit in that context.

13 . Rhodes relies on Camacho as support for his position, but Camacho is inapposite. There, the district court started the trial in the defendant’s absence, despite snowy weather. 955 F.2d at 954. When the defendant arrived some fifty minutes after the trial began, he had missed some testimony and all of the voir dire. In holding that the error was not harmless, we stated that “[t]he most serious problem was Camacho’s absence during voir dire." 955 F.2d at 956. Rule 43(a) includes the impaneling of a jury as one instance in which the defendant's presence is required. Fed.R.Crim.P. 43(a). See United States v. Hanno, 21 F.3d 42, 46 (4th Cir.1994). These cases involve errors far different than the one claimed by Rhodes. While for a different reason, Camacho apparently anticipated the decision in Crosby v. United States, — U.S. -, 113 S.Ct. 748, 122 L.Ed.2d 25 (1993), on similar facts.

14 . The almost immediate verdict, some five minutes after the judge’s reply, and the judge’s answer to the jury’s question, suggested that the approval of a verdict recommending extreme mercy may have induced unanimity by implying that such a verdict might be an acceptable compromise. See 422 U.S. at 37 & 40, 95 S.Ct. at 2093-94 & 2095.

15 . In a part of Root not applicable to this case, we held that the test for ineffective assistance of counsel was whether "the representation [was] so transparently inadequate as to make a farce of the trial.” 344 F.2d at 3. We disavowed this aspect of Root because the Supreme Court had changed the rule in this court's opinion in Marzullo v. State of Maryland, 561 F.2d 540, 542-43 (4th Cir.1977), cert. denied, 435 U.S. 1011, 98 S.Ct. 1885, 56 L.Ed.2d 394 (1978). Our disavowal of Root’s ineffective assistance test, however, did not affect our holding under the Due Process Clause.

16 .We had held in a pre-Rogers case that the harmless error rule applied in a case under Rule 43(a). United States v. Arriagada, 451 F.2d 487 (4th Cir.1971), cert. denied, 405 U.S. 1018, 92 S.Ct. 1300, 31 L.Ed.2d 481 (1972).

17 . In United States v. Head, 697 F.2d 1200, 1213 (4th Cir.1982), cert. denied, 462 U.S. 1132, 103 S.Ct. 3113, 77 L.Ed.2d 1367 (1983), we relied on the procedures the Supreme Court outlined in Rogers and said that the procedure employed by the district court did not violate Rule 43 because the defendant’s attorney was present and participated in the discussion, and, more importantly, the jury's question did not ask a substantive question or request additional instructions; rather, it informed the judge of the status of deliberations. Here, however, the jury’s question dealt with a substantive matter. Head therefore does not control this case. No question was raised in Head of whether the response was made in open court, as there is none here. We express no opinion on that question. If a request for new trial may be so construed, the very substance and correctness of the reply made it harmless beyond a reasonable doubt. The instructions to the jury were all given in open court.