United States v. Frank Fuller

162 F.3d 256, 1998 U.S. App. LEXIS 28824, 1998 WL 795128
CourtCourt of Appeals for the Fourth Circuit
DecidedNovember 17, 1998
Docket97-4132
StatusPublished
Cited by23 cases

This text of 162 F.3d 256 (United States v. Frank Fuller) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fourth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Frank Fuller, 162 F.3d 256, 1998 U.S. App. LEXIS 28824, 1998 WL 795128 (4th Cir. 1998).

Opinions

Affirmed by published opinion, Judge Niemeyer wrote the opinion, in which Judge Smith joined. Judge Luttig wrote a dissenting opinion.

OPINION

NIEMEYER, Circuit Judge:

During the trial of Frank Fuller on charges of distributing crack cocaine in violation of 21 U.S.C. § 841(a), the district judge explained to the jury that while they “must not accept [his] view of the evidence” and the determination of what the evidence established was entirely up to them, he believed that Fuller was “acting illegally as a drug dealer.” Fuller contends that these comments and other erroneous jury instructions are reversible error and entitle him to a new trial.

While we do not approve of the practice of a trial judge’s expressing an opinion about a defendant’s guilt or innocence, in the exceptional circumstances of this ease, we affirm.

I

In January 1996, the FBI office in Columbia, South Carolina,received a complaint from the owner of Angler’s Mini-Mart in Vance, South Carolina, that Vance’s mayor, Frank Fuller, was attempting to sell drugs in and around the store and was attempting to enlist the store’s employees to sell drugs on his behalf. Vance is a small town in Orange-burg County about 75 miles southeast of Columbia, with a population of 214. The town has two paid employees, a police chief and one police officer. Fuller, the town’s elected mayor since 1991, serves without compensation. The town’s only source of income is through “police funding.”

[258]*258Through a sting operation organized by the FBI with the cooperation of Paula Var-ner, the manager of Angler’s, Fuller was video taped selling crack cocaine to Varner on four separate occasions in March and April 1996. The total amount of crack that Fuller sold during these transactions was approximately 34 grams. Fuller was arrested and charged in four counts for distributing controlled substances in violation of 21 U.S.C. § 841(a)(1).

Fuller did not deny selling the crack cocaine to Varner. Rather, he claimed that he had sold the drugs to Varner as part of his own investigation into employee theft and drug use at the mini-mart. Fuller stated that he often frequented Angler’s Mini-Mart to drink coffee and“to develop a mayor relationship and make sure Angler’s was serving the people well, and that the management and, you know, everything was in order.” He claimed that he undertook the investigation of the mini-mart because employees were being fired and because of “problems that’s going around in Vance consisting of drugs.” He explained that he had supplied Varner with crack cocaine “[b]ecause of the process of the money being missing out of the drawers, and cashiers being released. You know, the cashier was being released because of the money shortage and of inventory,” and presumably Fuller concluded that he would catch Varner taking money from the drawer to pay him for the drugs.

To conduct this investigation, Fuller stated that he obtained crack cocaine from “an informant” but that he did not investigate the informant’s source of the cocaine because that would be “out of the jurisdiction of Vance.” He explained that he “had some informants planted around the store so [he] could get the information of what was going in and out of the store,” and he did everything to “get a friendly relationship [with Varner] to make her believe that I was a drug dealer.” He asserted that he deliberately attempted to have his dealings with Var-ner recorded by the store’s security system in order to “have concrete evidence” against her and “because my word against hers is not good.”

■ When asked why he had decided to conduct the investigation himself, Fuller testified that he “was displeased” with the services of his chief of police and that the town’s only other police officer, Donnie Jones, had not yet graduated from the state police academy. Fuller did claim, however, that he had discussed the investigation with Jones. Jones, however, denied knowing anything about the investigation until after Fuller’s arrest. Indeed, Jones testified that when he spoke with Fuller following his arrest, Fuller instructed him, “Get the story, everything — everything straight. Get the story straight.” Fuller said that he did not go to other authorities because he did not trust them or because he needed more concrete evidence before he could do so. Similarly, he did not tell his wife what he was doing. He answered her questions about why he was at the store all the time with the explanation that he was “doing some work for the town, and [he] can’t speak of it because it’s, you know, investigative work.”

Fuller freely testified at trial and acknowledged his role in the drug transactions but rested his defense on his claim that he was conducting a police style undercover investigation into employee misconduct at Angler’s Mini-Mart. He asserted that he had the authority as mayor to engage in such activities. Fuller argued further that he was not guilty of violating any federal drug laws because he “did not have the specific intent tó commit those crimes.”

In instructing the jury, the district judge stated, “[F]rom my own personal view I do not credit and accept the defendant’s testimony that he was acting solely in his capacity as Mayor to investigate drug sales in his town of Vance, and that he had no intent to violate the federal drug laws.” The district judge also stated that he believed that Fuller “was acting illegally as a drug dealer.” Immediately after he made these comments to the jury, the judge admonished the jury that they “must not accept [his] view of the evidence” because the evaluation of the evidence was “entirely up to [the jury] and [the jury] alone.” Fuller objected to the judge’s comments and moved for a mistrial, which the court denied.

[259]*259The jury found Fuller guilty on all four counts, and the district court sentenced him to 20 years imprisonment. This appeal followed.

II

Fuller’s principal assignment of error is based on the district judge’s expressing an opinion, while instructing the jury, about Fuller’s credibility and his guilt for the crimes charged. In instructing the jury, the district judge included the following statement:

As I said before and I repeat for emphasis’ sake, it is entirely up to you jurors to determine what capacity, purpose and intent the defendant had when he made these four sales of crack cocaine to Paula Varner. Now, I do want to do something that I don’t usually do in a case like this.... Now, this is a jury case, so it is not up to me to make the decision in this case. But I did want to tell you — and I don’t usually do this, that from my own personal view I do not credit and accept the defendant’s testimony that he loasacting solely in his capacity as the Mayor to investigate drug sales in his town of Vance, and that he had no intent to violate the federal drug laws. I believe he was acting illegally as a drug dealer. Again, I emphasize to you that you do not — you must not accept my view of the evidence in this case. It is entirely up to you and you alone to make your determination of what the evidence establishes. Do not accept my view of the evidence in this case.

(Emphasis added). Fuller not only objected to this instruction but moved for a mistrial, which the court denied.

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Cite This Page — Counsel Stack

Bluebook (online)
162 F.3d 256, 1998 U.S. App. LEXIS 28824, 1998 WL 795128, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-frank-fuller-ca4-1998.