The first conspiracy was an arrangement by Naranjo for his wife to supply five kilograms of cocaine to an undercover agent outside the prison. In the second conspiracy, Naranjo introduced his wife to a well-known D. Naranjo kept in contact with both his wife and the D. Third, in and Naranjo arranged for a Petersburg inmate who was to be released from prison to provide protection for his wife in her New York City-based drug distribution network.
She was sentenced to months in prison. Naranjo would contact the D. Through these contacts, Naranjo arranged to have a supplier come to the U. Naranjo also enlisted the aid of his cellmate for help in obtaining funds to purchase the cocaine and in locating purchasers for the cocaine.
In December , the D. As a result, the FBI began to investigate Naranjo. The FBI arrested Naranjo and six others in November for the fourth conspiracy Naranjo was involved in at Petersburg, as described above.
In April Naranjo was convicted of conspiracy to distribute cocaine and was sentenced in July to life in prison. District Court Judge Thomas F. In August , D. According to prosecutors, the BOP insisted that telephone and mail abuse by Naranjo could and should be met with nothing more than suspension of privileges for 60 to 90 days or transfer of the inmate.
In a letter dated August 15, , D. Assistant U. The letter stated that, even after indictment in the most recent case, Naranjo had attempted to engage in drug trafficking using the telephone from the Prince William County Adult Detention Center, where he had been held pending trial.
The letter explained that, while housed in the Detention Center, Naranjo was not allowed physical contact with any visitors other than his attorney and representatives of the Colombian Embassy , or other prisoners, and was not allowed to use the telephone. Still, Naranjo managed to make contact with another inmate and asked him to make telephone calls for him. He also managed to write letters to another Washington-area drug dealer who was a former inmate at FCI Petersburg.
He also told the inmate that he had contracted to kill the D. Despite the fact that Naranjo had been convicted for activities from Petersburg, he was returned to FCI Petersburg after his sentencing in late August In January , Naranjo was found guilty of these administrative charges and lost five years of visiting privileges, 14 months of telephone privileges, and was placed in segregation for 90 days.
Warden Knowles wrote that, due to the number of inmates incarcerated at each BOP facility, it is not possible to monitor every call of every inmate and monitoring is therefore random. However, because of Naranjo's history of telephone abuse, the SIS Office had been notified of the need to monitor his calls more carefully.
During our review, in November we asked officials at USP Florence whether Naranjo's telephone communications currently receive any special attention. We were surprised to learn that, despite Naranjo's history of telephone abuse and the warden's assurances to Judge Hogan, the SIS has made no special effort to monitor Naranjo's telephone calls or mail. In fact, the prison telephone system has not even been programmed to alert BOP staff when Naranjo used the telephone.
Freddy Aguilera, a major international drug trafficker and member of the Cali Cartel, has been characterized by federal prosecutors and the DEA as one of the most significant drug traffickers currently incarcerated in the United States. Aguilera was tried and convicted in three jurisdictions based on these activities. Aguilera was first convicted of conspiracy to distribute cocaine in July in the Southern District of Florida.
He was sentenced to 30 years in prison. He was next convicted in the Northern District of New York for running a continuing criminal enterprise, based on his running of a cocaine laboratory on a farm in Minden, New York.
Authorities discovered the laboratory in April after an explosion and fire there and learned from codefendants that approximately 1, kilograms of cocaine had been produced there in the preceding nine days. In August , Aguilera was sentenced to 30 years for this offense, to run consecutively with the 30 year sentence he received in Florida. Finally, Aguilera was convicted of conspiracy to manufacture cocaine with the intent to distribute in the Middle District of North Carolina.
In June , Aguilera was sentenced to 15 years on that charge, to run concurrently with the sentence in the Northern District of New York. Aguilera was incarcerated in USP Lewisburg. Aguilera continued his drug trafficking activities at Lewisburg. As noted above, in Edmond began cooperating with the government. In March , Aguilera was convicted for his drug activities in Lewisburg and later that year was sentenced to life in prison in addition to the year aggregate sentence he was already serving for his four prior convictions.
Nelson Garcia was also serving a lengthy prison term in Lewisburg for taking part in a continuing criminal drug enterprise. Garcia was convicted in March and was sentenced to life in prison. However, after much protest by the D. USAO, the warden at Lewisburg intervened and requested that Aguilera be re-designated or transferred based on his need for close supervision.
In addition, on September 8, , John Dominguez, the D. According to prison officials at Marion, Aguilera lost his mail and telephone privileges for a year as a result of the drug dealing in Lewisburg. I determined that it would be advantageous to let him know that I recognized his intelligence. I treated him respectfully, and as a result he gave me the same respect, and he answered my questions in what proved to be a truthful manner.
My primary concern was to find out what, exactly, Alonzo and JT were doing. I needed to do this without talking directly about drugs. Rayful had not been convicted of anything. I tried not to ask him questions that would put him in a position of confessing anything. He was too smart to do that anyway. Our conversation was a bit like pig Latin.
We spoke around the elephant in the room. We both knew what it was. I had no need to identify it. The conversation was serious and firm, with no small talk. I got right to the point. It could affect their basketball careers. People are making up a lot of stuff. All we do is play ball, go get something to eat, maybe hang out a little bit. We went back and forth in this manner as I tried to gather as much information as possible. I was the authority figure and led the conversation, but I knew I had very little leverage.
If what I had heard about him was true, Rayful had all the money in the world. If he wanted to cause problems for me, that would have been easy. He could simply keep showing up on campus, or keep taking my players to restaurants and nightclubs. He could arrange for something to be left in their dorm room. If he got arrested, he could say they were involved. All these possibilities ran through my mind. This young man loved basketball. He respected what I represented in the game he played every day.
He might have been running an operation that made millions, but Rayful was also a Georgetown basketball fan. I had a level of respect for Rayful, too. As a Black kid growing up in his neighborhood, his opportunities were limited, which inevitably affected the choices he made. Can you control this situation? We both know the type of things that should not be happening. Not with Alonzo. Rayful tried to be tactful about it. I tell him to stay away from all that, but you know how he is. Rayful shared a detail I found particularly significant.
You remember the huge cell phones back in the s, that were the size of a quart of milk against your ear? Rayful said JT carried one of those around, but the service was not activated. He just wanted people to see him with it. I was sympathetic to why a kid like Turner would feel that way. America worships people with money. Young Black kids had so few examples of wealth in their communities, they naturally gravitated toward drug dealers. That said, JT had to make better decisions. He had to leave the streets alone.
You know what I mean? Because you know some folks want to see us go down in this situation. Throughout the whole conversation, Rayful was as polite and cooperative as could be. I was polite, too. It would have been stupid to make Rayful angry. Over the years, many people have said what they thought happened in that room. See J. IV As we discuss below in assessing appellants' challenge to the sufficiency of the District Court's jury selection procedures, the voir dire in this case was imperfect in some respects due to its limited inquiry into the prospective jurors' exposure and reaction to pretrial publicity.
However, the flaws we discern in this aspect of the voir dire are irrelevant to our analysis of the alleged prejudice created by juror anonymity. The voir dire employed by the District Court was more than adequate to compensate for the information denied by juror anonymity. It elicited information about the prospective jurors' habits, activities, work experiences, and families that was far more extensive and detailed than the generalizations appellants might have drawn from jurors' mere names and addresses.
Thus, it sufficed to enable appellants to make effective use of their peremptory challenges. See Scarfo, F. The District Court also adequately addressed any burden that the anonymous jury imposed on appellants' presumption of innocence by giving jurors an instruction that minimized the significance of their anonymity. Before jurors filled out their questionnaires, the District Court instructed them that. This is [in] no way unusual.
It is a procedure being followed in this case to protect your privacy even from the Court. United States v. Edmond, Crim. I By instructing jurors that the use of an anonymous jury was routine, the District Court avoided the possibility that jurors would view the procedure as an extraordinary precaution signaling a threat from the defendants and, inferentially, the defendants' guilt.
See Tutino, F. In addition, the District Court immediately followed its anonymity discussion by instructing jurors that the defendants enjoyed a presumption of innocence, and repeated that instruction both at the beginning and conclusion of the trial.
See Preliminary Instruction at 3, reprinted in J. I ; Trial Tr. VIII; id. This step further mitigated any prejudice from the anonymous jury procedure. Nevertheless, appellants find fault in the District Court's instructions with respect to sequestration of the jury and discussion of the case. During the courtroom phase of the voir dire, the District Court told jurors that,. Hearing Tr. Later, in admonishing jurors not to discuss the case during a lunch break that interrupted the judge's final instructions, the District Court stated:.
I have told you from the beginning not to discuss the case. I have told you that I would tell you when it is appropriate to discuss the case. It's not appropriate to discuss the case, but again, just like the fact that your anonymity has been preserved and that you've been sequestered, I am going to ask the marshal to be with you during the luncheon recess, not because nobody mistrusts you but to protect you.
Trial Tr. Appellants insist that the District Court's references to "outside or extra-judicial pressures" and to the need for a marshal to "protect" jurors during a lunch break conveyed the message that the trial judge perceived a threat from the defendants. We think appellants infer too much from the trial judge's statements. Prefaced as it was by a discussion of press interest in the case, the District Court's reference to "outside or extra-judicial pressures" would not naturally have singled out the defendants as the source of such pressures.
Nor would the District Court's statement that a marshal would "protect" the jurors during their lunch break necessarily have cast a shadow of guilt upon the defendants. We recognize that a trial judge's acknowledgment that the jury requires protection always has the potential to reflect negatively upon a defendant.
However, the instruction here appears more than anything to have been a palliative designed to soften the inference that the trial judge felt some supervision was necessary to prevent jurors from discussing the case. In any event, given the totality of the court's instructions, we think the jurors most naturally would have interpreted the District Court's statement consistently with the court's earlier explanation for juror anonymity--i.
In sum, we find no error in the District Court's decision to impanel an anonymous jury. Even appellants agree that this was an unusual case for a number of reasons, including the size of the alleged drug conspiracy, the seriousness of the charges, and the large amount of corresponding publicity. For these reasons and the others that we have stated, the District Court's unusual decision to impanel an anonymous jury was not an abuse of discretion.
Appellants next argue that the District Court's manner of conducting voir dire in this case was insufficiently probing with respect to the effects of pretrial publicity.
As we have discussed, the arrest and prosecution of Edmond and his codefendants generated substantial news coverage. Appellants cite approximately 50 news reports dealing in some way with Edmond or his co-defendants that were published during the five-month period between Edmond's arrest and the beginning of appellants' trial, and they point out that some reports linked Edmond and other appellants to Colombian drug cartels and as many as 30 homicides.
In the wake of such publicity, appellants contend, the District Court's manner of conducting voir dire, which consisted of administration of the previously discussed questionnaire followed by generalized questioning of groups of prospective jurors, was inadequate to ensure that the jury ultimately impaneled was free from prejudice against the defendants. Although we agree that the voir dire with respect to pretrial publicity was imperfect, we reject appellants' argument that the shortcomings in the trial judge's inquiry were so serious as to constitute an abuse of discretion under the circumstances of this case.
The Sixth Amendment right to jury trial "guarantees to the criminally accused a fair trial by a panel of impartial, 'indifferent' jurors," but it does not require "that the jurors be totally ignorant of the facts and issues involved. Dowd, U. Rather, "[i]t is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court.
Our cases recognize that protection of this right "demands that voir dire examination serve as a filter capable of screening out" those jurors whose prejudice against the defendants renders them incapable of performing this function.
Liddy, F. United States, U. Despite the significance of voir dire as a safeguard against juror bias, however, the trial judge's administration of this process "is not easily subject to appellate review. Virginia, U. As the Supreme Court has observed,. Both must reach conclusions as to impartiality and credibility by relying on their own evaluations of demeanor evidence and of responses to questions.
In neither instance can an appellate court easily second-guess the conclusions of the decisionmaker who heard and observed the witnesses. Rosales-Lopez, U.
The trial judge also is far more likely than an appellate court to be familiar with the atmosphere surrounding the trial, and the resulting potential for juror prejudice from publicity, racial issues, or other factors. For this reason, we generally defer to the District Court's determinations as to the questions to be asked of prospective jurors.
See Mu'Min, U. It is well-established in this circuit that "[t]he trial judge, acting under Rule 24 a , Fed. Washington, F. Haldeman, F. Robinson, F. Bryant, F. While we grant district courts wide latitude in the conduct of voir dire, however, we have established rules to guide their discretion in cases involving substantial pretrial publicity to ensure that the trial judge's procedures meet "the essential demands of fairness.
In Bryant, F. As we made clear in Liddy,. The totality of the circumstances controls whether the likelihood of prejudice is too great to permit the jurors' avowals of impartiality to be accepted.
We think another circumstance to be considered in assessing the "significant possibility" of juror ineligibility arises where, as here, one factor supporting impanelment of an anonymous jury is a concern over extensive trial publicity. In such cases, the trial judge obviously must be alert to the danger that media attention of a level sufficient to support the use of an anonymous jury may bring prospective jurors before the court with biases against the defendants already established.
The voir dire conducted by the District Court in this case barely satisfied the minimum requirements under these standards. We agree with appellants that the District Court's inquiry was less than ideal in a number of ways. However, in the circumstances of this case, we do not think that the flaws in the District Court's voir dire procedures were so egregious as to constitute an abuse of the trial judge's broad discretion. As we have discussed, the District Court began voir dire in this case by asking prospective jurors to fill out page questionnaires.
These questionnaires asked about the prospective jurors' exposure to various media, inquiring as to the newspapers and television programs most regularly read and viewed by each juror and the number of hours per day devoted to each.
However, the questionnaires did not ask prospective jurors whether they had learned of the defendants or the case by virtue of their exposure to such media. Rather, the questionnaire's sole inquiry regarding the prospective jurors' knowledge of the case was a question that presented a list of 33 names, including those of the defendants, and then asked each member of the venire whether he or she "personally, or any member of [their] immediate family, know or have any connection personal, business, or social with any of these individuals, or have heard of any of them.
The question then asked the prospective jurors to state how they knew, were connected with, or had heard of the persons whose names they recognized.
See id. Of the prospective jurors who responded to this question, 68 had heard of at least one defendant due to pretrial publicity, 11 either knew one of the defendants through personal contacts or failed to answer the question coherently, and never had heard of any of the defendants from any source. See Final Brief for Appellee at Appellants contend that these results shed no light on the impact of pretrial publicity in this case because of the indirect phrasing of the questionnaire's inquiries.
We agree that, as a general matter, inquiries such as these are too oblique to yield a thorough assessment of the effects of media coverage upon the venire. Questions regarding the prospective jurors' general exposure to various media may allow for speculation as to whether such jurors have been exposed to pretrial publicity, but they hardly substitute for direct questions asking whether members of the venire have read or seen reports about the case, and what opinions they have formed as a result.
Moreover, prospective jurors may not automatically recognize that a question asking whether they have "heard of" the defendants is probing for knowledge gained through media reports, especially where, as here, such a question is embedded in an inquiry as to whether members of the venire personally know or have any connection with the defendants.
However, to acknowledge that the District Court's method of inquiry was less than ideal as a general matter is not to say that it constituted reversible error in this case.
We conclude that, in the circumstances presented here, the District Court's questions adequately measured the venire's exposure to pretrial publicity. As numerous media reports make clear, this prosecution was known from the beginning as the "Rayful Edmond case," or simply "the Edmond case," and Edmond's name was featured prominently in nearly every article and broadcast about the progress or background of the case.
See, e. POST, Apr. Because the media had seized upon Edmond's name as a label for the case as a whole, the trial court's practice of asking jurors whether they had "heard of" any of the defendants--including Edmond--was reasonably likely to gauge the number of prospective jurors who had learned about the case through news reports.
In addition, the fact that 68 of the members of the venire responded to this question by explaining that they had heard of one or more of the defendants through the media indicates that prospective jurors understood the questionnaire to call for responses based on their knowledge of the defendants from any source--including pretrial publicity.
Appellants also argue that the oral portion of the voir dire was deficient due to its generalized questioning of groups of jurors and the compound form of the trial judge's question regarding publicity. After the prospective jurors had completed their questionnaires, the District Court divided them into several large groups for questioning. The trial judge asked each group a series of questions, one of which dealt with pretrial publicity.
Although the wording of this question varied slightly on each occasion it was asked, a representative sample is the following:. Now as to those of you who may have read or seen something about this case, the question, therefore, is whether you would be able to put aside anything you might have read or heard about this case before this very moment and render a fair and impartial verdict based solely on what you see and hear in this courtroom after you are selected.
I will assume that all of you, for the moment, have read about this or similar cases. I will further assume that those of you who do not rise at this point, The trial judge and counsel individually questioned those prospective jurors who rose in response to this general question about publicity, as well as other questions, at the bench. This style of questioning hardly commends itself.
The trial judge's inquiry failed to ask directly whether prospective jurors had been exposed to pretrial publicity; instead, the judge conflated that question with the broader inquiry whether, notwithstanding their presumed exposure to such publicity, they could render a verdict based solely on the evidence adduced at trial.
Not only does such questioning confuse the two lines of inquiry, but it allows jurors to assess their own impartiality before the court even has determined the extent of their exposure to the media. Indeed, this latter flaw alone can rise to the level of reversible error in cases where extreme pretrial publicity has inflamed the local community against the defendants. See Patton v.
Yount, U. Davis, F. Here, however, the District Court simply was not confronted with such a "wave of public passion engendered by pretrial publicity" as to cast doubt upon the prospective jurors' own indications of impartiality.
Mu'Min, U. The results of the voir dire itself demonstrate that the community was not inflamed against the defendants. As we have discussed, less than a third of all prospective jurors ever had heard of any of the defendants from the media, much less formed an opinion about their guilt. In addition, of 68 jurors struck for cause by the trial judge, only 12 stated that pretrial publicity had prejudiced them against the defendants.
By contrast, cases in which courts have discounted juror claims of impartiality have involved venires far more severely infected by pretrial publicity than the panel at issue here. Other cases, though presenting less extreme circumstances than Irvin, also have involved more pervasive publicity than existed in this case.
Lippman, F. Appellants point out that, of the 12 jurors who actually deliberated in the case, four acknowledged in response to the questionnaire that they had heard of at least Edmond from pretrial publicity, but none was individually questioned.
However, as we have discussed, the mere fact that trial jurors have heard of a defendant does not give rise to the assumption that they are prejudiced against the defendant except in cases of extremely prejudicial pretrial publicity.
In Mu'Min, for example, "8 of the 12 jurors who sat answered that they had read or heard something about the case, but none of those 8 indicated that he had formed an opinion as to guilt, or that the information would affect his ability to judge petitioner solely on the basis of the evidence presented at trial.
The Mu'Min Court found no reason to doubt the jurors' responses because pretrial publicity, although extensive, had not inflamed the community against the defendant. We reach the same conclusion here. Put simply, this was not a case where jurors' claims of impartiality rang hollow because "so many, so many times, admitted prejudice. In these circumstances, our decision in Liddy indicates that the method of questioning employed by the trial judge here is within the limits of the discretion this circuit accords district courts in the conduct of voir dire.
In reviewing the conviction of G. Gordon Liddy on charges relating to the burglary and wiretapping of the offices of the Democratic National Committee, the Liddy court considered the propriety of a voir dire involving "general questions addressed to the entire array, followed by individual questioning of those who responded affirmatively to any of the initial inquiries, and thus raised the possibility they might have formed an opinion on the case.
This voir dire occurred in an environment in which "virtually all of the veniremen had some knowledge of the case," but group questioning revealed that only "eleven of the then prospective jurors acknowledged having formed an opinion regarding guilt or innocence. Further, subsequent individual questioning of eight prospective jurors professing some knowledge of pretrial publicity demonstrated that "most knew little about the case.
We distinguished these circumstances from cases where venires were tainted by "pervasive, inflammatory publicity," and held that, "[a]lthough the trial judge recognized that the Watergate matter had been publicized extensively, he did not abuse his discretion in declining the defendants' request that all the veniremen who had heard anything about the case be examined individually.
As was the case in Liddy, the trial court here conducted generalized questioning of groups of jurors, followed by individual questioning of those whose responses indicated "they might have formed an opinion on the case"--i.
Appellants, however, pay little attention to Liddy, and instead seek to analogize this case to our decision in Haldeman, F. In that case, which, like Liddy, involved "extraordinarily heavy coverage in both national and local news media" relating to the Watergate affair, we approved of a far more searching method of voir dire involving individual questioning of 77 prospective jurors "on matters such as their employment, attitudes toward the defendants, and exposure to pretrial publicity.
In so doing, as appellants emphasize, we even commented that "it would have been reversible error for the court to accept jurors simply because they said they would be fair. However, we think appellants overlook a critical distinction between Haldeman and this case. While less than a third of the prospective jurors here even had heard of appellants, approximately one third of the venire in Haldeman was predisposed against the appellants in that case.
Thus, concerns over juror bias were much more immediate in Haldeman than in this case or, for that matter, in Liddy , and a more extensive voir dire was required. For these reasons, we conclude that Liddy, rather than Haldeman, presents the most apt analogy to the present case. Accordingly, like the Liddy court, we hold that the District Court did not abuse its discretion in conducting the voir dire.
In sum, although the method of voir dire employed by the District Court fell short of the ideal, we hold that, in the totality of the circumstances, it was adequate to assure the impaneling of a jury that could render a judgment based solely on the evidence adduced at trial. However, we wish to emphasize that our approval of the trial court's actions is inextricably linked to the particular circumstances of this case.
We caution trial judges not to test the outer limits of their discretion--especially where juries are sequestered and anonymous. In particular, we admonish district court judges to avoid asking compound questions of prospective jurors. Where a defendant's constitutional right to a fair trial is at stake, the better practice is to err on the side of a voir dire that is simple, direct, and thorough.
Finally, appellants challenge the District Court's denial of their motions for change of venue, asserting that extensive pretrial publicity established a presumption of prejudice against them. We think that what we already have said with respect to the adequacy of the voir dire suffices to refute appellants' claim. Neither the nature nor the impact of the publicity in this case presented the "extreme circumstances" necessary to establish a presumption that a fair trial was impossible in this jurisdiction.
Rideau v. Louisiana, U. We note, in particular, that approximately two-thirds of the news reports upon which appellants relied in urging a change of venue before the District Court never even mentioned them, but rather dealt more generally with drug-related issues.
For these reasons, we conclude, as did the Haldeman court, that there is "no reason for concluding that the population of Washington, D. Appellants claim that the trial judge showed bias against them in the enforcement of procedural restrictions, comments to defense counsel, and nonverbal "conduct" so prejudicial as to deprive them of due process under the Fifth Amendment. In reviewing a claim of judicial bias, we must determine "whether the judge's behavior was so prejudicial that it denied [appellants] a fair, as opposed to a perfect, trial.
Logan, F. Pisani, F. As the threshold for a showing of bias is high, we need not decide "whether the trial judge's conduct left something to be desired, or even whether some comments would have been better left unsaid. We require that a judge remain a "disinterested and objective participant in the proceedings," United States v.
Norris, F. Warner, F. Jackson, F. A finding of judicial bias must be based on "an abiding impression left from a reading of the entire record," Offutt v.
Twomey, F. The trial judge imposed a pretrial Order on September 11, , establishing restrictions on evidentiary objections and bench conferences. The Order provided that.
Counsel shall only state the basis for their objection If a lawyer believes that it is absolutely essential that he or she approach the bench to explain his or her evidentiary objection in greater detail, the lawyer shall make such a request to the Court Motions in limine shall be made in writing, except for good cause, with citations to relevant and controlling authority.
While conceding that the Order is neutral on its face, appellants claim that the judge selectively enforced the Order by denying defense attorney requests for bench conferences, requiring certain motions in limine to be made in writing, and preventing defense counsel from making continuing objections to a line of questioning.
The trial judge's strict enforcement of procedural restrictions in no instance exceeded his "duty to require all counsel See also Norris, F. The trial judge is properly governed by the interest of justice and truth, and is not compelled to act as if he were merely presiding at a sporting match. The record belies the claim that the judge created an "appearance of partiality" by overwhelmingly denying defense requests for bench conferences. Despite the court's order that requests for conferences be made only if "absolutely essential," defense counsel asked to approach hundreds of times, and were granted access over times in the jury's presence.
Appellants do not claim that a greater percentage of government requests than defense requests were granted, but even if that were the case such a disproportion would be insufficient by itself to establish bias.
In many instances where requests for bench conferences were denied, counsel was permitted to approach or state the grounds for an objection shortly after the denial. In numerous other cases, the record makes clear that the grounds for the request were known to the judge at the time of the ruling.
The court's refusal to grant a bench conference in these instances reflects not bias, but simply the rejection of defense counsel's legal arguments. Appellants' claim that the rule requiring motions in limine to be made in writing created an appearance of bias is similarly unpersuasive.
The rule was neutrally fashioned to apply to all objections, not just defense objections. In both of the instances cited by appellants, defense counsel's attempt to circumvent the rule provoked the ensuing heated exchange with the judge, and even then the judge did nothing more in front of the jury than request that counsel follow the terms of the order. In both cases, defense counsel had the opportunity to speak with the judge and express their views fully moments after the denial of their oral motions.
In light of these factors, we think it cannot reasonably be said that these incidents showed the judge to be in any way prejudiced against the defense. Finally, we reject appellants' assertion that the court's refusal to allow continuing objections to a line of testimony created an appearance of partiality. Appellants cite only two occasions where the court so ruled: in both cases defense counsel's initial objection to the admission of witness testimony was denied, and in both the judge simply refused the request without making any comment susceptible to an inference of prejudice.
We also agree with the Government that there are reasonable grounds upon which the trial court might have determined not to allow continuing objections--for example, that they are imprecise, and that appellants might have been prejudiced on appeal from application of the "plain error" standard of review to "vague" objections below.
Pryce, F. Such concerns more than counterbalance appellants' claim that the denials made them look "foolish" for repeatedly objecting. In any case, the court did grant continuing objections on occasion, and at several points during the trial also gave sua sponte instructions for example, telling jurors not to "hold it against lawyers for seeking out rulings from the court, because that's appropriate and proper" to minimize the impact of any prejudice arising from repeated objections.
Appellants next assert that the record is "replete" with instances showing the judge's hostile attitude toward the defense, expressed both verbally and through facial expression, in and outside the jury's presence. The cumulative effect of the "berating, threatening, and belittling" of defense counsel, appellants maintain, was to prejudice the jury against the defense.
While a judge's comments before the jury are subject to "special scrutiny" on a claim of bias, United States v.
Dellinger, F. Liteky v. In rejecting a judicial bias claim in Logan, we did not articulate a precise standard, but we noted that the "exchanges" that the jury heard between judge and counsel "involved sustaining of objections, denying of motions and ordering the rephrasing of questions to witnesses," and that the judge's comments were directed at defense counsel, not at the defendants themselves.
Other factors relevant to our bias inquiry include the "enormous pressures" on trial judges, which can "on occasion cause even the most imperturbable judge to vent irritation or impatience that ideally should be suppressed," Pisani, F. We have thoroughly reviewed the record, including the instances cited by appellants, and find absolutely no evidence to support the claim that the judge's comments revealed prejudice against the defense.
All of the challenged remarks in this case, as in Logan, were directed at defense counsel, not at the defendants. Many e. DiTommaso, F. Williams, F. Shelton, F. As to several others, we agree with the Second Circuit that "reversal is not mandated where Several supposedly hostile remarks such as, for example, the judge's instruction to counsel that "nobody is stopping you [from asking questions of a witness], as long as you do it properly" "involved sustaining objections, denying of motions and ordering the rephrasing of questions to witnesses," Logan, F.
In the course of a three-month trial that produced some 20, pages of transcript, we can find no single example where the trial judge "berated" or "belittled" defense counsel in the manner appellants describe.
The most extreme remarks--such as the judge's comment to one defense counsel that "we see a lot of things differently, but that's all right," or his statement to another that "I have ruled, and you know the law, or presume to know it, anyhow"--do not even come close. In both instances the comments, while perhaps gratuitous, were direct responses to defense counsel's disruptive behavior; in the first, to counsel's claim that the judge was "hollering" at him, and in the second, to counsel's fifth successive demand that the judge explain why he sustained a government objection.
On no occasion was the judge's conduct here analogous to the language in United States v. Spears, F. Who do you think you are? Even if one were to conclude--which we do not--that any of the challenged remarks were themselves prejudicial, the impact on the jury of such a small number of instances as are cited here would have been minimal or lost in the course of the lengthy trial. Turner, F. Centracchio, F. Compare United States v. The judge's instruction to the jury during the trial that "this is not a popularity contest," and his admonition not to draw any inferences from his rulings on objections or comments to counsel, would also have counteracted any prejudice arising from an appearance of bias.
See Logan, F. We are also unpersuaded by appellants' argument that the judge's treatment of defense counsel outside the jury's presence is relevant to their bias claim. We agree with the First and Second Circuits, that "[e]ven if unwarranted, a judge's reprimand of counsel furnishes no basis for reversal if made outside of the jury's presence.
This position is consistent with our decision in Logan, where we noted in rejecting a bias claim that "the jury never heard " many of the allegedly hostile comments. In any event, we do not think that the 20 occasions can be fairly claimed to have "necessarily chilled" defense counsel's "vigorous advocacy.
While it appears that the judge was strict with both sides, all of these instances, including the judge's statement on three occasions that counsel was "in contempt of court," fall within the judge's discretion to prevent improprieties during the trial and to "rebuke counsel for improper behavior. Finally, we reject appellants' claim that the judge showed bias against the defense through "more subtle, nonverbal messages, such as facial expressions, gestures, and tone of voice.
McCord, F. In many of the instances cited by appellants to show the judge's "gruff and angry manner" in responding to defense objections, the judge or the prosecutors specifically disagreed with defense counsels' characterizations of the judge's demeanor. Because we are reviewing a paper record, we cannot state with certainty that the judge never improperly glowered when responding to defense counsel.
But even if we assume that the judge did display nonverbal hostility to defense counsel at isolated moments in the trial, these instances must be deemed to reflect only the "modicum of quick temper that must be allowed even judges.
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