United States v. McCray, Clemith L. ( 2006 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-1412
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
CLEMITH L. MCCRAY,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Central District of Illinois.
No. 04 CR 20011—Michael P. McCuskey, Chief Judge.
____________
ARGUED JANUARY 11, 2006—DECIDED FEBRUARY 9, 2006
____________
Before FLAUM, Chief Judge, and EASTERBROOK and
MANION, Circuit Judges.
FLAUM, Chief Judge. Clemith McCray was charged
with three counts of distribution of cocaine base. He was
found guilty of counts II and III, but was acquitted of count
I. During his trial, the district court judge asked questions
of two witnesses: the confidential informant that the
government alleged had purchased drugs from McCray and
a police officer involved in the case. In a motion for a new
trial, McCray alleged that the district court’s questions
showed a bias toward the prosecution and tainted the jury’s
verdict. The district court ruled against McCray’s motion.
He now appeals on the same basis.
2 No. 05-1412
I. Background
Clemith McCray was charged with distributing crack
cocaine on three dates during the summer of 2002: July 30,
August 2, and August 14. These charges resulted from
“controlled buys” by a confidential informant, Richard
Wright. On all three occasions, Wright met with McCray at
locations in Champaign, Illinois. Before Wright met with
McCray, an agent thoroughly searched Wright for
any drugs or money. After police concluded that Wright was
not carrying either, he was given money to purchase drugs
from McCray. These meetings were taped by agents from a
distance.
After the July 30 meeting, which took place at a Cham-
paign residence, Wright delivered to the police three
small rocks of crack cocaine wrapped in a napkin. The rocks
contained exactly 1 gram of crack cocaine. After the August
2 meeting, which took place in a parking lot, Wright
delivered a bag containing 6.6 grams of crack cocaine. After
the August 14 meeting, which also took place in a parking
lot, Wright delivered a bag that contained 6.1 grams of
crack cocaine.
Videotapes of all three meetings were admitted into
evidence and shown to the jury at trial. The July 30
recording was videotaped at some distance from where
Wright and McCray allegedly met. Another man was
present in the video, and Wright briefly stepped outside of
the view of the camera. The August 2 and 14 tapes
were recorded from a lesser distance, and only Wright
and the defendant were present. The August 14 record-
ing reflected a hand-to-hand exchange between Wright
and the defendant, and the defendant was wearing a
name tag on his shirt that read “Clemith.”
Wright testified that McCray was the man he met with on
all three occasions, and that he had purchased crack cocaine
from McCray on the dates and in the amounts reflected in
No. 05-1412 3
the indictment. On cross examination, McCray’s counsel
began to impeach Wright with his criminal history, his
motive to cooperate with law enforcement, and his history
of drug use. The district court interrupted the cross exami-
nation shortly after Wright admitted that he would do
many things to get money to support a former heroin habit,
including “street hustling, stealing, borrowing, begging, and
panhandling.” The exchange was as follows:
DEFENSE COUNSEL: Did you ever lie to get money
to buy drugs?
WRIGHT: Yes.
DEFENSE COUNSEL: Often?
WRIGHT: Not really, because I would
do other things. Wasn’t that
many people to lie to that
would trust an addict. So you
would have to resort to other
things.
DISTRICT COURT: When you say lie, do you
mean like if I was walking by
you and you’d ask, “Would
you give me some money for
food?”
WRIGHT: Yes.
DISTRICT COURT: —that would be a lie because
you intended to use the
money for drugs?
WRIGHT: True.
DISTRICT COURT: And that’s what you call
panhandling? Hustling?
WRIGHT: Well, that’s answering his
question, like, would I lie for
4 No. 05-1412
some money for drugs. Pan-
handling I would walk up to
you and just say, “Can you
help me?” You know, in an-
other—well it all falls in the
same—
DISTRICT COURT: But sometimes you’d say for
food, and it wasn’t for food
and—
WRIGHT: Right, cup of coffee—
DISTRICT COURT: Can you help me? I’m home—
WRIGHT: —transportation, or some-
thing like that.
DISTRICT COURT: Okay.
Shortly after that exchange, the district court again
interrupted defense counsel’s cross examination:
DEFENSE COUNSEL: And you would, you would do
just about anything to get
those drugs if you had to
have them, wouldn’t you?
WRIGHT: There’s certain things I
wouldn’t do.
DEFENSE COUNSEL: Such as?
WRIGHT: My mom—well, she’s de-
ceased now; but certain
things I wouldn’t, you know,
do to my mother.
DISTRICT COURT: Well, let me ask you this. In
listening to your crimes, I
haven’t heard anything about
you beating people up to take
money from them. So if I
No. 05-1412 5
walked by and you asked me
for some money for coffee and
I didn’t give it to you, would
you grab me, beat me up,
throw me down, and take my
money?
WRIGHT: No, I never, I never had to go
to that extreme.
DISTRICT COURT: Okay.
The court again interrupted the cross examination during
a line of questioning concerning how thoroughly police
searched Wright before he made the controlled purchases:
DEFENSE COUNSEL: How were you searched?
WRIGHT: I was—my pants was pulled
down, shoes was taken off,
socks unrolled, made me lift
my shirt because I had on a
T-shirt. And they went
through my pockets, went
through a couple of my—
what else went through?
That’s pretty much—
DISTRICT COURT: They put their hands on your
underwear?
WRIGHT: Yes.
DISTRICT COURT: So if you’d have had drugs
hidden in your underwear,
would they have found them?
WRIGHT: Yeah. Because I had on, like,
you know, jogging like shorts.
DISTRICT COURT: Boxers?
WRIGHT: Yes, the jogging, like, kind.
6 No. 05-1412
Jon Swenson, a lieutenant with the Champaign Police
Department, helped with the investigation. He identified
McCray in the courtroom as the person that he observed
meeting with Wright on August 2, 2002, as he watched the
meeting from a distance. The court interrupted the pros-
ecutor’s examination of Swenson:
PROSECUTOR: Lieutenant Swenson, how
long have you known the de-
fendant?
SWENSON: Since probably the early to
mid ‘90s. I’ll say ‘92, ‘93,
somewhere in there.
PROSECUTOR: I don’t want to go into the
details of how you know him,
but let me ask you: Have you
viewed—as part of knowing
who he is, have you reviewed
photographs of him?
SWENSON: Yeah. I’ve had occasion to put
the name and the face
together through my, in my
professional capacity, yes.
PROSECUTOR: Can we have—
DISTRICT COURT: Have you met him person-
ally before?
SWENSON: You know, I—discussing this
with [the prosecutor] before
the trial, one of my habits
early in my career used to be
that at my lunch hour I went
into a room that we called
the IDMO room. It was just
photos that were broken
down by male, female, black,
No. 05-1412 7
white, height, weight; and
what I would do is go in
there, and I would spend my
lunch hour thumbing through
these photos trying to memo-
rize people whose names I
had heard and who I knew
were involved in any activity
involving—
DEFENSE COUNSEL: Objection, Judge, calls for an
answer—
DISTRICT COURT: Jury will disregard the
response. That’s not what I
asked.
SWENSON: I—
DISTRICT COURT: I asked if you met him per-
sonally.
SWENSON: And I cannot tell you wheth-
er it was through that pro-
cess or through personal con-
tact on the street.
Before beginning his cross examination, defense counsel
requested to approach the bench. The district judge re-
minded counsel that he did not entertain sidebars, but sent
the jury out and heard the objection. Defense counsel moved
for a mistrial on the basis of Swenson’s comments about
how he knew McCray. The district judge asked the court
reporter to read back Swenson’s remarks, then ruled that a
mistrial was not necessary. The judge believed that he
stopped the comment before any truly prejudicial informa-
tion was revealed, and further noted that the jury had been
instructed to disregard the statement.
At the end of the trial, the judge instructed the jury that
nothing he did or said was meant to reflect his opinion
8 No. 05-1412
about the facts of the case or what the verdict should be.
The jury found McCray not guilty on count I, which was
based on the July 30 encounter, but found him guilty on
counts II and III, which were based on the two encounters
in August. McCray filed a motion for acquittal and a motion
for a new trial, both of which were denied. The claims made
in the motion for a new trial were the same ones pursued
here on appeal. McCray was sentenced to 360 months
imprisonment on each count, with the sentences to run
concurrently, and 8 years of supervised release. He was also
ordered to pay a small fine.
McCray claims that he is entitled to a new trial because
the judge’s questioning showed a bias toward the pros-
ecution, because the questions “rehabilitated Wright in a
manner a prosecutor might,” and “opened the door to the
jury’s consideration that Mr. McCray may have been
identified from police photographs.” He further alleges that
these errors caused him prejudice. The government con-
tends that defense counsel did not object to the
court’s questions during trial, and the claim is therefore
forfeited on appeal and reviewed only for plain error.
Moreover, the government claims that the questions did not
display a bias, and that even if they did, the jury instruc-
tions would have cured any effect that might have had on
the jury. The government also argues that no prejudice
resulted from the questioning.
For the following reasons, we now affirm the district
court’s denial of a new trial.
II. Discussion
“Federal judges have wide discretion to determine the role
that they will play during the course of a trial.” United
States v. Washington, 417 F.3d 780, 783-84 (7th Cir. 2005)
(citing United States v. Verser, 916 F.2d 1268, 1272 (7th Cir.
No. 05-1412 9
1990)). Federal Rule of Evidence 614(b) allows a judge to
question witnesses, even those called by a party to the
action. “A district judge is free to interject during a direct or
cross-examination to clarify an issue, to require an attorney
to lay a foundation, or to encourage an examining attorney
to get to the point.” Washington, 417 F.3d at 784 (citing
FED. R. EVID. 614(b); United States v. Reynolds, 189 F.3d
521, 528 (7th Cir. 1999)). The judge may not assume the
role of an advocate, however. Id.If a party claims that a judge favored the opposing party
during questioning, the court evaluates the claim in a two-
step inquiry. “First, we inquire whether the judge in fact
conveyed a bias regarding the defendant’s dishonesty or
guilt. If so, we consider whether the complaining party
has shown serious prejudice resulting from the district
court’s comments or questions.” Id. at 784 (citations omit-
ted).
In this case, even assuming that the district court’s
questions showed a bias toward the prosecution, we are
unable to find that they prejudiced McCray. The defendant’s
only argument related to prejudice is as follows:
[The jury’s finding of not guilty on] count 1 of the
indictment, in spite of the fact that a videotape of that
meeting between Wright and Mr. McCray was shown to
the jury, indicates that the evidence was not so over-
whelming as to render harmless the court’s questioning.
Serious prejudice resulted from the questioning such
that it colored the jury’s perception of the court’s
attitude toward the credibility of Richard Wright and
the background of Mr. McCray.
Contrary to McCray’s assertions, the acquittal on count I
does not indicate that the state’s evidence on counts II and
III was insubstantial. The tape from July 30 was far
inferior to the tapes made in August. The view of the
suspect was not as good because the cameraman was
10 No. 05-1412
standing farther from the transaction, another party
was present for that exchange, and McCray stepped
briefly out of the view of the camera. No such problems
existed in the videotapes of the transactions that formed the
basis of counts II and III. Indeed, the August 14 videotape
included additional details, recording a hand-to-hand
transaction and a name tag that read “Clemith.” These
additional details made that tape much more damaging to
the defense than the comparatively fuzzy tape of the July
30 transaction. It is not appropriate, therefore, to assume
that the state’s evidence on counts II and III was thin.
The acquittal on count I indicates that the jury was
not willing to base a conviction on Wright’s testimony.
Wright testified that he received the drugs from McCray on
July 30, yet the jury did not convict McCray of that conduct.
Therefore, any “rehabilitation” that might have occurred
during the judge’s questioning did not cause the jury to take
Wright’s word at face value.
Similarly, the acquittal on count I indicates that, even
if the jury believed that McCray had a criminal history
based on Swenson’s comment, it was not willing to con-
vict on that basis alone (or combined with Wright’s testi-
mony regarding the transactions). McCray would have had
the same criminal history on July 30 as he did in August.
Therefore, Swenson’s comments were also harmless.
Moreover, we have no reason to believe that the jury
disregarded the judge’s instruction that nothing he did or
said was meant to reflect any opinion on his part about the
facts of the case or what the verdict should be. We have
held that such instructions reduce the risk of any prejudice
from the court’s questioning, United States v. Evans, 994
F.2d 317, 324 (7th Cir. 1993), and we believe that the
instruction was effective here.
Although we conclude that this defendant was not
prejudiced by the district court’s inquiry, we express
some concern over the judge’s decision to proceed with
No. 05-1412 11
extensive questioning. When coupled with the trial court’s
practice of not permitting sidebars, the judge’s questions in
this case arguably placed the defendant’s lawyer in an
awkward position. Defense counsel was faced with either
passively accepting what he perceived to be an unwarranted
examination or potentially exacerbating the situation by
challenging the judge’s impartiality in front of the jury. To
avoid the risk of unforeseen prejudice, we encourage district
judges to remain vigilant to the potential impact of their
questions during a jury trial.
III. Conclusion
We find no prejudice from the judge’s questioning and,
consequently, no basis on which to grant a new trial. The
judgment of the district court is AFFIRMED.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—2-9-06