United States v. Ronald Frazier ( 2002 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 00-3566
___________
United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the Northern
* District of Iowa.
Ronald Frazier, also known as Paul *
Sato, also known as Glen Rose, * [UNPUBLISHED]
*
Appellant. *
___________
Submitted: September 20, 2002
Filed: October 10, 2002
___________
Before McMILLIAN, FAGG, and BOWMAN, Circuit Judges.
___________
PER CURIAM.
A jury convicted Ronald Frazier of two counts of possession and utterance of
a counterfeited security in violation of 18 U.S.C. § 513(a) (2000), finding he used two
counterfeited cashier’s checks to obtain $11,900 in travelers cheques. Frazier appeals
his convictions, raising six claims before our court.
First, Frazier argues he was deprived of a fair trial because the district court*
included “a/k/a Paul Sato” in the caption of its written answer to a question from the
jury. The prosecution established that the man who purchased travelers cheques with
counterfeited cashier’s checks identified himself as “Paul Sato.” The jury instructions
made clear the jury was responsible for determining whether this man was Frazier.
See, e.g., Jury Instructions 2, 17. Further, the district court removed “a/k/a Paul Sato”
from the caption on the jury instructions. Because Frazier did not object to the
inclusion of “a/k/a Paul Sato” in the court’s response to a jury question, we review the
inclusion of this alias for plain error. See United States v. Cotton, 122 S. Ct. 1781,
1785 (2002) (standard of review). We assume the caption on the court’s response to
a jury question was an error, that it was plain, and that it affected the defendant’s
substantial rights. Having reviewed this mistake in the context of the trial and the
other jury instructions, however, we conclude that naming the defendant as “a/k/a Paul
Sato” in the caption of one response to a jury question did not “‘seriously affect[] the
fairness, integrity, or public reputation of [the] proceedings.’” Id. (quoting United
States v. Olano, 507 U.S. 725, 732 (1993)). Frazier’s first claim is without merit.
Second, Frazier contends the district court committed plain error by failing to
define “uttering” in the jury instructions, although Frazier did not request a
clarification or object to the jury instructions and the jury did not ask for a definition.
See United States v. Watson, 953 F.2d 406, 410 (8th Cir. 1992) (standard of review).
We conclude this word is of general use, and find no plain error in the district court’s
failure to issue a definition. Even if the jury had misunderstood the definition of
“uttering,” however, the jury verdict would remain valid. As discussed below, the jury
was not required to find that Frazier uttered counterfeited securities to convict him of
both charges; the jury only needed to find that Frazier possessed counterfeited
*
The Honorable Michael J. Melloy, then United States District Judge for the
Northern District of Iowa, now United States Circuit Judge for the Eighth Circuit
Court of Appeals.
-2-
securities. Further, Frazier does not challenge the definition of possession given in
jury instruction thirteen.
Third, because Frazier did not object to a typographical error on the verdict
form, we review this claim for plain error. See United States v. Davis, 237 F.3d 942,
944 (8th Cir. 2001) (standard of review). The verdict form separated counts one and
two. For count two, the verdict form read:
2. As to Count 2 of the Indictment, we the Jury find the Defendant Ronald
Frazier:
Not Guilty____ Guilty ____
If you found the Defendant guilty of Count 1 of the Indictment, did you find the
object of the offense to be:
__ Possessing a counterfeited check.
__ Uttering a counterfeited check.
__ Possessing and uttering a counterfeited check.
(Emphasis added). The jury concluded Frazier was guilty of both counts one and two,
and found for both counts he had possessed and uttered a counterfeited check. The
verdict form should have read, “If you found the defendant guilty of Count 2 of the
indictment . . . .” (emphasis added), before asking the jury to identify the offense
committed by Frazier.
Taken as a whole, the jury instructions make this error harmless. We presume
the jury followed the court’s instructions. See Loehr v. Walton, 242 F.3d 834, 836 (8th
Cir. 2001). Jury instruction eight told the jury the two counts charged separate crimes
and a separate verdict was required for each charge. Jury instruction nine states the
jury can return a guilty verdict on each count if it finds Frazier possessed “and/or”
uttered a counterfeited security, even though Frazier was charged with possessing
“and” uttering. (The charge is consistent with jury instruction nine under the law of
our circuit. See United States v. Blumeyer, 114 F.3d 758, 769 (8th Cir. 1997)). Thus,
whether the jury found Frazier “possessed,” “uttered,” or “possessed and uttered” a
-3-
counterfeited security does not affect the jury’s conclusion that Frazier was guilty of
charge two. We conclude the error on the verdict form is harmless.
Fourth, Frazier argues the district court committed reversible error when it failed
to address the alleged problem that some jurors slept during the defense expert
witness’s testimony about the unreliability of eyewitness identifications. Because
Frazier did not alert the court to possible jury misconduct during the trial, Frazier is
barred from raising this claim for the first time on appeal. United States v. Sorenson,
611 F.2d 701, 702 (8th Cir. 1979) (per curiam).
Fifth, Frazier claims the district court abused its discretion when it did not grant
his second motion for substitution of appointed counsel. See United States v. Barrow,
287 F.3d 733, 737 (8th Cir. 2002) (standard of review). Having reviewed the record,
we conclude the district court did not abuse its discretion when it denied Frazier’s
motion to replace his second court-appointed attorney.
Finally, Frazier raises ineffectiveness of counsel claims. Frazier’s ineffective
assistance claims are “not ripe for review on direct appeal because no record was made
on the issue before the District Court.” Blumeyer, 114 F.3d at 771. Even if this claim
were properly before our court on habeas review, though, we would likely conclude
Frazier’s allegations do not establish the cause and prejudice required by Strickland v.
Washington, 466 U.S. 668, 687 (1984).
For the reasons stated above, we affirm Frazier’s convictions.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
-4-