United States v. Victor Val Neuroth ( 1987 )

KEITH, Circuit Judge:

Defendant-appellant, Victor Neuroth, appealed his jury conviction on one count of distributing the drug LSD in violation of 21 U.S.C. § 841(a)(1). A unanimous panel below reversed the conviction, 772 F.2d 909 (5th Cir.1985), relying on United States v. Henderson, 434 F.2d 84 (6th Cir.1970), which the panel construed to prohibit an “on or about” jury instruction when the defendant has an alibi defense for a specific date, and the government’s proof points to that specific date. Although defendant raised other issues besides the propriety of the jury charge in his appeal, we find them meritless, warranting no discussion here. This case was reheard by the court sitting en banc, to reconsider the propriety of Henderson and the standard of review for “on or about” jury instructions when an alibi defense is provided. We now affirm the conviction below, thereby limiting Henderson so that there should be no per se prohibition on “on or about” jury instructions because an alibi defense is provided for a specific date.

I.

On August 6, 1983, Lori Balough talked with Neuroth about drugs, and Neuroth told her that he could obtain a large quantity of LSD. Balough then told her friend, Paula Wilson, about Neuroth’s access to drugs. Wilson told Balough that she had a friend, Eddie Young, whom they did not then know was an Ohio undercover narcotics investigator, who wanted to purchase a large quantity of “acid.” Balough then met with Neuroth and told him that she had a friend who wanted to purchase acid. Neuroth said he would “put them on order.”

Wilson arranged for Young to meet with Balough on August 8, 1983. At that meeting, which was also attended by James Corica, Balough offered to sell 1,000 “hits” of acid to Young. Corica set the price at $1,000.

On August 14, 1983, Corica, who was employed by Neuroth selling tickets to a travelling circus, notified Balough that the drugs had arrived. Balough went to her trailer, where, in Corica’s presence, Neuroth handed her a baggie full of LSD.

On August 15, 1983, Agent Young contacted Wilson and was told by her that Balough would come to Wilson’s house with the drugs. Young went to the house, and when it became evident that the drugs were on the premises he arrested the women and seized the drugs. On the day of her arrest, Balough identified Neuroth as her “source.” Balough, Wilson and Corica cooperated with Ohio authorities and Neuroth was apprehended.

The indictment in this case charged in full:

On or about the 14th day of August 1983, in the Northern District of Ohio, Eastern Division, VICTOR V. NEUROTH did knowingly and intentionally distribute approximately 1500 unit doses of lysergic acid diethylamide (LSD), a schedule I non-narcotic drug controlled substance; in violation of Title 21, Section 841(a)(1), United States Code.

At trial the government adduced evidence that tended to show that on August 14, 1983, Neuroth distributed LSD to Balough at her trailer. Corica testified that on August 14 he was present in the trailer when Neuroth delivered the drugs to Balough. Balough also testified that Neuroth delivered the drugs to her in her trailer at approximately 1:30 p.m. on August 14, 1983. The government presented no evidence that the delivery of drugs from Neuroth to Balough occurred on any date other than August 14, 1983, although evidence was presented to show that Balough and Wilson were prepared to deliver the drugs to Agent Young on August 15, 1983.

Neuroth presented an alibi defense. His wife testified that Neuroth was with her the entire day on August 14,1983, and that they did not see Balough or Corica at any time during the course of the day. She stated that she and Neuroth awoke at approximately 9:30 a.m. and then went to a fish fry with some friends and did not return home until approximately 10:30 p.m. that evening.

At Neuroth’s request, the trial court instructed the jury that:

The defendant has introduced evidence of an alibi through witnesses who testified that he was not present at the time when or at the place where he is alleged to have committed the offense charged in the indictment.

If, after consideration of all the evidence in the case, you have a reasonable doubt as to whether the defendant was present at the time and place the alleged offense was committed, you must acquit him.

Over Neuroth’s objection, the court also gave the following instruction:

You will note the indictment charges that the offense was committed “on or about” a certain date. The proof need not establish with certainty the exact date of the alleged offense. It is sufficient if the evidence in the case establishes beyond a reasonable doubt that the offense was committed on a date reasonably near the date alleged.

Neuroth contends that the “on or about” instruction was prejudicial to him because all of the government’s proofs were directed to a specific date and he presented an alibi defense for that date. Under these circumstances, Neuroth asserts, the “on or about” instruction encouraged the jury to speculate that the offense might have occurred on a date other than August 14, even though the government produced no evidence of a distribution from Neuroth to Balough on any other date.

II.

The panel believed it was bound by Henderson, and reluctantly reversed the conviction. In Henderson, the defendant was convicted of violating statutes proscribing the interstate transportation of a woman for the purpose of having her engage in prostitution. The offense allegedly occurred October 5, 1965. The defendant’s alibi was supported by employment records which indicated the prostitute, whom defendant allegedly traveled with on October 5, was legitimately working at a General Electric plant on that date. In Henderson, as in this case, the trial judge gave an instruction that the proof necessary to convict need not correspond exactly to the date alleged in the indictment; rather “[t]he Government will satisfy its burden of proof if it establishes beyond a reasonable doubt that the event happened during a period of time reasonably related to the date alleged in the indictment.” Henderson, 434 F.2d at 86. This instruction was found to be reversible error because the jury charge unfairly undermined defendant’s alibi defense, insofar as it gave the jury latitude to speculate as to when the crime occurred. The court emphasized that the authenticity of the alibi defense in Henderson was “unquestioned” and that there was no variance between the date in the indictment charged and the evidence offered to prove it. Id. at 88-89.

III.

We do not believe that Henderson should be interpreted so broadly as to prohibit an “on or about” jury charge every time there is an alibi defense. Such a broad holding would unduly circumscribe the trial judge’s discretion in instructing the jury, considering the myriad factual situations that arise which may necessitate the “on or about” language. Furthermore, we believe — as the panel in Henderson apparently did, See Henderson, 434 F.2d at 90 — that the erroneous giving of an “on or about” instruction should be subject to a harmless error analysis. Such analysis may appropriately be applied in the case of instructions. Rose v. Clark, — U.S. -, 106 S.Ct. 3101, 92 L.Ed.2d 460 (1986).

In determining whether an “on or about” instruction is proper in a particular case, the district court should look at how specifically the government alleges, in its indictment, the date on which the offense occurred, and compare that to the proof at trial as to what date the offense occurred. If the indictment or the proof points exclusively to a particular date, it would be preferable for the trial judge to avoid the “on or about” language.

The type of crime should also be considered. For instance, with some crimes, such as conspiracy, the proof is often nebulous as to exactly when the crime occurred. “On or about” language would be preferable in such a case, as compared to cases involving more “concrete” crimes, like murder, which are more easily pinpointed in time. Of course, there is no rigid formula for determining whether an “on or about” instruction is permissible. The above factors are offered as guidelines for cases such as this one.

Even when we determine that the district court committed error in giving an “on or about” instruction, we will subject that decision to a harmless error analysis. An error, not of constitutional dimension, is harmless unless it is more probable than not that the error materially affected the verdict. United States v. Rasheed, 663 F.2d 843, 850 (9th Cir.1981), cert. denied sub nom. Phillips v. United States, 454 U.S. 1157, 102 S.Ct. 1031, 71 L.Ed.2d 315 (1982). Such an analysis will focus on the persuasive value of the alibi defense evidence,¹ and the degree to which the evidence pointed to a particular date.²

Finally, the overall weight of the evidence indicating guilt should be considered. For instance, when evidence of guilt is overwhelming, an “on or about” charge could be harmless error, even when all the proof is directed to a specific date for which there is an alibi, and there is alibi evidence as to that date.

IV.

Applying the above analysis to the instant case, we find the “on or about” charge to be harmless error. Significantly, defendant’s alibi defense was not likely to persuade the jury. It was merely the word of a highly partial witness; defendant’s wife. Moreover, the evidence pointing to defendant’s guilt was strong, if not overwhelming. Both Corica and Balough testified that defendant delivered the drugs on August 14th. There were also taped conversations, admitted into evidence, which incriminated defendant. We cannot say that the asserted error “more probably than not” affected the verdict in this case. Therefore, such error, if any, was harmless.

V.

In conclusion, Henderson should be limited to the particular facts of that case. The propriety of an “on or about” jury instruction should be evaluated on a case by case basis, subject to a harmless error analysis. We believe the concern that an “on or about” instruction may encourage a jury to speculate wildly as to the commission of a crime on a date not covered by the proof is misplaced. A jury would have no reason to speculate on a date if there was no proof directed thereto. The risk that a jury may make a finding of fact unsupported by the evidence is inherent in every case and cannot be obviated completely by any instruction.

Accordingly, the conviction is hereby reinstated.

1 . For example, in Henderson there was highly persuasive alibi evidence, i.e. actual employee records, whereas in the instant case defendant’s wife’s alibi testimony, that they were at a fish fry, is far less persuasive. Accordingly, any error in giving an "on or about" instruction when the alibi evidence is weak is more likely to be harmless.

2 . The more the evidence all points to a particular date, the less risk there is that the jury was confused or was encouraged to speculate about when the crime occurred, and thus the less likely it is that the error was prejudicial.