United States v. Donnie Strothers, United States of America v. William Hoyle , 77 F.3d 1389 ( 1996 )

Opinion for the court filed by Circuit Judge HENDERSON.

Concurring opinion filed by Circuit Judge SENTELLE.

KAREN LeCRAFT HENDERSON, Circuit Judge:

In April and May 1993, appellants Donnie Strothers and William Hoyle were tried, along with two codefendants, under a nine count indictment alleging various drug distribution offenses. Each appellant was convicted of one count of conspiring to distribute more than 50 grams of cocaine base in violation of 21 U.S.C. §§ 846 and 841 and one count of distributing more than five grams of cocaine base in violation of 21 U.S.C. § 841. In addition, Hoyle was convicted of three counts of distributing cocaine base on specific dates in violation of 21 U.S.C. § 841.¹ As a consequence, on December 17, 1993 the district court sentenced Strothers to concurrent prison terms of life and 40 years and Hoyle to concurrent prison terms of life, 240 months and 480 months. The appellants challenge both their convictions and their sentences on various grounds. For the reasons set out below, we vacate each appellant’s conspiracy conviction, and his consequent life sentence, because it was returned after a coercive deadlock instruction to the jury. We affirm the appellants’ other convictions and the sentences thereunder.

Each appellant first challenges his convictions on the ground the trial judge delivered a coercive “anti-deadlock” instruction. On May 19, 1993, after a lengthy trial and eight days of deliberation, the jury foreman notified the court in wilting that the jurors had reached unanimous verdicts with respect to all defendants on all counts of the indictment except count one, which charged all four defendants with conspiring to distribute fifty grams or more of cocaine base. The note explained that the jury could not reach a unanimous verdict on the conspiracy count with respect to two defendants. The trial judge, rejecting the defendants’ suggestion that he take a partial verdict, recalled the jurors to the courtroom and delivered an “anti-deadlock” instruction. We agree with the appellants that the instruction given im-permissibly departed from the language of this circuit’s established deadlock charge and therefore vacate the appellants’ conspiracy convictions under count one because the convictions most probably were affected by the defective instruction.

In United States v. Thomas, 449 F.2d 1177 (D.C.Cir.1971), “in the exercise of our supervisory power over the administration of the law in this circuit,” we formally adopted the American Bar Association (ABA) deadlock instruction “as the vehicle for informing jurors of their responsibilities” in an apparent deadlock situation. 449 F.2d at 1187. The ABA instruction has since been included as the “Alternative A” deadlock charge in the model jury instructions for the District of Columbia. Criminal Jury Instructions for the District of Columbia, Instruction 2.91, Alternative A (4th ed.). In United States v. Berroa, 46 F.3d 1195 (D.C.Cir.1995), we affirmed our adherence to the ABA instruction and expressly held that the “Alternative B” model deadlock instruction, used by the district judge there, “departed from the anti-deadlock instruction approved by this court in Thomas” and “was presumptively coercive.” 46 F.3d at 1198. We specifically noted that Alternative B omitted an “important element of the ABA standard,” namely “ ‘that no juror should surrender his honest conviction as to the weight or effect of the evidence solely because of the opinion of his fellow jurors, or for the mere purpose of returning a verdict.’ ” Id. at 1197 (quoting United States v. Spann, 997 F.2d 1513 (D.C.Cir. 1993)). Here too the trial judge inexplicably elected to use Alternative B, which lacks the required admonition against surrendering one’s honest conviction, in violation of our repeated directive to use the ABA deadlock instruction.² Thus, we conclude that the trial judge erred in giving the Alternative B instruction and that the jurors’ subsequent deliberation and verdicts were tainted by that error. Accordingly, we vacate the appellants’ conspiracy convictions under count one because the verdicts on that count appear to have resulted from post-deadlock, deliberation.

Our decision to vacate the appellants’ conspiracy convictions does not affect their other convictions. We know from the jury note that the jurors had reached a unanimous verdict on all but the conspiracy counts before receiving the anti-deadlock instruction. Contrary to the appellants’ contention, we should not presume without any corroborative evidence that, after listening to the instruction, the jurors reconsidered or changed any of their votes on those counts to the prejudice of the appellants. Although we find that the instruction could have coerced the jurors holding out for acquittal on count one into voting to convict on that count, thereby breaking the deadlock and producing a unanimous verdict, we can identify no basis in reason or fact for presuming that the instruction could have influenced a jury already declared to be unanimous on the other counts to change its collective mind on those counts.

Next, Strothers argues that his conspiracy and distribution convictions should be vacated because the indictment alleged and the district court improperly admitted evidence of criminal acts he committed before he turned eighteen, effectively permitting the government to prosecute him for offenses he committed as a minor in violation of the Federal Juvenile Delinquency Act (FJDA). See 18 U.S.C. §§ 5031-5042. We disagree. As the Fourth Circuit has observed, the FJDA “does not, of course, prevent an adult criminal defendant from being tried as an adult simply because he first became embroiled in the conspiracy with which he is charged while still a minor.” The jury is “entitled to assess [testimony of a defendant’s post-majority participation in conspiracy] in light of other evidence showing that [the defendant] had known of the [criminal] scheme since its inception.” United States v. Spoone, 741 F.2d 680, 687 (4th Cir.1984), cert. denied, 469 U.S. 1162, 105 S.Ct. 917, 83 L.Ed.2d 929 (1985). In Spoone the Fourth Circuit upheld the appellant’s conviction, concluding “[t]here is simply no reason to believe that the jury convicted [the appellant] of conspiracy solely because of his pre-eighteenth birthday activity, for the trial court repeatedly -instructed the jury that it could not consider the juvenile acts as evidence of [the appellant’s] guilt.” Id.; cf. United States v. Maddox, 944 F.2d 1223, 1233 (6th Cir.) (holding defendant “cannot be held liable for pre-eighteen conduct, but such conduct can, of course, be relevant to put post-eighteen actions in proper context”), cert. denied, 502 U.S. 950, 112 S.Ct. 400, 116 L.Ed.2d 349 (1991). Here too, the trial judge circumscribed the jurors’ use of the challenged evidence, instructing them it was admitted “for the limited purpose of enabling [them] to decide when, if ever, [Strothers] became a member of the conspiracy charged in count one.” 5/10/93 Tr. 28. Accordingly, we find no error in its admission.³

Next, both appellants contend that the judge erred in admitting audiotapes of alleged drug transactions, along with a transcript thereof, because neither the tapes nor the transcript was properly authenticated and, in any event, the jury should have been permitted to read the transcript only while listening to the corresponding tapes. We find no reversible error in the admission of the tapes or the transcript.

We first conclude that the tapes were properly admitted. “The admission of recordings into evidence is committed to the sound discretion of the trial court, so long as the tapes are authentic, accurate and trustworthy.” United States v. Dale, 991 F.2d 819, 842 (D.C.Cir.), cert. denied, - U.S. -, 114 S.Ct. 286, 126 L.Ed.2d 236 (1993). Tapes may be authenticated “by testimony describing the process or system that created the tape” or “by testimony from parties to the conversation affirming that the tapes contained an accurate record of what was said.” Id. at 843. In this case, a police witness described the taping and copying process and testified that the copies admitted at trial accurately represented what had occurred. In addition, police officers and informants who were parties to the recorded conversations themselves testified to the tapes’ accuracy. Accordingly, we find no abuse of discretion in the court’s admission of the tapes themselves. The admission of the transcript is another matter.

In United States v. Slade, 627 F.2d 293 (D.C.Cir.), cert. denied, 449 U.S. 1034, 101 S.Ct. 608, 66 L.Ed.2d 495 (1980), this court affirmed the district court’s decision to allow the jury to use government-prepared transcripts when listening to tapes during trial. We explained that “the jury was made aware that the transcripts offered only the government’s interpretations” and the record in the case “provide[d] substantial support for the relative accuracy of the transcripts.” Id. at 303. In Slade, however, the transcripts were used only as listening aids during trial. In this case, the transcript was actually admitted as evidence, creating a risk that the jurors may have relied on the government’s version of the conversations, set out in the transcript, without simultaneously listening to the authenticated tapes to verify the transcript’s accuracy. For this reason we conclude that the district court erred in admitting the transcript into evidence. Under the circumstances, however, it was not reversible error. The jurors were on notice that the accuracy of the transcript was disputed and were expressly admonished by the court to accept what they heard on the tapes over what they read in the transcript.⁴ We may presume the jurors followed the instruction, United States v. Brown, 16 F.3d 423, 430 (D.C.Cir.), cert. denied, - U.S. -, 115 S.Ct. 257, 130 L.Ed.2d 178 (1994), and conclude that the transcript’s admission was therefore harmless.⁵

Next, the appellants assert that the district court violated their rights to confront witnesses and to due process by restricting their ability to impeach Anthony Pratt, a government witness with a history of mental health problems. Specifically, they allege the court erred in refusing to furnish the defense with records of Pratt’s mental health or to permit a psychiatric examination by a defense expert and by insisting that, if the defense cross-examined Pratt on his hospitalization for depression, the government be permitted to question him on redirect about the reason for his illness. We find no error in the court’s rulings. The court acted within its discretion in finding Pratt competent to testify following his voir dire. See United States v. Day, 591 F.2d 861, 880-81 (D.C.Cir.1978); United States v. Heinlein, 490 F.2d 725, 730 (D.C.Cir.1973). Nor was it an abuse of discretion to seal Pratt’s medical records or to deny the request for a psychiatric examination.⁶’ The court at no time prohibited the appellants from impeaching Pratt’s reliability by cross-examining him about his mental health but simply ruled that if they did the government could put Pratt’s mental health into context on redirect. The appellants themselves then made the strategic choice to limit their examination of Pratt. They cannot now transform that choice into judicial error. Cf. United States v. Tarantino, 846 F.2d 1384, 1407 (D.C.Cir.) (holding that forcing defendant to make tactical decision whether to cross-examine witness and thereby open door to prejudicial contextual information did not violate confrontation clause or constitute abuse of discretion), cert. denied, 488 U.S. 840, 109 S.Ct. 108, 102 L.Ed.2d 83 (1988).⁷

We next conclude that the appellants’ sentences, other than under count one, should be affirmed. The appellants assert, primarily, that the district court failed to make particularized findings to support its finding that Strothers and Hoyle should be charged with distribution of, respectively, 52.53 and 25.56 kilograms of cocaine base. See United States v. Anderson, 39 F.3d 331, 351 (D.C.Cir.1994) (vacating co-conspirators’ sentences and remanding “for particularized factual findings regarding the amount of cocaine attributable to each appellant’s participation in the [conspiracy]”), cert. denied, - U.S. -, 116 S.Ct. 542, 133 L.Ed.2d 445 (1995). We disagree. The presentence report sets out the amounts distributed by the drug conspiracy during the period each appellant was a participant. The report further notes that during his participation each appellant was a full partner, sharing costs and profits equally with each other and a third conspirator, Lazaro Santa Cruz, and is therefore chargeable with all of the drugs then sold. The district court adopted the report’s findings and we may review them only for clear error. United States v. Clarke, 24 F.3d 257, 270 (D.C.Cir.1994).⁸ Because they are supported by the trial evidence, they are not clearly erroneous.⁹ Nor was it cleai' error to increase each appellant’s offense level by three points based on his managerial role in the conspiracy. See U.S.S.G. § 3Bl.l(b) (providing for three-point increase for “a manager or supervisor” of “criminal activity involv[mg] five or more participants.”). The trial evidence showed that. the appellants, together with Santa Cruz, directed and profited from numerous drug sales carried out by subordinate “runners.” ¹⁰

For the foregoing reasons, we reverse and vacate the appellants’ conspiracy convictions and sentences under count one of the indictment. We affirm the appellants’ convictions and sentences under the other counts.¹¹ So ordered.

1 . The appellants’ two codefendants were acquitted on all counts charged against them.

2 . Wc arc further troubled here by the court's murky admonition to "[r]emcmbcr that the nature of the value of your service as jurors in this case will lie on the quality of the verdict that you return.”

3 . In light of the judge’s limiting instruction we need not decide whether, as the Eleventh and Seventh Circuits have concluded, evidence of pre-majority acts can be admitted as substantive evidence of a conspiracy without a limiting instruction. See United States v. Cruz, 805 F.2d 1464, 1476 (11th Cir.1986), cert. denied, 481 U.S. 1006, 107 S.Ct. 1631, 95 L.Ed.2d 204 (1987); United States v. Doerr, 886 F.2d 944, 969 (7th Cir.1989).

4 . The judge instructed the jurors:

While I am admitting [the transcript] into evidence, I want to inform you that the best evidence of the conversation, as recorded, is what you actually hear over the earphones, and to the extent that you may hear something over the earphones which is at variance with something that appears in the transcript, then what you hear over the earphones should control.

4/14/93 Tr. 160.

5 . Wc note that the appellants offered no transcript of their own to rebut the government’s transcription of the tapes.

6 . The district court explained:

I think it's a collateral fishing expedition beyond allowing you to inquire on voir dire, in advance of his testifying before the jury, to determine whether or not he is, indeed, competent to give the testimony that he gives. And I don't see anything in any of the medical records that I have been shown which is so arcane and so complex as to be incapable of comprehension by you in preparing a cross-examination of him.

4/13/93 Tr. 57-58.

7 .In any event, the appellants never explained to the district court, or to this court on appeal, how these rulings prejudiced their defense.

8 . The appellants contend they were entitled to an evidentiary hearing to dispute the findings. Such a hearing, however, is within the sentencing court's discretion. Fcd.R.Crim.P. 32(c)(1) ("At the sentencing hearing, the court must afford counsel for the defendant and for the Government an opportunity to comment on the probation officer's determinations and on other matters relating to the appropriate sentence, and must rule on any unresolved objections to the prcscntcnce report. The court may, in its discretion, permit the parties to introduce testimony or other evidence on the objections.”). We find no abuse of discretion here as "[tjhcrc is no indication Lhat there was 'any dispute over facts material to his sentence that the court could not resolve without a full evidentiary hearing.' ” See United States v. Pologruto, 914 F.2d 67, 69 (5th Cir.1990) (quoting United States v. Mueller, 902 F.2d 336, 347 (5th Cir.1990)).

9 . Our reversal of the conspiracy conviction under count one docs not affect the sentencing court's attribution to each appellant of the total quantity of drugs distributed during his participation in the conspiracy. See United States v. Saro, 24 F.3d 283, 286 (D.C.Cir.1994) ("[A] sentencing court may include even acquitted offenses as ‘relevant conduct’; a judge may well determine that the government has proved an offense by a preponderance of the evidence (the applicable standard for sentencing) even though the jury concluded that the offense had not been proved beyond a reasonable doubt.”) (citing United States v. Boney, 977 F.2d 624, 635-36 (D.C.Cir.1992)).

10 . In light of our conclusions on drug quantity and managerial role, we need not address Strothers's challenge to the presentence report's inclusion of pre-minority acts in his relevant conduct which docs not affect his offense level or the length of his sentence.

11 . In so concluding, we decline to address certain of the appellants’ challenges which we have reviewed and found to be without merit.