United States v. Delorme

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JUNE 28, 2011
No. 10-12069 JOHN LEY
CLERK
Non-Argument Calendar
________________________
D.C. Docket No. 1:07-cr-20534-UU-5
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
VIVENS DELORME,
Defendant-Appellant.
__________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(June 28, 2011)
Before HULL, MARTIN and ANDERSON, Circuit Judges.
PER CURIAM:
Vivens Delorme appeals his convictions for conspiring to use (“Count 1”)
and using (“Count 2”) a facility of interstate commerce, with the intent to commit
a murder-for-hire, in violation of 18 U.S.C. § 1958. Specifically, Delorme argues
that the district court displayed an antagonistic attitude toward defense counsel at
trial, which prejudiced the jury, resulted in an unfair trial, and denied him the
effective assistance of counsel. He also argues that the district court abused its
discretion and violated his right to testify in his own defense by instructing him to
answer a number of the government’s questions on cross-examination with “yes,”
“no,” or “I don’t know” responses.
I.
To determine if a district court judge gave the appearance of partiality or
bias at trial, we review the judge’s conduct during trial for abuse of discretion.
United States v. Verbitskaya, 406 F.3d 1324, 1337 (11th Cir. 2005) (citation
omitted). However, if not raised and preserved before the district court, we review
a claim of perceived bias or partiality for plain error. See United States v.
Rodriguez, 627 F.3d 1372, 1377-80 (11th Cir. 2010). To demonstrate plain error,
one must show that “(1) an error occurred; (2) the error was plain; (3) it affected
[his] substantial rights; and (4) it seriously affected the fairness of the judicial
proceedings.” Id. at 1380 (citation and quotation omitted). Our review for
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perceived partiality is based on the conduct of the trial as a whole. United States
v. Candelaria-Gonzalez, 547 F.2d 291, 297 (5th Cir. 1977).1 The district court’s
behavior towards government counsel is properly considered when reviewing a
defendant’s claim concerning the appearance of partiality. United States v.
Hawkins, 661 F.2d 436, 450-51 (5th Cir. Unit B 1981).2
“A trial judge must exhibit neutrality in his language and in the conduct of a
trial before a jury . . . [and] should avoid any possibility of prejudicing the jury
through his criticism of or hostility toward defense counsel.” Candelaria-
Gonzalez, 547 F.2d at 297 (citation omitted). “The judge is a figure of
overpowering influence, whose every change in facial expression is noted, and
whose every word is received attentively[.]” Id. (alteration, citation, and quotation
omitted). “[R]epeated indications of impatience and displeasure of such nature to
indicate that the judge thinks little of counsel’s intelligence and what he is doing
are most damaging to a fair presentation of the defense.” Id. (citation and
quotation omitted). Because of this, the judge must “make every effort to
preserve the appearance of strict impartiality.” Id. However, “[a]n occasional
1
The decisions of the Fifth Circuit handed down prior to the close of business on
September 30, 1981, operate as binding precedent in the Eleventh Circuit. Bonner v. City of
Prichard, Ala., 661 F.2d 1206, 1209 (11th Cir. 1981).
2
All Fifth Circuit Unit B decisions rendered after October 1, 1981, operate as
binding precedent in the Eleventh Circuit. United States v. Maxwell, 579 F.3d 1282, 1305 n.6
(11th Cir. 2009).
3
lapse of patience will not suffice to overturn a conviction returned after a full and
fair presentation of the evidence.” United States v. Smalley, 754 F.2d 944, 950
(11th Cir. 1985) (citation and quotation omitted).
“While a trial judge . . . has a duty to conduct the trial carefully, patiently,
and impartially, the judge has wide discretion in managing the proceedings.”
Hawkins, 661 F.2d at 450 (citation and quotation omitted). A trial judge is not
required to remain silent throughout a jury trial, and, indeed, “he has a duty to
participate directly in the trial, . . . facilitate its orderly progress[,] . . . shorten
unimportant preliminaries, and to discourage dilatory tactics of counsel.”
Candelaria- Gonzalez, 547 F.2d at 297 (citation and quotation omitted). A judge
has wide discretion in managing proceedings and he may “comment on the
evidence, question witnesses, elicit facts not yet adduced or clarify those
previously presented, and maintain the pace of a trial by interrupting or cutting off
counsel as a matter of discretion.” United States v. Day, 405 F.3d 1293, 1297
(11th Cir. 2005) (citation and quotation omitted). But, the court must clearly
direct the jury that they are the sole judges of the facts and are not bound by the
judge’s questions or comments. Bursten v. United States, 395 F.2d 976, 982-83
(5th Cir. 1968). “A prejudicial remark may be rendered harmless by curative
instructions to the jury.” United States v. Simon, 964 F.2d 1082, 1087 (11th Cir.
4
1992). However, “some comments may be so highly prejudicial that even a strong
admonition by the judge to the jury that they are not bound by the judge’s views,
will not cure the error.” Bursten, 395 F.2d at 983 (citation omitted).
To constitute reversible error, “a judge’s remarks must demonstrate such
pervasive bias and unfairness that they prejudice one of the parties” and the
judge’s conduct must appear to have deprived the defendant of his right to an
impartial trial, effective assistance of counsel, or adversely influenced and
prejudiced the jury. Verbitskaya, 406 F.3d at 1337 (citation and quotation
omitted); Bursten, 395 F.2d at 983 (citation omitted). “If a trial court continually
intervenes so as to unnerve defense counsel and throw him off balance, in a
supposedly fair trial, and causes him not to devote his best talents to the defense of
his client, then this is ground for reversal.” Bursten, 395 F.2d at 983. When the
jury’s determinations of witness credibility are central to finding a defendant
guilty, the appearance of judicial bias takes on added importance. Candelaria-
Gonzalez, 547 F.2d at 297.
As an initial matter, it is unnecessary for us to decide whether Delorme
preserved his appearance of partiality claim for appeal, because Delorme’s claim
fails under either abuse of discretion or plain error review. The district court did
not give the appearance of partiality in its comments at trial. The district court
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similarly chided government counsel, which is properly considered when
examining the whole record for an appearance of partiality. See Candelaria-
Gonzalez, 547 F.2d at 297; see Hawkins, 661 F.2d at 450-51. Furthermore, the
court assisted defense counsel by offering permissible ways to formulate otherwise
objectionable questions and afforded considerable latitude in the questions
allowed.
The district court did not overstep its neutral role by reprimanding defense
counsel for commenting on how he would get evidence admitted, stating the
questions he would ask later witnesses, or asking a witness why the government
did not introduce certain evidence. See Candelaria-Gonzalez, 547 F.2d at 297;
see Verbitskaya, 406 F.3d at 1337. On appeal, Delorme has explicitly declined to
dispute the impropriety of these comments or the resolution of the objections made
at trial, and the court had the legitimate authority to manage the trial proceedings
by preventing and ameliorating such commentary. See Hawkins, 661 F.2d at 450.
The district court did not demonstrate a pervasive bias by chastising defense
counsel for making these improper comments. See Verbitskaya, 406 F.3d at 1337.
The number of times the court interrupted defense counsel, sustained objections,
or chided defense counsel was a product of the number of times defense counsel
violated relevant rules, not as a result of any pervasive bias.
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Finally, the district court’s comments did not rise to the level required to
justify reversal. See Smalley, 754 F.2d at 950. An occasional lapse of patience is
insufficient to overturn Delorme’s convictions. Id. The district court instructed
the jury to ignore any of its comments not related to instructions on the applicable
law, and while certain egregious instances of partiality cannot be cured by such an
instruction, those circumstances did not present themselves in the instant case, and
any error concerning the appearance of partiality was adequately remedied by this
instruction. See Simon, 964 F.2d at 1087; see Bursten, 395 F.2d at 982.
Accordingly, we affirm.
II.
A criminal defendant has the right to testify in his own defense. United
States v. Byrd, 403 F.3d 1278, 1282 (11th Cir. 2005). However, “this right is not
without limitation [and] it must sometimes bow to accommodate other legitimate
interests in the criminal trial process.” Id. (citation and quotation omitted). A
district court is empowered to “exercise reasonable control over the mode and
order of interrogating witnesses . . . so as to (1) make the interrogation and
presentation effective for the ascertainment of the truth, [and] (2) avoid needless
consumption of time.” Fed. R. Evid. 611(a); United States v. Holman, 680 F.2d
1340, 1353 (11th Cir. 1982).
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We review the district court’s management of trial proceedings for abuse of
discretion. Hawkins, 661 F.2d at 450. A judge may “maintain the pace of a trial
by interrupting or cutting off counsel as a matter of discretion.” Day, 405 F.3d at
1297 (citation and quotation omitted).
The district court did not abuse its discretion or infringe upon Delorme’s
right to testify in his own defense by instructing him to answer a number of
questions on cross-examination with “yes,” “no,” or “I don’t know” responses.
Delorme responded to a number of the government’s questions with
non-responsive answers, answers that exceeded the scope of the question asked, or
argumentative answers, such as answers in the form of a question. The district
court properly acted within its authority to manage the trial proceedings and
“maintain the pace” of the trial, by requiring Delorme to answer a number of the
government’s questions with a “yes,” “no,” or “I don’t know” response.
Candelaria-Gonzalez, 547 F.2d at 297; Hawkins, 661 F.2d at 450. All the
questions Delorme discusses on appeal were answerable with such a response.
Delorme was not permitted to argue from the witness stand simply because he was
the defendant. To the extent that Delorme did not have the opportunity to explain
his answers, those details could have been brought out on re-direct examination.
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The district court properly exercised its duty to manage the trial
proceedings, by ensuring that Delorme responded to the questions being asked by
the government, and did so in a timely fashion that did not disrupt the timing of
the trial or further delay the proceedings. Candelaria-Gonzalez, 547 F.2d at 297;
Hawkins, 661 F.2d at 450. Accordingly, we affirm.
AFFIRMED.3
3
Delorme’s request for oral argument is denied.
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