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United States v. Small

argued: September 5, 1989.

UNITED STATES OF AMERICA
v.
JOHN SMALL, APPELLANT



On appeal from Order of Judgment and Commitment dated September 6, 1988, in the United States District Court for the Eastern District of Pennsylvania, D.C. Criminal No. 87-00258-12.

Author: Nygaard

Opinion OF THE COURT

NYGAARD, Circuit Judge.

John Small appeals from a judgment of sentence following his conviction on charges stemming from a scheme to manufacture methamphetamine. Following a jury trial, Small was convicted of one count of conspiracy to manufacture methamphetamine, one count of manufacturing methamphetamine, and one count of tax evasion. The primary issue is whether Small is entitled to a new trial after a transcript of trial testimony containing a prejudicial sidebar conference was mistakenly shown to the jury, without prior objection, during its deliberations. We conclude that the district court's finding of fact that the jurors did not see this prejudicial material was not clearly erroneous and therefore, utilizing a plain error standard, Small's conviction was not seriously affected by this mistake. Accordingly, we will affirm the judgment of the district court.

I.

An indictment returned in June, 1987 charged Small and twenty-seven other individuals with a large-scale conspiracy to manufacture methamphetamine. The indictment alleged that Small was part of an organization led by John A. Renzulli which manufactured methamphetamine from 1983 to 1987. The Renzulli organization purchased large quantities of phenyl-2-propanone (P2P), an essential ingredient for the manufacture of methamphetamine, from an organization led by Angelo DiTullio and Steven Vento, Sr. The DiTullio/Vento organization purchased the P2P in Europe and smuggled it into the United Sttes. In 1985, the entire process was taken over by the Philadelphia-based crime syndicate known as La Cosa Nostra (LCN). In 1986 the LCN forced Vento and DiTullio out of the P2P importation business and brought the P2P in by itself. The LCN continued to do business with Renzulli by supplying him with P2P to manufacture methamphetamine.*fn1

The government's evidence against Small came primarily from the testimony of Ralph Mita, a former member of the Renzulli manufacturing organization. Mita testified that Small was present at four methamphetamine "cooks" between November, 1984, and June, 1985. In addition, the government utilized recorded telephone conversations in which Small discussed with his daughter how much tin foil had been cut. This evidence corroborated Mita's testimony concerning the use of tin foil in the methamphetamine manufacturing process. A search of Small's house uncovered twenty-four containers of lye, another ingredient used in the manufacture of methamphetamine. Also found in the search was a shopping list for a large quantity of chemical glassware to be used in the "cooking" procedure. With regard to the tax evasion count, the government introduced an analysis from the Internal Revenue Service which revealed that in 1985 Small had spent $50,000 in cash, but reported less than $2000 as income for that year.

Following a jury trial, Small was found guilty of conspiracy, manufacturing methamphetamine, and tax evasion. On September 6, 1988, Small was sentenced to seven years imprisonment on the manufacturing count, and received lesser concurrent sentences on the conspiracy and tax counts. This timely appeal followed. We have jurisdiction pursuant to 28 U.S.C. ยง 1291.

II.

Small's primary contention is that the district court erred in denying his motion for a new trial based on the jury's exposure to a trial transcript containing a sidebar conference.*fn2 During its deliberations, the jury asked to see a portion of Mita's testimony. Small's attorney, Jack Meyerson, was not present at the time. David Shapiro, counsel for co-defendant Thomas Esposito, informed the court on behalf of Small that he had no objection to the request. Mr. Shapiro stated that he had Mr. Meyerson's "proxy" on the matter. About an hour later, it was brought to the court's attention that the transcript which had been sent out with the jury contained a sidebar conference pertaining to other charges pending against Small and members of his family.*fn3 As the district judge was not available at the time, counsel requested the judge's law clerk to retrieve the transcripts, which he did. The court was informed by Mr. Meyerson about the mistake, at which time Mr. Meyerson attempted to preserve the issue for review by stating that he was not " . . . waiving the right to seek a mistrial if thesidebars concerning [Small's] criminal acts were before the jury, whether it be through inadvertence." The transcripts of the Mita testimony, edited to delete the sidebar conference, were subsequently sent back to the jury.

Following the verdict, the district court conducted a voir dire with regard to the Mita transcript. Each juror was questioned whether he or she " . . . was aware that the transcript the Jury first received contained a transcript of the various sidebar conversations between . . . the judge and the lawyers -- that occurred during Mr. Mita's testimony." The jurors were shown a copy of the testimony and were asked if they had read the transcript of the sidebar conference. Eleven jurors answered that they did not read it or discuss it. One of the jurors, Number 11, stated that he had read the transcript of the sidebar conference and that the jurors had discussed it at length. The district court, in its post-trial memorandum, refused to grant a new trial. The court found that the issue was not properly preserved since no objection was made when the transcript was sent out with the jury. Dist.Ct. Op. at 6. The court also held that Small was not prejudiced by this mistake, since the jurors stated that they had not read or discussed the sidebar conference. The court did not find the statements of Juror Number 11 to be credible, concluding that Juror 11 "thought his verdict was being impeached or that he was being accused of not having considered something that he should have considered." Dist.Ct. Op. at 7.

A.

Our initial task is to determine the proper standard of review. If we conclude, as did the district court, that Small did not properly preserve the issue for review, we must apply the plain error standard of Fed.R.Crim.P. 52(b).

Small claims that Mr. Shapiro was only authorized to deal with "questions of minimal importance." He claims that neither he nor his counsel agreed to allow the transcript into the jury room, which he argues is a "question of great importance." Thus, he concludes that he never had the ...


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