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United States v. Porter

filed: June 16, 1992.

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
ROY M. PORTER, BENJAMIN F. GAY III, DEFENDANTS-APPELLANTS.



Appeal from the United States District Court for the Eastern District of California. D.C# CR-88-0033-MLS. Milton L. Schwartz, District Judge, Presiding.

Before: Hug, Tang, and T. G. Nelson, Circuit Judges.

MEMORANDUM

Gay and Porter, former officers of National Toll Free Marketing Company, appeal their convictions for mail fraud and interstate transportation of fraudulently obtained property. Gay also appeals his conviction for failure to file income tax returns. We affirm.*fn1

Discussion

I. The Ex Parte Communication

Gay and Porter argue that the district court's telephone conversation with the prosecutor discussing the scheduling of witnesses and the feasibility of supplementary opening statements constitutes reversible error. We disagree.

First, the district court did not err in denying Gay's and Porter's motion for a mistrial. The telephone call between the Judge and prosecutor in this case was confined to procedural matters. The conversation did not touch upon legal issues pending before the court or matters to be decided by the jury. The defendants' characters and potential trial tactics were not discussed. Cf. Guenther v. Commissioner, 939 F.2d 758, 761 (9th Cir. 1991) (per curiam). Nor did the prosecutor engage in argumentation. Cf. id. This type of ex parte communication does not amount to a constitutional violation.

Second, we reject Gay's and Porter's argument that, under 28 U.S.C. §§ 144 and 455(a), the district court should have recused itself following the ex parte contact. Arguments for recusal under sections 144 and 455(a) may not be raised for the first time on appeal, absent a demonstration of factors that excuse the failure to raise the claim in the trial court. United States v. Conforte, 624 F.2d 869, 879 (9th Cir.), cert. denied, 449 U.S. 1012, 66 L. Ed. 2d 470, 101 S. Ct. 568 (1980); United States v. Sibla, 624 F.2d 864, 868 (9th Cir. 1980).

Third, we decline Gay's and Porter's invitation to reverse their convictions as an exercise of our supervisory powers. The district court's error in engaging in an ex parte communication in this case does not call for the drastic remedy of reversing Gay's and Porter's convictions. Furthermore, an exercise of supervisory powers is inappropriate when, as here, any error was harmless. United States v. Hasting, 461 U.S. 499, 506, 76 L. Ed. 2d 96, 103 S. Ct. 1974 (1983).*fn2

Fourth, we reject Gay's and Porter's argument that their absence from the telephone call between the Judge and prosecutor violated the Fifth Amendment's Due Process Clause. The Fifth Amendment right to be present does not extend to conferences discussing procedural and trial management issues. See, e.g., Lowery v. Cardwell, 575 F.2d 727, 729 (9th Cir. 1978); United States v. Easley, 505 F.2d 184, 185 (9th Cir. 1974). Nor did their absence run afoul of Fed. R. Crim. P. 43. Even assuming the ex parte telephone call is a "stage of the trial" within the meaning of Fed. R. Crim. P. 43(a), no "reasonable possibility of prejudice resulted from the [defendants'] absence." United States v. Kupau, 781 F.2d 740, 743 (9th Cir.), cert. denied, 479 U.S. 823, 93 L. Ed. 2d 45, 107 S. Ct. 93 (1986); see also United States v. Wheat, 813 F.2d 1399, 1404 (9th Cir. 1987) (ex parte, in-chambers conference with defense counsel does not require reversal because no reasonable possibility of prejudice shown), aff'd, 486 U.S. 153, 100 L. Ed. 2d 140, 108 S. Ct. 1692 (1988).

II. Remarks Concerning Defense Counsel's Conduct

We reject Gay's and Porter's contention that remarks made by the district court to their attorneys during a conference outside the presence of the jury denied them due process. A Judge's rebuke of counsel does not warrant reversal absent a showing of clear or significant prejudice. United States v. Bennett, 702 F.2d 833, 836 (9th Cir. 1983); United States v. Poland, 659 F.2d 884, 886 (9th Cir.), cert. denied, 454 U.S. 1059, 70 L. Ed. 2d 598, 102 S. Ct. 611 (1981). No such showing of prejudice has been made. Particularly because the jury was not present, the district court's outburst fell far short of creating the "'pervasive climate of partiality or unfairness'" that the Constitution condemns. United States v. Garcia, 924 F.2d 925, 928 (9th Cir.) (quoting United States v. DeLuca, 692 F.2d 1277, 1282 (9th Cir. 1982)), cert. denied, 111 S. Ct. 2809 (1991). This appears to have been an isolated expression of irritation or impatience on the part of the trial Judge. Cf. Bennett, 702 F.2d at 836 ("This one instance of error, viewed in the entire context of a case where there is substantial evidence of guilt, does not require reversal."); see also Poland, 659 F.2d at 893.

We likewise find unavailing Gay's and Porter's argument that the district court's statements so intimidated their attorneys that their counsel became constitutionally ineffective. Statements that may unnerve defense counsel do not merit reversal absent a showing of clear prejudice. United States v. Burt, 765 F.2d 1364, 1368 ...


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