Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 83 CR 428 - John A. Nordberg, Judge.
Before ESCHBACH and COFFEY, Circuit Judges, and DOYLE, Senior District Judge.*fn*
The defendant, Patrick Green, was convicted of willfully and knowingly conspiring to possess the chemical piperidine knowing and having reasonable cause to believe that the piperidine would be used to manufacture phencyclidine (PCP) in violation of 21 U.S.C. § 846*fn1 and of individually knowingly and intentionally possessing piperidine knowing and having reasonable cause to believe that the piperidine would be used to manufacture phencyclidine (PCP) contrary to 21 U.S.C. § 841(d)(2).*fn2 The defendant appeals his convictions. We affirm.
On May 27, 1983, a federal grand jury in the Northern District of Illinois returned a three-count indictment against the defendant, Patrick Green, and Jose Burgos and William Steffy. Count 1 of the indictment charged that Green, along with Burgos and Steffy violated 21 U.S.C. § 846 in that they "willfully and knowingly did combine, conspire, confederate, and agree together to commit certain offenses against the United States, namely: knowingly and intentionally to possess a quantity of the chemical piperidine knowing and having reasonable cause to believe that that piperidine would be used to manufacture Phencyclidine (PCP), a Schedule II Controlled Substance, in violation of Title 21, United States Code, Section 841(d)(2)." Count 1 also recited that Green's overt act in furtherance of the alleged conspiracy was the procurement of a bottle of piperidine for Burgos and Steffy in March 1982 to be used for the manufacture of PCP. Count 2 charged that Green, Burgos and Steffy "knowingly and intentionally did possess a quantity of the chemical piperidine knowing and having reasonable cause to believe that the piperidine would be used to manufacture Phencyclidine (PCP), a Schedule II Controlled Substance; In violation of Title 21, United States Code, Section 841(d)(2)." Green entered a plea of not guilty to these charges on July 8, 1983.*fn3
On July 22, 1983, Green filed various pre-trial motions, including motions to dismiss Counts 1 and 2 of the indictment. The court considered the defendant's motions at an August 26, 1983 hearing, and at this same hearing the Government orally moved the court to sever Green's trial from that of Burgos and Steffy. By a written order dated August 31, 1983, the court granted the Government's motion to sever Green's trial from that of the other defendants and denied Green's motions.
The Government next filed a motion requesting that Green's trial be reassigned to another judge. In another motion the Government requested that the court exclude from the 70-day time period of the Speedy Trial Act*fn4 the period from August 31 until the date the case was reassigned. On October 24 the court ruled on the two motions, denying the request to reassign the case, and sua sponte directed that the period of time from July 22, the date Green filed his pre-trial motions, August 31, be excluded from the computation of the 70-day time period of the Act. The court also excluded the time from August 26 until August 31 because "the ruling was not to be made until the opinions had been completed and issued and so that would be ruling by mail, in effect, and the official date would be the date of the completion of the ruling and that was August 31." At the August 26 hearing, the court stated with respect to Green's pre-trial motions:
"[W]hat I am going to do with respect to those two [motions] is not to read the sort of initial draft of the opinion that we are going to write on that because it is just going to take too much time but we are going to deny the motions on both theories, the motion to dismiss Count 1 and 2 and the motion to dismiss Count 1. On the motion for a Santiago hearing, I will indicate that orally, even though, again, that will be a part of a written order on this - and all of these will be effective as of the date that they are issued, and, in effect, I am ruling by mail on all of these but I do want to let you know exactly what the rulings are."
At the conclusion of the hearing on August 26, the court again stated, "All right. That will be the orders and they will be out just as quickly as we can get them out, in the next day or two. They will be effective as of the dates that appear." In addition, the district court's minute order from the August 26 hearing recites: "Status hearing held. Ruling on pretrial motions to follow. Status hearing and ruling on any pending motions continued to October 7, 1983 at 12:00 noon." The court set a trial date of October 26, 1983, but adjourned the date to the day following at the request of Green's counsel and also excluded that one day from the Speedy trial Act computation. Green's counsel requested the one day adjournment as he was engaged in a trial on an unrelated matter on October 26 and would not have been available to represent Green. On October 27, 1983, the court granted the defendant's second request for an adjournment as the defendant Green was unavailable for trial on that date for reasons undisclosed in the record, and rescheduled the trial for November 14, 1983. Once more the court excluded the time period from October 27 through November 14 from the Speedy Trial Act computation as the adjournment was requested by the defendant.
On November 14, immediately before trial, Green moved to dismiss, claiming that the Government failed to bring him to trial within the 70-day time limit set forth in the Speedy Trial Act. 18 U.S.C. § 3161. Specifically, the defendant argued that the court was in error in ruling that the five day time period between August 26 and August 31 was excludable time under the Act. Green argued that the court had given a final ruling on defendant's pre-trial motions at the August 26 hearing, and its August 31 order was merely a written embodiment of the ruling. The court rejected this argument and denied Green's motion.
At trial the Government presented the testimony of several Drug Enforcement Administration undercover agents who testified that Green had stolen a bottle of piperidine from his employer, the Borg-Warner Corporation, as part of a conspiracy with Burgos and Steffy to manufacture phencyclidine (PCP). Green testified that he accomplished the theft of a bottle of piperidine by adding piperidine to a purchase order for chemicals after his supervisor at Borg-Warner had approved and signed the purchase order. Green also admitted under oath that he gave the piperidine to Burgos in exchange for a quantity of cocaine and that he had personally used cocaine in the past, but denied any knowledge of, or any involvement in a plan to manufacture PCP.
After trial, during the jury instruction conference, the defense counsel submitted a number of requested instructions, including: "The relationship of buyer and seller, absent any prior or contemporaneous understanding beyond the sales agreement itself, does not prove a conspiracy to possess piperidine with knowledge or reasonable cause to believe the phencyclidine will be manufactured." The Government objected to this instruction stating it was argumentative and the court agreed. Green's counsel argued that the instruction was "a correct statement of the law" and was the "flip side" of the Government's requested instruction. The court proposed a modification to the Government's requested instruction in lieu of accepting the defense counsel's instruction. The defense counsel replied, "Every purchase and sale is an agreement. The jury needs to be told which agreements count." The court then suggested to further modify the Government's instruction to provide: "If persons enter into an agreement for an unlawful purpose they become agents for one another for that purpose." The court noted that adding "for that purpose" to the instruction "obviates the problem about the technical agreement between buyer and seller." The Government agreed to this modification, but the record is silent as to whether the defense counsel made any further comment or objection. The court adopted its own modified instruction after hearing no objection from either the prosecutor or the defense counsel, and submitted the modification instruction to the jury.
While the jury was deliberating, a deputy United States marshal escorted the jurors to a local restaurant for dinner. Upon returning to the court, the marshal filed a report with the court disclosing that as he led the jurors to their seating area in the restaurant, he passed a group of people seated at a table he recognized as federal employees and mentioned that he was escorting a jury. According to the marshal's report, "one of the persons [at the table] spoke out loudly, 'Guilty!'" Because he thought that several jurors might have heard the remark, the marshal returned to the speaker and took him aside to learn his identity and to question him about the remark. The court, after reviewing the report, turned the marshal's report over to the prosecutor and the counsel for the defense out of the presence of the jury and thereafter put the marshal under oath and allowed the respective counsel to examine and cross-examine him. The marshal testified that he was nine or ten feet away from the individual when he heard the word "Guilty!", and at this time he observed no manifestation of surprise, interest or recognition on any of the jurors' faces. In response to a question on cross-examination, he expanded on this testimony and stated that in his opinion, the jurors did not appear to have paid any attention to the remark even if they had in fact heard it, and continued on with their own private and relaxed conversations. After reviewing the marshal's report and hearing his testimony, Green made a motion for a mistrial. The court adjourned on the proceedings for the evening and resumed the hearing on the incident on the following day.
The next day the court heard testimony from the person who had allegedly made the remark, and from another individual seated at the same table. The speaker, an Internal Revenue Service agent, testified that he had not heard the marshal mention that jurors were present and that he was discussing a search warrant episode he had participated in the previous weekend. The fact situation he was discussing related to an entirely different case, and he stated, "Based on all that I am sure that they are guilty," referring exclusively to the individuals who were the subjects of the search warrants they (the agents) were discussing. The other witness, also an agent of the IRS, corroborated the speaker's testimony. The court found the testimony of the marshal, the speaker and the other IRS agent to be credible, stating, "I do not find [the speaker] deliberately shouted at the jury or that there was any attempt in any way to influence the jury in connection with this case," and suggested that the incident was the result of an "unfortunate combination of circumstances." The court then set about to discuss with the respective counsel possible approaches to be used in questioning the jurors "to determine whether anyone [on the ...