UNITED STATES COURT OF APPEALS
for the Fifth Circuit
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No. 92-3286
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
JAMAL ABU SAMAK,
Defendant-Appellant.
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Appeal from the United States District Court
for the Eastern District of Louisiana
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(November 15, 1993)
Before DUHÉ, EMILIO M. GARZA, Circuit Judges and STAGG,1 District
Judge.
PER CURIAM:
Appellant Jamal Abu Samak challenges his conviction for
conspiracy to violate, and violation of, the Organized Crime
Control Act, 18 U.S.C. §§ 2, 34, 371, 844(i). Finding no error, we
affirm.
FACTS
On March 12, 1991, Jamal Abu Samak recruited Daniel Joseph Lee
to burn down the building housing the Community Grocery Store. The
building and grocery store were owned by Abdel and Tark Mousa.2 At
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Senior Judge of the Western District of Louisiana, sitting by
designation.
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The building was insured for $120,000, and the coverage for
personal property in the building was raised from $50,000 to
$75,000 in January 1991. In mid-February 1991, Tark had offered
the grocery store manager $5,000 to burn the building, but the
manager declined and reported the offer to the Custom's Service.
approximately 3:00 a.m., Lee and Samak entered the Community
Grocery Store building and poured two containers of gasoline in the
apartment above the store and two containers into the grocery
itself. As they were leaving the store, Samak attempted to lock
Lee in the grocery. He threw a match in the store, causing a blast
that threw Lee outside the building. An inhabitant of one of the
apartments died in the fire.
Lee entered a guilty plea. Both Mousas entered guilty pleas
to superseding bills of information. Samak went to trial on a
second superseding indictment and was convicted by a jury on both
counts. The district court sentenced Samak to five years of
imprisonment on Count 1 and life imprisonment on Count 2 with the
terms to run concurrently. Samak appeals.
DISCUSSION
I.
Samak's main contention is that Government exhibits 1 through
20 and 23 through 35 were not formally admitted into evidence by
the district court, but were delivered to the jury for their
deliberations. These exhibits were offered into evidence following
the direct testimony of a Government expert, George M. Bradley.
The district court reserved ruling on the admissibility of the
exhibits until after defense counsel cross-examined Bradley.
Following Bradley's cross-examination, the court made no further
ruling, and defense counsel made no specific objections to the
exhibits and no admissibility ruling was requested.
When there are no articulated reasons for an objection to
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exclude evidence, the admission of such evidence will be reviewed
for plain error. See United States v. Martinez, 962 F.2d 1161,
1166 n.10 (5th Cir. 1992). "Plain error is error which, when
examined in the context of the entire case, is so obvious and
substantial that failure to notice and correct it would affect the
fairness, integrity, or public reputation of the judicial
proceedings." United States v. Ayers, 946 F.2d 1127, 1131 (5th
Cir. 1991). The Government admits that the record is unclear as to
the formal admission of the exhibits, but the Government asserts,
and Samak acknowledges, that the court's exhibit list shows that
the exhibits in question were formally admitted. It is also beyond
dispute that they were treated as if they had been admitted.
Samak has not suggested any reason why the exhibits should not
have been admitted into evidence. He speculates that there may
have been some basis for inadmissibility if his counsel had been
allowed cross-examination. The record indicates, however, that
Samak's trial counsel did conduct cross-examination of the witness
whose testimony was related to the exhibits. Samak has produced
nothing to show that there was any error much less a plain error by
having these exhibits in evidence.
II.
Samak next contends that he was denied due process because of
acrimony between his trial counsel and the district court. "To
constitute constitutional error . . . the trial court's action,
viewed as a whole, must amount to intervention which could have led
the jury to a predisposition of guilt by improperly confusing the
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functions of judge and prosecutor." United States v. Davis, 752
F.2d 963, 974 (5th Cir. 1985). The Government has conceded, and we
agree, that the record shows tension between the district court and
trial counsel, but notes that many of the comments Samak complains
of on appeal were made out of the jury's presence. Further, at the
time of the charge the district judge admonished the jury to
disregard anything that he may have said during the trial except
for his instructions on the law.3
In Davis, we recognized that "[t]he trial court is not
required to remain silent and passive." Id. at 975. The district
court has a duty to "facilitate the orderly progress of the trial
while maintaining the appearance of strict impartiality." Id. We
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Specifically, the trial court said:
[D]uring the course of Trial, I have
occasionally made comments to the Lawyers, or
asked a question of a Witness, or admonished a
Witness concerning the manner in which he
should respond to the question of the Counsel.
Do not assume from anything I may have said
that I have any opinion concerning any of the
issues in this case. In arriving at your own
findings as to the facts, you should disregard
anything I may have said during the Trial,
except for my instructions to you on the Law.
The Law of the United States permits the
Judge to comment on evidence in the case. I
do not believe that I have made any comments
on the evidence in this case. However, if you
could possibly construe any remarks which I
have made during the course of this Trial as a
comment on the evidence, then I instruct you
that any such comment on my part is only an
expression of my opinion as to the facts, and
you, the jury, may disregard such comment or
comments entirely since you, as jurors, are
the sole judges of the facts in this case.
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concluded that a curative instruction, such as that given by the
district court in this case, would operate against a finding of
constitutional error. Id. Viewed as a whole, the district court's
conduct in this case did not prejudice the defense.
III.
Samak argues that the presence of a Mousas' relative in the
courtroom, together with his other complaints, amounted to such
prejudice that his trial was rendered unfair. During the course of
the trial, Government and defense counsel informed the district
court that a Mousas' relative was taking notes in the courtroom and
requested that she be excluded. The district judge questioned the
woman as to her identity and upon discovering that she was a
relative of the Mousas, instructed her that she was not to reveal
any of the testimony that she heard in court. No motions were made
by either counsel, nor was any curative instruction given. On
appeal, Samak has not suggested how this incident adversely
affected him, and accordingly, his claim is without merit.
IV.
Finally, Samak contends that the district court should have
instructed the jury that Lee's guilty plea could not be used as
substantive evidence of Samak's guilt. Samak neither requested
such a jury charge nor objected to the jury charge given. Absent
timely objection, we review this assigned error under the plain
error standard. United States v. Mattoni, 698 F.2d 691, 694 (5th
Cir. 1983). The factors we consider when analyzing an admission of
a co-conspirator's guilty plea include: (1) presence or absence of
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a limiting instruction; (2) proper evidentiary purpose in
introducing the guilty plea; (3) improper use of the guilty plea as
substantive evidence of the defendant's guilt; and (4) whether the
introduction was invited by defense counsel. United States v.
Leach, 918 F.2d 464, 467 (5th Cir. 1990), cert. denied, 111 S. Ct.
2802 (1991); United States v. Fleetwood, 528 F.2d 528, 532 (5th
Cir. 1976).
Although our precedent has made it clear that evidence about
a co-conspirator's conviction is not admissible as substantive
proof of a defendant's guilt, we have recognized an exception when
the record reflects a defense strategy that relies on the co-
conspirator's guilt. Leach, 918 F.2d at 467. In other words, "a
defendant will not be heard to complain of its admission when he
instigates such admission, or attempts to exploit the evidence by
frequent, pointed, and direct references to the co-conspirator's
guilty plea." Id. at 467 (footnote omitted); see also United
States v. Handly, 591 F.2d 1125, 1128 (5th Cir. 1979) (holding no
plain error, even though there was no curative instruction, when
defendant's emphasis of the guilty pleas was not the result of
prosecutor's improper comment).
The record is clear that the admission of Lee's guilty plea
was part of a defense strategy to bring Lee's credibility into
question. Samak has not asserted, and the record does not
indicate, that the Government attempted to use the guilty plea as
substantive evidence of Samak's guilt. Because Samak relies
substantially on the evidence of the guilty plea as part his
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defense strategy, we cannot say there has been reversible error.
CONCLUSION
For the foregoing reasons, we affirm Samak's conviction and
sentence.
AFFIRMED.
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