United States v. Michael Charles Holder, 652 F.2d 449 (5th Cir. 1981). · Go Syfert
United States v. Michael Charles Holder, 652 F.2d 449 (5th Cir. 1981). Cases Citing This Book View Copy Cite
“furthermore, holder's counsel did not request replacement of that juror by an alternate. holder has not shown that he was prejudiced by the court's action.”
22 citation events (8 in the last 25 years) across 12 distinct courts.
Strongest positive: United States v. McKeighan (ca10, 2012-07-17)
Treatment trajectory · 1981 → 2026 · click a year to view as-of
1981 2003 2026
Top citers, strongest first. 17 distinct citers. How cited ↗
discussed Cited as authority (verbatim quote) United States v. McKeighan
10th Cir. · 2012 · signal: see · quote attribution · 1 verbatim quote · confidence high
furthermore, holder's counsel did not request replacement of that juror by an alternate. holder has not shown that he was prejudiced by the court's action.
discussed Cited as authority (rule) State v. Granados
Utah Ct. App. · 2019 · confidence medium
Over those two days, the court had also attempted to allay the 20180055-CA 16 2019 UT App 158 State v. Granados problem by calling for breaks, explaining to counsel that it had taken recesses during the trial specifically because of Juror 16. ¶41 And as the court explained, questioning Juror 16 about her perception of sleeping or what she believed she had missed was not necessary for its disqualification determination because, based on its own observations, it was “obvious” and “clear” that she had been sleeping and had “missed a significant amount.” See id. ¶¶ 29–33 (emphasiz…
discussed Cited as authority (rule) Matthew A. Pagan v. Broward County Sheriff, Officer Scott Israel
11th Cir. · 2018 · confidence medium
See United States v. Hernandez, 921 F.2d 1569, 1577 (11th Cir. 1991) (finding that the district court was “well within its discretion” not to further question a juror alleged to have been sleeping because “each time the defense objected to the inattention of certain jurors, the trial judge specifically found that no jurors had been asleep at trial”); United States v. Holder, 652 F.2d 449, 451 (5th Cir. Unit B 1981) (holding that the district court did not abuse its discretion by failing to voir dire juror because “[t]he court’s remarks demonstrate that the court had observed the ju…
cited Cited as authority (rule) United States v. Willie James Morgan
11th Cir. · 2014 · confidence medium
See id. at 1577-78 ; United States v. Holder, 652 F.2d 449, 451 (5th Cir.1981).
discussed Cited as authority (rule) United States v. Gene A. Tyrrell
11th Cir. · 2008 · confidence medium
Under Fed.R.Crim.P. 24(c), “a trial court may, in the exercise of its sound discretion, substitute an alternate juror for a regular juror who has become unable or disqualified to perform h[er] duties.” U.S. v. Holder, 652 F.2d 449, 451 (5th Cir. Unit B Aug.1981). 5 In a criminal case, any private communication, contact, or tampering directly or indirectly, with a juror during a trial about the matter pending before the jury is ... deemed presumptively prejudicial, if not made in pursuance of known rules of the court and the instructions and directions of the court made during the trial, wi…
discussed Cited as authority (rule) State v. Oliveira
R.I. · 2005 · confidence medium
See United States v. United States Gypsum Co., 333 U.S. 364, 393 , 68 S.Ct. 525 , 92 L.Ed. 746 , (1948) (‘With [a] conspiracy thus fully established, the declarations and acts of the various members, even though made or done prior to the adherence of some to the conspiracy, become admissible against all as declarations or acts of co-conspirators in aid of the conspiracy.”); United States v. Brown, 943 F.2d 1246, 1255 (10th Cir.1991) (“The prevailing view among the circuits is that previous statements made by co-conspirators are admissible against a defendant who subsequently joins the co…
discussed Cited as authority (rule) United States v. Lampley
11th Cir. · 1995 · confidence medium
Although Lampley did not join the conspiracy until Tarver contacted him, which was sometime after December 7, 1990, all of the tapes were admissible because a “declaration of one co-conspirator is admissible against members of the conspiracy who joined after the statement was made.” United States v. Tombrello, 666 F.2d 485, 491 (11th Cir.) (quoting United States v. Holder, 652 F.2d 449, 451 (5th Cir.1981)), cert. denied, 456 U.S. 994 , 102 S.Ct. 2279 , 73 L.Ed.2d 1291 (1982); see also United States v. Brown, 943 F.2d 1246, 1255 (10th Cir.1991) (citing cases from the First, Second, Third, F…
discussed Cited as authority (rule) Street v. State
Fla. · 1994 · confidence medium
United States v. Hernandez, 921 F.2d 1569, 1578 (11th Cir.), cert. denied, 500 U.S. 958 , 111 S.Ct. 2271 , 114 L.Ed.2d 722 (1991); United States v. Holder, 652 F.2d 449, 451 (5th Cir.1981); Amazon v. State, 487 So.2d 8, 11 (Fla.), cert. denied, 479 U.S. 914 , 107 S.Ct. 314 , 93 L.Ed.2d 288 (1986); Ivey v. State, 132 Fla. 36, 45 , 180 So. 368, 372 (1938).
cited Cited as authority (rule) United States v. Carol Ann Hays, United States of America v. Mark Christopher Meng, United States of America v. Charles H. Meng, Jr., United States of America v. Marcel Jordan
9th Cir. · 1993 · confidence medium
U.S. v. Holder, 652 F.2d 449, 451 (5th Cir.1981).
discussed Cited as authority (rule) United States v. Sandra Hernandez, A/K/A \Cha Cha
unknown court · 1991 · confidence medium
See United States v. Key, 717 F.2d 1206, 1209 (8th Cir.1983); United States v. Holder, 652 F.2d 449, 451 (5th Cir. Unit B 1981); United States v. Bruton, 647 F.2d 818 , 826 n. 13 (8th Cir.), cert. denied, 454 U.S. 868 , 102 S.Ct. 333 , 70 L.Ed.2d 170 (1981); United States v. Curry, 471 F.2d 419, 421-22 (5th Cir.), cert. denied, 411 U.S. 967 , 93 S.Ct. 2150 , 36 L.Ed.2d 688 (1973); United States v. Carter, 433 F.2d 874, 876 (10th Cir.1970).
discussed Cited as authority (rule) United States v. Glenn R. Lewis (86-5377) and Hoover Lindsey (86-5379)
6th Cir. · 1987 · confidence medium
The government's proof, however, established that a conspiracy existed prior to the time alleged in the indictment, and "[a]n otherwise admissible declaration of one coconspirator is admissible against members of the conspiracy who joined after the statement was made." United States v. Holder, 652 F.2d 449, 451 (5th Cir. 1981)(citation omitted).
discussed Cited as authority (rule) State v. Wiggins
Conn. App. Ct. · 1986 · confidence medium
See, e.g., United States v. Key, 717 F.2d 1206, 1209 (8th Cir. 1983); United States v. Holder, 652 F.2d 449, 451 (5th Cir. 1981); United States v. Cameron, 464 F.2d 333, 334-35 (3d Cir. 1972); Hanes v. People, 198 Colo. 31, 34 , 598 P.2d 131 (1979); State v. Kimmel, 202 Kan. 303, 305 , 448 P.2d 19 (1968); Commonwealth v. Jones, 314 Pa. Super. 497, 499 , 461 A.2d 267 (1983); State v. Chestnut, 643 S.W.2d 343, 346-47 (Tenn. Crim.
cited Cited "see" State v. Khalid Mohammed(075901)
N.J. · 2016 · signal: see · confidence high
See United States v. Holder, 652 F.2d 449, 451 (5th Cir.1981) (“We discern no abuse of discretion in the trial court’s failure to question the juror who allegedly fell asleep.
discussed Cited "see" State v. Smith (2×) also: Cited "see, e.g."
S.C. Ct. App. · 1999 · signal: see · confidence high
See United States v. Holder, 652 F.2d 449 (5th Cir.1981); United States v. Machi, 811 F.2d 991 (7th Cir.1987); United States v. Key, 717 F.2d 1206 (8th Cir.1983); United States v. Springfield, 829 F.2d 860 (9th Cir.1987); United States v. Barrett, 703 F.2d 1076 (9th Cir.1983).
cited Cited "see" United States v. Rafael Alvarez, Jr.
11th Cir. · 1983 · signal: see · confidence high
See United States v. Holder, 652 F.2d 449 (5th Cir.1981).
discussed Cited "see" United States v. Sam Tombrello, Jr., Floyd Leon Watson, Jimmy Lee Wright
11th Cir. · 1982 · signal: see · confidence high
Hawkins v. United States, 417 F.2d 1271 , 1273 n. 1. (5th Cir.), cert. denied, 397 U.S. 914 , 90 *491 S.Ct. 917, 25 L.Ed.2d 95 (1970); United States v. Vaught, 485 F.2d 320 (4th Cir. 1973); see, United States v. Holder, 652 F.2d 449 (5th Cir. 1981); United States v. Miranda-Uriarte, 649 F.2d 1345 (9th Cir. 1981).
discussed Cited "see" United States v. Mulherin
S.D. Ga. · 1981 · signal: see · confidence high
Rule 801(d)(2)(E), of the Federal Rules of Evidence, provides that a statement made by a coconspirator is not hearsay if it is made “during the course and in furtherance of the conspiracy.” Under the Rule, therefore, before the extrajudicial statement of a coconspirator may be admitted, the following facts must be established: “that a conspiracy existed; that the coconspirator and the defendant against whom the coconspirator’s statement is offered were members of the conspiracy and that the statement was made in furtherance of the conspiracy.” United States v. Ricks, 639 F.2d 1305, 1…
Retrieving the full opinion text from the archive…
UNITED STATES of America, Plaintiff-Appellee,
v.
Michael Charles HOLDER, Defendant-Appellant
80-5806.
Court of Appeals for the Fifth Circuit.
Aug 3, 1981.
652 F.2d 449
Elwin R. Thrasher, Jr., Tallahassee, Fla., for defendant-appellant., Michael T. Simpson, Asst. U. S. Atty., Tallahassee, Fla., for plaintiff-appellee.
Roney, Johnson, Henderson.
Cited by 19 opinions  |  Published
FRANK M. JOHNSON, Jr., Circuit Judge:

Michael Holder appeals from his conviction, after trial by jury, for possession with intent to distribute hashish, in violation of 21 U.S.C.A. § 841. He urges three grounds of error: (1) the trial court’s admission into evidence of a tape recording of a telephone conversation; (2) the trial court’s failure to inquire in response to defense counsel’s request whether a juror was sleeping during the trial; and (3) the trial court’s questioning of a witness. Holder was indicted together with Vance Cook and Gilíes Char-train. Chartrain plead guilty to conspiracy, while Cook was convicted of conspiracy and possession in a separate trial. Chartrain testified at Holder’s trial as a government witness.

The principal government witness was William Renton, a DEA agent, who negotiated a hashish purchase with Chartrain. Renton testified that Chartrain gave him a piece of paper containing Chartrain’s and Cook’s names and a telephone number which Renton was to call the following day in order to finalize arrangements for the hashish purchase. Renton called that telephone number, which was the number of Cook’s residence in Tallahassee, Florida, and spoke to Chartrain. After Renton suggested that the sale take place in Panama City, Florida, Chartrain conferred with another person, stating: “Mike, can we make it there by 6:00, and are you sure?” Char-train then assured Renton that three persons — Cook, Chartrain and one other person — would be there. Renton tape recorded that conversation with Chartrain and it is the admission of that recording that is challenged by Holder. Chartrain testified at trial that Holder was present at Cook’s residence when the phone call from Renton was received. Renton and several government witnesses testified that Renton was met in Panama City by Chartrain, Cook, and Holder, all of whom had arrived together in the same vehicle.

The tape recording of Renton’s telephone conversation with Chartrain was Government Exhibit 1. The government offered the recording as a statement of a coconspir-ator. The trial court admitted that recording into evidence subject to later testimony by Chartrain establishing the existence of a conspiracy. The tape was not played until the conclusion of the government’s case, which included testimony by a Panama City police detective that Holder admitted to him during questioning that he knew of the hashish and had some involvement in the sale.

Under Fed.R.Evid. 801(d)(2)(E), a statement by a coconspirator is not hearsay if it is made “during the course and in furtherance of the conspiracy.” In order for such a statement to be admissible, the trial court must determine as a factual matter that the prosecution has shown by a preponderance of the evidence, independent of the statement itself, that a conspiracy existed, that the coconspirator-declarant and the defendant against whom the statement is offered were members of the conspiracy, and that the statement was made during the course and in furtherance of the conspiracy. United States v. James, 590 F.2d 575, 582 (5th Cir.) (en banc), cert. denied, 442 U.S. 917, 99 S.Ct. 2836, 61 L.Ed.2d 283 (1979). There is no requirement that the defendant against whom the coconspirator’s statements are being offered be charged in a conspiracy count. United States v. Freeman, 619 F.2d 1112, 1123 (5th Cir. 1980), cert. denied, 450 U.S. 910, 101 S.Ct. 1348, 67 L.Ed.2d 334 (1981).

Holder claims that the existence of a conspiracy was not demonstrated by the government. This contention is without merit. There was testimony by Renton and Chartrain that a conspiracy existed at the time the tape recorded telephone conversation between them took place. Holder also contends that, even if a conspiracy existed at the time of that telephone conversation, such conspiracy existed only between Chartrain and Cook. Holder’s assertion that he was not a member of the conspiracy at the time of the telephone[*451] conversation does not help him. An otherwise admissible declaration of one coconspirator is admissible against members of the conspiracy who joined after the statement was made. United States v. United States Gypsum Co., 333 U.S. 364, 393, 68 S.Ct. 525, 541, 92 L.Ed. 746 (1948); United States v. Anderson, 532 F.2d 1218, 1230 (9th Cir.), cert. denied, 429 U.S. 839, 97 S.Ct. 111, 50 L.Ed.2d 107 (1976); United States v. Ramirez, 482 F.2d 807, 816 (2d Cir.), cert. denied sub nom. Gomez v. United States, 414 U.S. 1070, 94 S.Ct. 581, 38 L.Ed.2d 475 (1973). There was also testimony by a police detective concerning Holder’s admissions that he participated in the drug sale. The predicate for admissibility of the coconspirator Chartrain’s statements was thus established. United States v. James, supra, 590 F.2d at 582.

The second contention of Holder is that the trial court erred by failing to honor defense counsel’s request to conduct an inquiry into whether a juror was sleeping during the trial in order to determine the propriety of replacing the juror with an alternate or declaring a mistrial. Holder’s attorney brought the problem of the allegedly sleeping juror to the attention of the trial court during a bench conference. The judge remarked that “we can take a recess for lunch or I can holler at him and get the Marshall [sic] to shake him, or whatever you want me to do.” A few minutes later the court recessed for lunch. Immediately after the trial was reconvened following lunch, Holder’s counsel again approached the bench and mentioned the “possibility that we did have a juror asleep —”. The judge responded that “I looked at him right after you said that and he was awake and wasn’t asleep. He had his eyes closed momentarily and he wasn’t asleep.” The government attorney then stated that he would have no objection if Holder’s attorney wanted to substitute the alternate juror. Holder’s counsel did not, however, then request that the alternate replace the juror. Rather, he suggested to the court that it inquire of the juror whether he was in fact asleep and if the court determined that the juror had been asleep, then a mistrial would be requested. The court then responded that it “looked at him to determine after you said that you thought he might be asleep and he was rocking in his chair and his eyes were open periodically.” The court did not question the juror.

Under Fed.R.Crim.P. 24(c), a trial court may, in the exercise of its sound discretion, substitute an alternate juror for a regular juror who has become unable or disqualified to perform his duties. United States v. Dominguez, 615 F.2d 1093, 1095 (5th Cir. 1980). The trial court’s exercise of its discretion in this regard is not to be disturbed absent a showing of bias or prejudice to the defendant. United States v. Smith, 550 F.2d 277, 285 (5th Cir.), cert. denied sub nom. Wallace v. United States, 434 U.S. 841, 98 S.Ct. 138, 54 L.Ed.2d 105 (1977).

We discern no abuse of discretion in the trial court’s failure to question the juror who allegedly fell asleep. The court’s remarks demonstrate that the court had observed the juror in question and that it concluded that the juror was not in fact asleep. Furthermore, Holder’s counsel did not request replacement of that juror by an alternate. Holder has not shown that he was prejudiced by the court’s action.

Holder’s final argument is that the trial court’s questioning of Chartrain deprived him of a fair trial. During re-cross examination of Chartrain, defense counsel asked a question which suggested that a person other than Holder had been invited by Chartrain to Panama City where the drug sale was to occur. The government objected to the question and requested a side-bar proffer of whatever foundation there might be to support the question, i. e., any reason that Holder’s counsel might have to believe that another person rather than Holder might have been invited. At that point the court questioned Chartrain about when he first met Holder, how long he had known Holder when he received the telephone call from Renton, and whether he understood that Holder was to accompany him to Panama City to meet Renton. De[*452] fense counsel then resumed his re-cross examination.

This Court recently considered and rejected a similar challenge to a trial court’s questioning of a witness. United States v. Bartlett, 633 F.2d 1184 (5th Cir. 1981). The Court stated:

Following our common law heritage, a judge is not a mere moderator, and he has an obligation and duty to question witnesses and comment on the evidence when necessary. Quercia v. United States, 289 U.S. 466, 469, 53 S.Ct. 698, [699,] 77 L.Ed. 1321 (1933); United States v. Jacquillon, 469 F.2d 380, 387 (5th Cir. 1972). In fact a trial judge may elicit facts not yet adduced or clarify those previously presented and he may maintain the pace of the trial by interrupting and curtailing counsel’s examinations as a matter of discretion. Moore v. United States, supra, 598 F.2d [439] at 442 [(5th Cir. 1979)]; United States v. Hill, 496 F.2d 201, 202 (5th Cir. 1974); Kyle v. United States, 402 F.2d 443, 444 (5th Cir. 1968).
Only when the judge’s conduct strays from neutrality is a defendant thereby denied a fair trial as required by the Constitution. See United States v. Mid-dlebrooks, 618 F.2d 273, 277 (5th Cir. 1980); United States v. Daniels, 572 F.2d 535, 541 (5th Cir. 1978).

Id. at 1188.

The trial court’s questioning of Chartrain was merely an attempt to clarify the confusion that defense counsel’s question had introduced. Holder has not demonstrated that the court’s questioning deprived him of a fair trial.

AFFIRMED.