OPINION OF THE COURT
GARTH, Circuit Judge.
The government's opening at the start of a criminal trial which charged both conspiracy
Defendants Kenny DeRosa and Brando Rosetta were indicted for having conspired together and with others to import (Count 1) certain controlled drug substances and with conspiring to distribute (Count 2) methamphetamine, one of those substances.
Jury selection occupied the first day of trial. On the second day, the district court judge opened his remarks to the jury by saying:
Record at 2-2 (emphasis added).
The government attorney thereafter began his opening statement. First, he referred to the purpose of the opening procedure by stating that that purpose had already been explained by the court. After certain other preliminary remarks, he read Counts 1 and 2 (the conspiracy counts) to the jury.
He then read Count 3 to the jury, and summarized the substance of Counts 4, 5, 6
He then stated:
Record at 2-12 through 2-13. Thereafter, the transcripts were read, word for word. The reading of these transcripts by the government consumed some 22 pages of the trial record. The government's opening as a whole totals 52 pages of the trial record. Hence, almost 50 percent of the time used by the government in its opening was devoted to a verbatim reading of the wiretap transcripts.
Following the reading of these transcripts, and after some cursory explanations concerning the conspiracy charges, the government again read another page and a half of wiretap transcripts involving DeRosa and an informer. This was followed immediately by the government's concluding remarks:
Record at 2-55.
At no time did either defense counsel (or the court) interrupt the government's opening or reading of the transcripts. At no time during the opening was an objection made or a sidebar conference requested. At the conclusion of the government's opening,
Record at 2-55 through 2-56.
Testimony began the next day. The government presented compelling evidence that the appellants were key links in a methamphetamine distribution network with its source of supply in Canada and its base of operations in and around Philadelphia. One William Ramsey, testified to arranging for the transportation of the drugs from Canada to Philadelphia, while other indicted and unindicted co-conspirators testified as to their roles in the scheme. A pattern emerged: in a typical transaction, DeRosa and Rosetta would arrange to meet with Ramsey and would pay Ramsey for his delivery. The shipment would then be broken down for distribution.
The trial was in its fifth day when the government sought to introduce into evidence the wiretap transcripts which had been read to the jury during the opening. The district judge ruled them inadmissible, because:
Record of November 21, 1975 at 12.
Both defendants chose to rest without producing evidence. At an in-chambers hearing, the district court judge announced that he would direct a verdict of not guilty on Counts 3 through 7, the substantive "communication" counts in which DeRosa alone was named as a defendant. Proposed points for charge were then considered by counsel and the court.
The district court judge, in his remarks preliminary to the closing arguments, charged:
Record of November 21 at 10. Then, just before the government began its closing statement, defendants' counsel offered their first—and only—reaction to the government's opening made four days earlier. The motion and the court's response are recorded as follows:
The closing argument of the government followed. No mention was made of the wiretaps. Similarly, neither of the defendants' closing arguments referred to or even
Id. at 71-72.
Following that discussion, the court read points for charge requested by the defendants. None of these concerned the wiretap transcripts, and we have not been directed by the defendants to any points for charge requested by them which did so concern wiretap transcripts. At the conclusion of the court's charge, no exceptions were taken by the government, and the exceptions taken by the defendant did not involve either the government's opening or the reading of the wiretap transcripts. In sum, no reference was made, by counsel or the court, to wiretaps, wiretap transcripts or the government's opening.
The jury retired for its deliberations, interrupting them only to make the following significant inquiry to the court:
Id. at 83.
The jury, told to ignore the wiretaps, went on to convict both defendants on both conspiracy counts.
Subsequent to their trial and conviction, motions for a new trial based upon the improprieties in the government's opening were denied. On April 22, 1976, the defendants were sentenced to identical terms of imprisonment of five years, to be followed by special parole of five years on each count, with the sentences to run concurrently. This appeal followed.
Once again we are obliged to turn our attention to the issue of prosecutorial misconduct in the context of an improper opening statement. See United States v. Somers, 496 F.2d 723, 736-39 (3d Cir.), cert. denied, 419 U.S. 832, 95 S.Ct. 56, 42 L.Ed.2d 58 (1974); United States v. Leftwich, 461 F.2d 586, 590 (3d Cir.1972) cert. denied, 409 U.S. 915, 93 S.Ct. 247, 34 L.Ed.2d 178 (1972); United States v. Turner, 409 F.2d 102, 103-04 (3d Cir.1969). While we would have thought that our prior instruction would have obviated the need for still further discourse, apparently such is not the case.
In Somers, we expressed our disapproval of prosecutorial improprieties as they there appeared in the context of both opening and closing statements. We expressed our concern that a "few injudicious words uttered in the heat of battle by an Assistant United States Attorney" could jeopardize an entire trial and months of investigation and pre-trial preparation. See United
Here the government's opening consisted of far more than "a few injudicious words" and cannot be excused as occurring in "heat of the battle," for the "battle" on the merits had yet to be joined. There can be no question but that the government's opening statement, which could have and should have been prepared in advance of trial in accordance with trial and professional disciplines (see Somers, supra, at 742), needlessly jeopardized a trial which was to run for six days. This Court has constantly and continuously emphasized that
United States v. LeFevre, 483 F.2d 477, 478 (3d Cir.1973).
Here, the overzealous attempt by the government to expose to the jury materials to which the jury should not have been exposed at that stage of the trial, and the manner of the government's exposition can hardly be called an exercise of that responsibility which we require of the United States. Rather, this case presents still another example of needless prosecutorial overkill which this Court has been constantly forced to review.
The time and place for commenting on materials of evidence, for detailing that evidence, for reading verbatim from transcripts admitted in evidence and for hitting hard but always fairly, Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 79 L.Ed. 1314 (1935), is during summation—the closing argument. That is the time—not during the opening—to focus the jury's attention on the trial evidence and the inferences to be drawn therefrom. What gave rise to this appeal was the government's misconception and abuse of the differing functions of these two trial stages.
To forestall any further repetition of such transgressions in the future, we repeat once again that
Government of Virgin Islands v. Turner, supra, 409 F.2d at 103, quoted in part in United States v. Somers, supra, 496 F.2d at 737. Cf. Government of Virgin Islands v. Oliver, 360 F.2d 297 (3d Cir.1966). Nor should an opening statement contain unnecessary, overly dramatic characterizations. See United States v. Somers, supra, 496 F.2d at 738 ("We categorically disapprove of remarks which serve only to color subjectively the minds of the jury at the outset of the trial.") As one commentator observes:
C. Torcia, ed., 3 Wharton's Criminal Procedure, § 493 (12 ed. 1975), at 377-78 (emphasis added) (footnotes deleted). For an excellent discussion of the purpose and content of an opening statement, see State v. Burruell, 98 Ariz. 37, 401 P.2d 733 (1965).
These principles necessarily lead to the conclusion that the opening statement is to be limited to a general statement of facts which are intended or expected to be proved. An opening statement is not designed to be an evidentiary recitation which minutely describes in detail, rather than
Recently, Chief Justice Burger offered the following description of the opening statement:
United States v. Dinitz, 424 U.S. 600, 612, 96 S.Ct. 1075, 1082, 47 L.Ed.2d 267 (1976) (concurring opinion).
Having summarized once again the appropriate scope and content of an opening statement, it is apparent to us that the challenged opening statement of the government, measured against these criteria, was clearly improper.
That determination, however, does not end our inquiry, for, as we observed in Somers:
496 F.2d at 737. Thus we must look to the circumstances attending the trial in this case to ascertain whether by reason of the government's detailed recitation of wiretap transcripts which ultimately were excluded from evidence,
We begin by noting that the government's reading of the wiretap transcripts during its opening went unchallenged by appellants' counsel.
496 F.2d at 738 n.28.
A timely objection also serves the purpose of permitting curative actions to be taken at the very outset of the trial rather than just before the trial's conclusion. In this case, had the defendants moved for a mistrial just after the government's opening, rather than waiting until before the government's closing, and had that motion been granted, five days of trial and testimony could have been saved.
Not only did the defendants fail to object during and after the government's opening, but at no time during the trial did either of them ever seek the curative instruction from the court to which they would have been entitled. See United States ex rel. Perry v. Mulligan, 544 F.2d 674 (3d Cir.1976). Significantly, just as the defendants chose not to comment on the government's opening by waiving their own opening statements, they similarly did not refer to the wiretap transcripts in their closing arguments to the jury—even by way of pointing out the government's failure to produce the promised transcripts as evidence for jury consideration.
Moreover, as we have previously noted with respect to the court's final charge, see page 468 supra, the defendants failed to request any charge pertaining to the government's opening or to the wiretap transcripts. Nor did the defendants except to the court's charge in these particulars. Their failure to react to the government's opening, either by objection or by seeking curative charges, is a strong indication that they did not sense prejudice. In ignoring this entire subject in their summations they provide further evidence of their lack of concern that the government's reading of the transcripts pertaining to the substantive counts would affect the jury's determinations on the conspiracy counts.
With these considerations in mind, we cannot say that the district court judge abused his discretion in denying the defendants' motion for mistrial.
In this connection, we should emphasize that the district court judge, in denying the defendants' motion for mistrial, was not ruling upon a case which involved offending material bearing upon the offenses charged. Here, as we have observed, the wiretap transcripts were read to the jury during the government's opening only in support of the substantive indictments in which the defendant DeRosa was named,
At that stage of the trial, we cannot say that the district court judge erred in denying the defendants' motion. On a motion for mistrial, the district court's inquiry, as is ours, is properly focused on the possibility of prejudice to the defendant. United States v. Carney, 461 F.2d 465, 467-68 (3d Cir.1972). Whatever prejudice had been injected into the trial by the reading of the wiretap transcripts had been almost wholly dissipated by the court's dismissal of the substantive counts to which the transcripts related. However, if doubt remained as to whether any prejudice to the defendants could still inure by reason of the government's opening, that doubt is dispelled by the jury's inquiry specifically directed to that issue.
We need not speculate on whether the wiretap information was taken into consideration by the jury despite the district court's general admonition to consider only evidence and not argument. During its deliberations, the jury perceptively asked:
Record of November 21 at 83. The court adopted the defendants' answer to that question:
The jury's question and the court's response as structured by defense counsel dissipated whatever residue of prejudice may have remained and cured any deficiency in the court's charge as respects the wiretap transcripts. We are satisfied that the jury did not consider and was not influenced by the transcripts improperly read during the government's opening.
We conclude that the jury's verdict was not influenced by the government's opening, and that therefore no prejudice inured to the defendants from the challenged improprieties. See United States v. Somers, supra, 496 F.2d at 737.
We are satisfied, therefore, as was the district court, that the defendants' guilt on the conspiracy counts was clearly established by competent evidence untainted by the government's opening, and that the district court judge did not abuse his discretion in denying a mistrial. Accordingly, we sustain the convictions. The judgment of the district court will be affirmed.
DeRosa contends that the trial court erred in failing to instruct the jury to disregard all evidence of dealing in methaqualone occurring before October 4, 1973 for the reason that methaqualone did not become a controlled substance until that date where the indictment charged conspiracies commencing on June 1, 1972.
Rosetta argues that, as he was charged only with conspiracy to unlawfully import and distribute controlled substances, the government committed fundamental plain error by prejudicial opening statements to the jury with respect to an accusation of an incriminatory admission of guilt by defendant and the threat to commit another uncharged crime which evidence was not offered at trial.
We have considered each of these contentions and conclude in light of the record that they are without merit.
483 F.2d at 480. See also Leonard v. United States, 277 F.2d 834, 841 (9th Cir.1960).
As appears in our discussion infra, we recognize that the conduct of government counsel was improper, but on this record we can perceive no error constituting a "manifest miscarriage of justice" or rising to constitutional dimension.