United States v. Capps.
No. 23-3095. 8/13/2024. D.Kan. Judge Hartz. Fraudulently Obtaining Federal Funds—Money Laundering—Jury Instructions.
August 13, 2024
Capps was indicted on 19 counts related to fraudulently obtaining federal funds for COVID-19 relief on behalf of two businesses that he owned and one foundation of which he was a member. The district court stated at a pretrial conference that it intended to read the jury instructions after jury selection and before presentation of evidence and to give the jurors individual copies of the instructions for reference during trial. The court delivered the jury’s preliminary instructions after the jury was sworn in and gave the jury notebooks and a copy of the primary instructions. The court then read all 40 primary instructions to the jury before the introduction of evidence. At the end of the third day of trial, the court stated that it was not going to reread the instructions to the jury based on concerns about unnecessarily wearying the jury and singling out certain instructions. Defense counsel moved the court to reread eight of the instructions that it alleged were key to the defense. The court denied the motion but told defense counsel that he could refer to the instructions during closing arguments. Defense counsel specifically referenced three of the jury instructions during closing argument. Capps was convicted on 12 counts.
On appeal, Capps argued that the district court reversibly erred by not reinstructing the jury after the close of evidence as required by Fed. R. Crim. P. 30(c). He maintained that he preserved his argument in accordance with Rule 51(b) by informing the court of the action he wanted it to take without needing to state the grounds for the request. However, Rule 51(b) does not expressly abrogate the traditional proposition that a ground for relief is not preserved for appeal unless it was presented, if possible, to the district court. Further, Rule 30(d), which specifically addresses objections to jury instructions, requires a party who objects to the failure to give a requested instruction to inform the court of its specific objection and the grounds therefor. If the party raises a new legal theory on appeal to support such objection, that argument is unpreserved. Here, Capps did not inform the court of the grounds for his request to reinstruct the jury; defense counsel did not cite Rule 30(c) or say anything to indicate Capps’s current position that there is a procedural requirement to deliver instructions immediately before or after closing argument. And defense’s motion indicated that its argument was not based on a generally applicable procedural requirement. Therefore, Capps did not preserve the claimed error based on Rule 30(c). Accordingly, reviewing for plain error, the Tenth Circuit determined that no authority supports Capps’s argument that Rule 30(c) requires instructing the jury after the close of evidence; and he failed to show that there was a reasonable probability that the court’s failure to read the instructions after the close of evidence affected the trial’s result. Thus, Capps did not satisfy the requirements of the plain-error test that the error be plain and prejudicial.
Capps also argued that even if district courts may instruct the jury at the beginning of trial in some cases, the district court abused its discretion in this case because it had no reason for refusing to reread instructions at the close of evidence. Here, the court provided each juror with a written copy of the instructions; it instructed the jury after closing arguments that all previously read instructions continued to apply, and that upon entering the jury room, after picking a foreperson, they were to read the court’s instructions, which they were required to follow throughout their deliberations. Further, the court suggested that defense counsel could refer to the instructions during closing argument, which defense counsel did. Therefore, the court took steps to ensure that the jury would not forget the instructions by the end of trial. Thus, the court’s stated concerns for not rereading the instructions did not rise to an abuse of discretion.
The judgment was affirmed.