UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

BENJAMIN RICE LACY, III; LINDEN

No. 96-4859

BEVERAGE COMPANY, INCORPORATED;

FREEZELAND ORCHARDS COMPANY,

INCORPORATED,

Defendants-Appellants.

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

BENJAMIN RICE LACY, III; LINDEN

No. 96-4964

BEVERAGE COMPANY, INCORPORATED;

FREEZELAND ORCHARDS COMPANY,

INCORPORATED,

Defendants-Appellants.

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

v.

BENJAMIN RICE LACY, III; LINDEN

No. 97-4053

BEVERAGE COMPANY, INCORPORATED;

FREEZELAND ORCHARDS COMPANY,

INCORPORATED,

Defendants-Appellees.
Appeals from the United States District Court

for the Western District of Virginia, at Harrisonburg.

Samuel G. Wilson, Chief District Judge.

(CR-94-122)

Argued: October 29, 1997

Decided: December 15, 1997

Before LUTTIG and WILLIAMS, Circuit Judges, and

BULLOCK, Chief United States District Judge for the

Middle District of North Carolina, sitting by designation.

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Vacated and remanded by unpublished per curiam opinion.

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COUNSEL

ARGUED: Eric John Murdock, HUNTON & WILLIAMS, Washington, D.C., for Appellants. David Carlisle Shilton, UNITED STATES

DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee. ON

BRIEF: David F. Geneson, HUNTON & WILLIAMS, Washington,

D.C.; Richard H. Milnor, John W. Zunka, TAYLOR, ZUNKA, MILNOR, CARTER, Charlottesville, Virginia, for Appellants. Lois J.

Schiffer, Assistant Attorney General, Environment & Natural

Resources Division, Ellen J. Durkee, James M. Miskiewicz, UNITED

STATES DEPARTMENT OF JUSTICE, Washington, D.C.; Robert

P. Crouch, Jr., United States Attorney, Nancy S. Healey, Assistant

United States Attorney, Charlottesville, Virginia, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Defendant Benjamin R. Lacy is president of both defendant Freezeland Orchards Company and defendant Linden Beverage Company.

A jury found Lacy guilty of seven counts of knowingly making material false statements on documents required to be maintained under

the Clean Water Act, 33 U.S.C. § 1311(a), and one count of knowingly discharging pollutants in violation of Clean Water Act permit

limitations. Freezeland and Linden were also found guilty on corresponding counts.

At trial, the defendants relied primarily on a defense of good character. The defendants thus requested that the district court give an

instruction regarding the weight to be given to evidence of Lacy's

good character that would state, in part, that "[e]vidence of the defendant's honesty, truthfulness, and veracity and law-abidingness alone

may create a reasonable doubt whether the government proved that

the defendant committed the crime." J.A. at 434 (emphasis added).

The United States objected to this instruction at the charging conference. J.A. at 435. Nevertheless, the district court indicated at the conclusion of that conference, conducted prior to the close of evidence

and prior to the completion of the defense counsel's preparation of

closing argument for the jury, that it would give the instruction

requested by the defendants. J.A. at 435, 438. In reliance on the district court's representation that it would give the requested instruction

on character evidence, counsel for the defendants made the following

statements in closing argument to the jury:

But the government -- the judge is going to give you a very

interesting charge at the close of all this discussion. The

judge is going to tell you that based on just the character

evidence that you heard, alone, relative to Mr. Lacy, truthfulness, integrity, law-abidingness, you may find that there

is reasonable doubt to believe that he could commit these

crimes that are alleged by the Government, just that, alone.

J.A. at 357 (emphasis added). At the conclusion of closing arguments,

the district court gave a jury instruction about character evidence, but

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-- over defendants' objection -- omitted the word "alone" from the

charge requested by defendants. J.A. at 370, 435.

As the district court itself later acknowledged, its failure to apprise

the defendants prior to closing arguments that the court would not

give the instruction defendants requested violated Rule 30 of the Federal Rules of Criminal Procedure. J.A. at 435-36. Rule 30 provides

that the "court shall inform counsel of its proposed action upon the

requests [for particular jury instructions] prior to their arguments to

the jury." A violation of this rule requires a new trial only when it

results in "actual prejudice." United States v. Horton, 921 F.2d 540,

547 (4th Cir. 1990) (citing United States v. Burgess, 691 F.2d 1146,

1156 (4th Cir. 1982)).

The district court in this case granted defendants a new trial

because, "[a]fter reviewing the trial in its entirety," the district court

concluded that "the deletion of `alone' from the instruction, in context

of the court's failure to properly inform defense counsel of its decision before closing argument, significantly prejudiced Lacy."1 J.A. at

434 n.9 (emphasis added). The court later vacated its grant of a new

trial on jurisdictional grounds,2 but reiterated that it remained con-

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1 Specifically, the court found that defense counsel had relied on the

fact that the instruction would contain the word"alone" in making his

final argument and had "promised the jury" that the court would instruct

the jury that it could find reasonable doubt from character evidence

alone. J.A. at 435. Thus, the court's deletion of the word "alone" from

the requested charge without proper notice to the defense "caused Lacy's

counsel to break his promise to the jury, thereby undermining Lacy's

principal argument." J.A. at 435. The court also found that this breach of

promise "potentially damaged defense counsel's credibility with the jury

and weakened Lacy's main defense strategy -- that his reputation for

honesty, truth and veracity, and law-abidingness, alone, was capable of

creating a reasonable doubt as to Lacy's commission of the crimes

charged." J.A. at 435-36. The court was particularly concerned about its

error because of "the essential, central role of the character evidence in

this case." J.A. at 436.

2 On a government motion for reconsideration of the grant of a new

trial, the court found that it lacked jurisdiction to grant a new trial on the

Rule 30 ground because the defendants had not specifically identified

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vinced that defendants were entitled to a new trial because the Rule

30 violation had prejudiced the defense. J.A. at 439. Although this

Court is not technically bound to defer to the district court's finding

of actual prejudice, the district judge presided over the trial and is

thus in the best position to assess the effect of its error on the defense

counsel's closing argument and credibility. Accordingly, we vacate

defendants' convictions and remand for a new trial.

VACATED AND REMANDED

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that ground during the seven-day period after the jury verdicts in which

Fed. R. Crim. P. 33 requires that motions for new trial be made. Because

we hold, as a matter of direct appellate review, that defendants are entitled to a new trial because the Rule 30 violation constitutes reversible

error, we do not reach the issue of whether a district court has jurisdiction to grant a new trial on a ground that was not submitted to the court

within the seven-day period of Rule 33, but was raised instead by a supplemental memorandum filed after the seven-day period had lapsed.

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