UNPUBLISHED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.

_________________________________________________________________

Vacated and remanded by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: Eric John Murdock, HUNTON & WILLIAMS, Washing-
ton, 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, MIL-
NOR, 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.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

                    2
OPINION

PER CURIAM:

Defendant Benjamin R. Lacy is president of both defendant Freeze-
land Orchards Company and defendant Linden Beverage Company.
A jury found Lacy guilty of seven counts of knowingly making mate-
rial false statements on documents required to be maintained under
the Clean Water Act, 33 U.S.C. § 1311(a), and one count of know-
ingly discharging pollutants in violation of Clean Water Act permit
limitations. Freezeland and Linden were also found guilty on corre-
sponding counts.

At trial, the defendants relied primarily on a defense of good char-
acter. 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 defen-
dant'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 confer-
ence. J.A. at 435. Nevertheless, the district court indicated at the con-
clusion 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 dis-
trict 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, truth-
          fulness, 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

                     3
-- 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 Fed-
eral 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 deci-
sion 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-
_________________________________________________________________
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

                    4
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
_________________________________________________________________
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 enti-
tled to a new trial because the Rule 30 violation constitutes reversible
error, we do not reach the issue of whether a district court has jurisdic-
tion 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 sup-
plemental memorandum filed after the seven-day period had lapsed.

                     5
