PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                      No. 97-4132

FRANK FULLER,
Defendant-Appellant.

Appeal from the United States District Court
for the District of South Carolina, at Orangeburg.
Charles E. Simons, Jr., Senior District Judge.
(CR-96-498-CES)

Argued: June 5, 1998

Decided: November 17, 1998

Before NIEMEYER and LUTTIG, Circuit Judges, and
SMITH, United States District Judge for the
Eastern District of Virginia, sitting by designation.

_________________________________________________________________

Affirmed by published opinion. Judge Niemeyer wrote the opinion,
in which Judge Smith joined. Judge Luttig wrote a dissenting opinion.

_________________________________________________________________

COUNSEL

ARGUED: John William Weeks, Aiken, South Carolina, for Appel-
lant. Scarlett Anne Wilson, Assistant United States Attorney, Colum-
bia, South Carolina, for Appellee. ON BRIEF: J. Rene Josey, United
States Attorney, John M. Barton, Assistant United States Attorney,
Columbia, South Carolina, for Appellee.

_________________________________________________________________
OPINION

NIEMEYER, Circuit Judge:

During the trial of Frank Fuller on charges of distributing crack
cocaine in violation of 21 U.S.C. § 841(a), the district judge explained
to the jury that while they "must not accept[his] view of the evi-
dence" and the determination of what the evidence established was
entirely up to them, he believed that Fuller was"acting illegally as a
drug dealer." Fuller contends that these comments and other errone-
ous jury instructions are reversible error and entitle him to a new trial.

While we do not approve of the practice of a trial judge's express-
ing an opinion about a defendant's guilt or innocence, in the excep-
tional circumstances of this case, we affirm.

I

In January 1996, the FBI office in Columbia, South Carolina,
received a complaint from the owner of Angler's Mini-Mart in Vance,
South Carolina, that Vance's mayor, Frank Fuller, was attempting to
sell drugs in and around the store and was attempting to enlist the
store's employees to sell drugs on his behalf. Vance is a small town
in Orangeburg County about 75 miles southeast of Columbia, with a
population of 214. The town has two paid employees, a police chief
and one police officer. Fuller, the town's elected mayor since 1991,
serves without compensation. The town's only source of income is
through "police funding."

Through a sting operation organized by the FBI with the coopera-
tion of Paula Varner, the manager of Angler's, Fuller was videotaped
selling crack cocaine to Varner on four separate occasions in March
and April 1996. The total amount of crack that Fuller sold during
these transactions was approximately 34 grams. Fuller was arrested
and charged in four counts for distributing controlled substances in
violation of 21 U.S.C. § 841(a)(1).

Fuller did not deny selling the crack cocaine to Varner. Rather, he
claimed that he had sold the drugs to Varner as part of his own inves-

                     2
tigation into employee theft and drug use at the mini-mart. Fuller
stated that he often frequented Angler's Mini-Mart to drink coffee and
"to develop a mayor relationship and make sure Angler's was serving
the people well, and that the management and, you know, everything
was in order." He claimed that he undertook the investigation of the
mini-mart because employees were being fired and because of "prob-
lems that's going around in Vance consisting of drugs." He explained
that he had supplied Varner with crack cocaine "[b]ecause of the pro-
cess of the money being missing out of the drawers, and cashiers
being released. You know, the cashier was being released because of
the money shortage and of inventory," and presumably Fuller con-
cluded that he would catch Varner taking money from the drawer to
pay him for the drugs.

To conduct this investigation, Fuller stated that he obtained crack
cocaine from "an informant" but that he did not investigate the infor-
mant's source of the cocaine because that would be"out of the juris-
diction of Vance." He explained that he "had some informants planted
around the store so [he] could get the information of what was going
in and out of the store," and he did everything to "get a friendly rela-
tionship [with Varner] to make her believe that I was a drug dealer."
He asserted that he deliberately attempted to have his dealings with
Varner recorded by the store's security system in order to "have con-
crete evidence" against her and "because my word against hers is not
good."

When asked why he had decided to conduct the investigation him-
self, Fuller testified that he "was displeased" with the services of his
chief of police and that the town's only other police officer, Donnie
Jones, had not yet graduated from the state police academy. Fuller did
claim, however, that he had discussed the investigation with Jones.
Jones, however, denied knowing anything about the investigation
until after Fuller's arrest. Indeed, Jones testified that when he spoke
with Fuller following his arrest, Fuller instructed him, "Get the story,
everything -- everything straight. Get the story straight." Fuller said
that he did not go to other authorities because he did not trust them
or because he needed more concrete evidence before he could do so.
Similarly, he did not tell his wife what he was doing. He answered
her questions about why he was at the store all the time with the

                    3
explanation that he was "doing some work for the town, and [he]
can't speak of it because it's, you know, investigative work."

Fuller freely testified at trial and acknowledged his role in the drug
transactions but rested his defense on his claim that he was conduct-
ing a police-style undercover investigation into employee misconduct
at Angler's Mini-Mart. He asserted that he had the authority as mayor
to engage in such activities. Fuller argued further that he was not
guilty of violating any federal drug laws because he"did not have the
specific intent to commit those crimes."

In instructing the jury, the district judge stated,"[F]rom my own
personal view I do not credit and accept the defendant's testimony
that he was acting solely in his capacity as Mayor to investigate drug
sales in his town of Vance, and that he had no intent to violate the
federal drug laws." The district judge also stated that he believed that
Fuller "was acting illegally as a drug dealer." Immediately after he
made these comments to the jury, the judge admonished the jury that
they "must not accept [his] view of the evidence" because the evalua-
tion of the evidence was "entirely up to [the jury] and [the jury]
alone." Fuller objected to the judge's comments and moved for a mis-
trial, which the court denied.

The jury found Fuller guilty on all four counts, and the district
court sentenced him to 20 years imprisonment. This appeal followed.

II

Fuller's principal assignment of error is based on the district
judge's expressing an opinion, while instructing the jury, about Ful-
ler's credibility and his guilt for the crimes charged. In instructing the
jury, the district judge included the following statement:

          As I said before and I repeat for emphasis' sake, it is
          entirely up to you jurors to determine what capacity, pur-
          pose and intent the defendant had when he made these four
          sales of crack cocaine to Paula Varner. Now, I do want to
          do something that I don't usually do in a case like this. . . .
          Now, this is a jury case, so it is not up to me to make the

                     4
          decision in this case. But I did want to tell you-- and I
          don't usually do this, that from my own personal view I do
          not credit and accept the defendant's testimony that he was
          acting solely in his capacity as the Mayor to investigate
          drug sales in his town of Vance, and that he had no intent
          to violate the federal drug laws. I believe he was acting ille-
          gally as a drug dealer. Again, I emphasize to you that you
          do not -- you must not accept my view of the evidence in
          this case. It is entirely up to you and you alone to make your
          determination of what the evidence establishes. Do not
          accept my view of the evidence in this case.

(Emphasis added). Fuller not only objected to this instruction but
moved for a mistrial, which the court denied. Fuller argues that the
district judge was attempting to "persuade and influence the jury" and
that this effort "violated the sacred and constitutional right that [Ful-
ler] had to a fair, unbiased, and impartial jury who[ ] would decide
how to apply the law to the facts in this case."

We agree with Fuller to the extent that we believe the district
judge's statement was a most troubling one, creating unnecessary dif-
ficulties in preserving the appearance of impartiality before the jury.

Jury instructions serve the important function of informing the jury
about its factfinding role, of instructing them on the law, and of
informing the jury about its role in applying the law to the facts to
determine the ultimate question of the defendant's guilt or innocence.
See United States v. Gaudin, 515 U.S. 506, 514 (1995). The Constitu-
tion not only gives a criminal defendant a right to have the jury deter-
mine his guilt of every element of a crime for which he is charged,
but also to have the trial before an impartial judge and jury. See id.
at 522-23; Gray v. Mississippi, 481 U.S. 648, 668 (1987); Duncan v.
Louisiana, 391 U.S. 145, 155-56 (1968).

But these principles do not prohibit a trial judge, in charging the
jury, from commenting on the evidence, particularly to give context
to the court's instructions on the law. The trial judge "is not limited
to instructions of an abstract sort" and "may express his opinion upon
the facts," provided he maintains his judicial demeanor and "makes

                     5
it clear to the jury that all matters of fact are submitted to their deter-
mination." Quercia v. United States, 289 U.S. 466, 469-70 (1933).

Moreover, "in exceptional cases," the Supreme Court has approved
the trial judge's "express[ing] an opinion as to the guilt of the defen-
dant." United States v. Murdock, 290 U.S. 389, 394 (1933). In the par-
ticular circumstances where the undisputed and admitted facts in a
criminal case amounted to the commission of the crime defined by the
statute, the Supreme Court held that it was not reversible error for the
trial judge to have said to the jury, "I cannot tell you, in so many
words, to find the defendant guilty, but what I say amounts to that."
Horning v. District of Columbia, 254 U.S. 135, 138, 140 (1920)
(majority opinion and Brandeis, J., dissenting). But where the facts
are disputed and the evidence is more evenly balanced, it is error for
the trial judge to give his opinion that "the Government has sustained
the burden cast upon it by the law and has proved that this defendant
is guilty in manner and form as charged beyond a reasonable doubt."
Murdock, 290 U.S. at 393; cf. Bihn v. United States, 328 U.S. 633,
638 (1946). Furthermore, in every case where the trial judge's instruc-
tion has the effect of directing a verdict, the instruction is error, see
Gaudin, 515 U.S. at 520-23, and to the extent that the Court's deci-
sion in Horning is read to approve an instruction through which the
trial judge "effectively . . . order[s] the jury to convict," Horning
amounts to an "unfortunate anomaly," Gaudin, 515 U.S. at 520.

In expressing an opinion about the guilt of the defendant -- a mat-
ter structurally committed to the jury for determination -- the trial
judge tends to erode the parties' perception of impartiality and risks
unduly influencing the jury. If it remains a permissible practice, a
matter which is not certain in light of the Court's comments in
Gaudin, it must be done most delicately so that the jury is left with
the unmistakable understanding that it alone is to decide the defen-
dant's guilt or innocence. Were we not left with the decision in
Horning, which has not been overruled, we would be inclined to find
the practice error. For this reason, we do not hold here that giving an
opinion on the guilt or innocence of the defendant is per se error in
every case, but we do not approve of the practice.

In the case before us, the trial judge did unfortunately express his
opinion as to the guilt of the defendant when he said, "I believe he

                      6
was acting illegally as a drug dealer." But two factors save this trial
from reversal. First, all of the facts required for conviction were
admitted by the defendant during his testimony and were not contro-
verted by any other evidence. The evidence included videotapes of
Fuller selling crack cocaine to Varner, and Fuller himself testified that
he did so on four separate occasions. Moreover, Fuller did not deny
either that he knew the drugs he sold to Varner were crack cocaine
or that he intended to sell them to Varner. Indeed, he testified that he
wanted Varner to believe he was a drug dealer. Fuller thus admitted
each essential element of conviction. See 21 U.S.C. § 841(a). His only
defense was a legal one based on his alleged belief that, as mayor of
Vance, he was authorized to sell the crack cocaine as part of his
investigation. On this basis, he claimed that he never "intend[ed] to
violate the criminal laws of the United States" because he lacked "the
specific intent to commit those crimes." But it is not a requirement of
21 U.S.C. § 841(a) that the defendant have specifically intended to
violate the statute in order to be found guilty. The mens rea required
by the statute is that the defendant "knowingly or intentionally"
engage in the prohibited activities. To act "knowingly" is to act with
"knowledge of the facts that constitute the offense" but not necessarily
with knowledge that the facts amount to illegal conduct, unless the
statute indicates otherwise. Bryan v. United States, 118 U.S. 1939,
1946 (1998) (emphasis added). Since nothing in the text of 21 U.S.C.
§ 841(a) indicates that Congress meant to punish only those defen-
dants who actually intended to violate the statute, Fuller's admission
that he was aware that he was selling crack cocaine to Varner is all
that was required to prove that his conduct was knowingly carried out.
And to commit an act intentionally is to do so deliberately and not by
accident. Fuller admitted that he deliberately sold the crack cocaine
to Varner. Thus the exceptional circumstances present in Horning --
where the undisputed facts amounted to the commission of the crime
-- are also present in this case.

The second factor saving this case from reversal is the district
court's clear and repeated statements to the jury that the court's opin-
ion concerning Fuller's guilt was only the judge's personal view and
that the jury "must not accept [his] view of the evidence in this case."
The trial judge reiterated, "Now, this is a jury case, so it is not up to
me to make the decision in this case," and, "It is entirely up to you
and you alone to make your determination of what the evidence estab-

                     7
lishes. Do not accept my view of the evidence in this case." These
admonitions were given to the jury immediately preceding and fol-
lowing the judge's expression of opinion about Fuller's guilt, thereby
making the judge's statements far less prejudicial than those in
Horning, where the trial judge instructed the jury in effect to follow
his opinion. The judge in Horning said,"a failure by you to bring in
a verdict [of guilty] in this case can arise only from a wilful and fla-
grant disregard of the evidence and the law as I have given it to you,
and a violation of your obligation as jurors." Thus, the very aspect of
Horning that makes it "an unfortunate anomaly," Gaudin, 515 U.S. at
520, is not present in the case before us.

In short, while the district court's opinion concerning Fuller's guilt
was, we believe, ill advised, in the exceptional circumstances of this
case, we do not believe that it denied Fuller a fair trial. Compare
Bihn, 328 U.S. at 638 (defendant was prejudiced by judge's statement
implying she was guilty, where evidence was "quite evenly balanced"
and "the jury might have been influenced by the erroneous charge"),
and Quercia, 289 U.S. at 468, 472 (defendant who generally denied
violating federal drug laws was prejudiced by judge's instruction to
jury that wiping one's hands while testifying "is almost always an
indication of lying").

III

Fuller also contends that the district court erred in instructing the
jury that South Carolina law "d[oes] not authorize a mayor to commit
violations of federal drug laws during the conduct of an investigation
which he may be pursuing." The district court instructed the jury that
Fuller's belief that he had the power, as mayor, to engage in under-
cover drug transactions as part of his investigation was a mistake of
law which "is not a defense to the charges contained in this indict-
ment." Fuller argues that this "amounted to a charge to the jury that
the defendant had no defense . . . and was essentially a directed ver-
dict."

We agree with the district court that Fuller's alleged belief that, as
mayor, he was authorized under South Carolina law to conduct under-
cover drug operations amounted to a mistake of law and, as such, was
not a legally cognizable defense to the federal charges against him.

                     8
Under South Carolina law, the mayor is "the chief administrative offi-
cer of the municipality." S.C. Code § 5-9-30 (emphasis added). As the
chief administrative officer, the mayor is responsible for, among other
things, making personnel decisions, managing the city's departments
and offices, presiding at council meetings, and preparing the annual
budget. Id. The mayor's various responsibilities also include the duty
"to insure that all laws . . . subject to enforcement by him or by offi-
cers subject to his direction and supervision, are faithfully executed."
S.C. Code § 5-9-30(4). But the only law enforcement power granted
to mayors by South Carolina law is the power analogous to municipal
judges to try persons charged with specified criminal offenses and,
possibly, to investigate municipal departments. See S.C. Code §§ 5-7-
90, 5-7-100. All other law enforcement activities, such as patrolling
streets, making arrests, and conducting investigations, fall within the
province of municipal police officers. See S.C. Code § 5-7-110 (stat-
ing that "Any municipality may appoint or elect as many police offi-
cers, regular or special, as may be necessary for the proper law
enforcement in such municipality" and vesting municipal police offi-
cers with the "powers and duties" of constables). Most importantly,
however, the primary responsibility for the enforcement of South Car-
olina's drug laws resides with the State Law Enforcement Division
("SLED"). See S.C. Code § 44-53-480.

Fuller has never claimed to have been acting either as a municipal
police officer or as a SLED agent when he sold crack cocaine to
Varner on four separate occasions. Instead, he claimed that he
believed he was authorized, as mayor, to engage in the transactions
as part of his investigation into alleged employee misconduct at
Angler's Mini-Mart. But nothing in the South Carolina statutes or
case law supports Fuller's belief that, as mayor, he possessed this law
enforcement power. The best that Fuller can argue, if his testimony
is found completely credible, is that his misunderstanding amounted
to a mistake of law. But that mistake does not serve as a defense to
the federal crimes with which he was charged.

While a mistake of fact can provide a defense to an offense that has
a mens rea requiring knowledge, a mistake of law such as claimed by
Fuller is no defense because the background presumption must be that
"every citizen knows the law." Bryan, 118 S. Ct. at 1946. Without this
presumption there could be little law enforcement because most citi-

                    9
zens are not knowledgeable about the law. "The general rule that
ignorance of the law or a mistake of law is no defense to criminal
prosecution is deeply rooted in the American legal system." Cheek v.
United States, 498 U.S. 192, 199 (1991); see also United States v.
Wilson, 133 F.3d 251, 261 (4th Cir. 1997).

Although not relied upon by Fuller, 21 U.S.C. § 885(d) immunizes
"any duly authorized officer of any State . . . who shall be lawfully
engaged in the enforcement of any law or municipal ordinance relat-
ing to controlled substances" from criminal prosecution under federal
law for violations relating to controlled substances, including 21
U.S.C. § 841(a)(1). Since we conclude, however, that Fuller was not
authorized under South Carolina law to engage in illegal drug transac-
tions as part of his investigation, the immunity conferred by 21 U.S.C.
§ 885(d) does not apply.

Accordingly, the district court was correct in instructing the jury
that Fuller's mistake of law defense could not serve as a defense to
the federal crimes with which he was charged.

IV

Finally, Fuller argues that the district court erred in failing to
instruct the jury on all sections of South Carolina Code § 5-9-30 con-
cerning the powers and responsibilities of mayors. The district judge
only instructed the jury on subsection (4), which authorizes mayors
to ensure that all laws are enforced. Whether the entire statute was
read, or only subsection (4), or indeed none of the statute, the district
court correctly instructed the jury on Fuller's lack of authority. The
decision of whether to give a particular jury instruction requested by
a party remains in the discretion of the district court. See United
States v. Abbas, 74 F.3d 506, 513 (4th Cir. 1996). Here, the district
court did not abuse its discretion in refusing to give the instruction
offered by Fuller. In any event, the portions of the statute omitted
from the court's instructions dealt with the mayor's administrative
functions and therefore were not relevant.

For the foregoing reasons, the judgment of the district court is

AFFIRMED.

                     10
LUTTIG, Circuit Judge, dissenting:

The district court instructed the jury in this case that it (the court)
"did not credit and accept the defendant's testimony," that it (the
court) believed that the defendant possessed the intent to violate the
federal drug laws, and that it (the court) believed that the defendant
"was acting illegally as a drug dealer." As the majority acknowledges,
the district court essentially instructed the jury that the defendant was
guilty as a matter of law.

Although I confess it was to my surprise, the Supreme Court has
held that when the facts are undisputed and satisfy the elements of the
crime, it is not necessarily reversible error for a trial court to instruct
the jury that in the court's opinion the defendant is guilty. Horning
v. District of Columbia, 254 U.S. 135, 138-39 (1920). See United
States v. Murdock, 290 U.S. 389, 394 (1933). However, given the
Court's considerably more recent explication of the doctrine of struc-
tural error, I must conclude that these holdings no longer constitute
sound precedents.

In particular, in United States v. Gaudin, 515 U.S. 506 (1995), the
Court, in a unanimous opinion written by Justice Scalia, left no doubt
that it viewed both Horning and Murdock as irreconcilable with the
Court's developing harmless error jurisprudence. Indeed, Justice
Scalia characterized the doctrine of those cases-- that an instruction
that the defendant was guilty as charged could be"harmless error, if
error at all" -- as "an unfortunate anomaly in light of subsequent
cases." Id. at 520. Other courts had reached the same conclusion even
before Gaudin. See Commonwealth v. McDuffee, 398 N.E.2d 463,
468-69 (Mass. 1979) ("[S]erious constitutional questions are raised
[by Horning] in light of modern case law."); United States v. Taylor,
693 F. Supp. 828, 841 n.25 (N.D. Cal. 1988) (agreeing with
McDuffee).

It seems to me that the concern expressed in Gaudin applies even
where, as here, the trial court instructs the jury that, notwithstanding
the court's conclusion of guilt, the jury retains the right to make the
final decision. For, as the Court explained in Quercia v. United
States, 289 U.S. 466 (1933), on which Justice Scalia relied in Gaudin,
"[t]he influence of the trial judge on the jury is necessarily and prop-

                     11
erly of great weight and his lightest word or intimation is received
with deference, and may prove controlling." 289 U.S. at 470 (internal
quotations omitted). Because of this influence, some errors in jury
instructions -- those "likely to remain firmly lodged in the memory
of the jury and to excite prejudice" -- simply cannot be cured by a
statement that the court's opinions are not binding on the jury. Id. at
472. After Gaudin, an instruction of guilt surely falls into this class.

Because I believe that the Supreme Court, if confronted with the
court's instruction in this case, would, under the reasoning of Gaudin,
hold that the district court's instructional error was structural in char-
acter and thus "def[ies] analysis by harmless-error standards,"
Sullivan v. Louisiana, 508 U.S. 275, 281-82 (1993) (internal quota-
tions omitted), I would reverse the defendant's conviction and remand
for a new trial.

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