United States v. Parker

• Decision Date: 03 January 1973
• Docket Number: No. 72-1165,72-1166.,72-1165
• Citation: 469 F.2d 884
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Henry Harold PARKER, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. David Joe GREEN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

469 F.2d 884 (1972)

UNITED STATES of America, Plaintiff-Appellee, v. Henry Harold PARKER, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. David Joe GREEN, Defendant-Appellant.

Nos. 72-1165, 72-1166.

United States Court of Appeals, Tenth Circuit.

November 7, 1972.

Rehearings Denied January 3, 1973.

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James W. Bill Berry, Oklahoma City, Okl., for appellants.

William R. Burkett, U. S. Atty., Oklahoma City, Okl., for appellee.

Before BARNES^*, HILL and HOLLOWAY, Circuit Judges.

BARNES, Circuit Judge:

Before us are two consolidated appeals from conviction of a one-count indictment alleging a bizarre conspiracy "to defraud the United States of lawful revenue, that is, to make firearms, to-wit: destructive devices" without having paid the making tax, or having filed the written application, required by 26 U.S.C. §§ 5821 and 5861(f).¹

The indictment then went on to charge:

"It was part of said conspiracy that the defendants caused to be made two bombs consisting of dynamite, blasting caps and fuses, and two incendiary bombs to-wit: Molotov cocktails, consisting of bottled gasoline and rag wicks."

The government's theory was that the conspiracy to make the destructive devices was accomplished through the hiring by defendants of two convicted felons (Phipps and Bevill) who were incarcerated in the state penitentiary both at the time of trial and when they testified before the grand jury, and were granted immunity at the time they so testified. The government stipulated to these facts. (A. 56).

The term "firearm" as used in §§ 5821 and 5861(f) includes "a destructive device" (§ 5845(a)(8)). "A destructive device" is defined as "any explosive, (or) incendiary, . . . . bomb, grenade, rocket . . . missile . . . mine, or similar device." (§ 5845(f)(1)). See: United States v. Melville, 309 F.Supp. 774 (S.D.N.Y. 1970); United States v. Davis, 313 F.Supp. 710, 713-714 (D.Conn.1970); United States v. Lauchli, 371 F.2d 303, 311-314 (7th Cir. 1966).

Appellant charges seven errors, which we consider in turn.

I

The overruling of Defendants' Amended Motion for Production of Grand Jury Testimony.

Appellants made (on August 17, 1971) prior to trial a motion (later amended) for the production of grand jury minutes and transcript, alleging "a particularized need"² to "impeach the witnesses before the Grand Jury, to refresh their recollection and to test their credibility."

The court found the grand jury minutes reflected only the indictments returned, and the number of jurors voting therefor. Only a part of the testimony was recorded, and only part of that transcribed. Under such circumstances, the court ordered the minutes of the grand jury to be shown, and copies of the defendants' own testimony furnished them under Rule 16(a) F.R.Cr.Proc.

The district court found no "particularized need" for the testimony of other witnesses, unless and until they had offered their testimony in court against defendants. This was based on the premise that prior to that time, there was no way to use such previous testimony to refresh recollection, impeach a witness, or test credibility. In so ruling, the district court followed Dennis³ as suggested by the Tenth Circuit in Cargill v. United States, 381 F.2d 849, 851-852 (10th Cir. 1967), cert. denied 389 U.S. 1041, 88 S.Ct. 781, 19 L.Ed.2d 831 (1968); Melton v. United States, 398 F.2d 321 (10th Cir. 1968); Hensley v. United States, 406 F.2d 481 (10th Cir. 1968); United States v. Hughes, 429 F.2d 1293 (10th Cir. 1970), as well as cases in other circuits. United States v. Johnson, 419 F.2d 56 (4th Cir. 1969), cert. denied 397 U.S. 1010, 90 S.Ct. 1235, 25 L.Ed.2d 423 (1970). In other words, other than requiring that the transcript of the defendant's own testimony be delivered to the defendants prior to the trial, the court decided any other testimony was to be delivered in accordance with the usual Jencks Act rule during the trial.⁴ The district court therefore denied defendant's motion, without prejudice to renewal thereof during the course of trial. (A. 28-29).

While it is true Rule 6(e) permits the court to disclose grand jury testimony preliminarily to a judicial proceeding it does not require it. This ruling was in accord with this circuit's understanding of Dennis, as stated and limited in Cargill, supra.

A motion to strike certain language from the indictment was granted in part, which left the description of the conspiracy as herein above quoted. An amended motion to furnish additional grand jury testimony was later made and overruled on the same grounds. Appellant's counsel asserts in his brief that these rulings resulted in his being given "some five, ten or fifteen minutes to review the testimony of two felons"; that this fact alone is a sufficient basis to establish the existence of the required "particularized need" on his part. This assertion is minimized rather effectively when the record discloses the trial judge stated to defendant's counsel, in denying the amended motion for the production of grand jury testimony:

". . . I will say this, that if it appears necessary in the furtherance of justice after they have testified, that the Court grant a continuance to give you adequate time to study such statements, I\'ll certainly do that. . . ." (A. 53).

Government counsel agreed to follow the court's suggestion, and did so. He gave defense counsel the Grand Jury testimony—and copies of two statements made by unindicted co-conspirator Phipps—before Phipps took the stand. (A. 157). Counsel for defendant asked for 20 minutes to read the statements, and received it. (A. 183). Government counsel likewise gave defense counsel the Grand Jury testimony of unindicted co-conspirator Fred Bevill, prior to Bevill's testifying; all pursuant to Jencks Act standards. (A. 236). During and after the testimony of both Phipps and Bevill, no further time to examine their Grand Jury testimony was requested by defendant's counsel. When the witness Henry testified, his Grand Jury testimony was not supplied to defense counsel by the government. Defense counsel then asked for and obtained a delay in the trial until it could be determined whether Mr. Henry's testimony before the Grand Jury had been transcribed. (A. 334). It had not. Continually during trial, defense counsel was asked by the trial judge if he desired additional time to familiarize himself with what the next prosecution witness would testify to, and never was a delay requested that was not granted.

The determination of whether "a particularized need" existed prior to the giving of testimony against an indicted defendant is peculiarly a matter resting in the sound judicial discretion of the trial court. It is not a matter of absolute right.

There existed here no lapse of time as existed in Dennis (events in 1948-55; Grand Jury testimony in 1956; trial testimony in 1963); little testimony as to acts of physical violence, which were not already corroborated by police and fire department records supplied to the defense. Thus, the "particularized need" was more readily apparent in Dennis than here. But more important, Dennis ultimately held only that petitioners "were entitled to examine the grand jury minutes relating to trial testimony of the four government witnesses, and to do so while those witnesses were available for cross-examination . . ." Emphasis added. 384 U.S. at 875, 86 S.Ct. at 1852.

Precisely the same opportunity was given to the defendants herein by the trial court's various rulings. Cf. United States v. Youngblood, 379 F.2d 365 (2d Cir. 1967). Under the Tenth Circuit cases mentioned above, we find no abuse of the trial court's discretion, and here we hold no prejudicial error existed with respect to the granting, or refusal to grant, disclosure of grand jury testimony.

II and III

We consider next two alleged errors; error in admission of testimony as to acts of defendants not set forth in the indictment and sought by a Bill of Particulars; and error in the introduction of inadmissible separate and independent crimes.

The general rule in most jurisdictions, as well as in this Circuit, is that evidence of uncharged crimes, wrongs, or alleged prejudicial acts, is inadmissible. Equally clear is the existence of well recognized exceptions to this general rule.

Such evidence . . . "may be received for the purpose of proving a common plan, scheme or design to commit the offense charged or for the purpose of proving motive, opportunity, intent, knowledge, identity or absence of mistake, inadvertence or accident. . . . The rule and its exceptions have remained constant." United States v. Burkhart, 458 F.2d 201, 204 and 207 (10th Cir. 1972)⁵ Here the trial judge permitted the introduction of evidence of other criminal acts under one or more exceptions to the general rule. He did not do this without some concern. (A. 70). But after careful consideration he permitted it.

It is certain that the judge made no errors as to the applicable law—the question before us is whether it can be fairly and honestly concluded that the evidence offered by the government tended to establish a common scheme, plan or system or design, and if so, whether that evidence "is so related to the crime charged that it serves to establish the crime charged or to establish a motive, intent, or absence of mistake or accident as to the crime charged." Any such evidence must "have a real probative value, and not just a possible worth on issues of intent, motive, absence of mistake or accident, or to establish a scheme or plan." Morgan v. United States, 355 F.2d 43, 45 (10th Cir. 1966), cert. denied 384 U.S. 1025, 86 S.Ct. 1976, 16 L.Ed.2d 1029 (1966). Emphasis added.

If the defendants hired or caused the two felons to make the forbidden bombs and molotov cocktails—(as the jury found by its verdict)—evidence of their having caused other forbidden destructive devices to be made,...