United States v. Goodwin, 72-1882.

• Decision Date: 15 January 1973
• Docket Number: No. 72-1882.,72-1882.
• Citation: 470 F.2d 893
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Newt W. GOODWIN and Kathleen L. Nail, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

470 F.2d 893 (1972)

UNITED STATES of America, Plaintiff-Appellee, v. Newt W. GOODWIN and Kathleen L. Nail, Defendants-Appellants.

No. 72-1882.

United States Court of Appeals, Fifth Circuit.

December 5, 1972.

Rehearing and Rehearing Denied January 15, 1973.

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William A. Summers, III, Metairie, La., for Newt W. Goodwin.

Robert J. Stamps, New Orleans, La., for Kathleen L. Nail.

Gerald J. Gallinghouse, U. S. Atty., Robert J. Livingston, Mary Cazalas, Asst. U. S. Attys., New Orleans, La., for the United States.

Before COLEMAN, GOLDBERG, and GODBOLD, Circuit Judges.

Rehearing and Rehearing En Banc Denied January 15, 1973.

GOLDBERG, Circuit Judge:

Appellants, Kathleen L. Nail and Newt W. Goodwin, bring this appeal from a judgment of conviction entered after a jury found them guilty on all counts of a seven-count indictment charging them with having violated 18 U.S.C. § 152 by knowingly and fraudulently transferring and concealing property of a bankrupt corporation with intent to defeat the bankruptcy laws. Nail and Goodwin, who are sister and brother, were at one time officers of Mr. Mod Shop, Inc., a Louisiana corporation. It was alleged in the indictment and found by the jury that from the time of adjudication of Mr. Mod Shop, Inc., as a bankrupt until the date of the indictment, only part of the assets of the corporation were made available by appellants to the creditors of the corporate bankrupt and to the court hearing the matter.

Appellants jointly raise six distinct points of error in this appeal, the first five of which we have little trouble in rejecting. The sixth we find to be meritorious as to appellant Nail, and we reverse her conviction. Appellant Goodwin's conviction, however, is in all things affirmed. Because appellants' points of error primarily concern events that occurred during the course of their trial, we discuss the facts of this case only as they relate to each point raised.

I.

Appellants assert as their first point of error that the trial judge refused to ask the jury a question at voir dire that appellants had requested pursuant to Rule 24(a), Fed.R.Crim.P.: "Would the jury . . . predicated upon the indictment and if appellants did not take the stand . . . hold this fact against appellants?" The trial judge refused the request when he reasoned that (1) the jurors had unequivocally agreed to follow any instructions he might give them, (2) if appellants had not taken the stand before the submission of the case, he would instruct the jury to ignore that fact, and (3) the jurors could therefore be expected to ignore appellant's failure to testify, if that circumstance developed. Appellants subsequently declined to testify, and the trial judge instructed the jury accordingly.¹

Rule 24(a) necessarily vests the trial judge with wide discretion regarding the manner in which the voir dire is to be conducted.²See United States v. Gassaway, 5 Cir. 1972, 456 F. 2d 624. Appellants have cited us no cases supporting their suggestion that refusing to ask the instant question abused that discretion, and we find that failure to ask a requested Rule 24(a) question does not amount to an abuse of discretion if the court's general questions, coupled with its charge to the jury, afford a party the protection sought. United States v. Gassaway, supra; United States v. Jackson, 5 Cir. 1971, 448 F.2d 539.

II.

Appellants' second assertion is that they were denied a fair trial under the Sixth Amendment because the trial court refused to permit them to inspect under the Jencks Act, 18 U.S.C. § 3500, a written report of FBI interviews with witness Ross Summitt. We find this argument to be without merit. The trial judge allowed defense counsel to examine the witness regarding Jencks Act material. The judge then personally examined the material in camera and sealed the challenged documents in an envelope for inclusion in the record on appeal. We have opened the sealed evidence and have examined the documents, which we find to be FBI memoranda of an agent's investigative interviews (FBI Form 302). The documents are the interviewer's interpretative notes, they do not quote Ross Summitt directly, and they are not signed or otherwise adopted by Summitt. Accordingly, under neither the clear wording of the Act itself nor the elucidating tutelage of Campbell v. United States, 1961, 365 U. S. 85, 81 S.Ct. 421, 5 L.Ed.2d 428, is this material discoverable. See, e. g., United States v. Roberts, 5 Cir. 1971, 455 F.2d 930.

III.

Appellants' third argument is that they were prejudiced by the erroneous introduction of certain evidence. Specifically, they complain that Donald L. Hughes, an FBI agent who was qualified at trial as an expert in accounting, was allowed to invade the province of the jury by giving opinion testimony. They further urge that this asserted error was compounded when a tabular summary of his testimony was introduced into evidence and taken into the jury room. Finding that neither point is supported by the record, we reject both contentions.

Hughes testified at great length regarding the financial books and records of Mr. Mod Shop, Inc. Appellants' objection regarding the "opinion testimony" apparently is that Hughes was allowed to imply and/or state which conveyances "were fraudulent." Appellants' briefs give us virtually no guidance as to when this alleged error occurred and cite us no authorities supporting their argument. Nevertheless, we have independently studied the entirety of Mr. Hughes' testimony, which covers approximately two hundred pages of the reporter's transcript, and we find nothing that even approaches the level of improperly stating conclusory inferences.

Without directing our attention to any specific pages of the record, appellants next urge that error was committed when Hughes' summary chart was introduced and taken into the jury room. We find that this assertion is similarly lacking in factual support. One "summary" was indeed admitted into evidence,³ but we agree with the government that this evidence met the tests applied in this Circuit. United States v. Kane, 5 Cir. 1971, 450 F.2d 77, 85-86, makes clear that summary charts are ordinarily admissible in the trial court's discretion when the following conditions exist: the charts are based upon competent evidence before the jury; the primary evidence utilized to construct the charts is available to the other side for comparison in order that the correctness of the summary may be tested; the person who prepared the charts is available for cross examination; and the jury is properly instructed concerning their consideration of the charts. See also Gordon v. United States, 5 Cir. 1971, 438 F.2d 858; Baines v. United States, 5 Cir. 1970, 426 F.2d 833; McDaniel v. United States, 5 Cir. 1965, 343 F.2d 785, cert. denied, 382 U.S. 826, 86 S.Ct. 59, 15 L.Ed.2d 71. It affirmatively appears that each of these requirements was here satisfied, so the point must fail. See also Kroll v. United States, infra, 433 F.2d at 1289-1290.

At the close of the trial, the judge excluded from the evidence the jury could take into the jury room a chart that Hughes had used as a "visual aid" when testifying.⁴ We are uncertain whether this was the same chart, but regardless of whether there was one chart or two, the assignment of error fails when tested against the aforementioned authorities. Hughes first merely stated what the books in evidence reflected. He then based his summary information on properly introduced evidence and the testimony of other witnesses. Since the chart itself was thus admissible, see, e. g., United States v. Kane, supra, there was no error in using it only as a visual aid to help the jurors understand other evidence before them.

IV.

Appellants' fourth point is an assertion that prejudicial error was committed when the trial court admitted, as proof of "system and intent," evidence of events occurring after the transactions named in the indictments. This argument must fail. The clear rule is that although evidence introduced in a criminal trial should relate only to the specific offense charged, prior or subsequent incidents may be introduced to establish that a defendant possessed a requisite knowledge or intent or that there is a consistent pattern, scheme of operations, or similarity of method. United States v. Alston, 5 Cir. 1972, 460 F.2d 48. See also United States v. Harrison, 5 Cir. 1972, 461 F.2d 1127. Of course, the probative value of the evidence offered to show "system and intent" must be balanced against any inflammation or prejudice that may result from the nature of the evidence offered. That balancing, however, is left largely within the sound discretion of the trial judge. See, e. g., United States v. Byrd, 2 Cir. 1965, 352 F.2d 570. Our reading of the instant record has convinced us that no abuse of discretion occurred when the judge below admitted evidence of similar financial transactions conducted by appellants after the dates named in the indictment that were similar in technique and method to the transactions for which appellants were charged.

V.

Appellants' fifth point of error is an attempt to bring their case within the rule prohibiting prosecutorial comments on the failure of the accused to testify. See, e. g., Chapman v. California, 1967, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705; Griffin v. California, 1965, 380 U. S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106. Appellants cite the following excerpt from the prosecutor's closing argument in support of the proposition that their Fifth Amendment rights to decline to testify were here prejudiced:

"But, I ask you to look at the evidence, what evidence have you had? Have they given you any evidence of support . . .

"But, we are trying to get the evidence to you as we see it and we are trying to stay within the bounds of the law. But, it\'s as I was saying, ladies and

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