U.S. v. Durham

• Decision Date: 14 May 1975
• Docket Number: No. 74-1994,74-1994
• Citation: 512 F.2d 1281
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. James Walter DURHAM, a/k/a "Whitey" Durham, James H. Durham, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1281

512 F.2d 1281

UNITED STATES of America, Plaintiff-Appellee, v. James Walter DURHAM, a/k/a "Whitey" Durham, James H. Durham Defendant-Appellant.

No. 74-1994.

United States Court of Appeals Fifth Circuit.

May 14, 1975.

Rehearing Denied June 11, 1975.

James L. Harrison, Jacksonville, Fla., for defendant-appellant.

John L. Briggs, U. S. Atty., John J. Daley, Jr., Asst. U. S. Atty., Jacksonville, Fla., for plaintiff-appellee.

Appeal from the United States District Court for the Middle District of Florida.

Before TUTTLE, COLEMAN and SIMPSON, Circuit Judges.

COLEMAN, Circuit Judge.

The appellant, James Walter Durham, was tried to a jury and convicted on both counts of an indictment charging him with aiding and abetting the interstate transportation of a fraudulently obtained bank draft. ¹

On appeal, he asserts three separate grounds for granting a new trial, that is, the District Court erred:

1. By giving an instruction on intent which, in certain instances, has been specifically condemned by this Court;

2. In failing to give defendant's requested instruction on the extent to which certain fingerprint evidence could be considered by the jury; and

3. In admitting over objection the testimony of a certain government witness on rebuttal.

Finding no reversible merit in any of these contentions we affirm the convictions.

Viewing the evidence in the light most favorable to the verdict, the relevant facts follow:

In late July, 1971, Durham was employed by John H. Wall to work as a weigher at the Big Top Tobacco Warehouse in Jasper, Florida, near the Georgia state line. The agreement with Wall, a partner in the warehouse, was that Durham would come to Jasper from his home in Reidsville, North Carolina, and work throughout the first four weeks in August in return for compensation of $1500-1800. At the time of his employment, the defendant needed money, so Wall advanced $200 before Durham started work.

Durham's duties as a tobacco weigher entailed weighing truckloads of tobacco and filling out farmers' tobacco marketing cards. This was confined primarily to the warehouse area, although on occasion Durham would be required to go to the office to remove marketing cards or to pick up farmers' checks, if requested. He had no authority in his own right to either issue checks or to encode them on Big Top's check writing machine.

On Monday, August, 23, Durham was working late at the warehouse to assist in unloading and weighing several truckloads of tobacco. At about 9:00 that evening he asked the warehouse manager to give him the keys to the storage cabinet in the office so that he could get a check for Mr. Wall. Apparently Wall had never requested that defendant get him a check, but he got the keys. About thirty minutes later the keys were returned to the floor manager. The following morning, while setting up for the day's work, one of the office personnel discovered that the metal box containing the keys to the check writing machine was unlocked.

The next day Timothy Reagan, a friend of Durham's, arrived in Jasper and was seen with the defendant at the defendant's hotel room.

One day later, August 25, in an automobile leased by Durham, Reagan appeared at the Hamilton County Bank and presented two Big Top Warehouse checks for payment. Both checks were dated August 23, had the imprint of the Big Top check writing machine, and were made payable to one James D. Campeau. Both checks were bogus instruments, neither of them authorized by the Big Top Tobacco Warehouse.

Reagan represented to the bank officers that he was Campeau, a tobacco farmer, and that he needed the checks cashed immediately to pay off other tobacco farmers. The bankers were initially concerned by the total amount of the checks-some $42,000-and they asked Reagan for some identification. However, when Reagan produced a driver's license bearing the name James D. Campeau, and it was found that the endorsements on the checks matched the signature on the license, the bank officers' suspicions were allayed, and they agreed to pay the instruments. At that time the bank did not have $42,000 in large denomination bills, as requested by Reagan, so an alternative method of payment was arranged. Reagan was given approximately $10,000 in large denomination bills, and a bank draft was issued payable to James D. Campeau for the remaining $32,000.

On the afternoon of Thursday, August 26, Reagan checked out of his hotel near Jasper and traveled to Valdosta, Georgia, some twenty-five miles away. There he appeared at the Citizens and Southern National Bank and requested payment of the $32,000 draft he had obtained the previous day in Jasper, Florida, completing an interstate transportation of the draft. Since the instrument was not drawn on the Citizens and Southern National Bank, and since James D. Campeau was not a Citizen and Southern customer, the bank officers in Valdosta refused payment.

Reagan then returned to Jasper and presented the draft to the Hamilton County Bank. Though the officers at the Hamilton County Bank were somewhat reluctant to honor the draft at that time, they realized that the end of the tobacco season was drawing nigh and that it was necessary that the various farmers be paid. Therefore, they ordered payment of the draft. Reagan was given approximately $32,000 in large denomination bills.

Later that same afternoon, two different times, the defendant was seen in Valdosta, Georgia, with a man resembling Reagan. In addition, when Durham picked up his car at a Valdosta repair shop, the attendant noted that he paid the $200 charge out of a large roll of money taken from his pocket.

That same night Durham and Reagan were seen together at the home of a girl in Jasper whom Durham was dating. In a conversation with this woman, the defendant said that he had been in Valdosta that day with Reagan. Durham and Reagan left the girl's home about 4:00 A.M. The defendant then checked out of his hotel room and proceeded with Reagan to Albany, Georgia, to catch a chartered flight to Atlanta. The trip to Albany was made by way of a leased automobile, the defendant having left his own car in Jasper. In addition, the defendant left Jasper without receiving the remainder of his salary owed by the Big Top Warehouse.

On Friday morning, August 27, Durham, Reagan, and an unidentified man were seen at the Albany, Georgia airport. There they hired a private plane and were flown to Atlanta. An employee of the aviation company testified that Reagan paid the $96 charge for chartering the plane with a $100 bill, which he pulled from a large roll of money carried in his pocket.

Meanwhile, back in Jasper, on the morning of Friday, August 27, the disbursing clerk for the Big Top Tobacco Warehouse went to the Hamilton County Bank to pick up the weekly bank statement. Upon examining the cancelled checks, she immediately discovered the two checks ostensibly made payable to James D. Campeau. She brought the matter to the attention of the warehouse office manager, who notified the bank to stop payment on the checks in the series from which the two unauthorized checks had been drawn. The Campeau checks were then turned over to David Jones, a partner in the warehouse, who took them to the bank. These checks had been paid the previous day, so any effort to stop payment on them was futile.

On August 30, 1971, the defendant, now back in North Carolina, paid off in cash approximately $650 in indebtedness owed to a North Carolina bank, this despite the fact that Durham had to borrow money to commence work in Jasper and had left Jasper without being paid.

A federal indictment was returned by a grand jury in Jacksonville, Florida, on September 8, 1972, charging the defendant with aiding and abetting the interstate transportation of a fraudulently obtained bank draft and conspiracy to transport in interstate commerce a fraudulently obtained bank draft. The conspiracy count was subsequently dismissed from the case. Subsequent to the indictment, the defendant on two occasions approached two employees of the Big Top Tobacco Warehouse and offered them money to alter their testimony in connection with his trial.

With all reasonable inferences which could be drawn therefrom, the foregoing proof is clearly sufficient to support a belief beyond a reasonable doubt that Durham purloined the tobacco warehouse blank checks, that he surreptitiously used Big Top's check writing machine to give those checks the necessary appearance of authenticity, that he immediately passed the bogus checks to Reagan, that he shared in the proceeds of the criminal transaction, and that, indeed, he had to be the very one who had initiated the fraudulent activity.

It is true that Durham was not seen with Reagan when the latter visited the Valdosta bank in an effort to cash the draft and he may not have been the one who physically transported the drafts the short distance back and forth across the Georgia-Florida state line, but he was not indicted for the transportation. He was indicted for aiding and abetting such transportation.

His visits to Valdosta, his presence there with Reagan, his statement that he had been there on the day prior to his precipitate departure, his abandonment of his own automobile and use of a rented vehicle which might hinder immediate apprehension, his abandonment of his employment without so much as picking up the wages due, the possession of large rolls of bills which could not have been obtained in the course of his employment, and his ultimate get-away by hired aircraft were highly inculpatory activities. To this it must be added that Durham, not Reagan, rented the automobile which Reagan used to make his unsuccessful trip to Valdosta.

But for one thing, the convictions would be due a quick affirmance.

The District Court gave a jury charge on intent which, in cases to be discussed hereinafter, has repeatedly met with the disapproval of this Court and which has...