512 F.2d 1281 (5th Cir. 1975), 74-1994, United States v. Durham

Docket Nº:74-1994.
Citation:512 F.2d 1281
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. James Walter DURHAM, a/k/a
Case Date:May 14, 1975
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 1281

512 F.2d 1281 (5th Cir. 1975)

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.

Page 1282

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.

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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

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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...

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