546 F.2d 861 (10th Cir. 1976), 75-1726, United States v. Gunter

Docket Nº:75-1726 thru 75-1732.
Citation:546 F.2d 861
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Homer Foye GUNTER et al., Defendants-Appellants.
Case Date:December 22, 1976
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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546 F.2d 861 (10th Cir. 1976)

UNITED STATES of America, Plaintiff-Appellee,

v.

Homer Foye GUNTER et al., Defendants-Appellants.

Nos. 75-1726 thru 75-1732.

United States Court of Appeals, Tenth Circuit

December 22, 1976

Argued and Submitted July 29, 1976.

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David L. Russell, U. S. Atty., and John E. Green, First Asst. U. S. Atty., Oklahoma City, Okl., for plaintiff-appellee.

John C. Williams, Oklahoma City, Okl. (Robert L. Wheeler, Oklahoma City, Okl., on the brief), for Homer Foye Gunter and Herbert Ray Billings, defendants-appellants.

Charles W. Stubbs, Oklahoma City, Okl. (Stubbs, Stiner & Pace, Oklahoma City, Okl., of counsel, on the brief), for Billy Wayne Myers, defendant-appellant.

John P. Smith, Oklahoma City, Okl. (Oyler & Smith, Oklahoma City, Okl., on the brief), for Michael Eugene Lamb, defendant-appellant.

Robert B. Smith, Oklahoma City, Okl. (Bloodworth, Smith & Biscone, Oklahoma City, Okl., on the brief), for Robert Haynes, defendant-appellant.

William W. Wiles, Jr., Oklahoma City, Okl., for Jimmy Ray Keeton and Paul Dean Quick, defendants-appellants.

Before HOLLOWAY, McWILLIAMS and BARRETT, Circuit Judges.

McWILLIAMS, Circuit Judge.

These seven appeals were separately briefed, but companioned for oral argument, and will be treated in one opinion. All arise out of a criminal prosecution for the theft of tires from an interstate shipment. Originally there were nine defendants. One defendant, Sherman Olive, agreed to testify, and did in fact testify, for the Government, and was not himself brought to trial. Another defendant, Thomas Lee, has not appealed his conviction.

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The remaining seven defendants appeal their respective convictions and sentences.

The charge in count one of the indictment is that the defendants unlawfully, willfully and knowingly, and with an intent to convert to their own use, did steal, take, carry away, and conceal tires of a value in excess of $100 from a railroad car controlled by the Atchison, Topeka and Santa Fe Railway Company which was moving in interstate commerce, in violation of 18 U.S.C. § 659. In count two the defendants are charged with conspiracy to steal, take, carry away and conceal the tires from the aforesaid interstate shipment, in violation of 18 U.S.C. § 371. Lawrence Alan DuPont was a named, but unindicted co-conspirator, and at trial he was a key Government witness.

The first trial of this matter ended in a mistrial because of a hung jury. About a month later the eight defendants were again brought to trial, and this time the jury convicted Billy Wayne Myers and Michael Eugene Lamb on both counts, and, as to the remaining six defendants, a mistrial was again declared because of the inability of the jury to reach a verdict. About a month later the remaining six defendants were again tried, and on this occasion the six were convicted on both counts in the indictment.

On December 18, 1974, five hundred tires and twelve boxes of tire tubes were loaded aboard a Santa Fe box car at the Firestone Tire & Rubber Company plant in Shelby, Ohio, destined for the Firestone outlet in Oklahoma City, Oklahoma. On December 24, 1974, the Santa Fe box car filled with Firestone tires and tubes arrived in Oklahoma City, Oklahoma. Sometime between 9:00 p.m. on December 25, 1974, and 8:00 a.m. on December 26, 1974, this box car was broken into and approximately 240 tires and two boxes of tubes were stolen.

Two defendants, Herbert Ray Billings and Michael Eugene Lamb, contend on appeal that the evidence is legally insufficient to support the guilty verdicts returned against them. This particular matter will be dealt with later. At this point we would simply note that the other defendants do not contest, as such, the sufficiency of the evidence, although several do assert that the Government's case is based almost entirely on the testimony of DuPont and Olive, with the testimony of the former being characterized as "false testimony."

Without detailing the particular roles played by each of the defendants, DuPont's testimony indicated that he, along with certain of the defendants, broke into the box car and stole the tires and tubes in question. DuPont further testified that he and others then transported the tires in two stolen trucks to a barn located near Edmond, Oklahoma some 18 miles from Oklahoma City, Oklahoma, and that about a week later he and the defendant Lamb transferred the tires, or at least most of them, to a rented storage unit, referred to as a mini-warehouse, in Oklahoma City, Oklahoma. This is not an instance where all defendants were present at every step of the transaction. Five were in on the original theft, and others became involved in the subsequent carrying away and concealment of the tires. As indicated, these several appeals have been separately briefed, and separately argued, for that matter, though the separate appeals were companioned for argument before the same panel. As might be expected, certain arguments are common to more than one appeal. They will be dealt with first.

I. Double Jeopardy

Myers and Lamb, who were convicted at the second trial, do not raise the double jeopardy argument. Robert Haynes, who was convicted in the third trial, does not raise the double jeopardy argument. The remaining four defendants, Homer Foye Gunter, Herbert Ray Billings, Jimmy Ray Keeton, and Paul Dean Quick, all contend that in trying them three times, their Fifth Amendment right not to be twice placed in jeopardy for the same offense was violated.

The double jeopardy argument was never really considered by the trial court,

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but it would appear that such was not the fault of counsel. In any event, if in fact there were a violation of the defendants' Fifth Amendment right not to be twice placed in jeopardy for the same offense, such would surely be the type of "plain error" which could be raised for the first time on appeal. Fed.R.Crim.P. 52(b). This double jeopardy issue should be placed in context.

The jury in the first trial of the matter was discharged and a mistrial declared without objection from any of counsel. Nor, so far as we can determine from the record before us, was the plea of double jeopardy in any manner raised by any defendant prior to the second trial of the case.

As mentioned above, the jury in the second trial convicted the defendants Myers and Lamb, but was unable to agree on a verdict as to the six remaining defendants. The jury had only deliberated some four and a half hours, but clearly indicated to the trial judge that the members of the jury were in irreconcilable conflict as to the six. None of counsel for any of the six defendants voiced any objection to the discharging of the jury and the declaring of a mistrial. However, immediately after the jury had been discharged and a mistrial declared, the defendants, or at least one of them, attempted to move to dismiss on the ground of double jeopardy. The trial court summarily denied the motion, without any argument, and that ended the matter at the trial court level. However, in this court four defendants, Gunter, Billings, Keeton, and Quick, argue double jeopardy as their primary ground for reversal.

The Fifth Amendment provides that no person shall be "subject for the same offence to be twice put in jeopardy of life or limb." This constitutional provision was considered by the Supreme Court in United States v. Perez, 9 Wheat. 579, 22 U.S. 579, 6 L.Ed. 165 (1824), and thereafter considered by the Court on numerous other occasions. Certain decisions are not, to us at least, completely reconcilable. However, in each instance there has been a reaffirmation of Perez, so Perez is our starting point.

In Perez the jury was unable to agree on a verdict in a capital case, and was accordingly discharged by order of the trial court. Such was done without the consent of counsel. The defendant thereupon claimed his right to a dismissal and the judges of the trial court, sitting en banc, were divided. Upon a certificate of division the Supreme Court held that the discharge of the jury because of the jurors' inability to agree upon a verdict did not bar a subsequent trial for the same offense. In thus holding the Supreme Court stated that trial courts are vested with discretionary authority to discharge a jury from giving any verdict "whenever, in their opinion, taking all the circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would be otherwise defeated." The obvious inference is that if the jury be discharged in accord with Perez, a defendant could be tried a second time for the same offense without offending the Fifth Amendment. Other cases in accord with Perez are Keerl v. Montana, 213 U.S. 135, 29 S.Ct. 469, 53 L.Ed. 734 (1909); Dreyer v. Illinois, 187 U.S. 71, 23 S.Ct. 28, 47 L.Ed. 79 (1902); and Logan v. United States, 144 U.S. 263, 12 S.Ct. 617, 36 L.Ed. 429 (1892).

The Supreme Court in addition has had occasion to more recently reaffirm the rule of Perez. In Wade v. Hunter, 336 U.S. 684, 69 S.Ct. 834, 93 L.Ed. 974 (1949), an Army court martial was terminated because of a missing Government witness and when the accused was brought before a second court martial for the same offense he pleaded double jeopardy. The plea was overruled and he was convicted. The Supreme Court in such instance held that the plea of double jeopardy was unavailing and affirmed the conviction. In so holding the Supreme Court observed that unforeseeable circumstances may arise during the course of a trial which make its conclusion impossible, "such as the failure of a jury to agree on a verdict."

In Downum v. United States, 372 U.S. 734, 83 S.Ct. 1033, ...

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