U.S. v. Scruggs, s. 76-1688

• Decision Date: 22 February 1977
• Docket Number: Nos. 76-1688,76-1689,s. 76-1688
• Citation: 549 F.2d 1097
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Harry U. SCRUGGS, Sr., and Harry U. Scruggs, Jr., Defendants-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1097

549 F.2d 1097

UNITED STATES of America, Plaintiff-Appellee, v. Harry U. SCRUGGS, Sr., and Harry U. Scruggs, Jr. Defendants-Appellants.

Nos. 76-1688, 76-1689.

United States Court of Appeals Sixth Circuit.

Argued Dec. 9, 1976.

Decided Feb. 22, 1977.

Robert W. Andrews, Erich W. Merrill, Memphis, Tenn., for defendants-appellants.

Thomas F. Turley, Jr., U. S. Atty., Glen Reid, Jr., Memphis, Tenn., for plaintiff-appellee.

Before PHILLIPS, Chief Judge, and WEICK and PECK, Circuit Judges.

PHILLIPS, Chief Judge.

Harry U. Scruggs, Sr., and Harry U. Scruggs, Jr., father and son attorneys practicing together in Memphis, Tennessee, were charged in a three count indictment as follows: (1) Count I charged both defendants with knowingly possessing, concealing and disposing of money that had been stolen from a federally insured bank in violation of 18 U.S.C. §§ 2 and 2113(c); ¹ (2) Count II charged both defendants with wilfully endeavoring to obstruct, delay and prevent the communication of information by each other, and others, to criminal investigators regarding violations of 18 U.S.C. § 2113(c), in violation of 18 U.S.C. §§ 2 and 1510; ² and (3) Count III charged Scruggs Scruggs, Jr. and Scruggs, Sr. were tried together to a jury on June 9-13, 1975. The jury found Scruggs, Jr. not guilty of the aiding and comforting charged in Count III of the indictment. Both defendants were found guilty on Counts I and II. Scruggs, Sr. was sentenced to pay a fine of $500 on each count of his conviction. Scruggs, Jr. was sentenced to concurrent terms of one year and one day in the custody of the Attorney General. Both defendants appeal. We affirm.

Jr. with comforting and assisting James Douglas Gardner, in order to hinder and prevent his apprehension, with knowledge that Gardner had committed an offense against the United States in violation of 18 U.S.C. § 3. ³

Three contentions are urged as grounds for reversal of the convictions:

1) That there was insufficient evidence to support the verdicts of the jury;

2) That the district judge committed reversible error in his instructions to the jury regarding Count I of the indictment the count charging knowing possession, concealment and disposition of stolen money;

3) That 18 U.S.C. § 1510, the statute named in Count II of the indictment, does not provide a proper basis for conviction on the facts presented.

I.

On July 27, 1973, James Douglas Gardner was arrested and confined in the County Jail for Shelby County, Tennessee, on several charges of armed robbery and related offenses. Gardner made bond of $7,500 on that day and was released. He did not appear in the Shelby County Criminal Court at the appointed time to answer to the armed robbery charges. Gardner's bond, therefore, was revoked and a further indictment issued for bond jumping. On November 19, 1973, Gardner was arrested and returned to the Shelby County Jail (a total of ten indictments were then pending against him) where he remained until January 1974.

On January 27, 1974, the appellants, Harry U. Scruggs, Jr. and Harry U. Scruggs, Sr., Memphis attorneys, contacted Gardner in the Shelby County Jail to make arrangements to represent him on the state charges he faced. The Scruggses testified that they made this contact at the insistence of Gardner's mother who was a hostess at a restaurant they frequented. Gardner told the Scruggses that he wanted them to represent him on all of the state indictments. The Scruggses agreed but set a fee for their services of $10,000 payable in advance. Gardner indicated that he could pay the fee, that he had a helpful relative in Arkansas and a bank account in Florida, but that he could not get the money while he remained in jail. At this time (January, 1974), Scruggs, Jr. was engaged almost full time as an attorney for the Shelby County Public Defenders Office. Scruggs, Jr., on Gardner's behalf, contacted the Director of the Shelby County Pretrial Release Program and, on January 31, 1974, Gardner's original $7,500 bond was reinstated and Gardner was released from jail upon posting a $1.00 additional bond for the bail jumping charge.

Twelve days later, at approximately 2:30 p. m. on February 11, 1974, Gardner and an accomplice robbed the Fox Meadows Later in the afternoon of February 11th, Gardner called the Scruggses at their law office and informed them that he had some money for them. He was told to come in during the early evening and he arrived at their office around 5:30 p. m. carrying a brown briefcase. Gardner was ushered into the Scruggses' law library where in the presence of both attorneys, be counted out $5,000 ⁴ in cash from the briefcase. As the Scruggses recalled this meeting at trial, with the exception of a single one hundred dollar bill, the entire $5,000 was in small denominations (ones, fives and tens), the money was dirty and wrinkled, and there were many rubber bands in the briefcase. ⁵ Scruggs, Sr. said that he asked Gardner whether "he was mixed up in anything," and Gardner assured him that he was not and that the money was "clean money." At trial Gardner told the court that the money he delivered to the Scruggses on February 11, 1974, was part of the proceeds of the bank robbery earlier that day, but he did not tell the Scruggses this on the 11th of February.

Branch of the Memphis Bank and Trust Company of some $21,000 in cash.

After counting the money, Scruggs, Jr. wrote Gardner a receipt from one of the standard receipt books maintained by the Scruggses in their law practice. Scruggs, Jr. told the jury that he and his father were in a hurry that evening and out of carelessness he made out the receipt to Gardner for $6,000 rather than for the $5,000 amount they actually received. Gardner left the Scruggses' office with the $6,000 receipt and Scruggs, Jr. testified that he put the cash into a brown file folder and locked it in his desk drawer.

Gardner returned to the Scruggses' office the next day, February 12, 1974. Scruggs, Sr. met with Gardner alone on this occasion and Gardner gave him a bundle of ten one hundred dollar bills in further payment of the $10,000 fee. Scruggs, Sr. gave Gardner a second receipt. ⁶

On Friday morning, February 15, 1974, Scruggs, Sr. appeared in Shelby County Criminal Court with Gardner to get a continuance of the pending matters. ⁷ Around noon on the 15th, Gardner met with Scruggs, Jr. and an employee of the Scruggses, a Mr. Peters, at the Scruggses' office. According to Scruggs, Jr., Gardner complained about having trouble with his mother and about wanting to move out of his mother's home into an apartment. As a favor to Gardner, Scruggs, Jr. gave Gardner a note with the address of Mr. Peters' apartment on it and told Gardner that he could go there and stay. ⁸ As Gardner was leaving the Scruggses' office, Scruggs, Sr. approached and asked him to return the receipts they had given him on February Scruggs, Jr. testified that later in the afternoon of February 15, 1974, around 4:20 p. m., he received a telephone call at his office with some information concerning Gardner. Based on this information, Scruggs, Jr. and Mr. Peters set about trying to locate Gardner. Scruggs, Jr. testified that he went to the Memphis City jail but found no record that Gardner had been there. He called a friend of his on the robbery squad of the Memphis Police Department and asked if a James Gardner had been involved in any robbery. Finding nothing, he called the Shelby County Jail but, again, no one knew where Gardner was.

11th and 12th. Scruggs, Sr. testified that he asked for the receipts back because he and his son had recounted the money and found that they had not received from Gardner the amounts indicated on the receipts. Gardner gave Scruggs, Sr. the two receipts.

Scruggs, Jr. was not able to find Gardner because he was in the custody of the Memphis Office of the Federal Bureau of Investigation. Around four in the afternoon of February 15th, a federal grand jury had returned an indictment against Gardner charging him with the February 11, 1974, robbery of the Fox Meadows Branch of the Memphis Bank & Trust Company. The FBI immediately arrested Gardner at his home and took him to the FBI office for processing.

According to Scruggs, Jr., he received a telephone call at his office around 5:40 p. m. on the 15th. The caller identified himself only as "the F.B.I.," and told Scruggs, Jr. that Mr. James Gardner wanted to talk to him. Gardner came onto the line and told Scruggs, Jr. that he had been arrested. Scruggs, Jr. testified that he advised Gardner not to talk to the F.B.I., but that he was unable to find out why Gardner had been arrested because no one (neither Gardner himself nor the F.B.I. agents) told him any more than that there was an "investigation" underway. Agent Hart of the Memphis Office of the F.B.I. testified that he spoke with Scruggs, Jr. after Gardner and, in response to Scruggs, Jr.'s questioning, told Scruggs that Gardner had been charged with bank robbery.

On Saturday morning, February 16, 1974, Scruggs, Jr. and Scruggs, Sr. met at their office before going to visit Gardner in the Shelby County Jail. Scruggs, Jr. stated at trial that Scruggs, Sr. had the morning Memphis Commercial Appeal with him and that the paper was "spread all over" with accounts of James Gardner's arrest for the robbery of the Memphis Bank & Trust Company on February 11th. The articles detailed the robbery itself and Gardner's subsequent apprehension. The Scruggses have maintained throughout their trial and this appeal that the Commercial Appeal articles on the morning of February 16, 1974, were the first information they received indicating Gardner was involved in or accused of a bank robbery.

After reading the paper, the Scruggses went to see Gardner in jail. According to Scruggs, Sr., they confronted Gardner with the newspaper accounts and questioned him about the bank robbery. Gardner told them that the FBI "had the wrong...