552 F.2d 621 (5th Cir. 1977), 75-3615, United States v. Partin
|Docket Nº:||75-3615, 75-3792, 75-4010 and 75-4155.|
|Citation:||552 F.2d 621|
|Party Name:||UNITED STATES of America, Plaintiff-Appellee, v. Edward Grady PARTIN, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Harold SYKES, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. O. Romaine RUSSELL, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Don MARIONNEAUX and Hugh Marionneaux|
|Case Date:||May 19, 1977|
|Court:||United States Courts of Appeals, Court of Appeals for the Fifth Circuit|
Rehearing Denied July 5, 1977.
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J. Minos Simon, Lafayette, La., for defendant-appellant in No. 75-3615.
James A. McPherson (Court-appointed), New Orleans, La., for defendants-appellants in Nos. 75-3792 and 75-4155.
Milton P. Masinter, New Orleans, La., for defendant-appellant in No. 75-4010.
Donald E. Walter, U. S. Atty., Shreveport, La., Douglas M. Gonzales, U. S. Atty., Stephen A. Mayo, Asst. U. S. Atty., Baton Rouge, La., for plaintiff-appellee in Nos. 75-3615, 75-3792, 75-4010 and 75-4155.
James D. Carriere, Asst. U. S. Atty., New Orleans, La., for plaintiff-appellee in Nos. 75-3615, 75-3792 and 75-4155.
Appeals from the United States District Court for the Western District of Louisiana.
Before MORGAN and HILL, Circuit Judges, and NOEL, [*] District Judge.
LEWIS R. MORGAN, Circuit Judge:
Defendant-appellants Partin, Russell, and Sykes were convicted in three separate trials, and Don and Hugh Marionneaux in a fourth, of conspiring to obstruct the due administration of justice. 1 Because the conviction of each defendant was based on the same three count indictment, and because some of the appeals involve common issues, we consolidated the appeals for argument
and decision. For the reasons stated in the opinion that follows, we must reverse the convictions of Partin. We affirm as to the other four appellants.
I. BACKGROUND AND CHRONOLOGY.
The events leading to the indictments in the instant cases began in 1969, when a federal grand jury in Baton Rouge, Louisiana indicted Edward Grady Partin, the business manager of Teamsters Local No. 5 in Baton Rouge, and others for violations of the Hobbs Act and Sherman Act. 2 Following a change of venue, Partin was tried in Butte, Montana beginning June 14, 1971. The jury was unable to reach a verdict and a mistrial was declared. After another change of venue, Partin was retried in Atlanta, Georgia beginning January 31, 1972. The jury found Partin guilty on four counts, but the district court granted a new trial. At the new trial, also in Atlanta, Partin was found guilty on one count. We reversed that conviction and remanded for a new trial. United States v. Partin, 493 F.2d 750 (5th Cir. 1974). At this point, the government elected to dismiss the indictment.
Wade McClanahan, a former Teamster ally of Partin, was the government's star witness against him in Partin's Hobbs Act trials. In February of 1970 Richard Baker and Claude Roberson testified before a federal grand jury in New Orleans that they had overheard Partin threaten McClanahan in an attempt to dissuade McClanahan from testifying against him in those trials. The New Orleans grand jury indicted Partin for obstruction of justice. Trial on this charge was set to begin October 10, 1972 in Houston.
In September of 1972 the government's key witnesses for the Houston trial, Baker and Roberson, dropped from sight. A trial subpoena was issued on September 25, 1972 for Baker to appear at the scheduled October 10 trial. Agents for the Federal Bureau of Investigation located Baker on a tugboat in West Virginia on September 27 and told him that he was expected to appear. Baker told them that he would not appear because he feared for his own and his family's lives.
The FBI agents communicated this information to the United States Attorney in New Orleans, Gerald Gallinghouse. Gallinghouse, fearing that his witnesses had been tampered with, immediately obtained a subpoena for Baker to appear before the federal grand jury in New Orleans on October 5, 1972. This subpoena, together with the trial subpoena, was served on Baker on September 30, 1972.
Baker thereupon dropped from sight once again. He did not appear before the New Orleans grand jury on October 5, and a material witness warrant was issued for him. Partin's Houston trial was continued to October 31 because of Baker's and Roberson's disappearance.
On October 31 Baker appeared at the federal courthouse in Houston and was arrested. On November 2 he testified at Partin's trial, stating that he never had heard
Partin threaten McClanahan. Baker admitted that he had met with Teamster lawyer Jerry Millican and Don Marionneaux in Pittsburgh on October 3 and had given them a statement favorable to Partin. He denied that Marionneaux had given him $500 at that time, testifying instead that Marionneaux had loaned him $75. Roberson did not appear for the Houston trial at all. The jury found Partin not guilty of threatening McClanahan.
On November 9 Baker appeared under subpoena before a federal grand jury in Baton Rouge that had begun an investigation into possible obstruction of justice in connection with Partin's Houston trial. Baker repudiated his testimony at that trial, stating that he had, in fact, received $500 from Don Marionneaux in Pittsburgh. He also implicated several people in an apparent conspiracy to obstruct justice in connection with Partin's Houston trial.
On January 24, 1973 Baker again went before the Baton Rouge grand jury. He repudiated his November 9 testimony, stating (as he had at the Houston trial) that Don Marionneaux had loaned him $75, not given him $500, in Pittsburgh.
The Baton Rouge grand jury investigation continued. Baker was indicted for giving false material declarations before the grand jury, pleaded guilty on February 14, 1973, and was sentenced to prison. On October 4, 1973 the same grand jury returned the three count indictment upon which the instant cases were prosecuted. Count I charged that beginning October 1, 1972 Partin, brothers Don and Hugh Marionneaux, Jerry Thomas, Jeffrey Roy Brasseaux, Joseph Green, and Millican had conspired to obstruct the due administration of justice by inducing and helping Baker not to appear before the New Orleans grand jury on October 5 and to give false material declarations at the Houston trial. 3 Count II charged that beginning in September of 1972 Partin, Jack P. F. Gremillion, Jr., Harold Sykes, Ben Trantham, and Crockett Carleton had engaged in a similar conspiracy to obstruct the due administration of justice by inducing and helping Roberson not to appear for the Houston trial. 4 Count III charged that beginning November 9, 1972 Partin and O. Romaine Russell, a Teamster lawyer, had conspired to obstruct the due administration of justice by inducing
Baker to repudiate his November 9 testimony to the Baton Rouge grand jury. 5
A series of seven trials on this indictment began in June of 1974. From June 10 through June 14, 1974 Judge Nauman S. Scott of the Western District of Louisiana, designated by Chief Judge Brown of this court to sit ad hoc for the Middle District of Louisiana, presided over the trial of Brasseaux on Count I in Baton Rouge. A jury found Brasseaux guilty, and we affirmed the conviction. United States v. Brasseaux, 509 F.2d 157 (5th Cir. 1975).
From July 8 through July 11, 1974 Judge Scott, after granting a change of venue to Shreveport in the Western District of Louisiana, presided over the trial of Thomas on Count I. A jury found Thomas not guilty.
From August 12 through August 17, 1974 Judge Scott, after granting a change of venue to Shreveport, presided over the trial of Don and Hugh Marionneaux on Count I and Sykes, Trantham, and Carleton on Count II. A jury found the Marionneaux brothers, Sykes, and Trantham guilty and found Carleton not guilty. On appeal, we reversed the four convictions and remanded for a new trial. United States v. Marionneaux, 514 F.2d 1244 (5th Cir. 1975).
On January 20, 1975 Gremillion changed his plea to guilty on Count II. Judge Scott, finding a factual basis existed for the plea, accepted it and deferred sentencing until after the next trial.
From February 17 through March 4, 1975 Judge Scott, after granting a change of venue to Shreveport, presided over the trial of Partin on Counts I, II, and III. A jury found Partin guilty on all three counts. These convictions now are before us in No. 75-3615.
From May 26 through June 4, 1975 Judge Scott, after granting a change of venue to Alexandria in the Western District of Louisiana, presided over the trial of Russell on Count III. A jury found Russell guilty. This conviction now is before us in No. 75-4010.
From July 14 through July 18, 1975 Judge Scott presided over the retrial in Shreveport of Don and Hugh Marionneaux on Count I, together with Green, also on Count I. A jury found Don and Hugh Marionneaux guilty and found Green not guilty. These convictions of Don and Hugh Marionneaux now are before us in No. 75-4155.
From July 28 through July 30, 1975 Judge Scott presided over the retrial in Shreveport of Sykes and Trantham on Count II. A jury found both guilty. Trantham since has died, and this conviction of Sykes now is before us in No. 75-3792.
Millican, who testified for the government in all four trials on review here, has not been tried for his part in the Count I conspiracy.
II. NO. 75-3615: PARTIN.
A. The "Slight Evidence" Instruction. We are bound by precedent to reverse Partin's convictions. The district court gave the jury the following " slight evidence" instruction:
Since a conspiracy by its very nature is born and clothed in secrecy, the first element of the offense agreement is seldom susceptible of direct proof. Proof of the...
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