560 F.2d 1268 (5th Cir. 1977), 76-1895, United States v. Brumley

Docket Nº:76-1895.
Citation:560 F.2d 1268
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. George W. BRUMLEY, Sr., Robert W. Harrison, and William T. Thomas, Defendants-Appellants.
Case Date:October 14, 1977
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 1268

560 F.2d 1268 (5th Cir. 1977)

UNITED STATES of America, Plaintiff-Appellee,

v.

George W. BRUMLEY, Sr., Robert W. Harrison, and William T.

Thomas, Defendants-Appellants.

No. 76-1895.

United States Court of Appeals, Fifth Circuit

October 14, 1977

Page 1269

Chester Bedell, John A. DeVault, III, Jacksonville, Fla., for brumley.

John J. Sullivan, Savannah, Ga., Lacy Mahon, Jr., Jacksonville, Fla., for Harrison and Thomas.

William T. Moore, Jr., U. S. Atty., Augusta, Ga., Judith E. Wolf, Appellate Section, Civil Rights Div., J. Stanley Pottinger, Asst. Atty. Gen., Walter W. Barnett, Atty., Appellate Section, Civil Div., Dept. of Justice, Washington, D. C., for plaintiff-appellee.

Appeals from the United States District Court for the Southern District of Georgia.

Before COLEMAN, MORGAN and TJOFLAT, Circuit Judges.

Page 1270

COLEMAN, Circuit Judge.

This criminal case was once pursued to exhaustion by Wyman Westberry as the plaintiff in a civil rights suit, see Westberry v. Gilman Paper Company, 60 F.R.D. 447 (S.D., Ga., 1973). 1

The controversy is here on a second appellate visit as the result of a criminal prosecution on substantially the same facts, handled by the Civil Rights Division of the Department of Justice.

Westberry's activities, with their accompanying consequences, were recited in detail by the District Court in its disposition of the civil rights lawsuit, 60 F.R.D. 450-453. Too lengthy for incorporation in the body of this opinion, that recitation is annexed as an Appendix hereto by way of general background.

October 15, 1975, the United States grand jury, sitting at Savannah, indicted the individuals whom Wyman Westberry had previously sued: George W. Brumley, Sr., Vice President and resident manager of the Gilman Paper Company at St. Marys, Georgia; Robert W. Harrison, longtime attorney, former legislator, and local counsel for Gilman; and William T. Thomas, an employee of Gilman.

Count 1, 18 U.S.C. § 1622, charged that these defendants "did willfully suborn, instigate, induce, and procure one Lawrence E. Brown falsely to testify (May 17, 1972) to a material matter in which the grand jury was concerned", that is "whether George W. Brumley, Sr., Robert W. Harrison, and William T. Thomas offered Lawrence E. Brown a sum of money to kill one Wyman Westberry"; that as a result of the subornation Brown did falsely testify "in substance and to the effect (emphasis ours) that he had never been offered a sum of money by Brumley, Harrison, and Thomas to kill Wyman Westberry". The indictment does not set forth the specific questions, or the answers which the government charges to have been perjurious. The alleged perjury, nevertheless, is specifically stated: the defendants had never offered Brown a sum of money to kill Westberry.

Count 2 charged that all three of the defendants did knowingly and willfully use a false and fictitious document in violation of 18 U.S.C. § 1001 in that they did cause a false statement (with reference to the solicitation to kill) by one George A. Beaver, dated May 31, 1972, to be delivered to the United States Attorney for the Southern District of Georgia.

Count 3 charged Thomas, alone, with making a false statement in regard to the same matter to Agents Jones and McGuire of the Federal Bureau of Investigation on May 24, 1972.

Count 4 charged a similar false statement by Thomas on June 10, 1972, to Special Agents Jones and Cook of the Federal Bureau of Investigation. This concerned a trip to Vero Beach, Florida, but in connection with the same solicitation to kill.

A nine day jury trial resulted in the conviction of all three defendants on all pending counts. Each defendant was sentenced to imprisonment for a year and a day.

This appeal was argued in Atlanta, March 17, 1977. The voluminous trial record, the generally ephemeral character of much of the testimony, and several unusual legal issues necessitated prolonged analysis, delaying ultimate decision until now.

These convictions are infected with fatal deficiencies and infirmities, hereinafter related.

I. FACTUAL BACKGROUND

As indicated supra, the appellants were all associated with the Gilman Paper Company of St. Marys, Camden County, Georgia. Gilman was by far the largest employer in the county. In June of 1971, Wyman Westberry, at that time an employee of the paper company, met with the United States

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Attorney in Brunswick, Georgia, purportedly to discuss alleged political intimidation in Camden County during the 1970 election for the state legislature (the exact nature of which does not appear in the record) and also the existing tax agreement between the town of St. Marys and Gilman. Nothing seems to have come of this conference. In 1970 and 1971 Westberry had contact with the Ralph Nader organization concerning water and air pollution allegedly caused by Gilman Paper Company. As a consequence of this contact, the Nader group investigated Gilman. Results of this investigation were published in a book and in two national magazines. This publicity stimulated the interest of the producer of the CBS television program "Sixty Minutes". With the active assistance of Westberry, a television show on the Gilman Paper Company was prepared and telecast. In addition, Westberry set up a meeting with a high Georgia official to discuss the tax agreement between Gilman and St. Marys. What, if anything, came of that conference is left to speculation.

At the least, it may safely be said that Westberry, previously accused of pouring acid on a black man who used a previously white toilet, was vigorously and unrelentingly pursuing a vendetta against Gilman, launching any available missile in the direction of his employer. Moreover, the employer was well aware of what Westberry was doing.

The foundation for the government's case was constructed around the uncorroborated testimony of Lawrence Brown that William Thomas approached him and offered to pay him $1,500 to kill Wyman Westberry. Brown said at the trial that he agreed to do it, but insisted on assurances from those higher up than Thomas that Brown would not be prosecuted. A meeting was arranged between Brown and the three defendants at an abandoned high school.

This is what Brown told the trial jury on direct examination:

Q. Let me draw your attention now to a couple of days later, Sunday evening, May 9, 1972, 2 just before dark, did you have occasion to go to Woodbine (county seat of Camden County), Ralph Bunche High School?

A. Yes.

Q. How did you get there?

A. Drove my car.

Q. Did you arrive first?

A. No.

Q. All right, tell us what you saw when you got there?

A. When I turned off the highway 17 and went to the school, sitting back off the road, on the south end of the building there was a green Lincoln parked there, with three white males standing on the outside on the driver's side. So, I pulled up to the car, parked, and got out, and we spoke to one another.

Q. Do you know who the white males were?

A. Yes.

Q. Who were they?

A. George Brumley, Robert Harrison and Tommy Thomas.

Q. So, you walked up to them?

A. Yes.

Q. All right, tell us what happened when you walked up?

A. Well, the first thing we talked about was the malpractice suit, Robert Harrison didn't want me to talk to nobody, or be out talking to nobody about it because it would ruin the whole case.

Q. Then what happened?

A. Then Tommy went into details again about killing Wyman Westberry.

Q. All right, tell us about that.

A. He said "Lawrence, I'm going to tell you again, and we all stood close together. He said I'm going to tell you how I want you to do it, if you're not going to do it, I don't want to hear about it again, if I do, I know you told it, and I'll stand on your toes and say you're telling a lie."

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Q. Then what happened?

A. Then he told me how he wanted me to do it again.

Q. Tell us about that.

A. Wanted me to call George Beaver at his station, have George Beaver to call Wyman, we'd both meet at the gate, and I was going to present them with a racial case that I was having a problem on the job, and we was going to walk over towards the car, just before getting to the car, I was going to strike George and kill Wyman.

Q. Now, did Mr. Brumley say anything?

A. No, he nodded his head. I told Tommy that I would do it for the fifty thousand dollars, no less.

Q. You wanted fifty thousand?

A. That's right.

Q. Did Mr. Harrison say anything?

A. No.

Q. Who did all the talking?

A. Tommy Thomas.

Q. They just nodded their heads? (Leading question)

A. Like that (nodding affirmatively).

Q. All right, so you asked, you wouldn't do it for any less than fifty thousand dollars? (Leading question)

A. That's correct.

Q. What did he say to that?

A. Well, Tommy said, "Lawrence, have I ever lied to you?" I said "No, Tommy." He said "I won't now."

Q. Mr. Brown, lets get right to the bottom line. Did you intend to kill Wyman Westberry for that money?

A. No.

Q. Tell us what you intended?

A. Rip them off for the money.

Q. Rip them off for the money?

A. Yes.

Q. Did you think you were going to get the whole fifty thousand in advance?

A. No, in my mind at that time, I didn't, but I did have an idea I would get something.

It will be observed that, according to Brown, neither Brumley nor Harrison said anything. Brown said first that Mr. Brumley nodded his head but did not include Harrison in that gesture and he never included Harrison unless it be assumed from his response to the leading question: "They (without further identification) just nodded their heads?", to which Brown responded, "Like that (nodding affirmatively)".

On at least three occasions, Brown repudiated this story under oath: once before the sheriff of Camden County and representatives of the Georgia Bureau of Investigation, once before a notary public in Vero Beach, Florida, and once before the federal grand jury in Savannah.

In any event, Brown testified to the trial jury...

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