U.S. v. Bynum

• Decision Date: 26 January 1978
• Docket Number: 76-3085,Nos. 76-2973,76-3015,s. 76-2973
• Parties: 2 Fed. R. Evid. Serv. 1242 UNITED STATES of America, Plaintiff-Appellee, v. Larry BYNUM, John G. "Doc" Clark, Nuburn Hester and William James Becker, Defendants-Appellants. UNITED STATES of America, Plaintiff-Appellee, v. Anthony D'ANGELO, and William James Becker, Defendants-Appellants. UNITED STATES of America, Plaintiff-Appellee, v. William James BECKER, and Charles Joseph Procacci, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 914

566 F.2d 914

2 Fed. R. Evid. Serv. 1242

UNITED STATES of America, Plaintiff-Appellee, v. Larry BYNUM, John G. "Doc" Clark, Nuburn Hester and William

James Becker, Defendants-Appellants.

UNITED STATES of America, Plaintiff-Appellee, v. Anthony D'ANGELO, and William James Becker, Defendants-Appellants.

UNITED STATES of America, Plaintiff-Appellee, v. William James BECKER, and Charles Joseph Procacci,

Defendants-Appellants.

Nos. 76-2973, 76-3085, 76-3015.

United States Court of Appeals Fifth Circuit.

Jan. 26, 1978.

Lex Taylor, Lakeland, Fla., for Bynum.

Jack T. Edmund and John Robert Howes, Bartow, Fla., for Clark and Hester.

John J. Chamblee, Jr., Tampa, Fla. (court-appointed), for Becker.

D. Frank Winkles, Manuel M. Garcia, Tampa, Fla., for D'Angelo.

Phillip Carlton, Jr., Thomas A. Wills, Tampa, Fla., for Procacci.

John L. Briggs, U. S. Atty., Jacksonville, Fla., Terry A. Smiljanich, Asst. U. S. Atty., Tampa, Fla., for the U. S. in Nos. 76-2973 and 76-3085.

J. V. Eskenazi, U. S. Atty., Miami, Fla., T. George Gilinsky, Sp. Atty., Criminal Appellate Section, Criminal Div., U. S. Dept. of Justice, Atlee W. Wampler, III, Organized Crime & Racketeering Section, Dept. of Justice, John J. Klein, Michael W. Farrell, Attys., U. S. Dept. of Justice, Washington, D. C., for the U. S. in No. 76-3015.

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

Before BROWN, Chief Judge, RONEY and FAY, Circuit Judges.

FAY, Circuit Judge:

I. INTRODUCTION

This decision encompasses numerous issues and numerous defendants involved in three trials in the district courts in Florida. The reason for their consolidation in one opinion is the existence of a common defendant who allegedly headed interstate auto theft rings operating in three cities in Florida Lakeland, Tampa, and Miami. We will discuss each case separately with references to the others where necessary. Reference to each case will be either by its case number or its location.

II. 76-2973 LAKELAND

In January, 1976, a federal grand jury in Tampa, Florida, returned a twelve-count indictment charging seventeen defendants, for the period from February 1, 1975, to January, 1976, with engaging in the conduct of and conspiring to conduct an interstate auto theft and distribution ring in violation of 18 U.S.C. §§ 371, 2312, 2313, and 2.

Before trial, the nine defendants going to trial filed, inter alia, motions for severance alleging that the defendants would be denied a fair trial if they were tried en masse because of their numbers, the possibility of jury confusion and conflicts in their defenses. The motions for severance were denied.

At trial in May, 1976, defendant William Becker represented himself. The jury returned guilty verdicts against the nine defendants tried on the conspiracy count, returned various guilty and not guilty verdicts on the remaining substantive counts (two counts were dismissed by the court after the government's case), and a judgment of acquittal was entered by the court for one of the defendants on the conspiracy count. ¹ Defendants Becker, Larry Bynum, John "Doc" Clark, Nuburn Hester, and George Gutridge appealed.

We find it unnecessary to set out the facts of 76-2973 in full. They are discussed when relevant to the issues raised by the appellants.

A. William Becker

Defendant Becker first contends the trial court erred in denying motions and requests for access to legal materials and other tools with which to prepare his defense all in violation of his constitutional rights to adequate representation, a fair trial and due process of law. The record belies Becker's contentions.

The court revoked Becker's bond and he was incarcerated during trial. The trial judge upon motion specifically stated he would ". . . see that my materials are made available to you." (T. B-236).

Although prior to and during trial the defendant filed both handwritten and typewritten motions there is no indication that the hand-written motions were not given the careful consideration given to all other motions by the court.

The record further shows the steps taken by the court and the prosecution to assure the appearance of witnesses subpoenaed by Becker, even upon short notice, during the presentation of his defense. (Eg. T. F-156-64).

Although denial of access to legal materials can be a valid contention the record does not support this defendant's claim. See Haslam v. United States, 431 F.2d 362 (9th Cir. 1970); Martinez Rodriquez v. Jimenez, 409 F.Supp. 582 (D.P.R.1976).

Becker also suggests the trial court erred in denying his motion for mistrial based on his contention that the trial court commented in front of the jury on his right to testify.

One of the principal witnesses for the government was Marshall Lineberger. He and Becker had been associates. During Becker's cross-examination of Lineberger, Becker made repeated assertions of fact when he asked questions. The defendant made these assertions of fact five times and the court, upon proper objection, instructed the jury to disregard them. The court admonished Becker to refrain from these assertions. Thereafter, Becker made such statements four more times. The court then advised him as follows:

THE COURT: All right. Now, Mr. Becker, that was a statement on your part or a declaration. You said, 'I don't have any.'

MR. BECKER: Well, he said he gave me half. And I don't have half, Judge.

THE COURT: Well, I tell you, the time will come when, if you elect to do so, you may testify as a witness before the Jury, though, of course, you shall not be obliged to do so in any way whatsoever, or, for that matter, to call any witnesses at all.

But your position out there at the moment is to ask questions and not to testify or to state any assertions of fact or declarations of any kind. You understand that? (R. 291-292).

At this point, motions for mistrial were made by all defendants on the grounds that the court was commenting on a defendant's constitutional right not to testify. The motions were denied.

The Fifth Amendment to the Constitution of the United States provides in part that no person:

". . . shall be compelled in any criminal case to be a witness against himself . . . ."

The Supreme Court held in Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965):

. . . that the Fifth Amendment, in its direct application to the Federal Government, . . . forbids either comment by the prosecution on the accused's silence or instructions by the court that such silence is evidence of guilt. (Footnote omitted)

Griffin, 380 U.S. at 615, 85 S.Ct. at 1233.

This court in United States v. Lepiscopo, 429 F.2d 258 (5th Cir. 1970), dealt with strikingly similar circumstances. In Lepiscopo, a pro se defendant while cross examining a witness was making side comments to the jury. "The trial judge stated: 'Don't make comments. You'll have your opportunity to be sworn and testify if you care to do so.' " Lepiscopo, 429 F.2d at 260. The court found in that case and we find in this case that:

(t)his did not constitute a comment on defendant's failure to testify but rather reflected his right to take the stand and testify under oath if he so desired.

Supra, p. 260. As in Lepiscopo, even if we were to find this a comment on the defendant's failure to testify, it was harmless error beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 22, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).

B. Larry Bynum

Larry Bynum contends on appeal the trial court erred in allowing the government to cross examine Bynum's character witness regarding his knowledge of two incidents of misconduct by this defendant.

The two questions asked were:

Q. (H)ave you heard that on January 10, 1976, that Larry Bynum stole a Piper Aztec airplane from Lakeland Municipal Airport in Lakeland, Florida? (R. G-68). ²

Q. (H)ave you heard that Larry Bynum planned to steal a trailer load of hams from Publix Supermarkets during the end of January, 1976? (R. G-70).

Before asking these questions the government proffered to the court the basis for each of these questions and after the questions were asked the court properly instructed the jury concerning its use of such evidence. This court has recently held:

Once a witness has testified concerning a defendant's good character, it is permissible during cross-examination to attempt to undermine his credibility by asking him whether he has heard of prior misconduct of the defendant which is inconsistent with the witness' direct testimony . . . Courts have imposed two important limitations upon judicial discretion in admitting inquiries concerning such prior misconduct: first, a requirement that the prosecution have some good-faith factual basis for the incidents inquired about (Citations omitted) and second, a requirement that the incidents inquired about are relevant to the character traits involved at the trial.

United States v. Wells, 525 F.2d 974, 976-977 (5th Cir. 1976). See also United States v. Franklin, 471 F.2d 1299 (5th Cir. 1973), (citing Michelson v. United States, 335 U.S. 469, 69 S.Ct. 213, 93 L.Ed. 168 (1948). Bynum's

contention that the trial court erred is without merit. C.

William Becker, Larry Bynum, Nuburn Hester, and John G. "Doc" Clark

Each of the above defendants assign error to the denials of their motions for severance.

Becker contends the complexity of this case including the length of the trial (almost three weeks), the number of defendants (nine) and the number of stolen vehicles involved (approximately six) required a severance. He also suggests his defense and Bynum's were antagonistic.

Bynum, Hester and Clark contend that Becker's pro se representation and his conduct at trial gave rise to the necessity for a severance or mistrial.

Denial of motions for severance under Rule 14, Federal Rules of Criminal Procedure, ³ is reviewable only for an abuse of discretion by the trial court. ⁴ A district court's ruling will only be...