595 F.2d 231 (5th Cir. 1979), 78-5239, United States v. Barham

Docket Nº:78-5239.
Citation:595 F.2d 231
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. James Harrison BARHAM, a/k/a Robert Myers, Defendant-Appellant.
Case Date:May 16, 1979
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 231

595 F.2d 231 (5th Cir. 1979)

UNITED STATES of America, Plaintiff-Appellee,

v.

James Harrison BARHAM, a/k/a Robert Myers, Defendant-Appellant.

No. 78-5239.

United States Court of Appeals, Fifth Circuit

May 16, 1979

Page 232

E. E. Edwards, III, Nashville, Tenn., for defendant-appellant.

J. R. Brooks, U. S. Atty., George C. Batchelor, Asst. U. S. Atty., Birmingham, Ala., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of Alabama.

Before BROWN, Chief Judge, COLEMAN and TJOFLAT, Circuit Judges.

JOHN R. BROWN, Chief Judge:

Fictional in many respects, but alas true, this case is a remarkable and often entertaining tale of the bogus and the duplicitous: it involves the false testimony of Government witnesses in the trial of a man who assumed an alias while participating in a scheme to counterfeit money. As with many fascinating and entertaining tales of fiction, however, a serious object lesson lies at the end: the failure of the prosecution to correct false testimony which it knows to be false violates due process if there is any reasonable likelihood that the false testimony

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could have affected the judgment of the jury. Accordingly, we reverse.

Setting The Stage

The defendant James Barham apparently is a rather colorful character, the sort one might expect to meet in the novels of Erskine Caldwell. For thirteen years a truck driver, he later turned to fishing, playing cards, and buying and selling used goods for a living. Apparently he also once tried his hand at moonshining, because in 1971 he was convicted of a federal liquor law violation. Much as he was not content with just one occupation, he was not content with just one name either. In June 1977 he moved from Town Creek, Alabama to Lutts, Tennessee and began using the name Robert Meyer, because, according to his testimony, James Barham was known both to be a good cardplayer (fame apparently being disadvantageous when one goes hunting for pigeons), and an ex-convict, an undesirable status for someone seeking to make a fresh start in a new community.

The Government, however, began to suspect that even as Robert Myers, James Barham strayed from the straight and narrow after moving to Lutts. A series of events in southern Tennessee and northern Alabama between June and October 1977, along with information from confidential sources, led the Government to believe that Mr. Barham had broadened his horizons to include counterfeiting. Accordingly, on November 3, 1977, Secret Service agents executed a search warrant at Barham's 21-acre farm along Route 1 in Lutts, and, after finding there a printing press and various printing paraphernalia, arrested Barham. Barham was subsequently indicted, along with two codefendants, in December. He was charged on one count of aiding and abetting the counterfeiting of Federal Reserve notes, 1 and, in another count, of conspiring to make, possess, and distribute counterfeit Federal Reserve notes. 2

Mr. Barham put up a vigorous defense. Although his motion to suppress was denied following a hearing, he was somewhat more successful when he first went to trial in February 1978. That first trial, which lasted five days, during which his two codefendants pleaded guilty, ended in a mistrial as to Barham when the jury was unable to reach a verdict. The second trial, conducted in April 1978, also lasted five days. The complexity of the story that unfolded was worthy of William Faulkner. When all was said and done, however after 31 witnesses for the Government and 13 more for the defense (including Barham himself) the jury returned verdicts of guilty on both counts. The District Judge, perhaps curious to find out how adept Barham would be at making license plates, 3 then sentenced our protagonist to consecutive terms of 15 and 5 years, and imposed a $1,000 fine (trusting, we presume, that it would be paid in honest-to-goodness, bona fide currency).

Barham appeals on essentially three grounds: 4 (1) the failure of the prosecution to correct material testimony, which the prosecution knew to be false or misleading, of three Government witnesses concerning promises made to them by the Government; (2) the District Court's refusal to instruct the jury on the "theory of the defense" charge tendered by the defendant; and (3) the District Court's failure to find constitutionally deficient the affidavit upon which the search warrant of Barham's property was based.

We resolve the latter two contentions against the appellant. Underlying the first contention, however, are serious considerations despite the oft-amusing factual background against which they arise of prosecutorial responsibility and due process of law that ultimately dictate reversal.

A full appreciation of the significance of the false evidence, however, requires a rather thorough understanding of the two conflicting stories presented the jury, and the enhanced importance given this conflict in the stories of the credibility of the witnesses. We therefore present the "facts" of the case much like the jury heard them: the prosecution's side first, the defense version second. In the interest of narrative clarity, we develop the two tales (changing the order of witnesses, eliminating minor

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details, etc.) somewhat differently than they were presented at trial.

Barham And Friends: Screenplay By The Government

The Government's story begins with a visit by James Barham to his friend, fishing partner, and soon-to-be-coconspirator (and later codefendant) David Simon and his wife Sandra in northern Alabama sometime in the spring of 1977. According to the testimony of Sandra Simon, Barham announced that he and his common-law wife Marti Desforges were "looking for a place * * * out in the country where there (were) no houses nearby for the counterfeiting they were going to do." On a subsequent visit in June 1977, Barham informed Simon that he and his wife had purchased a farm which had a little house on it where they could put the printing press. Barham and David Simon also discussed their respective roles in the counterfeiting operation: Barham was to purchase all of the necessary equipment and Simon was to help in the actual counterfeiting and to sell the finished product.

Shortly thereafter, using his alias Robert Meyer, Barham purchased a used Multilith Model 1250 offset printing press and stored it in a small concrete blockhouse on his property in Lutts. He also purchased a Sandmar camera, used to make negatives for offset printing, and various printing supplies, such as printing plates, film, and developer.

But Barham apparently did not accumulate all of his counterfeiting equipment by honest purchases on the open market. Diane Beech testified that on June 20th Barham and David Simon visited her and her husband Jerry at their trailer near Nashville, Tennessee. In the presence of Barham, Simon mentioned that he needed "a piece of printing equipment," and Jerry Beech said that they could steal the needed equipment from a printing company in Goodlettsville, Tennessee. According to Diane Beech, the three men (Beech, Barham, and Simon) then left in Simon's pick-up truck to get the printing equipment, and later in the evening upon their return placed something in the trunk of Jerry Beech's car.

Jerry Beech testified that at Goodlettsville, he and David Simon broke into a trailer behind the printing company and stole the desired equipment while Barham stood watch outside the trailer. The three men then drove back to the Beech trailer, transferred the equipment to the trunk of Beech's car, and the following morning drove to a spot 25 miles away where the equipment was transferred back to Simon's pick-up truck. Beech also stated that for his assistance in stealing the equipment Barham paid him $30 or $35.

Beech's story of the theft was corroborated by the owner of Dixie Reproductions, a printing supply firm in Goodlettsville, who testified that on the night of June 20, the trailer behind the printing shop was burglarized, and a Rex Rotary plate maker, along with a file storage box for printing plates and negatives, were stolen. An attempt also had been made to break into the main building of the printing firm, but an alarm system apparently foiled that effort.

The counterfeiters-to-be apparently took a brief respite after the burglary of Dixie Reproductions. According to the Government's tale, the next significant activity did not occur until August or September, when Barham paid Charles Fowler, an experienced craftsman in printing photography who worked with the daily newspaper in Florence, Alabama, $75 to repair the Multilith 1250 printing press stored in the concrete blockhouse on Barham's property. Several weeks later, Barham approached Fowler at the Cypress Inn Club, a tavern on the Alabama-Tennessee line, and sought Fowler's assistance in the counterfeiting project. Fowler was reluctant at first, but the $3,000 offered by Barham and David Simon apparently was too much to turn down, and Fowler agreed to print the bogus money. Fowler also advised Barham and Simon about the paper they should use for printing the counterfeit.

On October 7, 1977, Barham bought 10 reams of twenty-pound Assurance opaque bond paper from Printers & Stationers in Florence, Alabama. This purchase completed the procurement of necessary supplies and, on October 9 and 10, Fowler carried

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out his end of the deal by making the negatives and doing the actual printing in Barham's concrete blockhouse. On those two days, using a Sandmar camera, Fowler photographed a hundred dollar bill and two twenty dollar bills, developed the necessary negatives, made the plates, and, using ten reams of Assurance opaque parchment paper, printed 5,000 sheets of paper...

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