U.S. v. Hawkins
| Decision Date | 16 November 1981 |
| Docket Number | No. 80-7140,80-7140 |
| Citation | 661 F.2d 436 |
| Parties | 9 Fed. R. Evid. Serv. 533 UNITED STATES of America, Plaintiff-Appellee, v. Howard "Sonny" HAWKINS, Roger G. Beckman, William D. "Bill" McCain, George Rawls, a/k/a Howard Kenith Leigh, Ned Ames, Jorge Luis Valdes, James Patrick Herman, Defendants-Appellants. . Unit B * |
| Court | U.S. Court of Appeals — Fifth Circuit |
Shelby Highsmith, Miami, Fla., Martin G. Weinberg, Boston, Mass., Brayton Dasher, Macon, Ga., for Jorge Luis Valdes.
Donald L. Wolff, Clayton, Mo., for Herman.
Richard Nettum, William P. Adams, Macon, Ga., for plaintiff-appellee.
Appeals from the United States District Court for the Middle District of Georgia.
Before GEWIN **, RONEY and HATCHETT, Circuit Judges.
On this consolidated appeal seven defendants, jointly tried before a federal jury, challenge their convictions for drug conspiracy. The defendants raise numerous points of error, including the composition of the grand and petit juries, restrictions on cross-examination, prosecutorial misconduct, Brady violations, judicial bias, denial of a bill of particulars, sufficiency of the indictment and evidence, the denial of severance, improper comments of a codefendant's attorney, admissibility of evidence obtained through an allegedly illegal search, and mistreatment in a foreign country. Having carefully considered the extensive trial record and the legal arguments made on appeal, we conclude no reversible error has been shown. The convictions are affirmed.
Although the facts are treated in greater detail later in the discussion of the specific issues raised on appeal, an overview will be useful. The record evidence, viewed most favorably to the Government, 1 describes a large drug conspiracy operating in 1978 and 1979. The object of the conspiracy was the importation from South America of substantial quantities of three controlled substances, marijuana, methaqualone and cocaine, for distribution and sale in the United States. Private planes were used in the operation.
The leaders of the conspiracy over its entire duration were George Rawls, an appellant here, and Harold Rosenthal, who pled guilty prior to trial and is not a party to this appeal. Rosenthal supervised the smuggling aspect of the operation, while Rawls generally handled the distribution and sale of incoming drug shipments. The other defendants played various subsidiary roles.
A grand jury in the Middle District of Georgia handed down a five-count indictment in July 1979. Twenty persons were charged in the first count with conspiracy to import drugs. 2 Eleven of the twenty were also charged in the second count for conspiracy to possess with intent to distribute drugs. 3 Rosenthal and Rawls were charged in the third and fourth counts, respectively, with operating a continuing criminal enterprise. 4 The final count was severed before trial and is not involved on this appeal. Appellants here were charged with one or more of these counts. The specific charges against each will be set forth in the separate treatment given to each of their appeals.
Eleven of those charged in the indictment were tried jointly before a jury. The Government's case rested in large part on the testimony of five witnesses. Four had been pilots in the drug operation while the fifth had been Rosenthal's bodyguard and aide. All five had been immunized in exchange for their testimony. The remaining witnesses and exhibits presented by the Government basically corroborated the activities of the conspiracy.
After a lengthy trial, the jury returned a guilty verdict against seven defendants: Rawls, Ned Ames, Jorge Luis Valdes, William McCain, James Herman, Howard "Sonny" Hawkins, and Roger Beckman. The other four defendants were acquitted one by the trial court on a directed verdict. The seven convictions form the basis of this appeal.
Five of the seven defendants filed briefs and participated in oral argument before this Court. Counsel for all defendants, including those who chose not to otherwise participate, have adopted by reference all relevant arguments made by other counsel. F.R.A.P. 28(i). Whether or not indicated further in this opinion, each error asserted by a defendant has been considered where appropriate as applicable to the other defendants. For purposes of discussion, we first address the issues which could affect all the convictions presented for review. We then discuss issues applicable only to individual defendants.
Defendants argue the procedures by which the grand and petit juries were selected resulted in a geographic imbalance on the grand jury and racial and sexual imbalance on both juries, in violation of federal law and the Fifth and Sixth Amendments of the Constitution. After a two-day hearing on the claims, the district court upheld the legality of the selection process. United States v. Rosenthal, 482 F.Supp. 867 (M.D.Ga.1979).
A description of the disputed selection process would be helpful in understanding the issues. As explained by the trial court, the Middle District of Georgia is composed of 70 of Georgia's 159 counties and is statutorily divided into seven divisions: Albany, Americus, Athens, Columbus, Macon, Thomasville and Valdosta. Following the passage of the Jury Selection and Service Act of 1968, 5 the active judges of the Middle District adopted a plan for random jury selection, which was approved administratively, but not judicially, by a Reviewing Panel comprised of judges of this Court. The plan is supervised by the clerk of the district court.
Pursuant to the plan, voter registration lists are obtained from each county every four years immediately following the presidential election. The jury wheels involved in this case were constituted after the 1976 election. In order to obtain a sufficiently large master and qualified wheel, the clerk randomly selected 2,500 names from each of the Albany, Americus, Athens, Thomasville and Valdosta divisions, and 5,000 names from each of the Columbus and Macon divisions. The names so selected became the Master Jury Wheel. The clerk then sent a questionnaire to each person on the wheel, seeking responses that would either qualify, exempt, or excuse prospective jurors.
From the responses to the completed questionnaires, the clerk determined those persons who were qualified to serve as jurors. Computer cards containing the names of these persons were placed in a box which became the Qualified Jury Wheel. It is from this wheel that the grand and petit juries were selected.
Under the plan, grand juries were selected from the entire district. The plan provides that the clerk shall select a grand jury venire "by drawing a pro rata, or approximately pro rata, number of names at random from the qualified jury wheels of each division in the district." The clerk interpreted "pro rata" to mean that the number of names selected should be in proportion to the size of the master and qualified wheels so that the Macon and Columbus Divisions should have twice as many names in the grand jury venire as the other five divisions. The selection of the grand jury venires was conducted as follows: the qualified boxes from all seven divisions were gathered in open court and the clerk or his designee blindly drew one name each from the Albany, Americus, and Athens Divisions' boxes, two names from the Columbus and Macon Divisions, and one name each from the Thomasville and Valdosta Divisions so that nine names were selected. This process was done in rotation five times until 45 names were drawn ten names each from Columbus and Macon and five names each from the other divisions. From this venire the first 23 names of those who had not been excused for hardship or removed because of death or other reasons were chosen by the court to serve as grand jurors.
Persons for the petit juries were selected randomly from the qualified box. The number of jurors for a particular venire was determined by the court and memorialized in an order to the clerk to draw that number of prospective jurors.
In challenging this selection process, defendants first contend an unlawful statistical disparity existed between the racial and sexual composition of the Master and Qualified Jury Wheels and the composition of these elements in the general population of the district. In Duren v. Missouri, 6 the Supreme Court held a defendant's right to a jury selected from a fair cross-section of the community is violated when there is a systematic disproportion between the percentage of a "distinctive" group in the community and its representation in venires from which the juries are selected. The Court set forth the following three-part test for establishing a violation:
In order to establish a prima facie violation of the fair-cross-section requirement, the defendant must show (1) that the group alleged to be excluded is a "distinctive" group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to systematic exclusion of the group in the jury-selection process. 7
While it is undisputed that the allegations concerning race and sex satisfied the first element of a prima facie case, defendants have failed to satisfy the remaining elements. They concede the selection process is random and objective, but argue the statistical disparity establishes a prima facie violation. The trial court, however, found the underrepresentation of women and blacks on the qualified jury wheel to be only 1.75 and 5.45 percent, respectively. 482 F.Supp. at 872-73. These...
To continue reading
Request your trial
-
U.S. v. Henderson, No. 04-11545.
... ... (citing Piccinonna, 885 F.2d at 1536 ( en banc )) ... It is the second category which concerns us here. To admit polygraph evidence to impeach or corroborate a witness' testimony, the proponent must satisfy three conditions. Piccinonna, 885 F.2d ... Goff, 509 F.2d 825, 826-27 (5th Cir.), cert. denied, 423 U.S. 857, 96 S.Ct. 109, 46 L.Ed.2d 83 (1975). Similarly, United States v. Hawkins, 661 F.2d 436 (5th Cir. Unit B Nov.1981), 8 held that underrepresentation by two persons per 23-juror pool did not meet this standard. Id. at ... ...
-
United States v. Scott
... ... William SCOTT, Defendant. 20 Cr. 332 (AT) United States District Court, S.D. New York. Signed June 28, 2021 Alexandra Rothman, Assistant US Attorney, United States Attorney's Office, New York, NY, for United States of America. OPINION AND ORDER ANALISA TORRES, District Judge: ... Test , 550 F.2d 577, 582 n.4 (10th Cir. 1976) )); United States v. Hawkins , 661 F.2d 436, 44243 (5th Cir. 1981) ; United States v. Matthews , 350 F. Supp. 1103, 1111 (D. Del. 1972). In these cases, disproportionate ... ...
-
U.S. v. Darby
... ... the responsibility for preparing the case for trial." Terming Heiser's representation at the arraignment a "technical" appearance, he urges us to treat Kitchen's appointment on May 11 as the first appearance ... In support of his claim, Yamanis cites the Ninth Circuit's ... See United States v. Hawkins, 661 F.2d 436, 453-54 (5th Cir. Unit B 1981). Concluding that the evidence here permits the same inference, we sustain Darby's conviction ... X ... ...
-
U.S. v. Manbeck
... ... See, e.g., United States v. Hawkins, 661 F.2d 436, 452-453 (5th Cir.1981), cert. denied, 459 U.S. 832, 103 S.Ct. 72, 74 L.Ed.2d 71 (1982) (pilot only indicted and found guilty of ... 20 Officer Canady testified during the suppression hearing that: ... We asked him where his truck was parked, and he told us where he had his truck parked, which was not where we had observed the truck. We asked him when he had loaded out of Charleston, and he told us a ... ...
-
Lying to Catch the Bad Guy: the Eleventh Circuit's Likely Adoption of the Clear Error Standard of Review for Denial of a Franks Hearing
...from office). In some circumstances, its restraints extend to actions by foreign government officials. Compare United States v. Hawkins, 661 F.2d 436,455-56 (5th Cir. 1981) (finding the Fourth Amendment inapplicable to a search carried out by foreign officials if the circumstances surroundi......