684 F.2d 1126 (5th Cir. 1982), 80-2215, United States v. Fricke

Docket Nº:80-2215.
Citation:684 F.2d 1126
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Kenneth Wayne FRICKE, Defendant-Appellant.
Case Date:August 25, 1982
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 1126

684 F.2d 1126 (5th Cir. 1982)

UNITED STATES of America, Plaintiff-Appellee,

v.

Kenneth Wayne FRICKE, Defendant-Appellant.

No. 80-2215.

United States Court of Appeals, Fifth Circuit

August 25, 1982

Page 1127

Jimmy Phillips, Jr., Angleton, Tex., Jack B. Zimmermann, Houston, Tex., for Fricke.

Anna E. Stool, Asst. U. S. Atty., Houston, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Texas.

Before BROWN, GEE and GARWOOD, Circuit Judges.

GARWOOD, Circuit Judge:

Early on the morning of February 25, 1979, appellant Kenneth Wayne Fricke, a narcotics agent with the Texas Department of Public Safety ("DPS"), severely beat Larry Michael Hintz. The incident grew out of an altercation between the two at a dance hall called the Watering Hole, in Wallis, Texas. Fricke and two other DPS

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officers, all of whom were apparently off duty following a plain clothes investigation at another location earlier in the evening, were patrons of the hall on the night in question. After a confrontation, Fricke was struck by Hintz, who fell down near a bar. Terry Joe Baldwin, a Wallis, Texas police officer, arrested the intoxicated Hintz and took him out of the dance hall, where another Wallis officer, Angel Salcido, handcuffed Hintz and placed him in a patrol car. Fricke followed Baldwin and Hintz out of the hall, and, after talking with Baldwin, told one of the other DPS officers, John Janicek, that he planned to "see what he (Hintz) was made of." Janicek asked if this was a good idea because of the "federal government." Fricke replied that Baldwin had said it was all right. Fricke then got in the car and directed Baldwin to a remote area where, in the presence of Salcido and Baldwin, Fricke proceeded to brutally beat Hintz. Afterward, Fricke told Janicek that he had "tagged" Hintz. The government also introduced evidence of an attempted cover-up of the incident.

Fricke, Baldwin, and Salcido were charged with both conspiring to violate, and violating Hintz's civil rights under 18 U.S.C. §§ 241 and 242. 1 Salcido's case was later severed and he testified as a government witness against Fricke and Baldwin. Both were convicted. Fricke appeals.

Fricke asserts five errors in his trial. Finding that they do not present reversible error, singly or collectively, we affirm his conviction. Preliminarily, we note that the evidence against Fricke was extremely strong, and was virtually uncontroverted in any of its essentials.

I.

Fricke's first alleged error presents a familiar problem. The trial court instructed the jury as follows:

"With regard to specific intent, you are instructed that intent is a state of mind and can be proven by circumstantial evidence. Indeed, it can rarely be established by any other means. In determining whether this element of specific intent was present, you may consider all the attendant circumstances of the case.

"I charge you that a person ordinarily is presumed to intend all the natural and probable consequences of an act knowingly done. The burden of proof as to each element of the offense remains, however, with the Government.

"If you find that the defendants knew what they were doing and that they intended to do what they were doing, and if you find that what they did constituted a deprivation of a constitutional right, then you may conclude that the defendants acted with the specific intent to deprive the victim of that constitutional right." (Emphasis added.)

Fricke argues that this charge acted as a conclusive presumption and thereby relieved the government of its burden of proof on one of the elements of the crime. Obviously, our en banc attempted solution

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in this thorny area, United States v. Chiantese, 560 F.2d 1244 (5th Cir. 1977), cert. denied, 441 U.S. 922, 99 S.Ct. 2030, 60 L.Ed.2d 395 (1979), has not been entirely successful. Courts continue to give questionable instructions. See, e.g., United States v. Sutton, 636 F.2d 96, 97-98 (5th Cir. 1981). The Supreme Court has also addressed, and condemned, instructions containing conclusive presumptions. Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979). Clearly, we are not writing on a clean slate.

In Chiantese we refused to adopt a per se rule of reversal for these types of charges. However, we also stated that when a charge included this sort of coercive or burden-shifting language we would not uphold it by harmonizing the erroneous instruction with curative statements or phrases contained elsewhere in the charge. Rather, we held that we would weigh the possible harm of the instruction in the context of each case. We do not believe Sandstrom warrants any change in this analysis. 2

We begin by noting that Fricke's able and vigorous counsel failed to object to the instruction. Because the error at least approaches constitutional stature, we will assume we must determine whether it was harmless beyond a reasonable doubt. See Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1976); Mason v. Balkcom, 669 F.2d 222 (5th Cir. 1982). We do, however, regard the defendants' failure to object as significant. It supports a determination that specific intent was not a critical question in the case. Of course, since specific intent is an element of the crime, the prosecution must still establish its existence beyond a reasonable doubt. This burden is much easier though when the defendant presents no conflicting evidence on the issue. Fricke's defense was that no beating took place. The testimony, however, indicated that Fricke planned to strike Hintz, that Baldwin knew of this, and that Fricke did indeed beat Hintz while, as Fricke plainly knew, Hintz was intoxicated, handcuffed, and in police custody; and that the beating was made possible by the cooperation of the arresting officers, which Fricke had solicited for this purpose. Under these circumstances, if a jury concluded that a beating took place, it would undoubtedly encompass a finding that the defendant had the requisite intent. The jury's verdict necessarily reflects that a beating took place, and that it occurred while Hintz was in custody. It is plain that Fricke had the requisite specific intent. Moreover, the proof of Fricke's guilt was nearly overwhelming, and other portions of the charge render it unlikely that the jury was significantly affected by the word "presumed." The first error is rejected. The instruction was harmless beyond a reasonable doubt. 3

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II.

Fricke's second alleged error concerns three witnesses subpoenaed by the defense, who invoked their fifth amendment privileges and refused to testify. Fricke claims the government violated his right to due process and to compulsory process by telling these witnesses, during trial, that they were the subject of an ongoing grand jury investigation into the cover-up of the beating.

"Substantial government interference with a defense witness' free and unhampered choice to testify violates due process rights of the defendant." United States v. Goodwin, 625 F.2d 693, 703 (5th Cir. 1980). Such interference is not present in this case. The government did not inform the witnesses that they would become grand jury targets if they testified. Rather, they were already targets of an ongoing grand jury investigation. 4 In fact, the whole matter surfaced when one of the witnesses, Wallis Chief of Police Lee White, presented the court with a motion stating that he planned to invoke the fifth amendment. One of the other witnesses, Officer Johnny Perez of Sealy, was also planning to invoke the fifth, although he was not sure to what extent. Only Officer J. W. Johnson of Bellville was unaware that he was a target of the grand jury. In a proceeding to determine how to handle White's assertion of the fifth amendment, Fricke's counsel advised the court that, though he might change his mind, he did not anticipate calling Johnson, 5 and that Johnson had stated he had not retained counsel and was not sure whether he was going to claim the fifth amendment. The government attorney informed the court, in the presence of defense counsel, that Johnson was also a target. The court then informed Johnson and advised him to retain an attorney. The following day the court held another conference to determine the validity and scope of the witnesses' fifth amendment claims. And, as noted below, the government stipulated to the substance of what the defense apparently wanted to establish by Johnson's testimony. Under these circumstances, we refuse to find "substantial government interference" with the defendant's right to call witnesses.

Fricke has not shown that the government's investigation of these people was unjustified, nor that it was prompted by the possibility that they might testify for the defense. A defendant's sixth amendment rights do not override the fifth amendment rights of others. United States v. Lacouture, 495 F.2d 1237 (5th Cir.), cert. denied, 419 U.S. 1053, 95 S.Ct. 631, 42 L.Ed.2d 648 (1974). Neither can a defendant compel the government to grant use immunity to witnesses he desires to call. See, e.g., United States v. Chagra, 669 F.2d 241, 258-61 (5th Cir. 1982). Given this, we do not feel that a defendant's rights are violated when the government merely informs witnesses that they are targets of an investigation, as long as the investigation was not prompted by the possibility of the witnesses testifying, cf. United States v. Hammond, 598 F.2d 1008, 1012-14 (5th Cir. 1979), and the government does not harass or threaten the witnesses, see United States v. Morrison, 535 F.2d 223 (3d Cir. 1976). 6

III.

Fricke presents another alleged error relating to the three witnesses discussed

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above. His claim here has two components. In determining the scope and validity of the fifth amendment claims of witnesses White, Perez, and Johnson, the trial judge held a...

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