U.S. v. Hood, 84-1525
| Decision Date | 05 November 1984 |
| Docket Number | No. 84-1525,84-1525 |
| Citation | 748 F.2d 439 |
| Parties | 17 Fed. R. Evid. Serv. 1209 UNITED STATES of America, Appellee, v. Carl R. HOOD, a/k/a Roy E. Hawkins, Appellant. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Morgan E. Welch, North Little Rock, Ark., for appellant.
Michael D. Johnson, Washington, D.C., for appellee.
Before HEANEY, ROSS and BOWMAN, Circuit Judges.
On August 15, 1982, Carl Hood was charged by indictment with wire fraud, 18 U.S.C. Sec. 1343, mail fraud, 18 U.S.C. Sec. 1341, and conspiracy, 18 U.S.C. Sec. 371. On March 21, 1984, after a trial by jury, Hood was found guilty on the conspiracy and wire fraud charges, but not guilty on the mail fraud charge. He was sentenced to consecutive five-year terms by the district court. 1 This appeal followed.
The appellant was indicted with his son, Randy Hawkins, for their involvement in a scheme whereby building supply materials were obtained on credit and then disposed of, without payment, for profit. Hawkins pled guilty to the conspiracy count, and testified at his father's trial. In return for his testimony the government dismissed the wire and mail fraud charges against him.
Before trial Hood filed a motion to suppress certain evidence which he claimed was obtained by a warrantless search. The district court denied the motion. During trial, he filed a motion in limine to preclude the government from using a prior conviction to impeach him. The district court also denied this motion. After the trial Hood filed a motion for a new trial on the basis that the judge erred in refusing to give a jury instruction regarding the testimony of an accomplice. The motion was denied and this appeal followed.
1. Whether the district court erred in denying the appellant's motion to suppress evidence discovered by a private party;
2. Whether the court erred in ruling that the government could impeach the appellant with a prior conviction; and
3. Whether the district court erred in refusing to give appellant's proposed
jury instruction, giving a coconspirator instruction instead.
When the companies from which Hood had acquired the building materials became aware that they were victims of a fraudulent scheme, they began efforts to locate the appellant and his son. Gilbert Firth, president of one of the defrauded companies, undertook efforts to recover materials which his company had sold to the appellant. As a result of his efforts, Firth discovered records in an abandoned office previously occupied by Hood. He turned the records over to FBI agents who were conducting a criminal investigation.
Hood filed a motion to suppress claiming the evidence was the product of a warrantless search sanctioned and encouraged by the FBI. The district court denied the motion, stating:
[T]he FBI had absolutely nothing to do with any of those searches. They did not encourage Mr. Firth to make those searches; they didn't direct him to. They had no prior knowledge that he was conducting those searches, and at the time he was not acting as an agent of the FBI.
* * *
* * *
[T]here is nothing wrong with a private citizen turning information over to the government * * * once that information comes into the hands of a private citizen.
In conclusion, I find that all the material which Mr. Firth turned over to the government was material which he obtained as a private citizen in pursuit of his own efforts to collect the debts that he thought were owing to his company; that none of the information was obtained by or at the direction of the FBI or the United States Attorney's Office.
In United States v. McGlynn, 671 F.2d 1140 (8th Cir.1982), this court held that "a district court's determinations, made in the context of a motion to suppress, * * * are to be reviewed under the 'clearly erroneous' standard." Id. at 1143. Here the district court specifically found that Firth was not acting as an "agent" for the FBI. The record clearly supports this determination. Accordingly, the court's findings will not be disturbed. Id. at 1143. Absent governmental involvement, suppression is not required. See United States v. Wedelstedt, 589 F.2d 339, 346 (8th Cir.1978). 2
Hood filed a motion in limine to prevent the government from using a prior conviction involving the same type of scheme to impeach him. The district court found the conviction to be within the limits set forth in FED.R.EVID. 609(a). The court specifically found that the probative value of admitting the prior conviction outweighed the potential prejudice; therefore, the motion was denied.
A defendant is not entitled to an advance determination of the scope of cross-examination concerning prior convictions before he takes the stand. See United States v. Key, 717 F.2d 1206, 1208 (8th Cir.1983). The better practice is for the trial court to make an on-the-record finding that the test weighs in favor of, or against, the admission of the prior conviction. Id. Id. at 1209. As stated above, the district court specifically determined that the impeachment material was within the confines of FED.R.EVID. 609(a). There being no abuse of discretion shown regarding this determination, the conviction was properly admissible. See United States v. Moore, 735 F.2d 289, 293 (8th Cir.1984).
Prior to instructing the jury, the district court provided both parties with a copy of the jury instructions for their review. An accomplice instruction was not included. Appellant's counsel, at the time of his objections, did not mention the absence of such an instruction. After the court instructed the jury, and counsel presented final arguments, the following colloquy occurred:
(Bench conference concluded.)
THE COURT: Ladies and gentlemen, we have a little problem. We had one instruction which was inadvertently omitted * * *.
The court went on to give what amounted to a coconspirator instruction rather than an accomplice instruction. 3 Appellant claims this error required that he be afforded a new trial.
It is well established that a defendant is entitled to an instruction if "a timely request is made, the evidence supports the proffered instruction, and the instruction correctly states the law." United States v. Lewis, 718 F.2d 883, 885 (8th Cir.1983). In this case the request was not timely; it also incorrectly stated the law. The proffered instruction stated: "A person cannot be convicted of a felony upon the uncorroborated testimony of an accomplice." However, evidence corroborating the testimony of an accomplice is not essential to sustain a conviction. See United States v. Cady, 495 F.2d 742, 745 & n. 1 and 2 (8th Cir.1974). Furthermore, where there is significant corroborating evidence, an accomplice instruction is not required. See United States v. Holt, 427 F.2d 1114 1117-18 (8th Cir.1970). The request was not timely, nor did the instruction correctly state the law, accordingly, failure to include an accomplice instruction is not reversible error in this case.
The court erred in giving the coconspirator instruction, but this error was...
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Allen v. State
...if a timely request is made, the evidence supports the proffered instruction, and the instruction correctly states the law. U.S. v. Hood, 748 F.2d 439 (8th Cir.1984). Based upon these principles, we hold that it was error to refuse the lesser included offense instruction. Although there was......
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Jones v. Jones, 91-2675
...the issue he now wishes to argue. While an explicit finding as to admissibility is obviously desirable, see, e.g., United States v. Hood, 748 F.2d 439, 441 (8th Cir. 1984), we think that the objecting party is obligated to call the necessity of balancing to the attention of the trial judge ......