749 F.2d 338 (6th Cir. 1984), 83-5666, United States v. Scaife
|Docket Nº:||Wayne SCAIFE (83-5666), Terrence Vessells (83-5717),|
|Citation:||749 F.2d 338|
|Party Name:||UNITED STATES of America, Plaintiff-Appellee, v.|
|Case Date:||November 29, 1984|
|Court:||United States Courts of Appeals, Court of Appeals for the Sixth Circuit|
Argued Aug. 2, 1984.
Rehearing and Rehearing En Banc Denied Jan. 21, 1985.
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[Copyrighted Material Omitted]
Mike Etoch (argued), Helena, Ark., James P. Diamond, Jackson, Tenn., for defendant-appellant in No. 83-5666.
Edward Chandler, Memphis, Tenn., for defendant-appellant in No. 83-5717.
W. Hickman Ewing, Jr., U.S. Atty., Timothy R. DiScenza, R. Larry Brown, Asst. U.S. Atty. (argued), Memphis, Tenn., for U.S.
Before MARTIN and CONTIE, Circuit Judges, and DOWD, District Judge. [*]
CONTIE, Circuit Judge.
Terrence Vessells and Wayne Scaife appeal their criminal convictions resulting from a jury trial. Both were convicted of conspiracy to violate the Hobbs Act, see 18 U.S.C. Sec. 1951 (Count I), and of aiding and abetting the unlawful possession of firearms during the commission of a felony, see 18 U.S.C. Secs. 2 and 924(c)(2) (Count II). Moreover, Vessells was convicted of knowingly attempting to use intimidation or physical force with intent to cause a person to be absent from an official proceeding to which such person had been summoned and to hinder, delay or prevent communication to a law enforcement officer of information relating to the commission or possible commission of a federal crime, see 18 U.S.C. Sec. 1512 (Count III). Vessells raises ten assignments of error, five of which are also asserted by Scaife. For the reasons set forth below, we reverse the convictions of both defendants on Count II and affirm the other convictions.
Viewed in the light most favorable to the government, the evidence introduced at trial showed that Vessells telephoned Stidman in Memphis on January 1, 1983 and asked him to travel to Vessells' home in Helena, Arkansas in order to discuss business. Stidman did so the next day and the two discussed robbing a fur store in Elaine, Arkansas with which defendant Scaife was familiar. Later that day, Vessells, Stidman and Scaife met at the latter's home to plan the robbery of the fur store and of Foote's General Store in Ferguson, Arkansas. The three men agreed that Stidman would return to Memphis and contact Johnson. Johnson would then contact Ricky Jones and Anthony Armstrong, both of whom had previously helped Johnson commit a burglary. Unknown to anyone, Jones and Armstrong had since become FBI informants. After speaking to Johnson, Jones and Armstrong informed FBI Agent Young of the impending robberies on January 3.
On January 4, Scaife informed Vessells and Stidman that the fur store robbery would have to be postponed because a refrigerator truck in which to transport the furs had not been obtained. The three men agreed to proceed with robbing the general store. Johnson contacted Jones and Armstrong that evening, gave them money and told them to be ready the next morning.
On January 5, Jones called Stidman's home from the Memphis FBI office and talked to Johnson. Jones said that he would recruit Hosea Moore to help with the robbery. The conversation established that the robbery was to occur ninety miles from Memphis, that a shot gun and a .38 caliber pistol were to be used, and that the store owner had a large quantity of food stamps and cash on hand. After this conversation was recorded, Jones agreed to wear a body tape recorder. The FBI initiated surveillance of Jones' car with five automobiles and an airplane.
Sometime before 12:30 P.M. on January 5, Stidman drove to Vessells' home in Helena, picked up Vessells' maroon Dodge and drove it to Scaife's home. Between 12:30 P.M. and 1 P.M., Stidman telephoned Johnson from Scaife's home and stated that everything was "go".
Shortly thereafter, Johnson, Jones, Armstrong and Moore met in Memphis and proceeded to Stidman's home in Jones' car. The group placed two shotguns and two pistols in the car and then left for Helena. Upon arriving there, Johnson telephoned Vessells to determine whether Stidman had already reached Elaine. After this conversation, the group left for Elaine.
During this trip, Johnson stated that the general store might contain as much as $100,000 cash and $150,000 in illegally obtained food stamps. The owner and one or two women would be in the store. Jones, Moore and Armstrong were to enter and commit the robbery. Johnson indicated that the safe would be open but warned that the owner might have a gun beneath the cash register. Stidman and Johnson would wait outside with shotguns. Vessells and Scaife were to position themselves, armed, north and south of the store. After the robbery, everyone would meet at an abandoned church between Elaine and Ferguson to divide the money. Scaife would sell the food stamps later.
Once in Elaine, the group met Stidman. Gloves and duct tape were purchased at a nearby store. 1 Stidman and Johnson then led the way to Ferguson in Vessells' car. Jones, Armstrong and Moore followed in Jones' car. As the group assembled for the robbery at approximately 7:00 P.M., the FBI descended and arrested all five men. The FBI recovered a sawed off twenty gauge shotgun and shells, a loaded twelve gauge shotgun, a loaded .22 caliber revolver, handcuffs, gloves and duct tape. 2
Stidman and Johnson eventually pleaded guilty and agreed to testify against the defendants. Before doing so, Stidman asked the defendants to help Johnson and himself pay their attorneys. Stidman testified that the defendants agreed jointly to contribute $10,000 but Vessells denied this. Stidman further stated that Vessells threatened him during conversations occurring after the arrests. Vessells testified, however, that it was Stidman who did the threatening.
On April 1, 1983, Vessells conversed by telephone with Willie Moore, the father of Hosea Moore. The elder Moore, who faced state charges in an unrelated matter, testified that when he told Vessells that Stidman was going to testify, Vessells told Moore that he would kill Stidman. He instructed Moore to go to a pay telephone and to leave the number with his wife. Moore testified that he immediately called the FBI because he did not want to be involved in a killing. He left an FBI telephone number with his wife to give to Vessells and then went to the FBI office.
Shortly after 6:30 P.M. that evening, Vessells called Moore at the FBI number and the conversation was recorded. Throughout the discussion Vessells indicated that if Moore could get Stidman drunk and coax him to go with Moore to a pre-arranged location, then Vessells would meet them and see to it that Stidman would never testify. Vessells stated that Stidman would be taken down a one-way road, would disappear from existence and would never be found. Vessells described the operation as "getting rid of a headache."
Vessells called Moore again at the FBI office at 3:00 P.M. the next day. Vessells told Moore to get Stidman drunk and to arrive at a location outside of Tunica, Mississippi at 7:00 P.M. Vessells stated that if Stidman resisted, the two men would "knock him [Stidman] in the head." Vessells also instructed Moore to be certain that Stidman was not "wired" by his "friends" because that was how Johnson had been caught. The FBI staked out the Tunica location and arrested Vessells when he arrived in a pickup truck. Agents recovered a .380 automatic pistol, a knife and a tear gas cannister from behind the seat. They also found the FBI telephone number on Vessells' person.
Vessells and Scaife presented alibi defenses to the conspiracy and weapons charges. On the Sec. 1512 charge Vessells claimed that since Stidman had been threatening him, he was going to drive Stidman (who was married) to California in order to live with a "girl friend."
We initially consider certain pre-trial matters. Both defendants contend that the indictment should have been dismissed because the Speedy Trial Act was violated. The record shows that both defendants were arrested on April 2, 1983. Although Scaife made bail, Vessells remained incarcerated. The indictment was filed on April 12. 3 The jury was selected on June 30 and trial began on July 11.
The seventy day time limit of 18 U.S.C. Sec. 3161(c)(1) applies to both defendants. In addition, the ninety day time limit of 18 U.S.C. Sec. 3164(b) applies to Vessells because he remained incarcerated before trial. The defendants contend that these time periods ceased running on July 11, 1983 when the trial started rather than on June 30, 1983 when the jury was selected.
Under normal circumstances, a trial begins for purposes of the Act when the voir dire process begins. See United States v. Richmond, 735 F.2d 208, 211 (6th Cir.1984); United States v. Whitaker, 722 F.2d 1533, 1535 (11th Cir.1984); United States v. Howell, 719 F.2d 1258, 1262 (5th Cir.1983). Nevertheless, a district court may not attempt to evade the spirit of the Act by conducting voir dire within the statutory time limits and then ordering a prolonged recess with an intent to pay mere "lip service" to the Act's requirements. Richmond, 735 F.2d at 211. In the present case, the district judge selected the jury on June 30 and then recessed the court until July 11 so that he...
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