U.S. v. Day

• Citation: 830 F.2d 1099
• Decision Date: 05 October 1987
• Docket Number: Nos. 86-2313,86-2430 and 86-2433,s. 86-2313
• Parties: 23 Fed. R. Evid. Serv. 1271 UNITED STATES of America, Plaintiff-Appellee, v. Franklin Andrew DAY, Charles Leroy Jones, and John Watie Bias, Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

Page 1099

830 F.2d 1099

23 Fed. R. Evid. Serv. 1271

UNITED STATES of America, Plaintiff-Appellee, v. Franklin Andrew DAY, Charles Leroy Jones, and John Watie Bias, Defendants-Appellants.

Nos. 86-2313, 86-2430 and 86-2433.

United States Court of Appeals Tenth Circuit.

Oct. 5, 1987.

Sheldon J. Sperling, Asst. U.S. Atty. (Roger Hilfiger, U.S. Atty., with him on briefs), Muskogee, Okl., for plaintiff-appellee.

S. Daniel George, Sallisaw, Okl., and Mark Green of Green and Green, Muskogee, Okl. (Bruce Green of Green and Green, Muskogee, Okl., Richard A. Pyle, Eufaula, Okl., with him on briefs), for defendants-appellants.

Before HOLLOWAY, Chief Judge, BARRETT, Circuit Judge, and CONWAY, ^* District Judge.

BARRETT, Circuit Judge.

The defendants, Day, Jones and Bias, appeal from a jury conviction, following a six-day trial, of charges of conspiracy, fraud by wire and mail, and interstate travel in aid of racketeering enterprises, all in violation of 18 U.S.C. Secs. 2, 371, 1952, 1343 and 1341. The fraudulent scheme involved arson of defendant Day's home and its contents at Roland, Oklahoma, and the subsequent claim by Day for money through insurance policies issued against property losses resulting from the fire. Day collected some $90,000 from his insurance company on the losses about a year and one-half following the arson.

Day, a former prosecutor and city attorney, was practicing law at Roland, Oklahoma, in 1983, when hard times fell upon his practice and his marriage. Day borrowed $3,000 from one Sherman McKeehee, a Muldrow, Oklahoma, businessman, to be repaid in the amount of $6,000. At that time, Day was living in his law office. Thereafter, McKeehee pressed Day for repayment of the loan. In June of 1984, Day contacted one Ernie Vaughn, former Chief of Police of Roland, and a fifteen year law enforcement official, to arrange the arson of his (Day's) home. Vaughn, in turn, contacted one James Clark and by subsequent contacts defendants Jones and Bias joined the conspiracy. At the time of trial, Vaughn had pled guilty to charges arising out of the Day arson scheme and was serving a sentence. He testified at trial under a plea agreement. The same was true of witness Herman Wheeler. The defendants each testified in their own defense. Sherman McKeehee testified. He had not been charged by the government and no promises had been made to him by the government. The testimony conflicted sharply.

Day denied any contacts with anyone to commit arson or to defraud. Defendants Jones and Bias denied any connection with the arson. Sherman McKeehee, while denying any connection with the scheme, nevertheless testified that after he made the cash $3,000 loan to Day and while leaving Day's private office, he saw Ernie Vaughn in Day's waiting room and that Vaughn told him he would get his money back because he (Vaughn) was going to burn Day's home. (R., Vol. V, p. 436). McKeehee said that he made the loan on a two-for-one repayment basis on the recommendation of Vaughn, id. at 439, 440, and that Day had informed him that Ernie and Pat Vaughn were "pressuring" Day to burn his home. Id. at 464, 465. Herman Wheeler, serving a sentence for the subject arson at the time of the trial in this case, testified under a plea agreement. Id. at 317. He stated that Day hired him, Ernie Vaughn and Mike Cleery, Chief of Police of Roland, to burn the Day home for $10,000 to be divided three ways. Id. at 292. Wheeler testified that McKeehee was afraid that Day wasn't going to burn his home and that he wasn't going to get his money back. Id. at 296. McKeehee was repaid by Day in the amount of $6,000 about a year and one-half after the loan was made and after Day had collected some $90,000 of insurance proceeds. In addition, Day repaid loans owing to Roland businessman, A.B. Wilson, in the amount of $7,500 from the insurance proceeds. (R., Vol. VII, pp. 1034-36).

This appeal does not challenge the sufficiency of the evidence. The sole issue presented is whether the trial court abused its discretion in denying appellants' motion for mistrial based upon improper jury contact involving a brief conversation which occurred during a trial recess in a restroom between the government's main investigator and witness, FBI Agent Harry Fender and a juror with whom he was acquainted. Before reaching this issue, we observe that our review of the entire trial record leads us to conclude that the evidence of guilt was overwhelming.

FBI Agent Fender was seated at the government counsel's table throughout the trial. Immediately before a tape recording was played to the jury, identified and admitted in evidence as Government's Exhibit No. 30, the court called a recess and instructed the jury not to discuss any matter with anyone or to make any independent investigations. (R., Vol. V, pp. 433, 444). During the short recess, Agent Fender proceeded to a restroom where several jurors and appellant Day were also present. One of the jurors, with whom Agent Fender was acquainted, made some comment to Agent Fender. Agent Fender testified that the following conversation occurred:

AGENT FENDER: Well, I said "How are you holding up?" He said, getting sleepy or something to that effect. And I said, "Well, this may put you to sleep," or something like that. (Id. at 445-46).

There is no dispute about the nature of the remarks. Appellant Day testified that he overheard the conversation, and his account of the conversation was very similar to that recalled by Agent Fender. (R., Vol. III, p. 13). Day reported this conversation to his attorney who in turn moved for a mistrial, joined by co-defendants Bias and Jones, based upon improper juror contact by Agent Fender. (R., Vol. V, p. 445). Thereafter, the trial court conducted a hearing on the motion for mistrial in the courtroom out of the hearing of the jury. After Agent Fender testified about his conversation with a juror, the following transpired:

THE COURT: Well, what in the world are you doing talking to a juror?

AGENT FENDER: Sir, when I first said something to him, I'm not sure I was aware that he was a juror. He made a comment to me.

THE COURT: Well, you have been sitting right there. You are facing the jury.

AGENT FENDER: Yes, sir.

THE COURT: You can look at the jury. You see them walk in and out of here, and you ought to know who's a juror. They got on juror buttons. I believe everyone of them has on a juror button.

AGENT FENDER: Yes, they do, sir. Obviously, I meant no malicious intent by this comment.

THE COURT: Well, did you mean to influence them by being nice to them and congenial, and that sort of thing? Just kind of pass--you said you were passing the time of day. I suppose that is what you would do with somebody you mean to be nice to.

AGENT FENDER: Your Honor, I guess I'm nice to everyone. But I wasn't trying to carry on a discussion. And I certainly wasn't trying to influence him in any way. And I really owe--

THE COURT: How long have you been an FBI agent?

AGENT FENDER: Seventeen and a half years, sir.

THE COURT: That is what I thought. That is the reason I can't imagine you doing it. I don't think there has been any harm here, but--

AGENT FENDER: Sir, I regret the--that it happened. I certainly meant no harm. I was not trying to influence any juror as to the outcome of this trial or do anything else malicious.

THE COURT: Well, I just don't--you just don't have any business having any conversation with any juror.

AGENT FENDER: Yes, sir.

THE COURT: About anything.

* * *

* * *

THE COURT: I don't think there has been any harm. Any record you want to make? Thank you, sir. You can have a seat.

MR. GREEN (Counsel for Appellant Day): Your Honor, I move for a mistrial, the record is made. The harm is evidence just from the contact with the juror.

MR. PYLE (Counsel for Appellant Jones and Bias): Your Honor, I would renew the motion for mistrial because while Mr. Fender said he was well intended, or at least no intention of doing anything wrong, we don't know whether he has affected the thinking of that juror. We have specifically kept our clients and us away from the jurors, and yet Mr. Fender believes that he can walk in and pass the time of day and chit-chat with them. I think it is fundamentally wrong for the government to have done that, and with the experience he has got, he knows better than that. If I were to exchange a word with them, a juror out there, I would have been in trouble. And he knows that, too. Nobody knows whether he's influenced this jury or not, and we don't know that he wasn't intending to. He may have any way. I think we are entitled to have a mistrial granted.

THE COURT: Oh, I don't think so. He's repeated virtually verbatim what defendant Day says that there was. I don't see how that can be harmful at all. I just don't think the government is in any position, if their own tape puts him to sleep, any position to complain about it.

Id., pp. 446-48.

The tape recording, admitted as Government Exhibit No. 30, occurred in the office of Frank Sullivan, attorney for Sherman McKeehee. Present in addition to Sullivan, were Day and McKeehee. The recording occurred on May 27, 1986. Trial of the instant case commenced on July 17, 1986. Day had been indicted on the instant charges. McKeehee had not been charged or promised anything by the government (R., Vol. V, pp. 450-52). The trial testimony of Day and McKeehee does not contradict any statements made by either during the taped conversation. At trial, Day specifically testified that he had no dispute with the accuracy of the statements he made on the tape. (R., Vol. VII, pp. 904-05). We have listened to the tape, via earphones. At trial, it was played into an amplifying device so that it could be heard by the jury. This did not work out very satisfactorily, however. A juror remarked "I can't understand it" and the court responded "I can't either, I can't understand very much of it." (R., Vol. V, p. 450). The tape was then played without...