U.S. v. Hornung

Decision Date06 June 1988
Docket NumberNo. 86-2191,86-2191
Parties-5777, 88-2 USTC P 9615 UNITED STATES of America, Plaintiff-Appellee, v. John Oliver HORNUNG, a/k/a John O. Green, Defendant-Appellant.
CourtU.S. Court of Appeals — Tenth Circuit

Frances Smylie Brown, Asst. Federal Public Defender, Denver, Colo. (Carl Hughes and Michael McGuire, Hughes & Nelson, Oklahoma City, Okl., and John O. Green, pro se, on the briefs) for defendant-appellant.

D. Blair Watson, Asst. U.S. Atty., Oklahoma City, Okl. (William S. Price, U.S. Atty., Oklahoma City, Okl., with him on the brief), for plaintiff-appellee.

Before HOLLOWAY, Chief Judge, BARRETT and BALDOCK, Circuit Judges.

BALDOCK, Circuit Judge.

On November 6, 1985, defendant-appellant John Oliver Hornung, a/k/a John O. Green, was indicted by the grand jury of the Western District of Oklahoma. The indictment charged defendant with two counts of willfully and knowingly aiding and assisting in the preparation of a false income tax return, in violation of 26 U.S.C. Sec. 7206(2), one count of conspiring to defraud the United States by concealing taxable income, in violation of 18 U.S.C. Sec. 371, and one count of perjury before a federal grand jury, in violation of 18 U.S.C. Sec. 1623. A jury found defendant guilty of conspiracy and acquitted him on the remaining counts. The court sentenced him to a five-year term of imprisonment.

Retained counsel filed appellate briefs, but withdrew due to a conflict with defendant, who then filed a pro se supplemental brief. Appointed counsel represented defendant at oral argument. The issues 1 raised in the various briefs are 1) whether defendant should have been granted a new trial because of juror misconduct, 2) whether the district court impermissibly amended the indictment in its charge to the jury and 3) whether the court failed to comply with the Court Reporter's Act by providing an incomplete trial transcript. We affirm.

The evidence presented at trial focused primarily on the drug smuggling activities of two brothers, Robert Schaffer and Stanley Eugene Schaffer, and on the events which transpired after they were killed in a plane crash. Defendant, an attorney, prepared the Schaffers' income tax returns and represented them in the course of a criminal tax investigation. He also provided legal representation for the brothers' wives, Linda Schaffer and Donna Schaffer. Both women testified at trial on behalf of the government.

In 1982, Robert and Stanley Schaffer agreed to smuggle cocaine for Paul Gonzales, Jr. The venture involved the Schaffers flying a specially equipped plane to Columbia, South America, where they would pick up a quantity of cocaine and fly the drugs back to the United States. The initial run was made in August of 1982. Linda Schaffer testified that, in September of 1982, her husband had shown her a handwritten note in which defendant proposed that in exchange for ten percent of the anticipated $10,000,000 in proceeds from the smuggling venture, he would monitor drug enforcement and tax laws, investigate foreign banks and act as legal counsel for the group.

During the week of October 9, 1982, Robert and Linda Schaffer flew in their own plane from Oklahoma City, Oklahoma to Ft. Lauderdale, Florida. The following week, Robert and his brother were to fly from Florida to Nassau, where they would pick up an individual named Simon Frazier and the "dope plane" they would fly to Columbia. The cocaine was to be dropped by parachute over a farm in Mississippi. As planned, the Schaffers left Florida on October 16.

Two days later, Linda Schaffer was informed by Gonzales' father that the plane had crashed while the drugs were being unloaded. She immediately contacted defendant. Upon her arrival in Oklahoma City the following day, defendant told Linda that he had spoken to Gonzales and that the crash was not going to be reported. On October 21, defendant flew his helicopter to Mississippi. When he returned, he advised Linda and Donna Schaffer to file missing person reports with the Oklahoma City police. After accompanying Linda to file the report, defendant told her that he had flown with Gonzales to the crash site, where he had observed the partially burned bodies of Stanley Schaffer and Simon Frazier. Defendant explained that when they returned to the scene the following day, the two bodies had been removed and the area had been cleaned up. Parts of the plane were still visible, however, and they found Robert Schaffer's body strapped into the pilot's seat. Defendant removed a watch and keys from Robert's body, then buried it. He also removed some of the aircraft's identification numbers.

During late October and November, defendant, Gonzales and Donna and Linda Schaffer met on several occasions. They discussed setting up a trust, or alternatively procuring an insurance policy issued from the Cayman Islands, as a way to "clean up" funds accumulated from drug smuggling. Linda also spoke with Gonzales concerning payment for her husband's role in the fatal flight. Gonzales gave her $384,000 in two installments. On both occasions, she discussed the payments with defendant, who expressed his opinion that the entire load of cocaine had been dropped prior to the crash and that consequently Gonzales owed her more money.

When Linda went to Florida after Thanksgiving to retrieve the plane owned by the Schaffers, she learned that the FBI was investigating their plane. She also learned of the discovery of the site in Mississippi where the "dope plane" had crashed. Linda contacted defendant, expressing concern that her house, in which a substantial amount of currency was hidden, would be searched. On December 3, 1982, they rented, in defendant's name as trustee for Linda Schaffer, a safety deposit box at the Southwestern Bank in Oklahoma City in which they placed over half a million dollars in cash.

Linda subsequently informed defendant that her father-in-law also had a substantial amount of currency hidden at his residence. On December 22, he delivered to defendant a suitcase containing approximately $500,000 in cash. Defendant, accompanied by his grandmother and Linda Schaffer, drove to the Oklahoma City National Bank, where they added Linda's name to his grandmother's two safety deposit boxes. Defendant placed the cash in the boxes.

On January 5, 1983, Linda Schaffer, represented by defendant, appeared before a federal grand jury. About a week later, defendant and Linda met to discuss the funds placed in the safety deposit boxes. Defendant stated that he was uncomfortable with the situation and wanted to take the money in the Southwestern Bank to Dallas, Texas. Defendant removed the cash, giving Linda over $40,000 and placing the remaining currency in a safety deposit box in Chandler, Oklahoma. When defendant delivered the $40,000 to Linda, he told her that the funds in the Oklahoma City National Bank also should be moved out of the state. Linda refused to give him the keys to the two safety deposit boxes.

In late January, defendant left for Texas, eventually settling in Austin. He took with him a portion of the funds he had placed in the safety deposit box in Chandler. In May, he went back to Chandler and removed the remaining cash. Defendant returned to Austin, where he bought a home, as well as several vehicles and other personal property, and had his name legally changed. He lived in Austin until he was arrested there in August of 1985.

I.

Defendant first contends that the trial court should have granted his motion for a new trial premised in part on an improper third-party contact with a juror. He argues that the extraneous contact was so prejudicial, particularly in light of his acquittal on three of the counts charged, that it could not be considered harmless.

On May 16, 1986, two days after the completion of defendant's trial, government counsel received a telephone call from one of the jurors, Louis Curry. Curry related that during the trial, he had been involved in a conversation outside the courtroom concerning defendant and Stanley Schaffer. Counsel immediately informed the trial judge, who granted permission to secure an affidavit from Curry.

Curry indicated in his affidavit that while conducting some routine business at his bank in Norman, Oklahoma, he conversed with a bank officer, Mary Downing. In response to Downing's question concerning her inability to contact him about his certificate of deposit, Curry told her that he had been serving on a jury. Downing volunteered that she was familiar with defendant because he had come into "the bank with Gene Schaffer and [had] attempted to 'launder' $6,000.00." Rec. vol. I, doc. 192, ex. A at 2. She then related that defendant and Schaffer had attempted to purchase a cashier's check in that amount and that defendant became upset when Downing refused to issue the check. Curry further indicated in his affidavit that the information imparted by Downing in the course of the one-minute conversation was unsolicited and that he discussed the conversation with a fellow juror, later identified as Stephen Detjen. Id. at 3-4.

On June 23, 1986, the trial court conducted a hearing "to determine whether possible juror misconduct occurred as alleged and, if so, whether it was prejudicial to the Defendant." Rec. vol. I, doc. 210 at 1. At the hearing, Curry was questioned about his conversation with the bank officer. A second hearing was held on July 8, at which time Detjen testified about the information related to him by Curry. In its order denying defendant's motion for a new trial, the court stated that when viewed in the light most favorable to defendant, "the communication was arguably about the matter before the jury" and would "be treated as 'presumptively prejudicial.' " Id. at 3. The court determined, however, that the presumption was rebutted by the "overwhelming evidence" of defendant's guilt. Id. at 5.

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