948 F.2d 145 (5th Cir. 1991), 90-1110, United States v. Winn

Docket Nº:90-1110.
Citation:948 F.2d 145
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Newton Alfred WINN, Defendant-Appellant.
Case Date:November 20, 1991
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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948 F.2d 145 (5th Cir. 1991)

UNITED STATES of America, Plaintiff-Appellee,

v.

Newton Alfred WINN, Defendant-Appellant.

No. 90-1110.

United States Court of Appeals, Fifth Circuit

November 20, 1991

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[Copyrighted Material Omitted]

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Prof. Bruce Rogow, Fort Lauderdale, Fla., for defendant-appellant.

James B. Tucker, Asst. U.S. Atty., George Phillips, U.S. Atty., Jackson, Fla., for plaintiff-appellee.

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

Before DAVIS and BARKSDALE, Circuit Judges and SCHWARTZ, 1 District Judge.

CHARLES SCHWARTZ, Jr., District Judge:

A jury convicted Newton Alfred Winn on all counts of a three count indictment, to wit: (1) Count I charged conspiracy to kidnap and hold for ransom Mrs. Annie Laurie Hearin in violation of 18 U.S.C. § 1201(c); (2) Count II charged mailing a threatening communication in violation of 18 U.S.C. § 876; and (3) Count III charged perjury before a grand jury in violation of 18 U.S.C. § 1623. Both the acts of having the ransom note mailed (Count II) and committing perjury before the grand jury (Count III) are alleged to have occurred during the pendency of the conspiracy.

Winn raises five arguments on appeal. First, he contends that the district court erred in denying his motion for judgment of acquittal because the evidence failed to prove a conspiracy. His second contention concerns the use of summary charts of trial testimony at trial, their introduction into evidence and submission to the jury as an evidentiary exhibit allegedly in violation of Rule 1006 of the Federal Rules of Evidence, thus denying him a fair trial. The third assignment of error focuses on the district court's remark to the jury during instructions on the law that the jury should "seek the truth." Essentially, the argument is that such instruction distorted the duty of the jury to find guilt beyond a reasonable doubt. Fourth, the defendant complains that the district court erred in denying his motion to sever the conspiracy and mailing charges because the joinder of the perjury charge permitted the jury to bolster and cumulate evidence. The final assignment of error is in regard to the imposition of a two-level upward adjustment for obstruction of justice to the sentence.

Finding no error, we affirm Winn's conviction and sentence for all of the following reasons.

I. FACTS AND PROCEDURAL HISTORY

A. The Kidnapping and the Ransom Note

On July 26, 1988, 72-year old Annie Laurie Hearin, 2 wife of Robert M. Hearin, was kidnapped from their Jackson, Mississippi home. Mrs. Hearin had hosted a bridge club party at her home which ended around 3:00 p.m. Later that afternoon around 4:30 p.m., Mr. Hearin returned home and went upstairs to rest. About an hour later, he went back downstairs and sought to determine the whereabouts of his wife. Unable to find her and thinking she must be with their daughter, he called their daughter's home. When his son-in-law answered the phone and informed him that his daughter was out of town, he asked his son-in-law to come over.

While continuing the search for Mrs. Hearin, her son-in-law discovered a ransom note on the floor of the entry hall. The ransom note directed Mr. Hearin not to contact the police and to pay money to a series of individuals otherwise unknown to him. 3 The name of the defendant, Alfred

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Newton Winn, was included on the list. The ransom note further indicated that all the named individuals on the ransom note had financial trouble with School Pictures, Inc., a business in which Robert Hearin had a substantial financial interest. (Tr. at 107-17.) Mr. Hearin and his son-in-law called the police and reported Mrs. Hearin missing and further informed the authorities that her necessary medication could not be found in the house. During their investigation, the police found and collected samples of blood from the front door of the Hearin's home. (Tr. at 176, 203-06, 209-11.) Analysis determined the blood to be Type A (Tr. at 229), the same type as Mrs. Hearin's. (Ex. G-34, No. 5.) 4 As part of the investigation as to her whereabouts, the police, and later the Federal Bureau of Investigation ("FBI"), investigated the persons listed in the ransom note.

B. Ward's Lie

Defendant Newton Alfred Winn, a St. Petersburg attorney, was one of those listed on the ransom note 5 left at the Hearin home on the date of the kidnapping and was a possible suspect early on in the investigation. In his initial questioning by the authorities as to his whereabouts on the date of the kidnapping, Winn denied being in Jackson. On July 29th, after discussions with his attorney and agents of the FBI, Winn asked Don Ward, his paralegal, to corroborate his alibi that Ward personally observed him in Florida on July 26th. (Tr. at 319-20, 370-80, 429.) The alibi, as told by Ward, was that Winn had telephoned him on July 26th about 6:00 to 6:30 p.m. asking him to bring $100.00 to a St. Petersburg bar, and upon going to the bar Ward found Winn outside the bar intoxicated and with a black prostitute. (Tr. at 315, 374-76.) As instructed by Winn, Ward related this fabrication to FBI agents prior to the issuance of a subpoena for Winn to appear on August 3, 1988 for testimony before a federal grand jury in Mississippi which was investigating the kidnapping. (Tr. at 429, 972-73.) Ward also repeated this lie on August 1st in a sworn statement given to and notarized by an investigator for Winn's attorney at the time (Joe Donahey). (Tr. at 371-76.) (Exhibit D-24.)

C. The Grand Jury Hearings

On August 3, 1988, seven days after Mrs. Hearin's kidnapping, 6 Winn appeared before a grand jury of the Southern District of Mississippi. Winn denied knowing anything about the kidnapping in those grand jury proceedings. 7

On August 16th and 17th, 1988, Ward testified before the grand jury in the Middle District of Florida and denied knowing anything about the kidnapping. (Tr. at 315-16.) In the Florida grand jury proceeding, Ward, as per Winn's earlier instructions, repeated the fabricated alibi

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(i.e., that he [Ward] saw Winn in St. Petersburg, Florida with a prostitute on the date of Mrs. Hearin's kidnapping).

D. The Second Letter and Marilyn Taylor 8

On August 15th, Mr. Hearin received an envelope bearing the postmark "Atlanta, Georgia, August 12th" enclosing a letter dated August 10th, both of which were in his wife's (Mrs. Hearin's) handwriting. (Tr. at 124-28.) In the letter, Mrs. Hearin essentially pleaded with her husband to cooperate with her kidnappers (i.e. "these people") or else they would seal her up in a cellar. 9

The following day, after determining the amount of the School Pictures suits against the people named in the original ransom note, Mr. Hearin sent checks to each, including one to Winn for $145,000. Winn or his attorney returned the check ten days later. (Tr. at 128-29.)

Marilyn Taylor, a one-time girlfriend of Winn, testified 10 that on July 31, 1988, five days after Mrs. Hearin's kidnapping, Winn contacted her and told her that he might need her to do a favor for him. Soon thereafter, on August 2nd or 3rd, Winn called Marilyn and inquired as to whether she was "trustworthy." He further indicated that he would be contacting her later in the week. 11 Winn in fact called Marilyn Taylor again on August 4th. After indicating that he did not want anyone to see them together, he set up a meeting with Marilyn on Saturday, August 6th at 7:30 a.m. behind the Quality Inn in Deland, Florida.

At the August 6th meeting, Winn cautiously approached Marilyn Taylor's car. After getting in the car, Winn took a pen and paper out of his pocket and wrote, "Were you followed?" Ms. Taylor responded by shaking her head, indicating her answer, "No." Winn then wrote, "Is your car bugged?" to which Ms. Taylor once again responded negatively. Winn then crumpled up the piece of paper and placed it in his pocket.

Winn then proceeded to tell Taylor that he wanted her to mail a letter for him from a place at least one day's drive out of Florida on August 9th, 10th or 11th, preferably August 10th, but no later than the 11th. After mutually deciding that instead of driving out of the state of Florida she would fly, they further agreed that she (Taylor) would fly to Atlanta International Airport.

Marilyn further testified that Winn then instructed her: (1) to fly under an assumed name; (2) to pay cash for her tickets; (3) to buy a one-way ticket to Atlanta; and (4) thereafter, to purchase a one-way ticket to return. Winn also told her he would prefer that she fly from one Florida airport to Atlanta and return from Atlanta to a different airport in Florida from which she could then take a shuttle back to the car she had initially taken to the airport. Winn instructed her not to take her own car (a four wheel drive station wagon) to the airport for the reason that it was too noticeable and that instead she should drive someone else's car to the airport. Upon arriving in Atlanta, she was not to ask for directions or talk to anyone; was not to take a cab, but instead, was to take mass transportation to a downtown post office; was not to mail the letter in a low volume post office or at a drop box, or at the airport or near the airport. Winn's final instructions included that to avoid detection, Taylor was to change her clothes and her appearance upon arrival at the Atlanta airport.

At the conclusion of their August 6th rendezvous, Winn proceeded to put on surgical

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gloves and take a manila business envelope out of his coat. He informed Ms. Taylor that the actual envelope to be mailed was inside the manila envelope and wrapped in a cloth napkin. Winn gave her explicit orders that: (1) she was absolutely not to look at the face of the envelope; and (2) she was to dispose of the napkin and manila envelope, preferably at the Atlanta airport, or in a public place...

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