U.S. v. Garland, 92-3566

• Decision Date: 19 April 1993
• Docket Number: No. 92-3566,92-3566
• Citation: 991 F.2d 328
• Parties: 37 Fed. R. Evid. Serv. 711 UNITED STATES of America, Plaintiff-Appellee, v. William Howard GARLAND, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 328

991 F.2d 328

37 Fed. R. Evid. Serv. 711

UNITED STATES of America, Plaintiff-Appellee, v. William Howard GARLAND, Defendant-Appellant.

No. 92-3566.

United States Court of Appeals, Sixth Circuit.

Argued Jan. 29, 1993.

Decided April 19, 1993.

Randall E. Yontz (argued and briefed), Office of the U.S. Atty., Columbus, OH, for plaintiff-appellee.

Samuel B. Weiner, Max Kravitz, Columbus, OH, Ramsey Clark (argued and briefed), New York City, for defendant-appellant.

Before: MERRITT, Chief Judge; and GUY and NELSON, Circuit Judges.

MERRITT, Chief Judge.

Defendant, William Howard Garland, appeals his conviction on one count of interstate fraud arising from what he claims was a failed attempt to purchase 5000 metric tons of cocoa beans from Ghana, West Africa. ¹ He borrowed $75,000. Garland was indicted and tried on the theory that he had fabricated the cocoa deal and had defrauded the lender by representing that he needed the $75,000 to complete the cocoa shipment to the United States. The Department of Justice did not investigate the facts of the case in Ghana to verify Garland's story prior to seeking the indictment.

In his defense, Garland testified at trial that he thought he had a legitimate and highly profitable cocoa deal but was defrauded by Ghanian sellers who claimed to represent the Ghana Cocoa Board. Other than Garland's own testimony, there was little evidence presented to the jury in corroboration of his defense. The District Court did not allow a Ghanian police investigator to give testimony in corroboration of Garland's story. New evidence now corroborates Garland's story that he was defrauded and that he did borrow the $75,000 for the purpose of completing the cocoa transaction.

The primary issue we address on appeal is whether evidence discovered after the trial provides sufficient support for Garland's defense to qualify as "newly discovered evidence" under Fed.R.Crim.P. 33. ² This question, in turn, depends in part on another question: whether a subsequent criminal judgment rendered by the National Public Tribunal of Ghana is subject to judicial notice and admissible in evidence. Both questions should be answered in the affirmative. The subsequent testimony of Tre Anatole, one of Garland's African associates, together with the judgment of the National Public Tribunal of Ghana convicting the Ghanian sellers of fraud against Garland, would likely have resulted in an acquittal had they been presented to the jury. Both pieces of evidence qualify as newly discovered evidence. The conviction should therefore be vacated and the case remanded for further proceedings.

I.

William Howard Garland is a Columbus, Ohio, businessman who normally buys and sells heavy machine tools and construction equipment. Garland engaged in business in several countries in West Africa and established an office in Abidjan in the Ivory Coast where a sometime associate, Henri Banchi, conducted business. In July 1986, Garland says that he and Banchi negotiated to purchase 5000 tons of cocoa beans from a Ghanian group that claimed to represent the Ghana Cocoa Board. Garland made a trip to Ghana, whose major export is cocoa beans. He met with the cocoa bean sellers to discuss the 5000 ton transaction, and he and Banchi together invested $400,000 to pay for processing, transporting and loading the cocoa. A New York company, which had received a letter of credit from Chase Manhattan Bank, agreed to purchase the cocoa.

Garland says that he had exhausted his own funds when the cocoa sellers contacted him with the news that they needed $50,000 immediately to have the cocoa loaded onto the ship which was ready to leave. Through a friend, Garland located Raymond Pasco, who had recently sold a business and had access to cash. On August 22, 1986, Pasco went to Garland's house where Garland convinced him to invest $75,000, promising that he would receive back $175,000 just over a month later on September 30 when the sale was completed. Garland testified that he thought he could promise such an enormous profit in such a short time because of the eagerness of the Ghana Cocoa Board to open up markets in the United States. Garland claims that the Cocoa Board discounted the cocoa beans so that his share of the profits alone would have been $500,000. His desire to save the deal, he claims, made him willing to offer a high rate of return to induce Pasco to lend the money immediately so the cocoa beans could be shipped. Garland showed Pasco seven documents that he had received from the sellers which contained the details of the transaction.

Garland sent a check for $45,000 to the Ghanian sellers and had the other $5,000 sent from his Ivory Coast offices. At oral argument, Garland's counsel explained that Garland borrowed $75,000 rather than just the $50,000 he needed for shipping because he had exhausted his funds and needed money to cover his extensive travel expense in connection with the cocoa transaction. Garland made several trips to Africa and went to the Netherlands to meet the ship. Garland's cocoa was not on the ship, and in October 1986, when there was still no cocoa delivery, Garland filed a complaint against the sellers in Ghana. Pasco and Garland later entered into a settlement agreement concerning the debt.

The jury obviously believed the prosecution's theory that Garland's story of a cocoa deal in Ghana was an exotic tropical tale of intrigue designed to defraud. It returned a conviction on the single-count indictment against Garland charging him with sending a $45,000 check which was obtained by fraud through interstate commerce. At trial the prosecutor took the position before the jury that the cocoa deal was a complete fabrication, ³ although on appeal the prosecutor admitted that the Department of Justice had not conducted an overseas investigation of the accuracy of the facts which Garland asserts. Five months after the convictions, the District Court held a hearing at which the defense was allowed to present evidence to support its motion for a new trial and for judgment of acquittal notwithstanding the jury verdict. At the evidentiary hearing, the defense presented witnesses including Tre Anatole, a French speaking West African who was employed by Garland and Banchi in connection with the cocoa transaction. Anatole's testimony supported the defense's claims. ⁴ He testified that he had delivered a $45,000 check from Garland to the cocoa sellers and testified in detail concerning the formation of the cocoa contract in Ghana. The defense also presented Barry Wilford, Garland's attorney during the trial, who testified that he attempted, but was unable to obtain Tre Anatole's appearance at the trial. Anatole testified that he had been in Cameroon, in Central Africa, at the time of the trial. The District Court, holding that this additional evidence corroborating the defendant's story was not "newly discovered" evidence, denied the motion for a new trial, and sentenced the defendant to two years in prison. Defendant brought this appeal.

On December 16, 1992, while this appeal was pending, the National Public Tribunal of Ghana issued a judgment convicting two Ghanians of defrauding Garland of $200,000 by making false representations concerning the cocoa bean transaction. This judgment contains a 19-page recitation of the facts of the case which corroborate the defendant's claims. ⁵

II.

The Ghanian judgment is admissible in evidence to prove that it was rendered and as prima facie evidence of the facts adjudicated. The defendant has made a formal request for judicial notice of the judgment under Fed.R.Evid. 201, and the prosecution has not objected, nor has it suggested that the findings of fact by the Ghanian tribunal are wrong, although it still maintains that the conviction should be affirmed. Rule 201 applies to judicial notice of "adjudicative facts." Fed.R.Evid. 201(a). We judicially notice the criminal judgment in Ghana and its existence as an official statement usable in evidence of the facts stated. We do not judicially notice the truth of the statements contained in the Ghana judgment because some of these facts may remain in dispute. C.f. Ackermann v. Levine, 788 F.2d 830, 844 (2d Cir.1986) (stating that "courts are not limited to recognizing a [foreign] judgment entirely or not at all," and that courts may recognize discrete components of a foreign judgment). What is not in dispute between the parties is the existence of the judgment and the fact that the Ghana criminal court has made detailed findings of fact on issues relevant to the case at hand.

This ruling fits comfortably within the principles (1) that in criminal cases, the parties may contest facts judicially noticed, ⁶ (2) that official statements of facts may be judicially noticed even though the truth of statements therein is not noticed, ⁷ and (3) foreign judgments, documents and records of "regularly conducted activity" may be used in evidence in criminal cases. 18 U.S.C. §§ 3491, 3505. ⁸ The content of the proposition to be noticed is limited to the existence of detailed official findings of fact by the court in Ghana, findings which are relevant to the defendant's claim of no intent to defraud.

Ennis v. Smith, 55 U.S. (14 How.) 400, 429-30, 14 L.Ed. 472 (1852) is a case in point. It holds that a federal court, after judicially noticing the existence of a foreign judgment, may conclude that the family relationships found by the foreign tribunal should guide the federal court in determining the outcome of a will contest. There the Congress in 1798 granted a substantial sum for wartime service to General Kosciusko, the Polish Revolutionary War hero. The money was held and invested by the General's friend, Thomas Jefferson, until 1817 when the General died in France. Jefferson then turned the money over to the Attorney General, and much later a will contest ensued between Kosciusko's next of kin in Lithuania (part of Poland when...