Beatty v. United States

• Decision Date: 12 June 1967
• Docket Number: No. 23226.,23226.
• Parties: Donald Croom BEATTY, Jr., Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

377 F.2d 181 (1967)

Donald Croom BEATTY, Jr., Appellant, v. UNITED STATES of America, Appellee.

No. 23226.

United States Court of Appeals Fifth Circuit.

May 2, 1967.

Rehearing Denied June 12, 1967.

COPYRIGHT MATERIAL OMITTED

L. Drew Redden, Ralph E. Coleman, Rogers, Howard, Redden & Mills, Birmingham, Ala., for appellant.

R. Macey Taylor, Asst. U. S. Atty., Birmingham, Ala., Macon L. Weaver, U. S. Atty., N. D. of Alabama, Henry C. Stockell, Jr., Regional Counsel, of counsel. Arnold S. Yorra, Atty., Internal Revenue Service, Atlanta, Ga., on the brief, for plaintiff-appellee.

Before GEWIN and AINSWORTH, Circuit Judges, and HUNTER, District Judge.

GEWIN, Circuit Judge:

Donald Croom Beatty, Jr. was found guilty by a jury in the United States District Court for the Northern District of Alabama on June 23, 1965, on two counts¹ for the possession of a submachine gun upon which taxes imposed by law had not been paid and the unlawful transfer of the gun without having obtained a written order from the person to whom the sale was made in violation of the National Firearms Act, 26 U.S.C. §§ 5851 and 5814(a). He was committed to the custody of the Attorney General for imprisonment, observation and study as provided in 18 U.S.C. § 4208(b), or until otherwise discharged as provided by law. Beatty appeals from this conviction and we affirm.

Among those testifying at the trial, two government witnesses, Gene P. McGinnis, an Alcohol and Tobacco Tax Division Agent (ATU), and Frank Kenneth Sirles,² an informer for the ATU, gave testimony regarding the sale of a Russian machine gun by appellant to Sirles. The two witnesses also gave testimony concerning a post-indictment conversation between appellant and Sirles regarding the above sale.

Sirles, employed by the Homewood Printing Co.,³ had known appellant for over a year and had purchased several guns from appellant, who owned and operated the Modern Gun Shop. Sirles testified that in the early part of December, 1964, under the direction of the ATU he negotiated with appellant for the purchase of two Beretta machine guns. Sirles reported these negotiations to agent McGinnis⁴ and when Sirles went to appellant's store to complete the transaction on December 7, 1964, he was equipped with a shortwave radio pinned to his T-shirt with a small receiving piece over his shoulder. Appellant informed Sirles that he had sold the Berettas but that he had a Russian machine gun that he would sell for $65.00. Sirles was not shown the weapon but only two of its parts, the driving rod and buffer spring. Sirles told appellant that he wanted to purchase the weapon for a truck driver going to Miami who wanted to sell it in Cuba. Sirles said he would contact appellant later about the gun.⁵

Agent McGinnis also testified as to the above conversation which had been transmitted by the equipment on Sirles person and picked up on McGinnis' radio receiver.

The witnesses testified that later that same day, Sirles and appellant arranged to meet at appellant's store and Sirles arrived with the same radio attached and, in addition, marked money. They left the store and went to appellant's home where appellant assembled the gun and described its operation. Thereafter appellant disassembled it and put the parts in two plastic bags and Sirles gave him $65.00 of the marked money. Their conversations were again overheard by agent McGinnis. According to the government witnesses, appellant wiped all fingerprints from the gun and stated that he did not wish to have his finger-prints appear on it. Sirles immediately turned the gun over to the ATU men.

Sirles also testified that shortly after appellant had been indicted, appellant telephoned and requested Sirles to meet him. Appellant likewise proposed the time and place of the meeting. Sirles then talked to McGinnis inquiring whether he should attend the meeting, and was told to do so. The meeting was held on February 18, 1965, in Sirles' automobile and McGinnis was secreted in the trunk where he overheard the entire conversation which lasted forty-five minutes. McGinnis had equipped himself with a tape-recording device which he testified failed to work, but he heard the conversation nevertheless. At this meeting appellant inquired from Sirles as to the whereabouts of the gun he had sold him and told Sirles he had a lot of illegal guns. Appellant also told Sirles that if Sirles appeared against him or if the machine gun came into court, appellant would have Shorty the Baptist take care of him.⁶

At the trial appellant denied the sale of the submachine gun to Sirles, although appellant admitted selling various parts of the gun. Appellant also pled entrapment. However, the jury found him guilty of possession and transfer of the submachine gun in violation of the National Firearms Act.

On this appeal eighteen errors on the part of the district court are specified and can be grouped generally as follows: (1) overruling motions to produce the weapons described in the indictment for inspection, and overruling the defense motions for judgment of acquittal and the motion in arrest of judgment or for a new trial; (2) excusing an unqualified juror from further service on its own motion and proceeding with the remaining jurors; (3) making statements in the presence of the jury which were adversely prejudicial to appellant; (4) admitting into evidence various items of testimony, and sustaining objections to certain of defense counsel's questions; (5) refusing to submit the issue of entrapment to the jury; (6) admitting into evidence the conversations between appellant and Sirles overheard through electronic devices by government agents; and (7) admitting into evidence the post-indictment conversation between appellant and Sirles. These alleged errors will be discussed in the order as listed above.

I

An application under Rule 16, Fed.R.Crim.P. for the production and inspection of tangible articles is left to the sound discretion of the trial judge and on the record before us we cannot say that such discretion was abused.⁷ Indiviglio v. United States, 249 F.2d 549 (5 Cir. 1957). Also the trial court properly overruled appellant's motions for judgment of acquittal and his motion in arrest of judgment or for a new trial in accordance with Rules 29, 34 and 33, F.R.Crim.P.

II

Even though the Sixth Amendment guarantees an accused the right to be tried by an impartial jury composed of twelve persons, Patton v. United States, 281 U.S. 276, 50 S.Ct. 253, 74 L.Ed. 854 (1930), such right may be waived, Patton v. United States, supra; Horne v. United States, 264 F.2d 40 (5 Cir. 1959); Taylor v. United States, 142 F.2d 808 (9 Cir.), cert. den. 323 U.S. 723, 65 S.Ct. 56, 89 L.Ed. 581 (1944), as it was done here by agreement of both counsel that in the event any juror should become incapacitated, the trial could proceed as long as there were ten jurors able to serve.

III

We have carefully reviewed the entire record and conclude that not only were the statements⁸ made by the trial judge claimed by appellant to have cast both himself and his counsel in a bad light before the jury, not prejudicial to appellant, but that the trial judge's conduct throughout the trial was characterized by complete impartiality and fairness toward the appellant.

IV

Appellant objects to the admission of numerous items of testimony such as agent McGinnis' second recital of the post-indictment conversation, the cross-examination of appellant's character witnesses, agent McGinnis' construction and interpretation of the Federal Firearms Act, and agent McGinnis' declaration that he advised Sirles that the government did not wish to make appellant do anything he didn't intend to do. Appellant claims the above testimony was either irrelevant, immaterial and/or prejudicial.

The admissibility of evidence in criminal cases is governed by Rule 26 of the F.R.Crim.P. Essentially, the test of admissibility is relevance and materiality. However, all evidence in a criminal case must be carefully scrutinized for the possibility of prejudice. As to weighing materiality against possible prejudice, the court concluded in United States v. Johnson, 254 F.2d 175, 176 (2 Cir. 1958): "Only if its relevancy is minimal and the chance of resultant prejudice great should the evidence be excluded."

We have made a very cautious and careful examination of the record, particularly with reference to those portions of the testimony alleged by appellant to be inadmissible. It is our conclusion that the trial court committed no error.

Appellant also cites as error the sustaining of an objection by the prosecution to cross-examination of the government witness, Sirles. Defense counsel sought to prove by Sirles' statements which McGinnis had made to Sirles during their various meetings and the truth or falsity of such statements. Government counsel's objection was sustained on the ground that the testimony sought was hearsay. Although the defense is permitted wide latitude in cross-examination, we do not think the trial judge's limitation of such cross-examination for the purpose of excluding hearsay testimony was an abuse of discretion.

V

Entrapment is established when the criminal design originates with government officials and is implanted in the mind of an innocent person so that he is induced to commit a crime which he was not otherwise predisposed to commit. Sorrells v. United States, 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413 (1932); Suarez v. United States, 309 F.2d 709 (5 Cir. 1962); Rodriguez v. United States, 227 F.2d 912 (5 Cir. 1955); Demos v. United States, 205 F. 2d 596 (5 Cir. 1953). Merely affording an opportunity for the commission of a crime is not entrapment. Lopez v. United States, 373 U.S. 427, 83 S.Ct. 1381, 10 L.Ed.2d 462 (1963); Sherman v. United States, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848 (1958); Sorrells v. United States, supra. Since a defendant maintains this defense by asserting that the...