Fahning v. United States

• Decision Date: 14 February 1962
• Docket Number: No. 18847.,18847.
• Citation: 299 F.2d 579
• Parties: Willard Donnell FAHNING, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

299 F.2d 579 (1962)

Willard Donnell FAHNING, Appellant, v. UNITED STATES of America, Appellee.

No. 18847.

United States Court of Appeals Fifth Circuit.

February 14, 1962.

Howard C. Hadden, Orlando, Fla., for appellant.

Don M. Stichter, Asst. U. S. Atty., Tampa, Fla., Edward F. Boardman, U. S. Atty., Miami, Fla., for appellee.

Before TUTTLE, Chief Judge, and JONES and WISDOM, Circuit Judges.

JONES, Circuit Judge.

A ten-count indictment was returned against the appellant and five others. The first count charged a conspiracy to violate the liquor revenue laws of the United States. Eight illegal purposes were set forth in technical terms, the gist of which is that the defendants had conspired to make and sell untaxed moonshine whiskey. Twenty-one overt acts were set out, and in eleven of them the appellant was charged with being a participant. The second count charged the six defendants with the possession of an unregistered still. The third count charged all of the defendants with carrying on the business of distiller without having given bond. In the other counts, numbered four through ten, the appellant was charged, either alone or jointly with another defendant, with various offenses under the liquor tax laws. By motion the appellant asked the court "to order an election or separate trials of each and every count herein and to grant a severance of defendants and separate trial as to each and every count hereof to prevent prejudice to defendant." The court ordered that the motion for relief for prejudicial joinder be granted as to counts four through ten for all defendants. On the morning of February 13, 1961, the court announced that the case would be tried on the next day or the day following. Then, with the entire jury panel present but before the jury was selected, one of the defendants was called to the bar of the court in order that inquiry might be made as to his desire for court appointed counsel. Unexpectedly he stated that he desired to change his plea from not guilty to guilty on all counts. The court accepted the plea, made an adjudication of guilt and fixed a time for imposing sentence. The appellant moved for a continuance or for the postponement of the trial and the empaneling of another jury. The court denied the motion and instructed the jurors that they must not let the incident have anything to do with the verdict in the case as to the other defendants. The denial of the motion is specified as error by the appellant. The rule is well settled that the entry of a plea of guilty by one defendant in the presence of jurors who are to try other defendants is not error where the jurors are admonished that the plea of guilt should have no effect upon a determination of the guilt or innocence of the others, in the absence of a showing of prejudice. Nemec v. United States, 9th Cir. 1950, 178 F.2d 656, cert. den. 339 U.S. 985, 70 S.Ct. 1006, 94 L.Ed. 1388; Holmes v. United States, 8th Cir. 1943, 134 F.2d 125, cert. den. 319 U.S. 776, 63 S.Ct. 1434, 87 L.Ed. 1722; Hines v. United States, 10th Cir. 1942, 131 F.2d 971; Kelling v. United States, 8th Cir. 1941, 121 F.2d 428; United States v. Hartenfeld, 7th Cir. 1940, 113 F.2d 359, cert. den. 311 U.S. 647, 61 S.Ct. 30, 85 L.Ed. 413; 23 C.J.S. Criminal Law § 969, page 876. There is no merit in the assertion of error.

The appellant and other defendants claimed they were entrapped by the promise of a Florida Beverage Enforcement Agent, Hilman Wood, to finance a rodeo operation. While Florida Beverage District Supervisor E. C. Stanaland was testifying as a witness for the Government, he was being questioned as to when the investigation leading to the indictment had been mentioned to Florida Beverage Agent Wood. The witness answered, or rather failed to answer and stated, "Well, it was * * * we had been working on Red Fahning and this outfit ever since I have been in Orlando which was January the 15th. * * *" The witness was interrupted by an objection and a motion of the appellant for a mistrial. The motion was overruled and the court instructed the jury¹ to disregard the statement of the witness. The ruling on the motion is specified as error. We think the inadvertent statement of the witness, although improper, did not require the granting of the appellant's motion for a mistrial. It is the general rule that evidence which is withdrawn from the jury with a direction by the court that it be disregarded may not be the basis of reversible error, although there may be cases where the evidence is such that prejudice will result despite a direction of the court. Helton v. United States, 5th Cir. 1955, 221 F.2d 338. The granting of a mistrial is a discretionary matter and no abuse of the trial court's discretion is shown.

The other specifications of error, six in number, relate to instructions. Both the Government and the appellant submitted requested instruction. There were 36 separate charges requested by the appellant. Prior to the charge to the jury there was a conference on the requested instructions by the court and counsel. Objections were made on behalf of appellant to some of the charges requested by the Government. The court disagreed with some of the contentions of appellant's counsel, agreed with others, and frequently commented that the court would give its own instruction on the matter covered by particular requests. At the conclusion of the discussion of the charges requested by the Government the Court announced:

"Now, counsel to the several defendants, going first to the charges requested by counsel for Fahning, Decker and Evans. I have carefully read these charges myself through the night that just passed and in most instances, I will say, these charges. * * * the statements made in the charges is within the law. And, I want to announce, in the charges I shall give myself, I shall endeavor * * * I will try to touch these points. And, if I fail, I ask you to call my attention to any legal point you raised in these charges that I overlooked. I will see that it is covered. I am not going to review these charges with you, because it would take us too long. I am advising you that, so far as I am concerned, at this time I am announcing to counsel that I will give, in my general instructions to the jury, the substance of every appropriate charge that they have asked, but I will not necessarily follow the form that you suggested here. Where I don\'t have anything in writing, I probably will follow you wome.² I am saying that to you, to let you know you have a free open field for your argument. I will now grant you an exception to any charge that I refuse to give, that I fail to give, that I don\'t cover. I am saying too, insofar as your arguments are concerned, you may use these charges as the basis for your argument to the jury."

In concluding its lengthy charge which takes twenty-eight pages of the record, the court informed the jury that after they retired counsel for the defendants would have the right to discuss with the court any errors that might have been made in the charges and should counsel point up anything the jury would be brought back so that any mistakes made by the court could be corrected....