Hardin v. United States

• Decision Date: 12 December 1963
• Docket Number: No. 19880.,19880.
• Citation: 324 F.2d 553
• Parties: Hubert Vernon HARDIN, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

324 F.2d 553 (1963)

Hubert Vernon HARDIN, Appellant, v. UNITED STATES of America, Appellee.

No. 19880.

United States Court of Appeals Fifth Circuit.

November 7, 1963.

Rehearing Denied December 12, 1963.

Henry Gonzalez, Tampa, Fla., for appellant.

Thomas J. Hanlon, III, Asst. U. S. Atty., Edward F. Boardman, U. S. Atty., Tampa, Fla., for appellee.

Before TUTTLE, Chief Judge, and BROWN and BELL, Circuit Judges.

GRIFFIN B. BELL, Circuit Judge.

Hardin appeals from a judgment of conviction entered on a jury verdict of guilty under a two-count indictment. The counts charged, respectively, that he transported currency of the United States of the value of more than five thousand dollars in foreign commerce, knowing the same to have been stolen, in violation of Title 18 U.S.C.A. § 2314; and that he aided and abetted other persons to take and carry away with intent to steal money exceeding one hundred dollars belonging to Marine Bank and Trust Company of Tampa, Florida, a bank as defined in Title 18 U.S.C.A. § 2113(f), in violation of Title 18 U.S.C.A. §§ 2 and 2113(b).

There are four assignments of error. Two have to do with the failure of the trial court to grant motions for mistrial. The first occurred when a witness for the prosecution was permitted to give testimony tending to show the inability of appellant to earn an income for a relevant period of time prior to the commission of the crimes charged in the indictment. This was to be contrasted with his affluence shortly thereafter when he was arrested in Mexico. The witness was the record custodian of the Florida State Penitentiary, and he gave the dates of the confinement of appellant in the Florida State Prison. The court gave a sufficient cautionary instruction in connection with this testimony.¹ It was proper to permit this testimony for the limited purpose under the safeguard of the instruction. See Bartlett v. United States, 5 Cir., 1956, 232 F.2d 135; Montgomery v. United States, 5 Cir., 1953, 203 F.2d 887; and Capone v. United States, 7 Cir., 1931, 51 F.2d 609. Appellant was arrested in Mexico City with large sums of money on his person, in his apartment, and in a bank account there. The prosecution was attempting to show by this and other evidence that he was impecunious a short time before. Cf. Gill v. United States, 5 Cir., 1961, 285 F.2d 711 and Self v. United States, 5 Cir., 1957, 249 F.2d 32.

The other motion for mistrial was based on the fact that appellant was seen by jurors on the elevator in handcuffs being taken to and from the courtroom. It was contended that this created such prejudice in the minds of the jurors against appellant that a fair and impartial trial could not be insured. The trial judge took testimony concerning this phase of the trial from appellant and from the United States Marshal, and offered to grant a cautionary instruction in regard to it. The offer was refused. Appellant did not appear in the courtroom in handcuffs when the jury was present. A request earlier made that the three jurors involved be interrogated as to their ability to render a fair and impartial verdict in spite of their view of appellant in handcuffs was not pursued, although three jurors were involved, and there were three alternate jurors available. There was no showing of prejudice and we do not think that it was error for the trial judge to deny the motion. See Way v. United States, 10 Cir., 1960, 285 F.2d 253; Cwach v. United States, 8 Cir., 1954, 212 F.2d 520; McDonald v. United States, 8 Cir., 1937, 89 F.2d 128, 136; and Blaine v. United States, 1949, 78 U.S.App.D.C. 64, 136 F.2d 284.

Another assignment of error is based on the contention that the trial court abused its discretion in the appointment of an unqualified interpreter for the purpose of interpreting material testimony, thereby depriving appellant of a fair and impartial trial and of his right to proper cross-examination. Assuming but not deciding that an objection was lodged with the court in this regard, we have carefully reviewed the testimony and the proceedings where the interpreter was used and are of the firm opinion that there was no abuse of discretion. See Lujon v. United States, 10 Cir., 1953, 209 F.2d 190; and annotation, 172 A.L.R. 923, 941, Note c.

The last contention is that the court erred in denying a motion to suppress as evidence the money taken from the person and the apartment of appellant in Mexico as having been taken in violation of rights guaranteed by the Fourth Amendment in that the seizure was illegal. This depends on whether the arrest was illegal. The trial judge heard the facts and...