Hunt v. United States

• Decision Date: 13 January 1969
• Docket Number: No. 24601.,24601.
• Parties: Howard HUNT, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

400 F.2d 306 (1968)

Howard HUNT, Appellant, v. UNITED STATES of America, Appellee.

No. 24601.

United States Court of Appeals Fifth Circuit.

August 19, 1968.

Rehearing Denied October 8, 1968.

Certiorari Denied January 13, 1969.

Luther E. Jones, Jr., Corpus Christi, Tex., Warren Burnett, Odessa, Tex., for appellant.

Ernest Morgan, U. S. Atty., San Antonio, Tex., for appellee.

Before JONES, WISDOM, and THORNBERRY, Circuit Judges.

Certiorari Denied January 13, 1969. See 89 S.Ct. 629.

WISDOM, Circuit Judge:

Howard Hunt appeals from a judgment, entered on a jury verdict after trial, adjudging him guilty of violating 18 U.S.C.A. § 1503 by conspiring to obstruct the administration of justice. Hunt was sentenced to imprisonment for a period of two years. We affirm.

Candelario and Daniel Guerrero, brothers living in San Antonio, Texas, were charged with violating the United States narcotics laws. They retained Hunt, a San Antonio attorney, to represent them. On May 2, 1966, at the preliminary hearing before the United States Commissioner, Hunt learned the identity of the informer who had gathered the evidence to be used against the Guerrero brothers. He subpoenaed the informer, Paul Leyva, but neither side called him as a witness before the Commissioner. About noon the next day, Leyva was lured to a bar and beaten by several men, one of whom told him "I kill stoolpigeons." After Leyva had been pistol-whipped, hit in the mouth, kicked in the side, shot at and otherwise brutally treated, someone called "Lawyer Hunt." Hunt came, saw Levya, and questioned him about the case against Daniel Guerrero. The police arrived, as a result of a report of a shooting. Hunt went into the bar and sat at a table with his secretary. The co-defendants and alleged conspirators dragged Leyva to the house next door where they kept guns trained on him. Leyva was then taken to another house where his life again was threatened. In a short while the conspirators telephoned Hunt who came to the house. The others left Hunt and his secretary alone with Leyva. According to Leyva's testimony, Hunt offered to make a deal with him. The three went to Hunt's office. There Hunt dictated a statement for Leyva to sign. During the time he was at the office Leyva had to be shaken to remain conscious. Some seven hours after the beating, Hunt finally took Leyva to a doctor and then to the hospital where he remained for three or four days.

I.

The first issue raised on appeal is whether there was sufficient evidence to support the jury's verdict. The appellant concedes that the jury properly could have inferred that there existed an antecedent conspiracy to obtain by coercion a statement from Leyva. Hunt argues, however, that there was insufficient evidence, because Leyva was not a witness within the meaning of 18 U.S.C.A. § 1503 since there was no proceeding before a court of the United States against Guerrero in which Levya could have been a witness.

This argument is without merit. This Court defines a "witness" as one who "knows or is supposed to know material facts, and is expected to testify to them, or to be called on to testify * * * as a witness." Odom v. United States, 5 Cir. 1941, 116 F.2d 996, reversed on other grounds, 313 U.S. 544, 61 S.Ct. 957, 85 L.Ed. 1511. Accord: United States v. Grunewald, 2 Cir. 1956, 233 F.2d 556, reversed on other grounds, 353 U.S. 391, 77 S.Ct. 963, 1 L.Ed.2d 931; Smith v. United States, 8 Cir. 1921, 274 F. 351; United States v. Perlstein, 3 Cir. 1942, 126 F.2d 789, cert. denied, 316 U.S. 678, 62 S.Ct. 1106, 86 L.Ed. 1752.

It is clear that Leyva knew material facts and that as an informer he had given his information to the Government and expected to testify to those facts in the future. The fact that the conspiracy was brought to fruition after the preliminary hearing but before the convening of a grand jury should not relieve Hunt from responsibility for his actions. Section 1503 comes into play at least when a complaint has been filed with a United States Commissioner. United States v. Scoratow, W.D.Pa.1956, 137 F.Supp. 620; United States v. Bittinger, D.C.1876, 24 Fed.Cas.No.14,598, p. 1149.

The statute, 18 U.S.C. § 1503, is designed to prevent what occurred in this case and to punish those responsible for what happened to Leyva. If any witness ever needed protection of the law, it was Paul Leyva. If any persons ever needed restraint, it was the group who maltreated Paul Leyva.

II.

The second issue the appellant raises is whether the indictment states an offense against the United States. The grand jury indictment begins with the words: "Beginning on or about May 2, 1966 and continuing until on or about May 3, 1966 * * *" Hunt argues that the indictment is defective in that the quoted words mean that the offense began on May 2, 1966 and ended on the same day. We regard this argument as frivolous.

The words in the indictment indicate that the offense charged took place "on or about May 3, 1966." The essentials of a valid indictment are that it be a "plain, concise, and definite written statement of the essential facts constituting the offense charged." Fed.R.Crim.P. 7(c). The indictment here meets this standard. It charges a conspiracy, sets out the dates within which the conspiracy was formed, recites the names of the conspirators, and alleges jurisdiction and venue, the objects of the conspiracy, and various overt acts. It goes further and recites the facts and circumstances giving rise to the conspiracy. By any standard, the indictment is sufficient to enable the appellant to know what he is charged with, to prepare his defense, and to plead jeopardy in the event of subsequent convictions for the same offense.

III.

The appellant contends that the trial court's charge did not apprise the jury of the elements of the offense in that the court did not require in its charge that the jury find that the conspiracy continued during and into May 3, 1966. Again the appellant ignores the words "on or about." The court charged that in order to convict it was necessary to decide that the conspiracy came into existence "on or about May 2, 1966." This language includes May 3, when the overt acts were alleged to have occurred, and which as the jury found, did occur on that date.

IV.

In the district court and on appeal Hunt challenged the petit jury panel on two grounds. First, he contends that the jury commissioner and the clerk violated the federal statutory scheme for jury selection by adding the additional qualification that prospective jurors be "esteemed" in their respective communities. Secondly, he contends that the jury panel from which his jury was drawn did not represent a fair cross-section of the community in that Mexican-Americans were under-represented and higher socio-economic groups over-represented. After conducting a three-day hearing, the district court, in a carefully considered, detailed opinion, overruled the defendant's motion to quash the jury panel.

The trial court found that the alleged additional qualifications sought to achieve constitutionally qualified jurors as recommended by the Judicial Conference of the United States. The so-called "jury suggestor" letter, on which the defendant relies, does not purport to authorize discretionary or impermissible judgment on the part of jury suggestors. In Rabinowitz v. United States, 5 Cir. 1966, 366 F.2d 34, the Court held that 28 U.S.C. § 1861, as amended by the Civil Rights Act of 1957, established unform, not minimum, standards of federal juror qualifications. But in that case we concluded that the evidence showed that the jury commissioner...