Moore v. United States, No. 23906.

• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)
• Writing for the Court: JOHN R. BROWN, , BELL, Circuit , and BREWSTER
• Citation: 399 F.2d 318
• Parties: Bobby Lee MOORE, Appellant, v. UNITED STATES of America, Appellee.
• Docket Number: No. 23906.
• Decision Date: 12 September 1968

399 F.2d 318 (1968)

Bobby Lee MOORE, Appellant,
v.
UNITED STATES of America, Appellee.

No. 23906.

United States Court of Appeals Fifth Circuit.

August 6, 1968.

Rehearing Denied September 12, 1968.

David Lee Coker, A. Felton Jenkins, Jr., Atlanta, Ga., for appellant.

Charles B. Lewis, Jr., Asst. U. S. Atty., Atlanta, Ga., for appellee.

Before JOHN R. BROWN, Chief Judge, BELL, Circuit Judge, and BREWSTER, District Judge.

Rehearing En Banc Denied September 12, 1968.

BREWSTER, District Judge:

This appeal is from a conviction for conspiracy to violate the federal laws pertaining to the illicit manufacture, transportation and distribution of distilled spirits. Fourteen persons in addition to the appellant were named in the indictment as conspirators but were not charged as defendants.¹

399 F.2d 319

The only contentions made here by appellant are that the nature of the employment by the government of James H. Jones as an informer constituted illegal entrapment as a matter of law under Williamson v. United States, 5 Cir., 311 F.2d 441 (1962); and that since there was insufficient evidence to support a conviction without the testimony of Jones and that of other witnesses claimed to have been secured as a result of his services, a judgment of acquittal should have been entered. These questions were not raised in the court below, but appellant insists that we consider them under the plain error provisions of Rule 52, F.R.Crim.P.²

The plain error rule was recognized by the federal courts long before the adoption of the Federal Rules of Criminal Procedure. United States v. Atkinson, 297 U.S. 157, 160, 56 S.Ct. 391, 80 L.Ed. 555, 557 (1936).³ The rule is invoked only where the error complained of seriously affects the fairness or integrity of the trial and the appellate court must take notice of it to avoid a clear miscarriage of justice. Mims v. United States, 5 Cir., 375 F.2d 135, 147 (1967); Williamson v. United States, 5 Cir., 332 F.2d 123 (1964), and cases cited in footnote 12 therein on p. 132. We are of the opinion that no such exceptional circumstances exist in the present case because:

(1) The error alleged here is not the type contemplated by the plain error rule. It was one capable of being remedied by adequate justification or explanation. That the Williamson case so recognizes appears in the following quotation from the opinion 311 F.2d at page 444: "Without some justification or explanation, we cannot sanction a contingent fee agreement to produce evidence against particular named defendants as to crimes not yet committed. * * *" (Emphasis added). See also Hill v. United States, 5 Cir., 328 F.2d 988 (1964), and Sears v. United States, 5 Cir., 343 F.2d 139 (1965). It would be a strange doctrine, indeed, which would permit an accused to invoke the plain error rule for notice of a complaint that the government had failed to explain or justify a certain action on its part, when he had avoided the consequences of such an explanation or justification by not making any complaint of the action in the trial court.

(2) The alleged error was expressly waived by the mature and experienced lawyer appellant employed to conduct his defense in the trial court.⁴ At the conclusion of the government's evidence in chief, the Court asked counsel for the defendant if he intended to make a motion to strike the informer's testimony under the Williamson rule, and indicated that if he did, the government would be permitted to offer any additional evidence it might have explanatory of any contingent fee arrangement. Defense counsel then mentioned that "perhaps under the rulings that were made subsequent to the Williamson case, they have somewhat modified the

399 F.2d 320

rule",⁵ and that, "I expect probably that my case might be in worse shape if I made that motion, so I will not make it." This decision deliberately made as a part of defense trial strategy, whether wise or not,⁶ was binding on appellant and constituted a waiver of the matters now asserted by him here. Gomila v. United States, 6 Cir., 159 F.2d 1006, 1010 (1949); Kahla v. United States, 5 Cir., 243 F.2d 128 (1957); United States v. Aulet, 7 Cir., 339 F.2d 934 (1964); Williams v. Beto, 5 Cir., 354 F. 2d 698, 705 (1965)

We do not mean to imply by what is said above that we are of the opinion that the record in this case shows the character of arrangement with the informer that was condemned by Williamson, or that there was a lack of legitimate justification or explanation of the arrangement, if such had been required.

The basis for the reversal in the Williamson case was that the contingent fee arrangement with the informer for the conviction of specific persons as to crimes not yet committed, "might tend to a `frame up,' or to cause an informer to induce or persuade innocent persons to commit crimes which they had no previous intent or purpose to commit." The informer there...