Morgan v. United States, 23186.
| Decision Date | 21 July 1967 |
| Docket Number | No. 23186.,23186. |
| Citation | 380 F.2d 915 |
| Parties | Claude B. MORGAN, Appellant, v. UNITED STATES of America, Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Joe J. Harrell, Pensacola, Fla., for appellant.
Clinton Ashmore, U. S. Atty., Stewart J. Carrouth, Asst. U. S. Atty., Tallahassee, Fla., for appellee.
Before THORNBERRY and COLEMAN, Circuit Judges, and YOUNG, District Judge.
The appellant, Claude B. Morgan, was found guilty by a jury verdict of seven counts of mail fraud in violation of Title 18, United States Code, Section 1341. The verdict was returned on Thursday, November 4, 1965.
On the following Monday, November 8, appellant filed a motion for new trial alleging, inter alia, improper conduct of a juror as set forth in an affidavit of Robert W. Bryant. Bryant, a friend of Morgan since 1959, had been subpoenaed as a defense witness at the trial but was never called to the stand.
A hearing on the motion for new trial was held by the trial judge. Bryant, the affiant, testified as to the events related in his affidavit. He testified that during the noon recess of the last day of the Morgan trial, (November 4) and before the jury had retired to deliberate, he overheard a conversation in the lobby outside the courtroom between one of the jurors in the Morgan case and another member of the jury panel who was not sitting in the Morgan case, but who was serving as a juror in another case being tried the same day. Bryant testified that he heard the non-Morgan juror tell the Morgan juror that "the Spanish fellow" on the Morgan jury had also been a juror in a civil case previously brought by Morgan against an insurance company in which Morgan had recovered $100,000. According to Bryant, the non-Morgan juror further stated, "You know there must be thousands like himself defrauding the people today" and the Morgan juror then stated he wouldn't be defrauding anybody else. The conversation then allegedly ended.
Bryant testified that he carefully observed the non-Morgan juror, but did not get a good look at the face of the Morgan juror; "the most thing that I recognized about him was his dress, and that was about it". Bryant described the Morgan juror with some detail, however, including his height, weight, glasses and hat. He stated that he believed he could recognize the Morgan juror if he saw him again, but when the entire jury panel was called into the hearing by the Court, Bryant was unable to recognize the Morgan juror. However, Bryant did select the non-Morgan juror — a Mr. Frank E. Blews — from the panel with certainty.
Blews then testified that he was a juror in the case in which Morgan had sued an insurance company several years ago; that he was a juror on a criminal case being tried at the same time as the Morgan case on November 4, 1965; and that he "might have discussed" with another juror of the panel the fact that he had served on the jury of the case in which Morgan had sued the insurance company:
"The point is this; I saw Mr. Morgan walk by outside — not in the court-room — outside — and I might have said, `I was on that case two years ago\'."
When asked if the juror with whom he had conversed was a juror serving on the Morgan criminal case, Blews replied:
"I don\'t believe so; I can\'t say positive because it\'s like I say, I saw Mr. Morgan out there and I did mention at that time as he went by that I was on his case; this wasn\'t in the court-room; it was out there when he went by, I was a juror then, when he was tried before."
Blews believed his statement to the other juror was made on "the next day after the jury was chosen" which would have been November 4 (as the jury was selected November 3), and that the conversation was near the elevator.
The trial judge called each of the jurors who had served on the Morgan jury. Each of the twelve jurors, examined separately by the Court, denied participation in a conversation or knowledge of anyone else participating in a conversation regarding the possibility of Morgan having defrauded any persons. Eleven of the twelve jurors denied having heard anyone making a statement that Morgan had previously recovered $100,000. from an insurance company (although one of the eleven — Calvin L. Valcour — had been on the jury in the...
To continue reading
Request your trial
-
People v. Hedgecock
...Mirkin (1st Cir.1981) 649 F.2d 78, 80; Port Terminal & Warehousing v. John S. James Co. (11th Cir.1983) 695 F.2d 1328; Morgan v. United States (5th Cir.1967) 380 F.2d 915.) "If the use of affidavits be thought a doubtful method for getting at the facts [citations], hearing witnesses on exam......
-
United States v. McKinney
...to grant a new trial. Remmer v. United States, 347 U.S. 227, 74 S.Ct. 450, 98 L.Ed. 654 (1954)." 360 F.2d at 369.6 In Morgan v. United States, 5 Cir. 1967, 380 F.2d 915, the defendant's motion for new trial alleged an improper conversation between a juror and a non-juror. The trial judge, a......
-
U.S. v. Howard
...States, 5 Cir. 1970, 428 F.2d 178 (jury discovery of $750 in cash in exhibit, crime charged involved monetary gain); Morgan v. United States, 5 Cir. 1967, 380 F.2d 915 (conversation between juror and non-juror regarding defendant); Richardson v. United States, 5 Cir. 1966, 360 F.2d 366 (con......
-
Morgan v. United States
...and before the jury had retired to deliberate the verdict, he had overheard a conversation in the lobby between one of the jurors in the Morgan case and another member of the jury panel who was not sitting in the Morgan case, but who was serving as a juror in another case being tried the sa......