Myers v. United States

• Citation: 377 F.2d 412
• Decision Date: 19 June 1967
• Docket Number: No. 23847.,23847.
• Parties: Cecil William MYERS and Joseph Howard Sims, Appellants, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

377 F.2d 412 (1967)

Cecil William MYERS and Joseph Howard Sims, Appellants, v. UNITED STATES of America, Appellee.

No. 23847.

United States Court of Appeals Fifth Circuit.

May 15, 1967.

Rehearing Denied June 19, 1967.

Jim Hudson, Athens, Ga., for appellants.

Floyd M. Buford, U. S. Atty., Macon, Ga., St. John Barrett, Atty., Dept. of Justice, John Doar, Asst. Atty. Gen., David L. Norman, Alan G. Marer, Joel M. Finkelstein, Attys., Dept. of Justice, Washington, D. C., for appellee.

Before TUTTLE, Chief Judge, AINSWORTH, Circuit Judge, and FULTON, District Judge.

TUTTLE, Chief Judge:

This is an appeal from conviction and sentence of the appellants, Myers and Sims, to serve ten years imprisonment for violation of Title 18, U.S.C.A. Sec. 241,¹ one of the basic civil rights criminal statutes.

These appellants, together with one Hampton Turner, were tried jointly for engaging in a conspiracy "to injure, oppress, threaten, and intimidate Negro citizens of the United States in the vicinity of Athens, Georgia, in the free exercise and enjoyment by said Negro citizens of the following rights and privileges secured to them by the Constitution and laws of the United States:

"The right to travel freely to and from the State of Georgia and to use highway facilities and other instrumentalities of interstate commerce within the state of Georgia;"

The indictment charged that these three conspired with three other named defendants, Herbert Guest, James Lackey, and Denver Phillips, and "with other persons to the Grand Jury unknown." Upon motion, the last three named defendants obtained a severance for the purposes of trial and were not tried jointly with Myers and Sims, the appellants here, and Turner, who was acquitted by the jury.

The indictment against the six men alleged:

"It was a part of the plan and purpose of the conspiracy that its objects be achieved by various means, including the following:

1. By shooting Negroes;

2. By beating Negroes;

3. By killing Negroes;

4. By damaging and destroying property of Negroes;

5. By pursuing Negroes in automobiles and threatening them with guns;

6. By making telephone calls to Negroes to threaten their lives, property, and persons, and by making such threats in person;

7. By going in disguise on the highway and on the premises of other persons;

8. By causing the arrest of Negroes by means of false reports that such Negroes had committed criminal acts; and

9. By burning crosses at night in public view."

Both from a careful reading of the transcript of the evidence and by the admission by the appellants in their brief filed in this court, it is clear that the jury had ample evidence on which to find that the existence of the conspiracy and participation in it by these two appellants was adequately proved. Specifically, there was before the jury evidence that warranted a finding that of the listed means alleged in the indictment to be used by the conspirators there was adequate proof that they committed all of the acts with the possible exception of those listed in item number 4. The record, in fact, disclosed that these appellants and their fellow conspirators created what might, without exaggeration, be called a reign of terror from January 1, 1964, until the filing of the indictment in October, 1964, so far as Negro citizens in and about Athens, Georgia, were concerned.

Specifically, the evidence disclosed, without objection, so far as this appeal is concerned, that appellants, together with some of their fellow members of the Athens chapter of the Ku Klux Klan, participated in the following acts of violence towards Negro citizens in Athens or vicinity.

In March, 1964, a group of young Negroes in Athens picketed The Varsity drive-in, a restaurant in Athens, because of its failure to serve Negro persons. Soon after the Negro pickets started to march each night, a group of white robed klansmen, including Sims and Myers, would arrive and counter-picket the Negroes. On one occasion, the chief of police of Athens observed sawed off shotguns in one of the klansmen's car. These shotguns were in plain view on the seats along with shotgun shells and an ammunition box. Two of these guns belonged to Guest and one to appellant Sims. On this occasion a Negro named Weaver, while demonstrating, was struck on the head with a revolver by Sims, who claimed that he intervened to prevent Weaver from hitting an officer with a broomstick. Sims then cocked and pointed his gun towards the Negro pickets and threatened them until he was disarmed by a police officer. On another occasion, during the counterpicketing, Sims was seen down the street from The Varsity with a pistol strapped to his side.

On another night in March, a Negro named Potts, who worked for Herbert Guest at his garage,² was sent by Guest to the back of an auditorium building to help start a car which was reported to have had trouble. At about midnight Potts arrived and found the car with its hood up parked nearby, and a man standing near it. As Potts approached to assist in starting the car, he saw eighteen hooded klansmen come from the basement of the auditorium. One of these men, whom Potts identified as appellant Sims, ordered Potts to bend over the hood of the car, and another member of the gang produced a leather strap and severely lashed Potts. Later the same night after Potts reported back to work, Sims telephoned Potts again and asked him to help with another car. Potts, having been laughed at by Guest when he returned from the first trumped-up accident, declined to go.

On the evening of June 21, 1964, two automobiles were driven slowly through the Broad Acres apartment development in Athens (a Negro residential area). One car was driven by Myers and the other contained co-conspirator Guest. Shots were fired over the top of the building from one of the cars. On the second occasion, later in the evening, a car containing a person identified as Guest, stopped in the vicinity of the apartments, and on this occasion two shotgun blasts were fired into the apartments. A Negro man was struck and permanently blinded in one eye, and a thirteen year old girl was shot in the lip. A Negro witness, who identified the occupants of the car to police officers, was thereafter followed around the city of Athens in a car occupied by appellants, Sims and Myers.

Bearing more specifically on the alleged conspiracy to deprive Negro citizens of their rights to use federal highways, is the incident that occurred on July 4, 1964. On this occasion an elderly Negro couple driving a car with a New Jersey license plate stopped in Athens, where the driver asked a police officer for directions to Atlanta. The police officer testifed that while he was giving directions, Sims and Myers, the appellants, both wearing pistols in holsters strapped to their sides, came up, and, according to the testimony of one police officer, Sims told the Negro couple to "get their black asses back up north where they come from." According to the recollection of the other officer, Sims said, "Hit highway 29 you black son of a bitch and go back to New Jersey where you came from." The police officer testified that this elderly Negro couple from New Jersey made haste to drive off without ever getting directions at Atlanta.

On the same day a young Negro man named Rittenberry, from an adjacent county in Georgia, passed by Guest's garage, where he saw seven or eight men armed with pistols and shotguns standing in front. Three of them got in a car and began following Rittenberry about the city. He could see the man in the back seat holding a long barreled gun resting it on the seat and "pointing toward the rear of his car." Two female passengers in Rittenberry's car were lying down in the back seat "because they were scared." Rittenberry drove to a Negro drive-in cafe where he had someone call the police. Two police officers arrived and found Sims and Myers and co-conspirator Phillips sitting in a car near the cafe. Thereupon Sims asked the officers to check the tag on Rittenberry's car. Sims was wearing a holster with a pistol in it. The officer checked the license tag, which had been issued for a previous year, but Rittenberry had a bill of sale showing that he had just bought the car and the officers found there was no law violation.

On July 7th at about midnight, appellant Sims, who was then in company with appellant Myers and co-conspirators Lackey and Guest, reported to the police that they had noticed prowlers around Lackey's house and they gave the police the license number of a car which had just been driven past that house by one, Negro Frank Gilmore. Police arrested Gilmore "for investigation" at 1:00 A.M., but following an investigation they found no indications of prowlers around Lackey's house and after having apparently corroborated Gilmore's story that he was not in the vicinity at the time, they released him the next day.

As to the incidents which have thus far been described, appellants neither contend that there was not sufficient evidence to warrant the jury's finding the existence of the conspiracy, nor do they attack any of the evidence as being improperly submitted to the jury.

With respect to the incidents next to be related, the appellants make the admission of the evidence relating to them the basis of their principal contentions of error on this appeal.

On July 11, 1964, at approximately five o'clock in the morning, Lt. Col. Lemuel Penn, a Negro officer in the United States Army Reserve, who was driving from Fort Benning, Georgia, to Washington, D. C., was killed in the vicinity of Athens, Georgia, by a shotgun blast to the head fired point blank from a car which the jury could determine was occupied by Sims and Myers and a third conspirator. This event and the manner in which the evidence was introduced in connection with it will be discussed more fully in the discussion of the legal issues involved.

In October, 1965, nearly a year after...