Nipp v. United States, 8-69

• Citation: 422 F.2d 509
• Decision Date: 30 March 1970
• Docket Number: No. 8-69,9-69.,8-69
• Parties: Gale Kenneth NIPP, Appellant, v. UNITED STATES of America, Appellee. Eldridge H. BISHOP, Appellant, v. UNITED STATES of America, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

422 F.2d 509 (1969)

Gale Kenneth NIPP, Appellant, v. UNITED STATES of America, Appellee.

Eldridge H. BISHOP, Appellant, v. UNITED STATES of America, Appellee.

Nos. 8-69, 9-69.

United States Court of Appeals Tenth Circuit.

December 2, 1969.

Rehearing Denied January 6, 1970.

Certiorari Denied March 30, 1970.

Mickey D. Wilson, Tulsa, Okl., for appellant Nipp.

Elmore A. Page, Tulsa, Okl. (Thomas G. Hanlon, Tulsa, Okl., on the brief), for appellant Bishop.

Lawrence A. McSoud, U. S. Atty. (Robert P. Santee, Asst. U. S. Atty., on the brief), for appellee.

Before HILL and SETH, Circuit Judges, and THEIS, District Judge.

Rehearing Denied in No. 9-69 January 6, 1970.

Certiorari Denied March 30, 1970. See 90 S.Ct. 1235.

SETH, Circuit Judge.

The appellants, together with a third party, Reecil Wayne Gravitt, were jointly indicted on three counts. The first count charged only the two appellants with aiding and abetting one Dors Lee Hill in the possession and attempt to sell counterfeit federal reserve notes. Count two of the indictment also charged the two appellants with aiding and abetting the same person in delivering counterfeit federal reserve notes with the intent that they be passed. The third count of the indictment covered the appellants, the third party, and others under a conspiracy charge to pass, sell, or attempt to sell, and keep in their possession, and conceal counterfeit federal reserve notes.

A jury trial was held, and the appellants together with the defendant Gravitt were found guilty as charged. The appellants thereupon took separate appeals which have been consolidated for hearing and disposition.

The appellants urge that the trial court was in error in that it limited cross-examination by the appellants of the principal witness for the Government. Appellants also assert that they should have been provided in advance of the trial the names of the witnesses to be used by the Government, and also a transcript of the grand jury proceedings. Other asserted errors relate to the instructions and the sufficiency of the evidence. Some detailed recitation of the facts is necessary in view of the points raised on appeal.

The witness, Dors Lee Hill, and other witnesses for the Government testified as to various meetings and transactions among the parties charged. This testimony shows that the witness Hill met with defendant Gravitt and appellant Nipp in January 1967, and a discussion took place concerning a small number of counterfeit $100 bills. These bills were then in the possession of appellant Nipp and he thereupon sold ten of such notes to witness Hill for $300.00. The witness told appellant Nipp at this time that he could dispose of the entire number of bills that were available to Nipp in the face amount of $220,000.00. Shortly after this meeting, the witness Hill and defendant Gravitt met again. Thereafter the witness Hill went to Chicago to arrange for the sale of the counterfeit bills and there met with the prospective buyers and made arrangements for the sale to take place in Clarksville, Tennessee. About January 11th or 12th, the witness Hill met with appellant Nipp and defendant Gravitt in Tulsa, Oklahoma. The witness testified that he saw appellant Bishop in the car outside the motel at that time. The witness, together with the appellants, traveled to the home of the witness in Sapulpa preparatory to the trip to Clarksville, Tennessee.

The witness Hill and the appellants were to travel to Clarksville, Tennessee, in an airplane apparently owned by the appellant Bishop and piloted by him. The witness Hill testified that en route to the airport, the three of them discussed the amount of the counterfeit money they were then taking to Clarksville. The three started out for Clarksville in the plane, but it was necessary for them to land at Cairo, Illinois. Appellant Bishop there rented a car in his own name and the three drove to Clarksville and registered at the motel. This witness testified that after arrival at the motel, the three of them, Nipp, Bishop, and Hill, counted the counterfeit money, set aside about $50,000.00 to be shown to the prospective purchasers by the witness Hill. This was done. One of the purchasers did not appear and the parties waited for him into the next day. However, appellant Bishop returned the rental car to Cairo, picked up the plane, and flew to Clarksville. Soon thereafter the appellants left Clarksville by plane, leaving the witness Hill there to contact the missing purchaser. Thereafter the prospective purchaser contacted the witness Hill in Tulsa and a meeting was arranged to be held at the Tulsa airport for the sale of the counterfeit money. The witness called and arranged to have appellant Nipp provide him with the bills for the purchase. Prior to the purchase, the parties, Hill, Bishop, and Nipp, met and the counterfeit bills were turned over to the witness for delivery to the purchaser at the airport. The plan was that the witness would proceed to the airport with the bills and he would be followed in another car by the appellants. An initial contact was made at the airport between Hill and the prospective purchaser. The witness Hill returned to the parking lot and there discussed the matter further with the appellants. The witness then returned in his car to a taxi parking area in front of the airport where the exchange was to be made. When the witness sought to make the sale, he was thereupon arrested. The appellants were not then arrested as they were waiting in the parking lot for the return of Hill.

The first asserted error advanced by appellants relates to the transcript of the grand jury proceedings. As indicated above, they urge that they were entitled to a copy of the transcript of such proceedings. The record shows that the testimony given before the grand jury which handed down the indictment was not recorded. There is no requirement that the proceedings of a grand jury be recorded and no error may be predicated upon the fact that a transcript was not provided when no transcript was taken. Wyatt v. United States, 388 F.2d 395 (10th Cir.); Thompson v. United States, 381 F.2d 664 (10th Cir.); McCaffrey v. United States, 372 F.2d 482 (10th Cir.).

The appellants also assert that they should have been provided prior to trial with the names of the witnesses who were to appear for the Government. The trial judge upon a motion declined to require the Government to provide the names of the witnesses. They acknowledge that there is no statutory authority for their position, and there are no decisions which require the names to be furnished in non-capital cases. The appellants cite cases wherein it is held that the courts have inherent power to compel discovery and that this power includes the disclosure of the names of the Government witnesses. We have considered the issue and related issues in several recent cases. These include Edmondson v. United States, 402 F.2d 809 (10th Cir.); United States v. Gleeson, 411 F.2d 1091 (10th Cir.), and most recently, United States v. Eagleston, 417 F.2d 11 (10th Cir.). See also 44 F.R.D. 527. In these cases, we have held that it is not error for the trial court to refuse to order the production of the names of the witnesses to appear for the Government in non-capital cases. The inherent authority issue has not been separately considered and is not so considered here.

As to the asserted limitation on cross-examination by appellants of the witness Hill, the record shows that this witness, as indicated in the outline of the facts, was the active party in the arrangements for the sale and in its attempted culmination. He appeared as a witness for the Government, and upon cross-examination he was asked about charges that had been brought against him. He testified that he had been found guilty of possession of counterfeit money and the sale thereof and had received two concurrent sentences, the longest of which would run fifteen years. He also had been charged with the possession of stolen money orders and under the Dyer Act. He entered a plea of guilty to these charges and received sentences to run concurrently with the counterfeiting sentences. All of his sentences were however thereupon reduced to five years, four months, and four days by the district judge who was also the trial judge during the course of the trial here appealed from. The record shows that the reduction of the sentences of the witness Hill took place before the trial of the appellants herein. This witness was asked on cross-examination by appellants about his statements given to the Government preparatory to the trial in relation to the reduction of his sentence. The record shows that this was fully developed.¹ The attorney for the appellants was permitted to cross-examine on the point. The relationship of the statements and the sentencing of the witness was described for the jury. There was nothing further relative to the matter that could properly have been the subject of the cross-examination, and we find that the limitation placed by the trial court was not improper.

The same matter was later brought up during further cross-examination of the same witness. Counsel for the appellants inquired again into the reduction of the sentence. The court then advised counsel that this had already been developed before the jury and the court again told the attorney the reason why the sentence had been reduced.² Again the matter was fully explained for the benefit of the jury, and if the action of the trial court constituted a limitation on further questioning, it was entirely proper as the position and interest of the witness were clearly before the jury at that time.

As an issue related to the next preceding one, the appellants urge that they were likewise limited in their presentation to the jury of this same subject by directions given by the trial judge. The record shows that counsel for the defendants were advised prior to the closing...