Overton v. United States

• Decision Date: 05 November 1968
• Docket Number: No. 24978.,24978.
• Citation: 403 F.2d 444
• Parties: James Timothy OVERTON, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

403 F.2d 444 (1968)

James Timothy OVERTON, Appellant, v. UNITED STATES of America, Appellee.

No. 24978.

United States Court of Appeals Fifth Circuit.

November 5, 1968.

James R. Gillespie, Fred A. Semaan, San Antonio, Tex., for appellant.

Andrew L. Jefferson, Jr., Asst. U. S. Atty., San Antonio, Tex., for appellee.

Before GODBOLD and SIMPSON, Circuit Judges, and McRAE, District Judge.

WILLIAM A. McRAE Jr., District Judge:

This is an appeal by James T. Overton from a conviction on the second count of a two count indictment charging a conspiracy to intimidate a witness in a federal prosecution, and the substantive offense of intimidating the witness. The statute involved is 18 U.S.C. § 1503.¹

Richard Hinton was under investigation by the FBI in connection with a bank robbery. He told the agents he had participated in the robbery with Charles Ray Overton, brother of appellant.

Before the date set for the trial of Charles Ray Overton, appellant commenced a series of personal contacts with Mrs. Betty Hinton, wife of the witness Richard Hinton. During this period Hinton was at all times in the Travis County Jail, Austin.

On April 20, 1967, appellant telephoned Mrs. Hinton at her home in Austin, and said "Betty, this isn't a threat. But somebody up there is doing some talking, and tell Richard to tell whoever it is to shut up." Mrs. Hinton promptly delivered that message to her husband in the jail.

Shortly afterward, appellant and his wife went to the Hinton home and had a conversation with Mrs. Hinton. Appellant asked Mrs. Hinton if Richard Hinton was going to take the stand and testify against Charles Ray Overton. Appellant told Mrs. Hinton that he had seen a statement which had been made by Richard Hinton. He also told her that he would hate to see his brother get more time to serve in the penitentiary. Appellant then commented that he did not know what was wrong with Richard, and that Richard should know that he wouldn't be able to live in Austin and "walk the streets." Mrs. Hinton likewise conveyed this statement to Richard Hinton.

A little later appellant again returned to the Hinton house and asked Mrs. Hinton if Richard was going to take the stand against appellant's brother.

On May 14, 1967, the day before the trial of Charles Ray Overton, Richard Hinton advised the prosecutor and the FBI agent assigned to the case that he was going to refuse to testify because he was afraid for himself and his family. He stated that his fears were based upon the various reports made to him by his wife after the telephone call and the visits by appellant to the Hinton home.

After reflection, Hinton decided to resume his cooperation with the authorities, and he did in fact testify at the trial of Charles Ray Overton and others.

Appellant's first contention is that the evidence is not sufficient to sustain a conviction under count two of the indictment, which charges that appellant did corruptly and by threats endeavor to influence, intimidate and impede the witness Richard Hinton in violation of 18 U.S.C. § 1503. This contention is manifestly without merit.

It was incumbent upon the prosecution to prove beyond a reasonable doubt that appellant acted either corruptly or by threats in an endeavor either to influence, intimidate or impede the witness Hinton. Smith v. United States, 234 F.2d 385 (5th Cir. 1956), Samples v. United States, 121 F.2d 263 (5th Cir. 1941). Even "experimental approaches" to the corruption of a juror in the discharge of his duty is, without regard to success or failure, a violation of the law. United States v. Russell, 255 U.S. 138, 41 S.Ct. 260, 65 L.Ed. 553 (1921). The prosecution fully met the burden imposed by law.

Appellant urges that the trial court erred in denying his pre-trial motion for bill of particulars, in which he requested that the government be ordered to tell him exactly what he was alleged to have said to Mrs. Hinton on the occasions as set forth in the indictment. The granting of a motion for bill of particulars lies within the sound discretion of the trial court. It is not the function of a bill of particulars to provide a detailed disclosure of the government's evidence in advance of trial. Wong Tai v. United States, 273 U.S. 77, 47 S.Ct. 300, 71 L.Ed. 545 (1927), Johnson v. United States, 207 F.2d 314 (5th Cir. 1953). There is no contention that failure to have a bill of particulars resulted in any surprise during the trial. The indictment itself contained ample allegations to put appellant on notice as to the time, place and persons involved in each conversation. There was clearly no abuse of discretion by the trial judge in denying the motion.

Appellant's timely motion for change of venue was based on the assertion that radio, television and newspaper coverage of his past conduct prejudiced his right to a fair and impartial trial. The motion was supported by two affidavits which were executed approximately one year before the trial. In pressing his argument, appellant pointed out that the district judge, during another criminal proceeding against him about four months before the trial in the present case, said "it is a matter of common knowledge hereabout, that no case has ever been given any more publicity than the Overton cases. * * * I don't know whether there is any truth in what they say about him or not or about his brothers, but I know that that kind of atmosphere and that kind of condition is not...