U.S. v. Ashley

• Decision Date: 20 March 1978
• Docket Number: No. 77-5070,77-5070
• Parties: 2 Fed. R. Evid. Serv. 1321 UNITED STATES of America, Plaintiff-Appellee, v. Dr. Luther Lewis ASHLEY, Jr., and John Franklin Roper, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 975

569 F.2d 975

2 Fed. R. Evid. Serv. 1321

UNITED STATES of America, Plaintiff-Appellee, v. Dr. Luther Lewis ASHLEY, Jr., and John Franklin Roper Defendants-Appellants.

No. 77-5070.

United States Court of Appeals Fifth Circuit.

March 20, 1978.

P. Brantley Davis (Court-appointed), George S. Branch, Atlanta, Ga., for Ashley.

O. Fayrell Furr, Jr., Kermit S. King, Columbia, S. C., for Roper.

Wm. L. Harper, U. S. Atty., Jerome J. Froelich, Jr., Asst. U. S. Atty., Atlanta, Ga., Shirley Baccus-Lobel, Atty., T. George Gilinsky, Sidney M. Glazer, Dept. of Justice, Crim. Div., Washington, D. C., for plaintiff-appellee.

Appeals from the United States District Court for the Northern District of Georgia.

Before BROWN, Chief Judge, and THORNBERRY and MORGAN, Circuit Judges.

THORNBERRY, Circuit Judge:

This is a direct criminal appeal. The appellants, Dr. Luther Ashley and John Roper were convicted under a four count indictment alleging various Hobbs Act violations. ¹ The indictment charged that Ashley, Roper, and Loren Ralph Fossum attempted to extort $300,000 from Eastern Airlines. The government contends that Ashley and Fossum, while visiting Atlanta on March 31 and April 1, 1976, sent a letter to Eastern Airlines, via taxicab stating that a bomb had been placed in an Eastern Airlines terminal at a major southeastern airport. The letter stated that if Eastern placed $300,000 in cash in a suitcase identified as belonging to "Timothy Swinton" on its flight from Atlanta to Greenville-Spartanburg, South Carolina, then Eastern would be notified of the location of the bomb in time to prevent its detonation. In response to the letter, Eastern contacted the Federal Bureau of Investigation, filled a brown suitcase with paper forms and a single, marked $100 bill, tagged the suitcase with the name "Timothy Swinton," and loaded the bag on flight 364 to Greenville-Spartanburg on April 1, 1976. Despite efforts by the FBI to intercept him, Roper picked up the bag at the Greenville-Spartanburg Airport.

The next day Fossum, on his own accord, came to the Greenville office of the FBI and related the details of the conspiracy and implicated Ashley and Roper. On April 3, the FBI arrested Ashley, Roper, and Fossum at Ashley's place of employment. At that time, evidence including the extortion bag and a pair of latex surgical gloves were found in Roper's jeep. At trial Fossum pled guilty to the conspiracy count of the indictment and testified against Ashley and Roper under a grant of immunity.

Ashley and Roper were convicted of each of the four counts charged in the indictment. Ashley was sentenced to ten years' imprisonment on counts 2, 3, and 4, with the sentences to run concurrently. He received a five year suspended sentence on count 1 and was placed on probation for a period of five years upon completion of the prison sentence. Roper was sentenced to five years' imprisonment on each count, with the sentences to run concurrently. The appellants, represented by individual counsel, bring separate points of error. For the reasons stated below, we affirm.

ASHLEY

I.

Ashley argues that the trial judge erroneously refused to allow him to impeach the government's principal witness Fossum by proof of two prior convictions. Before any evidence was presented, the United States Attorney asked the trial judge whether he was going to allow impeachment of Fossum for a state conviction for shoplifting and a conviction under the Federal Youth Corrections Act, 18 U.S.C. § 5005 et seq. ² for an underlying Dyer Act violation.

After the trial judge examined Fossum's criminal record, which included a state burglary conviction along with the shoplifting and Federal Corrections Act convictions, he ruled, apparently under Fed.R.Evid. 609(d), ³ "I think you better bring out the prior burglary in Mississippi and this one, and then in view of the general prohibition on youthful acts, I don't think you really need that anyway. You've got . . . two good felonies. I think that's sufficient." ⁴

Appellant Ashley contends this on appeal that rule 609(d) referring to juvenile adjudications applies only to findings of delinquency under the Juvenile Delinquency Act, 18 U.S.C. § 5031 et seq., and equivalent state actions and has no application when the conviction is under the Federal Youth Corrections Act, 18 U.S.C. § 5005 et seq. The government argues that the literal reading of the rule supports the trial judge's view that the rule speaks broadly to all proceedings involving juveniles and youthful offenders.

This appears to be a question of first impression in this circuit. The Second Circuit in United States v. Canniff, 521 F.2d 565, 569 n.2 (2 Cir. 1975), cert. denied, 423 U.S. 1059, 96 S.Ct. 796, 46 L.Ed.2d 650 (1976) has said in dictum:

By way of contrast, a person subject to the federal Youth Corrections Act (18 U.S.C. § 5005-26), is convicted of a crime and then is eligible for the alternative sentence provided in that Act. See Guidry v. United States, 317 F.Supp. 1110 (E.D.La.), affd., 433 F.2d 968 (5th Cir. 1970) (18 U.S.C. § 5010). The record of this conviction is not kept sealed and it may be used to attack credibility in a later proceeding.

See also Luck v. United States, 121 U.S.App.D.C. 151, 348 F.2d 763 (1965). Moreover, in support of Ashley's view, the Notes of the Advisory Committee on Proposed Rules draw a distinction between a conviction of a crime and a finding of the status of delinquency. As was recognized by a district court in this circuit, a conviction under the Federal Youth Corrections Act is a conviction of a crime. Guidry v. United States, 317 F.Supp. 1110 (E.D.La.), aff'd 433 F.2d 968 (5 Cir. 1970). It is therefore apparent that Ashley's reading of the rule is a correct one and that Fed.R.Evid. 609(d) refers only to a finding of the status of delinquency and does not refer to all proceedings involving youthful offenders.

In addition, we find that even if the state shoplifting charge was a criminal conviction, the evidence of the conviction is still not admissible under Fed.R.Evid. 609(a)(1) or 609(a)(2). ⁵ First, we may safely assume that shoplifting is not a crime punishable by death or by imprisonment in excess of one year, therefore 609(a)(1) does not apply. Second, in order to be admissible under 609(a)(2) the conviction must involve "dishonesty or false statement, regardless of the punishment." Ashley contends that the crime of shoplifting involves moral turpitude and accordingly dishonesty. We disagree with this reading of the rule. ⁶

As the Conference Committee Notes ⁷ make clear the phrase "dishonesty and false statement" means

crimes such as perjury or subornation of perjury, false statement, criminal fraud, embezzlement, or false pretense, or any other offense in the nature of crimen falsi, the commission of which involves some element of deceit, untruthfulness, or falsification bearing on the accused's propensity to testify truthfully.

Other circuits have explicitly held in accordance with our holding today. See United States v. Seamster, 568 F.2d 188 (10 Cir. 1978); United States v. Ortega, 561 F.2d 803, 805 (9 Cir. 1977); United States v. Thompson, 559 F.2d 552, 554 (9 Cir. 1977); United States v. Hayes, 553 F.2d 824, 827 (2 Cir. 1977); United States v. Smith, 179 U.S.App.D.C. 162, 176, 551 F.2d 348, 362 (1976); United States v. Millings, 175 U.S.App.D.C. 293, 535 F.2d 121 (1976); Government of Virgin Islands v. Toto, 529 F.2d 278, 281 (3 Cir. 1976). See also United States v. Papia, 560 F.2d 827 (7 Cir. 1977); contra United States v. Bianco, 419 F.Supp. 507 (E.D.Pa.1976), aff'd 547 F.2d 1164 (3 Cir. 1977). Our own case of United States v. Carden, 529 F.2d 443, 446 (5 Cir. 1976) is not dissimilar. In Carden we held, without the aid of argument, that the admission of a conviction for petty larceny was harmless error. Consequently, today we hold, as did the Ninth Circuit in United States v. Ortega, supra at 805, that a conviction for shoplifting is not a conviction involving dishonesty or false statement within the meaning of Fed.R.Evid. 609(a)(2). Therefore, even assuming Ashley's position in regard to Rule 609(d) the evidence of Fossum's shoplifting conviction to impeach is still inadmissible under Rule 609(a)(2).

We also hold that the trial judge's refusal to allow impeachment through proof of Fossum's Federal Youth Corrections Act conviction does not merit reversal of Ashley's conviction. We think that it is important to note that Ashley's proposed impeachment is cumulative. As the trial judge correctly noted Fossum could be impeached through proof of two prior convictions. We think that Fossum stood before the jury in the instant case, as a fully impeached witness. To whatever degree human nature allows a jury to infer lack of veracity from proof of criminal conduct, we think that point was reached in the instant case and the impeachment gave the jury adequate information regarding the nature of the witness Fossum. A reversal on this point would exalt form over substance.

We wish to distinguish the present case from those in which the defense was totally precluded from impeaching the government's principal witness. We, of course, would not reach today's result if Ashley had not been allowed to impeach Fossum at all or if Fossum's other conviction had been in the nature of crimen falsi. ⁸

Moreover, we are persuaded that Ashley's failure to impeach Fossum on his Federal Youth Corrections conviction had no effect on the jury's verdict in view of Ashley's innately unbelievable attempt to give an innocent explanation to the facts of the instant case. Ashley's testimony was that he and Fossum went to Atlanta to recover a sum of money due Ashley from a Mr. Goldstein. Ashley testified that he had been dealing with Mr. Goldstein since 1969 and that he had frequently met with and called Mr. Goldstein in Atlanta. Nevertheless, Ashley could not name an individual who positively knew Mr. Goldstein nor...