U.S. v. Barker

• Decision Date: 05 July 1984
• Docket Number: No. 83-7252,83-7252
• Citation: 735 F.2d 1280
• Parties: 15 Fed. R. Evid. Serv. 1622 UNITED STATES of America, Plaintiff-Appellee, v. Sarah BARKER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1280

735 F.2d 1280

15 Fed. R. Evid. Serv. 1622

UNITED STATES of America, Plaintiff-Appellee, v. Sarah BARKER, Defendant-Appellant.

No. 83-7252.

United States Court of Appeals Eleventh Circuit.

July 5, 1984.

David B. Byrne, Jr., John M. Bolton, III, Montgomery, Ala., for defendant-appellant.

Kent B. Brunson, Asst. U.S. Atty., Montgomery, Ala., for plaintiff-appellee.

Appeal from the United States District Court for the Middle District of Alabama.

Before RONEY and JOHNSON, Circuit Judges, and MORGAN, Senior Circuit Judge.

RONEY, Circuit Judge:

Defendant Sarah Barker, a bank employee, was convicted under 18 U.S.C.A. Sec. 656 of misapplying and converting to her own use nine $100 Citicorp Traveler's Checks, and was sentenced to three years' probation subject to restitution in the amount of $900.00. Barker appeals her conviction on grounds that (1) the evidence was insufficient to support a conviction; (2) the instruction to the jury on aiding and abetting was erroneous; (3) the court's substitution of an alternate juror after deliberations had begun was error; and (4) the court erroneously admitted lay witness testimony on the question of handwriting identification. We affirm.

The traveler's checks at issue were discovered missing from the South Trust Bank, formerly Southern Bank, in Montgomery, Alabama, during a routine internal audit performed at the end of June 1982. The checks were negotiated in stores and restaurants in Clanton, Alabaster, Hoover and Vestavia, Alabama, under the name "Sharon Barnes" between July 2 and July 5, 1982. Barker's chief contentions were that she did not take the checks, nor was she physically present at the locations where the checks were presented.

Although there was no direct evidence that Barker took the traveler's checks, viewed in the light most favorable to the Government, the circumstantial evidence was adequate to permit a reasonable trier of fact to find guilt beyond a reasonable doubt. See United States v. Bell, 678 F.2d 547 (5th Cir. Unit B 1982). Defendant Barker, as a loan officer of the bank, had access to the areas where the traveler's checks were kept. Two of her co-workers testified that the handwriting on the traveler's checks was similar to or recognizable as Barker's. An F.B.I. Documents Examiner who compared the handwriting on the checks with the known handwriting of the defendant testified that the signatures in question were written by Barker. While this testimony was disputed by an expert witness called by the defense, the jury could reasonably have concluded that the handwriting on the traveler's checks was that of the defendant. Each juror was permitted to examine the handwriting exhibits and to draw conclusions regarding similarities and differences.

Barker contends the aiding and abetting instruction given to the jury represented an improper statement of the law and was not supported by the facts. At trial, however, defendant expressly objected "[n]ot to the content of the charge, but the fact that one was given." The defendant cannot raise on appeal an objection to an instruction which she failed to raise below. Fed.R.Crim.P. 30.

An aiding and abetting offense occurs when a person "willfully associates himself in some way with the criminal venture and willfully participated in it as he would in something he wished to bring about." United States v. Phillips, 664 F.2d 971, 1010 (5th Cir. Unit B 1981), cert. denied, 457 U.S. 1136, 102 S.Ct. 2965, 73 L.Ed.2d 1354 (1982). Several of the witnesses who observed the checks being negotiated testified that two persons were present. The testimony indicated that at least in some instances the checks were not actually negotiated by the defendant. The court properly instructed the jury that one who "aids, abets, induces or procures" the commission of the offense against the United States is punishable as a principal.

Defendant's third claim presents a close question. Approximately twenty minutes after the jury began its deliberations, the court called the jury back into the courtroom and replaced juror Vaughn with an alternate juror. Juror Vaughn was replaced because of an incident observed and recounted to the court by a Deputy United States Marshal. When juror Vaughn stepped from the elevator on the way to begin deliberations, she went over to where the defendant was standing, placed her hand on the defendant's shoulder, smiled, and moved on. No conversation occurred. Vaughn subsequently explained her action as a sympathetic gesture unrelated to her belief as to the defendant's innocence or guilt.

Over the objections of defense counsel, the court granted the Government's motion to excuse Vaughn from deliberating on the ground that her conduct indicated she was not impartial and may have made her decision before deliberations began. After sending Vaughn out of the courtroom, the trial judge informed the remaining jurors that

we have to be super cautious as in both the qualifications of jurors and in any sensitive question which may indicate that a juror should have been disqualified. There is a possibility that Mrs. Vaughn should have been disqualified initially. We can't be sure about that, and possibly she even can't tell us. We don't want to do anything to hurt a juror's feelings or to make it appear that a juror is doing anything improper unless we are absolutely sure. But our first duty is to the parties in the case. And if anything happens which may indicate that a juror is prejudiced in the case or is in any way involved to the extent that might indicate that that juror should not hear the case, should not participate in the deliberations, then it is my duty to excuse that juror from deliberations and to let another juror serve.

In response to the court's inquiry, all of the jurors indicated that they would be able to redeliberate impartially. The court then instructed the jury to begin deliberations anew. After approximately two hours and five minutes, the reconstituted jury returned a verdict of guilty.

Barker contests the procedure employed by the court, and requests a new trial on grounds that (1) the court abused its discretion by failing to hold an evidentiary hearing prior to the removal of juror Vaughn; (2) the court excused Vaughn on a basis which subsequently was shown to be unsupported in fact; (3) the court erred in failing to hold a full hearing regarding communications between the Deputy Clerk, the Deputy United States Marshal, or juror Vaughn and the other members of the jury; (4) the court's instructions to the remaining jurors about juror Vaughn's excusal raised questions about misconduct which could only have been harmful to the defendant; (5) the Government...