U.S. v. Baugus, 84-1992
| Decision Date | 10 May 1985 |
| Docket Number | No. 84-1992,84-1992 |
| Citation | 761 F.2d 506 |
| Parties | UNITED STATES of America, Appellee, v. Harold William BAUGUS, Appellant. |
| Court | U.S. Court of Appeals — Eighth Circuit |
F.M. Thomas, Jr., El Dorado, Ark., for appellant.
Steven N. Snyder, Fort Smith, Ark., for appellee.
Before HEANEY, ROSS and McMILLIAN, Circuit Judges.
Harold William Baugus appeals from a final judgment entered in the District Court 1 for the Western District of Arkansas on a jury verdict finding him guilty of making false declarations in violation of 18 U.S.C. Sec. 1623 (1982). Appellant was sentenced to one year in prison. For reversal appellant argues that this prosecution for perjury, following an acquittal on the charge of using the mail to file a false insurance claim, violated his rights under the double jeopardy clause of the fifth amendment. For the reasons discussed below, we affirm.
Appellant originally was tried in September 1983 for mail fraud. The government alleged that appellant sold his 1977 White Freightliner truck to Gilbert Olmstead for $5,500, reported the truck stolen, and then filed a false insurance claim with Sentry Insurance Co. of Wisconsin. The main witnesses for the government were Gilbert Olmstead and his son Mark. Gilbert Olmstead testified that he had agreed with appellant to purchase appellant's truck. Mark Olmstead testified that appellant delivered a 1977 White Freightliner truck to him in Tulsa, Oklahoma, on July 19, 1981, and that appellant told him that this was the truck that his father (Gilbert Olmstead) was buying from appellant.
Appellant denied driving the truck to Tulsa on July 19 as Mark Olmstead had testified. Appellant testified to the following sequence of events concerning the stolen truck. Appellant drove the truck to Little Rock, Arkansas, the day before he reported it stolen and parked the truck in a no parking zone at the Mid State Truck Plaza. Appellant advised Brian Patton, the manager of the truck stop on duty at that time, that he would remove the truck as soon as a parking space on the lot was available. Appellant then rented a room across the street from the truck stop and did not return to the truck stop to move his truck. The following morning he discovered his truck was missing. Thinking the truck stop manager had towed his truck away, appellant asked Ralph Meyers, the day manager at the truck stop, to call Patton. After the telephone call to Patton revealed that the truck had not been towed, appellant filed a theft report with the Pulaski County Sheriff's Department.
Brian Patton testified for appellant as an alibi witness. Patton confirmed appellant's story about meeting him on the parking lot at the truck stop and receiving a telephone call the next morning from his boss, Ralph Meyers, making inquiry about appellant's truck.
Subsequent to appellant's acquittal on the mail fraud charge, the government brought charges against appellant and Patton for making a false and material statement and aiding and abetting in making a false and material statement in violation of 18 U.S.C. Secs. 1623 and 2. The indictment alleged that appellant and Patton testified falsely in two respects: first, that they met at the Mid State Truck Plaza on July 20, 1981, and second, that Ralph Meyers, the day manager of the truck plaza, called Patton on July 21, 1981, to inquire concerning the whereabouts of appellant's truck.
The government called Mark Olmstead as its first witness in the perjury trial. Olmstead testified that appellant delivered a 1977 White Freightliner truck to him in Tulsa, Oklahoma, on July 19, 1981. Wanda Lewis, bookkeeper and office manager for the Mid State Truck Plaza, and Ralph Meyers also testified. Shift report records for the truck stop established that Patton was not at work on July 20, 1981, as Patton had testified at the mail fraud trial. Meyers testified that it was his responsibility to run the Mid State Truck Plaza during July 1981. Meyers further testified that he had never made a call to Patton concerning a stolen truck. FBI special agent Paul Maxwell testified during the perjury trial that Patton stated to him prior to the perjury trial that his testimony at the mail fraud trial was not based on his actual knowledge of what had occurred but was based upon information given to him. Patton testified at the perjury trial that appellant's attorney approached him on the day of the mail fraud trial with a July 1981 calendar and pointed to the calendar and said, "this is when it happened."
The district court, in overruling appellant's motion for a judgment of acquittal, held that the testimony presented by the government in the perjury trial was entirely different from the testimony in the mail fraud trial and that the testimony of Mark Olmstead was presented to prove the materiality of appellant's and Patton's statements. Further, the district court stated that the jury had been admonished at the beginning of the case that "you are not to consider the mail fraud trial at all ... [the mail fraud trial] has been tried and concluded, and is not to be considered ... in connection with these charges [perjury]."
Appellant was found not guilty of the charge of aiding and abetting but guilty of making a false and material declaration. He was sentenced to one year imprisonment. Execution of the sentence was stayed pending this appeal.
States v. Brown, 547 F.2d 438 (8th Cir.), cert. denied, 430 U.S. 937, 97 S.Ct. 1566, 51 L.Ed.2d 784 (1977), appellant argues that the district court erred in denying his motion for judgment of acquittal because the doctrine of collateral estoppel barred the government from arguing or introducing any evidence at the perjury trial which would contradict those findings of fact which the jury made in the mail fraud case. Appellant argues that because he was acquitted of mail fraud, the jury chose to believe that his truck was in Protho Junction, Arkansas, on July 20, 1981, and that appellant did not participate in the theft of the truck. Appellant further...
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