U.S. v. Boswell

• Decision Date: 12 January 1978
• Docket Number: No. 76-1843,76-1843
• Citation: 565 F.2d 1338
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Frederick Newell BOSWELL, David Rule Nichols and Emmett Howard Herndon, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1338

565 F.2d 1338

UNITED STATES of America, Plaintiff-Appellee, v. Frederick Newell BOSWELL, David Rule Nichols and Emmett

Howard Herndon, Defendants-Appellants.

No. 76-1843.

United States Court of Appeals, Fifth Circuit.

Jan. 12, 1978.

Edward T. M. Garland, Mark Kadish, Frank Joseph Petrella, Atlanta, Ga., for Boswell.

O. Jackson Cook, Atlanta, Ga., for Nichols.

L. Breland Hilburn, Jackson, Miss., for Herndon.

Robert E. Hauberg, U. S. Atty., James B. Tucker, Asst. U. S. Atty., Jackson, Miss., for plaintiff-appellee.

Appeals from the United States District Court for the Southern District of Mississippi.

Before COLEMAN, SIMPSON and TJOFLAT, Circuit Judges.

COLEMAN, Circuit Judge.

The actors in the course of conduct which resulted in the convictions hereinafter described were Frederick Newell Boswell, Emmett Howard Herndon, David Rule Nichols, and Robert Doran.

During 1973, Boswell had been operating a company in North Carolina called Pinehurst Mortgage and Loan Company. Pinehurst solicited investments from the public and used the funds so derived to acquire real estate and mortgage holdings. The money deposited was represented by promissory notes to be repaid at a certain time with interest. Deciding to expand his operations, Boswell enlisted the assistance of Herndon and Doran. Herndon had previously helped Boswell set up Pinehurst, but Doran was inexperienced in the mortgage and loan business. Mississippi and Louisiana were chosen for expansion, primarily because of the exemption of promissory notes from state securities regulations. Doran was to work in Mississippi and Herndon in Louisiana.

Doran came to Mississippi and, with Herndon's help started Jackson Mortgage. Nichols, office manager of Pinehurst, gave Doran false credit references and other advice to help him get started. After the necessary incorporation was completed and an advertising format worked out, Boswell came to Mississippi to inspect what had been accomplished. Liking what he saw, Boswell had $5,000 wired from a Pinehurst account to Doran for expenses. Boswell had decided it would take $15,000 to get the company started, with the funds to come from Pinehurst. Nichols constantly checked on Doran and traveled to Jackson to determine how he was doing his job.

The advertising campaign was kicked off with ads in newspapers across the state, promising high interest returns for money placed with Jackson Mortgage. Inquiries began coming in from the public. A solicitation letter, ¹ drafted by Boswell, was mailed in response to those inquiries. The solicitations were confined to Mississippi so that Jackson Mortgage would not violate federal securities laws. The letter described the company, what the investor's money would be used for, and the expected rate of return on the various investments. This letter had several false statements, such as claiming Jackson Mortgage had provided short-term capital for sound real property investment, claiming Jackson Mortgage had made mortgage loans on real estate, claiming the directors had more than forty years experience, and implying that Jackson Mortgage had certified public accountants.

The money started coming in, but none was invested in real estate and mortgage loans. The promoters began draining the money off for payment of their salaries and other purposes. The Secretary of State stepped in, closed down Jackson Mortgage, and put it into receivership.

This culminated in Boswell, Herndon, and Nichols being indicted by the United States grand jury on one count of mail fraud and one count of conspiracy to commit both mail fraud and fraud by wire, 18 U.S.C. § 371 and § 1341 (1970). Boswell was also indicted on one count of fraud by wire, 18 U.S.C. § 1343 (1970). Doran was not indicted and became the crucial witness for the government.

The trial jury convicted all defendants on all counts. Nichols was sentenced to five years in prison, with four years probation after his release. Boswell and Herndon were sentenced to eighteen months, with three years of inactive probation subsequent to release. A condition of Boswell's probation was that he make full restitution to all who had deposited funds in Jackson Mortgage.

Appropriate motions for judgments of acquittal were denied. The appellants argue that this action was erroneous because the evidence did not support the allegations of the indictment. On the statements of facts hereinabove appearing, these contentions are bereft of merit, see United States v. Kohlmann, 5 Cir., 1974, 491 F.2d 1250, 1253; Stephens v. United States, 5 Cir., 1965, 354 F.2d 999.

The next assignment of error is grounded upon a rarely encountered occurrence. After the close of the evidence, the trial at that point having lasted five days, the trial judge became ill. He inquired of all trial counsel if there were any objections to allowing the magistrate to sit during the scheduled four hours of argument to the jury, so as to avoid delaying the trial. The defendants were not informed by the Court of their right under the Rule to have a judge preside over the argument and, of course, they did not personally say that they would waive that right. The attorneys, however, stated that there was no objection. The magistrate introduced himself to the jury and explained the reason for his presiding in the absence of the judge. The defense offered no objection at that point or at any other time until after the guilty verdicts were returned. At the close of argument the judge was able to take the bench and to instruct the jury, thereafter presiding for the remainder of the trial.

The defendants correctly argue that the substitution of the magistrate did not comply with the mandate of Rule 25(a) of the Federal Rules of Criminal Procedure:

"If by reason of death, sickness or other disability the judge before whom a jury trial has commenced is unable to proceed with the trial, any other judge regularly sitting in or assigned to the court, upon certifying that he has familiarized himself with the record of the trial may proceed with and finish the trial."

The defendants say, and it is no doubt so, that the magistrate was neither a "judge regularly sitting in or assigned to the court" nor familiar with the record of the trial.

The defendants seek to expand this into a constitutional issue: that the Sixth Amendment right to trial by jury includes the right to have a statutorily competent judicial officer try the case, relying on Capital Traction Company v. Hof, 174 U.S. 1, 13, 14, 19 S.Ct. 580, 585, 43 L.Ed. 873 (1899):

" 'Trial by jury,' in the primary and usual sense of the term at the common law and in the American constitutions, is not merely a trial by a jury of twelve men before an officer vested with authority to cause them to be summoned and empaneled, to administer oaths to them and to the constable in charge, and to enter judgment and issue execution on their verdict; but it is a trial by a jury of twelve men, in the presence and under the superintendence of a judge empowered to instruct them on the law and to advise them on the facts, and (except on acquittal of a criminal charge) to set aside their verdict if in his opinion it is against the law or the evidence. This proposition has been so generally admitted, and so seldom contested, that there has been little occasion for its distinct assertion. Yet there are unequivocal statements of it to be found in the books." (Emphasis added).

The argument further contends that the waiver by counsel was insufficient because only "express and intelligent consent of the defendant" can constitute a waiver of a constitutional right, Patton v. United States, 281 U.S. 276, 312, 313, 50 S.Ct. 253, 263, 74 L.Ed. 854 (1930); Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938).

There was only a handful of objections raised during oral argument. Chiefly, those objections were to the effect that the prosecutor was misquoting testimony. In response to this, the magistrate informed the jury that he had not heard the evidence and was not in position to pass on the accuracy or inaccuracy of the prosecutor's assertions. The jurors were informed that they had heard the testimony and that they were the judges of whether or not it had been accurately quoted. Without deciding whether the occurrence was an invasion of a constitutionally guaranteed...