U.S. v. Branch
| Decision Date | 29 July 1988 |
| Docket Number | No. 87-1569,87-1569 |
| Citation | 850 F.2d 1080 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Tommy Lynn BRANCH, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Tommy Lynn Branch, Anthony, N.M., pro se.
S. Gregory White, Waco, Tex. (Court-Appointed), for defendant-appellant.
LeRoy Morgan Jahn, Asst. U.S. Atty., Helen M. Eversberg, U.S. Atty., San Antonio, Tex., Mervyn Hamburg, Robert J. Erickson, Attys., Dept. of Justice, Washington, D.C., for plaintiff-appellee.
Appeals from the United States District Court for the Western District of Texas.
Before WISDOM, GEE and JONES, Circuit Judges.
Tommy Lynn Branch appeals his convictions for various drug and intimidation of witnesses offenses. We affirm each of the convictions.
In recent years, Branch was engaged in the manufacture and distribution of methamphetamine in Killeen, Texas. He was at various times a purchaser and manufacturer of the drug. On three occasions between 1984 and 1987 federal agents, acting pursuant to search warrants, seized methamphetamine and related drug paraphernalia from residences where appellant lived. State agents seized evidence from defendant's residence on a separate occasion in 1985. After the state seizure, Branch and another person were charged by the state with possession of methamphetamine. Branch was acquitted of the state charge after a jury trial. Based upon evidence seized at all four searches, the Government brought charges against Branch for possession of and intent to manufacture and distribute the drug. Intimidation of witnesses and obstruction of justice counts were added to Branch's indictment because of his actions before trial.
Defendant first contends that the trial judge erred as a matter of law in admitting "evidence that tied all of the other evidence together." The special piece of evidence of which Branch complains was a formula for making methamphetamine hydrochloride, seized by state agents during their search of his residence in 1985. Branch maintains that the use of evidence acquired in the state search is barred by the doctrine of collateral estoppel, citing Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970) to support his argument:
[W]hen an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit.
397 U.S. at 443, 90 S.Ct. at 1194.
Ashe requires that the issue be one of "ultimate fact." Soon after Ashe, we held that "only if the jury could not rationally have based its verdict on an issue other than the one the defendant seeks to foreclose does the doctrine [of collateral estoppel] preclude the subsequent prosecution." United States v. Smith, 470 F.2d 1299, 1301 (5th Cir.1973). Defendant was acquitted at the state trial of possession of the drug, not the formula. A woman who was charged with the same crime pled guilty and testified at Branch's state trial that the drug was hers. Because the jury could have found Branch innocent of possession on the woman's testimony alone, the issue of who possessed the formula was not necessarily decided at the state trial. It is therefore not precluded here. "When a 'fact is not necessarily determined in a formal trial, the possibility that it may have been does not prevent reexamination of that issue.' " United States v. Lee, 622 F.2d 787, 790 (5th Cir.1980), quoting Adams v. United States, 287 F.2d 701, 705 (5th Cir.1961).
Branch wrote threatening letters to witnesses before his trial. For these actions, the government charged him with obstruction of justice. Branch suggests that his obstruction of justice convictions are improper because the law under which he was convicted does not pertain to witnesses. The general obstruction of justice statute, 18 U.S.C. Sec. 1503, was amended in 1982 and all reference to "witnesses" was deleted. On the face of the language remaining in the statute, however, threatening a witness is covered. We have specifically ruled that such is the proper interpretation, and thus it is settled in our Circuit that Branch's conviction under this section is not in error.
By enacting Sec. 1512 to address certain kinds of witness intimidation, and simultaneously deleting from Sec. 1503 all references to witnesses, we find no indication that Congress intended that threats against witnesses would fall exclusively under Sec. 1512 and were exempt from prosecution under Sec. 1503.
Branch argues that the indictment's citation to the wrong subsection of 18 U.S.C. Sec. 1512 () is absolute error. Six months before Branch's trial, Congress amended 18 U.S.C. Sec. 1512, changing the former witness intimidation subsection (a)(1) to (b)(1), and adding a new subsection (a)(1) concerning the killing or attempted killing of any person who may give testimony at trial.
When a correct statute has been miscited, "error in citation ... shall not be the ground for dismissal of the indictment ... or for reversal of a conviction if the error ... did not mislead the defendant to the defendant's prejudice." Fed.R.Crim.P. 7(c)(3). Defendant has shown no prejudice. He argues that the indictment "is carefully couched to give impermissible latitude in proof adduced." The indictment is couched in the same way that subsection (b)(2) is couched: appellant "attempt[ed] to use intimidation and threats against Kenneth Lee Herring with the intent to influence [Herring's] testimony." Defendant clearly knew what illegality he was accused of having committed.
Defendant also contends that his arrest by State officers in December 1985 terminated his membership in any conspiracy as a matter of law. Because his indictment charged him with one conspiracy from January 1982 to June 1986, defendant contends that there is a fatal variance between the conspiracy charged and that proved. We find no variance.
The arrest of a party involved in a conspiracy does not necessarily terminate his participation in the conspiracy as a matter of law. See United States v. Rosenthal, 793 F.2d 1214, 1244 (11th Cir.1986), cert. denied, --- U.S. ----, 107 S.Ct. 1377, 94 L.Ed.2d 692 (1987). The...
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