U.S. v. Brand, 84-7703

• Decision Date: 12 November 1985
• Docket Number: No. 84-7703,84-7703
• Citation: 775 F.2d 1460
• Parties: UNITED STATES of America, Plaintiff/Appellee, v. Billy Franklin BRAND and Dennis Randall Watts, Defendants/Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1460

775 F.2d 1460

UNITED STATES of America, Plaintiff/Appellee, v. Billy Franklin BRAND and Dennis Randall Watts, Defendants/Appellants.

No. 84-7703.

United States Court of Appeals Eleventh Circuit.

Nov. 12, 1985.

David B. Byrne, Jr., John M. Bolton, III, Montgomery, Ala., for defendants-appellants.

David L. Allred, Asst. U.S. Atty., Montgomery, Ala., for plaintiff-appellee.

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

Before HILL and FAY, Circuit Judges, and HOFFMAN ^*, District Judge.

WALTER E. HOFFMAN, Senior District Judge:

Billy Franklin Brand and Dennis Randall Watts appeal from their conviction and sentence on a one-count indictment charging obstruction of justice in violation of 18 U.S.C. Sec. 1503. The case was tried before a jury. The specific offense was based upon events which occurred during an earlier prosecution of these same defendants for mail fraud pursuant to 18 U.S.C. Sec. 1341.

Brand and Watts operated as partners in the sale of used cars at a dealership known as B & W Motor Company. As a result of an FBI investigation of B & W Motor Company during the latter part of 1983, defendants were charged in a five-count indictment with rolling back odometers and making use of the mails in a scheme to defraud customers.

The five counts were based on allegations of the sale of vehicles to five named individuals. Three of the counts were dismissed by the court upon the motion of the government. Defendants were found not guilty of one count, but were found guilty of the charge relating to the sale of a vehicle to Billy McCullar. The defendants were placed on probation for three years, conditioned upon payment of restitution in the sum of $799.00 and a fine of $1,000.00. This judgment is not the subject of this appeal.

Prior to the beginning of trial in the odometer/mail fraud case, the government learned that defendants had allegedly sought to obtain a false written statement from Billy McCullar, a witness subpoenaed by the government. This endeavor resulted in a prosecution of Brand and Watts for attempting to influence, obstruct and impede the due administration of justice by endeavoring to obtain from McCullar a false written statement for use in a case in which Brand and Watts were defendants. Defendants were subsequently found guilty of obstruction of justice and they filed this timely notice of appeal.

I.

On March 6, 1982, McCullar purchased a 1979 Ford pickup truck from B & W Motor Company. At the time of purchase the truck had 42,716 miles registered on the odometer, even though the truck had actually been in excess of 82,000 miles. McCullar neither knew nor had any reason to believe that the odometer was not accurate, except that he knew that the recorded mileage was not guaranteed.

When McCullar made the purchase he was given a bill of sale which stated that the mileage on the truck was not guaranteed. Several days later an odometer statement was mailed to McCullar which had not been checked in the space provided on the form to indicate the mileage on the vehicle was accurate.

In November of 1983, Long, a special agent with the FBI, held several discussions with Brand and Watts, pursuant to an investigation that they had altered the odometers on vehicles at B & W Motor Company. Subsequent to these discussions, Brand and Watts signed written statements attesting to their responsibility for the altering of odometers in at least fifteen vehicles, including the truck sold to McCullar.

Watts admitted in his statement that he specifically sold the truck to Billy McCullar and that Billy McCullar was not informed that the odometer was altered to indicate fewer miles than actually had been driven.

Based upon the statements given Agent Long, defendants were indicted on five counts of mail fraud. Defendants represented to Curtis Gordon, the attorney defending Brand and Watts when indicted, that they were innocent of the charges; that they had not defrauded nor deceived any of their customers who made purchases of used automobiles.

While negotiating the case with David L. Allred, an Assistant United States Attorney, Gordon communicated defendants' belief that, when the vehicles were sold, the customers were aware that the odometers were not accurate, and that the customers had signed affidavits to that effect when making the purchase.

The government attorney asked Gordon to produce affidavits from the customers to reaffirm that they were aware the odometer was incorrect, or that it had been altered, and that the government would, in turn, dismiss the case or reduce the felonies to misdemeanors. Allred explained to Gordon that the statements from the customers would have to discuss the mileage and it would not suffice for the affidavit to say that the customers had a bill of sale stating that the mileage was not guaranteed.

Gordon conveyed to Brand and Watts the substance of the discussion with the government attorney. Gordon advised defendants to meet with the customers they were charged with defrauding and to obtain affidavits setting out the circumstances of the purchase, and the fact that they were aware, if they were aware, that the odometers were not accurate when they purchased the vehicles. Gordon stated to defendants that it was important that defendants get these documents to him so that he could give them to the government attorney. Gordon further stated to defendants that he wanted to meet with these witnesses, but he was having problems in locating them.

Defendants contacted Dale McCullar to arrange a meeting with Billy McCullar. ¹ Dale McCullar phoned Billy McCullar and informed him that Brand and Watts had a statement they wanted him to sign that would take care of the entire matter, and that no one would have to go to court.

Brand and Watts, accompanied by Dale McCullar, visited Billy McCullar at Billy McCullar's home one afternoon, and during the course of approximately one hour, and in the presence of several other people, ² Brand and Watts requested Billy McCullar to sign a statement more than once, perhaps as many as three times. Billy McCullar testified that he was shown a typewritten statement which said:

"I, ______________, purchased this vehicle described below from B & W Motors with knowledge the speedometer was not correct at the time of purchase."

Billy McCullar further testified that defendants told him they were not responsible for rolling back the odometer on his truck, and that Billy McCullar's truck was the only one involved in the case. Billy McCullar stated he told Brand and Watts he could not sign the statement because it was not true.

However, Billy McCullar agreed to sign, and did sign, a statement which he believed to be true, which he dictated to defendants saying:

"I bought this 1979 Ford pickup, serial number from B & W Motor Company, and they didn't guarantee miles to be correct."

Billy McCullar conceded at the obstruction of justice trial that Brand and Watts did not bribe or threaten him; nor influence his testimony; nor prevent him from appearing in court; nor attempt to tell him what his testimony should be. Consistent with the foregoing testimony, Billy McCullar stated on cross-examination that he had even intended on riding to court with defendants on the day of trial.

Watts testified and denied that he altered the odometer of Billy McCullar's truck. Watts further denied that the statement shown to Billy McCullar was false. Watts stated that he first showed Billy McCullar a statement that was signed by Troy Guthrie, another customer/witness in the mail fraud case. When Billy McCullar refused to sign that statement, Watts stated he returned to his car and got a blank statement, turned it over, and wrote out what Billy McCullar agreed he would sign.

Watts testified that he did not consider the statement he first showed to Billy McCullar to be false because there was little difference between that statement and the one Billy McCullar signed when he purchased the vehicle, stating the mileage was not guaranteed to be accurate.

Watts further denied that the statement he signed and gave to FBI Agent Long was true and accurate. Although Watts admitted to signing a document which stated he had rolled back odometers on certain vehicles, Watts said that he was led to believe, by Agent Long, that it would be easier for defendants, Brand and Watts, if they cooperated and signed the document; that the most severe penalty defendants could incur was a fine or a misdemeanor.

Watts testified that he and Brand visited Billy McCullar only pursuant to the advice of counsel. Watts stated that neither he nor Brand made any false statements to Billy McCullar to induce Billy McCullar into signing the document and, in fact, the allegedly false statement was never signed by McCullar, nor was it presented in evidence. In reference to the testimony given by Billy McCullar when he stated that he was told that he was the only person involved in the case, Watts explained he and Brand had told Billy McCullar there were other statements to be signed and that defendants had talked with all the other witnesses.

Brand also testified and denied any wrongdoing concerning the odometer and the written statement. Brand testified that the statement that he and Watts requested Billy McCullar to sign was the same as the statement the other witnesses had signed, and that the statement was what their attorney had advised defendants was needed to have the case dismissed.

Brand further denied that he was at the dealership when McCullar initially purchased the truck. Brand testified to an exhibit introduced, namely the bill of sale given to Billy McCullar, which included the salesman's initials as "M." Brand testified the initials as that of Mike Smallwood, the salesman whom Brand stated sold the truck to Billy McCullar.

Brand stated defendants showed McCullar the statement of Troy Guthrie and inquired of Billy McCullar,...