U.S. v. Brasseaux, 74--2882

• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)
• Writing for the Court: THORNBERRY
• Citation: 509 F.2d 157
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jeffrey Roy BRASSEAUX, Defendant-Appellant.
• Docket Number: No. 74--2882,74--2882
• Decision Date: 05 March 1975

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509 F.2d 157 UNITED STATES of America, Plaintiff-Appellee,
v.
Jeffrey Roy BRASSEAUX, Defendant-Appellant. No. 74--2882. United States Court of Appeals,
Fifth Circuit. March 5, 1975.
Rehearing and Rehearing En Banc
Denied April 3, 1975.

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James A. McPherson, New Orleans, La., for defendant-appellant.

Douglas M. Gonzales, U.S. Atty., Baton Rouge, La., James D. Carriere, Special Asst. U.S. Atty., New Orleans, La., Stephen A. Mayo, Asst. U.S. Atty., Baton Rouge, La., for plaintiff-appellee.

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

Before THORNBERRY, COLEMAN and ROSENN ^*, Circuit Judges.

THORNBERRY, Circuit Judge:

J. Roy Brasseaux appeals from his conviction under an indictment charging him with participation in a conspiracy to obstruct justice ¹ in violation of 18 U.S.C. § 371. ² He contends that the evidence against him was insufficient to establish the offense alleged in the indictment and that an erroneous statement in the judge's instructions to the jury deprived him of a fair trial. The following facts, taken from the evidence viewed in the light most favorable to the government, are necessary to understand appellant's first contention.

I.

In February, 1970, one Richard Baker testified before a grand jury in New Orleans that he had heard Edward Grady Partin threaten Wade McClanahan in an

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attempt to dissuade McClanahan from testifying at Partin's federal trial for criminal antitrust and Hobbs Act violations. The government sought and received an obstruction of justice indictment against Partin based on this threat. The prosecution intended to call Richard Baker as a witness at the trial of the case but because of some oversight lost track of Baker after he was released from a prison in Texas where he was serving time on an unrelated charge. Having located Baker on September 27, 1972, while he was working as a crewman on a river tugboat, an FBI agent notified Baker that he was expected to testify for the government at Partin's obstruction of justice trial on October 10, 1972, in Houston. Baker responded that he would not testify. Upon receiving this information the somewhat surprised prosecutor obtained two subpoenas for Baker. One commanded his attendance at the October 10 trial of Partin and the other requested his presence on October 5 before a grand jury investigating whether another obstruction of justice had taken place because of Baker's apparent hesitance to repeat at trial his prior grand jury testimony against Partin. These subpoenas were served on Baker on September 30, 1972.

That same day Baker and a shipmate, Sam Howard, left ship at Pittsburgh, Pennsylvania, and together decided to call Partin in Baton Rouge, Louisiana, to let him know that Baker would not testify. Impersonating Baker, Howard eventually got a call through on October 2 and informed Partin of his unwillingness to testify and of his need for money. He also stated that he had never heard Partin threaten McClanahan. After a series of telephone calls it was agreed that Jerry Millican, an attorney, would come to Pittsburgh the next day, accompanied by Don Marionneaux, a friend of Partin's, in order to take Baker's statement. Howard was told that if he (Baker) would give a statement favorable to Partin, he would be given five hundred dollars for the statement and a good job after Partin's trial.

On October 3 Marionneaux and Millican flew to Pittsburgh and met Baker. They told him that arrangements had been made for Baker to give his statement at 6:00 p.m. before a former United States Attorney, Gustave Diamond. Millican then left and Marionneaux gave Baker fifty dollars and advised him that he would get the rest after giving his statement. At the appointed time Baker made the promised statement and when alone with Marionneaux was given an additional $450. Millican, Marionneaux, and Baker later that night flew back to Baton Rouge, arriving in the early morning hours of October 4. Meanwhile, Sam Howard became concerned about Baker's safety--Baker having expressed some fear of Partin--and informed Mr. Gallinghouse, the United States Attorney in New Orleans, of the foregoing transactions. This information led Gallinghouse to cause a material witness warrant to issue for Baker's arrest pending his testimony at Partin's trial in Houston on October 10.

Once in Baton Rouge on October 4, Don Marionneaux, Marionneaux's brother Hugh, Richard Baker, and Baker's brother James, engaged in a complex bout of drinking and driving that culminated with Richard Baker and Don Marionneaux spending the night in a motel in Lake Charles, Louisiana. Sometime during this period it was agreed that Baker would not appear before the grand jury the next day. On October 5, appellant Brasseaux finally entered the picture when he and Hugh and Don Marionneaux made arrangements for Baker to stay at Brasseaux's house near Duson-Scott, Louisiana. Brasseaux's first contacts with Baker took place, however, after the time had already passed for Baker's grand jury appearance that morning.

Baker remained at Brasseaux's house, except for one brief period, until the morning of October 9, but later that day appellant took Baker to a camp in Grand Chevier, Louisiana, where Baker remained until approximately October 29 or October 30, 1972. Meanwhile, because

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of the absence of government witnesses, including Baker, the Partin obstruction of justice trial originally set for October 10 was continued until October 31. Appellant went to the camp 'a couple of times' while Baker was there, taking him to get groceries on several occasions, and maintained telephone contact with the camp. At the end of October, Baker was moved first to Galveston and then to Houston, Texas. Brasseaux played no part in these moves. On November 2, 1972, Baker testified at the Partin trial and denied having heard Partin threaten McClanahan or having received $450 from Don Marionneaux. This testimony about his financial transactions with Marionneaux formed the basis of the government's charge that Baker...