U.S. v. Brown

• Citation: 53 F.3d 312
• Decision Date: 15 May 1995
• Docket Number: No. 93-8181,93-8181
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Floyd BROWN, James Woodrow Mullis, Paul Wendell Calhoun, Jr., Defendants-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 312

53 F.3d 312

UNITED STATES of America, Plaintiff-Appellee, v. Floyd BROWN, James Woodrow Mullis, Paul Wendell Calhoun Jr., Defendants-Appellants.

No. 93-8181.

United States Court of Appeals Eleventh Circuit.

May 15, 1995.

Alex Zipperer, Savannah, GA, for Calhoun.

Hinton R. Pierce, U.S. Atty., Karl Knoche, Asst. U.S. Atty., Savannah, GA, Thomas M. Gannon, Kathleen A. Felton, Dept. of Justice, Washington, DC, for appellee.

James G. Middlebrooks, Charlotte, NC, for F. Brown.

Edward D. Tolley, Cook, Noell, Tolley & Wiggins, Athens, GA, for Mullis.

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

Before EDMONDSON and CARNES, Circuit Judges, and MOYE ^*, Senior District Judge.

EDMONDSON, Circuit Judge:

James Mullis appeals his conviction for money laundering on the ground of insufficient evidence. ¹ We affirm the conviction.

To show that Mullis laundered money, the government must prove that Mullis took part in a financial transaction with money he knew was obtained illegally and with the intent to promote the illegal activity or with intent to disguise the source of the money. See 18 U.S.C. Sec. 1956. In reviewing a claim of insufficiency of the evidence, we view all evidence in the light most favorable to the government. United States v. Poole, 878 F.2d 1389, 1391 (11th Cir.1989) (per curiam).

Testimony by Gene Collins showed that Mullis was part of a drug organization headed by Gene Collins that bought and sold marijuana from Texas to Georgia. ² From December 1990 to March 1991, many calls were made from Mullis' telephone to Texas. Mullis also drove Collins to Texas two or three times on drug business. Although Mullis transported no marijuana on those trips to Texas, he at another time did pick up a six-pound shipment of marijuana and take it to the 292 Club, a club owned by Collins through Collins' ownership of the Phoenix Timber Company.

Other testimony at trial showed more directly Mullis' participation in a scheme to launder the proceeds of the drug business. When Collins was buying the 292 Club, Dan McSwain, the club's owner, told Collins that McSwain could not take the entire $5000 down payment in cash. Collins testified that, in a conversation with Paul Calhoun (Collins' then lawyer) and with Mullis and Brown about the purchase of the 292 Club, Collins instructed Mullis and Brown each to go to different banks and to get a cashier's check for $2000. Collins also testified that Paul Calhoun told Mullis to show Calhoun--that is, not Collins--as the remitter of the check.

The government's evidence was possibly enough to prove guilt beyond a reasonable doubt. The evidence was enough to prove that Mullis knew that Collins' money came from the marijuana business. And the fact, among other things, that Mullis showed Calhoun as the remitter of the check might properly allow a jury to infer that Mullis knew the purchase of the 292 Club was intended to hide Collins' drug proceeds. See generally United States v. Macko, 994 F.2d 1526, 1533 (11th Cir.1993) ("Circumstantial evidence may prove knowledge and intent."). But we have no need to decide finally whether the government's evidence alone was enough to prove guilt.

In addition to the other evidence of guilt, Mullis elected to take the stand and to testify in his defense. Defendants in criminal trials are not obliged to testify. And, a defendant who chooses to present a defense runs a substantial risk of bolstering the Government's case. ³ United States v. Bennett, 848 F.2d 1134, 1139 (11th Cir.1988). "[A] defendant whose motion for acquittal at the close of the Government's case is denied must decide whether to stand on his motion or put on a defense, with the risk that in so doing he will bolster the Government case enough for it to support a verdict of guilty." McGautha v. California, 402 U.S. 183, 214, 91 S.Ct. 1454, 1471, 28 L.Ed.2d 711 (1971), reh'g denied by McGautha v. California, 406 U.S. 978, 92 S.Ct. 2407, 32 L.Ed.2d 677 (1972), and vacated in part on other grounds sub nom. Crampton v. Ohio, 408 U.S. 941, 92 S.Ct. 2873, 33 L.Ed.2d 765 (1972).

Most important, a statement by a defendant, if disbelieved by the jury, may be considered as substantive evidence of the defendant's guilt. ⁴ See, e.g., United States v. Allison, 908 F.2d 1531, 1535 (11th Cir.1990); United States v. Howard, 895 F.2d 722, 724-25 (11th Cir.1990); United States v. Bennett, 848 F.2d 1134, 1139 (11th Cir.1988); United States v. Eley, 723 F.2d 1522, 1525 (11th Cir.1984). By "substantive evidence" we mean evidence "adduced for the purpose of proving a fact in issue, as opposed to evidence given for the purpose of discrediting a witness (i.e, showing that he is unworthy of belief), or of corroborating his testimony." See Black's Law Dictionary 1429 (6th ed. 1990). To be more specific, we have said that, when a defendant chooses to testify, he runs the risk that if disbelieved "the jury might conclude the opposite of his testimony is true." Atkins v. Singletary, 965 F.2d 952, 961 n. 7 (11th Cir.1992); accord United States v. Sharif, 893 F.2d 1212, 1214 (11th Cir.1990). Mullis testified under oath that he did not know that Gene Collins was in the drug business. He also testified that he was in no way involved in helping Collins buy the 292 Club. But, the jury, hearing Mullis' words and seeing his demeanor, was entitled to disbelieve Mullis' testimony and, in fact, to believe the opposite of what Mullis said.

At least where some corroborative evidence of guilt exists for the charged offense (as is true in this case where, for example, there was evidence that Mullis helped convert cash to a cashier's check to advance the purchase of the 292 Club) and the defendant takes the stand in his own defense, the defendant's testimony, denying guilt, may establish, by itself, elements of the offense. This rule applies with special force where the elements to be proved for a conviction include highly subjective elements: for example, the defendant's intent or knowledge, such as knowing that the purchase of the 292 Club was intended to hide Collins' drug proceeds. See United States v. Morales, 868 F.2d 1562, 1574 (11th Cir.1989); United States v. Eley, 723 F.2d at 1525. Experience tells us that, where the issues in litigation involve highly subjective matters, the appearance and demeanor of the witnesses is of particular significance. See, e.g., General Ins. Co. v. Thielepape, 400 F.2d 852 (5th Cir.1968).

Because the evidence was sufficient, Mullis' conviction for money laundering is affirmed.

AFFIRMED.

MOYE, Senior District Judge, concurring and dissenting:

I.

I concur in the affirmance of the convictions of defendants Brown and Calhoun, and of Mullis's drug conviction; I most respectfully dissent from the affirmance of the conviction of defendant Mullis on the money-laundering count. I would reverse that conviction for the reason that, considering all the evidence in the aspect most favorable to the government, there was insufficient evidence upon which a reasonable jury could have found defendant Mullis guilty beyond a reasonable doubt.

This case concerns a drug money-laundering conspiracy. The "King Pin", Gene Collins, became a government witness pursuant to a plea agreement and testified against his underlings, the three appellants here, including Mullis, his driver and bodyguard. After analyzing all the government's evidence against Mullis on the money-laundering count, the majority was able to conclude only that the government's evidence was possibly enough to prove guilt beyond a reasonable doubt.

The government's evidence was possibly enough to prove guilt beyond a reasonable doubt. The evidence was enough to prove that Mullis knew that Collins' money came from the marijuana business and the fact, among other things, that Mullis showed Calhoun as the remitter of the check might properly allow a jury to infer that Mullis knew the purchase of the 292 Club was intended to hide Collins' drug proceeds. (Emphasis added).

Recognizing that under their analysis of the government's evidence, Mullis's conviction must be reversed, the majority adds:

But we have no need to decide finally whether the government's evidence alone was enough to prove guilt.

The majority does not consider what if any evidentiary contribution the defendant's testimony (or defendant's other evidence) makes toward allowing a reasonable jury to find Mullis guilty beyond a reasonable doubt, but holds that the mere fact that Mullis testified in person absolves this court of the duty of determining whether all the evidence of record was sufficient to support his conviction. It is only on this, I believe fundamental, point that I differ from the majority and feel myself compelled to dissent.

In support of its position with respect to the effect of a defendant's own testimony, the majority relies on several legal or procedural propositions, completely sound of themselves, but not altering the duty of this appellate court to insure that all criminal defendants receive due process of law which requires among other things a unanimous verdict of guilty (present here) based upon evidence upon which a jury reasonably could have found guilt beyond a reasonable doubt. The majority of a panel of a Court of Appeals today squarely holds, for the first time, that the evidence supporting the conviction of a defendant who takes the stand and testifies in his own behalf is unreviewable.

The majority says, that "Defendants in criminal trials are not obliged to testify. And a defendant who chooses to present a defense runs a substantial risk ... that he will bolster the Government case enough for it to support a verdict of guilty."

It is undisputed that, in federal court, a defendant's sworn testimony must be treated just as the testimony of any other witness, and his testimony which itself is evidence may supply the very factual element or elements necessary to his conviction.

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