U.S. v. Brown

• Decision Date: 17 January 1977
• Docket Number: Nos. 76-1335,76-1345,s. 76-1335
• Parties: 1 Fed. R. Evid. Serv. 614 UNITED STATES of America, Appellee, v. Larry Wayne BROWN, Appellant. UNITED STATES of America, Appellee, v. Larry Edward HENDRIX, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 438

547 F.2d 438

1 Fed. R. Evid. Serv. 614

UNITED STATES of America, Appellee, v. Larry Wayne BROWN, Appellant.

UNITED STATES of America, Appellee, v. Larry Edward HENDRIX, Appellant.

Nos. 76-1335, 76-1345.

United States Court of Appeals,

Eighth Circuit.

Submitted Sept. 16, 1976.

Decided Jan. 17, 1977.

H. William Allen, Wright, Lindsey & Jennings, Little Rock, Ark., for appellant (Brown) in No. 76-1335.

Kenneth F. Stoll, Asst. U. S. Atty., Little Rock, Ark., for appellee in Nos. 76-1335 and 76-1345.

W. H. Dillahunty, U. S. Atty., Little Rock, Ark., for appellee in No. 76-1335.

Ralph C. Hamner, Jr., Little Rock, Ark., for appellant in No. 76-1345.

Before BRIGHT and WEBSTER, Circuit Judges, and TALBOT SMITH, ^* Senior District Judge.

WEBSTER, Circuit Judge.

Appellants Larry Wayne Brown and Larry Edward Hendrix appeal from their jury conviction on one count of conspiracy to rob the Citizens Bank of Jonesboro, Arkansas, in violation of 18 U.S.C. §§ 2113(d) and 371. Brown had previously been acquitted by a jury on a charge of perjury arising out of his testimony before the grand jury investigating the bank robbery conspiracy. The issues presented on this appeal concern primarily (1) the application of the collateral estoppel rule as a result of Brown's prior perjury acquittal and (2) the government's cross-examination of Hendrix and use of extrinsic evidence of other conduct involving Hendrix and a third conspirator, Robert Harold Hartgraves.

At the conspiracy trial, Hartgraves, who had pleaded guilty, was the government's principal witness. It was his testimony that, following a series of conversations with Hendrix, who was then a sergeant with the Jonesboro Police Department, he enlisted the assistance of two other conspirators, Jerry Jenkins and Herbert Lane, to plan the robbery of the Indian Mall Branch of the Citizens Bank. Lane produced a proposed plan of procedure, including a getaway route and method of dropping and subsequently picking up the money. Hartgraves submitted this plan to Hendrix, who made a number of important revisions. Originally, Hartgraves was to be the man to pick up the money, but Hendrix arranged with Hartgraves to be the "pickup" man himself. Then, according to the testimony of Larry Taylor, Hendrix asked appellant Brown to pick up the money. On September 11, 1974, Jenkins, Lane and Hartgraves rehearsed the approach to the bank. Jenkins and Lane, independently of each other, reported information about the conspiracy to a deputy sheriff of Craighead County, who alerted the Jonesboro police and the Federal Bureau of Investigation. Armed with this information, the police stopped Jenkins on the morning of September 12 approximately one hundred yards from the bank, wearing clothes supplied by Hartgraves. Brown was arrested a short time later, after he was observed in a parked car near the Embassy Apartments, where the money was to be picked up.

We deal now with the separate contentions of appellants Brown and hendrix.

I. Brown

The principal issue raised by Brown on this appeal is whether the District Court erred in denying his several motions to dismiss and to limit the introduction of government evidence of his participation in the conspiracy on the ground that this factual issue had already been resolved by his acquittal in the perjury trial. ¹

In Ashe v. Swenson, 397 U.S. 436, 445, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970), the Supreme Court recognized that the collateral estoppel rule is embodied in the Fifth Amendment guarantee against double jeopardy. Collateral estoppel, as defined by the Supreme Court, "means simply that when 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." Id. at 443, 90 S.Ct. at 1194. The Court endorsed the view that the constitutional guarantee against double jeopardy "protects a man who has been acquitted from having to 'run the gantlet' a second time." Id. at 446, 90 S.Ct. at 1195.

It is, of course, difficult in most cases to ascertain from a jury's general verdict exactly what facts were necessarily found as a predicate to that verdict. We are admonished by the Supreme Court, however, not to be hypertechnical but to approach the question with realism and rationality.

(T)his approach requires a court to "examine the record of a prior proceeding, taking into account the pleadings, evidence, charge, and other relevant matter, and conclude whether a rational jury could have grounded its verdict upon an issue other than that which the defendant seeks to foreclose from consideration."

Id. at 444, 90 S.Ct. at 1194, quoting Mayers & Yarbrough, Bis Vexari : New Trials and Successive Prosecutions, 74 Harv.L.Rev. 1, 38-39 (1960).

The pleadings. The perjury indictment charged that Brown lied to a grand jury investigating the bank robbery conspiracy when he made the following answers to questions propounded to him under oath:

Q. "Do you know Lt. Hendricks (sic), Jonesboro Police Department?"

A. "Yes, sir, Larry?"

Q. "Did you all ever discuss this bank robbery."

A. "I don't know what you are talking about bank robbery."

Q. "I am talking about the attempted bank robbery up at Jonesboro."

A. "I know there was an attempt. I have no idea, information on that. They haven't told me anything about it sir. They told me there was an attempted bank robbery, they were holding me for investigation."

Q. "I am going to ask you one more time, Mr. Brown, and warn you again if you make a false statement in here the Grand Jury could indict you for perjury."

A. "I understand that."

Q. "Penalty up to five years."

A. "I understand you, sir."

Q. "Why were you at the apartment the morning, the Embassy Apartment Complex for fifteen to twenty minutes?"

A. "I was there to see a girl. That's why I was there, sir, because I was on my way earlier that morning to go see about a police job at Trumann."

Q. "Did you see Mr. Hendricks (sic) the day before you were arrested?"

A. "No, sir, I didn't."

Q. "And you and Mr. Hendricks (sic) never discussed this matter?"

A. "No, sir."

The indictment charged that the testimony of Brown was not true "in that the defendant, LARRY WAYNE BROWN, went to the Embassy Apartments at Jonesboro, Arkansas, at the request of Larry Edward Hendricks (sic) on the morning of September 12, 1974, to pick up money that was to be obtained from a bank robbery of the Indian Mall Drive-In Branch of the Citizens Bank of Jonesboro . . . ."

The evidence. We have reviewed the record of the perjury trial. The government produced Larry Dale Taylor, a friend of Brown, who testified that on the evening of September 11, 1974, he was at Brown's home until early in the morning of September 12. At that time, Brown asked to borrow Taylor's car, explaining that he intended to use it to pick up the money after it was dropped off following the bank robbery. According to Taylor, Brown told him that Larry Hendrix had asked him to do this. Taylor agreed to lend him the car. Other government witnesses described the evolution of the plan to rob the Indian Mall Drive-In Branch of the Citizens Bank of Jonesboro, including three practice runs on the bank. Law officers testified how, alerted by the information received from Lane and Jenkins, they observed Brown arrive at the Embassy Apartments, circle once around the area and then park, facing out from the curb. They testified that he walked to some weeds (where the money was supposedly to be dropped) and then returned to his car, where he sat in a slumped position. Brown left the scene after about thirty minutes and was arrested at his house shortly thereafter.

Brown's testimony in defense was that he had indeed asked to borrow Taylor's car, but only because he wanted to interview a police department in another city and was having trouble with his own car. On the morning of September 12, 1974, he stopped at the Embassy Apartments to call on a woman acquaintance who had been ill. After sitting in the car and walking once down the walk, he decided not to go in and left. Brown denied walking to the weedy area. Most significantly, he denied discussing a bank robbery with Hendrix or anyone else.

The charge. In its charge to the jury, the District Court read the indictment, which quoted the allegedly false statements. It instructed the jury that the critical statements were material as a matter of law and left it to the jury to determine whether (1) the statements were false in one or more respects specifically charged in the indictment, (2) the defendant did not believe the statements to be true when made, and (3) the false testimony was knowingly and wilfully given as charged.

Upon our review of the pleadings, the record, and the charge, it is clear to us that the jury could not have acquitted Brown without first determining that he did not have discussions with Hendrix about the bank robbery conspiracy. The statements attributed to Brown by Taylor do not lend themselves to an equivocal interpretation; either they were made by Brown or they were not. Brown denied that he made the statements and denied that he had gone to the Embassy Apartments for any other purpose than to see his sick friend. His testimony before the grand jury could not have been through mistake or inadvertence; the narrow question before the trial jury, realistically, was whether he had lied about his noninvolvement in the conspiracy. The jury must have believed his testimony; it could not have grounded its verdict upon any other issue. See Ashe v. Swenson, supra,379 U.S. at 445, 90 S.Ct. 1189. ²

In the conspiracy prosecution, Brown asserted his collateral estoppel claim in pretrial motions. The District Court, which had presided at the perjury trial, did not have a transcript of that trial and relied instead upon its recollection of what had taken place seven months before. It was the District Court's recollection that "the real issue in the perjury...