U.S. v. Cross

• Decision Date: 13 March 1981
• Docket Number: No. 79-5704,79-5704
• Citation: 638 F.2d 1375
• Parties: 7 Fed. R. Evid. Serv. 1457 UNITED STATES of America, Plaintiff-Appellee, v. Ransom Patrick CROSS, Defendant-Appellant. . Unit A
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1375

638 F.2d 1375

7 Fed. R. Evid. Serv. 1457

UNITED STATES of America, Plaintiff-Appellee, v. Ransom Patrick CROSS, Defendant-Appellant.

No. 79-5704.

United States Court of Appeals, Fifth Circuit.

Unit A

March 13, 1981.

Charles L. Roberts, El Paso, Tex., for defendant-appellant.

Jamie C. Boyd, U. S. Atty., Le Roy Morgan Jahn, Asst. U. S. Atty., San Antonio, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Western District of Texas.

Before WISDOM, RUBIN and SAM D. JOHNSON, Circuit Judges.

ALVIN B. RUBIN, Circuit Judge:

Ransom Patrick Cross was convicted of two counts of making false material declarations before a grand jury in violation of 18 U.S.C. § 1623. Asserting several trial court errors, an improper breach of the attorney-client relationship by the government, and challenging the sufficiency of the evidence to support Count I of the Indictment, Cross contends that the convictions should be reversed. Discerning no reversible trial court error that affects Count II, we affirm the conviction on that count. However, the evidence adduced in support of the first count consisted only of two conflicting statements. One of them was made while Cross was under oath, but the other was not made under oath. This was insufficient as a matter of law to support the conviction. Therefore, we reverse the conviction on Count I.

Cross, a former criminal investigator with the El Paso, Texas Sheriff's office, was being held in the county jail, apparently on both state and federal charges. Seeking to "make a deal" with the federal authorities, Cross informed one of the jailers that he had some important information concerning the attempted assassination of Anthony Kerr, a local Assistant United States Attorney. In response to Cross's request, a meeting was arranged between Cross and Captain Reyes of the El Paso Sheriff's Department. After receiving some general information from Cross, Captain Reyes relayed Cross's request to federal agents. Cross subsequently met with a Federal Bureau of Investigation Agent and gave the agent a detailed description of the handguard of the weapon allegedly used in the assassination attempt. Cross informed another F.B.I. agent named Boyd that one "Timken" Larson and other members of the Banditos, a local motorcycle gang, were involved in the attempted assassination and reiterated his detailed description of the weapon. Cross, who had been closely involved with the Banditos when he was a criminal investigator, indicated that his information was based on conversations with the actual participants.

Agent Boyd, assuming that he had reached an agreement with Cross, recommended that the charges pending against Cross be dropped. The agent's recommendation was accepted and the federal charges were dropped. ¹ Cross was then called to testify before a grand jury that was investigating the attempted assassination of Kerr. The following questions were asked of Cross before the grand jury:

"Q. What have you heard from the Bandits?

A. Nothing.

Q. What have you heard from Timken about the matter?

A. Nothing.

Q. Has Timken discussed this with you at all?

A. No sir.

Q. Has Big Jimmy?

A. Only in the sense of wondering who did it ..."

The questioning then turned to the weapon used in the attempt:

"Q. Where is the gun?

A. I don't know.

Q. What have you heard about it?

A. Nothing more than what the officers have told me.

Q. What officers have given you a description of the gun.

A. Officer Jim Beck of the F.B.I. in El Paso.

Q. He told you what, specifically?

A. As best as I can recall, I had read in the newspapers that it was a M-1 Carbine, a .30 caliber carbine, and he specifically told me, in my front yard in the presence of another agent, that the handguard on the front of the weapon was ventilated metal."

On the basis of these statements, the grand jury returned an indictment charging Cross with two counts of making false material declarations. Cross was tried on this indictment.

When the jury was unable to arrive at a verdict, a mistrial was declared. After the trial, without the approval of Cross's counsel, the government communicated with Cross and prevailed upon him to take a polygraph test. Cross was subsequently retried and convicted on both counts.

I

Cross challenges the sufficiency of the evidence presented in support of the offense charged in Count I. The essential elements of a prosecution under 18 U.S.C. § 1623 are (1) knowingly making (2) a false (3) material declaration while (4) under oath. Cross contends that there was insufficient evidence to support the conclusion that the statements he made before the grand jury concerning his conversations with the Banditos, Timken or Big Jimmy were false. The only evidence supporting the charge that he testified falsely to the grand jury was the inconsistency of the statements Cross made to Agent Boyd with his grand jury testimony.

Patently, one of Cross's statements was incorrect. However, the jury could not possibly determine beyond reasonable doubt from the evidence before it which one was false. While two inconsistent statements, each made while the declarant was under oath, are sufficient to support a charge of violating 18 U.S.C. § 1623, see 18 U.S.C. § 1623(c), see, e. g., United States v. Patrick, 542 F.2d 381 (7th Cir.), cert. denied, 430 U.S. 931, 77 S.Ct. 1551, 51 L.Ed.2d 775 (1976), two inconsistent statements, only one of which is made under oath, are insufficient, without additional independent evidence, to support the conclusion that the one made before the grand jury was untrue. There was no documentary or testimonial evidence that proved Cross had in fact discussed the attempted assassination with Timken, Big Jimmy or the Banditos. We must, therefore, reverse the conviction on Count I of the indictment.

II

Cross next raises two assertions of error that arise from the government's visit to his home between trials. During that visit, Cross acceded to an F.B.I. agent's request to take a polygraph test. No one communicated with Mr. Cross's counsel before the visit or the test and the lawyer was unaware of either until the date jury selection commenced for the second trial. Three days later, after the jury had been selected, defense counsel filed both a motion for a continuance, to give him time to determine what evidence the government had gleaned from the polygraph test, and a motion to suppress any evidence derived from it. The trial court denied the motion for a continuance but granted the "Motion to Suppress Illegally Obtained Evidence and the Fruits Thereof."

Despite the successful attempt to have the evidence suppressed, Cross argues that the refusal to grant a continuance violated his sixth amendment right to counsel and, therefore, warrants a new trial. Viewing the totality of circumstances surrounding the request for a continuance, we do not believe that Cross's right to counsel was violated. A request for a continuance is committed to the sound discretion of the trial court. The trial judge's ruling should not be disturbed unless there is a clear showing of abuse of that discretion, United States v. Siegel, 587 F.2d 721 (5th Cir. 1979), by evidence that he was prejudiced by the trial court's action. United States v. Houde, 596 F.2d 696 (5th Cir. 1979).

Cross contends that he was prejudiced by the denial because there was insufficient time to repair a damaged attorney-client relationship. He asserts that the damage was caused by his attorney's surprise that Cross had consented to a polygraph test. In addition, he argues that more time was needed to discover the fruits of the polygraph test. These contentions must fail for two reasons. There is no evidence in the record, other than the vehement protestations in his brief filed in this court, that Cross and his attorney were unable to cooperate after the polygraph test was disclosed to counsel. Moreover, the trial judge granted Cross's pretrial motion to suppress the polygraph test and all evidence that was derived from it. Under the circumstances, suppression was all that was required. Therefore, concluding that Cross was not prejudiced by the trial court's denial of his requested continuance, we find that he was not deprived of his right to counsel.

Cross next contends, with respect to the polygraph test, that the incident represents an intentional breach of the attorney-client relationship by the government and that the only proper remedy is dismissal of the indictment. It is unquestionable that the conduct of the F.B.I. agent, apparently approved by the United States Attorney, represents a grossly improper breach of Cross's relationship with his trial counsel. See Lee v. United States, 322 F.2d 770, 777 (5th Cir. 1965) ("legal ethics forbid a United States attorney or a government agent to by-pass the lawyer of a defendant",) See also Code of Professional Responsibility, Disciplinary Rule 7-104. This does not mean, however, that the only proper remedial measure is dismissal of the indictment.

The Supreme Court, in United States v. Morrison, --- U.S. ----, 101 S.Ct. 665, 66 L.Ed.2d 564 (1981), recently addressed the question whether dismissal of an indictment was appropriate relief to be afforded a criminal defendant whose sixth amendment right to counsel had been violated. There, two government agents who knew that the defendant was represented by counsel, visited her home with neither the knowledge nor permission of her counsel. During their visit, the agents characterized the trial judge as someone who would give the defendant a lengthy jail term, observed that they could make sentencing recommendations to the United States Attorney and disparaged the ability of her trial counsel. The Court, assuming that the government conduct violated the sixth amendment, held that, even where the violation was deliberate, dismissal of the indictment was inappropriate "absent demonstrable prejudice, or substantial...