U.S. v. Eason, 90-8136
| Decision Date | 20 December 1990 |
| Docket Number | No. 90-8136,90-8136 |
| Citation | 920 F.2d 731 |
| Parties | 32 Fed. R. Evid. Serv. 45 UNITED STATES of America, Plaintiff-Appellee, v. Henry Donald EASON, Jr., Defendant-Appellant. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Donald F. Samuel, Atlanta, Ga., for defendant-appellant.
Lawrence B. Lee, Asst. U.S. Atty., Savannah, Ga., for plaintiff-appellee.
Appeal from the United States District Court for the Southern District of Georgia.
Before CLARK, Circuit Judge, HILL * and COFFIN **, Senior Circuit Judges.
Henry Donald Eason, Jr., ("Eason Jr.") appeals his jury conviction on five counts relating to converting corn and tobacco pledged to the Farmers Home Administration ("FHA") as security in 1984 and 1985 and tobacco pledged to the FHA as security in 1986. Appellant contends that the trial court erred in: (1) permitting the government to introduce evidence of a non-testifying coconspirator's prior conviction; (2) having done so, excluding evidence of that coconspirator's acquittals or of other coconspirators' acquittals; and (3) permitting the government to introduce hearsay statements of appellant's mother, father, and brother. We reverse.
I. BACKGROUND
Eason Jr. received several loans from the FHA in the 1980's. The FHA provided him in 1981 with a farm ownership loan for $175,000 and a $10,000 equipment loan. In 1984, the FHA also provided appellant with a $23,340 emergency loan. As a part of the loan package, appellant executed a promissory note, a financing statement, and a security agreement granting to the FHA the "debtor's interest in ... [a]ll crops, annual, perennial, and other plants now planted, growing, or grown, or which are hereinafter planted or otherwise becoming growing crops ..." on appellant's property. Pursuant to the security agreement, the FHA required appellant to report the amount of crops sold and to provide the agency with the checks he received for selling the goods covered by the security agreement.
In 1984, 1985, and 1986, appellant also insured his corn, soybeans, and wheat through local insurance companies who served as agents of the Federal Crop Insurance Corporation ("FCIC"). The insurance coverage provided that if production fell below a certain level then FCIC would pay a percentage of the difference. The government alleged that Eason Jr. defrauded the FCIC by harvesting his crops and selling them to a local grain dealer, Donald Eason, Sr., ("Eason Sr.") under a fictitious name. The grain dealer allegedly would fill out various documents, including "weight tickets" and "settlement statements," in the name of the fictitious payee and make a check payable to the fictitious payee for the purchase of the crops. Eason Jr. would then negotiate the fictitious payee check at a local bank. He would only supply the documentation in his real name to the crop insurance adjuster to "verify" his claimed total production. The government also alleged that Eason Jr. defrauded the FHA in a similar manner in regard to corn sales. Eason Jr. allegedly failed to report his sales of corn to grain dealers in 1984 and 1985. The government further alleged that Eason Jr. defrauded the FHA by not reporting sales of his tobacco in his wife's name in 1984, 1985, and 1986.
Prior to Eason Jr.'s trial, the government had indicted other alleged coconspirators. Approximately two years before Eason Jr.'s trial, a jury convicted Eason Jr.'s father (Eason Sr.) and mother on certain counts involving efforts to defraud the FCIC by issuing checks in the name of a fictitious payee to an informant of the Department of Agriculture. Eason Jr.'s brother-in-law, Julian Rigby, was also tried for offenses very similar to Eason Jr.'s but was acquitted. A jury also acquitted a local banker accused of being a participant in the conspiracy because he allowed farmers to negotiate fictitious payee checks at his bank.
During the trial, Eason Jr. defended the charges dealing with selling crops in fictitious names by denying that he had actually sold any crops. He acknowledged receiving fictitious payee checks from his father/grain dealer, but testified that those checks represented gifts from his father and did not reflect a sale of crops. Julian Rigby also testified that Eason Sr., his father-in-law, had given him gifts in the same manner. Additionally, Eason Jr.'s two sisters testified about having received gifts from their parents in this manner. The elder Easons did not testify.
While cross-examining Julian Rigby, the prosecutor asked Rigby about the conviction of Eason Sr. The following dialogue transpired:
Q Are you aware of other circumstances where your father-in-law may have issued checks in names other than the person that sold grain at his dealership?
A He issued a check to my sister-in-law.
Q Well, I'm talking about other farmers in the area?
A My brother-in-law, both my brother-in-laws.
Q Yes, sir. In fact, he was charged by the United States with defrauding the Federal Crop Insurance Corporation in 1987 by issuing two checks?
Q (Mr. Lee) Isn't that correct?
A You asked me if he was charged with--
Q I asked you first was he not charged with defrauding the Federal Crop Insurance Corporation--
A Yes, sir.
Q --by issuing two checks? One in the real name and one in a graveyard name?
A I think that's what the indictment said.
Q All right. And he was convicted for that; wasn't he?
A Yes, sir.
Q And he served time; didn't he?
A Yes, sir.
Subsequent to this dialogue, appellant's attorney asked for a limiting instruction 1 and moved for a mistrial on the basis that the evidence "was totally irrelevant and had no probative value, and its prejudice is such that the limiting instruction cannot cure it." The district court denied the motion.
Also during the trial, the government introduced tapes of conversations that a government informant had with Eason Jr.'s father, mother, and brother in 1987. Eason Jr. was not a part of the conversations. He had previously stopped farming and was driving a gas truck for a living when the conversation took place. On the tapes, the informant spoke of his efforts to defraud the FCIC by misrepresenting his production and receiving fictitious payee checks from the Easons. The elder Easons and Eason Jr.'s brother also made numerous statements about fictitious payee checks and defrauding the FCIC and the FHA.
At the end of the trial, the jury convicted Eason Jr. on five counts of defrauding the FHA: the 1984 and 1985 corn counts and the 1984, 1985, and 1986 tobacco counts. The jury acquitted him on seven counts, including all FCIC counts and other FHA counts.
II. ADMISSION OF EASON SR.'S CONVICTION
The admission of Eason Sr.'s conviction must be assessed in the context of the applicable federal rules of evidence. Fed.R.Evid. 401 governs the admissibility of relevant evidence. Relevant evidence is "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Fed.R.Evid. 401. A trial judge may exclude relevant evidence where "its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury." Fed.R.Evid. 403. We will not disturb the judge's determination absent an abuse of discretion. United States v. Griffin, 778 F.2d 707, 709 (11th Cir.1985).
In evaluating the judge's determination, it must be remembered that a jury "has an obligation to 'exercise its untrammeled judgment upon the worth and weight of testimony' and to 'bring in its verdict and not someone else's.' " United States v. Sorondo, 845 F.2d 945, 949 (11th Cir.1988) (quoting United States v. Johnson, 319 U.S. 503, 519, 63 S.Ct. 1233, 1241, 87 L.Ed. 1546 (1943)). Where evidence of a coconspirator's conviction is admitted, however, a jury may abdicate its duty. "The jury may regard the issue of the remaining defendant's guilt as settled and the trial as a mere formality." Griffin, 778 F.2d at 711. For this reason, the admission of guilty pleas or convictions of codefendants or coconspirators 2 not subject to cross-examination is generally considered plain error. United States v. McLain, 823 F.2d 1457, 1465 (11th Cir.1987) (citations omitted). 3
The problem confronting us was not the result of inadvertence; no witness volunteered or "blurted out" the fact that Eason Sr. had been convicted. The government deliberately introduced Eason Sr.'s conviction. The government claims that it did so in order to impeach Julian Rigby and cites United States v. King, 505 F.2d 602 (5th Cir.1974) as authority for the introduction of that evidence. Even if the government's intent were solely to use the conviction to impeach Rigby rather than to use it as substantive evidence of Eason Jr.'s guilt, which we doubt, 4 King clearly does not support the government's position. First, in King it was the witness himself whose conviction was introduced; that situation is a recognized exception to the general rule of non-admissibility. 5 Second, in King defense counsel divulged to the jury in opening argument that he intended to show that the government's chief witness could not be believed because he was "a convicted felon, who has got a record, as long as a man's arm." Id. at 605. The prosecutor anticipated this argument by having the witness admit on direct all of his prior convictions, one of which was his conviction for the fraud in that case. Id. at 606. In the instant case, defense counsel intimated no such intent. Third, King's defense counsel even brought out the charge on cross-examination of the witness by asking of what felonies the witness had been convicted and specifically asking whether the witness had been...
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