U.S. v. Farmer

• Decision Date: 21 February 1991
• Docket Number: No. 89-8868,89-8868
• Parties: 33 Fed. R. Evid. Serv. 188 UNITED STATES of America, Plaintiff-Appellee, v. Edward FARMER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1557

923 F.2d 1557

33 Fed. R. Evid. Serv. 188

UNITED STATES of America, Plaintiff-Appellee, v. Edward FARMER, Defendant-Appellant.

No. 89-8868.

United States Court of Appeals, Eleventh Circuit.

Feb. 21, 1991.

Donald F. Samuel, The Garland Firm, P.C., Atlanta, Ga., for defendant-appellant.

Edgar W. Ennis, Jr., U.S. Atty., Macon, Ga., Thomas E. Chandler, Dennis J. Dimsey, U.S. Dept. of Justice, Civil Rights Div., Appellate Section, Washington, D.C., for plaintiff-appellee.

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

Before ANDERSON and EDMONDSON, Circuit Judges, and MORGAN, Senior Circuit Judge.

ANDERSON, Circuit Judge:

Appellant Edward Farmer appeals his conviction for depriving an individual of constitutional rights under color of law in violation of 18 U.S.C. Secs. 2 and 242. Appellant also appeals from the district court's sentencing determination.

I. FACTS

The facts of this case were well stated in a prior opinion of this court in a related case, United States v. Sellers, 906 F.2d 597 (11th Cir.1990). Accordingly, we adopt the following statement of facts from that opinion:

In 1987, Roach and Sellers were investigators with the Oconee County Sheriff's Department in Watkinsville, Georgia. On November 6, 1987, Edward Farmer, a businessman in nearby Eastville, reported a burglary and theft of $10,000 from his business. Roach, a longtime acquaintance of Farmer, was assigned to investigate. On the afternoon of November 16, 1987, Farmer called Roach and informed him that he had a suspect in the theft. Roach drove out to Farmer's place of business. That same afternoon, Kenneth Wayne Hill, an employee of Farmer, had driven to Farmer's place of business after dropping off his wife and children at a friend's house. Hill was the individual Farmer suspected. Hill's electricity had been shut off, and he went to Farmer hoping to borrow some money to pay the bill. After Hill arrived at Farmer's business and began moving some equipment, Farmer went inside to telephone Roach, and a little while later Roach arrived and went inside to talk with Farmer. When they came out, Roach asked Hill to come with him down to the Sheriff's Office to talk about the theft. Hill agreed and they drove to the Office in Roach's car. At the Office, Hill was left alone for a few minutes in a booking room, and was not allowed to use the phone. Roach then took Hill to a small interrogation room with a desk and chairs but no window or telephone.

According to Hill's testimony at trial, Sellers joined Roach and they began questioning him about the theft. Hill denied any knowledge of it. Roach and then Sellers left the room, and returned with Farmer. Roach and Sellers resumed questioning Hill while Farmer struck him repeatedly on the head, sometimes knocking his head against the wall. Hill repeatedly asked Roach and Sellers to stop Farmer, but they did nothing. At one point, according to Hill, Farmer threatened to kill him. After Farmer hit Hill in the eye, Roach and Sellers finally stopped him, and Sellers took Farmer out of the room. Roach warned Hill that Farmer might kill him if he didn't talk. Hill responded that he wanted to have Farmer arrested, but Roach told him to "keep [his] damn mouth shut," and that he and Farmer would have to settle matters for themselves.

Roach drove Hill back to Farmer's place of business so Hill could get his car. Hill couldn't find his keys when they got there, so Roach agreed to drive him back to the friend's house where Hill's wife and children were staying. Along the way, they stopped at a photo store where Roach had some film developed which related to another case he was working on. Roach finally dropped Hill off at the friend's house around 6:30 in the evening. Witnesses testified that Hill was unharmed before meeting with Roach, Sellers, and Farmer that day, but that after returning with Roach, Hill's left ear was injured, his right eye was swollen and bruised, and he had "knots" on his head. A doctor who treated Hill late that night at an emergency room testified that he had a ruptured left eardrum and bruising under his right eye, consistent with being beaten about the head. An FBI agent who interviewed Hill regarding the incident the next day observed signs of injury consistent with the foregoing.

II. PROCEDURAL HISTORY

On December 9, 1988, the United States filed an indictment charging appellant Farmer, along with Roach and Sellers, with conspiracy to willfully deprive Hill of his civil rights, 18 U.S.C. Sec. 241, ¹ (the "conspiracy count"), and with aiding and abetting the willful deprivation of Hill's civil rights under color of state law, 18 U.S.C. Secs. 2 and 242 ² (the "substantive count"). The district court ordered Farmer to be tried separately from Roach and Sellers. ³ Before trial, the district court granted Farmer's motion to move the trial from Athens to Macon, Georgia. After a two-day trial beginning on March 27, 1989, the jury acquitted Farmer on the conspiracy count, but the substantive count resulted in a mistrial after the jury was unable to reach a verdict.

Aware that the government intended to retry him on the substantive count, Farmer filed a motion to dismiss the indictment on double jeopardy grounds, including the doctrine of collateral estoppel. ⁴ The district court denied the motion to dismiss on July 7, 1989. On July 11, 1989, Farmer filed a notice of appeal from the district court's order denying the motion to dismiss, ⁵ and simultaneously filed a motion in the district court seeking to stay the impendent trial pending the appeal. The district court denied the motion for stay, reasoning that it had jurisdiction to proceed with the trial because Farmer's double jeopardy claim was frivolous within the meaning of United States v. Dunbar, 611 F.2d 985 (5th Cir.), ⁶ cert. denied, 447 U.S. 926, 100 S.Ct. 3022, 65 L.Ed.2d 1120 (1980) and United States v. Bizzard, 674 F.2d 1382 (11th Cir.), cert. denied, 459 U.S. 973, 103 S.Ct. 305, 74 L.Ed.2d 286 (1982). We denied Farmer's motion for a stay pending appeal, clearing the way for the new trial on the substantive count. United States v. Farmer, No. 89-8544 (11th Cir. July 14, 1989). ⁷

At the commencement of his second trial on July 17, 1989, Farmer renewed a previous motion for a change of venue from Athens to Macon, Georgia. Farmer cited the extensive publicity surrounding the case and the importance to his defense of convincing the jurors that the state actors, Sellers and Roach, were not involved in the assault on Hill. Although the district court had granted a similar motion before the first trial, the court denied the motion and held the trial in Athens. ⁸ The district court also refused to allow the defense to remove for cause those potential jurors who knew about the previous convictions and sentences of Sellers and Roach.

The district court also made several evidentiary rulings which are challenged by appellant. First, the district court excluded evidence that Farmer believed that Hill was the burglar of Farmer's garage and that Hill was in fact the culprit. Second, the court excluded evidence that an unrelated charge was pending against Hill for theft from another employer. Third, the court refused to admit evidence that Hill was free on bond during the time of the events in this case. Fourth, the court excluded Hill's record of past convictions on a series of petty offenses. Finally, the district court permitted three relatives and friends of Hill to testify as to what Hill told them on the night of the assault.

The jury returned a guilty verdict on July 18, 1989. Farmer was subsequently sentenced to twelve months of imprisonment and ordered to pay $778.00 in restitution. Although the twelve month prison term represented the maximum sentence allowed under the statute, the district court stated that it arrived at this sentence by enhancing Farmer's offense level by two points for obstruction of justice under Sec. 3C1.1 of the Sentencing Guidelines. Specifically, the district court found that appellant had obstructed justice by telling FBI agents investigating the incident that he did not hit Hill. Farmer's trial testimony was inconsistent with those statements. R6-252. Appellant argues that the sentence enhancement was improper because his statements to the FBI officers constituted a mere denial of guilt. Farmer was denied bond pending appeal by this court on February 26, 1990, and has completed his sentence.

III. ISSUES ON APPEAL

Farmer presents the following five issues on this appeal:

A. Whether the second trial on the substantive count was barred by double jeopardy and/or collateral estoppel.

B. Whether the district court lacked jurisdiction to proceed with the second trial pending the interlocutory appeal.

C. Whether the district court's refusal to dismiss certain jurors for cause constituted error.

D. Whether certain of the district court's evidentiary rulings were erroneous.

E. Whether the district court improperly enhanced the sentence by two levels under the Sentencing Guidelines for obstruction of justice.

IV. DISCUSSION

A. The Double Jeopardy and Collateral Estoppel Claims

Appellant Farmer argues that Double Jeopardy ⁹ and the included doctrine of collateral estoppel barred the retrial on the substantive count after his prior acquittal on the conspiracy count. Farmer argues that, as a private citizen, he could not have acted under color of state law for purposes of Sec. 242 in the absence of a conspiracy. Because he was acquitted of conspiring with state officers in the first proceeding, Farmer argues that the second trial was barred because the substantive count was the same offense as the conspiracy count for purposes of double jeopardy under Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). ¹⁰ Farmer's collateral estoppel argument is essentially the same. Farmer argues that the prior acquittal on conspiracy prevents...