U.S. v. Glass, s. 82-8266

• Decision Date: 11 July 1983
• Docket Number: Nos. 82-8266,82-8275,s. 82-8266
• Citation: 709 F.2d 669
• Parties: 13 Fed. R. Evid. Serv. 1283 UNITED STATES of America, Plaintiff-Appellee, v. Jimmy GLASS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 669

709 F.2d 669

13 Fed. R. Evid. Serv. 1283

UNITED STATES of America, Plaintiff-Appellee, v. Jimmy GLASS, Defendant-Appellant.

Nos. 82-8266, 82-8275.

United States Court of Appeals Eleventh Circuit.

July 11, 1983.

Theodore S. Worozbyt, Atlanta, Ga., for defendant-appellant.

Craig A. Gillen, Asst. U.S. Atty., Atlanta, Ga., for plaintiff-appellee.

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

Before HATCHETT and CLARK, Circuit Judges, and SCOTT ^*, District Judge.

PER CURIAM:

Sheriff Jimmy Glass of Henry County, Georgia, appeals his conviction in the District Court for the Northern District of Georgia for conspiring to import cocaine and methaqualone into the United States in violation of 21 U.S.C.A. Secs. 963 ¹ and 952; ² for importing methaqualone in violation of Sec. 952; for attempting to import cocaine and methaqualone in violation of Sec. 963; In spring, 1981, Larry Tew, a practicing attorney and probate judge in Henry County, Georgia, was hired to represent Ed Black and John Hathorn in a drug smuggling case. Tew began discussions with Hathorn and Black about allowing a plane loaded with drugs to land at the Berry Hill Airport in Henry County. The Berry Hill Airport was owned in part by Bill Hinton. Tew discussed the matter with Sheriff Jimmy Glass in June, 1981. Glass asked how much money they would make and indicated that some people got as much as $50,000 for doing what Tew proposed. Tew told Black and Hathorn they must pay $50,000 to land a drug plane in Henry County. Black and Hathorn agreed to pay. Sheriff Glass contacted Chief of Police Hershel Childs to discuss allowing these activities to take place in Henry County. In September, 1981, a drug shipment arrived at the Berry Hill Airport.

                for conspiring to obstruct, delay, and effect commerce through the means of extortion in violation of 18 U.S.C.A. Sec. 1951; 3  and for two counts of obstructing and attempting to obstruct commerce through extortion in violation of Sec. 1951.  We conclude that no basis exists upon which to set aside Sheriff Glass's convictions on the above six counts;  we affirm
                

In September, 1981, Ron Hoover, an airplane pilot, contacted the Drug Enforcement Administration (DEA) in Greensboro, North Carolina. Hoover informed DEA that he had been approached by Ed Black, who was seeking a pilot to fly a drug shipment into Henry County. Hoover introduced Black and Tew to a Federal Bureau of Investigation (F.B.I.) undercover agent posing as an airplane pilot willing to take the assignment. Tew made an arrangement with the undercover agent to transport drugs to the Berry Hill Airport. Tew told the agent that Police Chief Childs would be present at the airport to provide him with information regarding state and federal agents in the area, and that Sheriff Glass knew what was going on, although the pilot would probably not meet him. The undercover agent and a backup undercover agent, posing as the ground crew, met with Tew and Childs to discuss the details of the drug importation. Following the meeting, Childs informed Glass that Tew had another shipment ready to be flown into the Berry Hill Airport.

The undercover agent told Tew that he would fly to the Bahama Islands and return November 3, 1981, with a load of drugs. Tew told Glass that the drug shipment was due to land on November 3. Glass warned Tew to be careful because an ex-sheriff in another county had recently been arrested on drug importation charges.

On November 3, the undercover agent landed the plane at the Berry Hill Airport. Unknown to Childs, Glass, and Tew, the plane was actually loaded with suitcases filled with flour. In the presence of Childs, the plane was unloaded by the second undercover agent and the suitcases were taken to a motel room where Tew and the agent-pilot were waiting. The second undercover agent gave Tew $30,000 as payment for police protection. When Tew accepted the money, the agent arrested him. Backup agents arrested Childs.

Tew agreed to cooperate. Outside of Childs's presence, Tew admitted that he, Childs, Glass, and Bill Hinton were involved in the conspiracy. Initially, Childs denied that he or Glass were involved in the previous plane landing; eventually, however, he admitted that he and Glass were involved in the drug importation conspiracy. Tew and Childs agreed to make recorded telephone calls to Bill Hinton and Sheriff Glass for the DEA.

Tew called Hinton and made plans to deliver Hinton's share of the protection money. Childs called Glass and the following conversation was recorded:

Female voice: Hello?

Childs: Miss Martha, is the Sheriff in?

Martha: Yes, sir, hold on a second, okay?

Childs: Okay.

Glass: Hello.

Childs: Mr. Sheriff.

Glass: Yeah.

Childs: How are you?

Glass: Fine.

Childs: Good. Okay. A plane came in that I unloaded and went to Fulton County with it.

Glass: Okay.

Childs: I reckon we get our money tomorrow.

Glass: Okay.

Childs: Did everything go all right down there?

Glass: Yeah.

Childs: No problems?

Glass: Huh-uh (negative).

Childs: Alright. I will talk to you in the morning then.

Glass: Okay.

Childs: All right.

Glass: All right. Thank you.

Childs: Uh, bye.

The next morning, FBI agents arrested Sheriff Glass for conspiring to import drugs and for violations of the Hobbs Act. During a trip to Atlanta, the FBI agents asked Glass when he had last spoken with Childs. Glass denied speaking with Childs the night before.

At trial, Glass maintained that Tew and Childs had conspired against him. He contended that Tew, Childs, and the undercover agents had lied under oath. To bolster his case, Glass introduced numerous character witnesses to testify to his good character. In response, government counsel cross-examined various character witnesses concerning specific instances of Glass's conduct, specifically asking whether they were aware of an incident in which Glass supposedly "fixed" someone's traffic ticket in exchange for money. Additionally, in rebuttal, Glass's former secretary testified that she had twice received money from the mother of a defendant charged with drug violations. Each time, the money was sent in a plain white envelope. The secretary testified that in one instance she placed the money on Glass's desk; in another instance, Glass directed her to place the money in the glove compartment of his car.

The jury returned guilty verdicts against Sheriff Glass on all six counts. Glass filed a motion for acquittal which was denied. Glass also filed a motion for habeas corpus relief pursuant to 28 U.S.C.A. Sec. 2255. The court entered judgment on the convictions and denied the motion. Glass appeals and incorporates into his criminal appeal a separate civil appeal for habeas corpus relief pursuant to Sec. 2255.

ISSUES

Sheriff Glass argues that the cross-examination of his character witnesses as to specific instances of misconduct, especially questions of alleged "ticket fixing," was During the trial, defense counsel called many individuals, including Georgia House Speaker Thomas Murphy, and ex-United States Senator Herman Talmadge, to testify as character witnesses to Glass's good name and character. Several of the defense witnesses were cross-examined as to whether they were aware that Glass had accepted $300 to dispose of a drug case, then pending before the court.

improper under rule 405, Federal Rules of Evidence and Michelson v. United States, 335 U.S. 469, 69 S.Ct. 213, 93 L.Ed. 168 (1948).

It is well settled that once a witness has testified concerning a defendant's good character, it is permissible during cross-examination to attempt to undermine the witness's credibility by asking that witness whether he has heard of prior misconduct on the part of the defendant inconsistent with the witness's direct testimony. United States v. Hewitt, 663 F.2d 1381, 1390-91 (11th Cir.1981); United States v. Wells, 525 F.2d 974, 976 (5th Cir.1976). But see United States v. Duke, 492 F.2d 693, 695 (5th Cir.1974) (prosecution may not meet defendant's reputation evidence by cross-examination directed to specific acts, but must meet reputation evidence with other reputation evidence). A trial court's discretion in admitting inquiries as to a defendant's prior misconduct is subject to two limitations: (1) the prosecutor asking the questions must have a good faith factual basis for the incidents inquired about; and (2) the incidents inquired about must be relevant to the character traits involved at trial. Wells, 525 F.2d at 977. In this particular instance, Glass subsequently testified that he accepted $300 from a drug defendant; therefore, the prosecution had a valid good faith factual basis upon which to determine that a possible bribe may have taken place. ⁴ Additionally, the prosecution's specific questions about the alleged bribe directly relates to the character traits to which defense witnesses had testified.

The Supreme Court long ago addressed this problem. In Michelson v. United States, a defendant on trial for the bribery of a government agent called several character witnesses. Upon cross-examination of these witnesses, the prosecution asked whether the witnesses had heard that the defendant had previously been arrested for receiving stolen goods. Defense counsel objected to this line of questioning. The Supreme Court approved the cross examination and affirmed the conviction, noting:

[t]he price a defendant must pay for attempting to prove his good name is to throw open the entire subject which the law had kept closed for his benefit and to make himself vulnerable where the law otherwise shields him .... [The character witness] is subject to cross-examination as to the contents and extent of the hearsay on which he bases his conclusions, and he may be required to disclose rumors and reports that are current even if they do not affect his own conclusions ...."

Michelson, 335 U.S. at 479. In bringing forth character witnesses, Glass...