U.S. v. Gray

Decision Date04 January 1978
Docket NumberNo. 77-5164,77-5164
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Billy GRAY, Defendant-Appellant.
CourtU.S. Court of Appeals — Fifth Circuit

Phillip E. Kuhn, Memphis, Tenn., for defendant-appellant.

J. V. Eskenazi, U. S. Atty., Marsha L. Lyons, Asst. U. S. Atty., Miami, Fla., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before BROWN, Chief Judge, RONEY and FAY, Circuit Judges.

JOHN R. BROWN, Chief Judge:

Gray appeals from his conviction for wire fraud and conspiracy. He raises ineffective assistance of counsel, continuance, pre-indictment delay, and Miranda issues, and also claims that the District Court's imposition of a nine-year sentence was an abuse of discretion. Finding merit in none of these claims, we affirm. But in doing so we think it helpful to present in greater detail than usual the developments at the trial.

Promises, Promises

On July 28, 1975, Gray, a lawyer, and Frank Peel, using the name John Justin, made and caused to be made a series of phone calls from Peel's office in Tennessee to William Ponsoldt who tape recorded the conversations. Ponsoldt was under indictment in the Southern District of Florida. Gray and Peel told Ponsoldt that they were aware of the charges pending against him and that they would use their influence with various public figures to "fix" his case in exchange for $150,000. Between them Gray and Peel immodestly claimed knowing or having close connections with Senators Baker, Brock, Eastland, and Stennis, former Senator Sam Ervin, Representative Jamie Whitten, Sr., former Watergate Special Prosecutor James Neal, and Jamie Whitten, Jr., the Assistant U.S. Attorney in charge of the Ponsoldt prosecution.

Ponsoldt made copies of these tapes 1 and gave them to his attorney who, in turn, passed them on to the FBI. Pursuant to arrangements made with the Bureau, Ponsoldt called Gray and proposed a meeting. On August 13, 1975, Gray flew to Miami and at a designated hotel met with FBI Agent Peisner who was posing as Ponsoldt. 2

During their conversation Gray made many incriminating statements which need not be detailed here. However, the following is noteworthy. Gray stated that John Justin (the pseudonym Peel used) was not present because he had to run some errands for Senator Eastland. Gray promised to donate his full time to Ponsoldt's problem. He stated that he was traveling to Honduras for a scuba diving expedition with one of the three appeals court judges who would hear Ponsoldt's appeal if he was convicted. Peisner-Ponsoldt told Gray that as long as he knew that Gray or John (Justin-Peel) could fix his case, he would feel much better about turning the money over to him. Gray responded that he would sign a note for the money and "after the case is taken care of, we'll figure out what it was worth." Tr. 362.

When the conversation ended, Gray was arrested. Peisner, acting in the best Boy Scout tradition, had prepared for the meeting by wearing a body recorder. The entire conversation was taped.

Pretrial

Gray and Peel were first charged with extortion (R. 19), but the complaint was withdrawn on September 2, 1975. The government continued its investigation. Tr. 425; January 31, 1977 hearing, Tr. 13. In March 1976, Peel-Justin died. On August 26, 1976, a seven-count indictment 3 was returned against Gray charging him with wire fraud in violation of 18 U.S.C.A. § 1343, 4 aiding and abetting Peel to commit that offense in violation of 18 U.S.C.A. § 2, and conspiracy to commit that offense (18 U.S.C.A. § 371).

On October 20, 1976, the defendant moved to dismiss the indictment based on prosecutorial delay which allegedly prejudiced Gray due to the intervening death of Peel. This motion was denied on the first day of trial without prejudice to renewal after the close of the government's case. Tr. 19. 5

On October 29 the government moved to take the depositions of Senators Baker, Brock, Eastland, former Senator Ervin, and Congressman Jamie Whitten, Sr. Following opposition by the defendant, the Court denied the motion.

The Trial

On Monday, December 13, 1976, defense counsel Sisson moved for a continuance. The first basis put forth was difficulty encountered in locating three defense witnesses. Tr. 5-10. The second basis was Sisson's physical condition. He was losing his voice and thought he was coming down with the flu. Tr. 10-11. The government opposed continuance, citing first, a lack of due diligence and a showing as to the materiality of the witnesses' testimony, and second, the peculiar problems in scheduling the appearance of the public figures.

In an apparent effort to bolster his position on the continuance motion, Sisson made a proposal which was resolved as follows:

MR. SISSON: . . . Miss Lyons (government counsel) has previously requested my motion to either have a deposition of the senators taken or for me to stipulate that Mr. Gray does not know them personally. At this point, if this will assist, because I do not feel I can go further, then we can dispense either with bringing them down by either deposition or by stipulation. I think that would solve a great deal of that problem.

THE COURT: Miss Lyons? Is this

MISS LYONS: Your Honor, I am really offended by counsel's tactics here. It seems like counsel is trying to bargain with the Court. I made this motion and I have asked counsel repeatedly to stipulate to these matters and he has repeatedly said that he would not. In fact, he wrote me a letter stating that he could not stipulate because he believed that Frank Peel did know several of the senators and he named them. I think at this point, the arrangements have been made, the trial is ready to proceed, and I don't understand

THE COURT: All right, the motion is denied at this time.

Tr. 20-21.

Counsel for both sides made their opening statements. The first government witness, a supervisor with South Central Bell Telephone in Memphis, verified the phone records of toll calls made from Peel's office. Cross-examination of this witness ended the morning session.

After lunch, Sisson moved for an adjournment. He was feeling much worse. The Court suggested that possibly Sisson's young associate, David Bales, could take over. Sisson responded that Bales knew nothing about the case. The Court agreed to an adjournment until Tuesday so Sisson could see a doctor and suggested that Bales could handle the testimony of the public figures now that Sisson was willing to stipulate to their testimony. Sisson indicated that his primary concern was legal arguments over the tapes. Tr. 44-48. He went on to state:

(H)e (Bales) can handle that phase of it, because there will be very little cross examination as to Mr. Gray. I do know the information I have that the deceased (Peel) . . . may have known these people.

Tr. 49. The Court stated that Bales could attempt to develop that Peel knew the public officials and the Judge offered to help in any way he could. Sisson stated, "He (Bales) can certainly handle that phase of it." Id.

On Tuesday, December 14, Bales reported to the Court that Sisson had seen a doctor and was diagnosed as having a virus and high blood pressure. Sisson was suffering from nausea, shortness of breath, dizziness and chest pains. Tr. 60-63. The Court proposed continuing with the testimony of the public figures who were "rather perfunctory witnesses" and appointing a federal public defender to assist the defense. Tr. 63. Bales agreed to the appointment. Tr. 68.

Senator Eastland was called to the stand. He testified that he did not know and had never talked to Peel, Justin or Gray. 6 The defense did not cross examine. 7

Representative Jamie L. Whitten of Mississippi testified that he did not know Peel, Justin or Gray. On cross-examination, it was brought out that the Congressman knew the name Peel but did not know any individuals in the Peel family. 8

James F. Neal testified that he did not know Peel or Justin, had no recollection of knowing Billy Gray, and did not recognize Gray in the courtroom. Bales cross-examined Neal, and because he wanted to exceed the scope of direct, he made Neal a defense witness. 9

At this point, public defender Sakowitz entered the courtroom. After explaining Sisson's illness and discussing how the trial should proceed, the Court confirmed the fact that Gray wished the public defender to assist the defense. Tr. 89-93. Sakowitz agreed to proceed as outlined by the Court.

Jamie Whitten, Assistant U. S. Attorney who prosecuted the Ponsoldt case, then testified that he did not know Peel, Justin or Gray. Bales did not cross-examine. 10

Senator Howard Baker testified that he did not know Peel, Justin or Gray. Bales made the Senator a defense witness in order to exceed the scope of direct and conducted a fairly extensive cross-examination which failed to establish a Baker-Gray connection. 11 Court adjourned at 12:55 p. m.

Bales reported at the beginning of the session on Wednesday that Sisson had over-exerted himself conferring with Sakowitz the previous day but that he would attempt to return to court that afternoon after seeing another doctor.

Senator William Brock then took the stand and denied knowing Peel or Justin. He may have known Gray in the past although he did not recognize his name when he was first asked about the matter. The Senator may have met Gray during the course of a political campaign but he never had a close relationship with him. The defense did not cross-examine. 12 Former Senator Sam Ervin did not know Peel, Justin or Gray, and he was not cross-examined. 13

The public figures' testimony having been concluded, attention focused on how to proceed. The Court decided to adjourn, to get a report on Sisson's condition the next day (Thursday), and if he was not improved by then, to adjourn until Monday thus giving Sakowitz and Bales five days to prepare and Sisson five days to recover. Tr. 151-52.

Bales...

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