U.S. v. Griffin, s. 77-1597

• Decision Date: 28 July 1978
• Docket Number: 77-1601,Nos. 77-1597,s. 77-1597
• Citation: 579 F.2d 1104
• Parties: 3 Fed. R. Evid. Serv. 963 UNITED STATES of America, Appellee, v. Charles Thomas GRIFFIN and Joe Henry Chambers, Appellants.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1104

579 F.2d 1104

3 Fed. R. Evid. Serv. 963

UNITED STATES of America, Appellee, v. Charles Thomas GRIFFIN and Joe Henry Chambers, Appellants.

Nos. 77-1597, 77-1601.

United States Court of Appeals Eighth Circuit.

Submitted March 14, 1978.

Decided June 29, 1978.

Rehearing and Rehearing En Banc Denied July 28, 1978.

Leon B. Catlett, Little Rock, Ark., argued and on brief, for Griffin.

Steven L. Festinger, Little Rock, Ark. (argued) and Dale Price, Little Rock, Ark., on brief, for Chambers.

W. H. Dillahunty, U. S. Atty., and Samuel A. Perroni, Asst. U. S. Atty., Little Rock, Ark., argued and on brief, for appellee.

Before VAN OOSTERHOUT, Senior Circuit Judge, HENLEY, Circuit Judge, and LARSON, Senior District Judge. ^*

VAN OOSTERHOUT, Senior Circuit Judge.

On November 1, 1976, the federal grand jury returned a five-count indictment against Charles Thomas Griffin, Joe Henry Chambers and Bill Hansell. Not guilty pleas were entered. Upon a joint trial to a jury, commencing on June 20, 1977, defendant Griffin was found guilty on Counts I, II and V. Defendant Chambers was found guilty on Counts I and III and not guilty on Count V. ¹

Griffin and Chambers have each filed a timely appeal from their conviction. The defendants were jointly tried below and their cases are consolidated upon this appeal. Each defendant has filed separate briefs. Hansell has not appealed from his conviction.

Count I alleges a conspiracy on the part of the defendants to violate 18 U.S.C. § 1006. Count II charges Griffin with violation of 18 U.S.C. § 1006. Count III charges Chambers with violation of 18 U.S.C. § 1006. Count IV involves a charge against Hansell not here material. Count V charges defendants with violation of 18 U.S.C. §§ 1014 and 2.

Griffin relies upon the following points for reversal:

I. Prejudicial conduct of the Assistant United States Attorney in reading in part of his opening statement written statements given to Government investigators.

II. Failure to dismiss Count II as defective.

III. Failure to dismiss Count V.

IV. Error in admitting evidence of repurchase of 2,880 acres.

V. Error in admitting evidence of other transactions.

VI. Error in permitting Boggess to testify.

VII. Failure to produce Brady material and denial of admission of certain minutes of Lonoke PCA.

Chambers makes the same contention with respect to Count III as Griffin does with respect to Count II. He also relies upon points I, III, IV, V, VI and VII asserted by Griffin. Such errors will be discussed jointly with respect to both appeals.

Chambers urges the following additional points:

VIII. Refusal to grant a severance.

IX. Error in instructions.

For the reasons hereinafter stated, we reject each of the contentions made and affirm the convictions.

The trial was a long one. The record is very extensive. A complete analysis of the facts and issues would unduly extend this opinion without serving a significant useful purpose. We shall summarize some of the pertinent facts bearing upon the issues raised. There is a dispute as to some of the material facts. However, in light of the jury verdict in favor of the Government, we view the evidence in the light most favorable to the Government as the prevailing party, and the facts are stated with this principle in mind. The Lonoke Production Credit Association (PCA) is a federally-chartered instrumentality of the United States under the supervision of the Federal Intermediate Credit Bank of St. Louis, Missouri, and the Farm Credit Administration. Griffin was president and Chambers was vice president of Lonoke PCA. Hansell was manager of the East Lonoke branch.

In 1973 Huntsman, a large farm operator, contacted Griffin in an effort to secure financing for his farming operations. Huntsman was told by Griffin that Hansell would take care of his needs. Huntsman was unsuccessful in obtaining 1973 crops loans and had no success with his 1974 application. He was told St. Louis was fussing about Huntsman's not having sufficient farming operations in the Association's territory.

In July 1974 Hansell visited Huntsman and suggested the purchase of a 2,880 acre tract of land which Hansell said would make it easier for the PCA to give him his desired line of credit. Hansell said Griffin was waiting for a call to him of Huntsman's decision on the purchase and that PCA could finance 100% Of the purchase price. Huntsman, with some reluctance, agreed to buy the land. A loan application for $513,800 was prepared and was signed by Huntsman. The application states the loan is a crop loan. The loan application was approved by the PCA loan committee of which Griffin was an influential member. ²

The involved 2,880 acre farm was purchased by Griffin, Chambers and Hansell for $470,000 in late July of 1974 with title taken in the name of O. M. Young, Trustee. ³ The Brauer land was encumbered by existing encumbrances of $341,680 which were assumed by the purchasers with a balance of $129,000 to be paid in cash at the time of closing. Huntsman's purchase price was $634,000, or $164,000 more than Brauer's selling price. The beneficial ownership of the land was not disclosed to Huntsman or to the supervising Government agencies.

On July 24, 1974, the PCA disbursed the proceeds of the crop loan, paying $121,433 for the release of a bank crop lien and issuing a check to Huntsman for $386,600.

Hansell refused to deliver the check for the loan proceeds to Huntsman, and at Hansell's insistence, Hansell and Huntsman went to the First National Bank in Little Rock where at Hansell's direction Huntsman endorsed and deposited the check for $386,600 and received a cashier's check made out to Young, Trustee, for $292,319.18, which was the amount due on the purchase above the assumption of existing encumbrances on the land. Hansell took possession of such check and delivered it to Young. The check was deposited to Young's trust account. Shortly thereafter Young issued a check on the trust account for $20,000 to Chambers and checks for $71,000 each to Griffin and Hansell. The remaining $2,000 was retained by Young as a fee. Telephone records were received in evidence showing numerous phone calls between Griffin and Young and others interested in the transaction on July 24 and that Young had a telephone conversation with Chambers on that date. Huntsman, after the payments hereinabove referred to, received a balance of about $80,000 to be used for crop loan purposes and had difficulty in meeting the expenses of his farming operation. Huntsman in August 1974 received an additional crop loan of $125,000, and repeated efforts to obtain additional financing were unsuccessful.

On December 1, 1974, a payment on the indebtedness assumed by Huntsman became due. At the time of the purchase by Huntsman neither Brauer nor Huntsman knew that a $164,000 profit had been made on the sale, and Huntsman was not aware of the fact that defendants were the equitable owners of the real estate at such time. On March 7, 1975, Huntsman learned of the true ownership of the land which he purchased and the profit that had been made. The following day Huntsman visited Hansell and threatened to report the violation by the defendants of the conflict of interest statute and regulation. Hansell admitted that a profit had been made on the deal and that it was unlawful for the PCA officers to do what they had done, urged Huntsman not to go to the FBI, and stated that he would comply with anything Huntsman asked. Shortly thereafter a meeting was held between Hansell, Huntsman and Boggess wherein Boggess agreed to buy the farm for $662,000, which was approximately Huntsman's purchase price. Boggess brought Huntsman an option agreement and a $25,000 check drawn on the account of O. M. Young. On March 25, 1975, the purchase of the farm was completed with Boggess paying Huntsman and the PCA $302,000, which was credited on Huntsman's debt to PCA. The balance of the repurchase was the assumption of the existing mortgage indebtedness.

The Huntsman-Boggess closing took place in Young's office with Chambers, Young, Boggess and Huntsman and his attorney being present. It is established that Griffin, Chambers and Hansell put up the money for the Boggess purchase and induced Boggess to give a false statement to Government investigators with respect to his involvement in the purchase. The PCA loan was paid in full, and no money was lost by PCA as a result of the Huntsman loan. Additional facts to the extent necessary will be set out in the course of the opinion.

We shall now consider the asserted errors in the order hereinabove stated.

I.

Defendants urge that the Assistant United States Attorney engaged in improper conduct during opening argument when he read portions of the signed statement of each defendant to the jury upon the basis that any conspiracy which might have existed was terminated prior to the giving of the statements to the Government investigators and that consequently the statements were inadmissible to the extent that they involved defendants other than the defendant making the statement. At that point no motions had been made to suppress the statements. The statements had been furnished defendants as part of the discovery procedure. No objection was made at the time the statements were read nor was a motion for mistrial on that ground made. Such failure precludes raising the claimed error upon appeal. See United States v. Lawson,483 F.2d 535, 538 (8th Cir. 1973); United States v. DeRosa, 548 F.2d 464, 471-72 (3d Cir. 1977). Moreover, Griffin's attorney in opening statement admitted nearly all of the facts referred to in Griffin's statement concerning the purchase and sale of the farm but denied criminal intent. The statement of each defendant admitted the receipt of profits in the substantial amounts shown in the Young disbursements hereinabove.

Before defendants' statements were admitted in evidence all references to codefendants were deleted, and...