U.S. v. Henderson, 77-5792
| Citation | 588 F.2d 157 |
| Decision Date | 18 January 1979 |
| Docket Number | No. 77-5792,77-5792 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Roosevelt HENDERSON and Willie Lee Henderson, Defendants-Appellants. |
| Court | United States Courts of Appeals. United States Court of Appeals (5th Circuit) |
Steven J. Messinger, Thomasville, Ga. (Court-Appointed), for Roosevelt Henderson.
Harry J. Altman, II, Thomasville, Ga. (Court-Appointed), for Willie Lee Henderson.
D. L. Rampey, Jr., U. S. Atty., Richard E. Nettum, Asst. U. S. Atty., Macon, Ga., for plaintiff-appellee.
Appeals from the United States District Court for the Middle District of Georgia.
Before COLEMAN, GEE and HILL, Circuit Judges.
Appellants Willie Lee Henderson and Roosevelt Henderson were jointly indicted on three counts of mail theft, 18 U.S.C. § 1708, three counts of possession of stolen mail, 18 U.S.C. § 1708, three counts of uttering forged United States Treasury checks, 18 U.S.C. § 495, and one count of conspiracy with various other persons to violate the above statutes, 18 U.S.C. § 371. 1 After a jury trial, Roosevelt Henderson was convicted on all counts; Willie Henderson was acquitted on the three mail theft counts and convicted on the remaining seven counts. Roosevelt Henderson received ten-year sentences on each of the three substantive uttering counts and five-year sentences on each of the remaining seven counts, all sentences to run concurrently. Willie Henderson received ten-year sentences on each of the three substantive uttering counts and five-year sentences on each of the remaining four counts, all sentences to run concurrently.
On appeal, both appellants challenge the trial judge's refusal to grant a continuance. In addition, Roosevelt Henderson challenges the admission of certain fingerprint evidence, and Willie Henderson challenges the trial judge's refusal to give a lesser-included-offense instruction and the sufficiency of the evidence.
The evidence adduced at trial established that James Mack, an alleged co-conspirator, stole two checks from the mail in appellants' presence. One check was a United States Treasury check payable to Mary Schler, and the other was a commercial check payable to H&M Enterprises. Mack gave the two checks to Roosevelt Henderson. That same day three unidentified individuals in a white Oldsmobile registered to Roosevelt Henderson unsuccessfully attempted to cash the Schler check. A few days later Roosevelt Henderson and Elizabeth Morris, another alleged co-conspirator, cashed the Schler check at Leesburg State Bank; Roosevelt kept the proceeds. Roosevelt Henderson returned the commercial check to Mack, along with identification cards. Mack and Morris cashed the check at Leesburg State Bank; Mack and Roosevelt Henderson shared in the proceeds.
Several days later appellants picked up Morris and drove to a Leesburg bank, where Morris unsuccessfully attempted to cash another stolen Treasury check, this one payable to Herbert and Peggy Benford. The next day appellants and Morris drove to Pavo in response to a call from Hazel Brinson, another alleged co-conspirator and the mother of Willie Henderson's children. Brinson asked Willie Henderson for child support money, and he responded, "You know I don't have no money until Friday." Upon request by Morris, he then asked Brinson if she knew of a nearby bank that would cash a check without identification. She directed them to a bank in Pavo. Appellants and Morris then drove to Pavo State Bank, where Morris cashed the Benford check, using identification cards provided by Roosevelt Henderson. Willie Henderson then returned to give Hazel Brinson $25 for child support.
Counsel for appellants were appointed on November 10, 1977, and the trial was set for November 21, 1977. Counsel filed a joint motion for continuance, claiming inadequate preparation time. Appellants challenge the trial judge's denial of that motion. A motion for continuance is addressed to the sound discretion of the trial judge, and his ruling will be disturbed on appeal only upon a showing of abuse of discretion. United States v. Uptain,531 F.2d 1281, 1285 (5th Cir. 1976). In reviewing a trial judge's ruling on a motion for continuance, we generally consider only the reasons presented to the trial judge. Uptain, supra. Appellants contended below that the preparation time was inadequate considering the length of the indictment, the complexity of the charge, the travel time involved in conferring with clients and interviewing witnesses, 2 and the necessity of properly evaluating discovery materials.
On appeal, counsel for Roosevelt Henderson urges two additional factors, the disproportionate amount of time that the government spent in preparation (five months) and counsel's inexperience in federal court. Despite the lengthy indictment, the case was not particularly complex. The travel time to any place involved was no longer than two hours by automobile. Although counsel for Roosevelt Henderson was appearing for the first time in federal court, he admitted lengthy prior experience as a prosecutor. The discovery materials provided by the government were not especially difficult to analyze. The most significant factor in our decision, however, is lack of prejudice. Neither in briefs nor at oral argument were counsel able to identify any specific prejudice resulting from the continuance denial. Considering all the factors set forth, we cannot conclude, even as a matter of hindsight, that the trial judge abused his discretion in denying appellants' motions for a continuance. 3
Appellant Roosevelt Henderson challenges the admission of evidence establishing that his fingerprint was found on the Schler check. First, appellant argues that the evidence was erroneously admitted because the government did not offer any evidence indicating that his fingerprint was not affixed to the Schler check at a time unrelated to guilt or innocence. 4 Appellant relies on Borum v. United States, 127 U.S.App.D.C. 48, 380 F.2d 595 (1967), a case in which the court reversed a conviction based solely upon fingerprint evidence, noting that the government failed to produce either direct or circumstantial evidence that the fingerprints were affixed during the commission of the crime. Borum is easily distinguished on two bases. First, in this case there is ample direct testimony by co-conspirator James Mack that appellant Roosevelt Henderson handled the check during the commission of the crime. Second, and more important, the Borum court did not hold that the fingerprint evidence was inadmissible but only that the fingerprint evidence standing alone was insufficient to support the conviction. Appellant Roosevelt Henderson also argues that the fingerprint evidence is inadmissible because the government failed to prove a "chain of custody" for the Schler check from the time it was cashed until the time it was received by government agents. It is well settled that whether the government has proved an adequate chain of custody goes to the weight rather than the admissibility of the evidence. United States v. White, 569 F.2d 263, 266 (5th Cir. 1978). Since neither of the objections urged are proper grounds for the exclusion of the fingerprint evidence, we hold that the evidence was properly admitted.
Appellant Willie Henderson argues that the trial court erred in refusing to give his requested instruction that the misdemeanor offense of obstruction of the mails under 18 U.S.C. § 1701 is a lesser included offense as to every count charged. Obstruction of the mails is defined as follows:
Whoever knowingly and willfully obstructs or retards the passage of the mail, or any carrier or conveyance carrying the mail, shall be fined not more than $100 or imprisoned not more than six months, or both.
Appellant's argument is totally without merit regarding the uttering counts, and appellant was acquitted of the three substantive counts of mail theft. Only four counts remain: one count charging conspiracy to steal mail and three substantive counts of possession of stolen mail. Even assuming, for the sake of argument, that conspiracy to obstruct the mails is a lesser included offense of conspiracy to steal mail, and obstruction of the mails is a lesser included offense of possession of stolen mails, the evidence in this case does not justify a lesser-included offense instruction. The Supreme Court has held that a lesser-included offense instruction is not...
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