U.S. v. Herring
| Decision Date | 11 March 1992 |
| Docket Number | No. 90-7039,90-7039 |
| Citation | 955 F.2d 703 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Bobby Hugh HERRING, Geraldine, Sims Holley, a/k/a Tokie Holley, Elmer Frank Taylor, Thomas Jan Wilkerson, a/k/a Tommy Wilkerson, Charles Anthony Hatley, a/k/a Tony Hatley, a/k/a Rat, Lamont Lawrence Meyers, James Michael Igo, a/k/a Mike Igo, Robert Joseph Carter, a/k/a Buddy Carter, Leon Robert Morrison, a/k/a Bobby Morrison, Jack Warren Ruff, a/k/a Whitey, Robert Alex Hooks, a/k/a Bob Hooks, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
James W. May, Gulf Shores, Ala., for Herring.
James E. Atchison, Hess, Atchison & Horne, William B. Jackson, II, Mobile, Ala., for Holley.
Gregory M. Friedlander, Mobile, Ala., for Wilkerson.
Edward R. Tibbets, Mobile, Ala., for Meyers.
Reggie Stephens, Mobile, Ala., for Igo.
W.A. Kimbrough, Jr., Turner, Onderdonk & Kimbrough, PA, Mobile, Ala., for Carter.
Delano J. Palughi, Mobile, Ala., for Morrison.
Paul D. Brown, Mobile, Ala., for Hooks.
Judy A. Newcombe, Spanish Fort, Ala., for Hatley.
James Byrd, Mobile, Ala., for Taylor.
Thomas Jeffery Glidewell, Glidewell and Associates, Mobile, Ala., for Ruff.
J.B. Sessions, III, U.S. Atty., Donna E. Barrow, Asst. U.S. Atty., Mobile, Ala., for U.S.
Appeal from the United States District Court for the Southern District of Alabama.
Before FAY and HATCHETT, Circuit Judges, and GIBSON *, Senior Circuit Judge.
After reviewing this criminal case in which the issues were hotly contested, we affirm the convictions and the sentences because the district court did not err in its rulings, and the prosecutor's activities did not constitute misconduct requiring a new trial.
On December 20, 1987, FBI agents executed sixteen search warrants in the Mobile, Alabama, and Pascagoula, Mississippi areas at the residences of Charles Hatley, James Igo, Lamont Meyers, Robert Carter, Thomas Wilkerson, and Walter Dixon.
At Wilkerson's residence, in an upstairs bedroom which had been converted into an office, the FBI agents found Wilkerson and Robert Hooks with four television sets tuned to football games, and two telephones on each of the two desks in the room. Two of these phones had speed dialing capabilities. Additionally, the agents found gambling records including line sheets, betting slips, customer lists, sports schedules, account sheets, reference materials, and other gambling paraphernalia. In the drawer of the desk where Wilkerson was seated, the agents recovered $12,691 in United States currency and $300 in cash attached to a piece of paper bearing the name "Igo." Wilkerson's desk also contained two weapons, one of which was loaded. While at the residence, the agents placed a recording device on one of the telephones in the office and recorded numerous calls from customers wanting to place bets on football games.
After being given his Miranda rights, Hooks executed a written waiver of rights form, and stated that he had been working for Wilkerson for the past two to three months booking bets over the telephone. Hooks also told the agents that Wilkerson's wife and two sons participated in taking bets.
On January 1, 1988, law enforcement officers conducted a second search of Wilkerson's home. Officers went again to the upstairs office and found Wilkerson and Robert Morrison present. Wilkerson had replaced all of the equipment that had been previously seized in the first raid, including televisions, calculators, and telephones. Once again, gambling records and paraphernalia were seized. This time, FBI agents conducted a search of a vehicle parked in the driveway of the home and found in the trunk of the vehicle a brown bag filled with gambling records. Along with the other evidence, the contents of the brown bag were sent to the FBI gambling laboratory in Washington, D.C. Marian Moore, a fingerprint specialist at the laboratory, analyzed the contents of the bag and the seized records and determined that twenty-one latent prints were the prints of Morrison.
In December, the FBI agents also searched Carter's apartment and found three television sets tuned to football games in the same room with two desks, a copy machine, and three telephones. The agents seized hundreds of gambling records including line sheets, customer account lists, sports schedules, betting slips, mailing lists, labels, and other paraphernalia. The line sheets seized from Carter's apartment and Wilkerson's home matched.
Agents conducted a similar search at Hatley's home and seized similar documents, paraphernalia, and cash. Federal agents executed a separate search warrant for the vehicle Hatley used and seized from the vehicle additional gambling records, including betting slips, personal banking records, and football schedules. Searches at the homes of Igo, Meyers, and Dixon resulted in similar findings.
The appellants, along with ten others, were indicted in a two-count indictment charging that they had engaged in an illegal gambling business in violation of 18 U.S.C. §§ 1955 and 2, and that they had engaged in a conspiracy in violation of 18 U.S.C. § 371.
Pursuant to a plea agreement, Dixon testified that Taylor placed bets with him, and that Taylor was a "bookmaker." Dixon also testified that from September, 1987, through December, 1987, he and Carter transacted gambling business on almost a daily basis with the exchange of money through a courier named "Ruff." Dixon further testified that before placing a bet he would first get the line information from Carter, Wilkerson, Holley, and Taylor.
Witnesses testified that Bobby Herring received bets from 1986 through 1988 through the telephone. Several witnesses also testified that they knew Wilkerson, Carter, Hatley, Meyers, Igo, Holley, Hooks, Morrison, Ruff, Herring, and Taylor (the bookmakers) and had placed bets with them paying "juice" on losing bets. 1
At trial, FBI Special Agent Ray Stirling, an expert in the field of gambling records analysis, testified that in his opinion the records indicated the following time spans of gambling activity: (1) Carter's records spanned October 13, 1987, through January 2, 1988; (2) Hatley's records spanned September 14, 1987, through December 20, 1987; (3) Igo's records spanned September 2, 1987, through December 20, 1987; (4) Meyers's records spanned November 24, 1987, through December 20, 1987; (5) Dixon's records spanned November 24, 1987, through December 20, 1987; and (6) Wilkerson's records spanned October 21, 1987, through January 1, 1988. Additionally, Stirling testified that approximately $5,151,080 in wagers were placed with Carter; $121,010 in wagers were placed with Hatley; $48,465 in wagers were placed with Igo; $29,445 in wagers were placed with Meyers; $157,815 in wagers were placed with Dixon; and $1,183,730 in wagers were placed with Wilkerson. Stirling also testified that in his opinion, the betting ring was structured as follows: Carter and Hatley were exchanging wagers; Igo was transferring wagers to Carter; Carter wagering with Igo; and Carter and Igo exchanged wagers with Holley and Herring. Additionally, Stirling testified that wagers were exchanged between Carter and Ruff, Hatley and Holley, Hatley and Taylor, Igo and Wilkerson, Dixon and Carter, Dixon and Wilkerson, and Wilkerson and Hatley.
Wilkerson, Carter, Hatley, Holley, Ruff, Hooks, and Morris were convicted on both counts. Meyers, Igo, Herring, and Taylor were convicted only of the conspiracy count.
The appellants raise the following issues on appeal: (1) whether the district court erred in allowing the expert to express an opinion regarding layoff bets, based on a definition inconsistent with the law of this circuit; (2) whether a sufficient degree of prosecutorial misconduct existed making the trial unfair; (3) whether excessive or prejudicial delay existed in the furnishing of the transcript necessary for completion of the record on appeal; (4) whether the district court erred in denying an evidentiary hearing on Hatley and Wilkerson's motions to suppress evidence; (5) whether the district court abused its discretion in admitting certain evidence; (6) whether the government's response to a defense counsel's objection during closing argument was an impermissible and prejudicial comment on Carter's decision not to testify; (7) whether the government's cross-examination of the appellants' expert witnesses was proper; (8) whether the judge's conduct denied the appellants a fair trial; (9) whether the district court properly denied the motion for severance; (10) whether the district court abused its discretion in admitting the government's tape recordings; (11) whether the search of Wilkerson's vehicle exceeded the scope of the warrant; (12) whether the district court committed reversible error in failing to instruct the jury as the appellants requested; and (13) whether the evidence was sufficient to sustain the convictions.
Despite the numerous errors the appellants claim, only two of the issues they raise merit extended discussion. The appellants contend that the linchpin in the prosecution's case was Agent Ray Stirling, the sole expert witness the government produced to show the interdependence of the appellants based on the exchange of layoff bets. The appellants argue that aside from the testimony of Agent Stirling, the prosecution's case was comprised mostly of misconduct which denied them a fair trial. Thus, Agent Stirling's expert testimony regarding layoff bets and the claims of prosecutorial misconduct merit discussion.
The appellants argue that the expert testimony of FBI Agent Ray Stirling regarding the definition of a layoff bet was inconsistent with the law of this circuit and thus constituted reversible error. Specifically, the appellants contend that Agent Stirling's...
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