U.S. v. Hewitt

• Citation: 663 F.2d 1381
• Decision Date: 18 December 1981
• Docket Number: No. 80-7768,80-7768
• Parties: 9 Fed. R. Evid. Serv. 835 UNITED STATES of America, Plaintiff-Appellee, v. Samuel B. HEWITT and Bobby Gene Chesser, Defendants-Appellants. Non-Argument Calendar.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1381

663 F.2d 1381

9 Fed. R. Evid. Serv. 835

UNITED STATES of America, Plaintiff-Appellee, v. Samuel B. HEWITT and Bobby Gene Chesser, Defendants-Appellants.

No. 80-7768

Non-Argument Calendar.

United States Court of Appeals, Eleventh Circuit.

Dec. 18, 1981.

H. Norwood Pearce, Columbus, Ga., for defendants-appellants.

Frank K. Martin, Columbus, Ga., for Chesser.

Samuel A. Wilson, Jr., Asst. U. S. Atty., Macon, Ga., for plaintiff-appellee.

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

Before HILL, VANCE and HATCHETT, Circuit Judges.

VANCE, Circuit Judge:

Bobby Gene Chesser and Samuel B. Hewitt appeal their convictions after trial by jury of aiding and abetting the use of an explosive to commit a felony in violation of 18 U.S.C. §§ 2, 844(h). ¹ Hewitt also was convicted of two counts of mail fraud in violation of 18 U.S.C. § 1341.

Hewitt owned an interest in the Village Grocery, a grocery store located in Columbus, Georgia. Due in part to racial tension in the community, the Village Grocery began to experience financial difficulty. On August 12, 1979 the Village Grocery was partially destroyed by fire. Hewitt signed a proof of loss form which he delivered to his insurer through the United States mails. He received a check from the insurance company through the mails for over $5,800.

In early May, 1979 Hewitt stopped by Chesser's place of business, the Big "B" Barbecue, and talked with Chesser, Roger Bedsole, Larry Crook and Richard Smith. Hewitt complained that the situation at the Village Grocery was becoming increasingly difficult due to racial tension in the neighborhood. Chesser proposed that Crook and Bedsole burn down the Village Grocery and suggested that Hewitt "straighten out his insurance on the business." Crook and Bedsole agreed to set the fire for $1,000. Later that evening Chesser, Hewitt, Crook, Bedsole and Richard Smith drove to the Village Grocery. At this time they discussed the preferred means of destroying the store.

In late July, 1979 there was a serious racial incident at the Village Grocery. Afterwards Hewitt contacted Bedsole and directed him to set the fire, saying that the fire would be blamed on the racial incident. Bedsole and Hewitt traveled to the Village Grocery to determine the best means of destroying the building. Hewitt paid him $300 and promised to pay an additional $700 when the job was complete. Bedsole subsequently contacted Jerry Eugene Smith who agreed to set the fire for $500.

On late Saturday night and early Sunday morning, August 12, 1979, Smith and John Braswell purchased gasoline to set the fire. They proceeded to the Village Grocery and waited until the neighborhood was deserted. Smith then climbed to the roof of the building and poured ten gallons of gasoline down the roof vent into the building. He lighted the fire with the aid of a homemade delayed ignition device ² and left the scene. Subsequently there was an explosion that blew out the windows of the Village Grocery. The ensuing fire was retarded by the building's sprinkler system and was extinguished by the fire department.

Hewitt paid Bedsole the remaining $700 but complained that the fire was inadequate. Hewitt subsequently arranged to collect the insurance which is the basis of his mail fraud conviction.

At trial, both Hewitt and Chesser denied that any conversation regarding a fire at the Village Grocery had ever taken place at the Big "B" Barbecue. They presented extensive testimony concerning the racial problems in the neighborhood surrounding the Village Grocery in an attempt to establish that the fire was a result of those racial problems rather than part of a scheme to defraud Hewitt's insurer. Much of Hewitt and Chesser's case was devoted to impeaching the government witnesses who had received various degrees of immunity in connection with their testimony.

In this court Chesser presents five grounds of error and Hewitt advances two. ³ None warrant reversal of their convictions.

I

Chesser argues that the trial court erred in denying his motion for judgment of acquittal at the close of the government's case. The standard of review as to sufficiency of the evidence is whether a reasonably minded jury must necessarily entertain a reasonable doubt of the defendant's guilt. United States v. Rodriguez, 654 F.2d 315, 317 (5th Cir. 1981); United States v. Kelley, 630 F.2d 302, 303 (5th Cir. 1980). In conducting that review, we view the evidence in the light most favorable to the government. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942); United States v. Varkonyi, 611 F.2d 84, 85 (5th Cir.), cert. denied, 446 U.S. 945, 100 S.Ct. 2173, 64 L.Ed.2d 801 (1980). We also must accept all credibility choices that tend to support the jury's verdict. United States v. Kelley, 630 F.2d at 303; United States v. Staller, 616 F.2d 1284, 1292 (5th Cir.), cert. denied, 449 U.S. 870, 101 S.Ct. 207, 66 L.Ed.2d 89 (1980).

Chesser was charged with aiding and abetting the use of an explosive to commit a federal crime in violation of 18 U.S.C. §§ 2, 844(h). Taken in the light most favorable to the government, the evidence shows that Chesser proposed to Hewitt that Crook and Bedsole burn down the Village Grocery and suggested to Hewitt that he "straighten out his insurance" on the grocery. When Crook and Bedsole agreed to set the fire, Chesser and Hewitt accompanied them to the Village Grocery. Further it appears that Bedsole hired Jerry Smith to set the fire and that Smith performed this job with the help of John Braswell by the use of gasoline and a homemade ignition device.

Chesser contends that his involvement in the chain of events leading to the explosion at the Village Grocery was merely episodic and does not support the conclusion that he is guilty of aiding and abetting the violation of section 844(h). We disagree. To convict a defendant of aiding and abetting an offense, the government need not show that the defendant "participated in every phase of the criminal venture." United States v. Diecidue, 603 F.2d 535, 557 (5th Cir. 1979), cert. denied, 445 U.S. 946, 100 S.Ct. 1345, 63 L.Ed.2d 781 (1980); United States v. Beck, 615 F.2d 441, 449 (7th Cir. 1980). Rather, the government must show that the "defendant was associated with the criminal venture, participated in it as something he wished to bring about, and sought by his action to make it succeed." United States v. Martinez, 555 F.2d 1269, 1272 (5th Cir. 1977). To prove association, the evidence must show that the defendant shared the criminal intent of the principal. To prove participation, the evidence must show that the defendant committed an overt act designed to aid in the success of the venture. United States v. Longoria, 569 F.2d 422, 425 (5th Cir. 1978). In this case, Chesser shared in the criminal intent to use an explosive to commit a federal felony because it was Chesser who originally counseled Hewitt to destroy the Village Grocery and fraudulently obtain insurance proceeds. See United States v. Evans, 572 F.2d 455, 482 (5th Cir.), cert. denied, Gent v. U. S., 439 U.S. 870, 99 S.Ct. 200, 58 L.Ed.2d 182 (1978). Although Chesser's advice was gratuitously rendered, it is clear that a defendant need not have a financial stake in the criminal venture to be convicted of aiding and abetting. United States v. Harris, 441 F.2d 1333, 1336 (10th Cir. 1971); W. LaFave & A. Scott, Criminal Law 508 (1972).

Chesser further participated in the criminal venture through a number of overt acts. In addition to getting the venture on track by counseling Hewitt to destroy the grocery, he significantly facilitated the commission of the crime by personally cementing the connection between Hewitt and Bedsole for the purpose of committing the offense.

Chesser complains at length that the evidence against him consists largely of the testimony of Bedsole and Crook, two convicted felons testifying with immunity. ⁴ As ably pointed out by the court in United States v. Tiche, 424 F.Supp. 996, 1000-01 (W.D.Pa.), aff'd mem., 564 F.2d 90 (3d Cir. 1977), judgment of acquittal in a case involving section 844(h) is not required because the government's case includes testimony by "an array of scoundrels, liars and brigands." See also United States v. Parker, 586 F.2d 422, 429 (5th Cir. 1978), cert. denied, 441 U.S. 962, 99 S.Ct. 2408, 60 L.Ed.2d 1067 (1979). The jury was free to disbelieve the two government witnesses whose faults were exhaustively catalogued by the attorneys for both Hewitt and Chesser. Furthermore, the trial judge fully instructed the jury on the degree of suspicion they should entertain when considering the testimony of accomplices who testify with immunity. See United States v. Darland, 659 F.2d 70, 72 (5th Cir. 1981); Government of Canal Zone v. Thrush G. (Garces), 603 F.2d 1118, 1120 (5th Cir. 1979); Tillery v. United States, 411 F.2d 644, 646-47 (5th Cir. 1969). By bringing back a verdict of guilty, however, the jury found that the testimony of Bedsole and Crook was credible. Because the testimony was not incredible as a matter of law, we must accept this determination by the jury. United States v. Palacios, 612 F.2d 972, 973 (5th Cir. 1980); United States v. Garner, 581 F.2d 481, 485 (5th Cir. 1978).

II

Chesser makes two interrelated assertions regarding his contention that the trial violated his double jeopardy rights under the fifth amendment. To sort these out, it is necessary to describe the procedural history of this case in greater detail.

Chesser was charged with explosion-related offenses in two separate indictments, 80-601-COL (601) and 80-602-COL (602). The 601 indictment charged Chesser with aiding and abetting the use of an explosive to destroy a different building, ⁵ and with mail fraud in the collection of insurance proceeds on that building. Chesser was the only defendant charged in the 601 indictment. The 602 indictment charged Chesser and Hewitt with...