U.S. v. Hodges, 76-3945

• Decision Date: 25 July 1977
• Docket Number: No. 76-3945,76-3945
• Citation: 556 F.2d 366
• Parties: 2 Fed. R. Evid. Serv. 378 UNITED STATES of America, Plaintiff-Appellee, v. Marvin Eugene HODGES, Defendant-Appellant. Summary Calendar. *
• Court: U.S. Court of Appeals — Fifth Circuit

Page 366

556 F.2d 366

2 Fed. R. Evid. Serv. 378

UNITED STATES of America, Plaintiff-Appellee, v. Marvin Eugene HODGES, Defendant-Appellant.

No. 76-3945

Summary Calendar. ^*

United States Court of Appeals, Fifth Circuit.

July 25, 1977.

Raymond W. Russell, (Court-appointed), Fort Lauderdale, Fla., for defendant-appellant.

Robert W. Rust, U. S. Atty., C. Wesley G. Currier, Asst. U. S. Atty., Miami, Fla., for plaintiff-appellee.

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

Before AINSWORTH, MORGAN and GEE, Circuit Judges.

AINSWORTH, Circuit Judge:

Marvin Eugene Hodges was convicted by a jury of entering a bank with intent to rob, and of conspiracy to commit the robbery, violations of 18 U.S.C. §§ 371, 2113(a). He appeals his conviction alleging a defect in the indictment, evidentiary errors at trial, and a defect in sentencing procedure. We find his assignments of error to be without merit and affirm the conviction.

The record shows that beginning in September 1975, Hodges attempted to persuade Leslie Croteau to assist him in robbing the bank at which she worked as a teller. By November Hodges had enlisted another associate, Gary Cartwright. On November 12, Hodges explained the robbery plan to Croteau. On November 17, pursuant to the plan, Hodges entered the bank. He left without taking money. He indicated to Cartwright, who was waiting in a car outside the bank, that it appeared that the plan had been discovered. In fact, Croteau had notified authorities and the bank was being watched. On November 24, Hodges was arrested and charged. Upon his conviction the district judge sentenced Hodges to ten years in prison.

On appeal Hodges asserts that the indictment under which he was convicted was fatally defective because all overt acts pursuant to the conspiracy are alleged to have transpired before the date on which the conspiracy is alleged in the indictment to have been formed. The indictment returned against Hodges alleges a conspiracy commencing "on or about the 14th day of November, 1975" and continuing "thereafter up to and including the 17th day of November, 1975 . . . ." Four overt acts pursuant to the conspiracy are alleged, the latest occurring on November 13. Hodges asserts that since the indictment fails to allege an overt act subsequent to the alleged formation of the conspiracy it cannot support a conviction under the terms of 18 U.S.C. § 371. ¹

We decline to read section 371 as suggested by Hodges. In an indictment under section 371, if "there is any vagueness in the averment as to the time of (the conspiracy's) formation, the time may be fixed and made certain by a reference to the allegations of overt acts." Schnautz v. United States, 5 Cir., 1959, 263 F.2d 525, 529. If the defense is nevertheless confused regarding questions of time in a section 371 indictment, particularity may be ascertained through a bill of particulars, Glasser v. United States, 315 U.S. 60, 66, 62 S.Ct. 457, 463, 86 L.Ed. 680 (1942). Hodges did not take this step. He alleges no prejudice resulting from the indictment's mistake concerning the date of the formation of the conspiracy. The indictment in this case contained the elements of the charged offense under section 371, apprised the defendant of "what (he) must meet," and specified the charges sufficiently to avoid the possibility of double jeopardy, and therefore was sufficient to charge an offense under section 371. See United States v. Beasley, 5 Cir., 1977, 550 F.2d 261, 270.

Hodges next argues that the district judge erred in refusing to order the Government to deliver to the defense certain FBI "302" reports, pursuant to the Jencks Act, 18 U.S.C. § 3500. ² The district judge determined that the reports, which were made by FBI agents from memory some days after interviews with witnesses, were not "substantially verbatim" within the meaning of the Act. The record shows that none of the reports was adopted or otherwise authenticated by the interviewed witnesses. Investigators' notes of interviews do not fall under the Act even if they contain "occasional verbatim recitations of phrases used by the person interviewed," United States v. Cruz, 5 Cir., 1973, 478 F.2d 408, 413. Whether transcripts of those notes contain such extensive verbatim recitations as to bring the transcripts under the Act is a matter of fact within the discretion of the trial judge, id. We conclude that the district judge's finding that the "302" reports were not substantially verbatim under the Act was not clearly erroneous. See Campbell v. United States, 373 U.S. 487, 493, 83 S.Ct. 1356, 1360, 10 L.Ed.2d 501 (1963).

Hodges next contends that the trial judge erred in excluding certain questioning at trial. Croteau, who appeared as a government witness, gave damaging testimony concerning a meeting among the conspirators. On cross-examination Croteau admitted smoking two marijuana cigarettes before the meeting. She denied that her perception was affected thereby. The defense did not further challenge her testimony, but later sought to cross-examine Cartwright concerning the "appearance" of Croteau during the meeting. Upon government objection counsel explained that he was attempting to attack Croteau's "credibility" by showing that she was drug-intoxicated during the meeting. The district judge refused to allow the line of questioning, and Hodges asserts that the refusal was error.

Inquiry on cross-examination beyond the scope of direct or the witnesses' own credibility is subject to the discretion of the district judge. F.R.E. 611(b). ³ Hodges does not claim that Cartwright possesses any expertise which would allow him to draw conclusions concerning Croteau's mental state from her appearance. Similarly, any inferences concerning Croteau's mental state drawn by the jury from a description of her appearance would be unwarranted. The jury already knew that Croteau had smoked the marijuana and could take that into account in evaluating her testimony. Under these circumstances the district judge properly exercised his discretion in refusing to allow Cartwright's testimony as to Croteau's physical appearance.

Finally, Hodges alleged that in assessing his sentence the district judge took into account unreliable information pertaining to past criminal activity. Hodges asserts that he was not notified that this information would be considered in sentencing, so that he had no opportunity to rebut it.

We have held that a convicted defendant "retains the right not to be sentenced on the basis of invalid premises." United States v. Espinoza, 5 Cir., 1973, 481 F.2d...