U.S. v. King

• Decision Date: 16 December 1974
• Docket Number: No. 74-2004,74-2004
• Citation: 505 F.2d 602
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Lawrence Charles KING, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 602

505 F.2d 602

UNITED STATES of America, Plaintiff-Appellee, v. Lawrence Charles KING, Defendant-Appellant.

No. 74-2004.

United States Court of Appeals, Fifth Circuit.

Dec. 16, 1974.

Robert F. Lewis, Birmingham, Ala. (Court-appointed), for defendant-appellant.

Wayman G. Sherrer, U. S. Atty., Albert C. Bowen, Jr., Asst. U. S. Atty., Birmingham, Ala., for plaintiff-appellee.

Before GEWIN, AINSWORTH and GEE, Circuit Judges.

AINSWORTH, Circuit Judge:

Appellant King was tried and convicted by a jury of violating 18 U.S.C. 1943 ¹ by using telephone communications in interstate commerce as part of a fraudulent scheme to obtain money. King was sentenced to three years' imprisonment, and brought this appeal, alleging two errors which we discuss below. Finding no reversible error by the district court, we affirm.

I. The Scheme

Viewed in the light most favorable to the Government, the evidence disclosed the following. In March of 1972, one Edward Fuller, Jr., purchased a mobile portrait studio from appellant. The studio was used in connection with business promotions to take portraits of persons in and around Florida shopping centers. The trailer was moved to Orlando, Florida, and King operated the studio from March of 1972 until late June of that year for Fuller, who resided in Cullman, Alabama. On June 27, 1972, King called Fuller (who was then in Atlants, Georgia) from Florida and told Fuller that he (King) and a man named Bill Snyder had located a party interested in purchasing an interest in the trailer. Fuller told King to have the party sign an option agreement for purchase of a part interest if it was determined this person was seriously interested in the deal.

Two days later, on June 29, 1972, King again called Fuller in Atlanta. King said that he and Snyder had been successful in finding an investor interested in Fuller's business. Fuller was told this interested party's name was Robert Waldorf, and that Waldorf had signed an option agreement and put up $4,000 as earnest money. King informed Fuller that a copy of the option agreement, together with Waldorf's check for $4,000, ahd already been mailed to Fuller's Cullman, Alabama address. On July 1, 1972, King called Fuller a third time, asking Fuller if he had received the check and option agreement. Fuller replied that he had not yet checked his mail but would so so. Fuller subsequently received an envelope mailed from Florida containing the executed option agreement (purportedly signed by Robert Waldorf and witnessed by William Snyder) and a check for $4,000 signed by Waldorf. ²

On July 3, 1972, King again called Fuller in Cullman from a phone in Florida. King suggested some sort of commission for himself and Snyder was called for as a result of their arranging the deal. Fuller agreed, and on the same day wired $1,000 to Snyder and $500 to King in Fort Lauderdale, Florida, via Western Union. On July 6, Fuller received a call from Snyder, and a meeting of King, Snyder and Fuller in King's apartment in Orlando was arranged for July 10.

When Fuller arrived at the Orlando apartment on July 10, he found no one there. Fuller was unable to locate King and Snyder, nor could he initially locate his trailer. King and Snyder had left town. ³ Fuller then discovered that the $4,000 check from Waldorf was worthless. When Fuller contacted Waldorf, Waldorf disavowed any knowledge of the transaction, claiming he had never heard of Fuller or his trailer. Fuller then notified the authorities.

II. The Points on Appeal

King, Snyder and Waldorf were indicted together on October 3, 1973 on one count of violating 18 U.S.C. 1343. On January 15, 1974, Waldorf pled guilty and testified as a Government witness at Snyder's trial. Snyder was found guilty by a jury on January 21, 1974. (Snyder's conviction for his participation in this scheme is affirmed in our opinion of this same date, United States v. Snyder, 5 Cir., 1974, 505 F.2d 595 (No. 74-1316).) King, who had been a fugitive at the time of Snyder's trial, was apprehended on February 28, 1974. King was convicted on March 28, 1974; Waldorf testified as a Government witness against King at the trial, and Snyder appeared as a witness in King's behalf. In his appeal, King contends that his conviction should be reversed on two grounds. First, he asserts plain error was committed because the guilty plea of a co-indictee (Waldorf) to the charge for which King was on trial was admitted without a cautionary instruction to the jury that a co-indictee's guilty plea must not be considered as evidence of a defendant's guilt. Second, King complains that evidence of a prior civil judgment against him was improperly admitted by the trial court.

A. Was Plain Error Committed?

At no time during the trial or the instructions to the jury did King's trial counsel object to Waldorf's testimony relating to his guilty plea, nor did counsel request an instruction from the court. The failure properly to direct the trial court's attention to this matter so that it might recognize and cure the error, if any existed, permits us to reverse the conviction only if the error was so patent as to have seriously jeopardized the substantial rights of the accused. Fed.R.Crim.P. 52(b). Moreover, we note at the outset that 'the power to notice a plain error . . . is one that the courts exercise cautiously and only in exceptional circumstances.' 3 C. Wright, Federal Practice and Procedure 856, at 373.

The fact of Waldorf's guilty plea was first mentioned at the trial by the district judge. This occurred in connection with opening statements to the jury by King's counsel that he would show that Waldorf, a chief Gevernment witness, could not be believed because Waldorf was 'a convicted felon, who has got a record, as long as a man's arm . . ..' ⁴ Aware of defense counsels intentions, the prosecutor anticipated this argument by having Waldorf admit, on direct examination, all of his prior convictions, one of which was Waldorf's conviction for the fraud transaction presently in question. ⁵ Defense counsel did not object to this questioning, nor request a cautionary instruction. Waldorf's plea was not mentioned again by the prosecutor-- that is to say, the Government did not emphasize the plea, nor did the prosecution suggest that Waldorf's plea was relevant to the issue of King's guilt. The guilty plea was once more brought out, but by defense counsel in his cross-examination of Waldorf. ⁶ Finally, the court's instructions to the jury included the following comment on the convictions of Waldorf and Snyder: ⁷

I charge you that the evidence of prior convictions which was admitted in this case both as to Mr. Snyder and Mr. Waldorf is to be considered by you as reflecting upon their credibility as witnesses only. This does not disqualify them from testifying but it is a circumstance or circumstances which you have the right to consider in determining whether you believe them.

Appellant contends that the court's failure to specifically admonish the jury that a co-indictee's guilty plea may not be considered as substantive evidence of a defendant's guilt mandates reversal, particularly because such an instruction was not given at the time the plea was first brought to the jury's attention. King relies on United States v. Harrell 5 Cir., 1969, 436 F.2d 606, on remand, 458 F.2d 655, cert. denied, 409 U.S. 846, 93 S.Ct. 49, 34 L.Ed.2d 86 (1972); United States v. Baete, 5 Cir., 1969, 414 F.2d 782, and on United States v. Davis, 5 Cir., 1973, 487 F.2d 112, cert. denied, 415 U.S. 981, 94 S.Ct. 1573, 39 L.Ed.2d 878. Harrell found plain error in a situation where a jury was allowed to hear of a witness' guilty plea without proper limiting instructions. Davis and Baete, though not finding plain error, emphasized that cautionary instructions are essential where the jury learns of a codefendant-witness' guilty plea. King's argument maintains, essentially, that the absence of an immediate cautionary instruction automatically requires reversal.

We recognize that there is potential prejudice inherent in a witness' statement that he was the defendant accomplice or co-conspirator, and that he has pled guilty to the crime for which the defendant is charged. One person's guilty plea or conviction may not be used as substantive evidence of the guilt of another. See, e.g., United States v. Baete, supra, 414 F.2d at 783; United States v. Crosby, 2 Cir., 1961, 294 F.2d 928, 948; Babb v. United States, 5 Cir., 1955, 218 F.2d 538, 541 & n. 9; LeRoy v. Government of Canal Zone, 5 Cir., 1936, 81 F.2d 914. The introduction of a codefendant's guilty plea is permissible, however, when its use is limited to proper evidentiary purposes such as to impeach trial testimony or to reflect on a witness' credibility. See United States v. Harrell, supra, 436 F.2d at 614 & n. 9. Nonetheless, this circuit has emphasized that cautionary instructions by the trial court are both essential and effective in avoiding prejudice where the fact of a coconspirator's guilty plea is brought out at a trial before a jury. United States v. Davis, supra, 487 F.2d at 120; United States v. Harrell, supra, 436 F.2d at 617; United States v. Baete, supra, 414 F.2d at 783-784. But, as our cases make clear, the lack of an instruction does not necessarily constitute reversible error. Our focus on review is fairness, and jury instructions are but one factor to be considered in determining whether the proceedings below unfairly prejudiced the substantial rights of the accused.

We have canvassed this circuit's cases on this issue of cautionary instructions and the guilty pleas of co-indictee-witnesses. ⁸ The vagaries of these cases emphasize that 'when an appellate court should take notice of an error not raised below must be made on the facts of the particular case, and there are no 'hard and fast classifications in either the application of the principle or the use of a descriptive title." 2 C. Wright, Federal...