U.S. v. Livingston, 86-2263
| Decision Date | 24 April 1987 |
| Docket Number | No. 86-2263,86-2263 |
| Citation | 816 F.2d 184 |
| Parties | 23 Fed. R. Evid. Serv. 51 UNITED STATES of America, Plaintiff-Appellee, v. Willie LIVINGSTON, Julia Faye Williams and Deborah Lynn Williams, a/k/a Deborah Williams Johns, Defendant-Appellants. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Marjorie A. Meyers, Asst. Federal Public Defender, Roland E. Dahlin, II, FPD, Houston, Tex., for Livingston.
Larry D. Dowell, Elton L. Brownshadel, Houston, Tex., for Julia Williams.
Ronnie G. Harrison (court-appointed), Houston, Tex., for Deborah williams.
Mervyn Hamburg, U.S. Dept. of Justice, Washington, D.C., James R. Gough, Asst. U.S. Atty., Houston, Tex., for U.S.
Appeal from the United States District Court for the Southern District of Texas.
Before GARZA, WILLIAMS and GARWOOD, Circuit Judges.
An eight count indictment charged the appellants with receiving and transporting stolen securities in interstate commerce and with conspiracy, in violation of 18 U.S.C. Secs. 2314, 2315, 371, and 2. A jury convicted all defendants on the conspiracy count. Julia Williams was convicted on four substantive counts, Willie Livingston on three, and Deborah Williams on one. The district judge sentenced each defendant to serve concurrent terms.
The defendants complain on appeal that (1) the district court made improper evidentiary rulings regarding the testimony of a government witness, David Collins, (2) the evidence was insufficient to support their convictions, and (3) the prosecutor made improper, prejudicial closing arguments to the jury. Upon review of all the evidence, we reject all three claims and affirm the convictions.
The Hagan Insurance Company had one hundred bearer bonds payable by the City of New York on deposit at RepublicBank, Houston. Each bond was worth $5,000 when it matured on November 1, 1982. In October 1982, RepublicBank prepared to redeem the bonds for Hagan. RepublicBank sent the bonds to the Chase Manhattan Bank, which planned to present them for redemption to Manufacturers Hanover Trust. Chase received the bonds on October 21. Sometime between October 21 and October 24, Ernest McKane--a bond coupon collection clerk at Chase--stole the bonds.
According to Dennis Muldoon, a Chase investigator who testified at the appellants' trial, New York newspapers and television reported the theft, and the Manhattan District Attorney held a press conference about the stolen bonds. Eventually, McKane was discovered, and Chase recovered 86 of the 100 bonds, 70 of them outside of New York state. The case before us involves twelve of the stolen bonds that authorities recovered in Texas and California.
McKane stole the bonds in late October 1982. What happened to the twelve bonds for twenty months after the theft is a mystery. We know only that by the summer of 1984, they appeared in Houston, Texas, in the appellants' possession.
Julia Williams met Sherrell Conway in the spring of 1984. They visited a few times, and Julia told Conway that she sold real estate and cars for a living. In June 1984, Julia reported to Conway that a man named Anthony Sane wanted to buy one of her cars with a bearer bond. Julia asked Conway if she or her sister, Linda Lusk, could cash the bond at a bank. Lusk had an account at Gibraltar Savings with a balance of over $5,000 and agreed to help.
Julia Williams, her sister Deborah Williams, Conway, and her sister Lusk together went to Gibraltar Savings. Deborah waited outside in the car while the other three went inside to cash the bond. Conway testified at the trial that a bank employee examined the bond for about thirty minutes before reporting that it was "okay." Molly Strong, Gibraltar's branch manager, testified that she exchanged the bond for $5,000 because Lusk had more than that in her account. Julia Williams directed the teller, through Lusk, to provide $750 in cash and three cashier's checks: one to Julia Williams for $1,000, another to Julia Williams for $1,250, and one to Anthony Sane, the alleged car buyer, for $2,000. According to Conway, Julia promised to pay her $1,250 for her part in this transaction. Lusk testified that Julia gave her $250.
Samuel Stewart owns an office building in Houston. In August 1984, Julia Williams rented the second floor of the building, giving Stewart one bearer bond for the rent. Julia divided the floor into five offices for five companies: J & F Financial Investors; J & F Answering Services; J & F Property Management; R.W. Marketing; and Community Investors Group. She told Stewart that she received the bond from "Yusef Israel" as payment for real estate. Stewart deposited the bond in his account at First City Bank, where it "cleared" after three or four weeks. Stewart then kept about $1,160 for the first month's rent and refunded $3,840 to Julia--part in cash and part in a cashier's check to Yusef Israel.
In October, Julia gave Stewart another bond for the second month's rent, which he also deposited at First City. This time, however, First City discovered that both bonds had been stolen. It charged $5,000 to Stewart's account for the first bond, refused to credit Stewart for the second bond, and returned both bonds to Stewart. When Stewart told Julia that the bonds were stolen, she promised to pay Stewart the $5,000 from the first bond plus the second month's rent, or a total of about $6,140. She also asked him for the bonds, allegedly so she could return them to Yusef Israel. Stewart returned the bonds to Julia, and Julia eventually paid Stewart $2,000 and abandoned the office space.
The two bonds that Stewart returned to Julia soon made their way to Julia's sister, Deborah, who also lived in Houston. David Collins, who lived in California, was Deborah's "ex-boyfriend." Collins testified at trial that he sometimes helped Deborah pay her bills after she moved to Houston. According to Collins, Deborah offered him $3,000 to cash the two bonds that Stewart returned to Julia. In December 1984, Deborah mailed the bonds to Collins in California, and he deposited them in the Security Pacific National Bank, which soon told him that they were stolen.
Collins testified that after he had told Deborah that the bonds were stolen she had asked him to conceal his source of the bonds. First, Deborah told Collins to tell anyone who asked that he bought them from a stranger in Reno, Nevada. The F.B.I. interviewed Collins, and he described the alleged Reno seller. When the F.B.I. challenged this story, Collins admitted that Deborah sent him the bonds. Shortly after Collins' interview with the F.B.I., Deborah called and urged Collins to invent a different story to exculpate the Williams sisters. In response, Collins wrote a letter "To Whom It May Concern," stating that he got the bonds, not from Deborah, but from "Livingstone or Livingstan," and that he mistakenly had implicated Deborah while under the influence of drugs.
At trial, Collins explained all three versions--the Reno seller, Deborah, and "Livingstone or Livingstan"--and insisted that he really did get the bonds from Deborah.
As set out above, Julia Williams had rented the second floor of Samuel Stewart's building and split it among five companies. Willie Livingston, an insurance salesman, managed one of these companies--the Community Investors Group. Livingston shared a house with a man named Larry Creswell, who eventually cashed seven of the stolen bonds. At trial, Creswell explained how he got involved with the bonds.
In October 1984, Livingston introduced Creswell to Julia Williams. Julia asked Creswell to open two bank accounts with some of the bonds, and Creswell agreed. Creswell approached the "Sharpstown" and "Fondren Southwest" branches of the Gibraltar Savings Association. Gibraltar required Creswell to open his accounts with cash, so Livingston gave Creswell $10 to start each account. Creswell also got seven bonds from Livingston and deposited three of them in the Fondren Branch and four in the Sharpstown Branch.
Gibraltar accepted the bonds but held them for several weeks before "clearing" the account for withdrawals. According to Gibraltar employees, Creswell checked several times before the bonds cleared to see if he could withdraw funds from his accounts. Once, Livingston and Creswell went together to the Fondren Branch to check on the accounts. 1
Finally, in December 1984, Gibraltar let Creswell withdraw money from the two accounts. According to Gibraltar employees and Creswell, Livingston instructed Creswell to withdraw about $700 in cash and five cashier's checks--one each to Community Investors Group ($7,500), Creswell ($2,000), and Texas Foreign Exchange, a store that sells foreign currency and gold coins ($8,000), and two to J & F Financial ($7,000 and $9,300).
Each defendant received a part of the money that Livingston and Creswell withdrew. Julia Williams received the $9,300 cashier's check to J & F Financial and deposited it in J & F's account at First National Bank of Bellaire. Craig Wooton, a vice president at First National, testified that Julia then wrote a check on J & F's account for $1,500 to Deborah Williams. Julia also wrote a J & F check to Samuel Stewart for $2,000 on December 11, 1984 as the partial repayment for her debt to Stewart from the two stolen bonds. A man named "Yuself" purchased merchandise at Texas Foreign Exchange with the $8,000 check. Creswell and Livingston deposited most of the rest of the withdrawal in Community Investors Group's account at the Citizens National Bank. According to Randall Dodds, a Citizens National Vice President, Community Investors Group and Livingston have the same address. Livingston then wrote checks on Community Investors Group's account to Creswell for $2,600 and to Julia Williams for $2,000.
Creswell testified that he received $4,000 for his role in these transactions, though Julia originally promised to pay him...
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