U.S. v. McDuffie

• Decision Date: 10 November 1976
• Docket Number: No. 75-3656,75-3656
• Citation: 542 F.2d 236
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. John Henry McDUFFIE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 236

542 F.2d 236

UNITED STATES of America, Plaintiff-Appellee, v. John Henry McDUFFIE, Defendant-Appellant.

No. 75-3656.

United States Court of Appeals Fifth Circuit.

Nov. 10, 1976.

W. W. Larsen, Jr., Dublin, Ga., for defendant-appellant.

Ronald T. Knight, U. S. Atty., John D. Carey, Richard Nettum, Asst. U. S. Attys., Macon, Ga., for plaintiff-appellee.

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

Before GODBOLD, McCREE ^* and TJOFLAT, Circuit Judges.

TJOFLAT, Circuit Judge:

The appellant was charged in a five-count indictment with four other persons of conspiring to defraud the United States of tax revenue by violating certain laws pertaining to the manufacture and distribution of distilled spirits, of knowingly possessing an unregistered still, of engaging in the business of distilling spirits without posting the bond required by law and with intent to defraud the United States of tax revenue, and of knowingly possessing 175 gallons of non-tax-paid whiskey. ¹ After his first trial ended in a mistrial, he was tried and convicted by a jury in the United States District Court for the Middle District of Georgia and sentenced to concurrent three year terms of imprisonment on each count. This conviction was reversed, ² and he was retried in July 1975. Again convicted, he was sentenced to consecutive five year terms on two counts, to concurrent five year terms on two other counts, and on a fifth count to five years probation to commence on the expiration of the sentences on the other counts. On appeal, appellant argues that the district court (1) committed plain error in its instructions to the jury, (2) committed reversible error in refusing to disclose to counsel a written question received from the jury during deliberations, and (3) erred in relying on a report not disclosed to appellant to fashion a more severe sentence than was imposed after his earlier conviction. We find the first two contentions to be without merit, but the third is well made, requiring us to remand the case for resentencing.

I

On the afternoon of January 9, 1973, a fire broke out at a warehouse in Kathleen Georgia. When the volunteer fire department and sheriff's officers arrived at the scene they discovered 175 gallons of illicit whiskey and a 7500 gallon-capacity distillery. The appellant and four others were subsequently indicted. Appellant was tried alone. At trial the government presented the testimony of the officers who discovered the distillery and two co-conspirators who had received immunity. The co-conspirators testified that, while they operated the still, the appellant and another co-conspirator were the ones who owned and managed it. It was the appellant, for example, who showed them how to make the mash and use the equipment. He told them where to pick up the supplies and deliver the whiskey, and he handled the money. The appellant was further implicated by proof that his fingerprint had been found on one of the jars discovered at the still.

Appellant's defense was to deny any involvement with the illicit still and to attack the credibility of the prosecution witnesses. It was argued that his employment full-time as a highway construction supervisor made it highly improbable that he was simultaneously running a large illicit whiskey business. To support this theory, appellant presented the testimony of his employer, one of his co-workers, and a state highway department inspector. Their testimony indicated that appellant usually worked a ten-hour day five days a week. The appellant did not testify.

As far as can be determined from the record, there was no request for instructions or any charge conference. Following argument of counsel to the jury, the court immediately instructed the jury, using the following portion of what is evidently its standard charge:

Now, as you have seen, there may be some conflict in the testimony, and if you find there is such a conflict then it is for you as the triers of the facts to weigh, compare and consider all of the testimony of all of the witnesses in the case, including the documentary and physical evidence, and determine where lies the truth of these disputed questions of fact.

It is your duty, if you can, to reconcile the testimony of all witnesses so that all witnesses shall have spoken the truth. If, however, you are unable to so reconcile the testimony, you may then reject the testimony of such witness or witnesses as you believe to be untrue or mistaken and give credence to the evidence that you think most worthy of believing.

Record, vol. III, at 203-204.

No objection to this or any portion of the charge was made before the jury retired to consider its verdict. ³

After some deliberation the jury communicated the following written question to the court: "Ask for definition on control and possession if partial control and possession would indicate guilt." Counsel's request to know the nature of the question was refused. On its own initiative and without receiving any input from counsel, the court proceeded to instruct the jury on the meaning of the terms "control" and "possession" and the distinction between actual and constructive possession. The court then inquired of counsel whether there were any objections. The ensuing colloquy between the court and defense counsel which we have set out in the margin clearly demonstrates the difficulty counsel was having in objecting to a supplemental charge without knowing the question to which the charge purported to be responsive. ⁴ Nevertheless, the court adhered to its decision not to disclose the question. The jury retired again and eventually returned a verdict of guilty on all counts.

At the sentencing stage of the proceeding the defense presented no special requests and appellant declined to make a statement. The court then gave the following explanation of the sentence it was about to impose:

. . . the Court has in its possession the interview which you voluntarily gave to the Federal Bureau of Investigation and the Georgia Bureau of Investigation, and I would suggest to you, sir, that if your family knew the contents of that interview as we know it, that maybe their attitude would be different . . ..

Frankly, the Court received a copy of that interview after you were tried this second go-round, and to say the least, Mr. McDuffie, the contents of that interview are startling and almost beyond belief.

The Court is not going to refer to the contents of that interview because it concerns matters that have not yet come to the public's attention. But I want to level with you and tell you that in that interview your own words portray a picture of you to this Judge that wasn't portrayed before we got that interview. You are an entirely different man from what the court thought when you were sentenced the last go-round . . ..

And just so there won't be any misunderstandings, I am putting in a sealed envelope a copy of the probation report that the Court had the last time you were sentenced and I am putting in the same sealed envelope the copy of the interview that you gave. It's going to be sealed. And I am certifying that I am basing the sentence on what's in this envelope so that in the event you choose to appeal the Court's actions, according to North Carolina v. Pearce, (395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656), which sets the constitutional limitations on sentencing after retrial, so you will have the full record in there for it to be done.

As I read that interview I was almost tempted to send for you and your lawyer to talk with you about it. The only analysis I can have of the situation is that you are just trying to put off the misery of serving that time, or that you just don't want to face up to what you yourself admit to in your own interview. . . .

Record, Vol. II, at 3-6.

At the conclusion of the statement the court imposed sentences which amounted to ten years of incarceration to be followed by five years of probation.

II

The instruction to the jury quoted supra concerning its supposed duty to reconcile, if it could, the testimony of all the witnesses so that each shall have spoken the truth is verbatim the instruction considered in United States v. Holland, 526 F.2d 284 (5th Cir.), petition for rehearing granted,537 F.2d 821 (5 Cir. 1976). Initially the Holland court held that this instruction was reversible error, for it incorrectly stated the jury's duty in assessing testimony and impermissibly invaded the province of the jury as the ultimate trier of fact. ⁵ On rehearing though, the court concluded that in viewing the charge as a whole the error was harmless. In reaching this conclusion, the court pointed to the fact that the jurors were charged that they were the sole judges of the facts, the weight of the evidence and the credibility of the witnesses, and that nothing the court said was intended to interfere with their exclusive responsibility to determine the factual issues in the case. This qualifier was held to have cured the otherwise erroneous portions of the instructions.

Here the same qualifier was given verbatim in the instruction. Thus, unless the facts in this case show that the instruction was substantially more prejudicial to appellant than it was to the defendant in Holland, that decision controls. See Davis v. Estelle, 529 F.2d 437, 441 (5th Cir. 1976). Appellant strongly contends that it was. He commences his argument by pointing out that none of the witnesses called in his defense directly contradicted the testimony of any prosecution witness. Instead, the three defense witnesses testified only as to appellant's work habits and the long hours he spent at his place of work some distance away from the still site. He emphasizes that the main thrust of the defense was not that the prosecution testimony had been placed in direct conflict but that the government's witnesses lacked credibility. This coupled with the presumption of innocence...