U.S. v. Moree

• Decision Date: 29 March 1990
• Docket Number: No. 89-4204,89-4204
• Citation: 897 F.2d 1329
• Parties: , 30 Fed. R. Evid. Serv. 329 UNITED STATES of America, Plaintiff-Appellee, v. Sim Ed MOREE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1329

897 F.2d 1329

114 A.L.R.Fed. 807, 30 Fed. R. Evid. Serv. 329

UNITED STATES of America, Plaintiff-Appellee, v. Sim Ed MOREE, Defendant-Appellant.

No. 89-4204.

United States Court of Appeals, Fifth Circuit.

March 29, 1990.

Julie Ann Epps, Rienzi, Miss. (court appointed), for defendant-appellant.

Richard T. Starrett, Asst. U.S. Atty. and George Phillips, U.S. Atty., Jackson, Miss., for plaintiff-appellee.

Appeals from the United States District Court for the Southern District of Mississippi.

Before CLARK, Chief Judge, and THORNBERRY and JONES, Circuit Judges.

CLARK, Chief Judge:

I.

Sim Ed Moree appeals his conviction for conspiracy to obstruct justice (18 U.S.C. Sec. 371) and endeavoring to obstruct justice (18 U.S.C. Sec. 1503). Moree also appeals the sentence imposed under the Sentencing Guidelines. We affirm the conviction but remand for resentencing.

II.

In 1987 Robert Joiner, then Highway Commissioner for the Southern District of Mississippi, was indicted on eleven counts of extortion, bribery, and tax evasion. Earlier that year a federal grand jury had indicted Sim Ed Moree, a supervisor in Marion County, Mississippi, on charges of malfeasance while in public office. The indictments of both men occurred as part of "Operation Pretense," an investigation into corruption among Mississippi's public officials by the Federal Bureau of Investigation ("FBI").

In December 1987, Moree's original indictment was dismissed without prejudice to allow the government to list additional charges. After the dismissal and before he was reindicted, Moree approached Joiner with the story that the dismissal of his indictment had been secured by certain persons for a fee of $25,000. For $160,000, Moree claimed, these same persons would "fix" Joiner's case so that he would receive a maximum three-year sentence with two years suspended and a $25,000 fine. Moree told Joiner that he could not name these individuals and that they would work only through Moree. Joiner reported the offer to his attorney, who contacted the FBI.

With Joiner's cooperation, Agent King of the FBI conducted surveillance of conversations and meetings between Joiner and Moree which produced six audio tapes of Moree discussing the same offer with Joiner. Moree never divulged the identity of any co-conspirator. The FBI did learn that Moree's brother, Ben Moree, watched Joiner's car during two of the meetings and followed Joiner after one of the meetings. During their third meeting, Moree accepted from Joiner $50,000 in cash which had been provided by the government. When Moree left the motel room, King arrested him. King then walked across the road to Ben Moree, who had been watching Joiner's car from his parked truck. Ben told King that he did not know the purpose of the meetings between his brother and Joiner, but that Sim Ed had told him to watch Joiner's car.

Sim Ed Moree was convicted of conspiring to obstruct justice and endeavoring to obstruct justice. In sentencing Moree, the court increased his base offense level two points based on a finding that Joiner was an especially vulnerable victim. Moree was sentenced to twenty-one months in prison on each count. These sentences were to run concurrently but consecutively with a sixty-month term imposed for separate convictions of extortion and conspiracy to commit mail fraud. Moree appeals both his conviction and sentence.

III.

A. Sufficiency of the Evidence

Moree first contends that the evidence adduced was insufficient to allow a jury to find him guilty beyond a reasonable doubt of the conspiracy charge. The government contends that the record shows Moree had conspired with Tommy Wallace, an acquaintance of Joiner's who arranged the first meeting between Joiner and Moree, Ben Moree, who kept surveillance on Joiner, and the unnamed contacts who Moree claimed would fix Joiner's trial.

Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979) sets this standard for gauging sufficiency of the evidence: "the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt" (emphasis in original). Because the government produced sufficient evidence to form a rational basis for the jury's adjudication of Moree's guilt, we affirm.

Moree asserted on several occasions that he could fix Joiner's trial with the assistance of the unnamed co-conspirators. The only evidence that in any way questions these statements was agent King's testimony that the FBI had not ascertained the identities of these parties. The jury also knew King had expressed to the grand jury the opinion that Moree did not have the intention or ability to fix Joiner's case.

A conspiracy conviction does not depend on the identification of the co-conspirators. The co-conspirators need not be identified as long as evidence supports "the proposition that such a co-conspirator did exist and that the defendant did conspire with him." United States v. Pruett, 551 F.2d 1365, 1369 (5th Cir.1977). See Rogers v. United States, 340 U.S. 367, 375, 71 S.Ct. 438, 443, 95 L.Ed. 344 (1951). Moree's repeated assertions that he would fix Joiner's trial with the help of his unnamed co-conspirators and the observed conduct of Ben Moree in surveiling Joiner during meetings with Sim Ed Moree provided sufficient evidence under the standard of Jackson v. Virginia to support his conspiracy conviction.

B. Hearsay Evidence

Neither Sim Ed nor Ben Moree testified at trial. Evidence of Ben Moree's involvement in Sim Ed's activities was produced during the testimony of King and Joiner, both of whom observed Ben's surveillance activities. When asked if Ben Moree stated who had asked him to remain at the motel, King testified, "[a]t his brother's request. He told me that he was there both days at his brother's request." Defendant entered a continuing objection to this line of testimony. King later testified: "He [Ben Moree] said his brother asked him to--on the 4th, to watch out for Mr. Joiner's car and just keep a look on it. And I said, well--and I verified the fact he followed Mr. Joiner when Mr. Joiner left the motel out towards Hattiesburg." Defendant's objection to this latter statement was sustained.

Moree contends that the statement asserting that Ben Moree was acting in concert with Sim Ed was improperly admitted hearsay. At trial the government argued that the testimony was non-hearsay under the exception provided in Fed.R.Evid. 801(d)(2)(E) as the statement of a co-conspirator during or in furtherance of the conspiracy. The government now withdraws that argument, conceding that since Sim Ed Moree had already been arrested, any conspiracy was over by the time Ben's statement was made.

The government now argues that the admission of the hearsay testimony was harmless error when viewed in light of the entire record. We agree. The record shows that the hearsay testimony was only a small part of the evidence put forward by the government to convince the jury that Sim Ed Moree had conspired with other persons to obstruct justice. We have stated:

[t]o require a new trial, the prejudicial effect of improper matter, viewed in the context of that particular trial, must not be overwhelmed by evidence of guilt. A significant possibility must exist that, considering the other evidence presented by both the prosecution and the defense, the stricken statement had a substantial impact upon the verdict of the jury.

United States v. Arenas-Granada, 487 F.2d 858, 859 (5th Cir.1973). See, e.g., Kotteakos v. United States, 328 U.S. 750, 765, 66 S.Ct. 1239, 1248, 90 L.Ed. 1557 (1946) (The verdict must be left in "grave doubt" to require reversal due to an improperly admitted statement.). The statement admitted here does not create such doubt in the verdict of the jury.

Additionally, the erroneously admitted hearsay testimony did not provide the jury with information that would allow them to find Sim Ed guilty of conspiracy with his brother alone. The trial judge instructed the jurors that a finding of conspiracy could not be based on the actions of a second person who did not have knowledge of the conspiracy. All that the hearsay could have proven was that Ben Moree watched Joiner at Sim Ed's request. Ben's knowledge of the purpose of Sim Ed's activities was not proven. King's hearsay testimony did not supply any essential element of the crime of conspiracy to the jury. Thus, the admission of the testimony which did not affect any substantial right of Sim Ed Moree was harmless error. See Fed.R.Civ.P. 61.

C. Evidence of the Obstruction of Justice

Moree contends that the government produced insufficient evidence to convict him of endeavoring to obstruct justice under 18 U.S.C. Sec. 1503. He states that no proof was offered of his ability or intention to fix Joiner's trial or of his ability to foresee the danger to the public's right to try Joiner which the success of his scam would cause. Moree's contention is frivolous. It is hard to imagine a more invidious obstruction of justice than an offer to bribe officials in control of the judicial system to fix the result of a trial. Had Moree's scam succeeded in deceiving Joiner, it cannot be seriously doubted that Joiner would have taken a different approach to his trial, including the entry of a falsely-induced guilty plea. Nor can it be doubted that Moree could foresee these unprofitable consequences for Joiner. The jury was presented with sufficient evidence to find Moree guilty of endeavoring to obstruct justice. See United States v. Silverman, 745 F.2d 1386, 1393 (11th Cir.1984); United States v. Neiswender, 590 F.2d 1269, 1273 (4th Cir.), cert. denied, 441 U.S. 963, 99 S.Ct. 2410, 60 L.Ed.2d 1068 (1979).

D. The Indictment

Moree claims that the following jury instruction constructively amended his indictment:

If you find that the defendant,...