U.S. v. Morris

• Decision Date: 16 June 1980
• Docket Number: No. 78-1974,78-1974
• Citation: 623 F.2d 145
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. John Anthony MORRIS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 145

623 F.2d 145

UNITED STATES of America, Plaintiff-Appellee, v. John Anthony MORRIS, Defendant-Appellant.

No. 78-1974.

United States Court of Appeals,

Tenth Circuit.

Argued Nov. 26, 1979.

Decided June 16, 1980.

Nancy E. Rice, Asst. U. S. Atty., Denver, Colo. (Joseph F. Dolan, U. S. Atty. and Susan R. Roberts, Asst. U. S. Atty., Denver, Colo., on brief), for plaintiff-appellee.

Richard M. Borchers, Westminster, Colo., for defendant-appellant.

Before BARRETT, McKAY and LOGAN, Circuit Judges.

BARRETT, Circuit Judge.

John Anthony Morris (Morris or John) appeals his jury conviction of conspiring to embezzle funds belonging to a federally insured savings and loan association in violation of 18 U.S.C. §§ 371 and 657.

Morris was charged in a two-count indictment filed August 22, 1978. Count I charged Carol Ann Morris, appellant's wife, with embezzling approximately $137,000.00 in funds belonging to her employer, Equity Savings and Loan Association, from September 7, 1977 to April 11, 1978. Count II charged Morris, his wife and Rita Hamling, with conspiring to embezzle funds belonging to a federally insured lending institution from September 1, 1977, through the date of indictment.

Before trial, which began on October 4, 1978, Carol Morris pleaded guilty to the charges contained in Count I of the indictment in exchange for the dismissal of the Count II charge against her. She was sentenced to two and one-half years imprisonment.

Rita Hamling was granted a judgment of acquittal at the close of the Government's case-in-chief. Trial on the remaining charges lodged against Morris continued. A sentence of eighteen months imprisonment was imposed upon Morris following the jury's rendition of its verdict of guilty. Execution of sentence has been stayed pending our disposition.

The issues presented on appeal are whether the District Court: (1) improperly allowed certain evidence to remain before the jury following Hamling's acquittal; (2) erroneously allowed Morris' conviction to stand despite a fatal variance between the charges contained in the indictment and proof at trial; (3) impaired his right to trial before a fair and impartial jury; and, (4) erroneously denied his motion for judgment of acquittal made at the close of the Government's case-in-chief.

Evidentiary Problems

We turn first to Morris' claim that the District Court erred in allowing certain evidence, conditionally received during the Government's case-in-chief, to remain before the jury following Rita Hamling's acquittal.

The Government's theory at trial was premised on the belief that Carol and Rita formed the conspiracy in September, 1977, and that John thereafter joined it. As a result, both testimonial and documentary evidence was introduced attempting to show the involvement of Carol and Rita in the conspiracy prior to John's participation. The overwhelming majority of this evidence dealt with Carol's actions; little, if any, was tied to Rita's alleged involvement. Much of the evidence was received subject to the Government's ability and obligation to connect it to a conspiracy in which the defendants participated.

At the close of the Government's case, the Court ruled, pursuant to Rules 104(a) and 801(d)(2)(E), F.R.E., 28 U.S.C., that: the independent evidence adduced at trial proved by a preponderance that Rita Hamling and Carol Morris conspired to embezzle funds belonging to a federally insured lending institution as early as September 26, 1977; John Morris thereafter joined the conspiracy; and, the challenged evidence arose out of actions taken in the course of and in furtherance of the objects of the conspiracy. (R. Vol. III, p. 225). Based on this determination, numerous exhibits and testimony were admitted. (R. Vol. III, pp. 224-233). Concurrent motions for judgments of acquittal made on behalf of both Hamling and Morris were denied.

The following morning, after reconsidering both defendants' motions for acquittal, the Court ruled:

THE COURT: Well, I've reached the conclusion that there isn't enough evidence against Rita to submit this case to the jury. I mean on conspiracy. I think there is evidence that might convict her as an aider and abettor, for example, if it had been charged. But she's not charged as an aider and abettor.

There is no evidence in the record that shows that she did any participation other than what has been called to attention here today that's in the well, the handwriting expert report regarding the signatures on two or four of the money orders. But those money orders those particular ones haven't been traced as showing that there wasn't cash or its equivalent paid for those. . . .

I just think she was wrongly charged as a coconspirator in this case. And I can't in good conscience submit the case to the jury, because if I did and she were convicted, I couldn't sentence her, and I mean to confinement, so I just would prefer to feel clean about it and not take the chance. . . . So I'm going to grant the motion for judgment of acquittal as to Rita Hamling. (R. Vol. IV, pp. 5-7).

After the jury was informed of Hamling's acquittal, no motion was made by Morris to strike evidence previously admitted covering the period of Rita's alleged involvement in the conspiracy. Furthermore, the Court did not strike the evidence sua sponte. Trial continued. Morris was subsequently found guilty.

It is clear that "statements made by one conspirator may be used not only against the declarant but also against his coconspirators where made during the course and in furtherance of the conspiracy." United States v. Nixon, 418 U.S. 683, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974); United States v. Rios, 611 F.2d 1335 (10th Cir. 1979). However, assertive conduct or declarations made by one conspirator "either before the formation or after the termination of the conspiracy are not admissible against a co-conspirator." Mares v. United States, 383 F.2d 805, 810 (10th Cir. 1967). See also: Lutwak v. United States, 344 U.S. 604, 73 S.Ct. 481, 97 L.Ed. 593 (1953); Krulewitch v. United States, 336 U.S. 440, 69 S.Ct. 716, 93 L.Ed. 790 (1949); United States v. Andrews, 585 F.2d 961 (10th Cir. 1978). The rationale underlying the exclusion of such statements "is the lack of any opportunity for the adversary to cross-examine the absent declarant whose out-of-court statement is introduced into evidence." Anderson v. United States, 417 U.S. 211, 220, 94 S.Ct. 2253, 2260, 41 L.Ed.2d 20 (1974).

Assuming that the challenged evidence falls within the purview of the Hearsay Rule ¹, we, nevertheless, hold that its admission did not constitute reversible error.

In Beckwith v. United States, 367 F.2d 458 (10th Cir. 1966) this Court faced the precise issues presented here. There, it was argued that testimony relating to acts of a coconspirator, committed prior to the earliest date Beckwith could have joined the scheme, should have been excluded. We recognized that the challenged testimony should not have been admitted, or, if already admitted, thereafter stricken and the jury instructed to disregard it. ² Nevertheless, we held that where the court carefully and thoroughly instructed the jury on the requirements which must be met prior to their consideration of the acts and declarations of others, and counsel failed to object to the instructions as given, no reversible error occurred.

Our decision in Beckwith controls in the instant case. The Court, in the case at bar, carefully and correctly charged the jury on the matters enumerated in Beckwith. Specifically, the jury was instructed that Morris could not be bound by the acts or declarations of the other participants until it was established, beyond a reasonable doubt, that a conspiracy existed and that he was one of its members. ³ We presume that the jurors conscientiously observed the instructions and admonitions of the Court. Speculation that this was not done cannot now be employed in assailing the jury's verdict, in the absence of a showing of facts proving otherwise. United States v. Cooper, 464 F.2d 648 (10th Cir. 1972), cert. denied, 409 U.S. 1107, 93 S.Ct. 902, 34 L.Ed.2d 688 (1973). See also: Rasmussen Drilling, Inc. v. Kerr-McGee Nuclear Corp., 571 F.2d 1144 (10th Cir. 1978), cert. denied 439 U.S. 862, 99 S.Ct. 183, 58 L.Ed.2d 171 (1978); United States v. Smaldone, 485 F.2d 1333 (10th Cir. 1973), cert. denied, 416 U.S. 936, 94 S.Ct. 1934, 40 L.Ed.2d 286 (1974).

Counsel for Morris tendered some instructions. Significantly, however, none related to the admissibility of the challenged evidence. Furthermore, despite the Court's inquiry as to whether counsel had any objection to the charge, none was lodged.

We further observe that Carol Morris was called as a witness by the defense and examined thoroughly concerning the criminal activities she engaged in prior to John Morris' involvement. Moreover, our view of the record indicates that the evidence strongly supports the jury's verdict. In sum, while we believe that the Court should have instructed the jury to disregard the evidence, in the absence of its admissibility on other grounds, we hold that such failure did not constitute reversible error.

Variance Issues

Morris contends that the "evidence adduced at trial establishes facts different from those alleged in (the) indictment" and that this variance was fatal to the Government's case. Dunn v. United States, 442 U.S. 100, 104, 99 S.Ct. 2190, 2193, 60 L.Ed.2d 743 (1979). In assessing this claim, the key inquiry "is not whether there has been a variance in proof, but whether there has been such a variance as to 'affect the substantial rights' of the accused." Berger v. United States, 295 U.S. 78, 82, 55 S.Ct. 629, 630, 79 L.Ed. 1314 (1935). We have consistently held that such a variance occurs when the accused could not have anticipated from the indictment what evidence would be presented at trial or when a conviction based on the indictment would not bar subsequent prosecution....