U.S. v. Mulherin
| Citation | 710 F.2d 731 |
| Decision Date | 28 July 1983 |
| Docket Number | No. 81-8025,81-8025 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Anthony T. MULHERIN, Jr., Harvey E. Hornsby, Robert A. Holliday, Henry Mulherin, Elizabeth Moore, Defendants-Appellants. |
| Court | United States Courts of Appeals. United States Court of Appeals (11th Circuit) |
R. Jackson B. Smith, Jr., Augusta, Ga., for Anthony T. Mulherin, Jr.
Thomas W. Tucker, Dye, Miller, Tucker & Everitt, Augusta, Ga. (court-appointed), for Harvey E. Hornsby.
John B. Long, Nixon, Yow, Waller & Capers, Augusta, Ga. (court-appointed), for Robert A. Holliday.
G. Hughel Harrison, Samuel H. Harrison, Lawrenceville, Ga., for Henry Mulherin.
Percy J. Blount, Augusta, Ga., for Elizabeth Moore.
Bernard S. McLendon, Curtis Fallgatter, Asst. U.S. Attys., Jacksonville, Fla., for plaintiff-appellee.
Appeals from the United States District Court for the Southern District of Georgia.
Before GODBOLD, Chief Judge, KRAVITCH, Circuit Judge, and MORGAN, Senior Circuit Judge.
Appellant Henry Mulherin was convicted of conspiracy to violate provisions of the National Firearms Act, 26 U.S.C. Sec. 5801 et seq. 1 Appellant Elizabeth Moore was convicted of conspiracy to distribute and to possess with intent to distribute cocaine and marijuana in violation of 21 U.S.C. Sections 841(a)(1) and (b)(1)(B)(6). We affirm these convictions.
Appellants Tony Mulherin, Holliday, and Gene Hornsby were charged in the drug conspiracy and firearms conspiracy counts and with substantive violations of the National Firearms Act. These three alleged ringleaders asserted an entrapment defense. The jury found Hornsby and Holliday not guilty on the drug conspiracy count but was unable to reach a verdict as to Tony Mulherin on this count. On the firearms conspiracy count, the jury was unable to reach a verdict as to all three of these men. On the substantive firearms counts, the jury found the three not guilty on some counts and was unable to reach a verdict on others. We affirm the district court's determination that these three defendants may be retried on the mistried counts.
In the early 1970's Gary Peacock of Miami and Robert Hayes, Gene Hornsby and Tony Mulherin, all from Augusta, Georgia, knew each other through their mutual interest in boat racing. In late 1980 Peacock, acting as an undercover operative for the Bureau of Alcohol, Tobacco and Firearms (ATF), telephoned Hayes in Augusta, informing Hayes that he was now a drug smuggler and gunrunner and asking Hayes to find him a source in Augusta for automatic weapons. Over the next few months Peacock repeatedly called Hayes to ask if Hayes had found him a gun source. Hayes was not helpful, but he mentioned Peacock's interest to their mutual friend Gene Hornsby. Once when Peacock called, Hornsby was in Hayes' store; Hornsby talked with Peacock who asked Hornsby to find him a gun source. Hornsby, like Hayes, said he would ask around; but unlike Hayes, 2 Hornsby pursued the matter.
Hornsby located an automatic weapon through his friend Holliday. Peacock flew to Augusta with a business associate to meet with Hornsby and Holliday about the merchandise. Peacock paid Hornsby and Holliday $1,000 for the gun. Peacock wanted more guns; Hornsby and Holliday agreed to try to find more.
Soon thereafter Peacock invited Tony Mulherin into the scheme. At Peacock's suggestion, the scheme grew. The Augusta group acquired semi-automatic weapons and converted them to fully automatic operation. Friends and relatives were drawn in to manufacture silencers. Tony Mulherin's brother Henry became the group's source for dynamite and explosive devices.
Initially the deal was guns for cash, but Peacock suggested trading guns for marijuana and cocaine. Hornsby, Holliday and Tony Mulherin agreed. More people were needed, and Tony Mulherin introduced Moore into the group to act as drug tester and distributor. Clayton agreed to furnish a landing strip and storage place for the expected drugs. 3 The group made initial deliveries of guns, silencers and explosives, then a big trade of guns for drugs was set for April 5, 1981. Hornsby, Holliday and Tony Mulherin promised to fly about 20 machine guns and 300 silencers to an airstrip near Jacksonville, Florida. They arranged for Henry Mulherin to deliver about 1,000 pounds of dynamite plus blasting caps and detonation cord to Peacock's pilot at a site near Atlanta on the same day. In return, Peacock would fly in about 2,000 pounds of marijuana to Clayton's airstrip near Augusta. They dubbed their plans "Operation Flying Circus."
During many hours of his dealings with the Augusta group Peacock was wired and their conversations were recorded. Business associates that Peacock introduced to the group were AFT agents and Drug Enforcement Administration (DEA) agents. On April 5 when Tony Mulherin and Hornsby landed in Florida with a planeload of machine guns and silencers they were arrested. Hornsby and Clayton were arrested waiting at the airstrip in Georgia to unload the expected drugs. Other participants were soon rounded up.
Moore and Henry Mulherin challenge the district court's refusal to dismiss the indictment for alleged government misconduct in investigating and prosecuting the case; i.e., there was no basis for Peacock's beginning the investigation since none of the defendants was suspected of criminal activity; appellants were unwary innocents seduced by Peacock into crimes so he could collect reward money; Peacock lied on the witness stand about paying his income taxes in previous years; an investigatory agent threatened a defense witness; and an agency witness lied about Peacock's financial incentives from the agency.
Government involvement in criminal schemes can be so outrageous that it offends due process. See U.S. v. Tobias, 662 F.2d 381 (5th Cir.1981) (Unit B), cert. denied, 457 U.S. 1108, 102 S.Ct. 2908, 73 L.Ed.2d 1317 (1982) 4; see also Hampton v. U.S., 425 U.S. 484, 492-93, 96 S.Ct. 1646, 1651, 48 L.Ed.2d 113 (1976) (Powell, J., concurring); U.S. v. Russell, 411 U.S. 423, 431, 93 S.Ct. 1637, 1642, 36 L.Ed.2d 366 (1973). To amount to a constitutional violation the law enforcement techniques must be so outrageous that they are fundamentally unfair and " 'shocking to the universal sense of justice,' mandated by the Due Process Clause of the Fifth Amendment." U.S. v. Russell, 411 U.S. at 432, 93 S.Ct. at 1643 (quoting Kinsella v. U.S. ex rel. Singleton, 361 U.S. 234, 246, 80 S.Ct. 297, 303, 4 L.Ed.2d 268 (1960)).
The government maintains these appellants have no standing to assert a due process violation based on alleged outrageous government conduct because neither Moore nor Henry Mulherin was first introduced into the scheme by a government agent. Because the conduct complained of here falls far short of a due process violation, we need not explore the question of standing to assert this defense. In Tobias, supra, the court rejected a claim of outrageous government conduct where the government suggested to the defendant that he manufacture the controlled substance PCP, provided him with the formula, chemicals, and equipment necessary for manufacturing PCP, and continued to give technical advice to him during the manufacturing process. While Peacock may have suggested the illegal activity here and given advice on converting weapons and manufacturing silencers, it was the defendants themselves who obtained the equipment and supplies for their activities. In U.S. v. Savage, 701 F.2d 867 (11th Cir.1983), a claim of outrageous government conduct was rejected where DEA agents posed as sellers of large quantities of marijuana, put the word out through undercover agents and confidential informants that marijuana was for sale, and arrested persons who bought marijuana from them once the sale was consummated. Here as in Savage there was no reason for the government to suspect the particular defendants of criminal behavior at the outset of the undercover operation, and the confidential informants used, like Peacock, had a financial stake in netting as many people in the "sting" as they could. In U.S. v. Struyf, 701 F.2d 875 (11th Cir.1983), the contention of a due process violation was rejected where, in a Savage -type operation, the government informant solicited a close friend who was his former brother-in-law.
The assertions that Peacock and others lied about financial matters are based upon inconsistencies that were explored during trial. The jury had full opportunity to assess the conduct and credibility of the government's witnesses and also had overwhelming and essentially undisputed evidence of appellants' participation through some 50 hours of recorded conversations.
Moore and Henry Mulherin contend the district court abused its discretion by denying their motions for severance. The district court may order severance where it determines prejudice will result from joinder, Fed.R.Crim.Proc. 14, but the decision to sever is in the discretion of the district judge, and will not be overturned in the absence of abuse of that discretion. U.S. v. Riola, 694 F.2d 670, 672 (11th Cir.), cert. denied, --- U.S. ----, 103 S.Ct. 1532, 75 L.Ed.2d 953 (1983). Appellants do not show an abuse.
Moore and Henry Mulherin maintain that they were prejudiced by Hornsby's, Holliday's, and Tony Mulherin's use of the entrapment defense. They argue that as minor actors they were prejudiced by a spillover of the evidence against Hornsby, Holliday and Tony Mulherin. They urge that the jury's verdict was inconsistent, showing an inability to compartmentalize the evidence against each defendant. Henry Mulherin also contends that the jury confused him with his brother Tony.
A codefendant's reliance on the entrapment defense does not of itself require severance for a defendant...
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