U.S. v. Mullins

• Decision Date: 08 September 1993
• Docket Number: No. 92-6230,92-6230
• Citation: 4 F.3d 898
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jackie Howard MULLINS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 898

4 F.3d 898

UNITED STATES of America, Plaintiff-Appellee, v. Jackie Howard MULLINS, Defendant-Appellant.

No. 92-6230.

United States Court of Appeals,

Tenth Circuit.

Sept. 8, 1993.

Jerome Kerney, Asst. Federal Public Defender (William P. Earley, Asst. Federal

Public Defender, on the brief), Oklahoma City, OK, for defendant-appellant.

Ted A. Richardson, Asst. U.S. Atty. (Joe Heaton, U.S. Atty., with him on the brief), Oklahoma City, OK, for plaintiff-appellee.

Before BALDOCK and BRORBY, Circuit Judges, and VRATIL ¹, District Judge.

VRATIL, District Judge.

Jackie Howard Mullins was charged with one count of conspiracy to commit arson and mail fraud in violation of 18 U.S.C. Sec. 371, one count of arson in violation of 18 U.S.C. Sec. 844(i), and three counts of mail fraud and aiding and abetting mail fraud in violation of 18 U.S.C. Sec. 1341 and 18 U.S.C. Sec. 2. Mullins pleaded not guilty on all counts and proceeded to jury trial in the United States District Court for the Western District of Oklahoma. The jury convicted Mullins on all counts and the court sentenced him to 70 months imprisonment with a three-year period of supervised release.

Defendant alleges that the trial court committed error:

(1) In giving an impeachment instruction which unfairly singled out his testimony and that of his co-defendant because it mentioned that false testimony "signifies a consciousness of guilt" and the issue of "guilt" related only to defendants and not to other witnesses; and

(2) In enhancing defendant's sentence by 18 levels under the United States Sentencing Commission, Sentencing Guidelines (hereinafter "U.S.S.G.") Sec. 2K1.4 App. C (amend. # 330) (1992) (effective November 1, 1990), based on its finding that in committing arson defendant knowingly created a substantial risk of death or bodily injury.

Defendant also claims that the evidence was insufficient to support his conviction. For reasons stated here and in the court's companion case, United States v. Markum, 4 F.3d 891 (1993), we affirm.

I. Sufficiency of the Evidence

Mullins proceeded to trial with his co-defendant, Judy Louise Brown Markum. The evidence is recited and reviewed in the companion opinion cited above. For reasons stated therein, we find that the evidence was sufficient to support Mullins' conviction on all counts.

II. Credibility Instruction

Mullins complains that the district court gave a witness impeachment instruction which referred to "guilt" and thus unfairly singled out defendants--the only witnesses to which the concept of guilt could apply.

The instruction to which Mullins objects reads in pertinent part as follows:

... [I]f you find that a witness has knowingly given false testimony during this trial denying incriminating facts, an inference that you are permitted to draw is that the false testimony signifies a consciousness of guilt.

Doc. # 49, Inst. # 12.

Defendant admits that the jury might have properly inferred a consciousness of guilt if it found that he had knowingly given false testimony. He nonetheless argues that the district court erred in failing to give the full instruction on exculpatory statements recited in 1 E. Devitt & C. Blackmar Federal Jury Practice and Instruction Sec. 14.06 (4th Ed.1992). The Devitt & Blackmar instruction reads as follows:

When a defendant voluntarily offers an explanation or voluntarily makes some statement tending to show [his/her] innocence and it is later shown that the defendant knew that the statement or explanation was false, the jury may consider this as showing consciousness of guilt on the part of Defendant since it is reasonable to infer that an innocent person does not usually find it necessary to invent or fabricate an explanation or statement tending to establish [his/her] innocence.

Whether or not evidence as to a defendant's explanation or statement points to a consciousness of guilt on [his/her] part and the significance, if any, to be attached to any such evidence, are matters exclusively within the province of the jury as the sole judges of the facts of this case.

In your evaluation of evidence of any exculpatory statement shown to be false, you may consider that there may be reasons--fully consistent with innocence--that could cause a person to give a false statement showing their innocence. Fear of law enforcement, reluctance to become involved, and simple mistake may cause a person who has committed no crime to give such a statement or explanation.

Jury instructions must be examined as a whole and a de novo standard of review is applied to determine the propriety of an individual jury instruction to which objection was made at the time of trial. E.g., United States v. Sasser, 974 F.2d 1544, 1551 (10th Cir.1992), cert. denied, Sasser v. United States, --- U.S. ----, 113 S.Ct. 1063, 122 L.Ed.2d 368 (1993), citing United States v. Barbee, 968 F.2d 1026, 1033 (10th Cir.1992); United States v. de Francisco-Lopez, 939 F.2d 1405, 1409 (10th Cir.1991); United States v. Sanchez-Robles, 927 F.2d 1070, 1073 (9th Cir.1991)). Our standard of review is whether the jury, considering the instructions as a whole, was misled. United States v. Davis, 929 F.2d 554, 560 (10th Cir.1991), citing United States v. Willis, 890 F.2d 1099, 1105 (10th Cir.1989...