U.S. v. Mullins

• Decision Date: 02 May 1994
• Docket Number: No. 92-2228,92-2228
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Gene R. "Moon" MULLINS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1365

22 F.3d 1365

UNITED STATES of America, Plaintiff-Appellee, v. Gene R. "Moon" MULLINS, Defendant-Appellant.

No. 92-2228.

United States Court of Appeals Sixth Circuit.

Argued Dec. 3, 1993.

Decided May 2, 1994.

Joseph J. Allen, Asst. U.S. Atty. (argued), Christopher P. Yates (briefed), Office of U.S. Atty., Detroit, MI, for U.S.

Mayer Morganroth (argued and briefed), Jeffrey B. Morganroth (briefed), Southfield, MI, for Gene R. Moon Mullins.

Before: JONES and SUHRHEINRICH, Circuit Judges; and ENGEL, Senior Circuit Judge.

SUHRHEINRICH, Circuit Judge, delivered the opinion of the court, in which ENGEL, Senior Circuit Judge, joined. JONES, Circuit Judge (pp. 1374-76), delivered a separate concurring opinion.

SUHRHEINRICH, Circuit Judge.

Defendant Mullins was convicted on one count of conspiracy to obstruct justice in violation of 18 U.S.C. Secs. 371, 1503, and 1512, two counts of tampering with witnesses in violation of 18 U.S.C. Sec. 1512(b)(2)(B), and three counts of obstruction of justice in violation of 18 U.S.C. Sec. 1503, arising out of his interference with a federal grand jury investigation involving the aviation section of the Detroit Police Department. Mullins filed a timely notice of appeal and challenges these convictions on numerous procedural and substantive grounds. For the reason stated below, we AFFIRM.

I.

In 1990, a grand jury in the Eastern District of Michigan conducted an investigation into the use of the Detroit Police Department (DPD) "secret service fund." As part of its investigation, the grand jury issued subpoenas for the production of the flight logs of certain DPD officers assigned to the department's aviation section. Among the logbooks subpoenaed were those kept by defendant Mullins.

After the subpoenas were served, Mullins instructed various aviation section officers to alter their logs before producing them in order to delete any references to questionable destinations such as Las Vegas and Atlantic City. Mullins also altered his own logs and those of at least one other aviation section officer. After the logs were turned over, an aviation section officer informed the government of these alterations and deletions. A second grand jury issued a second set of subpoenas to compel the testimony of the aviation section officers whose logs had been altered.

On October 23, 1991, the grand jury indicted Officer Mullins and Commander Dabrowski, head of the aviation section, for conspiring to obstruct justice, obstructing justice, and tampering with witnesses and documents. Dabrowski pleaded guilty to the conspiracy charge and agreed to testify for the government in return for the government's recommendation that he not be sentenced to imprisonment. The prosecution against Mullins proceeded to trial and the jury found him guilty on six of the ten counts against him. The district court sentenced Mullins to a term of twenty-seven months in prison for each of the six convictions, but ordered these sentences to run concurrently.

II.

A. Sufficiency of the Evidence

Mullins first asserts that, as to the charges of conspiring to obstruct justice (Count I) and obstructing justice by inducing Officer Belk to alter his flight log (Count V), the evidence was insufficient as a matter of law. We disagree.

1. Conspiracy

To convict Mullins of a conspiracy under 18 U.S.C. Sec. 371, the government was required to prove (1) that there was an agreement whose object was to obstruct justice, (2) that Mullins knowingly and voluntarily joined in this agreement, and (3) that at least one overt act was committed in furtherance of the object of the agreement. United States v. Meyers, 646 F.2d 1142, 1143-44 (6th Cir.1981). Twenty-six overt acts were alleged, including four instances in which Mullins altered his own logbook, four instances in which Mullins altered the logbooks of others, and thirteen instances in which Mullins directed others to alter their logbooks.

The government's evidence showed that when the grand jury subpoenas arrived, Dabrowski bought a new logbook and transcribed entries from Mullins' log into it. Both Mullins and Dabrowski inspected the logbooks of other officers and, on several occasions, Mullins directed the officers to make changes to their records. One officer testified that he went over his logbook with Mullins "five or six times" as the two of them decided "what to do." Another testified that Mullins told him to "correct" his log and then take it to Dabrowski for review. From these facts, it may reasonably be inferred that Mullins, Dabrowski and others were acting pursuant to an agreed objective of preventing certain information from reaching the grand jury.

Mullins argues that, because Dabrowski testified that Mullins did not instruct him to alter his logbook and that he made the alterations without Mullins' knowledge, this conclusively established that the two had no "agreement" to obstruct justice. Mullins' argument is unpersuasive. Even though a juror might have concluded, based on that portion of Dabrowski's testimony, that there was no conspiracy between Mullins and Dabrowski, that is not the issue. The issue is limited to whether, in light of this testimony, no reasonable juror could find, beyond a reasonable doubt, the existence of the conspiracy charged in this case. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). We hold that this testimony, while it might support an acquittal, does not require one. This point is denied.

2. Obstruction

Mullins insists that he cannot be convicted under Count V of the indictment because that count requires proof that he "did aid and abet another" in obstructing justice "by aiding, inducing or procuring the creation by [another officer] of false and fraudulent entries in [that officer's] pilot logbook." Mullins contends there was no proof, direct or circumstantial, of his having "aided or abetted" Dabrowski in committing an obstruction of justice.

Mullins' argument is misdirected. The crime charged, as the second portion quoted makes clear, is obstruction of justice through inducing a particular officer to change records in that officer's flight log. The officer whose logbook is the focus of Count V testified that Mullins told him to alter his logbook and to take it to Dabrowski for Dabrowski to see. Thus, the evidence was sufficient to permit a finding of guilty on Count V.

The government pleaded the count in terms of accessorial principles, perhaps because it was difficult to tell--as between Mullins and Dabrowski--who was the principal and who the accessory. It is axiomatic, however, that the government may always prove the defendant is guilty as a principal, even where the indictment charges only that he acted as an accessory. United States v. Garcia-Nunez, 709 F.2d 559, 562 (9th Cir.1983) (citing United States v. Bryan, 483 F.2d 88, 95-97 (3rd Cir.1973)). Thus, the government's use of accessorial liability phrasing in Count V did not preclude it from showing, as it did, that Mullins was guilty as a principal. Mullins alleges no prejudice from this immaterial variance, nor could there have been any. This point is denied.

B. Instructions

Mullins also contends that his convictions must be reversed because the trial court erred in refusing to instruct the jury regarding "specific intent." Mullins proffered an instruction requiring the jury to return a verdict of acquittal if it found that the government failed to prove that Mullins had a "specific intent to obstruct justice." Mullins further defined this "specific intent" as proof that he "knowingly did an act which the law forbids ..., purposely intending to violate the law."

The trial court refused Mullins' request and instructed the jury, with respect to the charges of obstructing justice, that the government must prove:

The defendant Gene R. Mullins then corruptly endeavored to influence, obstruct or impede the due administration of justice ... with the intent of purpose to obstruct.

As to the charges of tampering, the district court instructed the jury that the government must prove:

[T]he defendant ... knowingly attempted to use intimidation or to corruptly persuade the person identified in the indictment; and

The defendant did so with intent to cause or induce the person to alter, destroy, mutilate, or conceal an object or impair the object's integrity or availability for use in a federal grand jury proceeding.

These instructions accurately and succinctly convey the mental states necessary for conviction under 18 U.S.C. Secs. 1503, 1512. See United States v. Jeter, 775 F.2d 670, 679 (6th Cir.1985) (mens rea for Sec. 1503 is the "general intent of knowledge as well as the specific intent of purpose to obstruct") (emphasis omitted), cert. denied, 475 U.S. 1142, 106 S.Ct. 1796, 90 L.Ed.2d 341 (1986); United States v. Scaife, 749 F.2d 338, 348 (6th Cir.1984) (mens rea for Sec. 1512 is a "knowing" use of corrupt persuasion with an intent to interfere with official proceedings). The district court's instructions had the added advantage of accurately conveying the law without subjecting the jury to a confusing discourse on the difference between "general" and "specific" intent. See Liparota v. United States, 471 U.S. 419, 433 n. 16, 105 S.Ct. 2084, 2092 n. 16, 85 L.Ed.2d 434 (1985) (courts encouraged to "eschew use of difficult legal concepts like 'specific intent' "); United States v. S & Vee Cartage Co., 704 F.2d 914, 919 (6th Cir.) (instruction on mens rea adequate "without resorting to the words 'specific intent' "), cert. denied, 464 U.S. 935, 104 S.Ct. 343, 78 L.Ed.2d 310 (1983). Taken as a whole, we hold the jury instructions "fairly and adequately submit[ted] the issues and applicable law to the jury." United States v. Buckley, 934 F.2d 84, 87 (6th Cir.1991) ( quoting United States v. Martin, 740 F.2d 1352, 1361 (6th Cir.1984)).

Moreover, we are unable to discern any possible prejudice to Mullins under the...