U.S. v. Pate, 76-1407

• Decision Date: 13 December 1976
• Docket Number: No. 76-1407,76-1407
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. F/N/U PATE, a/k/a "Tush Hog", and Jerry Edward Pate, Defendants-Appellants. Summary Calendar. *
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1148

543 F.2d 1148

UNITED STATES of America, Plaintiff-Appellee, v. F/N/U PATE, a/k/a "Tush Hog", and Jerry Edward Pate,

Defendants-Appellants.

No. 76-1407

Summary Calendar. ^*

United States Court of Appeals, Fifth Circuit.

Dec. 13, 1976.

Michael J. Romeo, Birmingham, Ala., for F. Pate.

George H. B. Mathews, Montgomery, Ala. (Court-appointed), for J. Pate.

Ira DeMent, U. S. Atty., Robert C. Watson, Asst. U. S. Atty., Montgomery, Ala., for plaintiff-appellee.

Appeals from the United States District Court for the Middle District of Alabama.

Before BROWN, Chief Judge, and GEWIN and MORGAN, Circuit Judges.

JOHN R. BROWN, Chief Judge:

Eddie Wayne Pate and Jerry Edward Pate, defendants below, urge several points of error from their conviction for conspiracy to violate the Dyer Act, 18 U.S.C.A. § 371, ¹ and for violation of the Dyer Act, 18 U.S.C.A. § 2312. ² After closely examining all of defendants' contentions, we find them to be without merit, and accordingly, we affirm.

Jerry Edward Pate raises only one claim of error. He argues that it was reversible error for the District Court to allow the United States Attorney to exhibit a document to the Government witness for the purpose of refreshing the witness's memory, without establishing first that her present recollection was exhausted. However, since Defendant did not raise a specific objection at trial on this ground, we must review this action of the Trial Court under a plain error standard. See United States v. Garcia, 5 Cir., 1976, 531 F.2d 1303. Under that standard, we must affirm his conviction, since we find no plain error, if error at all.

Eddie Wayne Pate makes five attacks. First, he argues that it was error for the Court to admit the testimony of a Government witness of threats made against that witness by Jerry Edward Pate when the witness and Defendants were incarcerated together in the Selma, Alabama jail after their arrest. However, the Court carefully and repeatedly emphasized to the jury that they were to consider this evidence only to show consciousness of guilt of the one who made the threats and, further, that the jury was only to consider this evidence against Jerry Edward Pate, and not against Eddie Wayne Pate. Under these circumstances, we find no reversible error. See Rich v. United States, 5 Cir., 1967, 384 F.2d 887, 888; United States v. Freundlich, 2 Cir., 1938,95 F.2d 376, 378-79. The subordinate contention that this was hearsay is palpably frivolous since the words related were verbal acts and were not introduced to prove the truth of them.

Second, Defendant argues that it was error for the Court to allow the testimony of one of the Government witnesses because it related to events occurring after the conspiracy had ended. It is certainly true that declarations and statements made by a conspirator after the conspiracy is terminated are inadmissible against his co-conspirator. See Lutwak v. United States, 1953, 344 U.S. 604, 618, 73 S.Ct. 481, 489, 97 L.Ed.2d 593, 603-04. However, the record below clearly supports the District Court's finding that the statements in question were made during the course of and in furtherance of an ongoing conspiracy. Under these circumstances, admission of the testimony was not error. See Anderson v. United States, 1974, 417 U.S. 211, 218, 94 S.Ct. 2253, 2259, 41 L.Ed.2d 20, 27-28.

Third, Defendant urges that there was insufficient evidence to support the verdict as to two counts of the indictment. Defendant was convicted and sentenced under a general verdict and sentence, ³ so that we may not escape ruling on this claim on the basis of the concurrent sentence doctrine. In ruling on this it is important that Defendant did not move for a directed judgment of acquittal. Consequently, the convictions will be upheld unless to do so would result in a manifest miscarriage of justice. See United States v. Perez, 5 Cir., 1976, 526 F.2d 859, 864 n.7 and cases cited therein. Our careful review of the record below does not disclose a manifest miscarriage of justice. The evidence as to the two counts was clearly sufficient to uphold a finding that the Defendant aided and abetted both offenses, and under well-known conspiracy law, this is sufficient to uphold his conviction as a principal. See Pinkerton v. United States, 1946, 328 U.S. 640, 66 S.Ct. 1180, 90 L.Ed. 1489; United States v. Williams, 8 Cir., 1974, 503 F.2d 480, 484, citing Smith v. United States, 5 Cir., 1968, 403 F.2d 689.

Defendant's fourth and fifth contentions are so frivolous and totally devoid of merit as not to merit discussion.

AFFIRMED.

* Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Company of New York et al., 5 Cir., 1970, 431 F.2d 409, Part I.

1 § 371. Conspiracy to commit offense or to defraud United States

If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined not more than $10,000 or imprisoned not more than five years, or both.

If, however, the offense, the commission of which is the object of the conspiracy, is a misdemeanor only, the punishment for such conspiracy shall not exceed the maximum punishment provided for such misdemeanor.

2 § 2312. Transportation of stolen vehicles

Whoever transports in interstate or foreign commerce a motor vehicle or aircraft, knowing the same to have been stolen, shall be fined not more than $5,000 or imprisoned not more than five years, or both.

3 In the past, we have preached at length on the undesirability of the use of a general sentence, particularly where the general sentence exceeds that which could have been given upon conviction under any one count. S...