U.S. v. Perkins

• Decision Date: 19 December 1984
• Docket Number: No. 83-3566,83-3566
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Paul C. PERKINS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1519

748 F.2d 1519

UNITED STATES of America, Plaintiff-Appellee, v. Paul C. PERKINS, Defendant-Appellant.

No. 83-3566.

United States Court of Appeals, Eleventh Circuit.

Dec. 19, 1984.

John A. DeVault, III, Jacksonville, Fla., for defendant-appellant.

Thomas W. Turner, Asst. U.S. Atty., Orlando, Fla., for plaintiff-appellee.

Appeal from the United States District Court for the Middle District of Florida.

Before KRAVITCH and HATCHETT, Circuit Judges, and HANCOCK, ^* District Judge.

KRAVITCH, Circuit Judge:

Appellant Paul C. Perkins was convicted of conspiracy to obstruct justice in violation of 18 U.S.C. Sec. 371 ¹ and obstruction of justice

                in violation of 18 U.S.C. Sec. 1503. 2   Perkins appeals, claiming that the indictment was invalid, that the evidence was insufficient to support the jury's verdict, and that the trial court erred in denying him a new trial on the basis of jury misconduct.  We find that, because of juror misconduct, appellant is entitled to a new trial;  therefore, we reverse and remand
                

I. FACTUAL BACKGROUND

The Washington Shores Savings and Loan Association was organized in April, 1963. Paul Perkins and Charles Hawkins were among the bank's organizers. During the period relevant to this case, appellant Perkins was the bank's attorney and Charles Hawkins was its president. ³ Kaydette Hawkins, the wife of Charles Hawkins, had two brothers, John Wesley Hamilton and Ruye Berkley Hamilton. Their father's name was Ruye Marshall Hamilton.

On April 1, 1963, Ruye Marshall Hamilton opened an account at the Washington Shores Savings and Loan Association in the fictitious name of "Sweetie Marshall," a combination of his nickname "Sweetie" and his true middle name. The funds in the account were intended for Kaydette Hawkins. Ms. Hawkins signed a signature card when the account was opened and gave it to her husband to file at the bank. Transactions concerning this account were made in the following manner: Ruye Marshall Hamilton gave money to Kaydette Hawkins and this money was then deposited in the bank by Charles Hawkins; withdrawals were made by Kaydette Hawkins signing withdrawal slips and giving them to Charles Hawkins. ⁴ The first address listed on the ledger card for the account was the Hawkins' address. By February 1, 1974, the address on the ledger card was 647 West South Street, Orlando, Florida, the address of appellant Perkins' law office.

In January, 1979, Charles Hawkins discovered an unauthorized typed withdrawal of $23,464.47 from the Sweetie Marshall account, as well as similar questionable entries in several other accounts. Hawkins advised Perkins of the discrepancies, and the two of them asked an auditing firm to investigate. On May 31, 1979, Hawkins and Perkins notified the FBI of the problem. At that time, they met with Special Agent S.A. Wilkerson who began an investigation to identify the irregular accounts and to uncover any possible false entries and misapplication of funds. ⁵ Wilkerson obtained a grand jury subpoena which called for the production of certain records including those of the Sweetie Marshall account. Wilkerson went to 647 West South Street looking for Sweetie Marshall, but did not find him there. On March 12, 1980, Wilkerson was again in the neighborhood of 647 West South Street when he recognized Perkins on the street and asked him if he knew Sweetie Marshall. Wilkerson testified at trial that Perkins answered that "he knows of a Sweetie Marshall who is a middle-aged male. However, [Perkins Following this encounter with Wilkerson, Perkins called Hawkins and related what had transpired. Perkins testified that Hawkins told him that the Sweetie Marshall account was not controlled by John Wesley Hamilton, but that another son, Ruye Berkley Hamilton of Tampa, had assumed control of the account since the senior Hamilton's death. Neither Perkins nor Hawkins called the FBI with this information although Hawkins had several subsequent contacts with Wilkerson.

                stated] Sweetie Marshall does not reside at that address and he has not for some time."    Perkins added that Sweetie Marshall resided in Polk County and that he would have him get in touch with the FBI.  Perkins then helped Wilkerson locate another bank customer, Dr. Scanks, who lived and worked across the street from Perkins' office.  At trial, Perkins testified that his statement about someone not residing at that address for some time, referred to where Dr. Scanks lived.  He also testified that when he said he knew Sweetie Marshall he was referring to John Wesley Hamilton, Ruye Marshall Hamilton's son, who also was known by the nickname "Sweetie."
                

In June, 1980, during a weekly family gathering, Charles Hawkins, Kaydette Hawkins, and Ruye Berkley Hamilton agreed that Ruye would pose as Sweetie Marshall in order for the money from the account to be reimbursed by the insurance company. A day or two later, on June 11, 1980, Perkins telephoned Ruye Berkley Hamilton and told him to call Wilkerson. Ruye Hamilton telephoned Wilkerson on June 12, 1980, and falsely identified himself as Sweetie Marshall. Perkins claimed at trial that the timing of the two calls was coincidental. He explained that he called Ruye Hamilton because Hawkins had told him that Ruye was in charge of the account and that he called at that particular time because nothing had been resolved and he wanted to get things moving in order to settle the matter with the insurance company. Ruye Hamilton and Perkins both testified that Perkins did not suggest to Hamilton that he represent himself as Sweetie Marshall.

In November of 1981, Assistant United States Attorney Leventhal issued grand jury subpoenas to the custodian of records of the Savings and Loan calling for the production of records, including those concerning the Sweetie Marshall account. Defendant Perkins delivered the records and testified before the grand jury.

On April 29, 1983, Perkins was indicted by the grand jury. Count One of the indictment charged Perkins and Charles Hawkins with participating in a conspiracy to obstruct justice which began on or about September 26, 1979 and continued to on or about February 2, 1983. The indictment listed three overt acts directly involving Perkins: a conversation between Perkins and FBI Special Agent Wilkerson on March 12, 1980; a telephone call placed by Perkins to Ruye Berkley Hamilton in June, 1980; and Perkins' testimony before the grand jury on November 19, 1981. Count Three ⁶ of the indictment charged Perkins with obstruction of justice through his testimony before the grand jury. Perkins had been questioned before the grand jury as to whether there were signature cards on the Sweetie Marshall account, whether his office received certain tax forms for the Sweetie Marshall account, and whether he knew Sweetie Marshall. In regard to this last avenue of inquiry, Perkins testified that he did not know Sweetie Marshall, but that he knew "of the person they say is Sweetie Marshall," that he had done legal work for the "one who's known as Sweetie Marshall," that Sweetie Marshall was a nickname and that "[Sweetie Marshall is] brown skinned, I would say approximately about five-eleven or six feet tall, something like that; and I would say that he weighs approximately 185 pounds, something like that." ⁷ The jury found Perkins guilty of both counts. The court sentenced Perkins to three years probation and fined him $5,000 on Count One, and imposed a three year probated sentence and a fine of $2,500 on Count Three. The two sentences were to run concurrently.

II. VIABILITY OF THE INDICTMENT

Perkins claims that the indictment is fatally defective because it fails to contain all of the elements of the offenses charged. This issue was raised for the first time in a motion to dismiss made on the first day of the trial. Perkins correctly points out that Count One of the indictment fails to identify the judicial proceeding that Perkins allegedly conspired to obstruct and Count Three fails to allege how Perkins' grand jury testimony obstructed justice. Although we find that the indictment was poorly drawn, we hold that neither of these omissions renders the indictment invalid; thus, the indictment is not subject to dismissal.

The validity of an indictment is determined "from reading the indictment as a whole and ... by practical, not technical considerations." United States v. Markham, 537 F.2d 187, 192 (5th Cir.1976), cert. denied, 429 U.S. 1041, 97 S.Ct. 739, 50 L.Ed.2d 752 (1977) (citations omitted). ⁸ "The test is not whether the indictment could have been framed in a more satisfactory manner but whether it conforms to minimal constitutional standards." United States v. Haas, 583 F.2d 216, 219 (5th Our prior cases indicate that an indictment is sufficient if it, first, contains the elements of the offense charged and fairly informs the defendant of the charge against which he must defend, and, second, enables him to plead an acquittal or a conviction in bar of future prosecutions for the same offense.

                Cir.1978), cert. denied, 440 U.S. 981, 99 S.Ct. 1788, 60 L.Ed.2d 240 (1979). 9   These standards are set out in Hamling v. United States, 418 U.S. 87, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974)
                

Id. at 117, 94 S.Ct. at 2907 (citations omitted). See also United States v. Gold, 743 F.2d 800 at 812 (11th Cir.1984).

Count One fails to state that the conspiracy to obstruct justice related to a grand jury investigation. Abundant case law supports the proposition that it is not necessary to allege in the conspiracy count all of the elements of the offense that is the object of the conspiracy with the same technical precision as would be necessary in a substantive count. See, e.g., Wong Tai v. United States, 273 U.S. 77, 81, 47 S.Ct. 300, 301, 71 L.Ed. 545 (1927); United States v. Clark, 649 F.2d 534, 539 (7th Cir.1981); United States v. Cuesta, 597 F.2d 903, 917 (5th Cir.), cert. denied, 444 U.S. 964, 100 S.Ct. 451, 62 L.Ed.2d 377 (1979). App...