U.S. v. Renfro

• Decision Date: 30 June 1980
• Docket Number: No. 79-5457,79-5457
• Citation: 620 F.2d 497
• Parties: 6 Fed. R. Evid. Serv. 383 UNITED STATES of America, Plaintiff-Appellee, v. Will RENFRO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 497

620 F.2d 497

6 Fed. R. Evid. Serv. 383

UNITED STATES of America, Plaintiff-Appellee, v. Will RENFRO, Defendant-Appellant.

No. 79-5457.

United States Court of Appeals, Fifth Circuit.

June 30, 1980.

G. A. Gafford, T. H. Freeland, III, Oxford, Miss., for defendant-appellant.

H. M. Ray, U. S. Atty., John R. Hailman, Asst. U. S. Atty., Oxford, Miss., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of Mississippi.

Before GODBOLD, TJOFLAT and SAM D. JOHNSON, Circuit Judges.

SAM D. JOHNSON, Circuit Judge:

Will Renfro is a former defensive tackle for the Washington Redskins, Pittsburgh Steelers, Philadelphia Eagles, and New York Giants. On May 9, 1979, Renfro was involved in an incident with FBI Agent Wayne Tichenor. Renfro's actions produced an indictment and conviction for assaulting an FBI agent engaged in the performance of his official duties. ¹ We affirm that conviction.

This case stems from an FBI investigation into alleged racketeering and acceptance of kickbacks by the five elected members of the DeSoto County Board of Supervisors. Defendant Renfro was a member of the County Board in May 1979 and Agent Tichenor was actively involved in the investigation into the County Board. On May 9, 1979, Agent Tichenor was in the DeSota County Courthouse interviewing clerks and reviewing county records for evidence against defendant Renfro. Shortly after noon, Tichenor left the chancery clerk's office on the second floor to interview another witness in the Renfro investigation. Within seconds of the agent's exit, employees in the clerk's office heard a loud noise in the hall. When they got to their office door, the employees saw Agent Tichenor lying on the floor with defendant Renfro on top of him.

The Government's position at trial was that Renfro, angered by the FBI investigation, picked Tichenor up and threw him to the floor. Only Agent Tichenor observed the assault. The prosecution did introduce, however, testimony from the courthouse employees who stated that they arrived in the hallway within seconds of the alleged assault. These witnesses testified that they saw Renfro on top of Tichenor holding him on the floor. One witness stated that it looked like Renfro had his hands around Tichenor's neck "choking him." Another witness said it appeared that Renfro was about to hit Tichenor.

The defendant's position at trial was that the agent accidentally slipped and fell on the sawdust covered floor. Renfro testified that had the events described by Agent Tichenor actually occurred, Tichenor would have been severely injured. Renfro contended that Tichenor was frustrated by his inability to obtain a conviction against any of the members of the DeSoto County Board of Supervisors, and was willing to lie about the accident in order to garner some type of conviction against one of the supervisors.

On July 11, 1979, after a two day trial, the jury returned a verdict finding the defendant guilty as charged. The district court entered judgment and ordered that Renfro be incarcerated for 18 months. Defendant then instituted this appeal, raising six procedural and evidentiary points of error.

PROCEDURAL POINTS OF ERROR

A. The Discovery Order

Prior to trial, defendant made a motion pursuant to F.R.Crim.P. 16 and Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1962), requesting that the United States produce and permit defendant to inspect and copy a wide range of materials and evidence. The items requested in this motion included materials that the Government had compiled relating to the assault charge, and materials that the Government had obtained in its investigation into the defendant in his capacity as a member of the Board of Supervisors of DeSoto County.

Defendant presented this discovery motion to a federal magistrate prior to trial. He sought to justify discovery of materials from the investigation into his activities as 28 U.S.C. § 636(b)(1)(A) provides that a judge may request that a magistrate hear pre-trial matters pending before the judge, including discovery motions in criminal trials. Appeals from the magistrate's ruling must be to the district court. United States v. Reeds, 552 F.2d 170 (7th Cir. 1977) (per curiam). In the case at bar, while Renfro did appeal the magistrate's ruling to the district court, he did not do so until after trial. This delay deprived the trial judge of his ability to effectively review the magistrate's holding. In essence then, defendant is now appealing a magistrate's decision directly to this Court. The law is settled that appellate courts are without jurisdiction to hear appeals directly from federal magistrates. Id.; United States v. Cline, 566 F.2d 1220, 1221 (5th Cir. 1978); United States v. Haley, 541 F.2d 678 (8th Cir. 1974). Accordingly, this part of defendant's appeal must be dismissed.

a member of the Board of Supervisors on the ground that such information was needed to show Agent Tichenor's bias. After a full hearing, the magistrate ruled that Renfro could not examine the information from the investigation into his activities as a member of the Board of Supervisors. Defendant never appealed this order to the district court prior to trial. Defendant first raised the possibility that the magistrate erred in a post-trial motion.

B. The Jury Charge

Defendant's final procedural point of error is his contention that the trial judge erroneously defined forcible assault in the jury charge. The charge defines forcible assault as:

any willful threat or attempt to inflict bodily injury upon the person of another when coupled with an apparent present ability to do so, and includes any intentional display of force such as would give the victim reason to fear or expect immediate bodily harm (emphasis added). Defendant contends that this instruction was invalid because it required the jury to view the "fear" and "expectation of immediate bodily harm" from the standpoint of the victim. Renfro argues that the proper charge for forcible assault should ask whether the intimidating actions "would have caused fear of injury to a reasonable man." In Shaffer v. United States, 308 F.2d 654 (5th Cir. 1962) and United States v. Marcello, 423 F.2d 993 (5th Cir.), cert. denied, 398 U.S. 959, 90 S.Ct. 2172, 26 L.Ed.2d 543 (1970), this Circuit, in dicta, approved the instruction given by the district court. Defendant's arguments do not convince us that this twice-approved charge is now incorrect. This point of error is overruled.

EVIDENTIARY POINTS OF ERROR

A. The Cross-Examination of Agent Tichenor

During cross-examination, defense counsel sought to ask Agent Tichenor about his conversations with Lee Harris, Malcolm Harris, and William Harris (the Harris brothers) during the FBI investigation into the alleged racketeering and corruption in DeSoto County. Counsel sought to elicit testimony from Tichenor that he (Tichenor) had offered the Harris brothers immunity from prosecution for accepting payoffs if they would testify against Renfro and other members of the Board of Supervisors. The trial judge refused to allow this cross-examination. Defendant contends that this refusal limited his ability to establish Tichenor's bias and constitutes reversible error.

The trial judge based his decision to limit defendant's cross-examination on Federal Rule of Evidence 403. Rule 403 provides that a judge may exclude relevant evidence "if its probative value is substantially outweighed by the danger of unfair prejudice." A trial judge's determination that potential prejudice outweighs the probative value of evidence will be reversed by this Court only if the exclusion constitutes an abuse of discretion. United States v. Authement, 607 F.2d 1129 (5th Cir. 1979) (per curiam). In the case at bar, the trial court did not abuse its discretion.

The district court could reasonably have concluded that the evidence sought had minimal probative value. First, testimony from Agent Tichenor that he had offered the Harris brothers immunity would have, at best, only a slight tendency to establish bias. Second, to the extent that Tichenor's offer of immunity would indicate some bias, that bias was also established: (a) by testimony from Tichenor on cross-examination that he had been active in the FBI investigation into the alleged racketeering in DeSoto County for three years and (b) by questions posed to Tichenor on cross-examination asking whether he had ever said that the FBI had enough "on Will Renfro to hang him."

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