U.S. v. Scruggs

• Citation: 583 F.2d 238
• Decision Date: 06 November 1978
• Docket Number: No. 77-5537,77-5537
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Robert Samuel SCRUGGS, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 238

583 F.2d 238

UNITED STATES of America, Plaintiff-Appellee, v. Robert Samuel SCRUGGS, Defendant-Appellant.

No. 77-5537.

United States Court of Appeals, Fifth Circuit.

Nov. 6, 1978.

Robert G. Krohn, Corinth, Miss. (Court-appointed), for defendant-appellant.

H. M. Ray, U. S. Atty., Thomas W. Dawson, Alfred E. Moreton, Asst. U. S. Attys., Oxford, Miss., for plaintiff-appellee.

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

Before COLEMAN, GEE and HILL, Circuit Judges:

GEE, Circuit Judge:

Appellant Robert Samuel "Tackhammer" Scruggs was indicted, along with five others, on one count of conspiracy to transport altered money orders in interstate commerce, in violation of 18 U.S.C. § 371. Twelve substantive counts charged him with causing these altered money orders to be transported in interstate commerce and aiding and abetting others to commit this offense, in violation of 18 U.S.C. §§ 2 and 2314. A jury trial resulted in conviction of Scruggs ¹ and two of his co-defendants. In this appeal, appellant seeks a reversal on three grounds. First, he contends that the trial court erred, considering all the circumstances of the case, in giving an Allen charge. Second, he contends that there was no evidence to support his convictions on seven substantive counts. Finally, he contends that reversible error was committed by the admission of certain evidence. We disagree with all three contentions and affirm his convictions.

This case involved the operation of a money order scheme in Northern Mississippi, Tennessee and Alabama in late 1976 and early 1977. The plan consisted of purchasing Travelers Express Company money orders in small amounts, altering these amounts to more substantial sums, and then cashing the altered money orders at various banks and businesses throughout the area. Twenty-five money orders were purchased from Mr. Quik Store No. 23 in Booneville, Mississippi, for amounts ranging from $.50 to $2.00. The same money orders were subsequently altered, cashed and ultimately presented for payment in amounts ranging from $46.00 to $193.00. Because the orders were all payable through The First Northwestern National Bank in Faribault, Minnesota, the bank collection process resulted in the money orders' traveling in interstate commerce. Appellant Scruggs was the apparent leader of this operation, procuring the money orders from "a friend," participating in their alteration with a check-writing machine and receiving and distributing the proceeds from the cashed instruments.

Appellant's primary complaint on appeal concerns the trial court's use of the much-maligned Allen, ² or "dynamite," charge after the jury had begun its deliberations. The jury had received the case at approximately 5:45 p. m. on a stormy Friday evening after a five-day trial. At approximately 10 p. m., the trial judge and counsel met in chambers to discuss the alternative possibilities of a recess until Saturday morning or a supplemental charge and further deliberations. Appellant's lawyer asked the court to allow the jury to continue deliberations for another 30 minutes or an hour so that they might reach a verdict on their own. At 10:28 p. m. the judge sua sponte called the jury back in and delivered what he characterized as a mild Allen charge. ³ At 10:38 p. m. the jury was asked to resume its deliberations. The verdict was returned at 11:26 p. m. Two of the five co-defendants were acquitted; appellant Scruggs and two others were convicted.

Appellant objected to this charge at trial on the basis of its timing but not its content. On appeal, he urges that the trial court committed reversible error in giving this charge. He repeats his trial grounds for objection and adds a general attack on the Allen charge as being inherently coercive.

At the outset we note that the content of the charge at issue cannot seriously be questioned. It is well settled in this circuit that the Allen charge is permissible, ⁴ within the limitations of our prior decisions. United States v. Bailey, 480 F.2d 518 (5th Cir. 1973) (en banc). We have upheld versions of this charge so long as they avoid "the pitfalls of coercive deadlines, threats of marathon deliberations, or pressure for surrender of conscientiously held minority views." United States v. Skinner, 535 F.2d 325, 326 (5th Cir. 1976) Cert. denied, 429 U.S. 1048, 97 S.Ct. 756, 50 L.Ed.2d 762 (1977). We require trial judges, when giving any version of Allen, to make it clear to each juror that he must conscientiously adhere to his or her own honest opinion, and the judge must avoid creating the impression that a juror-caused mistrial is "improper, questionable, or contrary to good conscience." Thaggard v. United States, 354 F.2d 735, 739 (5th Cir. 1965). The charge given below was well within these limitations. ⁵

Appellant's main attack, however, is not on the content of the charge. He contends that the totality of the circumstances conclusively show that the charge was coercive: the charge was given at 10:28 p. m. after only four and one-half hours of deliberation, no request was made by counsel or by the jury for additional instructions, there was no indication of deadlock, and the verdict was returned only 48 minutes after the charge was given.

We previously have recognized that whether an Allen charge will be given, or when it will be given, is within the sound discretion of the trial judge. United States v. Bass, 490 F.2d 846, 855 (5th Cir. 1974); Hale v. United States, 435 F.2d 737, 742 (5th Cir. 1970), Cert. denied, 402 U.S. 976, 91 S.Ct. 1680, 29 L.Ed.2d 142 (1971). We have never required the trial judge to wait for requests from counsel or from the jury before giving the charge. See United States v. Bass, supra; Hale v. United States, supra; Thaggard v. United States, supra. While we think it preferable that juries not be kept late in the evening, we must conclude, as we did in Bailey, that the timing complained of does not allow us to find that the jury was coerced. We have approved an Allen charge that was given after only 65 minutes of deliberation and that was followed by a verdict 25 minutes later. Andrews v. United States, 309 F.2d 127, 129 (5th Cir. 1962). See also United States v. Bailey, 468 F.2d 652, 664-65 (5th Cir. 1972), Aff'd en banc, 480 F.2d 518 (5th Cir. 1973). Despite the dictum in United States v. Williams, 447 F.2d 894 (5th Cir. 1971), and Webb v. United States, 398 F.2d 727 (5th Cir. 1968), relied on by appellant, we find no abuse of discretion here.

Appellant next contends that the trial court committed reversible error by admitting certain evidence that the government failed to produce for discovery as required by Rule 16 of the Federal Rules of Criminal Procedure. ⁶ Counsel was informed of the existence of all 25 of the money orders listed in the indictment, but only twelve were immediately produced. The remaining thirteen were not delivered until the morning of trial. Counsel had approximately two hours before trial to review these documents. Appellant also complains of the admission of photographic enlargements of some of the money orders as exhibits for a government expert's testimony concerning their alteration. These enlargements were not provided to appellant prior to their admission, but he was furnished the expert's lab report that included a finding concerning the alteration of the money orders. A twenty-minute recess was granted, at the request of appellant, so that he could inspect the enlargements prior to cross-examination of the expert.

It cannot be disputed that the money orders at issue are Rule 16 evidence and that the government had a duty to produce them for inspection upon proper request by the appellant. Nor is the government excused from its obligation by the fact that the documents were in the possession of the FBI prior to trial. United States v. James, 495 F.2d 434, 436 (5th Cir.), Cert. denied, 419 U.S. 899, 95 S.Ct. 181, 42 L.Ed.2d 144 (1974); United States v. Deutsch, 475 F.2d 55, 57 (5th Cir. 1973). However, our cases consistently have required a showing of prejudice to the substantial rights of the defendant before reversing because of an error in administering the discovery rules. United States v. James, supra; United States v. Bockius,564 F.2d 1193 (5th Cir. 1973); United States v. Saitta, 443 F.2d 830 (5th Cir.), Cert. denied, 404 U.S. 938, 92 S.Ct. 269, 30 L.Ed.2d 250 (1971). Even if we assume Arguendo that Rule 16 was violated in the instant case, appellant has failed to show sufficient prejudice to require us to reverse. He does not claim prejudice from his having only two hours prior to trial to inspect the thirteen money orders. He does argue on appeal that nonproduction of the photographic enlargements hindered his ability to attack the alleged use of two checkwriting machines on the instruments; he claims that the alteration could not be detected on the original money orders by the naked eye. We find any prejudice to appellant insubstantial. Counsel asked for and received a recess to prepare for cross-examination of the government's expert concerning his finding of alteration. More significantly, counsel did not ask for a longer recess or for a continuance so that he might more effectively meet this evidence. See United States v. James, supra; United States v. Bockius,supra. See also United States v. Bailey, 550 F.2d 1099, 1101 (8th Cir. 1977). Neither can appellant claim surprise; he was told prior to trial that the expert had found that two machines were used on the money orders. Thus, absent the required showing of prejudice, we decline to reverse.

Appellant's sufficiency of the evidence complaint need not detain us. He was convicted of conspiracy and does not attack that conviction on appeal. He contends that there is no evidence to support his convictions on seven counts of aiding and abetting and causing the money orders to be transported in interstate commerce. Howe...