U.S. v. Smith, 75-3333

• Decision Date: 08 April 1977
• Docket Number: No. 75-3333,75-3333
• Parties: , 1 Fed. R. Evid. Serv. 1359 UNITED STATES of America, Plaintiff-Appellee, v. Fred LaCoy SMITH and Woodrow Wilson Wallace, Jr., Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 277

550 F.2d 277

38 A.L.R.Fed. 132, 1 Fed. R. Evid. Serv. 1359

UNITED STATES of America, Plaintiff-Appellee, v. Fred LaCoy SMITH and Woodrow Wilson Wallace, Jr. Defendants-Appellants.

No. 75-3333.

United States Court of Appeals Fifth Circuit.

April 8, 1977.

Ralph Kennamer, Mobile, Ala., for Smith.

Donald W. Briskman, Mobile, Ala. (Court-appointed), for Wallace.

Charles S. White-Spunner, Jr., U. S. Atty., Elmond Thurmond, Rolison, Jr., Asst. U. S. Atty., Mobile, Ala., for plaintiff-appellee.

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

Before MORGAN and FAY, Circuit Judges, and HUNTER, ^* District Judge.

FAY, Circuit Judge:

In May of 1975 the defendants, Fred LaCoy Smith, Woodrow Wilson Wallace, and Robert Moore, were charged in a thirty-seven count indictment with misapplication of federal funds and conspiracy. (18 U.S.C. §§ 371, 665(a), 1001) All three pleaded not guilty and the trial of the case commenced on July 14, 1975. Approximately two weeks into the case a severance was granted as to defendant Moore and the trial of Smith and Wallace continued. A verdict of guilty was returned as to the defendant Smith on thirteen counts and as to defendant Wallace on eighteen counts. Smith was sentenced to a term of five years and was fined five thousand dollars ($5,000). Wallace was sentenced to a custody term of two years. Smith and Wallace have appealed. We affirm.

This case arises under the Comprehensive Employment and Training Act of 1973 (CETA). Under this Act the United States Department of Labor granted funds to various state and local organizations to establish training programs designed to improve employment conditions in economically depressed areas.

Defendant Smith was a Mobile County Commissioner. Defendant Moore, whose case was severed during the trial, was a director of the federally-funded CETA program for the employment of the poor. Defendant Wallace, a nephew of defendant Smith and a retired Air Force major, was a department head under the program. The appellants have made numerous assignments of error.

I

Both appellants submit that the trial court committed reversible error when it excluded from consideration all prospective jurors who had read or heard about the case through the news media or otherwise without first determining whether those persons were biased or otherwise not qualified to serve on the jury.

The appellants argue that these criteria for excluding jurors denied the defendants their Sixth Amendment right to a trial by jury, in that only those jurors who could not read or were not interested in community affairs were allowed to sit. This Court is unable to agree with this contention. We are cited to a number of cases for the proposition that mere exposure to pretrial publicity is not alone sufficient to warrant exclusion of a prospective juror. United States v. Hoffa, 367 F.2d 698 (7th Cir., 1966); Finnegan v. United States, 204 F.2d 105 (8th Cir., 1953). These cases can be distinguished from the instant case in that in those cases the appellant-defendant was challenging the inclusion of jurors who had been so exposed. In the present case the appellants argue that they have been prejudiced by the exclusion of such persons. Both appellants cite Calley v. Callaway, 519 F.2d 184 (5th Cir. 1975) as instructive. The court in Calley stated:

"The district court's conclusion that mere exposure to publicity necessarily prevented any person from serving as a juror has an extremely unsettling sidelight. If, in this age of instant, mass communication, we were to automatically disqualify persons who have heard about an alleged crime from serving as a juror, the inevitable result would be that truly heinous or notorious acts will go unpunished." Id. at 210.

While we do not quarrel with the analysis in Calley, we do not think it is decisive of the instant case. Whereas the Calley case generated extensive nationwide publicity, this case was of primary concern to citizens of Mobile County. In a case of "national concern" such as Calley, there is indeed a danger in excluding from the jury all persons who have been exposed to pretrial publicity. In the instant case this danger is greatly reduced. This trial was conducted in the Southern District of Alabama, an area which encompasses thirteen (13) counties including Mobile County. Jurors are randomly selected from the thirteen counties in the district. This Court cannot assume that all informed citizens of these thirteen counties kept abreast of the CETA scandal in Mobile County. In this regard, it should be noted that it was pointed out at oral argument that only four (4) of the original twelve (12) jurors were from Mobile County. This Court feels constrained to hold that the trial court did not abuse its discretion in barring from consideration those prospective jurors who had heard about the case, and, consequently, the defendants were not deprived their Sixth Amendment right to trial by jury.

II

Appellant Wallace urges that the trial court committed reversible error in admitting into evidence the following exchange:

"THE COURT: Do you have any appreciation of whether or not Mr. Wallace knew and understood the requirements (of CETA)?

"A. (Mrs. Walker): As I understood, he understood them." (R. at 866).

Wallace argues that it is contrary to the rules of evidence to permit a witness to testify as to the state of mind of the accused and that the act of the court in soliciting this testimony was extremely prejudicial.

According to Rule 701 of the Federal Rules of Evidence, the opinions of lay witnesses may be introduced into evidence when those opinions are based on the firsthand knowledge or observation of the witness and are helpful in understanding his testimony or in the determination of an issue of fact. The testimony in question was given by a Mrs. Letha Walker. At the time of the trial Mrs. Walker was Youth Coordinator of CETA and had known Wallace since his employment by CETA. Mrs. Walker had ample opportunity to observe Wallace in his position of Assistant Director and her testimony complied with the first requirement of Rule 701, that the opinion be based on personal observations. The requirement that the testimony facilitate an understanding of a factual issue is also satisfied since Wallace's knowledge of the CETA rules and regulations was a critical issue to be determined at trial.

Wallace further contends that the admission of Walker's opinion on this matter was improper since his knowledge related to an ultimate issue of fact. This argument has no merit under Rule 704 of the Federal Rules of Evidence which reads:

Testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.

The testimony of Mrs. Walker was therefore admissible.

III

Both appellants argue that prejudicial hearsay evidence was improperly admitted into evidence over their objections. Four instances are cited.

The court permitted Mrs. Letha Walker to testify as to a conversation she had with Willie Lee, a CETA employee. Mrs. Walker stated that Willie Lee had told her that defendant Moore instructed him to alter CETA applications in order to comply with the guidelines.

The next allegation involves the testimony of Deborah Jeanette Cook. Miss Cook who had been employed under the CETA program testified that Michele Venable told her that she had been altering and falsifying CETA applications.

As to these two allegations of prejudicial hearsay, the government contends that, although these statements were made out of the presence of the defendant, both Michele Venable and Willie Lee were unindicted coconspirators and that consequently the testimony of Cook and Walker was admissible under the coconspirator exception to the hearsay rule. F.R.E. 801(d)(2)(E). Under the Federal Rules of Evidence, a statement made by a coconspirator during the existence of the conspiracy and in its furtherance is admissible against all parties to the conspiracy. United States v. James, 510 F.2d 546, 549 (5th Cir. 1975); United States v. Apollo, 476 F.2d 156, 159 (5th Cir. 1973); see also Notes of Advisory Committee on Proposed Rules, Fed.Rules Evid.Rule 801, 28 U.S.C.A. at 531. Thus this Court must determine: (1) whether Venable and Lee were coconspirators; (2) if the statements were made during the existence of the conspiracy; and (3) whether the statements were made in furtherance of the conspiracy.

In United States v. Mendez, 496 F.2d 128, 130 (5th Cir. 1974), this Court held that in order to label one a coconspirator for the purposes of this exception to the hearsay evidence rule there must be a showing of active participation by the declarant in the alleged conspiracy. At trial both Venable and Lee admitted on direct examination that they had intentionally altered and falsified CETA applications. This is a sufficient showing of "active participation" to satisfy the first requirement of the coconspirator exception.

Clearly both conversations took place during the existence of the conspiracy. A more difficult question, however, is posed as to whether the statements were made "in furtherance of the conspiracy." Regarding this criteria, this Court has stated: "Although this phrase has a talismanic ring to it, we must not apply the standard too strictly, lest we defeat the purpose of the exception." United States v. James, 510 F.2d 546, 549 (5th Cir. 1975). Applying this liberal standard to the instant case, we must hold that this criteria is satisfied. Miss Venable's conversation with Miss Cook apparently took place shortly after Miss Cook was hired by CETA. The conversation's purpose was to inform Miss Cook of how the CETA office was managed and was consequently in furtherance of the conspiracy. When Mrs. Walker asked Willie Lee what he was doing with the CETA applications, he told her that he was writing them over as Mr....