U.S. v. Tilton, 79-5108

• Decision Date: 23 January 1980
• Docket Number: No. 79-5108,79-5108
• Citation: 610 F.2d 302
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. John O. TILTON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 302

610 F.2d 302

UNITED STATES of America, Plaintiff-Appellee, v. John O. TILTON, Defendant-Appellant.

No. 79-5108.

United States Court of Appeals Fifth Circuit.

Jan. 23, 1980.

Rehearing Denied Feb. 22, 1980.

John Paul Howard, Jacksonville, Fla., for defendant-appellant.

Katherine Winfree, Atty., Dept. of Justice, T. George Gilinsky, Wade Livingston, Atty., Washington, D. C., for plaintiff-appellee.

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

Before THORNBERRY, CHARLES CLARK and KRAVITCH, Circuit Judges.

THORNBERRY, Circuit Judge:

Appellant John O. Tilton was convicted in the United States District Court for the Middle District of Florida on four counts of mail fraud in violation of 18 U.S.C. § 1341, one count of interstate travel to facilitate an unlawful activity in violation of 18 U.S.C. § 1952, and one count of conspiracy to commit mail fraud and to violate the Travel Act in violation of 18 U.S.C. § 371. Appellant was sentenced to one year's imprisonment for violation of the Travel Act, 18 U.S.C. § 1952, and was given four years probation on the mail fraud and conspiracy counts. Tilton was also fined $2,000 for his part in the conspiracy.

The government's evidence at trial showed that appellant served as a maintenance manager for Sea-Land Incorporated (Sea-Land) and he was responsible for company projects in the southeastern portion of the United States (Texas to South Carolina). Sea-Land is in the business of manufacturing containers for shipping freight as well as wheeled chassis that attach to the freight containers so they may be moved over land. In January 1976, Sea-Land initiated what was known as the "Saudi Arabian program" in which a quantity of 508 chassis were to be reconditioned and sent to Saudi Arabia. This called for modification of a group of chassis for use in sand with the installation of new tires as well as a complete overhaul with new parts as needed. It was decided that seventy of the chassis that were to be remodeled were to come from Jacksonville, Florida, and seventy from Charleston, South Carolina. Tilton was responsible for locating outside repair shops in the two areas which were capable of doing the necessary reconditioning work because Sea-Land could not complete the job before the project deadline.

In Charleston, South Carolina, Tilton selected Streaker Marine, Incorporated (Streaker) to do the chassis reconditioning work. Streaker is owned in part by Robert Brenner and Jim Fiore. In March 1976, Fiore called Brenner and told him that Tilton would have to be paid a "commission" of $20 for each of the 70 chassis that Streaker would be repairing for a total of $1,400. Fiore also told Brenner to "bury" the payment in the books as either travel and entertainment expenses, parts, or supplies. In July 1976, Fiore called Brenner again and told him that he would have to produce the $1,400 soon. On August 25, 1976, after receiving another call from Fiore, Brenner wrote a check for $1,400 payable to cash. Brenner cashed the check, put the money in a plain white envelope, and gave the money to Tilton in the lounge of a Charleston motel stating, "This is for you, John." Tilton put the envelope in his pocket and left without any conversation about the purpose for the payment. Brenner called Fiore several days later and told him the payment had been made to Tilton.

In Jacksonville, Florida, Tilton selected United Trailer Service, Incorporated (UTS) to do the chassis reconditioning work. UTS is owned in part by Joseph Cotrone and Robert Gillespie. In February 1976, Cotrone called Gillespie and informed him that UTS would be doing some work for Sea-Land and that they would have to "plug in $20 a chassis" for Tilton and "add $20 to the cost of each chassis." Cotrone also told Gillespie that Fiore was his partner and that Fiore was also refurbishing chassis and paying $20 per chassis to Tilton. After UTS reconditioned each chassis, an invoice was filled out showing the labor and materials used. These invoices were then mailed to Sea-Land for payment. But the invoices did not accurately reflect the work done on the chassis because many of them were inflated by adding an hour's labor that had not been performed or by incorrectly showing that a part had been replaced. While each invoice was not overstated by exactly $20, all of the invoices taken together were inflated to produce the $20 bribe per chassis for Tilton. The parts that were erroneously listed as replaced were almost impossible to inspect or they were hidden by paint. While each invoice was not false, testimony revealed that at least one invoice in every group mailed on specified dates was false. On May 6, 1976, Gillespie wrote a check payable to cash for $500, cashed the check, and paid Tilton the money claiming that it was "per the agreement between he and Joe (Cotrone)." The payments were hidden in the business records as expense account payments.

Appellant initially argues that the trial court abused its discretion when it denied appellant's request for a 60-day continuance of the trial date. The determination of when to allow a continuance is committed to the sound discretion of the trial judge. His ruling will not be disturbed on appeal unless there has been an abuse of discretion. Gandy v. Alabama, 569 F.2d 1318 (5 Cir. 1978); United States v. Smith, 591 F.2d 1105 (5 Cir. 1979); United States v. Harbin, 601 F.2d 773 (5 Cir. 1979). The denial of a continuance will be reviewed in light of the reasons presented to the trial court and considered by the trial judge at the time the request is denied. United States v. Henderson, 588 F.2d 157 (5 Cir.), Cert. denied, 440 U.S. 975, 99 S.Ct. 1544, 59 L.Ed.2d 794 (1979); United States v. Uptain, 531 F.2d 1281 (5 Cir. 1976). Based on an examination of the circumstances involved in this case, there does not appear to be an abuse of discretion. While the trial judge did not grant appellant a 60-day continuance, he offered Tilton a one-week continuance and this offer was rejected. The reason offered by appellant's attorney for the continuance was that he needed time to examine copies of inspection reports that employees of Sea-Land made regarding the repair work accomplished by UTS. While worksheets existed for each of the repaired chassis, the columns on the worksheets where a record of any inspection could be made were left blank. Therefore, appellant sought a continuance to examine non-existent records. The other reason that appellant offered for granting a continuance was to locate UTS records which demonstrated the work actually done by UTS. But this reason was never presented to the trial court after testimony as to the existence of these records was elicited. Therefore, it may not be considered by this court in determining whether the trial judge abused his discretion. United States v. Uptain, supra. An examination of the above described facts clearly indicates that there was no abuse of discretion.

Appellant also contends that the trial court improperly permitted the jury to consider out-of-court statements made by his alleged co-conspirators. While this court adopted new rules governing admission of co-conspirator statements in United States v. James, 590 F.2d 575 (5 Cir.) (en banc), Cert. denied, 442 U.S. 917, 99 S.Ct. 2836, 61 L.Ed.2d 283 (1979), our decision in United States v. Robinson, 591 F.2d 1202 (5 Cir. 1979), stated that "it is clear that James only applies prospectively." Id. at 1204. Because the trial of this case ended on October 30, 1978, this issue is governed by this court's earlier decision in United States v. Apollo, 476 F.2d 156 (5 Cir. 1973). Apollo requires the trial judge to give a cautionary instruction to the jury on the limited use of evidence of co-conspirators' statements. This court in Apollo noted that the Supreme Court's decision in Lutwak v. United States, 344 U.S. 604, 73 S.Ct. 481, 97 L.Ed. 593 (1953), established the following requirement:

. . . a minimum obligation on the trial judge in a conspiracy case in which extrajudicial statements of alleged co-conspirators are proffered to give a cautionary instruction on the limited uses of hearsay testimony, explaining clearly to the jury the requirement that the conspiracy itself and each defendant's participation in it must be established by independent non-hearsay evidence which must be given either prior to the introduction of any evidence or immediately upon the first instance of such hearsay testimony. See Menendez v. United States, 393 F.2d 312 (5 Cir. 1968), cert. denied, 393 U.S. 1029, 89 S.Ct. 639, 21 L.Ed.2d 572 (1969).

Testimony concerning the declarations of co-conspirators May be admitted before the existence of the conspiracy is established by independent evidence. But the unmistakable hazard of allowing this procedure highlights the need for the court to condition the minds of the jurors so that they will not fail to remember that none of this hearsay will bootstrap the necessary establishment of the conspiracy itself by firsthand proof.

Therefore, we must first determine whether the trial judge gave a proper cautionary instruction to the jury at the time the hearsay testimony was offered so as to defuse the dangerous nature of the co-conspirators' hearsay statements.

Appellant's objection is addressed to the testimony of Brenner and Gillespie with respect to the content of telephone conversations they had with Fiore and Cotrone relating to the payments made to Tilton. The record reveals that the trial judge properly instructed the jury concerning the co-conspirators' statements in accordance with the requirements of Apollo as follows:

You should remember that any admission or incriminating statement made or act done outside of court by one person may not be considered as evidence against any defendant who was not present and did not hear the statement made or see the act done. However, if you find beyond a reasonable doubt...