U.S. v. Turner

• Decision Date: 09 May 1989
• Docket Number: No. 87-5735,87-5735
• Citation: 871 F.2d 1574
• Parties: 27 Fed. R. Evid. Serv. 1437 UNITED STATES of America, Plaintiff-Appellee, v. Jack C. TURNER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1574

871 F.2d 1574

27 Fed. R. Evid. Serv. 1437

UNITED STATES of America, Plaintiff-Appellee, v. Jack C. TURNER, Defendant-Appellant.

No. 87-5735.

United States Court of Appeals, Eleventh Circuit.

May 9, 1989.

Joel Kaplan, Miami, Fla., for defendant-appellant.

Dexter Lehtinen, U.S. Atty., David A. Acton, Sonia Escobio O'Donnell, Linda Collins Hertz, Asst. U.S. Attys., Miami, Fla., for plaintiff-appellee.

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

Before TJOFLAT and JOHNSON, Circuit Judges, and BROWN ^*, Senior Circuit Judge.

JOHNSON, Circuit Judge:

This case arises on appeal from appellant's conviction on one count of conspiracy to transport stolen securities in violation of 18 U.S.C.A. Sec. 371 and two counts of transporting stolen securities in interstate commerce in violation of 18 U.S.C.A. Secs. 2 and 2314. We affirm.

I. FACTS

On November 16, 1984, a federal grand jury in the Southern District of Florida issued a three-count indictment against appellant Jack C. Turner. In Count I, the indictment charged Turner with conspiracy to transport seventy stolen bearer bonds from Philadelphia to West Palm Beach and conspiracy to transport a check in the amount of $341,626.25, representing the proceeds from the sale of the bearer bonds, from Florida to London, England, in violation of 18 U.S.C.A. Sec. 371. In Count II, the indictment charged Turner with aiding and abetting the transportation of stolen bearer bonds from Philadelphia to West Palm Beach in violation of 18 U.S.C.A. Secs. 2 and 2314. In Count III, the indictment charged Turner with aiding and abetting the transportation of a check for $341,626.25 from Florida to London, England, in violation of 18 U.S.C.A. Secs. 2 and 2314.

This prosecution arose from the theft of 169 bearer bonds issued by the Idaho Housing Agency and purchased by Manufacturers Hanover Trust of New York. The theft occurred sometime between November 1982, when Manufacturers Hanover Trust purchased the bonds for First Interstate Bank, and December 1982, when First Interstate Bank realized it had never received the bonds. Lewis, who originally possessed the bonds, and Bushey, his partner, decided to liquidate seventy of the bonds. Two intermediaries, Coyne and Boone, approached appellant Turner to see if Turner would help sell the bonds. Turner checked with an independent source to determine if the bonds had been designated as stolen. When he was assured that the relevant reporting institution did not yet identify these bonds as stolen, Turner agreed to help in return for a thirty-five percent share of the proceeds from the sale of the bonds.

On November 16, 1982, Coyne flew to Miami from Philadelphia at Turner's expense where he met with Turner and another man named Jackson. Lewis had also flown to Miami with the bonds, although at his own expense. Lewis gave the bonds to Coyne, who in turn showed the bonds to Turner. After discussing ways to sell the bonds, Turner and Coyne agreed to have Coyne's brother Michael cash in the bonds in return for a fee of fifteen thousand dollars. Turner agreed to send Michael Coyne a plane ticket to fly from Philadelphia to Miami. When Michael Coyne arrived in Miami, he checked into a hotel using Turner's credit card under the alias of Michael Cox.

On November 18, 1982, Turner took Michael and John Coyne to Hanover Stern, a firm that deals exclusively in municipal and tax free bonds. Michael Coyne, still using the name Michael Cox, delivered the bonds to Joe Jean, a broker at Hanover Stern, with the understanding that the bonds would be sent to New York City and that the proceeds would be available in approximately one week. Immediately after the transaction was completed, Turner drove John and Michael Coyne to the airport. On the way, Turner explained that he would receive thirty-five percent of the proceeds, while the Coynes would receive thirty percent.

When Michael Coyne returned to West Palm Beach nine days later to pick up his share of the proceeds, he discovered that the check for the proceeds had gone to London to be cashed. That check was never cashed. The British police arrested the holder of the check, Jackson, when Jackson attempted to cash it through a recognized member of the London criminal underworld, Stafford, whom the British police had been investigating. When Stafford met Jackson in Jackson's hotel room, the police monitored and recorded the conversations. The British police also recorded conversations between Jackson and a female companion, Stanfield. This continued until December 2, 1982, when the British police arrested Jackson, Stafford, Stanfield, and Bushey, who had traveled to London from Switzerland to meet with Jackson.

Turner was convicted on all three counts charged in the indictment. On Count One, the conspiracy count, he was sentenced to eighteen months' incarceration and fined $5,000. On Count Two, transportation of the bonds from Philadelphia to West Palm Beach, he received five years' probation. On Count Three, transportation of the bonds from Florida to London, he received five years' probation to be served concurrently with the probation imposed on Count Two. The probation was to run consecutive to the incarceration.

Turner raises three issues on appeal. He argues that the district court erred in instructing the jury on the elements of 18 U.S.C.A. Sec. 2314; that the government violated the district court's discovery order by failing to provide him prior to trial with transcripts of conversations recorded in London and that the district court erred by not excluding the evidence as a sanction; and that the district court erred by admitting evidence of these conversations because they constituted inadmissible hearsay.

II. DISCUSSION

A. Jury Instruction

Turner challenges the district court's jury instruction on the elements of 18 U.S.C.A. Sec. 2314. Section 2314 makes illegal the transportation "in interstate or foreign commerce any goods, wares, merchandise, securities or money, of the value of $5,000 or more, knowing the same to have been stolen, converted or taken by fraud...." The district court's original jury instruction on knowledge was as follows:

The proof need not show who may have stolen the property involved, only that the Defendant knew it had been stolen or taken by fraud at the time it was transported.

(emphasis added) After the jury began deliberating, it requested clarification of the underlined portion of the charge. The jury asked, "Does the time in Count II end once the 70 bonds arrived in West Palm Beach?" The district court responded, "No, please follow all the Court's instructions as a whole." Turner argues that this response was incorrect on the law, and that the response allowed the jury to convict him of a crime not charged in the indictment.

The district court has broad discretion in formulating a jury charge so long as the charge as a whole accurately reflects the law and the facts. United States v. Silverman, 745 F.2d 1386, 1395 (11th Cir.1984); United States v. Walker, 720 F.2d 1527, 1541 (11th Cir.1983), cert. denied, 465 U.S. 1108, 104 S.Ct. 1614, 80 L.Ed.2d 143 (1984). This Court will not reverse a conviction unless, after examining the entire charge, the Court finds that the issues of law were presented inaccurately, United States v. Gordon, 817 F.2d 1538, 1542 (11th Cir.1987) (per curiam), vacated in part, 836 F.2d 1312 (11th Cir.), cert. dismissed, --- U.S. ----, 109 S.Ct. 28, 101 L.Ed.2d 979 (1988); the charge included crimes not contained in the indictment, United States v. Peel, 837 F.2d 975 (11th Cir.1988); or the charge improperly guided the jury in such a substantial way as to violate due process. United States v. Pruitt, 763 F.2d 1256 (11th Cir.1985), cert. denied, 474 U.S. 1084, 106 S.Ct. 856, 88 L.Ed.2d 896 (1986).

The district court's answer to the jury's question, that the time by which defendant had to know the bonds were stolen in Count II did not end once the bonds arrived in West Palm Beach, accurately reflected the law. Turner violated 18 U.S.C.A. Sec. 2314 and 18 U.S.C.A. Sec. 2 if he aided in the transportation of stolen bonds within a single state if that intra-state transportation was a continuation of interstate transportation. United States v. Block, 755 F.2d 770, 774 (11th Cir.1985) (citing McElroy v. United States, 455 U.S. 642, 654, 102 S.Ct. 1332, 1339, 71 L.Ed.2d 522 (1982) ("the stream of interstate commerce may continue after a state border has been crossed")). The bonds need not have been stolen at the time they crossed state lines, and therefore defendant need not have known that the bonds were stolen when they entered Florida. In fact, the bonds need not even have crossed state lines as long as they were in interstate transportation. United States v. Schardar 50 F.2d 1457, 1461 (11th Cir.), cert. denied, --- U.S. ----, 109 S.Ct. 326, 102 L.Ed.2d 343 (1988). The district court correctly responded to the jury's question because the transportation of the bonds within the State of Florida was a continuation of the transportation of the bonds from Philadelphia to West Palm Beach. See generally Block, 755 F.2d at 775.

Turner argues that the district court's response enabled the jury to convict him of a crime not charged in the indictment. See United States v. Stirone, 361 U.S. 212, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960) (criminal defendant has right to be tried on only charges contained in the indictment). The indictment charged Turner with aiding and abetting the interstate transportation of stolen bonds from Philadelphia to West Palm Beach. The district court correctly responded to the jury's question, and then referred the jury to the charge as a whole. That charge mirrored Count Two of the indictment. Comparing the jury charge with the indictment, we hold that defendant was not convicted of a crime not charged in the indictment.

The jury charge and the court's response as a whole...