U.S. v. Uptain

• Decision Date: 20 May 1976
• Docket Number: No. 75--2487,75--2487
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Terry Ray UPTAIN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1281

531 F.2d 1281

UNITED STATES of America, Plaintiff-Appellee, v. Terry Ray UPTAIN, Defendant-Appellant.

No. 75--2487.

United States Court of Appeals Fifth Circuit.

May 20, 1976.

Thomas A. Larkin, Jacksonville, Fla., for defendant-appellant.

Ira DeMent, U.S. Atty., D. Broward Segrest, Asst. U.S. Atty., Montgomery, Ala., for plaintiff-appellee.

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

Before TUTTLE, THORNBERRY and TJOFLAT, Circuit Judges.

THORNBERRY, Circuit Judge:

Terry Ray Uptain appeals from his conviction for conspiracy to commit bank robbery. See 18 U.S.C. §§ 371, 2113 (1970). He argues that the trial court erred in refusing to grant a continuance and that the court improperly intervened during the trial on behalf of the government. Because we find that the continuance claim is a substantial one, a detailed examination of the rather unusual facts and procedural posture of the case is necessary.

I.

The evidence presented at trial reveals Uptain to be a businessman, a salesman and promoter. The record of his past includes leased Lear jets, $140,000 homes, and personal friendships with famous entertainers. It also includes serious trouble with the law, including a term at the Federal Penitentiary in Atlanta for interstate transportation of stolen motor vehicles. The acquaintances that he made there were to play a major part in bringing him before this court.

After Uptain was released from Atlanta in September, 1974, he began to put together a business to produce and market a 'volcanic mud pack' made from a special mud found around San Vicente, Ecuador. Having tested the mud and found it to be satisfactory for the intended purposes, Uptain created a corporation, Century Laboratories, Inc., of Jacksonville, Florida, to market the mud packs. Because his prison record disqualified him from acting as an officer of the corporation, Uptain recruited an automobile salesman, Paul Kyer, to serve as president of Century, and began to gather and train a corps of salesmen.

Uptain's associates from the Atlanta penitentiary were also in contact with him in late 1974 and early 1975. One of them, Johnny Ray Smith, was engaged in a variety of criminal endeavors during this period. On November 15, 1974, Smith and two others robbed the Peoples Bank of Frisco City, Alabama. ¹ Two months later, on January 16, 1975, Smith and another man effected the escape at gunpoint of Charles Simmons from a Florida prison road gang. A guard and Smith's companion received gunshot wounds during the escape.

The testimony of Simmons, Kyer, and Joy Lynne Yost, an employee associated with Century who became romantically involved with Kyer, revealed that the activities of Uptain and Smith became closely entwined. Uptain's corporation was running short of money, and Smith had the remedy. He invested some of the proceeds of the Frisco City robbery in Century in late November or December, 1974. Smith and Uptain were thereafter seen together not only at the Century offices, but on a business flight to Ecuador as well.

The corporation's money shortage continued, however, and new bank robbery plans began. The participants were to be Smith, Luther Selby (another former Atlanta inmate), Charles Simmons, and others. ² Final plans were made in the last days of January and the first days of February, 1975, with Uptain agreeing to finance the venture. To safeguard his interests, Uptain sent Kyer and Yost on the road with the robbers. The next week was spent in travel and preparation for the robbery of a bank at Jay, Florida. This objective was abandoned when Selby suddenly withdrew from the group. Smith, Simmons, Kyer, and Yost carried on, however, and planned to rob the Citizens Bank of Georgiana, Alabama on February 13. But when they emerged from their motel for that purpose on the assigned date, the FBI was waiting for them. A shootout followed, and Smith was killed.

Kyer, Yost, and Simmons were at that time taken into custody and charged with assaulting federal officers and possession of illegal weapons. Kyer and yost retained Thomas Larkin, a Jacksonville attorney who also had acted as counsel for, and was an investor in, Uptain's corporations. Over two months later, on April 23, 1975, Uptain, along with Kyer, Simmons, and Yost, was indicted by a grand jury in the Middle District of Alabama. Uptain surrendered himself to authorities on April 28 and was released on bond, still not having been served with a copy of the indictment against him.

Four days later, on May 2, Uptain, Kyer, and Yost appeared for arraignment in Montgomery, Alabama. At this time, it was determined that Thomas Larkin would represent Uptain and that Attorneys from another firm would represent Kyer and Yost. Larkin also stated to the court that Frank Martin, an attorney licensed to practice in Alabama, had agreed to assist in the representation of Uptain in the case. The court then had the indictment served upon Uptain, denied a venue motion, and accepted Uptain's plea of not guilty. The court set trial of the case against Kyer, Yost, and Uptain for May 12, ten days from arraignment, and permitted Larkin five days to file pretrial motions. In response to Larkin's protest that he was scheduled to be in court in Jacksonville on the 12th, the court stated only that

you better advise Mr. Uptain that if you are not available, he will have to get other counsel, because his case is going to be tried May 12 at ten o'clock of that day. . . .

After arraignment that day, the district court learned that Uptain's bond, previously set at $25,000 by the court, had been reduced to $5,000 by a magistrate in Jacksonville. The court ordered Larkin to return to court to adjust the matter, and he remained there until five o'clock in the afternoon while unsuccessful efforts were made to contact Uptain. This being a Friday, the court ordered Larkin and Uptain to appear at 8:00 a.m. on Monday, May 5, for a hearing on Uptain's bond. The court on Monday ordered the amount of bond raised to $25,000, and Larkin was occupied during that day and part of Tuesday in arranging the bond.

Larkin nevertheless was able to return to Jacksonville and prepare during the next two days a variety of motions. On Thursday, May 8, he presented on behalf of Uptain a motion for severance, a motion to dismiss the indictment, a motion for discovery and inspection, a motion for disclosure of any promises or inducements to government witnesses, and a motion to interview government witnesses. Because Kyer and Yost had pleaded guilty earlier during the day, the motion for severance was moot, and the court denied the motion to dismiss.

With respect to the other motions, the defendant received at least partially favorable rulings. The court ordered the government to furnish to the defense any statements in its possession which were made by the defendant to any state or federal government officials, and to provide for defense inspection all books, papers, documents, or tangible evidence to be introduced by the government at trial. Over the government's protest, the court held that any inconsistent statements of co-conspirators were 'exculpatory material' which were required to be provided to the defense, along with all other exculpatory information in the government's possession. The court also required assurances by the government that it had no knowledge of any electronic surveillance relating to the case, and that there was no grand jury transcript.

Larkin also made a motion for continuance or, in the alternative, a motion to withdraw as counsel for Uptain. He supplemented the motion with an affidavit by Frank Martin stating that Martin also had a schedule conflict and would be unable to appear in the trial court on May 12. The motion stated that:

The Defendant has now advised his Attorney that he has 56 Witnesses, whom he wishes to subpoena. Some are in Federal custody, several are from Dallas, Texas, and the great majority are from Jacksonville, Florida. Defendant's Attorney feels that it would be impossible for him at this late date to contact and interview said Witnesses and further subpoena them in time for Trial set for May 12, 1975.

The court denied the motion 'on the ground that you haven't subpoenaed and interviewed your witnesses.' The court did give Larkin, at his request, a letter for the judge of the court in which he was originally scheduled to appear on May 12, indicating that Larkin's presence in Montgomery on that date would be necessary.

On May 12, Larkin appeared and announced that he was unprepared to conduct Uptain's defense, but the court ordered him to proceed. Permission was granted for Larkin to be joined by a Florence, Alabama, attorney who was to arrive at noon. The government's case was presented, with crucial evidence against Uptain provided by Kyer, Simmons, and Yost, all of whom directly linked Uptain to the bank robbery conspiracy. Larkin thoroughly cross-examined each and, on the next day, Uptain took the stand to give his own version of the events, Flatly denying any participation in the bank robbery plans. The second day of trial ended with Uptain still on direct examination.

At 9:00 on the next morning, Larkin renewed his motion to withdraw as counsel, stating that there was a conflict as to strategy between attorney and client and that Uptain's check for legal services had not been honored by his Jacksonville bank. The court expressed willingness to allow the Florence, Alabama, lawyer whom Uptain had engaged to take the lead in the case, but was unwilling to wait until the lawyer returned to court from his home in Florence, where he had gone overnight without notice to the court.

The trial continued, with Uptain finishing his direct testimony. After lengthy cross-examination, the defense put on four other witnesses. At the end of the day, the case went to the jury and a guilty verdict subsequently was returned.

II.

Certain...