U.S. v. Walton

• Decision Date: 06 June 1977
• Docket Number: Nos. 76-1185,s. 76-1185
• Citation: 552 F.2d 1354
• Parties: UNITED STATES of America, Appellee, v. Larry WALTON et al., Appellants. to 76-1187.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1354

552 F.2d 1354

UNITED STATES of America, Appellee, v. Larry WALTON et al., Appellants.

Nos. 76-1185 to 76-1187.

United States Court of Appeals, Tenth Circuit.

Submitted Jan. 25, 1977.

Decided March 14, 1977.

Certiorari Denied June 6, 1977. See 97 S.Ct. 2685.

Richard L. Hathaway, Asst. U. S. Atty., Kansas City, Kan. (E. Edward Johnson, U. S. Atty., Topeka, Kan., on the brief), for appellee.

Leonard D. Munker, Federal Public Defender, Kansas City, Kan. (John O. Martin, Topeka, Kan., on the brief), for appellants.

Before LEWIS, Chief Judge, and PICKETT and BARRETT, Circuit Judges.

BARRETT, Circuit Judge.

Larry Walton (Larry), his sister, Linda Kaye Walton (Linda), and Clarence Fulton Davis (Davis), the father of Linda's child, appeal from jury verdicts of guilty and subsequent sentences following convictions from charges contained in a five (5) Count superseding Information. They were charged with having aided and abetted (thus subjecting themselves to punishment as principals) in the interstate transportation of falsely made, forged, altered, or counterfeited securities, with unlawful, knowing, and fraudulent intent, all in violation of 18 U.S.C. §§ 2314 and 2.

The jury verdicts of guilty were returned as follows: Larry as to Counts 1, 2, 3, 4, and 5; Linda as to Counts 1 and 4; and Davis as to Counts 1, 2, and 4.

On appeal, we must review the evidence in the light most favorable to the Government, together with all reasonable inferences to be drawn therefrom, from which the jury could find the defendants guilty beyond a reasonable doubt. United States v. Crocker, 510 F.2d 1129 (10th Cir. 1975); United States v. Yates, 470 F.2d 968 (10th Cir. 1972).

Five checks of Accredited Investments Diversified, Inc., of Kansas City, Missouri, admitted in evidence, were stolen from the company offices on or about February 11, 1975. One Linda R. Grasberger, secretary to Diversified's president, identified Larry as the person she observed departing from the company office in Kansas City, Missouri, about noon one week prior to the date the five checks were returned to the company office with notice that the account upon which the stolen checks had been written was overdrawn. Grasberger had confronted Larry as he was departing because she suspected him of some wrongdoing during a visit he had made to the offices several days before. Grasberger testified that after she saw Larry leaving an office, she inquired whether she could help him. He responded that he was looking for employment; and he "fumbled around" somewhat. She informed him there was no employment available there. Larry left "pretty fast." She called security officers but they were unable to locate Larry. Grasberger identified Larry in the courtroom as the same person she had observed in the company office that day. The five Diversified checks were forged and negotiated at stores in Kansas City, Missouri. Each was written on Diversified's account with Southgate State Bank and Trust Company of Prairie Village, Kansas.

FBI Agent McGinty testified that Larry admitted to him on two separate occasions, after having been fully informed of his rights, that he had stolen some seven or eight Diversified checks from its Kansas City, Missouri, office during a lunch hour. McGinty further testified that Davis denied any knowledge of the checks and declared that it was absurd to believe that any identification of his finger prints would be traced to any of the stolen checks.

Nehemiah Smith, Jr. testified that Larry arranged to make available to him Diversified checks when Smith knew that Larry had stolen them. Smith cashed the forged checks and received part of the proceeds. One check was received by Smith from Davis in the presence of Linda, and she filled out the face of that check in his presence and that of Davis. Smith cashed this check. Three Diversified checks were received by Smith from Davis at Davis' apartment in the presence of Linda who filled out the face of those checks. Davis applied the check protector to complete the amounts of each check. Smith received some additional Accredited checks from Larry.

Expert testimony established: fingerprints of Linda were identified on two of the checks; prints of Davis were identified on one of the checks; and the handwriting on the face of one of the checks and the endorsement on another were identified as that of Larry. Each of the checks moved in interstate commerce, i. e., from Missouri to the Prairie Village Bank in Kansas.

The alleged trial court errors presented for our review on appeal are: (1) denial of Davis' and Linda's motions for severance, (2) refusal to grant a mistrial (absent objection or motion) by reason of certain prejudicial statements made during closing arguments by counsel for Linda, (3) unduly limiting the scope of cross-examination of a key prosecution witness, (4) in admitting evidence against the appellants of other alleged crimes which were not charged in the Information, (5) in refusing to grant Larry's motion for mistrial when an FBI agent testified that he was interviewed while Larry was "in jail on another matter," (6) in refusing to allow counsel for Larry to call as a rebuttal witness an FBI agent, and (7) in failing to grant appellants' motions for judgment of acquittal, both at the conclusion of the government's evidence and at the conclusion of all of the evidence presented at trial.

I.

Davis and Linda allege that the trial court erred in denying their motions for severance.

Davis' pre-trial motion was grounded on the assertion that his co-defendants, Linda and Larry, had "given statements to law enforcement officers, and if said statements are introduced at a joint trial, the defendant will be unduly prejudiced." This concern did not materialize in that none of the statements implicated a co-defendant. The pre-trial motion filed by Linda was based upon grounds basically identical to those advanced by Davis. Again, her concerns did not materialize at trial. Larry did not file such a motion.

The record does not reflect that the trial judge was in anywise alerted or advised that any of the three defendants intended to testify in his or her behalf. Nothing presented in the pre-trial motions could have led the court to any specific, articulable prejudice which might likely be incurred by the three defendants by reason of their trial joinder. Fed.Rules Cr.Proc. rule 14, 18 U.S.C.A.

The alleged trial court errors on the severance issue involved several distinct contentions. Davis and Linda concede that even though no inculpatory statements were introduced at trial presenting a Bruton problem (Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968)) that nonetheless sufficient prejudice resulted to them from their joinder for trial with Larry creating an abuse of discretion when evidence was admitted showing that Larry: (a) was in jail on an unrelated charge during an interview with an FBI agent, and (b) had committed an uncharged crime to which Davis and Linda were not shown to be parties to.

Further contentions of prejudice resulting from joint trial are advanced as follows: (c) Davis and Larry were prejudiced by comments made during closing arguments by Linda's counsel relative to their failure to testify (Linda was the sole defendant to testify in her defense), and (d) Linda was prejudiced by admission of evidence that Davis had stolen the "John H. Johnson" identification which he had in turn given to Nehemiah Smith when she was not shown to have participated in the transaction.

In United States v. Davis, 436 F.2d 679 (10th Cir. 1971), two defendants were jointly indicted, tried and convicted of the same charges involved in the instant case, i. e interstate transportation of forged and false securities in violation of 18 U.S.C. § 2314. One moved for severance prior to trial. We held that a motion for severance is directed to the sound discretion of the trial court, citing to United States v. Rodgers, 419 F.2d 1315 (10th Cir. 1969). We there held that refusal to grant such a motion is error only when that discretion has been abused. In Davis, as in Rodgers, we noted that Fed.Rules Cr.Proc. 8(b), 18 U.S.C.A. permits the joinder of two or more defendants in the same indictment "if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses . . ." We stated that reversible error would result if statements made by a defendant at the time of his arrest or thereafter which incriminated a co-defendant were introduced. The post-arrest statements made to FBI agents in the instant case by Davis and Larry did not incriminate any co-defendant. Accordingly, the trial court did not abuse its discretion by not severing on this ground.

(a) and (b)

The claimed prejudice to Davis and Linda by reason of admission of evidence that Larry had committed an uncharged crime to which they were not parties to, together with the alleged prejudicial effect upon them by reason of the FBI agent's statement that he had interviewed Larry while "He was in jail on another matter," do not constitute plain error.

One must make a strong showing of prejudice in order to obtain the severance relief permissible under Rule 14. No such showing has been made in respect to the above claims. Reference to Larry's incarceration occurred during FBI Agent McGinty's testimony about an interview. McGinty had been asked "Would you explain to us what that conversation was, please?" to which he responded " He was in jail on another matter . . .". (R., Vol. I, p. 198.) Motion for mistrial was made and overruled. The court gave an immediate cautionary instruction that the jurors must disregard any evidence that Larry was in jail on another offense at the time of the interview and that such was completely irrelevant to any issue in the case. During the same examination, Agent McGinty related that during...