U.S. v. Wheeler, 85-4806

• Decision Date: 15 October 1986
• Docket Number: No. 85-4806,85-4806
• Citation: 802 F.2d 778
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Eugene WHEELER, Freddie Strauder and George Allred, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 778

802 F.2d 778

UNITED STATES of America, Plaintiff-Appellee, v. Eugene WHEELER, Freddie Strauder and George Allred Defendants-Appellants.

No. 85-4806.

United States Court of Appeals Fifth Circuit.

Oct. 15, 1986.

As Amended on Denial of Rehearing Nov. 20, 1986.

Mel Davis, Court-appointed, Oxford, Miss., for Wheeler.

Claude H. Powell, Court-appointed, Greenville, Miss., for Freddie Strauder.

Ralph Dean, Court-appointed, Oxford, Miss., for George Allred.

Thomas W. Dawson, Asst. U.S. Atty., Robert O. Whitwell, U.S. Atty., Oxford, Miss., for the U.S.

Appeals from the United States District Court for the Northern District of Mississippi.

Before THORNBERRY, JOHNSON, and JERRE S. WILLIAMS, Circuit Judges.

JOHNSON, Circuit Judge:

In this criminal case, three defendants accused of running a fraudulent money order scheme from a Mississippi state penitentiary appeal their convictions under 18 U.S.C. Secs. 371 and 500. The issues concern: (1) the rendition of a partial verdict; (2) the trial judge's mention, during voir dire, of the fact that the defendants were prison inmates; (3) the denial of severance motions; (4) the sufficiency of the evidence as to two defendants; and (5) the length of the sentences. We affirm as to all the issues.

I. FACTS AND PROCEDURAL HISTORY

Allred, Strauder, and Wheeler participated in a fraudulent money order scheme that had been flourishing in the Mississippi State Penitentiary at Parchman, Mississippi, for several years. It involved guards, inmates, and outside accomplices. In this scheme, the prisoners, who were all in the same camp at Parchman, would establish pen pal relationships with lonely older women by placing or answering advertisements in magazines. In a typical first letter, the inmate would explain that he was in prison for committing manslaughter in an automobile accident but expected to be released soon. He would describe himself as white, with green eyes and above average height, in his fifties, and possessing a comfortable income from his own businesses and investments. In fact, defendants Strauder and Wheeler are black, much younger, and were in prison for more serious crimes. Defendant Allred is white and in his twenties; he was serving time for armed robbery resulting in the death of the victim. The letters all made romantic appeals.

Once the pen pal relationship was established, an accomplice outside the prison would buy several low-denomination United States Postal money orders, usually for a dollar. The accomplices smuggled the money orders into the prison on visiting day. There, defendant Allred altered the money orders upward to $500, using a razor, a ballpoint pen, and a typewriter. Allred, Wheeler, and Strauder wrote to their correspondents, enclosing money orders and explaining that they had recently come into some money but had no safe place to keep it in prison. They asked the women to deposit the money in their personal accounts for safekeeping. A few weeks later, the prisoners wrote or called their victims to ask that the money be sent to the outside accomplice for a need that had just arisen--for example, attorney's fees. The accomplice then smuggled the cash into Parchman, where it entered the prison economy to buy off guards and pay for drugs and gambling. Postal inspectors estimated that approximately $3,000,000 in raised money orders have circulated through Parchman in this and similar schemes. When the fraudulent nature of the money orders is discovered, the loss is usually borne by the trusting correspondent, who must repay her bank for the difference between the orders' real and altered value.

Defendant George Allred acted as ringleader in this particular scheme. Strauder and Wheeler allowed him to use their names and wrote letters for him; Allred's girlfriend, Jeffie Skelton, and her grown daughter, Anita Skelton Cosby, served as outside accomplices and received suspended sentences, which they do not appeal. At trial, handwriting and fingerprint experts testified that Allred had written letters to victims Dorothy Johnson and Georgiana Williams; Freddie Strauder had written to Christine Adams, Myrtle Moore, and Geneva Wilson; and Eugene Wheeler had written to Dorothy Starnes. Allred, Strauder, and Wheeler were charged with one count of conspiracy and forty-five counts for individual money orders.

Allred originally sought to plead guilty to all forty-six counts on condition that his plea not implicate the other defendants. Since the conspiracy count by definition involved co-conspirators, the trial judge refused to accept the plea. At trial, however, Allred took the stand against his attorney's advice and claimed all the criminal responsibility. He painted his co-defendants as dupes who had acted under his direction without knowing his criminal purpose. Strauder and Wheeler also denied knowledge of the conspiracy. Wheeler put special emphasis on the fact that he had written only some of the letters to Dorothy Starnes. These, he explained, were written as a favor to Allred, who had injured his hand. However, the prosecution was able to point to other letters in Allred's handwriting dated during the period of this supposed hand injury. The jury found Allred guilty on all forty-six counts, Strauder guilty of conspiracy and twenty-nine other counts, and Wheeler guilty of conspiracy and five other counts. The trial court sentenced Allred to seventy-five years, Strauder to twenty, and Wheeler to ten.

II. PARTIAL VERDICTS

After the jury had deliberated for about four hours and had sent several other notes to the court, the jury sent out the following note:

We can not agree on 23 counts on two of the defendants (21 on 1, 2 on the other) after much discussion. If the vote is not unanimous, is this automatically a "not guilty"?

Rec.Vol. 1 at 110. Upon consulting with all the attorneys and hearing no objection, the judge asked the jury to return to the courtroom and deliver a partial verdict on the charges as to which there was agreement. Then, without objection from any party, the judge decided to declare a mistrial on the remaining counts, rather than sending the jury back to deliberate further.

The Federal Rules of Criminal Procedure and the cases of this Court authorize partial verdicts. Fed.R.Crim.P. 31(b); United States v. DeLaughter, 453 F.2d 908 (5th Cir.), cert. denied, 406 U.S. 932, 92 S.Ct. 1769, 32 L.Ed.2d 135 (1972). Allred, Strauder, and Wheeler contend, however, that the judge's decision not to send the jury back was premature; that, had the jury deliberated further, it might have reconsidered some of its guilty verdicts. The Second Circuit has pointed out that the trial judge treads a fine line in deciding whether to accept a partial verdict: he must neither pressure the jury to reconsider what it had actually decided nor force the jury to turn a tentative decision into a final one. United States v. DiLapi, 651 F.2d 140, 146-47 (2d Cir.1981), cert. denied, 455 U.S. 938, 102 S.Ct. 1427 and 102 S.Ct. 1428, 71 L.Ed.2d 648 (1982). Precisely because the decision is delicate, it is left to the discretion of the trial court. DeLaughter, 453 F.2d at 910. In the instant case, the jury note implied that agreement had been reached on most counts. It also stated that agreement was impossible on the remaining counts. The note inquired only into the consequences of that lack of agreement. The trial court clearly did not abuse its discretion in determining that further deliberation would prove fruitless.

Moreover, no party objected to the partial verdicts at the time. A decision of the trial court, not objected to below, may be reversed only "to prevent a miscarriage of justice." Correa-Negron v. United States, 473 F.2d 684, 685 (5th Cir.), cert. denied, 414 U.S. 870, 94 S.Ct. 89, 38 L.Ed.2d 88 (1973). Defense counsel in the instant case may have felt that the jury would have used the extra time to find their clients guilty on additional counts. They must abide by that strategic decision here.

III. VOIR DIRE

During voir dire examination, the trial court asked the jury whether they would be able to give an impartial verdict despite the fact that several defendants had been prison inmates. Defense counsel moved for a mistrial. The judge denied the motion, but instructed the jury that it should not consider any previous crimes committed by the defendants. Allred, Strauder, and Wheeler argue that these references to their prisoner status amount to forcing them to appear before the jury shackled and dressed in prison clothes, requiring reversal. Tyars v. Finner, 709 F.2d 1274, 1284 (9th Cir.1983).

The fact that Allred, Strauder, and Wheeler were prisoners at Parchman was mentioned in the indictment and was bound to come up repeatedly throughout the trial. Indeed, the defense stipulated to that fact. The jury was also bound to infer that these three defendants went to prison after conviction for a crime. The judge's mention of the defendants' prisoner status could not emphasize it any more to the jury than the trial itself would emphasize it. Moreover, defense counsel accepted the judge's instructions and failed to renew their objections. Hence, even if their argument had merit, they have not preserved it for appeal.

IV. SEVERANCE

At several points before and during trial, Strauder, Wheeler, and the two nonappealing defendants moved for severances. Because it is not clear whether these defendants withdrew or reurged their motions and whether Strauder and Wheeler joined in the other defendants' motions, we will assume that severance was adequately presented to the trial court and discuss the issue on the merits.

A trial court's decision to deny a motion for severance will be reversed only for abuse of discretion. United States v. Stotts, 792 F.2d 1318, 1321 (5th Cir.1986); United States v. Swanson, 572 F.2d 523, 528 (5th Cir.), cert. denied, 439 U.S. 849, 99 S.Ct. 152, 58 L.Ed.2d 152 (1978). As a general rule, those indicted...