U.S. v. Whitaker

• Decision Date: 27 June 1980
• Docket Number: No. 79-5464,79-5464
• Parties: 6 Fed. R. Evid. Serv. 274 UNITED STATES of America, Plaintiff-Appellee, v. Hoyle Wayne WHITAKER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1142

619 F.2d 1142

6 Fed. R. Evid. Serv. 274

UNITED STATES of America, Plaintiff-Appellee, v. Hoyle Wayne WHITAKER, Defendant-Appellant.

No. 79-5464.

United States Court of Appeals Fifth Circuit.

June 27, 1980.

Barry L. Zisser, Robert E. Cosby, Jacksonville, Fla., for defendant-appellant.

Curtis Fallgatter, Asst. U. S. Atty., Jacksonville, Fla., for plaintiff-appellee.

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

Before KRAVITCH, HATCHETT and TATE, Circuit Judges.

TATE, Circuit Judge:

The defendant appeals from his perjury conviction on various grounds, including sufficiency of the indictment, sufficiency of the evidence, failure to grant a continuance, improper jury instructions, and several evidentiary rulings. Since the defendant correctly contends that the trial judge committed reversible error by admitting certain irrelevant and prejudicial evidence, we reverse.

Context Facts

On September 14, 1978, the defendant, Hoyle Wayne Whitaker, was called before the grand jury pursuant to an investigation into, inter alia, alleged kickbacks and unlawful payments to officials of the Millwright & Machinery Erectors Union, Local 2411. As a result of his testimony before the grand jury, the defendant was indicted on five counts of perjury. Although found not guilty on four counts, the defendant was convicted on Count 1 and received a sentence of 18 months imprisonment together with a $3,000 fine.

The defendant was a member of the millwright union, and at trial the government attempted to prove that he had lied to the grand jury concerning his involvement in a scheme whereby certain persons were required to make unlawful payments to the union's business representative, A. J. Spaulding. These persons, permit workers, were non-members of the union who were given permits to work as millwrights when the available work exceeded the capabilities of the members of the union. Many of these permit workers wanted to become members of the union by obtaining their union "book." Several permit workers were allegedly required to pay Spaulding $25 per week to insure that they would be the last permit workers laid off, the first permit workers sent off to a new job, and the first persons to receive a union book.

The government contended at trial that the defendant had acted as Spaulding's agent in soliciting ¹ and collecting ² these payments and that the defendant had been paid for his efforts. ³ Further, the government attempted to prove that the defendant had tried to prevent persons from testifying about the kickback scheme to the grand jury. ⁴ All of these contentions related to Counts 2, 3, 4, and 5 of the indictment, and the defendant was acquitted by the jury on all four of these counts.

Despite the jury's apparent finding that there was insufficient evidence of the defendant's actual complicity in the scheme, as illustrated by the not guilty verdicts on Counts 2, 3, 4, and 5, the defendant was found to have committed perjury by denying that he had "ever state(d) to anyone that (he) either knew of or had heard of persons making payments or payoffs . . . to Andrew Spaulding," or "being requested to," "(e)ither to obtain work on a work permit or to obtain a book." The questions and answers on which Count 1 was based were as follows:

Q Let me repeat that last question. Did you ever state to anyone that you either knew of or had heard of persons making payments or payoffs of any kind to Andrew Spaulding?

A No, sir.

Q Did you ever state to anyone that you either knew of or had heard of persons making payments or payoffs or being requested to to Andrew Spaulding?

A No, sir.

Q Either to obtain work on a work permit or to obtain a book?

A No, sir.

One of the government's main witnesses, Eugene Richardson, testified that Whitaker had solicited and collected payoffs from him while he and the defendant had been working at the Bulk Mail Center. Richardson testified that the defendant had explained that those who paid would be the last laid off, the first to get new jobs, and the first to get their union books. Richardson also testified that the defendant had told him that he would get into trouble if he told everything to the grand jury, and he testified that the defendant had stated that he had received $100 for his part in the scheme. ⁵ Richardson was vigorously cross-examined and confronted with several inconsistent statements, and his reputation for truth and veracity was put in question by several witnesses. It is apparent from the acquittals on Counts 2 (solicitation), 3 (receipt of $100), 4 (collection), and 5 (encouragement not to talk to grand jury) that much of Richardson's testimony was not believed by the jury.

The other main witness for the government was Eugene Knighton, also a millwright. Although called as a government witness, Knighton was very reluctant to testify. Record on Appeal, Volume III at 377-79. On the stand, Knighton testified that he could not remember for certain what, if anything, the defendant had told him about the kickback scheme. However, Knighton's grand jury testimony, portions of which were read into evidence as substantive testimony, Fed.R.Evid. 801(d)(1)(A), indicated that the defendant had told Knighton about the details of the illegal payments being made to Spaulding.

The defendant took the stand in his own defense and denied having ever lied to the grand jury. Several witnesses testified as to the community reputation for truth and veracity of both Richardson and the defendant, and the jury was essentially left with questions of credibility.

I

The most serious issue raised by the defendant Whitaker concerns the introduction of evidence tending to prove that Eugene Richardson had given Spaulding a Bronco truck in exchange for a union book. Richardson was the only witness to testify that the defendant was a participant in the kickback scheme, and his credibility was vigorously attacked in various ways. ⁶ In order to bolster Richardson's testimony concerning the details of the payoff scheme as related to Richardson by Whitaker, the government introduced testimony that Richardson had in fact received his union book by giving a Bronco truck to Spaulding. The defendant argues that the details of Richardson's transaction with Spaulding were not relevant to whether the defendant perjured himself before the grand jury.

Richardson testified that the following conversation took place shortly before or shortly after ⁷ Whitaker's grand jury testimony.

Q Have you ever had any conversation with Mr. Whitaker about your union book?

A Well, at St. Regis after he had been down to the grand jury, and before he had been to the grand jury, and it was said (by Whitaker), "Well, you didn't pay A. J. (Spaulding) anything for your book after paying $25 a week; did you?"

"I sure did. I gave him the Bronco," which was equivalent to $1,400 cash.

Record on Appeal, Volume II at 182-83. The defendant's attorney objected that this testimony was irrelevant because the transaction referred to took place between Spaulding and Richardson and not the defendant. The objection was overruled.

The error arose when, after properly overruling the objection to this testimony, the trial court permitted further testimony concerning the transaction between Spaulding and the witness Richardson. The defendant Whitaker was not a party to this transaction; he was only on trial for perjury as to certain statements. Whether or not the Spaulding-Richardson transaction with the Bronco had in fact occurred was entirely irrelevant to the defendant Whitaker's guilt or innocence of perjury. The erroneous admission of this subsequent irrelevant testimony, as will be noted, was prejudicial and cannot be overlooked as harmless.

Over Whitaker's continuing objection as to its irrelevance, the prosecution was permitted to elicit further testimony from Richardson as to the details of the transaction involving Spaulding and the Bronco truck.

According to Richardson, Spaulding had said that he would get Richardson a union book in exchange for the Bronco truck. Record on Appeal, Volume II at 185. Richardson testified:

A I met with A. J. Spaulding on the beach . . . on a Sunday afternoon . . . . And he showed up by himself.

We got in his jeep and rode down the beach . . . . And he asked me what would be a fair price. And I said $1,400. And he says, "I'll give you this check." And he says, "Don't cash it though, because I've got very little money in this account."

And he said, "When can you get the Bronco over to me?"

Q All right. Did you ever cash that check?

A No.

Id. at 186.

At this point, the government sought to introduce the $1,400 uncashed check into evidence. Defense counsel again objected, but the trial judge stated that the transaction was "probative of the fact (that) there were under-the-table deals and so forth involving Mr. Spaulding." Record on Appeal, Volume II at 188. The judge stated that he thought that the probative value outweighed any prejudicial effect and that he did not see any prejudicial effect. Id. at 187-88.

After the check had been introduced, Richardson testified that he had given Spaulding title to the truck approximately two weekends later. Id. at 191. The government then introduced the title certificate over objection. Id. at 191-93. Following a short recess, the government attempted to elicit further testimony, but defense counsel objected on the ground of hearsay. ⁸ The objection was sustained, and there was no further testimony concerning the Bronco truck on direct examination.

On cross-examination, Richardson testified that the defendant's only connection with the Bronco truck was his statement to Richardson, "A. J. sure is interested in your Bronco. He'd like to have it." Id. at 255-57. Subsequently, Robert Sloan, another government witness, testified about the details of the transaction between Richardson and Spaulding, as related to Sloan by...