U.S. v. Williams, s. 90-2331

• Decision Date: 12 June 1991
• Docket Number: 90-2771 and 90-2870,Nos. 90-2331,s. 90-2331
• Citation: 935 F.2d 1531
• Parties: UNITED STATES of America, Appellee/Cross Appellant, v. Larry R. WILLIAMS, Appellant/Cross Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1531

935 F.2d 1531

UNITED STATES of America, Appellee/Cross Appellant, v. Larry R. WILLIAMS, Appellant/Cross Appellee.

Nos. 90-2331, 90-2771 and 90-2870.

United States Court of Appeals Eighth Circuit.

Submitted Jan. 10, 1991.

Decided June 12, 1991.

Charles D. Barnett, Texarkana, Ark., for appellant/cross appellee.

William M. Cromwell, Fort Smith, Ark., for appellee/cross appellant.

Before MAGILL, Circuit Judge, ROSS, Senior Circuit Judge, and HUNTER, ^* Senior District Judge.

ROSS, Senior Circuit Judge.

These consolidated appeals ¹ arise from two related cases in which Larry R. Williams (Williams) was the defendant. The first case (the cattle case) deals with Williams' conviction of six counts of selling cattle and timber that had been pledged as collateral to the Farmers' Home Administration (FmHA), in violation of 18 U.S.C. Sec. 658. The district court sentenced Williams to twenty-four months imprisonment and twenty-four months supervised release after enhancing the offense level on the basis of evidence of Williams' attempt to influence two jurors. The government then tried Williams on two counts of influencing a juror in violation of 18 U.S.C. Sec. 1503; Williams was convicted on both counts. The second case (the jury tampering case) deals with Williams' conviction of two counts of jury tampering. The district court refused to impose an additional sentence on Williams for the jury tampering convictions. The district court believed that enhancing Williams' sentence in the cattle case on the basis of jury tampering and thereafter sentencing Williams for jury tampering would constitute multiple punishment in violation of the Double Jeopardy Clause of the Fifth Amendment. Nevertheless, the district court did impose a four month sentence in the jury tampering case because Williams had committed the jury tampering while he was on bond. ²

Williams now appeals the convictions in the cattle case. Both parties appeal the sentence imposed in the jury tampering case. We affirm the convictions in the cattle case but remand both cases for resentencing.

I. FACTS.

The government charged Williams with fraudulently selling timber and cattle which he had pledged to the FmHA as collateral on a loan. The first six counts charge, under 18 U.S.C. Sec. 658, illegal sales of cattle from August 1984 to April 1989. Each of those counts only charges conduct occurring within one calendar year; for instance, count one charges the illegal sales occurring in 1984, count two charges those occurring in 1985, and so on. Counts seven and eight charge two illegal sales of timber during 1987. The jury convicted Williams on counts three through eight, for the sales of cattle and timber made between 1986 and 1989.

The case was scheduled for trial on February 26, 1990. After a jury was selected and sworn, the court excused the jurors and directed them to return for trial on February 28. The two day delay was intended to afford the court an opportunity to dispose of pending motions. Before the jury returned, a third party contacted two of the jurors and attempted to influence them on behalf of Williams. The jurors promptly reported these contacts to the trial judge who then questioned the jurors. The court told counsel about the problem. The government proposed that the two jurors be dismissed, the sole alternate be seated, and the trial proceed with eleven jurors. Because Williams objected to proceeding with eleven jurors, the government moved for a mistrial which the district court granted over Williams' objection.

In another pretrial ruling, the court refused to compel the attendance of an FmHA official, Neal Johnson, after holding a telephone conference with Mr. Johnson. Williams contended that Mr. Johnson was a necessary witness for the proper presentation of another of Williams' pretrial motions, a motion to dismiss for selective prosecution. Similarly, when the case finally In still another pretrial ruling, the district court denied Williams' motion for change of venue. The fact that the first attempt to try the case ended in a mistrial was reported in the local news media along with allegations that Williams was involved in the jury tampering. Because of the news reports, Williams moved for a change of venue, claiming that widespread publicity would deny him a fair trial. The voir dire revealed that fourteen venirepersons had seen or heard some of the news reports. The court carefully screened the fourteen and struck only one for already having formed an opinion that Williams was guilty. A second venireperson was struck because of her association with a potential government witness. Williams' motion to strike for cause the remaining twelve was denied, and only two of the twelve were seated on the jury.

went to trial and after the government had finished presenting its case, Williams announced that his first four witnesses would be four attorneys who had represented Williams in civil litigation against the FmHA during periods covered by the indictment. The court ruled that the evidence could not be presented as a defense because it was not relevant to the issue of intent.

After the presentation of the case, the jury sent two notes to the court. The first note stated, "All counts saying that he's guilty from evidence that we've seen, but not guilty as charged of criminal intent." The court acknowledged that, while the note was difficult to understand, the jury was apparently requesting an explanation of something. Williams' counsel suggested, and the court agreed, that the jury might be referring to the statutory phrase "intent to defraud" which appeared in Instruction 11. The court, without objection from Williams or the government, referred the jury to Instruction 11, which the court stated, "[C]ontains the elements of the charges."

Later, the jury sent another note which asked "Could one of our jurors talk to the judge concerning criminal intent?" Williams' counsel proposed that the court respond, "The jury should refer to court's Instruction No. 11." Instead, the court responded, over Williams' objection, "Instruction 11 defines intent to defraud. I cannot speak with any juror about the matter." Thereafter, the jury returned verdicts of guilty on counts three through eight and verdicts of not guilty on counts one and two.

At the August 2, 1990 sentencing hearing in the cattle case, the court took judicial notice of the testimony of Bill Silliman, the person who improperly contacted the two jurors in February. Silliman gave sworn testimony, at his own guilty plea hearing, that he had attempted to influence the jurors on behalf of Williams at Williams' request. On the basis of the government's charges of influencing a juror and Silliman's testimony, the district court increased Williams' base offense level by two points for obstruction of justice.

Afterwards, on August 20, 1990, the government proceeded to trial against Williams on the two charges of jury tampering in violation of 18 U.S.C. Sec. 1503. The jury convicted on both counts. Nevertheless, the district court did not impose a sentence on these convictions because it thought that to do so would constitute double jeopardy, inasmuch as Williams' sentence on the fraud convictions in the cattle case had been enhanced on the basis of jury tampering. The court did impose a four month sentence enhancement pursuant to 18 U.S.C. Sec. 3147, because Williams committed the jury tampering offense while free on bond.

On appeal from the fraud convictions, Williams raises fourteen points of error. Both Williams and the government raise double jeopardy issues relating to the jury tampering convictions and sentencing. The government appeals the district court's decision not to impose a harsher sentence on the jury tampering convictions, and Williams challenges, on double jeopardy grounds, the four month sentence enhancement imposed under 18 U.S.C. Sec. 3147.

II. THE CATTLE CASE.

The indictment charged Williams with eight counts of violating 18 U.S.C. Sec. 658 In this appeal, Williams' bottom line seems to be that Instruction 11 is defective in that it did not adequately address the issue of "intent to defraud." However, because Williams made no objection at trial to Instruction 11, he now argues instead that the court's responses to the jury's notes somehow changed the content of Instruction 11. We note that the court's responses to both notes merely directed the jury to review Instruction 11. Williams cannot argue now that the instruction is a correct statement of the law, while arguing at the same time that the court's directions to the jury to review Instruction 11 resulted in the deletion of an essential element of the offense. It seems that Williams is attempting some type of back door attack on Instruction 11 since he failed to object to the instruction in the first place. We, therefore, restrict our analysis of Williams' "intent to defraud" argument to whether Instruction 11 was plain error resulting in a miscarriage of justice.

which authorizes the criminal punishment of "[w]hoever, with intent to defraud, knowingly conceals, removes, disposes of, or converts to his own use or to that of another, any property mortgaged or pledged to, or held by, ... the Secretary of Agriculture acting through the Farmers' Home Administration...." Williams now claims that the district court's responses to the two notes from the jury had the effect of completely deleting the words "intent to defraud" from Instruction 11, thereby allowing the jury to find Williams guilty of the Sec. 658 violations without finding the necessary intent to defraud.

We begin this analysis by examining Instruction 11. In Instruction 11, the court addressed the elements of a Sec. 658 violation. This instruction reads as follows:

ELEMENTS OF OFFENSE;

BURDEN OF PROOF

The crime of knowingly disposing, with the intent to defraud, of property that had been pledged as collateral for a government loan, as...