United States v. Baker, 73-2030.

• Decision Date: 11 April 1974
• Docket Number: No. 73-2030.,73-2030.
• Citation: 494 F.2d 1262
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Glenn BAKER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

494 F.2d 1262 (1974)

UNITED STATES of America, Plaintiff-Appellee, v. Glenn BAKER, Defendant-Appellant.

No. 73-2030.

United States Court of Appeals, Sixth Circuit.

Argued February 4, 1974.

Decided April 11, 1974.

Bert T. Combs, Louisville, Ky., for defendant-appellant; Samuel G. Bridge, Jr., Charles R. Simons, Louisville, Ky., Dan Jack Combs, Pikeville, Ky., on brief.

John M. Compton, Asst. U. S. Atty., for plaintiff-appellee; Eugene E. Siler, U. S. Atty., Lexington, Ky., on brief.

Before WEICK, EDWARDS and PECK, Circuit Judges.

PECK, Circuit Judge.

This is a direct appeal from a jury conviction in June of 1973 on a two-count indictment of threatening a federal witness in violation of 18 U.S.C. § 1503 (1968). The District Court imposed a maximum sentence by fining the defendant-appellant Baker the sum of $5,000 on each count and imposing a 5-year imprisonment term on each count. The prison term on the second count was suspended and Baker was ordered to be placed on probation for a period of five years following the expiration of the sentence on the first count.

In October of 1971 one Tommy Kilburn was arrested by three Hazard, Kentucky, police officers for driving while intoxicated. A contemporaneous search of Kilburn's auto disclosed a .44 caliber revolver under the passenger's seat. At Kilburn's preliminary hearing, Baker testified that the gun was his and that he had mistakenly left it in Kilburn's auto earlier on the day that Kilburn was arrested.¹ The matter was then turned over to federal agents for possible federal prosecution concerning the firearm. In November of 1971, a federal grand jury indicted Kilburn, a convicted felon, for possessing the .44 revolver. At that time there appears to have been several charges, not all of which were federal, pending against Kilburn, including more than one firearm possession charge. Although the trial was originally set for December 8, 1971, it did not reach trial until June of 1973. In December of 1972, Baker executed as a surety an appearance bond for Kilburn in the federal prosecution for possession of the .44 revolver. Baker claims that it was at this time that he first learned of any federal investigation relating to the firearm.

COUNT I

Count I regards an alleged threat to one of the police officers who arrested Kilburn. Sometime in December of 1971, Baker visited his friend Ed Johnson, the father of Officer George Johnson, and proposed that Ed ask George to join them. George arrived and the subsequent conversation between Baker and George, overheard by Ed, formed the basis for Count I. Ed testified that before his son arrived Baker complained about the arrest of "Tommy Kilburn and some of his boys." According to Ed Johnson, Baker then advised his son that "the boys were awful mad at him" and thought the police "needed a little charge." George testified that Baker said that in view of their friendship, he would see that George wasn't harmed "too much." Ed's testimony generally substantiated this alleged threat. George Johnson testified that he contacted federal agents following the alleged threat and that his house was placed under surveillance during the month of December 1971.²

At the trial and over the objection of Baker's counsel, testimony was permitted that the property where George lived was damaged by an explosion in early May of 1972, five months after the alleged threat but prior to trial. Referring to Baker, Ed Johnson testified that the explosion took place "approximately where he said it would."

At the time of the December 1971 conversation, Ed Johnson knew his son was to be a witness in a case against Tommy Kilburn but did not know whether he had already done so. On direct examination, George Johnson testified that the conversation occurred prior to the scheduled date of the Kilburn trial but on cross-examination he was unable to place the conversation before or after the trial date. Also on cross-examination, George Johnson stated that the threat was made for picking on Kilburn and "the Glomar boys" and that was the only reason for the threat. In December of 1971 Johnson was under instruction to keep several persons from the town of Glomar Hollow under surveillance.

Two items of claimed error concern us. First, there is a substantial question in our view as to whether the Government produced sufficient evidence to indicate that Baker knew or was aware of the existence of a pending federal proceeding and that George Johnson was a witness therein. However, we find it unnecessary for us to resolve the point because the record reveals that there is insufficient evidence to establish beyond a reasonable doubt that the alleged threat specifically related to George Johnson's testimony in Kilburn's pending federal proceeding.

Particularly in view of the fact that 18 U.S.C. § 1503 is a criminal statute which must be strictly construed, United States v. Essex, 407 F.2d 214 (6th Cir. 1969), a threat in violation of the statute must relate to the possible testimony of the witness in a pending federal proceeding.³ In testifying as to the nature of the alleged threat, Ed Johnson stated that he and Baker had several times previously discussed getting George to "turn his head" rather than arrest "Tommy Kilburn and some of his boys." The fact that George Johnson had arrested Kilburn, a resident of the area, several times in the past strongly indicates that the federal case in question was not the only conduct of George Johnson relating to Kilburn to which the alleged threat could have applied. The mere existence of that federal proceeding is not sufficient to establish or support any inference that the federal proceeding was the focus of the alleged threat.

The Government cites Broadbent v. United States, 149 F.2d 580 (10th Cir. 1945), and Odom v. United States, 116 F.2d 996 (5th Cir.), rev'd, per curiam, 313 U.S. 544, 61 S.Ct. 957, 85 L.Ed. 1511 (1941), for the proposition that a reasonably founded belief by the accused that the person he attempts to influence is a witness in a pending federal proceeding furnishes the requisite scienter for a violation of 18 U.S.C. § 1503. Upon scrutiny, however, we find that those cases do not support the proposition so urged. In Broadbent the accused admitted on cross-examination that she attempted to influence the witness after she knew of the federal proceeding. And in Odom, the court specifically pointed out, "The accused here knew there was a proceeding in federal court, and that there was to be a hearing Saturday night . . . ." 116 F.2d at 999.

The second alleged error concerns the admission of testimony regarding the dynamite explosion. Concededly, the testimony regarding the explosion related to a matter which was not relevant to proving the crime charged. However, the Government argues that the testimony was used to corroborate the testimony of George⁴ and Ed Johnson ". . . in regard to where the defendant said (at the time of the threat) the explosion would take place." Baker claims that such corroboration was unnecessary in view of the fact that these two prosecution witnesses testified that the threat was made and that he admitted the occurrence of the conversation in which the alleged threat took place. Baker's position is that his remarks were a warning of information he overheard and were not threatening.

There can be little question but that in the absence of an appropriate instruction considerable danger existed that the jury might make improper use of this evidence. Accordingly, we conclude that the District Court should have at least provided a careful cautionary charge limiting the uses the jury could make of the testimony. See, United States v. Gebhart, 441 F.2d 1261 (6th Cir.), cert. denied, 404 U.S. 855, 92 S.Ct. 97, 30 L. Ed.2d 96 (1971).

COUNT II

The charge under this count concerns an alleged telephone conversation between one Raleigh Riddle and defendant-appellant Baker in December of 1972. Riddle, the manager of a bar which his wife owned in Hazard, Kentucky, had been subpoenaed to appear at Kilburn's federal trial on the possession...