United States v. Bishop, 73-1287
| Decision Date | 28 February 1974 |
| Docket Number | 73-1358 and 73-1705.,No. 73-1287,73-1300,73-1310,73-1288,73-1287 |
| Citation | 492 F.2d 1361 |
| Parties | UNITED STATES of America, Appellee, v. Clifford Lavern BISHOP, Appellant. UNITED STATES of America, Appellee, v. Lewis Frank GRAYSON, Appellant. UNITED STATES of America, Appellee, v. Nathaniel J. BRANCATO, Appellant. UNITED STATES of America, Appellee, v. George L. HUSONG, Appellant. UNITED STATES of America, Appellee, v. James S. DUARDI, Appellant. UNITED STATES of America, Appellee, v. Jack Michael KING, Appellant. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Robert G. Duncan, Kansas City, Mo., and Stephen Jones, Enid, Okl., for appellants.
Gary Cornwell, Special Atty., Crim. Div., Dept. of Justice, Washington, D. C., for appellee.
Before BRIGHT and STEPHENSON, Circuit Judges, and STUART,* District Judge.
Appellants were convicted under 18 U.S.C. § 371 of conspiring to violate 18 U.S.C. § 1952, by promoting and establishing an unlawful activity, and by promoting such unlawful activity by travelling and causing others to travel in interstate commerce and by the use of telephone facilities in interstate commerce. The case was tried to a jury before the Honorable John W. Oliver, United States District Judge, Western District of Missouri, upon Count I of a two count indictment.
These consolidated appeals raise the principal question of whether an exhibit not admitted into evidence, but inadvertently delivered to the jury during its deliberations by the court clerk, constituted prejudicial error, thus necessitating a new trial. Insufficiency of the evidence and other trial errors are also urged. After carefully considering this record totalling nearly one thousand pages, we conclude that appellants were not prejudiced by the errors alleged, and therefore affirm the conviction. Fed.R.Crim.P. 52(a).
The essence of the conspiracy is that between August 26, 1971 and March 26, 1972, appellants together with Olivia Mae Pitts and Jess C. Roberts, named in the indictment as co-conspirators but not defendants, conspired to promote and establish an unlawful business enterprise involving gambling, prostitution and bribery in violation of the laws of the State of Oklahoma. Interstate travel and use of the telephone facilities in interstate commerce were involved.
The government's evidence is briefly summarized as follows: On May 12, 1971, co-conspirator Roberts met with appellant Grayson, then an Oklahoma State District Attorney, for the purpose of discussing Roberts' plan to erect a private club in the vicinity of Grove, Oklahoma (within Grayson's jurisdiction). The club, known as "Mr. Yuk," was opened on August 26, 1971. Shortly after its opening Mr. Yuk experienced a series of raids by local authorities and charges were eventually filed against Roberts for the illegal sale of intoxicating liquors. As a result of the raids Roberts experienced financial difficulties.
In mid-December, appellant Bishop, an employee of appellant Duardi, a Kansas City, Missouri night club owner, telephoned Roberts from Kansas City and indicated that he could help Roberts with the raids problem through various political connections. Bishop also indicated to Roberts that he had an idea to make money in a business venture. Roberts then flew to Kansas City and met with appellants Bishop, Duardi and Brancato. The latter owned several businesses in the Kansas City area. During the course of the meeting, Duardi and Brancato suggested to Roberts that they might be able to help eliminate some of the raids. On January 7, 1972, Mr. Yuk was again raided, charges were filed and all the furniture from within the club was seized. Owner Roberts later met with District Attorney Grayson who said that "he had to do it stage the raid for political purposes."
On January 12 and 13, 1972, Bishop visited Grove, Oklahoma and met with appellant King and Roberts, and discussed establishing a "vending" machine business. King, who owned the "Show Boat" Club, also, in the vicinity of Grove, indicated that he too had been having problems with local officials; that Duardi saw to it that charges filed against him were reduced or dropped, and that he (King) in turn gave Duardi a partnership in the Show Boat. On January 13, 1972, Bishop, Roberts and King drove to Kansas City and had a partnership agreement prepared which gave Bishop an interest in Mr. Yuk. On the return trip, King indicated that he had a prior arrangement with appellants Grayson and Husong, a special investigator for District Attorney Grayson, which provided for gambling at the Show Boat.
On January 14, 1972, Roberts met with investigator Husong who indicated that the raids on Mr. Yuk could be stopped and that gambling could be arranged. Husong told Roberts that in return he and Grayson needed 20% of the gambling proceeds "to keep other law enforcement officers away from Mr. Yuk,"1 and that they needed a new car for the local Sheriff. Roberts told Husong that an additional room would be added to Mr. Yuk for gambling, that there would be a motel, an amusement park and gambling at the Show Boat, owned by appellants King and Duardi, and that rather than giving 20% of the gambling proceeds he would pay 5% of the profits of the entire operation. The next day, Roberts met with appellants Bishop, Brancato and Duardi in Kansas City to discuss the proposed agreement to be reached with investigator Husong and District Attorney Grayson. They also discussed financing the operation through the Bureau of Indian Affairs or the Small Business Administration, and further, that "girls" could be employed to entertain and be companions for the customers.
Bishop later confirmed the arrangements with investigator Husong, and then telephonically described some of the final details to Duardi. Several meetings followed to discuss financing and construction. Mrs. Pitts (co-conspirator) who met with appellants, was described by Duardi as a person who could obtain an "S.B.A., or Indian loan." On February 3, 1972, Roberts and Bishop engaged in a telephone conversation between Grove and Kansas City in connection with the arrangements with local authorities. On February 4, 1972, Bishop arrived in Grove with a 1972 Chevrolet Impala, which he and Roberts gave to investigator Husong as part of the "deal." Subsequently District Attorney Grayson used the auto. (The auto was leased rather than purchased ostensibly to permit its repossession should the "deal" fail.)
It was later learned that appellants would be unable to secure an S.B.A. loan. Husong, King and Bishop blamed Roberts for the failure to secure this financing. According to Roberts, however, Husong subsequently told Roberts that "Mr. Grayson and himself were going to acknowledge all of the agreements we had had prior to that time concerning the notification of the raids, allowing gambling in the club, were going to keep the car that had been given them, but they would make the payments on the car and they would expect no percentage out of the gambling." Roberts replied "that it couldn't work that way * * * once this was started we had to stick to it, there was too much money had been spent to back out at this time." On February 29, 1972, King, who was in Denver with Bishop and Roberts to secure a bingo machine for Mr. Yuk, learned in a telephone conversation with his wife at Grove that Internal Revenue men were in Grove. It was agreed they "would let things lay quiet for a while until this simmered down."
Appellants were subsequently indicted on the conspiracy charge which alleged 22 overt acts.2 Warrants were issued for their arrests on August 23, 1972. Of the eighteen witnesses who testified during the course of the trial, all but one were called by the government. Co-conspirator Roberts was the chief witness for the government. His testimony was corroborated in several respects by other employees who testified. Co-conspirator Pitts was called by the defense.
A great deal of documentary evidence was introduced during the course of the trial. Among the offered exhibits was the government's Exhibit R, purporting to be "a summary of telephone records and the corresponding business records of telephone companies upon which that summary is based, prepared by F.B.I. agents."3 Judge Oliver refused to admit Exhibit R because of the form of the exhibit.4 He later explained in his order of January 2, 1973, that "defendants' objections to that exhibit were valid only in a limited sense and that the difficulty with the exhibit in the form it was offered was that many phone calls which had no probative value (in that they simply reflected calls between pay telephones in public places) were listed together with records of telephone calls between identified individuals which could be relevant."
Shortly after the jury began its deliberation it requested all the exhibits. Counsel agreed that all exhibits admitted into evidence should be sent to the jury, but that exhibits attached to court Exhibit 1 (the pretrial stipulation relating to authenticity of certain exhibits, see note 3, supra) should not be included. In the presence of defense counsel and with the telephonic approval of government counsel, Judge Oliver directed the court clerk to check all exhibits carefully so that evidence not admitted could not inadvertently be transmitted to the jury. The jury deliberated approximately six and one-half hours and returned guilty verdicts as to all defendants. Despite the precautions taken, the court clerk advised the court that when he collected the exhibits after the trial he found Government Exhibit R among the exhibits that went to the jury room.
Appellants now urge that such transmission constitutes reversible error, necessitating a new trial.
It is undisputed that the delivery to the jury of Exhibit R constitutes error. Osborne v. United States, 351 F.2d 111, 115 (CA8 1965)...
To continue reading
Request your trial
-
U.S. v. Brown
...1217 (2d Cir. 1973). If its management of this evidence was error, it was harmless beyond reasonable doubt. 5 See United States v. Bishop, 492 F.2d 1361, 1365 (8th Cir.), cert. denied, 419 U.S. 833, 95 S.Ct. 59, 42 L.Ed.2d 59 Finally, Hendrix contends that he should have been permitted a co......
-
State v. Theus, s. WD
...doubt " 'that the error did not contribute to the defendant's conviction.' " Beasley, 731 S.W.2d at 257 (quoting U.S. v. Bishop, 492 F.2d 1361, 1365 (8th Cir.1974)). The admission of irrelevant "evidence, even of other crimes, will not be reversed on appeal absent a showing of prejudice." S......
-
U.S. v. Young
...cumulative, and thus the error in admitting the money found in the wall was harmless beyond a reasonable doubt. See United States v. Bishop, 492 F.2d 1361, 1365 (8th Cir.), cert. denied, 419 U.S. 833, 95 S.Ct. 59, 42 L.Ed.2d 59 Prior to trial, the government informed the District Court that......
-
United States v. Walton
...could have affected the verdict because they were merely duplicative of evidence properly admitted at trial"); United States v. Bishop , 492 F.2d 1361, 1366 (8th Cir. 1974) (denying motion for new trial because "the objectionable nature of [erroneously provided exhibit] was its form," and "......