United States v. Cochran
| Decision Date | 07 October 1974 |
| Docket Number | No. 73-1820.,73-1820. |
| Citation | 499 F.2d 380 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Reginald COCHRAN, William Ronald Watson, and William Robert Bland, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Fifth Circuit |
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Nathaniel G. W. Pieper, Tampa, Fla. (Court-appointed), for Reginald Cochran.
Henry Gonzalez, Tampa, Fla., for William Ronald Watson.
Arnold Levine, Tampa, Fla., for William Robert Bland.
John L. Briggs, U. S. Atty., Jacksonville, Fla., Claude H. Tison, Jr., Asst. U. S. Atty., Tampa, Fla., for plaintiff-appellee.
Before DYER and MORGAN, Circuit Judges, and KRAFT, District Judge.
Rehearing and Rehearing En Banc Denied October 7, 1974.
A flim-flam is a confidence game designed to fleece a victim through some fraud or trickery, in this case by a pretended sale of stolen gems at a bargain price. By a three-count indictment Reginald Cochran, Stanley Cochran (son of Reginald), Parker (an associate of the Cochrans), Bland (a Tampa police official), and Watson (a Tampa used-car lot owner) were charged with violations of 18 U.S.C.A. §§ 2314, 2 and 371. Count one charged the defendants with conspiring to transport from Georgia to Florida stolen gems for use in a flim-flam and transportation of the gems and the monies obtained from the flim-flam back to Georgia. Counts two and three charged the substantive offenses of interstate transportation from Valdosta, Georgia to Tampa, Florida and vice versa. Reginald Cochran was found guilty on all counts. Bland and Watson were found guilty on counts one and three.1 In their appeal the defendants assert various errors, including prosecutorial misconduct, error in the court's refusal to sever their trials, error in evidentiary and procedural rulings, and, as to Watson, ineffective assistance of counsel requiring a mistrial. We affirm.
Sufficiency of the evidence to support the verdicts is not contested by any of the defendants, so it would be inutile to detail the evidence presented in this lengthy trial.2 In abbreviated form the historical facts undergirding the convictions established that Stanley Cochran knew burglars who had robbed a jewel merchant in Georgia of about $80,000 in gems. Stanley introduced the burglars to his father, Reginald, who purchased a substantial quantity of the stolen jewelry.3 After acquiring the gems, Reginald contacted Stanley, Watson and Parker to set up the flim-flam operation in Tampa. Watson then introduced Parker to a Tampa confidence man named Perdue. On April 1, 1971, Reginald and Stanley drove from Valdosta to Tampa, bringing with them an assortment of gems, including the stones Reginald had purchased from the burglars in Georgia.
Reginald had also invited Dyal, an acquaintance, to participate in the flim-flam. Reginald told Dyal that Watson was in on the operation and that the "blow-off" man would be a policeman who had been on the Tampa police vice squad. Unknown to Reginald, Dyal was an informer for the FBI who communicated his information to a special agent.
On April 1, 1971, Parker, Watson and the two Cochrans met at Watson's used-car lot in Tampa to discuss the operation. After formulating their plans, Parker left with Perdue to meet the intended victim, Letizia, who was chosen because he was thought to have been skating on the penumbras of the law. As a result of his conversations with Letizia, Parker reported back to Watson and the Cochrans that Letizia had agreed to look at the stolen jewels and that he should be "good" for fifteen to twenty thousand dollars. Watson and Reginald assured Parker that they had a "blow-off" man available—that is, a person who, at the right moment, appears and announces that he is a policeman and ostensibly arrests the confederate carrying the jewels so that another confederate can persuade the victim to flee to avoid arrest. Thus, in a successful flim-flam, even if the victim suspects that he has been swindled, he would not report the incident, since to do so would be to admit his intention to buy stolen property.
On April 2, 1971, Parker and Perdue again met Letizia and explained that they knew a person who had a quantity of stolen gems which could quickly be resold at a large profit, but that they did not have enough money between the two of them to make the purchase. They offered to cut Letizia in for fifty percent of the profits if he would help finance the purchase. The proposal apparently appealed to Letizia, who went with Parker and Perdue to a motel room that Parker had previously rented. At the motel, the three were greeted by Stanley, playing the part of the thief, who after some "persuasion" let them into the room and then displayed the merchandise. To make the flim-flam look genuine, Parker expressed doubt as to the gems' value and suggested that they have an appraiser whom he knew examine the stones. Stanley "agreed," so Parker went outside and called Watson at the car lot, instructing him to send Reginald over to act as an appraiser. Parker also told Watson that he would need the "front money" to induce Letizia to go through with the deal. A few minutes later, and unbeknown to Letizia, Watson brought Parker $1,200 in $100 bills. In addition, Perdue had $200 to use as front money.
At the appointed time Reginald appeared at the motel room with scales, measuring devices, and other jeweler's equipment. He was introduced to Stanley, the "thief," and Letizia, the victim, and examined the stones that Stanley had laid out. Upon completion of his appraisal, Reginald, accompanied by Parker, Perdue and Letizia, went into the bathroom, out of the presence of Stanley, where Reginald said he would pay $22,500 for the gems. Reginald then left, and Parker, Perdue and Letizia finally settled with Stanley on a price of $15,000 for the gems. Parker left with Letizia to get Letizia's money, while Perdue stayed with Stanley, ostensibly to ensure that Stanley made no substitutes of the gems he had shown.
At this point, Letizia withdrew $14,000 from his savings account. Parker then telephoned Watson at the car lot, who told him to proceed with Letizia to the Holiday Inn motel, where the transfer was to be made. Watson assured Parker that the "blow-off" man was ready. Stanley and Perdue went to the Holiday Inn, where Stanley saw appellant Bland, the "blow-off" man, seated in his green Chevrolet, an unmarked official police car, assigned on a permament basis to Bland as a Major in the police department. Upon the arrival of Parker and Letizia, they all adjourned to the men's rest room. Stanley gave Parker the jewels, and Letizia gave Stanley $13,600 to add to the $1,400 in front money put up by Parker and Perdue. Stanley left with the money, cautioning the others to wait a few minutes before leaving. Upon his departure from the motel Stanley again saw Bland seated in his car.
A few minutes later the others left the motel, with Parker carrying the jewels. By prearrangement Parker was to be "arrested" while Perdue was to keep Letizia inside so he could not observe the "arrest" too well. As Parker stepped outside, he saw Watson pointing toward Bland's car. Bland immediately drove up to Parker, got out and "arrested" him, taking the jewels from Parker and directing Parker to get into the car. Parker looked back, saw Letizia observing the action and heard him say, "Goddam, another flim-flam." Bland then drove the "arrested" Parker to Watson's lot, where Parker rejoined Watson and the Cochrans. Parker gave the jewels back to Cochran, and after the front money was deducted, the $13,600 was split six ways, with Watson keeping the shares of Bland and Perdue.
Later in the day, Perdue told Watson, Parker and the Cochrans that Letizia had gotten an auto license number. It developed that after seeing the "arrest" Letizia had rushed back into the motel, grabbed a pen from the hand of a guest at the registration desk, tore off a piece of paper, and had written a number on it. While waiting for the police, Letizia told the desk clerk and the bartender that he had been robbed of $13,000. Upon the arrival of a police officer, Letizia gave him the paper with a tag number written on it, which was later found to correspond with the license number on Bland's official car. Letizia also gave the officer a description of the car which matched the unmarked police unit permanently assigned to Major Bland.
That night Reginald drove back to Valdosta with the jewels and his share of the money. Stanley flew to Atlanta, Georgia with his share, and the next day Parker drove to Valdosta with his share.
At trial, neither Reginald nor Watson testified. Officer Bland did take the stand. In essence Watson and Bland denied any participation in the flim-flam and presented an alibi defense.
By collating what they define as a series of unfair tactics employed by the prosecutor, the defendants paint prosecutorial misconduct with a broad brush. First, they complain about the prosecutor's allegedly improper use of Jencks Act statements.4 On several occasions, after extensive use on cross-examination by defense counsel of prior statements and interviews, the Government then offered the statements into evidence, but the district court excluded them. The defense argues that the Government's offer in itself constituted improper conduct, since it was done in an attempt to impugn the integrity of defense counsel by suggesting that the defense was attempting to hide certain facts from the jury. Not so, says the Government.
Almost without exception, defense counsels' attempts to impeach the Government's witnesses focused not on any prior inconsistent statement of the witnesses but on the absence from the prior statements of some detail that had been included in the trial testimony. For example, defense counsel would...
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