United States v. Ferguson, 73-1124 to 73-1126.

• Decision Date: 24 October 1973
• Docket Number: No. 73-1124 to 73-1126.,73-1124 to 73-1126.
• Citation: 486 F.2d 968
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Gordon Byron FERGUSON, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Thomas Norwood STREET, Jr., Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Louis DICKINSON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

486 F.2d 968 (1973)

UNITED STATES of America, Plaintiff-Appellee, v. Gordon Byron FERGUSON, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Thomas Norwood STREET, Jr., Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Louis DICKINSON, Defendant-Appellant.

Nos. 73-1124 to 73-1126.

United States Court of Appeals, Sixth Circuit.

Argued June 15, 1973.

Decided October 24, 1973.

Bernard W. N. Chill, Jackson, Miss., for Gordon Byron Ferguson.

Alvin M. Binder, Jackson, Miss., for Gordon Byron Ferguson; Binder, Lucas, Tharpe & Lohrman, Jackson, Miss., of counsel.

Edward G. Grogan, Memphis, Tenn., for Louis Hobson Dickinson; Heiskell, Donelson, Adams, Williams & Wall, Memphis, Tenn., of counsel.

James S. Cox, Memphis, Tenn., for Thomas Norwood Street; Krivcher & Cox, Memphis, Tenn., of counsel.

Thomas F. Turley, Jr., U. S. Atty., J. N. Raines, Asst. U. S. Atty., W. D. Tenn., Memphis, Tenn., for appellee.

Before MILLER and LIVELY, Circuit Judges, and CECIL, Senior Circuit Judge.

WILLIAM E. MILLER, Circuit Judge.

The appellants were convicted under 18 U.S.C. § 1341 of using the United States mails to defraud certain banks. (The offense is commonly referred to as "check kiting"). They now appeal and contend, inter alia, that the conviction should be set aside because an improper communication with a juror tainted the verdict. Because of our decision on this issue, we do not reach the other claims advanced by the appellants.

Shortly before the noon recess of the second day of trial, June 27, 1972, counsel for one of the appellants, Louis Dickinson, advised the court in chambers that his client had received a telephone call from a friend who had spent a portion of the previous evening with one of the jurors, Ronald Austin. The attorney said that one Ted Cruchon had called Dickinson that morning and said, "Louis don't sic have anything to worry about. He Austin had this thing all figured out that he knew who the heavy was."

Following the recess the court questioned Austin in chambers, out of the presence of counsel, but with a court reporter. Austin said that he and his wife had been, on the previous evening, at the home of Cruchon, a mutual friend of theirs and Dickinson. The trial had been briefly discussed, with Cruchon doing most of the talking. Counsel were then brought into chambers and Austin was requested to repeat what he had already told the court. He elaborated, saying that Cruchon had called him at around 9:30 P.M. and invited him over for a drink. He and a friend (not his wife as he had stated earlier) went to Cruchon's house for approximately two hours, but discussed the case for no more than ten to twelve minutes. Austin insisted that he had not spoken to any juror about his conversation of the evening before. "I have not said one word of what was said last night to any juror." Following Austin's statements, counsel for appellants moved for a mistrial, which was denied. Austin was excused from the jury.

The jury was brought into the courtroom, and the court explained the situation as follows:

Now, I asked Mr. Austin to come out of the jury room and in conference with him, without 453 going into all of the various circumstances, he had occasion to have a social contact with a person that knew one of the defendants and this — in the course of the conversation the fact that Mr. Austin was serving on the jury was mentioned, and we have not gone into the exact words that were said, had a trial about that, but it was sufficiently — the appearance of it was sufficiently awkward that I felt that I should excuse Mr. Austin and I now need to be — to ask you jurors individually if anything has been said in the jury room that suggests to anybody, each of you have discussed any phase of the case at this point with regard to the guilt or innocence of the defendants.

* * * * * *

Now, I don\'t want to give the impression that the Court is mad at anybody but it is my heavy responsibility to see that we, when going forward with the trial, to see that we follow 454 the rules and sometimes just the appearance of something causes us concern and, of course, we have a trial that is going now and we don\'t want to stop and have another one.

Next the jury was polled, the court asking two questions of each juror:

Whether any juror has discussed the guilt or innocence of any one of the defendants in the jury room or with another juror outside of the jury room discussed with other jurors; and, second, if you as a juror have already made up your mind 455 about the guilt or innocence.

The sixth juror polled, Mr. Hampton, said that he had heard a remark of another juror about the case. The rest of the jury was then excused so that Hampton could be questioned further. He recalled Austin saying to him on the day before:

"Hell, everybody writes a check on Thursday and they hadn\'t got the money to cover it until Friday, so they just go ahead and write it when they go to the grocery store," and I think, "They write the Thursday night and get their groceries and Friday deposit the money in the bank."

And earlier that day, on the way back from lunch, Austin had invited Hampton and juror Wayne Jordan to take a walk with him in the park. During their conversation Austin said, "The government really hadn't made a case yet." Hampton assured the court that the incident had neither influenced his opinion nor caused him to make any decision on the issues that would be put to the jury. He was allowed to remain on the jury, and the polling continued. All of the other jurors, including Jordan, denied either having heard or participated in any discussion about the case.

New motions were made for a mistrial and denied. An alternate was substituted for Austin; and the trial proceeded, eventually resulting in the conviction of the defendants. Subsequently, motions were made for a judgment notwithstanding the verdict, a new trial and leave to conduct a post-verdict interrogation of jurors. Only the last of these motions was granted.

At the interrogation of jurors on September 29, 1972, Austin testified that he went alone to Cruchon's house and there met Cruchon, his wife and another person named Bill Yancy. When asked why he had earlier said that he had gone with a friend, Austin replied that he must have misunderstood the question. Yancy was the person to whom he had referred.

Austin admitted that he knew that Cruchon and the defendant, Dickinson, were in the bond business together and that they Cruchon and Dickinson had worked for the same company at one time. He also understood that the two men were good friends on a social basis. Austin recalled walking in the park with Hampton and another juror, but he could not remember whether they had discussed the case. Neither could he remember explaining check kiting to Hampton.

Mrs. Dickinson, wife of the defendant, testified that Cruchon called their home at approximately 7:00 A.M. on June 27, 1972. When she answered the telephone Cruchon identified himself and said, "Betty, I've got good news for you." He continued, "You don't have anything to worry about, one of the jurors is a good friend of mine, and he was over at my house last night." At this point Mr. Dickinson talked to Cruchon.

Finally on November 3, 1972, Ted Cruchon was called to testify. He confirmed that he was a friend of both Dickinson and Austin, seeing the latter socially on the average of once a week. On the evening of June 26, 1972, Austin had been in his house and Dickinson's trial was discussed. During the course of the conversation, Cruchon's wife asked her husband to explain check kiting. He repeated the example as follows.

Q. Would you tell His Honor — well, what explanation 12 did you give her, what words did you say? A. I used the grocery store example.

A. I see. Would you give us the example? A. As far as

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