United States v. Goodwin

• Decision Date: 12 April 1972
• Docket Number: No. 71-1348,71-1349.,71-1348
• Parties: UNITED STATES of America, Appellee, v. Jimmy L. GOODWIN, Appellant. UNITED STATES of America, Appellee, v. John GOODWIN, Jr., Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

455 F.2d 710 (1972)

UNITED STATES of America, Appellee, v. Jimmy L. GOODWIN, Appellant.

UNITED STATES of America, Appellee, v. John GOODWIN, Jr., Appellant.

Nos. 71-1348, 71-1349.

United States Court of Appeals, Tenth Circuit.

February 25, 1972.

Rehearing Denied April 12, 1972.

Judd L. Black, Oklahoma City, Okl., for appellants.

Robert D. McDonald, Asst. U. S. Atty. (Richard A. Pyle, U. S. Atty., with him on the brief), for appellee.

Before MURRAH, SETH and HOLLOWAY, Circuit Judges.

Rehearing Denied in No. 71-1348 April 12, 1972.

SETH, Circuit Judge.

This is an appeal from convictions for transferring counterfeit notes with the intent that they be used as true and genuine (18 U.S.C. § 473) under Count Three of the indictment, and for conspiracy to commit offenses against the United States (18 U.S.C. § 371) under Count Four of the indictment.

A third defendant, Miss Peggy Skaggs, was charged under separate counts. She was convicted of conspiracy with the Goodwins under Count Four, but does not appeal.

The relevant facts are as follows: Thomas Gunther, a secret service agent pretending to be a buyer of counterfeit notes, met with the Goodwins through the efforts of Johnny Johnson, an informant. Appellant, Jimmy Goodwin, presented Gunther with four counterfeit twenty dollar bills for which no money was paid and with the understanding they were to be returned. It was arranged that Gunther would buy thirty thousand dollars worth of the notes at twenty-five cents on the dollar, but apparently because the Goodwins were unable to make the necessary arrangements with their source, the transaction was never consummated. John Goodwin testified that the counterfeit money belonged to Johnson, that Johnson seemed desperate and scared, and that he and his brother Jimmy cooperated with Johnson because they thought he was in danger. Goodwin further testified that he and his brother had never dealt with counterfeit money and that they cooperated with Johnson only to make it appear that Johnson—not themselves— could produce the required quantity of bills.

Trial was set for February 10, 1971. Just prior to trial date Jimmy Goodwin was confined to a hospital suffering from a gunshot wound in the neck. On February 8th he filed a motion for continuance supported by affidavit of his attending physician, who stated that Goodwin was not ambulatory and could not bear the emotional strain of trial. The motion was denied, and appellant attempted to stay proceedings by petitioning this court for a writ of prohibition which was denied.

During the course of the trial the Government put on several witnesses to prove that Miss Skaggs, Jimmy Goodwin's stepdaughter, had passed counterfeit notes as alleged in separate counts in the indictment. In response to a question by the attorney for codefendant Skaggs of a Government witness, it was revealed that a deputy sheriff had discovered stolen goods in the Goodwin house over a year before.

The appellants assert four propositions: (1) It was error to overrule the motion for continuance; (2) it was error to permit the jury to hear evidence of unrelated criminal offenses; (3) that the evidence was insufficient to sustain a conviction under 18 U.S.C. § 473 of delivery with intent to pass; and (4) the verdict must be set aside because it is impossible to determine which alleged overt act the jury relied upon for a conviction on the conspiracy charge.

With regard to the attempt of appellant, Jimmy Goodwin, to obtain a continuance, it is undisputed that he was required to leave a hospital bed in order to attend his trial. It is further asserted that he was unable to testify because of his condition, and that because of his inability to aid counsel in his own defense, he was effectively denied his right to counsel under the Sixth Amendment. However, despite the affidavit of Mr. Goodwin's physician, it is apparent from the record that Mr. Goodwin was in fact ambulatory and able to converse. Nothing in the record reveals an abuse of discretion, and nothing in the record demonstrates prejudice to the appellant.

Appellants assert as their second proposition that it was prejudicial error for the trial court to have allowed the jury to hear the reference to stolen goods. On direct examination of a Government witness, it was revealed that a deputy sheriff had been watching the activities of Peggy Skaggs, the codefendant and stepdaughter of Jimmy Goodwin. On cross-examination counsel for Miss Skaggs elicited the fact that her activities had been watched solely because of her relationship to her father, whose house had been searched and in which various stolen goods were found. The appellant asserts that the reference to Miss Skaggs' "father" clearly denoted Jimmy Goodwin, her stepfather, as the owner of the house. However, the record reveals that the trial judge emphasized the distinction in his admonition to the jury, and his instruction on the matter was prompt and explicit, concluded by individually polling the jurors. There was a question whether appellant, Jimmy Goodwin, or Peggy Skaggs' actual father was involved in the reference to stolen goods, but assuming that appellant was referred to, this incident was not prejudicial if the trial judge promptly ascertained that the jury could disregard it. McBride v. United States, 409 F.2d 1046 (10th Cir.); Mitchell v. United States, 126 F.2d 550 (10th Cir.). See also Pappas v. United States, 216 F.2d 515 (10th Cir.). We find no circumstances here where striking the testimony and admonishing the jury was not sufficient to render the error harmless as considered in Lawrence v. United States, 357 F.2d 434 (10th Cir.). We also find that the trial court did promptly ascertain that the jury could disregard it.

As their third proposition, appellants urge that it was error for the trial court to have overruled their motion for a judgment of acquittal on Count Three of the indictment. See Lucas v. United States, 355 F.2d 245 (10th Cir.)...