United States v. Harris

• Decision Date: 08 April 1969
• Docket Number: 10895,10894,10862,10864,10832,No. 10818,10863,10896.,10818
• Citation: 409 F.2d 77
• Parties: UNITED STATES of America, Appellee, v. Henry Howard HARRIS, Appellant. UNITED STATES of America, Appellee, v. James BROWN, Appellant. UNITED STATES of America, Appellee, v. Charlie McCANTS, Appellant. UNITED STATES of America, Appellee, v. Henry VENNING, Appellant. UNITED STATES of America, Appellee, v. Melvin WILLIAMS, Appellant. UNITED STATES of America, Appellee, v. Ernest MOSLEY, Appellant. UNITED STATES of America, Appellee, v. Willie BROWN, Appellant. UNITED STATES of America, Appellee, v. Joseph James SIMMONS, Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

409 F.2d 77 (1969)

UNITED STATES of America, Appellee, v. Henry Howard HARRIS, Appellant.

UNITED STATES of America, Appellee, v. James BROWN, Appellant.

UNITED STATES of America, Appellee, v. Charlie McCANTS, Appellant.

UNITED STATES of America, Appellee, v. Henry VENNING, Appellant.

UNITED STATES of America, Appellee, v. Melvin WILLIAMS, Appellant.

UNITED STATES of America, Appellee, v. Ernest MOSLEY, Appellant.

UNITED STATES of America, Appellee, v. Willie BROWN, Appellant.

UNITED STATES of America, Appellee, v. Joseph James SIMMONS, Appellant.

Nos. 10818, 10832, 10862, 10863, 10864, 10894, 10895, 10896.

United States Court of Appeals Fourth Circuit.

Argued February 5, 1969.

Decided April 8, 1969.

COPYRIGHT MATERIAL OMITTED

W. Bailey Watson, Hanahan, S. C. (E. Graydon Shuford, Jr., Hanahan, S. C., on brief), for Henry Howard Harris.

Herman Fisher, Charleston, S. C., for James Brown.

Fred Henderson Moore, Charleston, S. C., for Charlie McCants.

Coming B. Gibbs, Jr., Charleston, S. C. (court-appointed counsel), for Henry Venning, Melvin Williams, Ernest Mosley, Willie Brown, and Joseph James Simmons.

Thomas P. Simpson, First Asst. U. S. Atty. (Klyde Robinson, U. S. Atty., on brief), for the United States.

Before HAYNSWORTH, Chief Judge, BOREMAN and BUTZNER, Circuit Judges.

BUTZNER, Circuit Judge:

The appellants, assigning numerous grounds of error, challenge their convictions for conspiracy and theft of government property from the United States Naval Base at Charleston, South Carolina. We find no reversible error and affirm the judgments of the district court.

The thefts began about 1959 and continued until November 1964. Property valued in excess of $1,000,000 was removed from the base in truckload lots for sale to codefendants who maintained places of business in California, Louisiana, Florida, and South Carolina. The crime commenced in a small way when a civilian employee stole metal and sold it to a fence, who urged the thief to steal marine diesel parts. The thief lent money to the director of storage at the base and then persuaded the director to transfer him to the main diesel parts warehouse. The debt was forgiven, the conspiracy blossomed, and soon a confederation of civilian employees, naval personnel, commercial truck drivers, and dealers in marine parts began their systematic looting of the naval base. Every precaution was taken to avoid detection. Invoices were destroyed, bills of lading were forged, transportation was scheduled at times when the loading of trucks was less likely to be observed, and if the occasion demanded, the cooperative director of storage could be bribed to "call a meeting" to decoy honest employees from the scene of criminal activity.

Initially, the diesel parts were removed from the base in a government truck driven by a navy enlisted man. When this became impractical, an employee of a commercial truck line was engaged to use his company's tractor trailer units to transport the government's property from the main diesel parts warehouse. In time, the thieves feared that frequent appearance of commercial trucks at the warehouse would attract suspicion, so pallet loads of diesel parts were transported by government vehicles to a boiler shop where they were accumulated for removal from the base by commercial truck. So smoothly was this operation run that the boiler shop became a depot for dispatching property stolen from other areas in the base. The conspiracy ended November 4, 1964 when F.B.I. agents intercepted a shipment of stolen goods valued at $118,000 en route to Miami, Florida.

The first count of the indictment charged the appellants, along with 18 other persons, with violating the general conspiracy statute, 18 U.S.C. § 371, by the theft and interstate transportation of government property. It alleged the commission of 274 overt acts in furtherance of the conspiracy. Twelve substantive counts charged various defendants with receiving stolen goods, theft, or aiding and abetting others to steal, in violation of 18 U.S.C. §§ 2 and 641.¹ A number of the appellants have assigned the same grounds of error. Joint consideration of these issues, therefore, will be convenient. In other instances the assigned error relates only to individual appellants and must be considered separately.

I.

The appellants complain that the district judge erroneously denied a pretrial motion for the production of all statements and documents in the possession of the United States Attorney and the F.B.I. that were material to their guilt or innocence and to the degree of punishment.² The district judge, believing that strict compliance with the Jencks Act 18 U.S.C. § 3500 would adequately protect the accused, denied pretrial discovery. The appellants rely upon Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), where the prosecution's suppression of a codefendant's statement favorable to an accused was held to violate due process. Brady, however, is inapplicable. The United States Attorney has categorically stated that he knows of no information that could aid the defendants, and counsel for the appellants do not charge in their briefs that favorable evidence was suppressed. We previously have held that Brady does not require the trial court to make an in camera search of the government files for evidence favorable to the accused, United States v. Frazier, 394 F.2d 258, 262 (4th Cir. 1968), and other courts have ruled that Brady does not require pretrial discovery. Archer v. United States, 393 F.2d 124, 126 (5th Cir. 1968); United States v. Turner, 274 F.Supp. 412, 417 (E.D.Tenn.1967); United States v. Gleason, 265 F.Supp. 880, 883 (S.D. N.Y.1967).

Statements of every government witness were made available immediately after direct examination in accordance with the requirements of the Jencks Act, and the appellants have cited no specific instance where production of documents under the statute, in lieu of pretrial discovery, resulted in prejudice. We find no abuse of the discretion allowed the district judge under Rule 16 of the Federal Rules of Criminal Procedure.

II.

The appellants also assign error to denial of their pretrial motion to sequester four witnesses, three of whom were codefendants who had pleaded guilty, and the fourth, a conspirator who was not indicted.³ The sequestration of witnesses, long practiced in English and United States courts, rests within the sound discretion of the trial judge, Taylor v. United States, 388 F.2d 786, 788 (9th Cir. 1967); Milanovich v. United States, 275 F.2d 716, 720 (4th Cir. 1960), rev'd on other grounds, 365 U.S. 551, 81 S.Ct. 728, 5 L.Ed.2d 773 (1961); 6 Wigmore, Evidence § 1837 (3d ed. 1940), and his ruling will not be reversed "in the absence of manifest prejudice resulting from the presence of witnesses during the trial of the case." Mitchell v. United States, 126 F.2d 550, 553 (10th Cir. 1942). The district judge, mindful that sequestration should not be lightly denied, heard extensive argument on the motion. The principal reason for initially denying sequestration was to allow defendants who had pleaded guilty to hear evidence that might bear upon their punishment. A separate hearing on the pleas of guilty, however, could have accomplished the same result. Upon review, therefore, we deem it more important that the record discloses no prejudice to the defendants on trial. The appellants have been unable to cite any instance of a witness being influenced by the testimony of another. Moreover, thorough cross-examination, conducted with the benefit of pretrial statements furnished under the Jencks Act, failed to reveal shifts in testimony that could be attributed to the witness' presence in the courtroom. Cf. Williamson v. United States, 310 F.2d 192, 198 (9th Cir. 1962).

III.

Henry Harris complains that the district judge improperly denied his motion for a severance. The incident came about in this fashion. A conspirator, under cross-examination by counsel for another defendant, was asked to read a portion of his own statement that he had previously given the F.B.I. He read that a codefendant paid him by placing money in a white envelope and that he had seen similar envelopes for Harris. At the time, Harris' counsel made no objection, but the next day he moved for a severance. The district judge overruled the motion but offered to have the witness recalled for further cross-examination. Harris' counsel declined this offer.

Even though the witness' statement implicated Harris, we find no reversible error. The vice of using a post-conspiracy statement that implicates another defendant lies in the denial of Sixth Amendment rights of confrontation and cross-examination when the author does not testify. Then severance is imperative. Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). Here, on the contrary, the author of the statement could be fully cross-examined about his testimony and his prior declarations concerning the payoff envelopes. Error, if any, lay in the inadvertent introduction of a prior consistent statement. This, however, does not require a severance or reversal. Cf. United States v. Safley, 408 F.2d 603, (4th Cir. 1969).

Closely related is Charlie McCants' complaint that conspirators were permitted to refresh their memories while testifying by referring to their own statements which they had previously given to the government, and, in one instance, by notes the witness made from his original records. The papers were not introduced in evidence. This use of a witness' own statement only for the purpose of refreshing his recollection was not objectionable. Jones v. United States, 282 F.2d 745, 747 (4th Cir. 1960), cert. denied, 365 U.S. 842, 81 S.Ct. 799, 5 L.Ed.2d 808 (1961); United States v. Riccardi, 174 F.2d 883, 888 (3rd Cir. 1949).

IV.

Ernest Mosley complains that after he admitted on cross-examination a prior conviction for defrauding the government, he was...