United States v. Hedge
| Citation | 462 F.2d 220 |
| Decision Date | 03 July 1972 |
| Docket Number | No. 27654.,27654. |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Norwood HEDGE and Marvin Thomas Stark, Defendants-Appellants. |
| Court | United States Courts of Appeals. United States Court of Appeals (5th Circuit) |
John M. Sekul, Biloxi, Miss., for Hedge.
James A. Moore, Houston, Tex., for Stark.
Robert E. Hauberg, U. S. Atty., Jackson, Miss., Owen A. Neff, Asst. U. S. Atty., New Orleans, La., Jill Wine Vollner, Atty., U. S. Dept. of Justice, Washington, D. C., for United States.
Before JOHN R. BROWN, Chief Judge, and GOLDBERG and CLARK, Circuit Judges.
Appellants, Norwood Hedge and Marvin Thomas Stark, appeal from jury convictions for violating and conspiring to violate 18 U.S.C.A. § 1952 (1970).1 The indictment charged that appellants agreed to ship and caused to be shipped 100 pairs of honest dice and 12 pairs of crooked dice by mail from Las Vegas, Nevada to Gulfport, Mississippi with the intent to promote a business involving gambling. The adduced evidence indicated that appellants rented space for a gaming room in the restaurant of J. L. Porter from about May 3, 1965 to June 27, 1965. On June 7, Stark telephoned a dice manufacturing company, for whom he worked as a salesman, and ordered the above mentioned dice. He directed that they be mailed to J. L. Porter in Gulfport. The 100 pairs of honest dice were separately packaged from the 12 pairs of crooked dice, and then both were mailed C.O.D. These packages arrived in Gulfport on June 11. Porter testified that at the request of appellants he went to the post office to pick up the packages, but after discovering the cost of the C.O.D. packages, he refused to take them. The packages were ultimately returned unclaimed to Las Vegas where the FBI later seized them.
When this case was first argued in this Court, appellants urged that their due process and equal protection rights had been violated because they were not given the benefit of a transcript of the proceedings concerning certain pre-trial motions. It turned out that the court reporter's notes and tapes had been stolen. We requested that an attempt be made to reconstruct the transcript pursuant to F.R.A.P. 10(c). Because of disagreement between the parties, the district court proceeded under Rule 10(e) to reconstruct the transcript and in addition, filed findings of fact. That court found that reconstruction was adequate and made from the best available means and also that the reconstruction was sufficient to allow it to supply the omission and correct the record under Rule 10(e). Our review indicates that the district court did not err in any of its conclusions on this matter.
The appellants attack the prejudicial superfluity of the indictment and the evidence eventuating therefrom because the Government chose to differentiate between 100 pairs of "honest dice" and 12 pairs of "crooked dice". Appellants argue that the indictment would have been sufficient had it just mentioned 112 pairs of dice, and thus the inclusion was surplusage and of course prejudicial. But we demur as to both points. The allegation and proof was essential to prove that the dice seized in Las Vegas were the same dice that Stark had ordered on June 7. In addition, we can discern no specific prejudice flowing from this admittedly accurate factual description. All gambling is illegal in Mississippi whether done with honest or dishonest paraphernalia.
Appellants complain that the Government wrongly subpoenaed four Government witnesses to appear for interviews at the office of the United States Attorney on the Sunday before trial. Under Fed.R.Crim.P. 17(a),2 the appellants contend that a subpoena is only returnable at the place of trial. While we agree with the appellants' interpretation of the Rule, see United States v. Bowens, 318 F.2d 828 (7th Cir. 1963); United States v. Standard Oil Company, 316 F.2d 884 (7th Cir. 1963); United States v. Polizzi, 323 F.Supp. 222 (C.D.Cal.1971), we do not agree that reversal is required, for we cannot discern any prejudice arising from this irregularity in the case at bar. This court has previously turned aside a due process challenge against this same procedure. Buie v. United States, 420 F.2d 1207 (5th Cir. 1969).
An alleged co-conspirator, Sullivan, who had earlier pled guilty, testified as to orders of dice made by Stark on May 17, several weeks before the date the conspiracy allegedly began. Sullivan was the owner of the dice manufacturing company. He identified the order forms for the May 17 transaction, but he did not prepare them. Appellants argue first that his testimony was hearsay, but this is without merit because the order forms and the testimony concerning them properly qualified under the business records exception, 28 U.S.C.A. § 1732 (1966). Sullivan was the custodian of the records, and he testified that the forms were prepared in the regular course of business. See Gilstrap v. United States, 389 F.2d 6, 10 (5th Cir. 1968).
Next the appellants contend that since the event took place prior to the date of the alleged commencement of the conspiracy the testimony was inadmissible on the ground that it was evidence of another crime. In United States v. Johnson, 453 F.2d 1195 (5th Cir. 1972), we delineated the exceptions to the general rule that evidence of other crimes are not admissible. We hold that the proof evinced a consistent pattern or scheme and was thus admissible. See also Gilstrap v. United States, supra, 389 F.2d at 9.
Finally as to this evidence, the appellants complain that the testimony of the alleged co-conspirator, Sullivan, should not have been admitted because the Government did not first present proof that a conspiracy actually existed. The rule that the appellants cite, however, is only applicable to the admission of the extrajudicial statements of co-conspirators, not their in-court testimony. See Orser v. United States, 362 F.2d 580, 585-586 (5th Cir. 1966).
There were three elements of a violation of Section 19523 to be proven in this...
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