United States v. Mulherin

Decision Date10 December 1981
Docket NumberCr. A. No. CR181-26,CR181-37.
Citation529 F. Supp. 916
PartiesUNITED STATES of America v. Anthony T. MULHERIN, Jr., Harvey Eugene Hornsby, Robert A. Holliday.
CourtU.S. District Court — Southern District of Georgia

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Bernard McLendon, Jacksonville, Fla., for plaintiff.

R. Jackson B. Smith, Jr., Augusta, Ga., for Mulherin.

Thomas W. Tucker, Augusta, Ga., for Hornsby.

John B. Long, Augusta, Ga., for Holliday.

ORDER

BOWEN, District Judge.

Following a lengthy trial in the above-captioned criminal cases, the jury returned the following verdicts with respect to the above-named defendants on October 3, 1981: (1) defendant Robert A. Holliday was found not guilty of the charge alleged against him in Count One of indictment number 181-26 and was found not guilty of the charges alleged against him in Counts One, Two, Five and Six of indictment number 181-37; (2) defendant Harvey E. Hornsby was found not guilty of the charge alleged against him in Count One of indictment 181-26 and was found not guilty of the charges alleged against him in Counts One, Two, Five, Six, Nine and Ten of indictment number 181-37; and (3) defendant Anthony T. Mulherin, Jr. was found not guilty of the charges alleged against him in Counts Five, Six and Seven of indictment number 181-37. All remaining defendants were acquitted.

The jury was unable to reach a verdict on several of the counts as to defendants Anthony T. Mulherin, Jr., Harvey E. Hornsby and Robert A. Holliday and the Court declared a mistrial: (1) on Counts One, Two, Three, Four and Five of indictment number 181-26 and Counts Eight, Nine and Ten of indictment number 181-37 as to defendant Anthony T. Mulherin, Jr.; (2) on Counts Two, Three, Four and Five of indictment number 181-26 and Counts Seven and Eight of indictment number 181-37 as to defendant Harvey E. Hornsby; and (3) on Count Two of indictment number 181-26 and Counts Three, Four, Seven and Eight of indictment number 181-37 as to defendant Robert A. Holliday. These defendants have been set for retrial. Fed.R.Crim.P. 31(b).

The case is presently before the Court on the following post-trial motions filed on behalf of defendants Anthony T. Mulherin, Jr., Robert A. Holliday and Harvey E. Hornsby:

1. Motion for judgment of acquittal notwithstanding the mistrial, with supplemental brief.

2. Motion to reconsider order on motion to dismiss for failure of the government to comply with the Speedy Trial Act and motion to dismiss because of governmental vindictiveness.

3. Motion for reconsideration of the Court's orders on (a) motion to dismiss indictments because of governmental misconduct, (b) motion to dismiss indictments against defendants for prosecutorial misconduct before the grand jury based on the failure of the government to disclose to the grand juries exculpatory material and (c) motion to require copies of the grand juries' minutes to be transcribed, produced for the defendants and made a part of the record.

4. Motion for additional discovery and supplemental motion for additional discovery. These discovery motions will be considered by separate order.

Several of these motions share common grounds and, for organizational purposes of this order, the Court will consider the motions according to the grounds asserted rather than the particular title of a motion. The substantive motions may be categorized into a single group, having a varied subset of supportive arguments and claims:

Motion for judgment of acquittal, or, in the alternative for dismissal of one or both of the indictments
GROUNDS:
1. Verdicts returned by the jury are inconsistent and repugnant to any alleged guilt of defendants on the remaining charges.
2. Renewal of motion for judgment of acquittal made at the close of the government's cases and at the conclusion of trial.
3. Speedy Trial Act violation in bringing indictment number 181-37.
4. Governmental vindictiveness in bringing indictment number 181-37.
5. Prosecutorial misconduct before the grand jury.
6. Governmental misconduct (due process violation — entrapment as a matter of law).
7. Double jeopardy violation on the following bases:
(a) Counts One and Two of indictment number 181-26 charge a "unified conspiracy."
(b) Collateral estoppel.
(c) Prosecutorial misconduct.

"INCONSISTENT VERDICTS"

Defendants Anthony T. Mulherin, Jr., Robert A. Holliday and Harvey E. Hornsby seek judgment of acquittal notwithstanding the mistrial on the basis that the not guilty verdicts returned by the jury are "inconsistent and repugnant" to any alleged guilt of the defendants. In sum, defendants argue that, since they admitted the underlying acts alleged in the indictments and relied solely on the defense of entrapment, the acquittals evidence a jury finding of entrapment and thereby render inconsistent the remaining allegations of guilt.

This argument is grounded on the erroneous premise that jury verdicts returned in a multicount-multidefendant criminal trial must evince an intrinsic consistency. The rule of law is well settled to the contrary — that, "while symmetry of result may be intellectually satisfying," Standefer v. United States, 447 U.S. 10, 25, 100 S.Ct. 1999, 2008, 64 L.Ed.2d 689 (1980), consistency in criminal verdicts is not required. United States v. Fuiman, 546 F.2d 1155, 1157 (5th Cir. 1977) cert. denied 434 U.S. 856, 98 S.Ct. 176, 54 L.Ed.2d 127 (citing Dunn v. United States, 284 U.S. 390, 393, 52 S.Ct. 189, 190, 76 L.Ed. 356 (1932)); see United States v. Bottom, 638 F.2d 781, 784 (5th Cir. 1981). As recently noted by the Fifth Circuit, criminal juries "are free to render `not guilty' verdicts resulting from compromise, confusion, mistake, leniency or other legally and logically irrelevant factors." United States v. Espinosa-Cerpa, 630 F.2d 328, 332 (5th Cir. 1980). While somewhat "discomforting," see Standefer, 447 U.S. at 25, 100 S.Ct. at 2008, it is clear that "`juries may indulge in precisely such motives or vagaries'." United States v. Cargo Service Stations, Inc., 657 F.2d 676, 684 (5th Cir. 1981) quoting United States v. Dotterweich, 320 U.S. 277, 279, 64 S.Ct. 134, 135, 88 L.Ed. 48 (1943).

Given the wide latitude accorded criminal juries in deriving verdicts of not guilty, it is apparent that "an acquittal is not to be taken as the equivalent of a finding of the fact of innocence; nor does it necessarily even reflect a failure of proof on the part of the prosecution." United States v. Espinosa-Cerpa, 630 F.2d at 332; see generally United States v. Benton, 637 F.2d 1052, 1058 (5th Cir. 1981). In this case, therefore, it is by no means a certainty that, in reaching its verdict of "not guilty" on various of the counts against defendants Anthony T. Mulherin, Jr., Holliday and Hornsby, the jury concluded that these defendants were victims of entrapment. To paraphrase the Espinosa-Cerpa court, supra, the jury could have premised its "not guilty" verdicts on mistake, sympathy, leniency or other logically irrelevant factors. Thus, the acquittals returned by the jury are not necessarily inconsistent with the remaining allegations of guilt against defendants. Furthermore, even if an apparent logical inconsistency existed, this would not provide a basis for attacking an otherwise valid retrial and, where adequately supported by the evidence, a conviction on the remaining counts. See United States v. Elliot, 571 F.2d 880, 887 n.5 (5th Cir.), cert. denied, 439 U.S. 953, 99 S.Ct. 349, 58 L.Ed.2d 344 (1978) (acquittal on a substantive offense does not preclude a verdict of guilty on count charging conspiracy to commit such substantive offense).

Accordingly, defendants' motions for judgment of acquittal on this basis are DENIED.

Renewal of motions for judgment of acquittal made at trial

At the close of the government's case, defendants Anthony T. Mulherin, Jr., Holliday and Hornsby, by oral motion, sought judgment of acquittal pursuant to Fed.R.Crim.P. 29(a). Following a lengthy hearing, outside the presence of the jury, the Court denied these motions. Similarly, after due consideration, the Court denied the motions at the conclusion of trial. In the present renewal of these motions, defendants make no new arguments which would cause the Court to reconsider its prior rulings.

Accordingly, the renewal of the motions for judgment of acquittal filed on behalf of defendants Anthony T. Mulherin, Jr., Harvey E. Hornsby and Robert A. Holliday are DENIED. See United States v. Becton, 632 F.2d 1294, 1295 (5th Cir. 1980) ("Judges are not to acquit unless the government has clearly failed to produce evidence supporting a conviction when viewed most favorable to the prosecution."); United States v. Herberman, 583 F.2d 222, 231 (5th Cir. 1978) ("A trial judge has a duty to grant the motion for judgment of acquittal when the evidence, viewed in the light most favorable to the government, is so scant that the jury could only speculate as to defendant's guilt."); United States v. Brown, 587 F.2d 187, 190 (5th Cir. 1979) ("It is not properly the function of the court, in ruling on a motion for judgment of acquittal, to assess the credibility of witnesses, weigh the evidence, or substitute its own judgment as to guilt or innocence for that of the jury."). See generally United States v. Burns, 597 F.2d 939, 940 (5th Cir. 1979).

"Speedy Trial Act violation in bringing indictment number 181-37"

By written order entered September 2, 1981, the Court considered at length defendants' contention that indictment number 181-37 failed to conform with the requirements of the Speedy Trial Act. 18 U.S.C. §§ 3161(b), 3162(a). The Court found that indictment number 181-37, returned on July 20, 1981, was timely under section 3161(b). Defendants' motion for reconsideration of this ruling, currently pending, presents no new arguments. Accordingly, the motion for reconsideration of the Court's ruling...

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