United States v. Muncy

• Decision Date: 17 February 1976
• Docket Number: No. 75-1900.,75-1900.
• Citation: 526 F.2d 1261
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Robert Gene MUNCY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

526 F.2d 1261

UNITED STATES of America, Plaintiff-Appellee, v. Robert Gene MUNCY, Defendant-Appellant.

No. 75-1900.

United States Court of Appeals, Fifth Circuit.

February 17, 1976.

William J. Schloth, Columbus, Ga., for Robert Gene Muncy.

Ronald T. Knight, U.S. Atty., Charles T. Erion, Asst. U.S. Atty., Macon, Ga., for plaintiff-appellee.

Before COLEMAN and INGRAHAM, Circuit Judges, and O'KELLEY, District Judge.

O'KELLEY, District Judge:

Robert Gene Muncy, the appellant, was convicted of conspiracy to transport stolen goods in interstate transportation and concealing and storing certain stolen beef which was a part of interstate commerce in violation of 18 U.S.C. §§ 371, 2315. This appeal from the jury verdict raises four grounds of error. The appellant complains of the refusal to grant a motion for change of venue, of the refusal to allow a collateral attack on the testimony of a government witness, of the failure of the court to charge more strongly for the defense on the weight of the testimony of a coconspirator or accomplice, and of the court's charge that the defendant need not have knowledge that the stolen property was moving in interstate commerce. Upon review of the case, we affirm the trial court.

The appellant was the president of a chain of grocery stores which had filed a bankruptcy action in the division of the court where these criminal charges were pending. Many employees and creditors of the company lost money in the bankruptcy proceedings, and there had been substantial publicity concerning the bankruptcy proceedings. The appellant contended that he could not receive a fair trial in that division of the court and requested a change of venue so that trial would be held in another division of the district. The motion was denied.

The trial court has wide discretion in regard to granting or denying motions for change of venue, and, absent an abuse of discretion, the trial court's ruling should not be upset. United States v. Noland, 495 F.2d 529 (5th Cir. 1974); United States v. Thaggard, 477 F.2d 626 (5th Cir.), cert. denied, 414 U.S. 1064, 94 S.Ct. 570, 38 L.Ed.2d 469 (1973); United States v. Nix, 465 F.2d 90 (5th Cir.), cert. denied, 409 U.S. 1013, 93 S.Ct. 455, 34 L.Ed.2d 307 (1972).

In an attack on the verdict based on pretrial publicity, it is necessary that the defendant show that community prejudice actually invaded the jury box. Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961).

Here it is conceded that no juror served who was prejudiced in the manner complained of by defendant. Only one employee of a creditor of the bankrupt company was on the jury panel, and he was stricken. The trial court allowed the defendant extra strikes. Thus, the defendant has not shown that any community prejudice entered the jury box.

The appellant claims error in the trial court's refusal to allow the collateral impeachment of a government witness by showing that he had been discharged from his employment at the police department rather than resigning as he had testified. There was no offer of proof of the evidence as required by rule 103, Federal Rules of Evidence. Thus, this court cannot determine the effect of the exclusion of the evidence since the attorneys dispute these facts. While it would appear that the trial court's ruling was not error, this court does not have to pass on that issue since the record is inadequate to show what the excluded evidence would have been.

The appellant complains that the trial court did not charge the jury strongly enough concerning the testimony of an accomplice. The appellant did not request a different charge on this principle of law, nor did he object to the charge as given before the jury deliberated.

The court charged that:

An accomplice does not become incompetent as a witness because of participation in the criminal act charged. On the contrary, the testimony of an accomplice alone, if believed by you, may be of sufficient weight to sustain a verdict of guilty even though it is not corroborated or supported by other evidence. However, the jury should keep in mind that such testimony is to be received with caution and weighed with care, and you should not convict a defendant upon the unsupported testimony of an accomplice unless you believe the unsupported testimony beyond a reasonable doubt.

This charge is a correct principle of law and, thus, is not plain error. In absence of a request to charge differently or in the absence of a timely objection to the charge given, there is no error. United States v. Rogers, 465 F.2d 996 (5th Cir. 1972); United States v. Rodriguez, 498 F.2d 302 (5th Cir. 1974); United States v. Smith, 502 F.2d 1250 (5th Cir. 1974).

Lastly, the appellant claims error in that the trial court charged that knowledge that the...