United States v. Partin

• Decision Date: 05 June 1974
• Docket Number: No. 73-2295.,73-2295.
• Citation: 493 F.2d 750
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Edward Grady PARTIN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

493 F.2d 750 (1974)

UNITED STATES of America, Plaintiff-Appellee, v. Edward Grady PARTIN, Defendant-Appellant.

No. 73-2295.

United States Court of Appeals, Fifth Circuit.

May 6, 1974.

Rehearing Denied June 5, 1974.

COPYRIGHT MATERIAL OMITTED

William H. Jeffress, Jr., Washington, D. C., for defendant-appellant.

John W. Stokes, Jr., U. S. Atty., Atlanta, Ga., Howard E. Shapiro, Bruce B. Wilson, U. S. Dept. of Justice, Washington, D. C., for plaintiff-appellee.

Before COLEMAN, AINSWORTH and GEE, Circuit Judges.

COLEMAN, Circuit Judge:

On a change of venue to the Northern District of Georgia, a jury convicted Edward Grady Partin of conspiracy to violate the Hobbs Act, 18 U.S.C., § 1951, interfering with interstate commerce by threats or violence. Partin has appealed. After prolonged, painstaking analysis and reflection, we are constrained to hold that the conviction must be reversed and remanded despite the fact that the case, along with others intimately connected with it, has been around for a long time.¹

On June 20, 1969, a grand jury empanelled in the Eastern District of Louisiana, Baton Rouge division, returned a five count indictment against two individuals, Ted Dunham, Jr., and Edward Grady Partin, and against three corporate defendants, Dunham Concrete Products, Inc., Louisiana Ready-Mix Company, Inc., and Anderson-Dunham, Inc. Three of the five counts were for Sherman Act violations, 15 U.S.C. § 1 et seq.,² and two counts were for Hobbs Act violations, 18 U.S.C., § 1951.³

I

Originally, this case was assigned to the Chief Judge, but he reassigned it first to Judge Lansing L. Mitchell, also of the Eastern District, then to a visiting judge, Honorable William D. Murray, United States District Judge for the District of Montana.

On October 1, 1969, Partin and Dunham filed a series of motions asking for dismissal of the indictment or for a change of venue. In his motion to dismiss Partin claimed that by virtue of his testimony under subpoena before a grand jury in Nashville, Tennessee, and because of his deposition testimony in a private antitrust suit prior to return of the indictment, he was entitled to transactional immunity, 15 U.S.C. § 32. Dunham also based his immunity claim on depositional testimony in the private lawsuit. A hearing was held on the motions, and in a written opinion by Judge Murray they were denied. The defendants were granted a change of venue to the New Orleans Division, with a severance for Partin. From the adverse ruling on the motion to dismiss, Partin took an immediate appeal to this Court, which was dismissed for want of jurisdiction, 28 U.S.C. § 1291, United States v. Partin, 5 Cir., 1970, 432 F.2d 556. On December 4, 1970, Judge Murray transferred Partin's case to the District of Montana, Butte Division.

Partin's trial on all five counts began in Butte on June 14, 1971. After twenty-four days in trial, the jury reported that it was hopelessly deadlocked on all counts, and a mistrial was declared. The Court immediately set the case for retrial in November of that year. In August, the case was reassigned to Judge James F. Battin, of the District of Montana, and was transferred to the Billings Division.

Thereafter, upon motion by the defendant and with the agreement of the government, Judge Battin granted a change of venue to Atlanta, Georgia, for the convenience of witnesses and counsel. Partin's second trial, again on all five counts, began in Atlanta on January 31, 1972. At the close of the government's case, Judge Battin dismissed Count 4 and took under advisement defendant's motion for a mistrial as to the other counts. After eighteen days in trial and two days of deliberation, the jury returned a verdict of guilty on the four remaining counts.

In an opinion and order dated March 24, 1972, Judge Battin granted the defendant's motion for a judgment of acquittal notwithstanding the verdict on Counts 1, 2, and 3 for the reason that the evidence was insufficient to sustain convictions under these counts. This left only Count 5 of the original indictment.⁴ The Court granted the defendant's motion for a new trial on that Count because the testimony admitted to prove Count 4 had been so prejudicial that its effect could not have been cured by an instruction to the jury to disregard it.

On June 26, 1972, Judge Battin entered an order stating that Judge Manuel L. Real of the Central District of California had accepted assignment of the case. Judge Real presided over the trial now under review.

Statement of the Facts Concerning the Hobbs Act Violation

Stated in the light most favorable to the verdict

In January, 1968, W. O. Bergeron, the owner and president of a construction company bearing his name, was awarded a street improvement contract at the Jumonville Subdivision in Plaquemine, Louisiana. Prior to this time, Bergeron had purchased his pipe solely from Anderson-Dunham Company, the largest producer of concrete pipe in the Baton Rouge area; but in an effort to diversify his suppliers, he decided to divide his orders equally between Dunham and its only competitor, Stevens Concrete Pipe and Products, Inc. Dunham, through its president, Ted Dunham, Jr., decided that it did not like the competitive market and that something had to be done about Stevens. Ted Dunham decided to enlist the aid of a longtime friend, Edward Grady Partin. Partin, the business manager of the Teamsters Local No. 5 in Baton Rouge, was in an excellent position to influence contractors in the area by simply calling a strike or sending a group of visitors to try persuading an employer to act differently. This latter course of action was taken in an effort to persuade Bergeron to revert to his former purchasing methods.

Dunham discovered Bergeron's change in practice when he sent one of his salesmen, Billy Rogers, by the worksite to determine if anything was needed. Before entering Bergeron's premises, Rogers noticed that Stevens had already delivered several loads of pipe. He immediately returned to Baton Rouge and informed Dunham of his observations. Becoming highly perturbed, Dunham called Partin and demanded action.

McClanahan, Partin, and another teamster first drove to Plaquemine and visited with the sheriff for approximately twenty minutes. Upon their return to the union hall, Partin ordered McClanahan to effect a "shut down" at Bergeron's site. This was accomplished, and Bergeron was forced to cut short his work day. Later that night McClanahan, Partin, and Dunham again returned to Plaquemine and the sheriff's office. Later, there was talk that no matter what happened at the Bergeron site there would be no interference by the police.

The next day McClanahan and an associate returned to the site. Without identifying himself, or justifying his presence, McClanahan warned Bergeron not to go to work and threatened to return with enough men to effect another shut down. His words fell upon deaf ears.

In an effort to determine what their next course of action would be, McClanahan consulted Partin by telephone. Directing him to return to the union hall, Partin stated that he would gather enough men in the interim to teach Bergeron a lesson. Upon his return, Partin instructed McClanahan to take a machine gun with him to "shoot up" Bergeron's equipment. This course of action was abandoned on advice of Partin's counsel not the one here and shotguns were chosen instead. Accompanied by thirty or forty men armed with bats and chains, McClanahan returned to the site and "put a beating on Bergeron and his employees". During the fracas, Bergeron, his brother, and his sixty-three year old father were hit by shotgun pellets. For his leadership in this incident, McClanahan received $1,000 in cash from Partin and he also received two years in the penitentiary from the State of Louisiana. As will later be seen, McClanahan did not serve that sentence at Angola.

Along with evidence establishing the corpus delicti, the government was also allowed to present evidence to show that Partin had received over $21,000 from Dunham and that he aided Dunham in another effort quite similar to the incident at bar.

The foregoing evidence on behalf of the government, if believed by the jury, reflects a highly calloused contempt for the law and an equal disrespect for the rights of others. It is such that no court could, or would, condone. Yet, the law guarantees those accused of the most reprehensible behaviour a fair trial according to law. The question in this appeal is whether Partin had such a trial.

II

We consider it necessary to discuss only four of the assignments of error, as follows:

A. Did the defendant receive transactional immunity from prosecution for the Hobbs Act violation pursuant to former 15 U.S.C. § 32 by virtue of his testimony under subpoena before a Nashville, Tennessee, grand jury?

B. Was the defendant entitled to introduce evidence as to the total sums paid by the government to Rogers and McClanahan as material witnesses?

C. Was the defendant erroneously denied instructions as to the testimony of impeached witnesses?

D. Was the defendant entitled to introduce evidence either by cross-examination or collateral witnesses to show Rogers\' past mental condition ?

A. Immunity

Collaterally to the Hobbs Act violation, Partin was still embroiled in the Hoffa case. In 1964, James Hoffa, President of the International Brotherhood of Teamsters, and others were tried and convicted for endeavoring to bribe members of a jury trying Hoffa for violating the Taft-Hartley Act. "A substantial element in the Government's proof that led to the convictions of Hoffa and other defendants was contributed by a witness named Edward Partin, who testified to several incriminating statements which he said petitioners Hoffa and King had made in his presence during the course of the Test Fleet trial the trial of the Taft-Hartley Act charge", Hoffa v. United States, 385 U.S. 293, 295, 87 S.Ct. 408, 410, 17 L.Ed.2d 374.

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