United States v. Register

• Decision Date: 04 September 1974
• Docket Number: No. 72-3248.,72-3248.
• Citation: 496 F.2d 1072
• Court: U.S. Court of Appeals — Fifth Circuit
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Lawrence REGISTER, Fred Hornsby and Daniel John Cochran, Defendants-Appellants.

496 F.2d 1072 (1974)

UNITED STATES of America, Plaintiff-Appellee, v. Lawrence REGISTER, Fred Hornsby and Daniel John Cochran, Defendants-Appellants.

No. 72-3248.

United States Court of Appeals, Fifth Circuit.

June 27, 1974.

Rehearing Denied September 4, 1974.

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Wesley R. Asinof, Atlanta, Ga., for Fred Hornsby.

Edward T. M. Garland, Atlanta, Ga., for Daniel John Cochran.

Theodore S. Worozbyt, Edgar A. Neely, III, Atlanta, Ga., for Lawrence Register.

John W. Stokes, U. S. Atty., Robert L. Smith, Anthony M. Arnold, Asst. U. S. Attys., Atlanta, Ga., for plaintiff-appellee.

Before BROWN, Chief Judge, and RONEY and GEE, Circuit Judges.

GEE, Circuit Judge:

Since the Court is not unanimous in its disposition of this appeal, the opinion is constructed in subparts to indicate our action more clearly. In parts A-C we agree as to the disposition of particular points of error raised and as to the affirmance of the convictions under Count Two. In parts D-E Chief Judge Brown and Judge Roney agree that the convictions under Counts Three and One must be affirmed. Judge Gee dissents from subparts D-E of the Court's opinion.¹

Appellants, Lawrence Register, Fred Hornsby and Daniel John Cochran, were indicted along with others in a three-count indictment charging (1) conspiracy to acquire, transport, and conceal marijuana in violation of 26 U.S.C. §§ 4741-4744; (2) actual importation of marijuana in violation of 21 U.S.C. § 176a; and (3) transfer of marijuana in violation of 26 U.S.C. § 4742(a).² Although some of those named in the indictment pled guilty, all three appellants pled not guilty and went to trial before a jury in the United States District Court for the Northern District of Georgia. A mistrial was declared as to Register, and he was subsequently tried separately by another jury. His fate, however, was ultimately the same as that of Hornsby and Cochran. All three appellants were found guilty on all three counts and received the same sentences: five years' imprisonment on Count One, five years on Count Two to run consecutively with Count One, and five years on Count Three to run concurrently with Count One. Each appellant complains to us that his conviction culminated numerous errors by the trial judge. After careful review of the proceedings below, the Court affirms the convictions of all the appellants on all counts.

Register, Hornsby and Cochran, along with several others, organized and funded a scheme for flying a large amount of marijuana in from Jamaica. Unfortunately for them, Gilmore Sims, the pilot recruited for the job, informed the Bureau of Narcotics and Dangerous Drugs, enabling its agents to infiltrate the conspiracy thoroughly at an early stage. As testified to by undercover agents and co-conspirators who turned state's evidence, appellants provided funds and made arrangements for Sims to fly to Jamaica, pick up approximately 3,250 pounds of marijuana, and return. When the plane touched down in Georgia carrying contraband and undercover agents, Hornsby and Register loaded the marijuana into a van in which Hornsby then departed, followed closely by Register and more distantly by narcotic agents. When Hornsby pulled off the road to talk to Register about his fears of being under surveillance, they were amply confirmed The two were arrested, the marijuana was seized, and subsequently Cochran was apprehended.

Before discussing the three counts of the indictment, we considered and dispose of some less troublesome, more particular claims of error.

A. COCHRAN

Several noteworthy evidentiary and procedural points are raised by appellant Cochran only. Each of his complaints concerning admission of evidence against him is especially important to him, since the contested bits of evidence comprise the greatest part of the government's case linking him to the conspiracy. Thus, were we to rule that any one of these critical items of evidence was improperly admitted, his contention of insufficiency of the evidence would have some validity. But as the case against him went to the jury, it is sufficient to support his conviction.

1. Telephone Conversation

Undercover agent Richel testified that, after an initial aborted run to Jamaica, he was on an extension phone when the pilot Sims called Register, asked him why the marijuana was not delivered to the Jamaican airport as planned, and said that he needed more money if they wanted him to make another trip. Richel related that Register responded that furnishing additional money was not up to him but gave Sims the name and telephone number of "the money man"—Danny Cochran, at XXX-XXX-XXXX. Richel further testified that he remained on the extension while Sims presumably dialed the number given, asked for Danny Cochran, and heard a male voice answer, "I am Danny." When Sims said that he had been referred by Register, the man identifying himself as Cochran said that he or his representative would meet Sims at the airport when the marijuana arrived and pay Sims ten thousand dollars and ten dollars a pound. No objection was made to the authentication of this voice as Cochran's, and none would have been sustainable.

On one hand, a telephone call out of the blue from one who identifies himself as X may not be, in itself, sufficient authentication of the call as in fact coming from X. On the other, courts regularly admit testimony of telephone conversations when the call is placed by the witness himself to a number listed to X and the person answering identifies himself as X. See McCormick on Evidence § 226 and cases cited therein. Our situation is much closer to the second example than to the first. All that is missing is the testimony of the one who mechanically dialed the number. There was, however, repeated evidence that telephone number XXX-XXX-XXXX was listed to Danny Cochran, we are most persuaded, as no doubt was the jury, by the fact that the one who identified himself as Danny proceeded to converse fluently in the role of "money man" as indicated by Register, and as supported by unassailable testimony by a co-conspirator who had himself placed a call to Cochran at the same number and talked to him in his capacity as "money man." Such circumstantial evidence was more than sufficient authentication to make a prima facie case that would allow the issue of identity to be decided by the jury. See Learned Hand's analysis in Van Ripper v. United States, 13 F.2d 961, 968 (2d Cir. 1926).

2. Flight

Over Cochran's strenuous objection, Miss Kim Smith, a teenage girl who was babysitting in Cochran's apartment with his eight-month-old daughter on the evening following the afternoon of the drug seizure, was permitted to testify that her telephone conversation with Cochran that evening was interrupted by a police drug raid and that, when she returned to the phone to tell Cochran of the raid of his apartment, he hung up and she had never seen him since. She further testified that, early the next morning, she took the Cochran baby home with her, where she and her mother kept the child until that afternoon, when a man came to pick her up. Kim's mother confirmed her daughter's testimony.

We acknowledge the low probative value of such ambiguous evidence of flight. See Wong Sun v. United States, 371 U.S. 471, 483-484, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). There was no direct evidence that Cochran knew of the seizure of the contraband several hours earlier. This raid, moreover, was conducted by the Georgia Bureau of Investigation on another charge. Some consciousness of guilt, however, is indicated by Cochran's failure to come home. The problem is that any sense of guilt which prompted Cochran's actions might have been unrelated to the smuggling conspiracy here charged. We believe that, properly instructed, the jury was fully capable of appreciating that fact. As counsel also points out, a danger existed that the jurors might be prejudiced against Cochran for leaving his eight-month-old daughter (although his wife talked with the babysitter the next day.) Any prejudice, however, flows from the same human emotion which makes it so unlikely that Cochran would fail to come home absent the relevant consciousness of guilt.

We still adhere to the statement in Alberty v. United States, 162 U.S. 499, 510, 16 S.Ct. 864, 40 L.Ed. 1051 (1896), which we quoted with approval in Vick v. United States, 216 F.2d 228, 232 (5th Cir. 1954):

While, undoubtedly, the flight of the accused is a circumstance proper to be laid before the jury, as having a tendency to prove his guilt, at the same time, as was observed in Ryan v. People, 79 N.Y. 593, "there are so many reasons for such conduct consistent with innocence that it scarcely comes up to the standard of evidence tending to establish guilt, but this and similar evidence has been allowed upon the theory that the jury will give it such weight as it deserves, depending upon the surrounding circumstances."

This same deference to the jury was reflected in the Ninth Circuit's holding in Shorter v. United States, 412 F.2d 428, 430 (9th Cir. 1969), that it was not necessary for the government to show that the defendant knew he was being sought for the particular offense charged.

The jury instruction did not overemphasize the relevance of Cochran's abrupt departure. To the contrary, it placed the evidence in its proper perspective. The jury was cautioned:

. . . In your consideration of the evidence of flight or concealment, you should consider that there may be reasons for this which are fully consistent with innocence—such as the fear of apprehension, unwillingness to confront the police, or other matters. And a feeling of guilt may not necessarily reflect actual guilt; but, as I say, evidence of intentional flight or concealment is a fact which, if proved, may be considered by you the jury in the light of all the other evidence of the case in determining guilt or innocence of the accused.

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