Estes v. United States

• Decision Date: 21 September 1964
• Docket Number: No. 20519.,20519.
• Parties: Billie Sol ESTES, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

335 F.2d 609 (1964)

Billie Sol ESTES, Appellant, v. UNITED STATES of America, Appellee.

No. 20519.

United States Court of Appeals Fifth Circuit.

August 10, 1964.

Rehearing Denied September 21, 1964.

COPYRIGHT MATERIAL OMITTED

John D. Cofer, Austin, Tex., John P. Dennison, Pecos, Tex., Jack T. Niland, El Paso, Tex., Hume Cofer, Cofer, Cofer & Hearne, Austin, Tex., for appellant.

Fred J. Morton, Asst. U. S. Atty., El Paso, Tex., Marshall Tamor Golding, Atty., Dept. of Justice, Washington, D. C., Ernest Morgan, U. S. Atty., Herbert J. Miller, Jr., Asst. Atty. Gen., Rufus D. McLean, Beatrice Rosenberg, Edward J. Lee, Attys., Dept. of Justice, Washington, D. C., for appellee.

Before HUTCHESON and RIVES, Circuit Judges, and GROOMS, District Judge.

GROOMS, District Judge.

Appellant, Billie Sol Estes, along with three other individuals and the Superior Manufacturing Company, a corporation, were charged in a twenty-nine count indictment returned by a grand jury of the Western District of Texas, El Paso Division, with violating Sections 1341, 2314 and 371 of Title 18, U.S.C.A., relating to mail fraud,¹ the interstate transportation of fraudulent securities,² and conspiracy to commit those offenses.³ Two of the mail fraud counts⁴ and eleven of the transportation counts⁵ were transferred to the Pecos Division of the District.

The charges against all defendants other than appellant were disposed of prior to trial on pleas of guilty.

The case against appellant went to trial by jury on sixteen counts. Counts II and X were dismissed prior to the submission of the case to the jury. Appellant was found not guilty on nine counts,⁶ but was found guilty on Counts I, VII, VIII, XIV for mail fraud, and Count XXIX for conspiracy. He was sentenced to five years each on Counts I, VIII, and XXIX for a total of fifteen years. He was also sentenced to five years each on Counts VII and XIV to run concurrently with the sentences on Counts I and VIII, respectively.

This appeal confronts us with a record of almost twenty two hundred pages covering a trial extending from March 11, to March 28, 1963. Appellant in a comprehensive attack upon the proceedings below rests for a reversal on a two hundred-page brief and a twenty-five-page supplemental brief. Appellee in a staunch defense of the regularity of the proceedings below replies with a brief of one hundred and twenty-five pages, with a forty-four page appendix. The cases, constitutional and statutory provisions, treatises, and miscellaneous, including Hawthorne's The Scarlet Letter, and Matthew's Gospel cited and relied on run into the hundreds. All of which presents us with the difficult assignment of winnowing wheat from chaff in order to determine whether there are real and substantial errors revealed by the record.

In short summary the evidence with some variation between the various transactions discloses that appellant, by himself or by agents, would approach various farmers and businessmen and persuade them to enter into conditional sales contracts, chattel mortgages and leases for the purchase or lease of specific anhydrous ammonia tanks and related equipment from the Superior Manufacturing Company of Amarillo, Texas, and the Lubbock Machine and Supply Company of Lubbock, Texas. The tanks were described by serial number on the various instruments and were to serve as collateral thereto. These tanks did not exist but were represented to those with whom appellant and his agents had their dealings as being in existence and that they would constitute such collateral. After the instruments were executed they were sold and assigned to various finance and investment companies. A substantial portion of the money disbursed by such purchasers was paid to appellant through his agents or through middlemen.

Appellant and those associated with him paid to the parties executing the instruments a sum equivalent to ten percent of the face value of the instruments to induce them to execute the paper. For the same reason they also agreed to lease back from said parties the tanks and related equipment for a term of years co-extensive with the maturity of the paper, to pay the parties the same amount of monthly payments as they were required to pay as makers, and to save them harmless from having to pay out any of their own funds in making the payments required by the instruments. In some cases the makers of the instruments executed statements that the tanks had been delivered to them.

Superior Manufacturing Company was under the domination and control of appellant and his co-defendants.

The prosecution contends that the various transactions in all their ramifications constituted a gigantic scheme and conspiracy to defraud with the use of the mails to those ends. The counts upon which a conviction was had are so couched.

More than $20,000,000.00 was involved in the purchase of Superior tank paper. Most of this is unpaid and in default.

Appellant's chief insistence is placed upon the following: that the court erred in (1) refusing to permit him to interrogate the grand jury before it returned the indictment as to bias and prejudice; (2) failing to transfer the entire cause to the Pecos Division; (3) not permitting a separate and individual examination of the jury venire; (4) refusing to postpone the trial or to transfer the same to another Division of the District; (5) refusing to permit him to interrogate the jury after the close of the evidence as to whether they had read certain alleged prejudicial news stories while they were separated; (6) giving a modified "Allen charge"; (7) submitting charges in writing in response to jurors' questions and not in open court in the presence of of the defendant; (8) charging the jury on presumed intent; (9) failing to sequester the jury; and (10) not directing a verdict, particularly with respect to the conspiracy count.

After the grand jury returned an indictment on April 5, 1962, it was reconvened on June 20, 1962. On that date appellant appeared and moved the court to permit him to exercise challenges for cause as to the individual grand jurors based upon alleged bias and prejudice which he claimed had resulted from the extensive publicity given to the case. The motion was denied. The indictment upon which he was prosecuted followed.

Criminal Rule 6(b) (1) provides that a defendant may challenge the array of grand jurors:

"* * * on the ground that the grand jury was not selected, drawn or summoned in accordance with law, and may challenge an individual juror on the ground that the juror is not legally qualified. Challenges shall be made before the administration of the oath to the jurors and shall be tried by the court."⁷ (Emphasis supplied)

The oath was administered when the jury was first impanelled. This jury had already indicted appellant for substantially the same offenses for which he was re-indicted. The superseding indictment added some new counts based upon additional instances of the same conduct and changed some of the verbiage.

Judge Holtzoff, in United States v. Knowles, D.D.C., 147 F.Supp. 19, answers concisely, and we think correctly, the contentions made by appellant, when he said:

"Challenges for bias, or for any cause other than lack of legal qualifications, are unknown as concerns grand jurors. No provision is made for peremptory challenges of grand jurors and no such challenges are permitted. Likewise no voir dire examination exists in respect to grand jurors. In other words, the status of a member of a grand jury may not be questioned except for lack of legal qualifications."

There was no specific showing of bias and prejudice by appellant resulting from the widespread publicity, and the fact alone of such publicity did not in itself constitute a sufficient showing of bias and prejudice. See Beck v. Washington, 369 U.S. 541, 82 S.Ct. 955, 8 L. Ed.2d 98.

Appellant made a timely motion under Rule 21(b) to transfer the entire indictment to the Pecos Division of the Court contending, that he was entitled to such relief under 18 U.S.C.A. § 3237(b). This motion was denied. The motion to transfer was addressed to the sound discretion of the trial court, and should not be overturned where there is no clear showing of abuse. Addison v. United States, 5 Cir., 317 F.2d 808; Greenhill v. United States, 5 Cir., 298 F.2d 405. We find no such showing. Section 3237(b) of Title 18 U.S.C.A., is without application. Under our ruling in United States v. Choate, 5 Cir., 276 F.2d 724, some counts may be transferred and not others. The specification lacks merit.

Before announcing ready for trial appellant made a motion for postponement or in the alternative for a transfer of the case for trial to the San Antonio Division of the District. This motion was grounded on alleged prejudice claimed to have been engendered by a great volume of adverse publicity given to the case by the news media in the El Paso Division. The court deferred a ruling on the motion until the jurors were examined on their voir dire then overruled the motion. From this ruling it would appear that the trial judge was of the view that nothing was shown in the voir dire examination which indicated a need for postponement or for transferring the case in order to afford the defendant a fair and impartial trial. Such matters are within the discretion of the trial judge. Rizzo v. United States, 8 Cir., 304 F.2d 810. In Greenhill v. United States, supra, where defendant moved to transfer the case to another district because of undue prejudice resulting from widespread publicity, we said:

"The decision of the trial court on such a motion will be affirmed where as here no abuse of discretion is shown, and lack of abuse of discretion is buttressed where as here there was no showing in the course of the voir dire examination that any adverse publicity had effected the ability of the jurors to reach an unprejudiced decision. Kott v. United States, 5 Cir., 1947, 163 F.2d 984,

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