United States v. Gene R. "Moon" Mullins

22 F.3d 1365, 1994 U.S. App. LEXIS 9326, 1994 WL 158482
CourtCourt of Appeals for the Sixth Circuit
DecidedMay 2, 1994
Docket92-2228
StatusPublished
Cited by100 cases

This text of 22 F.3d 1365 (United States v. Gene R. "Moon" Mullins) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Gene R. "Moon" Mullins, 22 F.3d 1365, 1994 U.S. App. LEXIS 9326, 1994 WL 158482 (6th Cir. 1994).

Opinions

SUHRHEINRICH, Circuit Judge, delivered the opinion of the court, in which ENGEL, Senior Circuit Judge, joined. JONES, Circuit Judge (pp. 1374-76), delivered a separate concurring opinion.

SUHRHEINRICH, Circuit Judge.

Defendant Mullins was convicted on one count of conspiracy to obstruct justice in violation of 18 U.S.C. §§ 371, 1503, and 1512, two counts of tampering with witnesses in violation of 18 U.S.C. § 1512(b)(2)(B), and three counts of obstruction of justice in violation of 18 U.S.C. § 1503, arising out of his interference with a federal grand jury investigation involving the aviation section of the Detroit Police Department. Mullins filed a timely notice of appeal and challenges these convictions on numerous procedural and substantive grounds. For the reason stated below, we AFFIRM.

I.

In 1990, a grand jury in the Eastern District of Michigan conducted an investigation into the use of the Detroit Police Department (DPD) “secret service fund.” As part of its investigation, the grand jury issued subpoenas for the production of the flight logs of certain DPD officers assigned to the department’s aviation section. Among the logbooks subpoenaed were those kept by defendant Mullins.

After the subpoenas were served, Mullins instructed various aviation section officers to alter their logs before producing them in order to delete any references to questionable destinations such as Las Vegas and Atlantic City. Mullins also altered his own logs and those of at least one other aviation section officer. After the logs were turned over, an aviation section officer informed the government of these alterations and deletions. A second grand jury issued a second set of subpoenas to compel the testimony of the aviation section officers whose logs had been altered.

On October 23,1991, the grand jury indicted Officer Mullins and Commander Dabrow-ski, head of the aviation section, for conspiring to obstruct justice, obstructing justice, and tampering with witnesses and documents. Dabrowski pleaded guilty to the conspiracy charge and agreed to testify for the government in return for the government’s recommendation that he not be sentenced to imprisonment. The prosecution against Mullins proceeded to trial and the jury found him guilty on six of the ten counts against him. The district court sentenced Mullins to a term of twenty-seven months in prison for each of the six convictions, but ordered .these sentences to run concurrently.

II.

A. Sufficiency of the Evidence

Mullins first asserts that, as to the charges of conspiring to obstruct justice (Count I) and obstructing justice by inducing Officer Belk to alter his flight log (Count V), the [1368]*1368evidence was insufficient as a matter of law. We disagree.

1. Conspiracy

To convict Mullins of a conspiracy under 18 U.S.C. § 371, the government was required to prove (1) that there was an agreement whose object was to obstruct justice, (2) that Mullins knowingly and voluntarily joined in this agreement, and (3) that at least one overt act was committed in furtherance of the object of the agreement. United States v. Meyers, 646 F.2d 1142, 1143-44 (6th Cir.1981). Twenty-six overt acts were alleged, including four instances in which Mullins altered his own logbook, four instances in which Mullins altered the logbooks of others, and thirteen instances in which Mullins directed others to alter their logbooks.

The government’s evidence showed that when the grand jury subpoenas arrived, Dabrowski bought a new logbook and transcribed entries from Mullins’ log into it. Both Mullins and Dabrowski inspected the logbooks of other officers and, on several occasions, Mullins directed the officers to make changes to their records. One officer testified that he went over his logbook with Mullins “five or six times” as the two of them decided “what to do.” Another testified that Mullins told him to “correct” his log and then take it to Dabrowski for review. From these facts, it may reasonably be inferred that Mullins, Dabrowski and others were acting pursuant to an agreed objective of preventing certain information from reaching the grand jury.

Mullins argues that, because Dabrowski testified that Mullins did not instruct him to alter his logbook and that he made the alterations without Mullins’ knowledge, this conclusively established that the two had no “agreement”, to obstruct justice. Mullins’ argument is unpersuasive. Even though a juror might have concluded, based on that portion of Dabrowski’s testimony, that there was no conspiracy between Mullins and Da-browski, that is not the issue. The issue is limited to whether, in light of this testimony, no reasonable juror could find, beyond a reasonable doubt, the existence of the conspiracy charged in this case. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). We hold that this testimony, while it might support an acquittal, does not require one. This point is denied.

2. Obstruction

Mullins insists that he cannot be convicted under Count V of the indictment because that count requires proof that he “did aid and abet .another” in obstructing justice “by aiding, inducing or procuring the creation by [another officer] of false and fraudulent entries in [that officer’s] pilot logbook.” Mullins contends there was no proof, direct or circumstantial, of his having “aided or abetted” Dabrowski in committing an obstruction of justice.

Mullins’ argument is misdirected. The crime charged, as the second portion quoted makes clear, is obstruction of justice through inducing a particular officer to change records in that officer’s flight log. The officer whose logbook is the focus of Count V testified that Mullins told him to alter his logbook and to take it to Dabrowski for Dabrowski to see. Thus, the evidence was sufficient to permit a finding of guilty on Count V.

The government pleaded the count in terms of accessorial principles, perhaps because it was difficult to tell — as between Mullins and Dabrowski — who was the principal and who the accessory. It is axiomatic, however, that the government may always prove the defendant is guilty as a principal, even where the indictment charges only that he acted as an accessory. United States v. Garcia-Nunez, 709 F.2d 559, 562 (9th Cir.1983) (citing United States v. Bryan, 483 F.2d 88, 95-97 (3rd Cir.1973)). Thus, the government’s use of accessorial liability phrasing in Count V did not preclude it from showing, as it did, that Mullins was guilty as a principal.

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Bluebook (online)
22 F.3d 1365, 1994 U.S. App. LEXIS 9326, 1994 WL 158482, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-gene-r-moon-mullins-ca6-1994.