United States v. Harris

409 F.2d 77
CourtCourt of Appeals for the Fourth Circuit
DecidedApril 8, 1969
DocketNos. 10818, 10832, 10862, 10863, 10864, 10894, 10895, 10896
StatusPublished
Cited by29 cases

This text of 409 F.2d 77 (United States v. Harris) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fourth 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. Harris, 409 F.2d 77 (4th Cir. 1969).

Opinion

BUTZNER, Circuit Judge:

The appellants, assigning numerous grounds of error, challenge their convictions for conspiracy and theft of government property from the United States Naval Base at Charleston, South Carolina. We find no reversible error and affirm the judgments of the district court.

The thefts began about 1959 and continued until November 1964. Property valued in excess of $1,000,000 was removed from the base in truckload lots for sale to codefendants who maintained places of business in California, Louisiana, Florida, and South Carolina. The crime commenced in a small way when a civilian employee stole metal and sold it to a fence, who urged the thief to steal marine diesel parts. The thief lent money to the director of storage at the base and then persuaded the director to transfer him to the main diesel parts warehouse. The debt was forgiven, the conspiracy blossomed, and soon a confederation of civilian employees, naval personnel, commercial truck drivers, and dealers .in marine parts began their systematic looting of the naval base. Every precaution was taken to avoid detection. Invoices were destroyed, bills of lading were forged, transportation was scheduled at times when the loading of trucks was less likely to be observed, and if the occasion demanded, the cooperative director of storage could be bribed to “call a meeting” to decoy honest employees from the scene of criminal .activity.

[80]*80Initially, the diesel parts were removed from the base in a government truck driven by a navy enlisted man. When this became impractical, an employee of a commercial truck line was engaged to use his company’s tractor trailer units to transport the government’s property from the main diesel parts warehouse. In time, the thieves feared that frequent appearance of commercial trucks at the warehouse would attract suspicion, so pallet loads of diesel parts were transported by government vehicles to a boiler shop where they were accumulated for removal from the base by commercial truck. So smoothly was this operation run that the boiler shop became a depot for dispatching property stolen from other areas in the base. The conspiracy ended November 4, 1964 when F.B.I. agents intercepted a shipment of stolen goods valued at $118,000 en route to Miami, Florida.

The first count of the indictment charged the appellants, along with 18 other persons, with violating the general conspiracy statute, 18 U.S.C. § 371, by the theft and interstate transportation of government property. It alleged the commission of 274 overt acts in furtherance of the conspiracy. Twelve substantive counts charged various defendants with receiving stolen goods, theft, or aiding and abetting others to steal, in violation of 18 U.S.C. §§ 2 and 641.1 A number of the appellants have assigned the same grounds of error. Joint consideration of these issues, therefore, will be convenient. In other instances the assigned error relates only to individual appellants and must be considered separately.

I.

The appellants complain that the district judge erroneously denied a pretrial motion for the production of all statements and documents in the possession of the United States Attorney and the F.B.I. that were material to their guilt or innocence and to the degree of punishment.2 The district judge, believing that strict compliance with the Jencks Act [18 U.S.C. § 3500] would adequately protect the accused, denied pretrial discovery. The appellants rely upon Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), where the prosecution’s suppression of a codefendant’s statement favorable to an accused was held to violate due process. Brady, however, is inapplicable. The United States Attorney has categorically stated that he knows of no information that could aid the defendants, and counsel fqr the appellants do not charge in their briefs that favorable evidence was suppressed. We previously have held that Brady does not require the trial court to make an in camera search of the government files [81]*81for evidence favorable to the accused, United States v. Frazier, 394 F.2d 258, 262 (4th Cir. 1968), and other courts have ruled that Brady does not require pretrial discovery. Archer v. United States, 393 F.2d 124, 126 (5th Cir. 1968); United States v. Turner, 274 F.Supp. 412, 417 (E.D.Tenn.1967); United States v. Gleason, 265 F.Supp. 880, 883 (S.D.N.Y.1967).

Statements of every government witness were made available immediately after direct examination in accordance with the requirements of the Jencks Act, and the appellants have cited no specific instance where production of documents under the statute, in lieu of pretrial discovery, resulted in prejudice. We find no abuse of the discretion allowed the district judge under Rule 16 of the Federal Rules of Criminal Procedure.

II.

The appellants also assign error to denial of their pretrial motion to sequester four witnesses, three of whom were codefendants who had pleaded guilty, and the fourth, a conspirator who was not indicted.3 The sequestration of witnesses, long practiced in English and United States courts, rests within the sound discretion of the trial judge, Taylor v. United States, 388 F.2d 786, 788 (9th Cir. 1967); Milanovich v. United States, 275 F.2d 716, 720 (4th Cir. 1960), rev’d on other grounds, 365 U.S. 551, 81 S.Ct. 728, 5 L.Ed.2d 773 (1961); 6 Wigmore, Evidence § 1837 (3d ed. 1940), and his ruling will not be reversed “in the absence of manifest prejudice resulting from the presence of witnesses during the trial of the case.” Mitchell v. United States, 126 F.2d 550, 553 (10th Cir. 1942). The district judge, mindful that sequestration should not be lightly denied, heard extensive argument on the motion. The principal reason for initially denying sequestration was to allow defendants who had pleaded guilty to hear evidence that might bear upon their punishment. A separate hearing on the pleas of guilty, however, could have accomplished the same result. Upon review, therefore, we deem it more important that the record discloses no prejudice to the defendants on trial. The appellants have been unable to cite any instance of a witness being influenced by the testimony of another.

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