2d 1133
12 Fed. R. Evid. Serv. 882
Appeal from the United States District Court for the Northern District of
Georgia.
Before HILL and ANDERSON, Circuit Judges, and LYNNE,* District Judge.
LYNNE, District Judge:
In the fall of 1978, Vincz entered the picture. Carlin claimed to have sent a
proposal to Vincz in which he offered to sell his Australian holdings for sixteen
million dollars. In turn, Vincz advised Carlin that he had learned from his
contacts in that firm that Brown & Root was interested in purchasing his
interest. As he delivered each of the five checks, Vincz reiterated Brown &
Root's continuing interest and represented that such checks were to be credited
upon the purchase price when agreed upon.4 Out of the proceeds of the five
checks, Vincz received in excess of $275,000, purportedly as a finder's fee.
Appellant's contention that the trial court erred in denying the challenges of
jurors Bullock and Dickey "for cause" is predicated entirely upon their
responses to questions asked during voir dire of the jury panel.5 The statutory
disqualifications of jurors in the federal system appear in 28 U.S.C. Sec.
1865(b). The suggestion that these two jurors should have been disqualified
pursuant to 28 U.S.C. Sec. 1865(b)(4) is unsupported by the record and is
patently frivolous.
12
During the trial, Appellant called Gumell, Griffin and Vincz as witnesses. Upon
questioning by the court outside the presence of the jury, each stated that, upon
advice of retained counsel, he would claim his Fifth Amendment privilege.
Thereupon, without having conducted an in camera inquiry about the validity
or scope of such claims, the court called each of them to the stand and asked
each of them if he would answer any questions. When each responded in the
negative, he was dismissed. Appellant's claim of error is predicated upon the
trial court's failure to follow the teaching of United States v. Goodwin, 625
F.2d 693, 700 (5th Cir.1980). On its facts, the case sub judice is clearly
distinguishable.
14
In Hoffman v. United States, 341 U.S. 479, 486-487, 71 S.Ct. 814, 818-819, 95
L.Ed. 1118 (1951), the Supreme Court explained that:
15 sustain the privilege, it need only be evident from the implications of the
To
question, in the setting in which it is asked, that a responsive answer to the question
or an explanation of why it cannot be answered might be dangerous because
injurious disclosure could result. The trial judge in appraising the claim "must be
governed as much by his personal perception of the peculiarities of the case as by
the facts actually in evidence." [Citations omitted].
16
It is obvious from the facts on the record 8 that each of these witnesses had
legitimate grounds for asserting his privilege against self-incrimination. Since
the facts actually in evidence established that Gummell, Vincz, and Griffin had
some connection with the stolen checks, the trial judge properly assumed that
they were at least vulnerable to criminal charges related thereto. He did not
abuse his wide discretion in sustaining the privileges. United States v. Melchor
Moreno, 536 F.2d 1042, 1050 (5th Cir.1976).
18
conflicting policy arguments, that district courts may not grant immunity to
defense witnesses simply because that witness has essential exculpatory
information unavailable from other sources. Id. at 639.
19
21
Since the trial court made no explicit finding as to the existence vel non of such
circumstances, we have carefully reviewed the record, United States v.
Thomas, 571 F.2d 285, 290 (5th Cir.1978), which reveals no corroborating
circumstances remotely indicating the trustworthiness of the statement. There
was no error in its exclusion.
22
The remaining issues require little discussion. After Carlin testified on direct
examination that in 1978 he applied for two used car dealer licenses and
introduced such licenses into evidence, the prosecution, over his timely
objection, was permitted to cross-examine him as to the truthfulness of his
answer on his verified application therefor that he had not been convicted of a
felony. In this ruling we find no abuse of discretion. Rule 608(b)(1), Federal
Rules of Evidence (28 U.S.C.).
23
24
AFFIRMED.
Honorable Seybourn H. Lynne, U.S. District Judge for the Northern District of
Alabama, sitting by designation
Although Carlin insisted that it was opened as a business account for his timber
business, there was no activity in such account until January 25, 1979
208P stated on its face that it was issued for a period of four years commencing
June 1, 1973
....
MR. DICKEY: Like I say, I honestly don't think I could keep my mind entirely
on the case.
MR. LUDWICK: You feel, Mr. Dickey, if it went past Friday emotionally your
mind would be elsewhere to the point where you could not listen to whatever
evidence came after that point to deliberate....
MR. DICKEY: I am afraid so.
....
MR. LUDWICK: I know you have a work obligation. Is it such your mind
would be distracted that you would not give the attention-MR. BULLOCK: As long as the company doesn't care, if the problem comes
up, I have a problem. If it doesn't come up, I don't know.
MR. LUDWICK: ... if a problem comes up with the company and you were in
the jury room deliberating you might rush your verdict more than normal in
order to get out earlier....
MR. BULLOCK: Yes. I would want you guys to hurry up.
6
MR. LUDWICK: Is there anybody who is not willing to accept the Court's
instructions that you have to wait until all the evidence is in and deliberate with
the other jurors before you reach a conclusion?
In sustaining the claim of privilege, the court had before it the following
severely capsulated facts:
Each of the five checks involved appeared to bear the signatures of D.L.
Dickey and Jay A. Griffin. There was testimony that Dickey's signature was a
forgery and that Griffin had signed at least three of the checks
The five stolen checks were drawn on an account for which the Corpus Christi
office of Brown & Root had responsibility. Griffin worked in that office
3
Counsel for Carlin proferred that, if immunized, Griffin would testify that he
did not know and had never even heard of Carlin; that Gummell would testify
that he had neither heard of nor spoken with Carlin, and that Vincz would
testify that Carlin was unaware of any wrongdoing and was led to believe he
was involved in a legitimate transaction with Brown & Root
10
11
knew was that the checks were in response to an agreement by Brown & Root
to work such well, and that Carlin asked him on several occasions after that
whether he was going to receive a contract from Brown & Root
12