Fifth Circuit Court Cases - Case Law and Opinions from the 5th Circuit Federal Court - Court of Appeals

	ROMINGER LEGAL
		Fifth Circuit Court of Appeals Opinions - 5th Circuit
					Need Legal Help?
					Need Legal Help?
LEGAL RESEARCH CENTER
LEGAL RESEARCH CENTER			LEGAL HEADLINES - CASE LAW - LEGAL FORMS	NOT FINDING WHAT YOU NEED? -CLICK HERE

This opinion or court case is from the Fifth Circuit Court or Appeals. Search our site for more cases - CLICK HERE

LEGAL RESEARCH

COURT REPORTERS

PRIVATE INVESTIGATORS

PROCESS SERVERS

DOCUMENT RETRIEVERS

EXPERT WITNESSES

Find a Private Investigator

Find an Expert Witness

Find a Process Server

Case Law - save on Lexis / WestLaw.

Legal News - Legal Headlines

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________________
No. 91-1550
__________________________
United States of America,
Plaintiff-Appellee,
versus
Karin D. Follin, John H. Stewart, Broadus V. Stewart, Jr.,
Donald L. Mason, and Christopher H. Crawford,

Defendants-Appellants.
__________________________________________________________
Appeals from the United States District Court
for the Southern District of Mississippi
__________________________________________________________
(December 3, 1992)
Before HIGGINBOTHAM and DUHE, Circuit Judges, and HARMON, District
Judge.*
HARMON, District Judge:
This is an appeal of convictions for operating an illegal
gambling business and conspiring to do so in violation of 18 U.S.C.
з 1955 & 2, and 18 U.S.C. зз 371 & 2. John H. Stewart ("Stewart"),
Broadus V. Stewart, Jr. ("Stewart Jr.,"), Donald L. Mason
("Mason"), and Karin D. Follin ("Follin") appeal their convictions,
arguing insufficiency of evidence, inadmissibility of evidence and
failure to extend immunity to a defense witness. Christopher H.
Crawford appeals from both his conviction and his sentence. We
* District Judge of the Southern District of Texas, sitting
by designation.

affirm the appellants' convictions and Crawford's sentence in all
respects.
I.
A.
The Jurisdictional Five
Between September 27, 1990, and November 7, 1990, a
gambling investigation was conducted by the FBI, the Mississippi
Attorney General's Office and the Criminal Investigation Bureau of
the Mississippi Highway Patrol. Officers undertook surveillance of
an illegal gambling casino operating at Stewart Lodge in Canton,
Mississippi. In furtherance of the investigation, Officer Bullock
visited the casino eight times during that period.
He observed four men, Stewart, Stewart Jr., Crawford, and
Mason, operating blackjack and craps tables. Also present at the
Lodge was Follin.
A sixth person, later identified as Herbert McMullen,
assisted with the craps table and at times stood watch on October
24, 1990. Stewart Jr., who normally worked the tables, was not
present on that night. That night Bullock observed approximately
fifteen to eighteen thousand dollars change hands during the time
he was in the illegal casino.
Title 18 U.S.C. з 1955 requires proof that five or more
persons were participating in an illegal gambling operation and
that either the business was in substantially continuous operation
for thirty days or more, or that the operation had gross revenues
of two thousand dollars or more in a single day. U.S. v. Aucoin,
964 F.2d 1492, 1499 (5th Cir. 1992).
- 2 -

Stewart, Stewart Jr., Crawford, and Mason do not dispute
their role in the operation, but contest the application of the
criminal gambling statute. They contend that as the only operators
of the casino the government cannot convict them under a statute
that requires an illegal gambling business to "involve five or more
persons1 who conduct, finance, manage, supervise, direct, or own
all or part of such business." 18 U.S.C. з 1955(b)(1)(ii). They
argue that Follin, the fifth defendant convicted with them, was
merely a bettor.
Section 1955 "proscribes any degree of participation in
an illegal gambling business, except participation as a mere
bettor." Sanabria v. United States, 437 U.S. 54, 70 n.26, 98 S.Ct.
2170, 2182 n.26, 57 L.Ed.2d 43 (1978) (emphasis supplied).
Section 1955's coverage is broad. All
persons providing services that are necessary
or helpful to the gambling operation come
within its scope. United States v. Colacurio,
659 F.2d 684, 688 (5th Cir. 1981), cert.
denied, 455 U.S. 1002, 102 S.Ct. 1635, 71
L.Ed.2d 869 (1982); United States v. Tucker,
638 F.2d 1292, 1295 (5th Cir. 1981), cert.
denied, 454 U.S. 833, 102 S.Ct. 132, 70
L.Ed.2d 111 (1981). . . . [A]ctivities
exceed[ing] those of "mere bettors" . . . fall
outside
section 1955's "sanctuary of
bettordom." United States v. Box, 530 F.2d
[1258], 1276 [(5th Cir. 1976)].
United States v. Jones, 712 F.2d 115, 120-21 (5th Cir 1983). The
design of "section 1955 is 'to bring within federal criminal
legislation not all gambling, but only that above a certain minimum
level....'" U.S. v. Tucker, 638 F.2d at 1297 (citing United States
v. Bridges, 493 F.2d 918, 922 (5th Cir. 1974)). Yet, the clear
1 The case law often refers to the "five or more person"
standard as the "jurisdictional five" requirement.
- 3 -

intent of Congress was to include all those who "participate in the
operation of a gambling business, regardless [of] how minor their
roles." Id. at 1296 (citing United States v. Joseph, 519 F.2d
1068, 1071 (5th Cir. 1975), cert. denied, 424 U.S. 909 (1976)).
See also United States v. Rieger, 942 F.2d 230, 234 (3rd Cir.
1991).
Unlike the other defendants Follin did not operate a
gambling table, and she was not a paid employee.2 She was
observed, however, serving drinks, cooking steaks, wiping off
kitchen counters, and examining the dice. On several occasions she
wagered bets.3
Bullock's notes only mention that Follin examined the
dice on one occasion. On the stand Bullock tried to attribute
another such episode to Follin, but, although he was familiar with
Follin, he called her in his notes an "unidentified white female."
Defendants contend that that incident cannot be attributed to
Follin. At trial Bullock also testified to other acts performed by
Follin, which were not mentioned in his investigative notes.
Defendants hotly contested this testimony because Bullock's notes
2 The government need not prove that Follin was compensated
in order to obtain a conviction for her role in the gambling
activity. United States v. Merrell, 701 F.2d 53, 54 n.1 (6th
Cir.), cert. denied, 463 U.S. 1230, 103 S.Ct. 3558, 77 L.Ed.2d 1415
(1983) (citing United States v. Rowland, 592 F.2d 327 (6th Cir.
1979)).
3 Follin gambled with her own money on a few occasions, but
the record reflects that on most occasions she did not gamble.
Follin neither received chips from the operators, nor did she
receive chips from other gamblers. However, she would roll the
dice for others and keep the proceeds if she won.
- 4 -

are very detailed, and it would be uncharacteristic for the
investigator to have omitted such facts from them.4
The appellants maintain that Follin's activities were no
different from those of the other bettors. All patrons, it is
argued, would get each other drinks, cook steaks, and examine the
dice should they fall nearest that person; as a mere bettor Follin
cannot be used to trigger the jurisdictional requirements of the
statute since she did not conduct or direct the illegal gambling
operation. The central issue involved in this appeal is whether
the jury could have found, under the facts presented, that Follin
was not a mere bettor, but in fact was helpful to gambling
operations. The government's response is that Folin, unlike other
bettors, was present at the casino from its inauguration until its
operations were terminated. The Government further contends that
any individual, regardless of the standard practice in the game
room at the time, who consistently performs duties so as to
facilitate the gambling operation is subject to prosecution under
з 1955.
Appellants' arguments to the contrary, it is clear that
through her aggregate conduct Follin was more than a "mere bettor"
and subject to prosecution under federal gambling statutes. Follin
could be used to establish the jurisdictional five requirement.
4Their argument must fail since "[i]ssues of credibility, the
weight of the evidence, and conflicts in evidence are matters for
the jury." United States v. Ortega-Chavez, 682 F.2d 1086, 1091
(5th Cir. 1982) (citing United States v. Parr, 516 F.2d 458, 464
(5th Cir. 1975)).
- 5 -

Appellants rely on United States v. Merrell, 701 F.2d 53
(6th Cir.), cert. denied, 463 U.S. 1230, 103 S.Ct. 3558, 77 L.Ed.2d
1415 (1983), and United States v. Boss, 671 F.2d 396 (10th Cir.
1982).5 Their reliance on these cases is misplaced. The facts of
this case closely approximate those in Merrell. In the instant
action the jury heard testimony that Follin wagered bets, served
drinks, cooked steaks for those in attendance, and cleaned the
kitchen on occasion. In Merrell, the defendant served coffee
during gambling operations, but also stacked tables, swept the
floors, and cleaned ash trays. 701 F.2d at 54. The Sixth Circuit,
relying on our seminal decision in United States v. Tucker, found
that when a defendant serves coffee, thereby enabling bettors to
continue wagering without interruption, the defendant's actions
clearly aided the gambling operation. United States v. Merrell,
701 F.2d at 55 (citing Tucker, 638 F.2d at 1296). The Merrell
Court held that "persons who regularly aid gambling enterprises
should be subject to prosecution under section 1955 even though
their conduct may not strictly be necessary to the success of such
businesses." United States v. Merrell, 701 F.2d at 55. The Sixth
Circuit indicated that those who regularly and consistently perform
functions that aid illegal gambling can be distinguished from mere
bettors who serve drinks or clean up in isolated instances. Id.
5United States v. Boss, has not been followed by those
circuits using the necessary or helpful test. See United States v.
Hammond, 821 F.2d 473, 476 (8th Cir.) (individual conducted
illegal gambling business by supplying paper to bettors and
allowing phone to be used in gambling operation), cert. denied, 484
U.S. 986, 108 S.Ct. 502, 98 L.Ed.2d 501 (1987); see also United
States v. Merrell, 701 F.2d 55.
- 6 -

No bright line can be drawn as to what is "necessary or helpful" in
all instances; such a determination depends on the facts in a given
situation and the evidence presented to the jury. The evidence
supports the jury's determination that Follin's activities went
beyond the realm of a mere bettor. Looking at the testimony in a
light most favorable to the verdict, there is evidence that Follin
engaged in activities that were helpful to the operation of the
casino. We have determined that the statute proscribes any degree
of participation in a gambling operation except participation as a
mere bettor. United States v. Tucker, 638 F.2d 1292, 1295 (5th
Cir. 1981), cert. denied, 454 U.S. 833 (1981). Viewing the
evidence in the light most favorable to the Government "a
reasonable trier of fact could find that the evidence establishes
guilt beyond a reasonable doubt." United States v. Bell, 678 F.2d
547, 549 (5th Cir. 1982), aff'd, 462 U.S. 356, 103 S.Ct. 2398, 76
L.Ed.2d 638 (1983); United States v. Zapata-Alvarez, 911 F.2d
1025, 1026 (5th Cir. 1990).
B. Immunity and McMullen's Photograph
In order to controvert testimony that McMullen was
present on October 24, the appellants produced Robert Tadlock who
swore that McMullen was not present in Canton on October 24, 1990,
but at the time was enroute with him from Frisco City, Alabama.
A photograph was taken of McMullen and tendered to the
defense the morning of trial. Crawford moved to exclude the photo
from evidence because the government's failure to notify him of the
photograph's existence was unfairly prejudicial. The district
court, viewing the objection as technical, overruled the motion.
- 7 -

McMullen was initially listed as a witness for the
prosecution. When the government did not call him to testify, the
defense sought to call him. McMullen then invoked his Fifth
Amendment rights and refused to testify. The appellants argue that
the district court should have extended immunity to McMullen and
ordered him to testify.
Stewart, Stewart Jr., Crawford, and Mason also seek a
judgment of acquittal or a new trial because the trial court
refused to hold an evidentiary hearing on McMullen's invocation of
his Fifth Amendment privilege.
We need not discuss at length appellants' arguments
relating to the admission of the photograph and the district
court's determination not to extend immunity to McMullen since,
using twenty-twenty hindsight, this portion of the case was not
ultimately essential to the jury's determination. This is so
because the jury rendered a verdict against each of the five
appellants. Since each of the five appellants was convicted of
operating or conducting a gambling business the jurisdictional five
requirement was established; when the jury found Follin guilty of
conducting a gambling business, the government's need to establish
a sixth з 1955 person evaporated.
During the course of deliberations the jury delivered
three notes to the Court.6 The defense asserts that the very
6The first question read: " If we do find five persons guilty
of the two charges but one is not listed, does this mean that [we]
find all of the five listed guilty?" The second jury question read:
"If we find one or more persons to be guilty on the evidence
presented, does it mean that any of the other persons are guilty by
association?" The last question read: "If we find the man in the
picture is the fifth person but we can't ID?" The appellants have
- 8 -

substance and nature of the notes tend to show that the jury was
struggling with their task. The jury then returned a guilty
verdict against all five defendants.
The jury's questions demonstrate that, while during their
deliberation they considered McMullen's application to the case,
the jury was ultimately satisfied that the requirements of the
statute were met. They evidenced their satisfaction by convicting
all five defendants.
Nevertheless, the district court did not err. The
question in this case is whether the district court properly
investigated the legitimacy and scope of the privilege as it
extended to McMullen, and then having sustained the privilege
protection, did the district court err in not granting McMullen
immunity. The standard of review for the invocation of a Fifth
Amendment privilege is whether the trial court abused its
discretion. United States v. Metz, 608 F.2d 147, 156 (5th Cir.
1979), cert. denied, 449 U.S. 821, 101 S.Ct. 80, 66 L.Ed.2d 24
(1980). In light of the fact that McMullen was apprehensive at the
prospect of being prosecuted the district court, having heard
testimony on the subject, did not err in allowing McMullen to
invoke the privilege inasmuch as "an accused's right to compulsory
process must give way to the witness' Fifth Amendment privilege not
to give testimony that would tend to incriminate him." United
States v. Boyett, 923 F.2d 378, 379 (5th Cir.), cert. denied, --
no quarrel with the responses of the trial judge.
- 9 -

U.S.--, 112 S.Ct. 53, 116 L.Ed.2d 30 (1991) (citing United States
v. Khan, 728 F.2d 676, 678 (5th Cir. 1984)).
District Courts have no inherent power to grant immunity.
A district court may not grant immunity simply because a witness
has essential exculpatory evidence unavailable from other sources.
United States v. Thevis, 665 F.2d 616, 638-41 (5th Cir.), cert.
denied, 456 U.S. 1008, 102 S.Ct. 2300, 73 L.Ed.2d 1303 (1982).
However, judicially ordered immunity may be sanctioned to stem
governmental abuse. See United States v. Thevis, 665 F.2d at 640-
41. Appellant argues that McMullen should have been granted
immunity because his refusal to testify was the result of
prosecutorial misconduct. Brief of Appellant Christopher Crawford
at p. 25. The record does not support the appellants' allegations.
The trial court addressed counsel on this very issue and defense
counsel replied that he was not pressing forward with the
allegation. This claim does not warrant further discussion. The
trial court did not err in failing to extend immunity to McMullen.
Turning to the admissibility of the photograph Crawford
argues that the district court abused its discretion because it
allowed the Government to introduce a photograph of McMullen that
was not presented to defense counsel until the morning of the
trial. He contends the photograph should be excluded as its
receipt into evidence violated the discovery order and prejudiced
his defense.
The standard of review on appeal for the admissibility of
evidence is whether the trial court abused its discretion. United
States v. Westmoreland, 841 F.2d 572, 578 (5th Cir.), cert. denied,
- 10 -

488 U.S. 820, 109 S.Ct. 62, 102 L.Ed.2d 39 (1988); United States
v. Stephenson, 887 F.2d 57, 59 (5th Cir. 1989), cert. denied, 493
U.S. 1086, 110 S.Ct. 1151, 107 L.Ed.2d 1054 (1990). Although the
photograph was taken on the Saturday prior to the Monday trial
commencement, the developed photograph was not given to the
prosecutor until Monday morning. It was then immediately proffered
to defense counsel. The discovery order provided for continuing
discovery of items which came into the government's possession.
The district court did not abuse its discretion by permitting the
Government to introduce the photograph of McMullen since the
record demonstrates that as soon as it came into the prosecutor's
possession, the prosecutor provided the photograph to the defense.
C. Sentencing Guidelines
Crawford objects to his sentence arguing that he was
entitled to receive a two point offense level reduction as a minor
participant and that two D.U.I. convictions should not have been
used to enhance his criminal history category.
Our review of a sentence under the
guidelines is "confined to determining whether
a sentence was 'imposed in violation of the
law' or 'as a result of an incorrect
application of the sentencing guidelines.'"
United States v. Nevarez-Arreola, 885 F.2d
243, 245 (5th Cir. 1989) (citing 18 U.S.C.
з 3742(e)). We affirm applications of the
guidelines when they are based on factual
findings that are not clearly erroneous. Id.
"A factual finding is not clearly erroneous as
long as it is plausible in light of the record
as a whole." United States v. Sanders, 942
F.2d 894, 897 (5th Cir. 1991).
United States v. Shipley, 963 F.2d 56, 58 (5th Cir.), cert. denied,
-- S.Ct. --, 1992 WL 227822 (1992).
- 11 -

1. Minor Participant
The court's finding that Crawford was not merely a minor
participant was not clearly erroneous. Trial testimony reflects
that Crawford held various positions in the enterprise. Crawford
was present in the casino every night and took part in the
operation by working the craps table, dealing blackjack, and
admitting bettors to the casino. He is not entitled to a
reduction. A defendant's participation is not minor unless he is
"substantially less culpable than the average participant."
U.S.S.G з 3B1.2, Comment. (n.3). The record contains ample support
for the court's finding that Crawford was not a minor participant.
We will not disturb that finding.
2. Criminal History Score
Crawford's second objection to the sentencing guidelines
is that his two uncounseled misdemeanor DUI convictions should not
have been used to increase his criminal history category. We have
recognized that the sixth amendment guarantee of counsel is one of
the "fundamental principles of liberty and justice which lie at the
base of all our civil and political institutions." United States
v. Eckford, 910 F.2d 216, 218 (5th Cir. 1990), reh'g denied, 915
F.2d 695 (5th Cir. 1990) (quoting Powell v. Alabama, 287 U.S. 45,
67 (1932)). The sixth amendment, however, requires only that "no
indigent criminal defendant be sentenced to a term of imprisonment
unless the Government has afforded him the right to assistance of
counsel." Id. at 218 (emphasis in original) (quoting Scott v.
Illinois, 440 U.S. 367, 373 (1979)). "Thus, conviction of an
uncounseled criminal defendant is constitutionally permissible, as
- 12 -

long as the defendant is not sentenced to a term of imprisonment.
Id.
Crawford relies on the four concurring opinions in
Baldasar v. Illinois, 446 U.S. 222, 100 S.Ct. 1585, 64 L.Ed.2d 169
(1980), for the proposition that a court cannot use an uncounseled
misdemeanor conviction to enhance a punishment. Justice Blackmun's
independent concurrence noted that enhancement for an uncounseled
misdemeanor conviction is improper where the misdemeanor offense is
punishable by a period of more than six month's imprisonment. Id.
at 230.
We have since determined that Baldasar is of little
guidance given the inconsistencies of the opinion and the slim
majority. United States v. Eckford, 910 F.2d at 219 (citing
Schindler v. Clerk of Circuit Court, 715 F.2d 341, 345 (7th Cir.
1983), cert. denied, 465 U.S. 1068 (1984)). In Wilson v. Estelle,
625 F.2d 1158 (5th Cir. 1980), cert. denied, 451 U.S. 912, 101
S.Ct. 1985, 68 L.Ed.2d 302 (1981), we determined that a defendant's
two prior uncounseled misdemeanor convictions, for which he
received no term of imprisonment, were valid for all purposes.7
7 We note that an uncounseled conviction is not necessarily
constitutionally invalid since, for example, the defendant may have
waived the right to counsel. Yet, if a defendant shows that a
conviction was previously ruled constitutionally invalid it may not
be counted in the criminal history score. U.S.S.G. з 4A1.2,
comment (n.6.). We have previously held that the application note
6 "allows a district court, in its discretion, to inquire into the
validity of prior convictions at sentencing hearings." United
States v. Canales, 960 F.2d 1311, 1315 (5th Cir. 1992).
After reviewing the statements of the district court at the
sentencing hearing, it is obvious that the court did not allow the
challenge. The court found Crawford's argument, that his previous
DUI convictions were constitutionally invalid, not well taken.
Since "a court is only required to exclude a prior conviction from
- 13 -

Id. at 1159; United States v. Eckford, 910 F.2d at 220. Baldasar
was basically limited to the premise that "a prior uncounseled
misdemeanor conviction may not [be] used under an enhanced penalty
statute to convert a subsequent misdemeanor into a felony with a
prison term." United States v. Eckford, 910 F.2d at 220 (quoting
Wilson v. Estelle, 625 F.2d at 1159 n.1).8
In Eckford, two prior uncounseled misdemeanor convictions
with maximum penalties of not more than six month's imprisonment,
but no actual incarceration, were used to increase the defendant's
maximum potential sentence by four months. United States v.
Eckford, 910 F.2d at 217. Crawford's case can only be
distinguished from Eckford in that Crawford's second misdemeanor
DUI conviction carried a maximum sentence of a year imprisonment.
United States v. Eckford, 910 F.2d at 219 n.8. Under Blackmun's
concurrence in Baldasar, the trial court could not use the second
uncounseled conviction to increase the criminal history level.
However, Crawford received a two day suspended sentence for his
second DUI conviction, and under the sentencing guidelines a
the computation of the criminal history category if the defendant
shows it to 'have been previously ruled constitutionally invalid,"
United States v. Canales, 960 F.2d at 1315 (emphasis in original),
the district court did not err when it ruled, citing Eckford, that
the second DUI conviction could not be constitutionally invalid
since there was no imprisonment.
8 Calculating Crawford's criminal history by relying on a
prior uncounseled misdemeanor is permissible; it is an entirely
different issue than the one raised in Baldasar. In the case at
hand, the court used an uncounseled DUI conviction to determine a
criminal history category for a crime that was a felony; it was not
used to enhance a misdemeanor into a felony. United States v.
Castro-Vega, 945, F.2d 496, 500 (2nd Cir. 1991), petition for cert.
filed, No. 91-6933 (January 8, 1992).
- 14 -

sentence of imprisonment does not include any portion of a sentence
that was suspended. U.S.S.G. з 4A1.2(b)(2).
III.
For the reasons discussed above, the judgment and
sentence of the trial court is AFFIRMED.
- 15 -