Petition — Arrington v. United States
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DEC 12 1982
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IN THE
United States Supreme Court
OCTOBER TERM, 1983
JAMES E. ARRINGTON,
Petitioner (Appellee Below),
Ve
UNITED STATES OF AMERICA,
Respondent (Appellant Below).
PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
Stanley E. Preiser
(Counsel of Record)
Barbara H. Fleisher
Post Office Box 2506
1012 Kanawha Boulevard, East
Charleston, West Virginia 25329
(304) 344-9651
Counsel for Petitioner,
James E. Arrington
ee aoe aS Ae Ro mS
THE CASILLAS PRESS INC -1717 K Street No W —Waestengtion. O. C -2273-1220
(i)
QUESTIONS PRESENTED FOR REVIEW
1. Whether the federal trial court’s post-verdict assess-
ment of evidentiary insufficiency, resulting in its grant of
motion for judgment of acquittal pursuant to Fed.R.
Crim. P. 29(c), should be accorded the same absolute de-
ference which is provided by the nonappealability of pre-
verdict acquittals based upon evidentiary insufficiency.
A. Whether the apparent “asymmetry” which would
result from applying different standards of review to gov-
ernment and defendant appeals (absolute deference in the
latter situation), following the trial court’s ruling on mo-
tion for post-verdict judgment of acquittal, simply reflects
the fundamental and proper “asymmetry” always favoring
criminal defendants in the criminal justice system.
B. Whether a rule according absolute deference to
the trial court’s post-verdict assessment of evidentiary in-
sufficiency, resulting in its grant of motion for judgment
of acquittal, would nullify the government’s right to ap-
peal post-verdict acquittals pursuant to 18 U.S.C. §3731.
2. Assuming arguendo that de novo review of the trial
court’s judgment of acquittal is proper, should the stand-
ard of review be that articulated in Glasser v. United
States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed.2d 680 (1942),
or that articulated in Jackson v. Virginia, 443 U.S. 307, 99
S.Ct. 2781, 61 L.Ed.2d 560 (1979).
PARTIES
The only parties to this action are those named in the
case caption, James E. Arrington (Petitioner, Appellee
Below) and United States of America (Respondent, Appel-
lant Below).
(iii)
TABLE OF CONTENTS
Page
QUESTIONS PRESENTED FOR REVIEW .................55. i
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CONSTITUTIONAL PROVISIONS AND STATUTES. .......... 4
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CONCLUSION ............ DMEM GCEse Casas ceawesccesoees 19
APPENDIX
Judgment, United States Court of Appeals for
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Opinion, United States Court of Appeals for
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Judgment, United States District Court for
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Opinion (verbal), United States District Court for
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: (iv)
TABLE OF AUTHORITIES
Cases: Page
Glasser v. United States,
315 U.S. 60, 62 S.Ct. 457, 86 L.Ed.2d 680 (1942) .... i, 6, 8, 15, 16
In re Winship,
397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970) ........... 17
Jackson v. Virginia,
443 U.S. 307, 99 S.Ct. 2781,
I ns Cs ctcmcabeabuch he i, 8, 15, 16, 17, 18
Thompson v. Louisville,
362 U.S. 199, 80 S.Ct. 624, 4 L.Ed.2d 654 (1960) ............. 17
United States v. Blasco,
581 F.2d 681 (7th Cir.), cert. denied, 439 U.S. 966,
Gn, Ge Sr ET ENIUE nc bes wsicvenecntévecsecose 11
United States v. Burns,
ra OD on cc in vsebesecéencesheceusucaee 10
United States v. Calloway,
re EL, MUO «cdc c cate kenta voesvniteneanen 11
United States v. DeGarces,
er. SUD... os ucla oat 6h 6 bbe bs OOKR RO 10
United States v. Dixon,
ee Pn i ane ba caneé och enasenateebes 10
United States v. Donohue,
CE rer ro ee 11
United States v. Dreitzier,
$77 F.2d 539 (9h Cir. 1978), cert. denied, 440 U.S. 921,
99 S.Ct. 1246, $9 L..Ed.2d 473 (1979) 00. eee eee ll
United States v. Rojas,
I i i a ele eae 11
United States v. Singleton,
702 F.2d 1183 (D.C. Cir. 1983) (en banc) (Singleton | ....... 9,10
(v)
Page
United States v. Singleton,
702 F.2d 1159 (D.C. Cir. 1983) [Singleton II] .............. 9, 10
United States v. Steed,
646 F.2d 136 (4th Cir. 1981) [Steed] ....... 8,9, 11, 13, 14, 15, 16
United States v. Steed,
674 F.2d 284 (4th Cir. (en banc), cert. denied,
__ U.S. _., 103 S.Ct. 67, 74 L.Ed.2d 68 (1982)
hicten a nettnes ote ey danheknekieceneke 6, 9, 10, 13, 16
Statutes and Rules:
Constitution of the United States, Amendment V ................ 4
i rn co eens bb ess chute deed kkeoeeeh Cue 2,6
I, SOS ee So al) ale pia rae te wna are 2, 4, 6
ES a la vac bcane cb ecthaeeeeas eats tpheuEtetle 2
en ES OP oo as nk ba bec aba aWonewee ce 2, 5,6, 11, 13
i ee Ce tk oc on Bbak cect peveberaeuunlane 2,3,6
IN THE
United States Supreme Court
OCTOBER TERM, 1983
JAMES E. ARRINGTON,
Petitioner (Appellee Below),
UNITED STATES OF AMERICA,
Respondent (Appellant Below).
PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
OPINIONS IN COURTS BELOW
The opinion of the United States Court of Appeals for
the Fourth Circuit in this case has not yet been published
in official form. The court’s slip opinion is reproduced in
the Appendix to this petition. United States of America v.
James E. Arrington, No. 82-5250 (4th Cir., October 14,
1983).
The United States District Court for the Western _.
District of Virginia, which granted petitioner’s motion for
judgment of acquittal on August 26, 1982, did not write an
opinion in this case. The court’s oral remarks made from
the bench on August 26, 1982 have been transcribed and
are reproduced in the Appendix to this petition.
GROUNDS OF JURISDICTION
The judgment of the United States Court of Appeals for
the Fourth Circuit in this case was dated and entered on
October 14, 1973. No motion for re-hearing was made,
and no extension of time for filing this petition was re-
quested.
This Court has subject matter jurisdiction pursuant to
28 U.S.C. §1254 to review the judgment, by writ of cer-
tiorari granted upon timely petition of a party (here,
James E. Arrington, appellee below).
The instant case is in a unique procedural posture,
which must be considered with respect to the issue of this
Court’s jurisdiction.
Following a four-day jury trial in the United States
District Court for the Western District of Virginia, peti-
tioner was found guilty of aiding and abetting in the in-
terstate receipt and sale of stolen property, 18 U.S.C.
§§2315 and 2. Petitioner filed timely motions for judg-
ment of acquittal, Fed.R.Crim.P. 29(c), and in the alter-
native for new trial, Fed.R.Crim.P. 33. On August 26,
1982 the district court granted the motion for judgment of
acquittal, based solely upon the insufficiency of the evi-
dence to support the jury’s verdict. The district court did
not rule on the motion for new trial.
The government appealed the post-verdict judgment of
acquittal, pursuant to 18 U.S.C. §3731, to the United
States Court of Appeals for the Fourth Circuit. Sufficien-
cy of the evidence to sustain the jury’s verdict was the sole
issue presented to and decided by the appellate court. On
October 14, 1983 a three-judge panel reversed the judg-
ment of the district court, remanding the case for rein-
statement of the jury’s verdict and for further proceedings
consistent with its opinion.
Upon remand, the motion for new trial was argued and
a briefing schedule was ordered; the motion is now pend-
ing in the breast of the district court.
Notwithstanding the proceedings now pending in the
district court, the judgment of the United States Court of
Appeals for the Fourth Circuit 1. final with respect to the
issues presented in this petition The appellate court’s
judgment is ripe for review at this time; if review is de-
clined or deferred, petitioner’s rights will be forever lost.
First. SC.R. 20 (the sixty-day rule) may preclude peti-
tioner from raising these particular issues, which were
finally decided by the judgment of the appellate court on
October 14, 1983 and cannot be raised again at any stage
of the proceedings, at any time in the future (assuming
that petitioner’s pending motion for new trial is decided
adversely to him by the district court, that petitioner’s
subsequent appeal from the conviction is decided adverse-
ly to him by the appellant court, and that petitioner then
seeks review in this court). With respect to the issue of suf-
ficiency of the evidence, it may well be now or never.
Second. In view of the procedural posture of this case,
petitioner is necessarily urging the district court to exercise
its discretion under Fed.R.Crim.P. 33 and grant him a
new trial. However, if the October 14, 1983 judgment of
the appellate court is incorrect — if, as petitioner con-
tends, there was not sufficient evidence to sustain the
jury’s verdict — then petitioner is constitutionally entitled
to a judgment of acquittal and his retrial would be barred
by the Double Jeopardy Clause of the United States Con-
stitution. Thus, absent review by this Court at this time,
petitioner is forced to seek retrial as his best available
remedy, in the teeth of the constitutional provision which
protects him from having to undergo such retrial.
il
Absent review of the case by this Court, at this time,
petitioner must deliberately relinquish his constitutional
rights in order to try and achieve his ultimate goal: justice,
by acquittal.
Constitutional Provisions and Statutes
CONSTITUTION OF THE UNITED STATES,
AMENDMENT V
No person shall be held to answer for a capital, or other-
wise infamous crime, unless on a presentment or indict-
ment of a Grand Jury, except in cases arising in the land or
naval forces, or in the Militia, when in actual service in
time of War or public danger; nor shall any person be sub-
ject for the same offense to be twice put in jeopardy of life
or limb; nor shall be compelled in any criminal case to be a
witness against himself, nor be deprived of life, liberty, or
property, without due process of law; nor shall private
property be taken for public use, without just compensa-
tion.
TITLE 18, UNITED STATES CODE, SECTION 3731
§3731. Appeal by United States
In a criminal case an appeal by the United States shall lie
to a court of appeals from a decision, judgment, or order
of a district court dismissing an indictment or information
as to any One or more counts, except that no appeal shall
lie where the double jeopardy clause of the United States
Constitution prohibits further prosecution.
An appeal by the United States shall lie to a court of ap-
peals from a decision or order of a district court suppres-
sing or excluding evidence or requiring the return of seized
property im a criminal proceeding, not made after the
defendant has been put in jeopardy and before the verdict
5
or finding on an indictment or information, if the United
States attorney certifies to the district court that the appeal
is not taken for purpose of delay and that the evidence is a
substantia! proof of a fact material in the proceeding.
The appeal in all such cases shall be taken within thirty
days after the decision, judgment or order has been ren-
dered and shall be diligently prosecuted.
Pending the prosecution and determination of the ap-
peal in the foregoing instances, the defendant shall be
released in accordance with chapter 207 of this title.
The provisions of this section shall be liberally con-
strued to effectuate its purposes.
FEDERAL RULES OF CRIMINAL PROCEDURE,
RULE 2%c)
(c) Motion After Discharge of Jury
If the jury returns a verdict of guilty or is discharged
without having returned a verdict, a motion for judgment
of acquittal may be made or renewed within 7 days after
the jury is discharged or within such further time as the
court may fix during the 7-day period. If a verdict of guilty
is returned the court may on such motion set aside the ver-
dict and enter judgment of acquittal. If no verdict is
returned the court may enter judgment of acquittal. It
shall not be necessary to the making of such a motion that
a similar motion has been made prior to the submission of
the case to the jury.
STATEMENT OF THE CASE
Petitioner James E. Arrington, an attorney licensed to
practice law in the Commonwealth of Virginia, was in-
dicted by a federal grand jury on October 14, 1981 on one
6
count of conspiracy to receive, sell or dispose of stolen
goods in interstate commerce, 18 U.S.C. §371, and one
count of aiding and abetting the receipt and sale of this
property, 18 U.S.C. §§2315 and 2. Petitioner pled not
guilty to both charges in the United States District Court
for the Western District of Virginia.
Following a four-day jury trial, on May 7, 1982 peti-
tioner was acquitted of the conspiracy charge but con-
victed of the aiding and abetting charge. He filed timely
post-verdict motions for judgment of acquittal, Fed.R.
Crim.P. 29(c), and in the alternative for new trial, Fed.R.
Crim.P. 33. On August 26, 1982 the district court granted
the motion for judgment of acquittal, on the ground that
the evidence at trial was insufficient to support the jury’s
verdict. (Appendix B, pp. 13a-40a) The district court
entered its order that same day. (Appendix B, p. 12a)
Pursuant to 18 U.S.C. §3731, the government appealed
to the United States Court of Appeals for the Fourth Cir-
cuit. Following briefing and oral argument, a three-judge
panel of the appellate court reversed the district court’s
judgment on October 14, 1983, remanding the case for re-
instatement of the jury’s verdict and for further pro-
ceedings. !
The government’s proof at trial is summarized in the
opinion of the United States Court of Appeals for the
Fourth Circuit. (Appendix A, pp. 2a-11la) Faithful to the
standard of Glasser v. United States, 315 U.S. 60, 62 S.Ct.
457, 86 L.Ed.2d 680 (1942), which had earlier been held to
be the proper standard for appellate review of post-verdict
‘As noted in the discussion under Grounds of Jurisdiction, infra,
further proceedings on remand are now pending in the district court.
Argument has been had on petitioner’s motion for new trial,
Fed.R.Crim.P. 33, a briefing schedule has been ordered, and the mo-
tion is in the breast of the district court.
acquittals, see United States v. Steed, 674 F.2d 284 (4th
Cir.) (en banc), cert. denied, ____ U.S. ___., 103 S.Ct. 67,
74 L.Ed.2d 68 (1982), [Steed IT] all of the evidence at trial
was viewed by the appellate court in a light most favorable
to the government.
All government witnesses assumed a patina of absolute
credibility — the light most favorable to the government.
All inferences, however tenuous and unsupported they
might be, were drawn in favor of the “verdict winner” —
the light most favorable to the government. All of the
evidence supporting the petitioner’s defenses, no matter
how strong, was discounted entirely — the light most
favorable to the government.
The district court’s careful assessment of the evidence,
and the insufficiency of such evidence to sustain the ver-
dict, was totally ignored; review by the appellate court was
de novo, as if the district court’s judgment were a nullity.
Petitioner contended below, and still contends, that the
evidence at this trial was insufficient to sustain a convic-
tion under any standard of review which might be utilized
in any court, trial or appellate. However, it is the standard
of review adopted by the appellate court, no the particu-
lar evidence in this case, which forms the basis for this
petition for writ of certiorari. Thus a detailed recitation of
the facts of the case is unnecessary here.
The precise holding of the United States Court of Ap-
peals for the Fourth Circuit in petitioner’s case, of which
he complains, is as follows:
In Steed [Steed II, supra], we held that the
same standard applies whether we are reviewing
the government’s appeal of a judgment of acquit-
tal entered after a jury verdict of guilty or the
defendant’s appeal of a jury conviction. “The
verdict of a jury must be sustained if there is
substantial evidence, taking the view most
favorable to the Government, to support it.” 674
F.2d at 286 (quoting Glasser v. United States,
315 U.S.C. 60, 80 (1942).
United States of America v. James E. Arrington, No.
82-5250 (4th Cir., October 14, 1983), Slip Opinion at 7
(Appendix A, p. 7a)
In applying this standard to review the district court’s
determination of evidentiary insufficiency, the appellate
court stripped petitioner of his right to due process of law,
specifically, his right not to be convicted of a crime except
upon proof beyond a reasonable doubt. Cf. Jackson v.
Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560
(1979). Further, the appellate court stripped the district
court of one of its traditional protective functions, the
filtering out of deficient prosecutions, all to the detriment
of petitioner. Cf. United States v. Martin Linen Supply
Co., 430 U.S. 564, 978 S.Ct. 1349, 51 L.Ed.2d 642 (1977).
Finally, the appellate court effected a drastic shift in the
balance of the federal criminal justice system, altering the
traditional system of “checks and balances” which has
always operated in favor of the criminal defendant. As
Judge James Dickson Phillips wrote in United States v.
Steed, 646 F.2d 136, 141 (4th Cir. 1981) [Steed /], later
superseded by the en banc opinion inSteed IT:
In the system of checks and balances that has
emerged, the power of each entity [court] unila-
terally to find factual guilt is at every turn con-
strained while the power of each unilaterally to
acquit is without constraint.
(Footnotes omitted)
This Court has never ruled on the proper standard for
appellate review where, as here, the district court has
entered posi-verdict judgment of acquittal based on insuf-
ficiency of the evidence. The various courts of appeals are
applying a bewildering variety of standards, albeit all de
novo, and all without any reasoned analysis of the second
considerations supporting a rule of absolute deference to
the district court’s factual determination of evidentiary in-
sufficiency.
The instant case presents a proper vehicle for this Court
to hear and determine this issue. The issue is one of fun-
damental importance to the criminal justice system; and
further, the issue is one of fundamental importance to this
petitioner who deserves justice in the federal courts.
ARGUMENT
Each issue presented for review in this case constitutes a
different facet of the same basic question: what weight, if
any, should the federal appellate court give to the district
court’s post-verdict assessment of insufficiency of the
evidence. This Court has never addressed the question.
Only two of the courts of appeals have squarely faced
the issues, the Fourth Circuit in United States v. Steed, 646
F.2d 136 (4th Cir. 1981) [Steed J], and United States v.
Steed, 674 F.2d 136 (4th Cir.) (en banc), cert. denied,
__ U.S. _, 103 S.Ct. 67, 74 L.Ed.2d 68 (1982) [Steed IT];
and the D.C. Circuit in United States v. Singleton, 702
F.2d 1183 (D.C. Cir. 1983) (en banc) [Singleton I], and
United States v. Singleton, 702 F.2d 1159, 1171-73 (D.C.
Cir. 1983) (dissenting opinion) [Singleton I]. Most of the
circuits have “decided” the issues sub silentio, without set-
ting forth any reasoning to support their conclusions.
10
In its initial consideration of the issues in Steed I, a
unanimous panel of the United States Court of Appeals
for the Fourth Circuit held that total deference should be
given to the district court’s assessment of evidentiary suffi-
ciency. Upon rehearing en banc, in Steed II, a majority of
the Court (including one member of the original panel)
held that no consideration at all should be given to the
district court’s opinion, but rather appellate review should
be de novo.
The United States Court of Appeals for the District of
Columbia has held that some deference should be accord-
ed to the district court’s opinion.
We have concluded that we do not defer to the
district court, because we must make our own in-
dependent judgment regarding the sufficiency of
evidence. In so doing, of course, we may con-
sider and be influenced by the opinion of the ex-
pert trial judge who has lived with the case —
just as we give weight to one another’s views.
United States v. Singleton [Singleton I), supra, 702 F.2d
at 1184 (emphasis supplied). In Singleton IJ, dissenting
Judge J. Skelly Wright complained that the court had
totally failed to “consider and be influenced by” the
district court’s assessment of evidentiary sufficiency —
the very standard the appellate court had just adopted in
Singleton I. 702 F.2d at 1171.
The various other courts of appeals have applied the “no
deference” standard of the Fourth Circuit in Steed II,
albeit without any consideration or discussion of the legal
and philosophical underpinning of their respective deci-
sions. United States v. DeGarces, 518 F.2d 1156 (2nd Cir.
1975); United States v. Dixon, 658 F.2d 181 (3rd Cir.
1981); United States v. Burns, 597 F.2d 939 (Sth Cir.
1!
1979); United States v. Blasco, 581 F.2d 681 (7th Cir.)
cert. denied, 439 U.S. 966, 99 S.Ct. 456, 58 L.Ed.2d 425
(1978); United States v. Donohue, 539 F.2d 1131 (8th Cir.
1976); United States v. Rojas, 545 F.2d 938 (9th Cir.
1977); United States v. Dreitzler, 577 F.2d 539 (9th Cir.
1978), cert. denied, 440 U.S. 921, 99 S.Ct. 1246, 59
L.Ed.2d 473 (1979); United States v. Calloway, 562 F.2d
615 (10th Cir. 1977).
Judge James Dickson Phillips of the Fourth Circuit
(joined by Judge H. Emory Widener), and Judge J. Skelly
Wright of the D.C. Circuit, have extensively analyzed the
matters at issue here, and recognized their fundamental
importance to the administration of justice. Both of these
legal scholars concluded that the rule of de novo review on
appeal, with no consideration or weight given to the dis-
trict court’s assessment of evidentiary insufficiency, is a
fundamentally erroneous standard. Judge Phillips in par-
ticular demonstrated why.
Issue I: Whether the federal trial court’s post-verdict
assessment of evidentiary insufficiency, resulting in grant
of motion for judgment of acquittal pursuant to Fed.R.
Crim.P. 29(c), should be accorded the same absolute de-
ference which is provided by the nonappealability of pre-
verdict acquittals based upon evidentiary insufficiency.
All of the sound reasons — legal analysis, policy con-
siderations, and historical underpinning — supporting the
rule of absolute deference on review were cogently ana-
lyzed by Judge Phillips in Steed J, supra. The petitioner
cannot improve on this masterful analysis, and thus he
urges this Court to give careful consideration to Judge
Phillips’ reasoning.
We believe that the appropriate standard of
review is to be found by considering the effect
12
that it will have upon the traditional powers of
federal trial judges to protect criminal defend-
ants from the possibility of jury abuses or ex-
cesses as an aspect of their broader, historical
function of “filtering out deficient prosecutions.”
United States v. Martin Linen Supply Co., 430
U.S. 564, 575, 97 S.Ct. 1349, 1356, 51 L.Ed.2d
642 (1977). Until the 1970 Act, that power had
been essentially absolute, since no judge-directed
judgment of acquittal for insufficiency of evi-
dence was appealable — whether entered before
or after jury verdict and even if based upon an
“egregiously erroneous foundation,” Fong Foo
v. United States, 369 U.S. 141, 143, 82 S.Ct. 671,
672, 7 L.Ed.2d 629 (1962); see also United States
v. Sisson, 399 U.S. 267, 289-90, 90 S.Ct. 2117,
2129, 26 L.Ed.2d 608 (1970). By its continuation
of that immunity to any review with respect to
pre-verdict fact-based acquittals in the 1970 Act,
see United States v. Scott, 437 U.S. 82, 98 S.Ct.
2187, 57 L.Ed.2d 65 (1978); United States v.
Sanabria, 437 U.S. 54, 98 S.Ct. 2170, 57 L.Ed.2d
43 (1978), Congress presumably intended to con-
tinue the traditional protective power unchanged
in that context, even while exposing post-verdict
acquittals to some degree of appellate review.
This gives rise to the anomaly earlier noted in our
discussion of the effect of the Double Jeopardy
Clause in dis-allowing appeal in the former and
allowing it in the latter context. Because this inci-
dent of double jeopardy protection has no ap-
parent relation to the historical purposes of the
protective power, we think that the scope and
standard of appellate review should be narrowly
drawn to avoid any erosion of the power in the
post-verdict setting. By this means, an anomaly
that we find difficult to attribute to deliberate
Congressional design will be reduced in practical
effect and appellate review of post-verdict ac-
13
quittals made more compatible with what we
think was the likely overall intent of Congress.
Issue 1(A):
Again, petitioner must defer to Judge Phillips’ scholarly
analysis of the “. . . fundamental asymmetry favoring
criminal defendants that pervades our criminal justice
system.” Steed I, supra, 646 F.2d at 140. Judge Phillips
traces the historical power of the court to acquit — prior
to the return of the jury verdict, but after jeopardy at-
taches, an absolute power to err in favor of the defendant
— and the concomitant restraint on the power of the court
to convict, which constraint remains absolute. /d. at
140-142. A rule of absolute deference to the trial court’s
post-verdict determination of evidentiary insufficiency,
Judge Phillips correctly concludes, is totally consistent
with the “fundamental allocation of protective powers” in
the federal courts, “an allocation marked throughout by
asymmetry.” Jd. at 142.
In addition, this Court should consider the gross “asym-
metry” which can result from de novo review of the trial
court’s ruling on motion for judgment of acquittal: the
criminal defendant is severely penalized for trial court er-
ror. When judgment of acquittal is granted pursuant to
Fed.R.Crim.P. 29(c), the trial court admits, in essence,
that it erred in permitting the case to go to the jury. The
rule of review in Steed II, supra, permits this error to be
compounded when the trial court can then be “second
guessed” on appeal. The trial court’s ruling, had it come at
the proper time (defendant being entitled to judgment of
acquittal prior to submission of the case to the jury),
would have been unappealable; however, once the trial
court erred initially and sent the case to the jury, the
defendant forever loses the protection of nonappealability
14
even though the trial court subsequently rectifies the
mistake. This is an absurd result, far more absurd than the
“apparent asymmetry” which so concerned the en banc
court in Steed I, supra.
Issue 1(B):
The bugbear of statutory nullification was neatly laid to
rest by Judge Phillips.
Neither does according absolute deference to the
trial judge’s evidence assessments in this context
make empty the government’s right of appeal un-
der the Act. Deference extends only to purely
factual assessments that the evidence was insuffi-
cient to convict. This leaves open for review the
preliminary question whether this was indeed the
basis for the acquittal. If it is determined that it
was not, the revealed basis will then be subject to
free review and to correction by reinstatement of
the verdict if prejudicial error is found in it.
The review function thereby preserved is by no
means an inconsiderable one. As Justice Brennan
has pointed out, application of the test of ap-
pealability of pre-verdict dismissals adopted in
United States v. Scott, 437 U.S. 82, 98 S.Ct.
2187, 57 L.Ed.2d 65, turning as it does upon the
question whether the dismissal was based upon
purely factual assessments of insufficiency of the
evidence to convict or upon grounds “unrelated
to factual guilt or innocence,” will frequently be
a difficult one. 437 U.S. at 110-16, 98 S.Ct. at
2203-06 (Brennan J., dissenting). Because we
consider that the same test should apply to deter-
mine the scope of absolute deference in review of
post-verdict acquittals the task of review may be
equally difficult. Cf. United States v. Burroughs,
564 F.2d 1111 (4th Cir. 1977). For review pur-
poses it will of course be made easier by trial
court specification of the exact basis of decision.
15
Where no basis is specified or is implicit in the
record we think it appropriate to assume upon
appeal that the basis was factual insufficiency.
Steed I, supra, 646 F.2d at 142.
As a practical matter, the fear of nullification of the
government’s right to appeal is largely illusory. In only a
small number of reported cases since passage of 18 U.S.C.
§3731 have the district courts granted post-verdict judg-
ment of acquittal on the sole ground of insufficiency of
the evidence. It is apparent that the federal trial courts are
utilizing their post-verdict power sparingly. The appellate
courts have not been flooded with government appeals
from judgments of acquittal following jury verdicts of
guilty.
In the occasional case where this occurs, it should be
presumed that the trial judge utilized its special expertise,
in the context of its intimate familiarity with the case, and
acted properly. The appellate court, with only the cold
record before it, is in a poor position to “second guess.”
Issue II: Assuming arguendo that de novo review of the
trial court’s judgment of acquittal is proper, should the
standard on review be that articulated in G/asser v. United
States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed.2d 680 (1942),
or that articulated in Jackson v. Virginia, 443 U.S. 307, 99
S.Ct. 2781, 61 L.Ed.2d 560 (1979).
The long established standard for review of the trial
court’s denial of motion for judgment of acquittal, and/or
defendant’s appeal of his underlying conviction, is set
forth in Glasser v. United States, supra, 315 U.S. at 80.
“The verdict of a jury must be sustained if there
is substantial evidence, taking the view most fav-
orable to the Government, to support it.”
16
This is the standard which has been applied in Steed II,
supra, for review of the trial court’s post-verdict grant of
judgment of acquittal based on the ground of evidentiary
sufficiency. This is the standard which was applied in the
instant case. United States v. James E. Arrington, No.
82-5250 (4th Cir. October 14, 1983).
Other circuit courts of appeals have adopted a standard
phrased in the language of Jackson v. Virginia, 443 U.S.
307, 324, 99 S.Ct. 2781, 61 L.Ed.2d 560, 576 (1979):
[Whether] upon the record evidence adduced at
. the trial [any] rational trier of fact could have
und proof of guilt beyond a reasonable doubt.
In most of the cases from the various courts of appeals,
cited earlier herein, the standard of review articulated is a
mixture of the Glasser and Jackson language.
Interestingly, there is a division of opinion as to whether
the Glasser and Jackson standards are identical; and, if
they are not, which standard is more beneficial to a de-
fendant. Judge H. Emory Widener, in his concurring
opinion in Steed I, indicated his belief that the standards
are not the same, but that the G/asser standard “. . .
should be construed to give a federal appellate court more
leeway in reviewing the sufficiency of the evidence on ap-
peal from a conviction in a federal district court than it has
in reviewing the sufficiency of the evidence of a conviction
in a state court by way of habeas corpus.” Steed I, supra,
646 F.2d at 143. On the other hand, Judge James C. Turk,
United States District Judge for the Western District of
Virginia, indicated during oral argument in this case that
he views the Jackson standard as more protective of the
defendant — resulting in an anomaly whereby appellate
review on collateral attack of state conviction is more ex-
pansive than appellate review on direct appeal of convic-
17
tion in federal court. This petitioner agrees with Judge
Turk that the Jackson standard appears to be more
beneficial to the defendant than the G/asser standard. The
concept of reasonable doubt is fundamental in Jackson;
whereas the concept of “substantial evidence” in Glasser is
suggestive of a preponderance standard. Glasser, as ap-
plied if not as intended, is faithless to the promise of Jn re
Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368
(1970).
In the various cases cited, including this case, wherein
judgment of acquittal was granted by the trial court and
then reversed by the appellate court, the courts of appeals
appear in fact to be utilizing the discredited “no evidence
rule” of Thompson v. Louisville, 362 U.S. 199, 80 S.Ct.
624, 4 L.Ed.2d 654 (1960). The articulated standards of
Glasser and Jackson, as applied on de novo review in this
context, seem to mean little more than some evidence was
presented with respect to each element of the offense
charged. Some evidence — however scant, however slight.
“Viewing the evidence in a light most favorable to the
Government ” means, in application, that a shred of
evidence is sufficient evidence; that all Government
witnesses must be deemed worthy of credibility, since —
working backward in logic — the jury must have believed
them; that every conceivable inference in favor of the
Government must be drawn, no matter how tenuous and
no matter how illogical; and that all of the defendant’s
evidence must be disregarded, since — again working back
ward in logic — the jury must necessarily have disregarded
such evidence in finding guilt.
This is precisely what occurred in the instant case, when
the United States Court of Appeals for the Fourth Circuit
reviewed petitioner’s case under the (ostensible) Glasser
standard. One shred of direct evidence, together with
18
several tenuous and wholly illogical inferences which were
pyramided on the shred, were held to constitute “substan-
tial evidence.” Thus, the jury verdict was ordered rein-
stated, even though no rational trier of fact could have
found petitioner guilty beyond a reasonable doubt on the
basis of this “substantial evidence.”
The Due Process Clause of the United States Constitu-
tion “. . . protects a defendant in a criminal case against
conviction ‘except upon proof beyond a reasonable doubt
of every fact necessary to constitute the crime with which
he is charged.’ ” Jackson v. Virginia, supra, 443 U.S. at
315, 61 L.Ed.2d at 571 (citation omitted). These words,
and this promise, have been drained of meaning by the
sterile rule of review utilized by the appellate court on
review of the trial court’s post-verdict grant of judgment
of acquittal; all on a cold record; and with no deference
accorded to the expertise of the trial judge who “lived with
the case” and heard and saw the evidence.
19
CONCLUSION
For all of the reasons set forth herein, this Court should
grant the petition for writ of certiorari to the United States
Court of Appeals for the Fourth Circuit, and should re-
solve these issues which are of fundamental importance to
the criminal justice system.
/s/ STANLEY E. PREISER
/s/ BARBARA H. FLEISHER
Preiser & Wilson, Legal Corporation
1012 Kanawha Boulevard, East
Post Office Box 2506
Charleston, West Virginia 25329
(304) 344-9651
Counsel for Petitioner,
James E. Arrington
APPENDIX A
JUDGMENT
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 82-5250
United States of America,
Appellant,
VS.
James E. Arrington,
Appellee.
Appeal from the United States District Court for the
District of Virginia.
The cause came on to be heard on the record from the
United States District Court for the Western District of
Virginia, and was argued by counsel.
On consideration whereof, It is now here ordered and
adjudged by this Court that the judgment of the said
District Court appealed from, in this cause, be, and the
same is hereby, reversed. The case is remanded to the
United States District Court for the Western District of
Virginia, at Abingdon, for reinstatement of the jury’s ver-
dict and further proceedings consistent with the opinion of
this Court filed herewith.
FILED
OCT 14 1983 /s/ William K. Slate II
U.S. Court of Appeals
Fourth Circuit CLERK
2a
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 82-5250
United States of America,
Appellant,
Y.
James E. Arrington,
Appellle.
Appeal from the United District Court for the Western
District of Virginia, at Abingdon. James C. Turk, District
Judge. CR 81-98-A
Argued: April 15, 1983 Decided: October 14, 1983
Before WIDENER and SPROUSE, Circuit Judges, and
FOX,* District Judge.
William P. Sellers, IV, Assistant United States Attorney
(John P. Alderman, United States Attorney, Thomas J.
Bondurant, Jr., Assistant United States Attorney on brief)
for Appellant; Barbara H. Fleisher (Preiser and Wilson,
L.C. on brief) for Appellee.
SPROUSE, Circuit Judge:
The United States of America appeals from the judg-
ment of the district court acquitting attorney James E. Ar-
*Hon. James C. Fox, United States District Judge for the Eastern
District of North Carolina, sitting by designation.
3a
rington, Jr., for lack of sufficient evidence, after a jury
had found him guilty of aiding and abetting the receipt
and sale of stolen construction equipment moving in in-
terstate commerce, in violation of 18 U.S.C. § 2315. The
government contends that there was substantial evidence
to support the jury’s verdict under the standard of United
States v. Steed, 674 F.2d 284 (4th Cir. 1982) (en banc). We
agree and reverse the district court’s judgment of acquit-
tal.
Four men, Mitchell, Crockett, Sexton, and Davenport
stole a truck, attached trailer, and backhoe in Georgia and
brought them to Virginia where a “finder” introduced
thern to an innocent purchaser, Shipley. Charles Mays, an
ex-police officer, was an investigator fer Arrington’s firm,
who sometimes solicited legal business for the firm in ex-
change for a portion of the fees. He invested several thou-
sand dollars in the criminal enterprise after the equipment
arrived in Virginia, and helped the four men move the
items to a storage location in Buchannon County, Vir-
ginia. The government does not contend that Arrington
was involved in or was even aware of the theft and
transportation until after those criminal acts were com-
pleted and he was employed as an attorney to effect trans-
fer of the equipment to Shipley.
It is the testimony concerning Mays’ association with
Mitchell, Crockett, and Sexton, and their subsequent as-
sociation with Arrington, that generates the issue of whe-
ther the jury’s conviction rested on substantial evidence.
That evidence, viewed most favorably to the government,
United States v. Steed, 674 F.2d at 286, shows that a
“finder” brought Shipley to the group’s attention. Shipley
offered and the group accepted $19,200 for the three
pieces of equipment. Shipley, who was from Tenneseee,
had an attorney in that state, but none in Virginia.
4a
Crockett suggested two attorneys from Arrington’s nearby
firm. Shipley and the group possessing the illegally ob-
tained equipment agreed to meet in Arrington’s law office
the next day. Arrington was still not aware of the pending
transaction.
Mays, Crockett, and Sexton, anticipating an attempt to
transfer title, concocted a story that a fictitious owner had
physical possession of the titles to the equipment. Their
scheme called for Sexton to respond to: the fictitious
owner’s name at a given telephone number should Arring-
ton call concerning the titles. There is no evidence that Ar-
rington was aware of this scheme.
The meeting was held as proposed in Arrington’s office
on July 8, 1980. Crockett, Shipley, Arrington, and others
were present. Mays was not there that day, having busi-
ness in another town. Crockett ushered the other partici-
pants to Arrington’s upstairs office. Shipley observed
what appeared to be a factory bill of sale lying on Ar-
rington’s desk with the price Crockett allegedly paid for
the backhoe; a telephone number was written on the bill.
Arrington called that number, conversed with the person
who answered the telephone, and advised the parties that
it would take several days to get the titles.
Shipley was reluctant to pay the entire purchase price
before receiving valid titles and a bill of sale. The parties
agreed that he would take possession of all the equipment
immediately, and Arrington would deposit the purchase
price of $19,200 in the firm escrow account. There is con-
flict in the testimony about the exact arrangements for
disbursement to which Arrington agreed, and on appeal
the government and Arrington dispute the probative in-
ferences flowing from the testimony. Again, viewed in a
light most favorable to the government, the jury could
Sa
properly have inferred that Arrington agreed to pay
12,500 to Crockett as soon as Shipley’s check was hon-
ored.' At the same time, he was to deliver a check for
$1,700 to the “finder.” Arrington was to retain $5,000 un-
til Shipley advised him that he had received the title to the
truck and trailer.?
The following day, July 9, Mays was again in
Arrington’s office. Arrington had prepared a bill of sale
for the backhoe from Crockett to Shipley Homes, Inc., a
construction company owned by the purchaser, and told
Mays to forge Crockett’s name to the bill of sale. After
Mays did so, Arrington stated to Mays that “the equip-
ment was stolen.” This latter evidence was introduced by
the testimony of Mays:
Okay, at that — After the bill of sale was
notarized and after Ms. Jackson had notarized
the bill of sale and I had signed it and I walked
back down the hall and Mr. Arrington walked
back down the hall and he said the equipment
was stolen and I said, yeah. He said, well, go
ahead and take care of it when he comes in.
This is the only direct evidence probative of Arrington’s
knowledge that the equipment was stolen at the time of his
participation in the initial transfer proceedings.
In addition to the background summarized above, the
government at trial presented the following evidence
which it maintains corroborates the direct evidence of
‘Under Virginia law, it was not necesasry to produce a title in order
to tranfer ownership in a backhoe.
?This is the disputed portion of this part of the evidence. Arrington
contends he was to release the $5,000 when he was satisfied as to the
title. The government contends he was only to release it after receiving
approval from Shipley.
6a
Mays’ testimony. Mays obtained Shipley’s address from
Arrington and mailed him the backhoe bill of sale bearing
Crockett’s notarized signature as forged by Mays. Mays
obtained a fraudulent Kentucky title for the truck from
Sexton and a fraudulent Virginia title for the trailer. Ar-
rington looked at these titles and returned them to Mays.
Mays delivered them to Crockett who, in turn, mailed
both titles to Shipley.
As soon as Mays obtained the fraudulent titles, Ar-
rington ordered his firm’s bookkeeper to disburse all of
the funds, including the $5,000 for the truck and trailer.
Crockett, Sexton and Mays divided the proceeds of the
$12,500 and $5,000 checks.? The bookkeeper recorded the
disbursements on a ledger and later testified that Ar-
rington seemed irritated when he discovered she had
recorded the transaction. She also testified that Arrington
did not record his attorney fee of $70.00 in the firm’s
books.
When Shipley received the titles, he noticed that the
Kentucky title was to a 1977 white truck, whereas he had
purchased a 1978 blue truck. Shipley’s attorney, Caldwell,
telephoned Arrington’s firm immediately from Tennessee.
Caldwell could not contact Arrington, but spoke to a man
identifying himself as Mr. Schelin, one of Arrington’s
partners. He advised Schelin not to distribute the funds,
but Schelin investigated and told Caldwell that the funds
‘The prosecution introduced testimony of Mays, as hearsay
evidence under the umbrella of Fed.R.Evid. 801(d)(2)(E), that
Crockett told Mays that Crockett paid Arrington $2,800 from the
distribution. As Arrington was acquitted of the conspiracy charge, we
agree with him that his evidence cannot be considered in determining
whether there was substantial evidence to support the aiding and abet-
ting conviction.
7a
already had been disbursed.* Caldwell immediately con-
firmed the telephone conversation with Schelin by a letter
addressed to the Arrington’s firm. Two or three days later
Caldwell received a telephone call, which he thought and
felt was from Arrington’s firm, explaining that the flaw in
the title was the result of the truck’s having been assembled
from junk vehicles.
The firm’s bookkeeper testified that several months
later, after Mays was indicted for his role in the crime, “I
told Mr. Arrington that I had heard that the law firm was
involved and was it true, was this true. And he said it may
have been.”
The government, citing our standard of review in Steed,
contends that the trial court committed error in granting
Arrington’s motion for acquittal after the jury found him
guilty. We agree with the government’s contention.
In Steed, we held that the same standard applies
whether we are reviewing the government’s appeal of a
judgment of acquittal entered after a jury verdict of guilty
or the defendant’s appeal of a jury conviction. “The ver-
dict of a jury must be sustained if there is substantial
evidence, taking the view most favorable to the Govern-
ment, to support it.” 674 F.2d at 286 (quoting Glasser v.
United States, 315 U.S. 60, 80 (1942).
Respected arguments have been made that a trial court’s
judgment of acquital for insuficient evidence after a jury
verdict of guilty should have the same weight on appeal as
“Schelin testified that he did not remember this telephone conversa-
tion, but the firm bookkeeper testified that he approached her relating
a strange telephone call requesting that the funds not be disbursed.
The bookkeeper than informed Schelin that the funds had been
disbursed and that he should talk to Arrington for the details.
8a
if it were made by the original factfinder.*This court
adopted a contrary rule in Steed, however, and regardless
of how we might have weighed the evidence of Arrington’s
guilt had we been factfinders, in assessing the sufficiency
of the evidence to support the jury’s determination, we can
only inquire whether there is substantial evidence, taking
the view most favorable to the government, from which
the jury might find the defendant guilty beyond a
reasonable doubt. United States v. Block, 590 F.2d 535,
543 (4th Cir. 1978); United States v. Sherman, 421 F.2d
198, 199 (4th Cir.) (per curiam), cert. denied, 398 U.S. 914
(1970). We, of course, do not weigh the evidence or review
the credibility of witnesses in resolving the issue of
substantial evidence. Glasser v. United States, 315 U.S.
60, 80 (1942); Pigford v. United States, 518 F.2d 831, 836
(4th Cir. 1975) (per curiam).
The jury was confronted with a clear-cut credibility
decision in weighing the testimony of Mays against that of
Arrington and other witnesses. We can understand trial
court’s frustration on observing a witness with Mays’ ob-
vious character defects and realizing that the jury verdict,
of necessity, rested in large part on the jury crediting his
testimony. If there is sufficient evidence under the Steed
standard, however, a trial court, which would decide the
outcome of a criminal case on grounds of credibility and
weight of the evidence, must act before the task of resolv-
ing factual issues inherent in those grounds are entrusted
to the jury. Mays’ direct testimony was the linchpin of the
government’s case. He said simply that Arrington told him
the equipment was stolen and instructed him to “take care
of it.” He said Arrington also had him forge Crockett’s
‘See the original panel opinion in Steed, 646 F.2d 136 (4th Cir.
1981).
9a
name to the bill of sale and forward it to Shipley. We must
assume that the jury believed that testimony.
Arrington argues, and we agree, that since this incident
occurred on July 9, it does not necessarily establish that he
knew of the theft before the thieves came to his office on
July 8. It was not necessary, however, for the jury to have
gone so far as to conclude that Arrington possessed the re-
quisite knowledge before July 9. It was on July 9 that
Mays reappeared on the scene. After that date, Arrington
acquired the bogus titles and disbursed the escrowed
funds. These later actions formed a sufficient basis to find
him guilty of aiding and abetting if he knew on July 9 that
the equipment was stolen and illegally transported. To be
convicted of aiding and abetting, “[p]articpation in every
stage of an illegal venture is not required, only participa-
tion at some stage accompanied by knowledge of the result
and intent to bring about that result.” United States v.
Hathaway, 534 F.2d 386, 399 (1st Cir.) cert. denied, 429
U.S. 819 (1976).
The uncorroborated testimony of one witness may be
sufficient to sustain a verdict of guilty. United States v.
Shipp, 409 F.2d 33 (4th Cir.), cert. denied, 396 U.S. 864
(1969).° Whether it is sufficient, of course, depends on the
probative force of the actual testimony. In this case,
however, the sufficiency does not rest alone on the pro-
bative vitality of Mays’ testimony. There was considerable
circumstantial evidence which the jury may have con-
sidered corroborative. Again, viewing the evidence in a
light most favorable to the government, it showed that
after his statement of July 9 revealing knowledge that the
*Shipp was a defendant’s appeal from a conviction but, in view of
Steed, the same rule must apply in reviewing the government’s appeal
for a post-conviction acquittal.
10a
equipment was stolen, Arrington ordered Mays to forge
Crockett’s name to the backhoe title, received and looked
over the fraudulent truck and trailer titles, and disbursed
the $5,000 check, even though he had agreed to hold it for
Shipley’s instructions. His bookkeeper testified that he
was irritated when he discovered that she had made a firm
record of the transactions. After Shipley protested that the
title to the truck was faulty and tried to prevent the
disbursement, Arrington took no action to investigate or
to correct the possible innocent or negligent part that he
might have played in the transfer of a truck with a faulty
title.
Arrington contends, however, that since the jury acquit-
ted him of conspiracy to receive and sell stolen equipment
moving in interstate commerce, its verdict finding him
guilty of aiding and abetting was inconsistent, and on that
basis the district court’s judgment of acquittal was correct.
He acknowledges the general rule that an inconsistent jury
verdict is not a valid basis for a judgment of acquittal.
Hamling v. United States, 418 U.S. 87, 101 (1974); Dunn
v. United States, 284 U.S. 390, 393 (1932). He argues,
however, that if he had knowledge of the crime and acted
as he did, he would have necessarily participatd in the con-
spiracy. Arrington reasons that since the jury acquitted
him of conspiracy, it could not have believed Mays’ tes-
timony concerning his knowledge, and therefore his con-
viction of aiding and abetting cannot stand.
There is simply no merit to that argument. There were
several obviously differing elements of proof necessary
for conviction under the conspiracy and aiding and abet-
ting counts of the indictment. Conspiracy requires proof
of “preconcert and connivance not necessarily inherent in
the mere joint activity common to aiding and abetting.”
United States v. Peterson, 524 F.2d 167, 174 (4th Cir.
lla
1975), cert. denied, 423 U.S. 1088 (1976). See United
States v. Wyatt, 561 F.2d 1388, 1391 n.5 (4th Cir. 1977).
While the “community of unlawful intent” necessary for
aiding and abetting is similar to an agreement, it is not the
same. United States v. Bright, 630 F.2d 804, 813 (Sth Cir.
1980). The only evidence which the jury could have con-
sidered as proving pre-concert between Arrington, Crock-
ett, Sexton and the others, was the same circumstantial
evidence that the government introduced to corroborate
Mays’ direct testimony which established aiding and abet-
ting. The jury could have simply believed that this was not
sufficient to prove the kind of consent necesary to a con-
spiracy conviction.
The judgment of the district court is therefore reversed
and the case is remanded for reinstatement of the jury’s
verdict and further proceedings consistent with this opin-
ion.
REVERSED AND REMANDED.
12a
APPENDIX B
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF VIRGINIA
ABINGDON DIVISION
UNITED STATES OF AMERICA
vs. CRIMINAL ACTION NO. 81-00098-A
JAMES E. ARRINGTON
ORDER
This case came before the court for trial by jury on May
4, 1982, and on May 7, 1982, the Jury found the Defend-
ant not guilty of conspiracy but guilty of aiding and abet-
ting.
Upon Defendant’s Motion for Judgment of Acquittal
and after conducting hearing on same, the court is of the
opinon that there is not substantial evidence to support the
jury verdict of guilty as to the charge of aiding and abet-
ting. The court hereby sets aside said verdict and enters
judgment of acquittal for the Defendant, and it is so
ORDERED.
ENTER: August 26, 1982
/s/ James C. Turk
CHIEF UNITED STAES DISTRICT JUDGE
A TRUE COPY, TESTE:
JOYCE F. WITT, CLERK
By: /s/ L. Roberts
Deputy Clerk
CLERK’s OFFICE U.S. DIST. COURT
AT ABINGDON, VA.
FILED AUG 26, 1982
Joyce F. Witt, Clerk
By: /s/ J. Roberts
Deputy Clerk
13a
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
ABINGDON DIVISION
SEER EEE EEE EEE ERE EEEEEEEEEESE
THE UNITED STATES OF AMERICA,
PLAINTIFF
versus CRIMINAL ACTION 481-00098
JAMES E. ARRINGTON,
DEFENDANT
BEFORE:
THE HONORABLE JAMES C. TURK
CHIEF DISTRICT JUDGE
ROANOKE, VIRGINIA
AUGUST 26, 1982
STENOGRAPHIC REPORT
of all the motions on the part of the respective parties and
the action of the Court in respect thereto and other in-
cidents in the motion for acquittal in the case of The
United States of America, Plaintiff, versus James E. Ar-
rington, Defendant, Criminal Action #81-00098, at Roa-
noke, Virginia, before the Honorable James C. Turk,
Chief District Judge, on August 26, 1982.
APPEARANCES:
William P. Sellers, Esquire
Gaston Williams, Esquire
Assistant United States Attorneys
Roanoke, Virginia
Counsel for Plaintiff
l4a
John W. Swisher, Esquire
Frankin S. Fragale, Esquire
P.O. Box 2506
Charleston, West Virginia 25329
Counsel for Defendant
August 26, 1982
3:07 P.M.
Roanoke, Virginia
THE COURT: I'll ask the clerk then to please call the
next case.
THE CLERK: The United States of America versus
James E. Arrington, Criminal Action #81-00098.
THE COURT: All right, is the Government ready to
proceed. We’ll hear on the motions filed by the defendants
and, depending on the Court’s ruling on those, sentencing.
Is the Government ready to proceed?
MR. SELLERS: The United States is ready, Your
Honor.
THE COURT: All right, is Mr. Arrington ready to pro-
ceed?
MR. SWISHER: Yes, Your Honor.
THE COURT: All right. Since Mr. Arrington is the
moving party as to the motions we’ll let counsel for the
defendants go first.
MR. SWISHER: May it please the Court, I’d like the
record to reflect that Mr. Arrington is present in the court-
room and represented by counsel, John W. Swisher and
Franklin S. Fragale, of the law firm-of Preiser and Wilson,
Charleston, West Virginia.
Your Honor, before the Court today are post-trial mo-
tions, a motion for judgment of acquittal as to Count Two
(2) and then the alternative, for the Court to grant a new
trial as to Count Two (2).
THE COURT: Well let me say that what I’m particu-
1Sa
larly interested in, concerned with, is whether or not there
is sufficient evidence to support a conviction as to Count
Two (2). That’s what concerns the Court.
MR. SWISHER: Yes, Your Honor —
THE COURT: All right.
MR. SWISHER: Of course, I’m sorry — we — our con-
tention is certainly that under the circumstances in this
case that the circumstances are rather peculiar in this case.
There was the conspiracy count as the Court remembers
that the jury came back in after a four (4) or five (5) day
trial and found the defendant not guilty.
Now, most of the evidence that was presented by the
Government went to both the conspiracy count and to the
substantine count. Now, the substantine count, Count
Two (2), was aiding and abetting and the jury came back
in and found him guilty of the substantine count, aiding
and abetting.
If the Court will recall the circumstances that we were
on a Friday when the jury was out. They had been out for
some time. They came back in close to the five (5) o’clock
evening hour and had several questions both from the
foreman and from another member of the jury as to the
time periods contained in each of the two (2) counts.
We felt that by the nature of their questions, wanting to
know what we thought they meant, was wanting to know
if they could consider anything after August the first of
1980 which — on Count Two (2) which was the cutoff
period set down in the indictment by the Government in
that Count Two (2), the language in that was that during
the period of time between June fourteenth 1980 and
August the first, 1980. Well, their questions indicated that
they wanted to know if they were bound to these specific
time periods or could they go outside of the deadline there
that the Government had set of August the first. I think
that the Court correctly informed the jury that they did
l6a
not have to be concerned with the Government proving
precise dates that any action or act may have taken place.
However, in this case where we have the split verdict
and as the Court will recall after the jury had asked their
questions and had gone back in, that I requested the Court
and the prosecutors to meet and we did meet. And I sug-
gested to the Court that it was my opinion and I submitted
to the Court that I felt what the jury was going to do was
that they were going to compromise, that they were going
to find him not guilty. At this time we did not know, but I
felt that they were going to find Mr. Arrington not guilty
of the conspiracy count and come back in and compromise
on that Count Two (2). Fifteen (15) minutes later they did
come back in with a not guilty on Count One (1) and a
guilty as to the aiding and abetting.
I think that because the evidence prduced by the Gov-
ernment throughout the trial went not only to the con-
spiracy count, but also to the aiding and abetting count,
was basically the same evidence. When the —
THE COURT: What about the evidence that was per-
mitted to be introduced and came in, could come under
dealing with the rules concerning a conspiracy, but would
not have been admissible on the aiding and abetting
count? I have in particular the evidence of Mr. Mays to the
effect that Junior Crockett told him, “Well, I paid Mr. Ar-
rington four thousand dollars ($4,000.00) for his work or
his part in the thing.” Clearly, that would not have been
admissible on the aiding and abetting count.
MR. SWISHER: Yes, sir —
THE COURT: It was admissible in the conspiracy
count, once there was sufficient evidence of a conspiracy.
What do we do with that evidence as to Count Two (2),
as to the aiding and abetting?
MR. SWISHER: Yes, sir, that definitely would not be
admissible on the Count Two (2). However, that — of
17a
course, my memory of that was that Mr. Mays said that he
did not pay Mr. Arrington any money.
THE COURT: No, he said that Junior Crock-
ett, as I recall, he said that Junior Crockett told him that
he had paid Mr. Arrington, I believe, four thousand — it
doesn’t matter, but —
MR. SWISHER: Twenty-eight hundred dollars
($2,800.00).
THE COURT: All right, whatever it was.
MR. SWISHER: Okay, and then Mr. Mays did say that
Crockett told him that. Then the Government did not call
Crockett. We called Crockett. Crockett said, “I paid Ar-
rington nothing. I paid Arrington no money.”
Now, Judge, it’s our contention that the jury after the
cross examination of this Mays fellow and what he had to
gain through his testimony — it’s our contention that the
knowledge that’s required in both of these counts, the in-
terest that Mr. Arrington would have had, that is whether
he was paid twenty-eight hundred dollars ($2,800.00) or
not, whether Mr. Arrington did have anything to do with
preparing that bill of sale. This is all uncorroborated
testimony admitted. For example, Crockett said he gave
no money. Mays is the only one that said that he had any
financial interest and that he heard it secondhand hearsay
from Crockett. Crockett denied it.
On the preparation of the bill of sale, Mays said that in
the office, right there in Arrington’s .office, with Ms.
Campbell — Katherine Jackson Campbell’s office right
across the hall — that Arrington told him, Mays, to go
ahead and forge this name onto the bill of sale in the
presence of Jackson.
Well, when Jackson took the stand she said, “I don’t
remember signing and notarizing the bill of sale, but that
is my signature so I probably did. But I can tell you one
thing; that I would never — I would sign — I would
18a
notarize a document if an attorney brought it to me and
said that John Doe signed it and, in fact, if — you know,
if the attorney said John Doe signed it.”
What Mays said was that this was done — the forgery
was done in front of Jackson and she said very definitely
that I would never notarize, never notarize, anything
under those circumstances. So that counteracts that part
of what Mays said.
Our contention is that — and also the knowledge part of
it goes to both of these counts. All the way through this
vast testimony that we listened to from the time this thing
started down in Georgia, all the way through getting the
property up into Virginia and then the transaction and so
forth not one shred of evidence involving Jim Arrington,
not one shred.
Then the transaction takes place on this eighth day of
July -- of July, 1980. Then through this transaction all the
people that have testified, Rutherford, Barker, Shipley, all
the people who were there in Arrington’s office that day,
not one of them said that they thought that that transac-
tion — that anything appeared illegal or anything about it.
Then, incredible as it may seem, nothing happened that
afternoon — Arrington’s testimony was it was a busy day
and so forth. The very next day nothing happened. Ar-
rington is not involved, not mentioned, his name never
mentioned up to this time. Nothing in the setup or
anything.
Then Mays who has made a deal with the Government,
whatever it was. It certainly there were certain immunities
and certain promises for testimony — comes along, no
contact, no nothing with Arrington and the very next morn-
ing out of the clear blue sky he comes in here under oath
and tells us that Arrington says, “The property is stolen,
isn’t it?” And Mays says, “Yes, it is.”
And then the Government’s whole case was that Ar-
19a
rington dispersed the money after he knew that the proper-
ty was stolen. That is incredible and the guidelines that we
have on the judgment of acquittal is that if the testimony is
uncorroborated and if it is incredible the Court can look at
that testimony and weigh that testimony and find that it’s
not substantial. Now, the test is that it has to be substan-
tial and it has to be the evidence that any jury would find a
person guilty of, has to find beyond a reasonable doubt of
every element of the offense. And when you look at the
elements of the offense of aiding and abetting, when you
go back and look at the evidence and realize that the only
evidence of knowledge, of participation, of any financial
interest, or anything came from Chuck Mays who I submit
was completely impeached because if the jury had believed
Chuck Mays they would have found Jim Arrington guilty
of the conspiracy count. But they came back and said Jim is
not guilty of the conspiracy count. So they didn’t believe
Chuck Mays.
Then they come back in and ask the Court, “Can we go
on past August the first.” The only thing that they could
have been talking about after August the first was possibly
the answer to the letter that Caldwell sent to Schelin. The
letter came from — was written on the twenty-eighth day
of July by Caldwell, Attorney Caldwell from Bristol, Ten-
nessee, addressed to Schelin. Schelin testified that he
didn’t get the letter, but then some way — Jim Arrington
was on vacation in Myrtle Beach with friends of his —
came back Monday evening, July the twenty-eighth. His
testimony was that within a week I found the letter. The
letter had worked its way back to my desk and I found the
letter.
Now, after he had appeared at the Grand Jury, after he
had appeared at that trial back in ’81 to testify and after
the FBI had told him, “They’re out to get you. Mays is out
to unload on you,” then he became concerned. Then he
20a
went back to the office and started searching, searching,
searching, trying to test everybody’s memory, the girls, the
secretaries, everybody’s memory about the letter trying to
find anything. Everything that he found as far as ledgers,
parts of checks and everything else he voluntarily turned
over to the Government before he was ever considered for
indictment. He could not find his copy — he could not
find the copy of the letter that came from Caldwell to
Schelin that ended up on his desk. He found one secretary
back there that remembered typing the response to that
letter. At the trial — at our trial he testified that he did
answer that letter. That answer would have had to been
over into August. Also — and then Caldwell says, “Well, I
didn’t get that letter.” But if you’ll remember Caldwell’s
testimony, his own letter that he wrote to Schelin that Ar-
rington ended up getting, his own letter — he couldn’
even find the copy of his own letter for months later when
he was cleaning out the pile on his desk and found his own
letter. So it’s very reasonable that Caldwell could have
misplaced the response that Jim testified tht he wrote to
that letter. But all that Jim’s letter said in response to
Caldwell’s letter was the same thing that the first telephone
call — when Caldwell wrote that letter on the twenty-
eighth he also followed it up with a telephone call to the
law firm. When he got somebody on the telephone all he
said was, “The money’s already been dispersed.” They got
off the phone, they went and checked and came back — it
wasn’t Arrington because he was on vacation in Myrtle
Beach. Whoever came back checked on it with the book-
keeper and came back and said the money’s already been
dispersed. Caldwell writes his letter to the firm as a
followup.
Then Caldwell says that later on he gets a telephone call
from somebody at the firm. Now, in all his three-o-two’s
2la
of his interviews and so forth he’s not one time ever tried
to say that that person was Jim Arrington, and Jim Ar-
rington very specifically in his testimony — we’ve checked
the tapes again today and Mr. Sellers says in his reply to
our motion that Mr. Arrington in his testimony said that
he probably did make that telephone call back to Cald-
well. Well, the tapes show that Mr. Arrington testified
that he didn’t make that telephone call back to Caldwell
and he didn’t make the telephone call back to Caldwell.
Your Honor, that was the telephone call where some-
body had told Caldwell not to worry about it, it’s an
assembler and so forth. Now, Mr. Arrington did not make
that telephone call. He’s testified to that effect, so the only
thing that that jury could have been looking at and want to
hang their hat on was that they completely, by finding Mr.
Arrington not guilty of all the acts in that conspiracy
which was the same testimony that carried through that
whole period of time clear up to August the first, the only
thing that they could have been looking at was the pos-
sibility of whether Jim Arrington made that phone call to
Caldwell. Not one time in the testimony was it ever iden-
tified that it was Arrington that made that telephone call.
Now, Judge, we’re going back here and looking for
evidence of a substantial nature that any rational jury
could find somebody guilty beyond a reasonable doubt
out of every material element. And the elements of aiding
and abetting that we all know that they had to prove
beyond a reasonable doubt that Mr. Arrington knew the
venture was occurring. The only evidence we have of that
is Mays’ incredible testimony the day after this transaction
when nothing, no knowledge had been shown, no involve-
ment, no nothing, out of the clear blue sky the next day
Mays gets up on that stand and says Arrington came to
him. Just out of the clear blue, no contact after the trans-
action or anything. “The property’s stolen, isn’t it?” “Yes,
22a
it is.” That’s the only testimony, the only evidence, of
knowledge on the part of Mr. Arrington of this venture.
The second element is that Arrington — they had to
prove beyond a reasonable doubt that Arrington had as-
sociated himself with this venture. There is no evidence
other than Chuck Mays’ testimony that Arrington in any
way associated himself with this venture. In fact, Your
Honor, if you want to look at the evidence we contend
that this illegal transaction that took place with Chuck
Mays being the ringleader ended when that property, when
that equipment when the money passed into the escrow ac-
count and when Shipley took possession of that equipment
which was very shortly. He got some of it the day of the
transaction and the rest of it very shortly thereafter. If you
want to take the Government’s view that this transaction
was not over until after the money was dispersed and the
titles accepted, then fine, let’s look at it. There was one
share dispersed of twelve thousand dollars ($12,000.00) on
July the eleventh. The money was put into escrow on July
the eighth. Arrington testified that he waited three (3) days
to wait for Shipley’s check, nineteen thousand (19,000), to
clear the bank so that he wouldn’t be writing any bad
checks out of his escrow account. That’s reasonable. There
was no problem with that twelve thousand (12,000) that
was supposed to go because he had gotten the backhoe and
the lowboy. The next check was seventeen hundred dollars
($17,000.00) to Barker a finder’s feed, and there was no
problem with that check. Shipley said, “Go ahead, fine.
He’s the finder and he gets it.” Arrington was ready to
disperse the seventeen hundred dollars ($1700.00), but ac-
cording to the investigation, according to Barker’s
testimony Barker went off on vacation and wasn’t around.
So the minute he came back from vacation on the twenty-
first day of July he came back then and came into the of-
23a
fice and he got his check for seventeen hundred dollars
($1700.00). No problem. The big check as we recall from
the trial was the five thousand dollars ($5,000.00), final
five thousand dollars ($5,000.00) which was not supposed
to go — here’s where we had the confusion. If the Court
will remember them all — most of them lined up, the peo-
ple who were at that meeting, the day of our trial and
testified about the time it was supposed to be received and
then a notification from Shipley to the law firm.
But all the way through the Grand Jury statements, the
three-o-two statements of these witnesses the trial back in
1981 — in fact, I read right from one page, page 142, of
Mr. Shipley — now, let’s look to the — let’s look to
Shipley, what he said in July before he was prepared for
this trial in May of this year. Back in July of ’81 when Ar-
rington wasn’t on trial, what did he say? I read right from
page 142 of that transcript at least six (6) times during that
trial that Shipley said himself that it was his understanding
of the transaction that whenever Arrington, the law firm
there, was satisfied that the titles were in good shape then
fine, go ahead and disperse the money. So what happen-
ed? I mean, once again it wasn’t Arrington running down
and getting that phoney, fraudulent, forged title on the
lowboy. No, that was Mays that went down there and put
the sheriff's name on it and everything else. It wasn’t Ar-
rington that went runing over to Kentucky and got the
fraudulent title on that truck. No, huh-uh, that was Mays
that got Sexton and his compatriots to go get that title on
that truck. Then when they come back with the title of the
lowboy, July the eleventh. Title to the truck — when they
signed the name — when Mays forged the name on the
back of it, July the twenty-third. Arrington’s testimony is
that Mays come in and said, “We've got the titles. Every-
thing is fine. Disperse the money.” Right on the back of
the title to the truck that they got from Kentucky where
24a
they signed the name the date is July the twenty-third. It
comes right into play very consistent with Mr. Arrington’s
testimony that on July the twenty-third that that’s when
Mays said, “The titles are okay. Disperse the money.” So
Arrington on that date, that’s the date of the check for five
thousand dollars ($5,000.00), July the twenty-third, sends
the check out. Then Mays gives these titles over to Crock-
ett at his house in Hurley and here they’ve been trying to
run Crockett’s kids back and forth to Shipley on foot or in
the car over to Tennessee to deliver it and they can’t make
contact. They bring it back and finally mail it on the
twenty-fourth. So that’s when the envelope was post-
marked, July the twenty-fourth.
So, Your Honor, getting back to the— back to the point
I was making that after this then comes July the twenty-
eight. That’s when Shipley goes in to see Caldwell and he’s
going over to Bristol and says, “You know, there’s
something funny about this. The truck doesn’t match up.
The color of one’s blue and one’s white here with this
title.” And that’s when Caldwell called the firm. He didn’t
get Arrington, he’s on vacation. He gets somebody else.
Schelin says he doesn’t remember, but he could have got-
ten the telephone call and he says he didn’t see that letter.
He says he could have gotten the phone call. But all that
was happening then was that Caldwell was told the
moneys already been dispersed. Then after that Caldwell
follows up with these letters the same date, the twenty-
eighth of July, 1980. So on July the twenty-eight, 1980 all
that could ever be imagined in this transaction was done.
On this date the titles had been received, the money had
been dispersed, the property had been turned over to
Shipley and was taken to Tennessee. Nothing could have
happened. The transaction if you want to take the most
extended view possible of that transaction had to have
been over on July the twenty-eighth, 1980.
25a
Then the jury comes back in after not believing Mays.
They had to have believed Mays to find Arrington guilty
of Count One (1). They said, “No, sir.”
THE COURT: But we say they had to believe. The fact
that they didn’t believe some of his testimony doesn’t
necessarily mean that they had to discard all of his
testimony. They were at liberty to discard part of it. To
think that he was not telling the truth about part of it or
mistaken. But what do we do — and this is a question that
concerns me — is there sufficient evidence to sustain the
conviction if you accept as true Mays’ statement to the ef-
fect that a day or so after they met in Arrington’s office
and Mr. Arrington said, “That was stolen property, wasn’t
it?” And he said he answered yes. If we except that, is
there sufficient evidence to uphold this conviction?
MR. SWISHER: Well, I think there is some evidence,
but I don’t think that that satisfies —
THE COURT: Is it substantial evidence? That’s what —
MR. SWISHER: I don’t think that that satisfies all of
the four (4) requirements of the elements of aiding and
abetting. I don’t think that that satisfies it. And, Your
Honor, I submit that the jury could not have believed even
that portion of Mays’ testimony that then Arrington
would have had knowledge. They would have found him
guilty of that conspiracy count if they thought he had
knowledge because after then then he dispersed the check.
So he would have had knowledge and he would have taken
part in what was going on.
THE COURT: Well, they could have found well, no, he
wasn’t a part of the conspiracy. He didn’t have anything to
do with these arrangements, but that he aided in abetting
the sale of it after it was in, could they not?
MR. SWISHER: But, why — then why, Judge, did they
find him not guilty and then come back in and want to
26a
focus after August the first? Why did they want to focus
after August the first?
THE COURT: Because I think they were concerned
about the activities that took place around or about
August the first dealing with the notification about the —
not to disperse and the fact that it had already been
dispersed and so forth. The letters from the attorney, I
think they were — I think that was what was concerning
them. -
MR. SWISHER: Well, I think the only thing they could
have been concerned about was Arrington answering the
letter. He testified tht he did not make the phone call.
THE COURT: I understand —
MR. SWISHER: And his testimony about the letter was
— is that all he said was he reiterated the fact that the
money had already been dispersed. But, still that is not
sufficient evidence to prove four (4) elements of aiding
and abetting. Just merely writing the letter stating the
money had been dispersed doesn’t show that he had
knowledge that the venture was occurring. It doesn’t say
that he is —
THE COURT: But what if the jury had felt like, well,
Mr. Arrington, you know, if he weren’t guilty this would
have at least said, “Well, I’m sorry that this was done and
will make it good.”
MR. SWISHER: Well, Your Honor, I think that Mr.
Arrington testified that when he wrote the letter that he
felt that certainly — that Mr. Caldwell would get back
with him — was, you know — hey — he felt at the time
that that was all that he needed to do. He would either go
to the authorities or that he would get back with him. As
far as what he knew when he wrote that letter was I par-
ticipated in a very small part in a legitimate business trans-
action and I did — the best evidence of what was supposed
lace
27a
to have been done with that money, the dispersement and
the manner of dispersement, is to look at the receipt.
Now, if Mr. Arrington was in on this he wouldn’t have
gone through the bit of writing the receipt or putting the
money in his escrow account. He wouldn’t have waited all
this time. He would have said, “Come on, boys, let’s get
down to the bank. We’ve got nineteen thousand (19,000).
Let’s get down to the bank and cash this and divvy it up.”
No, he puts it in the escrow account and waits this time un-
til he thinks he supposed to disperse it. The receipt that
was accepted and looked at and examined and gone over
on that day, on July the eighth, with Arrington and Ship-
ley and was agreeable with Shipley didn’t have anything on
there about the title to the property.
Mr. Arrington acted in what he thought was a legitimate
business transaction. When he came back from the beach
and heard that somebody had been inquiring and saying
— had called in and said that the titles were not good or
that the truck didn’t match up with the title he wrote the
letter reiterating that the money had already been dispersed.
He felt that Caldwell would get back with him or that
Caldwell would go to the authorities or Shipley would go
to the authorities and then they would come to him which
is what happened.
Your Honor, there is — the fact that that jury came
back in and Mays — and Mays — and we all know what
part Charlotte Foleno tried to play in it and we all knew
before the trial was over what connection she had with
Chuck Mays. Well, really she didn’t add that much to it.
She’s the one that charging the phone calls, calling Mays
back and forth clear up to the time of the trial and charg-
ing them to Arrington’s phone bill even after she doesn’t
work there.
But it’s Mays and if they had believed Mays — if they
had believed Mays when he said that Jim came to him and
28a
said, “The property’s stolen.” If they had believed Mays
that Arrington got twenty-eight hundred dollars
($2800.00) that Crockett said that Arrington got twenty-
eight hundred dollars ($2800.00). If they had believed
Mays that Jim Arrington had took a part in preparing that
bill of sale which their own Government witness, Kath-
erine Jackson, said, “No way did it ever happen that way.
That I would have notarized something with somebody
right in front of me forging somebody else’s name to it. No
way.”
Those things were completely the main elements of what
Arrington was supposed to have done and were completely
discredited. And Mays, the guy who tried to say that all of
my troubles, all of me going sour, all of me going bad was
because I was associated with the devils at that law firm.
But after he left the law firm — and he left the law firm
after all of this was over — he wrote that letter that we all
saw Saying what a great place it was. What a great bunch
of guys they were. How good they were to him. How
proud he was to be a member of that organization. That
guy that took that stand to get immunity from several
charges — took that stand and testified against Crockett in
two (2) other trials, got out there and tried to sell this man,
this lawyer, that this — well, I’m not going to go over it.
This Court — the job done by this probation officer in this
presentencing report is excellent. One of the best I’ve ever
seen.
This Court — you, Judge Turk, you know Jim Arring-
ton. Now, you know his family and you saw the trial. You
know what the people think about him. You know what
the doctors, lawyers —
MR. SELLERS: Judge, are we arguing punishment
here —
MR. SWISHER: No, we’re not arguing punishment.
We’re arguing on the evidence.
29a
MR. SELLERS: I’ve been patient, but we’re beginning
to get into an argument on the man’s character, not on the
facts of the case as presented.
MR. SWISHER: I’m —
MR. SELLERS: I heard it and, you know, I’m sure you
heard it, Judge.
MR. SWISHER: I’m talking about the believability of
Chuck Mays. You heard the witnesses commend the credi-
bility of Chuck Mays. The witnesses came in at trial —
even his own relatives and said they wouldn’t believe him
under oath. Yet five (5) or six (6) people come in and tell
you what Jim Arrington’s been like for thirty (30) or thirty-
four (34) years that they have known him. And all the peo-
ple that have been contacted since say that he is honest.
He’s a hard worker and all of the other things that are said
in that report.
No, Your Honor, in answer to your question, we don’t
have substantial evidence here that a jury, a jury that on
Friday evening at fifteen (15) till five (5) asked questions,
that we want to go outside the time period, and come back
in fifteen (15) minutes with a compromised verdict because
the weekends on them. No, we don’t have substantial evi-
dence. We have a compromise on their part at five (5)
o’clock on a Friday evening before a weekend, a beautiful
weekend —
THE COURT: Well, as I recall though in the con-
ference there with me you thought they had already found
him not guilty of the conspiracy count.
MR. SWISHER: That was my contention. I felt that
they had already found him not guilty of conspiracy and
that they were wanting to compromise on something and
as you recall I wanted you to —
THE COURT: To call them back. I recall that.
MR. SWISHER: And to instruct them on the elements
of aiding and abetting. Which fifteen (15) minutes later
30a
they came back and found him not guilty and in my opin-
ion they compromised on that — there’s no evidence —
THE COURT: All right, let’s see what Mr. Sellers has to
say and then I’ll give you an opportunity to respond.
MR. SELLERS: Your Honor, I think that the counsel
neglected to mention one salient feature here now under
consideration and that is to say that the evidence of his
juncture is viewed in the light less favorable to the Govern-
ment. That-is a rather heavy burden —
THE COURT: But there has to be substantial evidence
to support the jury verdict.
MR. SELLERS: We had a rational jury, Your Honor.
We had — certainly let me contend at the onset that we
had a rational jury here. I don’t think anybody could
doubt that. They were the most attentive jury I’ve perhaps
ever tried a case before.
I think before we go any further we should correct the
misconception of counsel as to the question asked by the
jury. The counsel did not focus on the date of August the
first. The language is from the foreman, on Count Two (2)
of the indictment we would like to know on the dates of
June to August first, was it also on or about like the first
part, that is to say the conspiracy count. They didn’t focus
on either August first or June. I think the Court —
THE COURT: Well, we know that — I mean, there was
no evidence at all that he was involved in June and when
they were saying as to August the first we know that they
had to be concerned with on or about August first.
MR. SELLERS: They could have easily have been con-
cerned with whether or not the equipment was in fact
stolen on the particular day in June alleged I submit to the
Court.
THE COURT: There’s no evidence of Mr. Arrington’s
involvement until the day before the — but, the thing that
3la
concerns the Court about it is the evidence that came in
and was admissible under the conspiracy count, but would
not have been admissible had we not had a conspiracy
count. That’s the thing that concerns me, whether or not
it’s fair to convict this man — and we don’t know whether
the jury considered evidence as to Count Two (2) that
couldn’t have been admitted had we not had the con-
spiracy charge in it.
MR. SELLERS: Your Honor, the issue is whether or
not at the moment of the inception of that evidence the
Government had made a prima facie case of conspiracy.
At that time you had an individual who was allegedly a co-
conspirator testifying that he had an agreement with the
defendant and he was proceeding then to relate conversa-
tions between other conspirators.
THE COURT: But it was admissible and the Court gave
the jury limiting instructions. That is, admissible only as
the conspiracy, but then —
MR. SELLERS: Yes, sir, but that was only one piece of
evidence. That only related to a fact of twenty-eight hun-
dred dollars ($2800) which is not an element of aiding and
abetting, receipt and sale of stolen property moving in-
terstate. That’s not one of the elements. We don’t have to
show that he benefited financially in one scintilla. So you
can sweep that piece of evidence out.
The fact remains, Your Honor, that we had evidence
from Chuck Mays that as the Court has pointed out that
he spoke either the evening of the transaction or the day
after was his testimony, he didn’t recall which, with the
defendant and they had the conversation, is this stolen
equipment and he was told, “Yes, it is.” And he says,
“Okay, you take care of it.”
Now, I submit to you that the jury is the sole judge of
the credibility of those witnesses and they had to believe
Mays in order to convict him or Count Two (2). You can’t
32a
convict the man without believing Mays’ testimony in
Count Two (2) of this indictment. You can find him not
guilty of conspiracy and still believe Mays if you do not
believe that he ever joined the conspiracy. And we had no
evidence of the smoke filled room. The Government was
aware of that. We argued to that jury that we didn’t have
to show the meeting of all the people together in the smoke
filled room, but I felt all along that they wanted to see that
and we could not produce it. We could only produce the
meeting of the minds between Mays and Arrington and
then Mays meeting with the other conspirators. Now,
under the law we know that’s all that’s required, but the in-
structions of the law on conspiracy is difficult. It’s diffi-
cult for laypeople to understand. It’s very much easier for
them to understand aiding and abetting. Doing an act to
help somebody and doing it knowingly. Now, that was
proved beyond a reasonable doubt. You may have a ques-
tion of whether he joined a conspiracy, but you can still
find him guilty of aiding and abetting. Now, I submit
that’s what the jury did. And the evidence was from Mays
that he told him and then what action did Arrington take
after he was told that the equipment was stolen? He pro-
ceeded to disperse the monies. He proceeded to tell Mays
to forge the signature on the document which Mays has
testified he did do alone with Arrington, I believe, as I
recall.
In any event, they say Mrs. Jackson said, “No, it didn’t
happen.” She didn’t remember the transaction if you recall
the testimony. There were other corroborating pieces of
evidence. Ms. Foleno about Arrington requesting, “Why
did you set up the ledger card on this transaction?” He
didn’t want her to do it. He seemed irritated, she testified.
She also said that at one point he said — she asked him
was the law firm involved in any illegalities. And he said
yes, maybe they were, he says.
33a
And if you want to talk about incredible testimony,
look at the prevarications, the perjury this man committed
on the stand, I submit to the Court. He testified at Grand
Jury and he testified under oath in July a year ago all
about how he didn’t do anything when he got the letter
from Caldwell. Then he pops up on the stand when he’d
indicted and says, “Oh, I answered it.” The first time we
ever hear that. “I answered it.” The jury had a chance to
judge the credibility of the witnesses. They put them in the
balance and he was found wanting. And that’s an impor-
tant point here at this juncture, Your Honor, when you’re
viewing the evidence in a light most favorable to the Court
— to the Government because the light most favorable to
the Government would say that Mr. Mays was believed.
The Government has evidence here if you believe Mays
beyond a reasonable doubt. When you look at the actions
of the law firm and this man after the transaction has
come to a point where false titles are sent to purchaser.
Your Honor, the testimony of Rutherford, the testi-
mony of Shipley was concrete and clear in understanding
at the closing of this transaction in the law office was that
when good title, clear title, is received by Mr. Shipley he
would call Mr. Arrington and tell him to disperse the
funds, the remaining five thousand dollars ($5,000.00) be-
ing held in escrow. Not when Arrington decided the trans-
action was completed and he never, ever, got clear title,
Your Honor. He told you in his own testimony, “I
wouldn’t pay for something until I got title for it.” And as
soon as he got bogus title he had his attorney call the law
firm and they start the old side step at that point. Oh, look
the money’s already dispersed. And then the phone call
comes back, “Look it’s made up of other parts of other
trucks.” Mr. Arrington as I recall, Your Honor, testified,
“I think I made a phone call.”
If you recall the conference that was held when the ques-
34a
tion from the jury came through, Your Honor said in sit-
ting in the room in the back part of the clerk’s office,
“Well, Mr. Arrington testified he made a phone call,
maybe that’s the phone call he’s talking about.” And I
remember it, I wrote it down because I remembered the
same thing, that he testified, “I may have made a phone
call.” And I realize that’s a complete contradiction of
everything he’s ever testified to under oath, but for Ar-
rington that’s not unusual.
Your Honor, there is clearly sufficient evidence viewed
in light favorable to the Government that the jury as the
sole judges of the credibility of the witness could have con-
cluded beyond a reasonable doubt that Mr. Arrington was
guilty of the offense of aiding and abetting.
I don’t know why they didn’t convict him of conspiracy.
I can suggest to you several reasons why they didn’t: a
compromise, a failure to understand the intricate art of
the language of that law. I don’t know, but surely if you
believe Mays and there’s no suggestion that they did not —
and to delve into the meaning of the not guilty verdict on
the conspiracy I submit is going into areas we can not go
into.
I just don’t think that there’s any question that there’s
sufficient evidence viewed in the light most favorable to
the Government to substantiate a conviction.
MR. SWISHER: Yes, Your Honor, just a short reply.
Mr. Arrington — Mr. Sellers wants to go back to the
Grand Jury testimony of Mr. Arrington, he wants to go
back to the trial testimony of 1981 of Mr. Arrington when
he wasn’t on trial. Mr. Arrington testified in 1982 at his
own trial what badgering, what harrrassment took place
back during the Grand Jury period and back during the
trial period. Mr. Sellers wants to come right out and say
that Mr. Arrington at the trial of 1981 when he was not on
trial said that he did not write the letter to Caldwell. If you
35a
look at the transcript — which I looked at it again last
night — when the Court questioned Mr. Arrington he said
— again of that testimony if you want to take the whole
context of it, he said, “I don’t remember writing a letter,
but I could have written the letter.” Now, this seems very
reasonable to me, Your Honor, that you give a guy that’s
practicing law, very busy, he doesn’t know that he’s been
suspicioned of anything, he cooperates. The FBI comes to
him and he gives them all the records he can find. He’s
called before the Grand Jury. He could have hired counsel
and taken the Fifth Amendment if he thought he was in
any trouble, but he didn’t. He went to the Grand Jury. He,
obviously, was not prepared. He had not thought about it.
He had not tried to think back a year before as to what
happened in a transaction that only took fifteen (15)
minutes. The same thing at the trial. He goes on trial, only
‘at this time does he find out by Klotz telling him, “Mays
and those guys are out to unload on you. They’re going to
unload on you.” Then after that he comes to us and we
start looking into it. We start digging and delving and then
when we come up for the trial in 1982, yes. Certain things
are clarified, certain things are recalled by talking to
secretaries, talking to other people in the firm. Talking
about things which brings back the recall of people.
A busy lawyer practicing law. How many telephone
calls? How many letters did he write a day? A year later —
if I had to go back right now or a year from now and think
back and try to remember a transaction or something that
took place in my office or whether or not I wrote a letter
or not would be very, very difficult until I started probing
the minds of everybody that works with me as to what I
did. Looking at calendars, looking at this, looking at that.
And they made a big thing there was no file kept on this.
Mr. Caldwell didn’t keep a file either. It took him months
to find the single letter that he wrote. Mr. Arrington didn’t
36a
have anything to do with preparing the bill of sale so he
didn’t have a bill of sale to put in the file. Mays had that
bill of sale prepared from a form that they had in the of-
fice and then forged the names on it.
You want to talk about the telephone call? We listened
to the tapes again today after I read Mr. Sellers’ response
to our motion where he alleged that Mr. Arrington said, “I
probably did make that telephone call to Caldwell.” We
came back over this morning and Clara Mosher made the
tapes available and we listened to them. No place in there
— he denies making that phone call. Mr. Arrington says
the only phone calls that he remembered at the time of the
trial of making was he possibly could have made one or
more phone calls the day of that transaction to check on
the title and to make arrangements for that equipment to
be moved on the road without the proper permits or li-
cense or whatever. I mean, here’s another guy that is going
out and calling the State Police, calling the Department of
Motor Vehicles and everybody else to get a permit and
make it easier for this guy to move the equipment on the
road. I mean, if he was in some kind of fleecing, he’s not
going to be calling the State Police.
Judge, conspiracy opens the door. I mean, it is the Gov-
ernment’s wonderland. It opens the door to everything.
THE COURT: It’s a broad umbrella, isn’t it?
MR. SWISHER: It sure is. And that conspiracy, the
fact that we had conspiracy charged here. And the fact
that we had this aiding and abetting down at the end, we
came in here in front of that jury and opened up this mass
of everybody saying everything that would never have
come in any other time. Otherwise, if they hadn’t of had
that and hadn’t of heard all of this stuff that wouldn’t even
have been admissible in another charge they would not
even have felt they had to compromise on something.
No, they didn’t believe this Viet Nam War hero that was
37a
corrupted by the Eagle Scout, Your Honor, and his law
firm, that afterwards wrote the love letter and then later
when he was getting ready to go on trial himself in July of
81 gets with his attorney and contrives this ethics com-
plaint against Arrington wherein he says at that time, I
talked to you as attorney-client on this matter.
My Lord, Judge, if Arrington was involved as Mays
said he was the day after the transaction and he knew what
was going on, why would this man come to him on an
attorney-client basis? He would already know all about it.
He contrived that. His defense at that trial before he
decided to plead guilty on the third day of the trial was Ar-
rington was the brains behind it and I was a puppet and he
was using me. He sent the ethics complaint in. We pro-
duced it, showed it, every word in it and what all it said.
Mays couldn’t even tell the truth about how long he served
in Viet Nam. It was incredible, Judge. No connection, no
nothing with this Arrington in this elaborate scheme that
he was obviously the brains of. Even testimony to the ef-
fect that Mays told Arrington, “You’re the only attorney
that’s going to be in the office on that day so will you
please handle this transaction?” He was too busy. He
didn’t want to handle it. And then the next day with
nothing happening. Not one bit of contact with Arrington.
Not one bit of anything else happening to the case. Is it
logic, Judge, that this Arrington is going to come up and
say, “It’s stolen, isn’t it, Chuck?” And Chuck said, “Yes, it
is.” No Judge, it didn’t happen in that way. This was the
man who made a deal for himself and made the statement
to a very personal friend of his named Roger Owens on the
State Police, “If I go to jail I'm going to take a lot of peo-
ple with me.”
We don’t have evidence, Judge. We have some minds of
jurors that were clouded by a lot of hearsay that was al-
lowed to come in during a conspiracy charge. They felt
38a
that maybe he did something. You know, maybe he did
something. But no evidence — no evidence beyond a
reasonable doubt to convict and take this man’s livelihood
away from him. Yes, it’s not just a matter of prison time
and fine. No, here’s the man who worked his way through
law school. Who’s worked himself into a practice of law,
is successful. No, it’s not like Chuck Mays who can go
from one job to the next, to the next, to the next or Benny
Mitchell who can go down in Georgia and serve a few days
and come back up and testify or the other people. No, this
man, it’s his livelihood. What he has worked since he got
out of high school to be, a lawyer. And everybody that
your probation department over here talked to said that he
is competent. He is hard working. We take his advice. Are
we going to let somebody like Chuck Mays who pointed a
finger and put the finger on this man because the Govern-
ment wanted a lawyer or are we going to hold the system
of this criminal justice — the standard of this criminal
justice system as it’s supposed to be? Each and every ele-
ment beyond a reasonable doubt. And I submit, Judge, it’s
not there. It’s not here and it’s never going to be here
because all they’ve got — the Government got in a bind
and had to base their case on that Chuck Mays. And they
fell short and we can’t take this man’s livelihood away
from him with that kind of stuff.
Thank you, Judge.
THE COURT: All right.
MR. SELLERS: Your Honor, if we fell short, we
wouldn’t be here today. In fact, we didn’t fall short. He
was convicted by twelve (12) individuals who found him
guilty on that indictment, that part of the indictment,
beyond a reasonable doubt.
I have nothing further to say.
39a
THE COURT: All right. Gentlemen, I'll say this, the
case has given the Court a great deal of difficulty. When I
came on the bench almost ten (10) years ago now I said I’m
never going to take a case home with me. When I leave at
five (5) or six (6) or seven (7) or eight (8) then I don’t think
about them until I get back. I haven’t been able to do that
in this case. It’s concerned me from the time the jury came
back. Had the jury returned a verdict of guilty as to the
conspiracy count I would not have had any doubts about
the sufficiency.of the evidence to convict on that count,
but the jury returned a verdict of not guilty as to the con-
spiracy count. And then when we eliminate that evidence
that was admissible only as to the conspiracy count that’s
what gives the Court trouble.
Now, I’m familiar with the Steed Case. It came from
this Court and the ruling of the Fourth Circuit was that
once you send a case to the jury, if the jury convicts, then
the jury verdict must be upheld if there is substantial
evidence looking at it in the light most favorable to the
Government to support it. With that standard though this
Court is of the opinion that there just is not substantial
evidence to support the jury verdict. And given the obliga-
tion of the Court to prove guilt beyond a reasonable doubt
the Court finds as a matter of law that the evidence in this
case is insufficient to sustain the conviction. The Court
will grant the defendant’s motion for judgment of acquit-
tal.
I'll say this, I hope the Government will appeal this case.
I did not grant judgment of acquittal when the Govern-
ment — I mean, when the defendant rested. So I sent it on
to the jury and if there’s error in this case I want the Court
of Appeals to correct it, but if this Court is going to make
error I want it to be on the side of the defendant and not
on the side of the Government.
40a
I just do not feel that there is sufficient evidence looking
at it in the light most favorable to the Government and
taking every reasonable inferences that you could draw
therefrom I just feel that there is not sufficient evidence to
support the jury verdict.
This Court is always reluctant to disturb jury verdicts
and I do it with — after much thought in this case. I
discussed this case many times with the probation officer
because it’s given me great concern from the day it was
returned. And I want to say again, I hope the Government
will appeal this case and let the Fourth Circuit pass on it.
And if the trial judge has erred the Fourth Circuit can send
it back and ask me to reinstate — enter up judgment on
the jury verdict.
Gentlemen, the Court today will enter an order granting
the motion for judgment of acquittal.
All right, I ask the marshal to declare just a short recess
at this time.
(Proceedings are concluded)
4la
CERTIFICATE
I, Clara L. Mosher, Official Court Reporter for the
United States District Court for the Western District of
Virginia, reporting in said Court, hereby certify that the
foregoing is a true and accurate transcript of the motion
for acquittal in the case of The United States of America,
Plaintiff, versus James E. Arrington, Defendant, Crim-
inal Action #81-00098, before the Honorable James C.
Turk, Chief District Judge, on August 26, 1982, in
Roanoke, Virginia.
/s/ Clara L. Mosher
OFFICIAL COURT REPORTER
August 30, 1982
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.