If this was leaked to the media did the Corpus Christi Caller Times tell us about this pedophile?
Did the Caller publish any stories on this matter?
And the CCISD Board did they inform the community?
The Serpent IN the Garden January 14, 1996 Houston: CCISD board President Henry Nuss AQUIESCED. CCISD eagerly supplied pedophile with young patients - even after he had been publicly charged.
CORPUS CHRISTI - James Plaisted was a respected child psychologist, a deacon in one of the city's largest Baptist congregations and the father of four.
He also was a child molester so brazen he escorted little girls into church and fondled them under his coat while listening to the sermon.
Parents knew. So did church pastors, school officials and state regulators. But few did anything to stop him, and those who tried were remarkably unsuccessful.
It took 10 years to get Plaisted behind bars. Only he knows how many children he molested during that time.
Last month, Plaisted - already serving a two-year federal prison term for luring a Texas patient to Boston to continue molesting her -was brought back to Corpus Christi in chains.
He pleaded guilty to sexually assaulting four girls and was sentenced to 40 years in prison.
State regulators have yet to revoke his license to practice psychology.
""I think the Plaisted case is the model of what happens when the system fights with itself," said Susan Snyder, a Kingsville attorney and former prosecutor who tried to lock up Plaisted in 1992.
""Obviously, there have been safeguards in place to prevent this man all along, but either (state officials) were too lazy or too busy, or too scared of the politics of going and yanking this man's license," Snyder said. ""It's not the legal system failing. It's the people within the legal system that refuse to let the legal system work."
It's not as if no one tried.
Carmen Alvarado, the mother of the first child to accuse Plaisted more than 10 years ago, sought criminal charges against the therapist and filed an ethics complaint with the Texas Board of Examiners of Psychologists. She alleged that Plaisted had fondled her son's penis during a late-night counseling session.
Alvarado called the Parkdale Baptist Church, where Plaisted, 46, was a deacon.
""They said they were leaving it in God's hands," she recalled.
""I don't think they were thinking straight at the time."
She went to other parents. She got no help.
In the end, it was just her son's word against Plaisted, who told a Corpus Christi jury in 1986 that the 6-year-old child was a habitual liar and a pyromaniac who derived sexual excitement from setting fires. It didn't help that a new prosecutor was assigned to the case just before trial.
The jury acquitted Plaisted; his practice continued.
""It made me mad because when I went for help, all I asked was for them to testify," Alvarado recalled. ""We lost because my son was the only witness we had."
""It was a very tough call to make," said another victim's mother. ""And looking back, I really should have crucified him, but I didn't. I chose not to after talking to my attorney. He told me it would just really traumatize my daughter."
The Corpus Christi woman, who asked not to be identified, said she did confront Plaisted and his wife, who were neighbors in 1984, when her daughter was allegedly molested while spending the night with one of Plaisted's daughters.
""He did not deny it," she said. ""He said he could have done it
in his sleep."
Plaisted's wife laughingly added that she and her husband often made love at night, and he would not remember the next morning, the woman said.
The woman, who was also a member of the Parkdale Baptist Church, recalled telling church officials later about Plaisted's molestations.
""But it didn't seem to make any difference," she said. ""The church really backed him up, and a lot of people left the church after that."
Plaisted's attorney, Doug Tinker, refused to allow the Chronicle to interview his client. The criminal defense lawyer, who earlier this year represented Yolanda Saldivar, who was convicted of murdering Tejano star Selena, declined to discuss the Plaisted case.
The victims' families have since sued the church for negligence, but Parkdale's lawyer argues the congregation should not be held responsible for Plaisted's actions.
""It would be the church's wish to get this thing resolved without causing any additional hurt to anyone," said attorney Van Huseman. But he added, ""If a child gets molested in the middle of the service, how does that get to be the pastor's fault?"
Plaisted - a Nebraska native who served in the Army in Vietnam -came to Corpus Christi in 1982 with impeccable credentials, having earned his doctorate in clinical and child psychology from Auburn University in Alabama in 1981.
He quickly built a private practice, and over the years, developed a good reputation as an expert on brain dysfunction.
The Corpus Christi school district, along with local pediatricians, eagerly supplied him with young patients - even after he had been publicly charged. Members of the church also sought his help, and he had hospital privileges at the prestigious Driscoll Children's Hospital, a South Texas institution known both for quality care and charity.
Neighbors described Plaisted as pleasant, reserved, well-spoken. He was methodical, they said, and liked to work on projects around the house.
Plaisted recruited some of his victims from broken homes, showering the children with gifts, inviting them and their parents to Thanksgiving dinners. One 9-year-old girl who spent the night with Plaisted's daughter told prosecutors the psychologist molested her on the sofa in his living room while he and the children watched the movie "Home Alone"
on video.
He curried favor with his victims' parents by lending them money and refusing repayment, or by buying them air conditioners and other gifts. One mother even acted as a character witness for the therapist during the Alvarado trial, unaware that her own child was being molested.
""The bottom line is this guy had complaints filed against him at the psychology board - and they are serious - and the board doesn't notify the school about the complaints," said Jerry Boswell, director of the Citizens Commission on Human Rights, a group funded by the Church of Scientology (SEE CORRECTION) that documents cases such as Plaisted's. ""And the school is still referring children to this guy."
Corpus Christi school administrators said they used Plaisted infrequently for psychological testing of students, although school records and correspondence indicate he was a consultant from 1983 until he was indicted for child sexual assault in late 1992.
School administrators have identified records of five students referred to him for psychological testing between 1985 and 1992. There are no records prior to 1985.
School board President Henry Nuss, who has served on the board for seven years, said he first heard of the Plaisted case when he was contacted by the Houston Chronicle last week.
""We certainly should be more selective in who we're using," he said.
After Plaisted was charged in the Alvarado case in April 1986, Robert J. Garcia, the school district's special education director, wrote to the state psychology board to ask about the psychologist's record. The agency's executive director replied that Plaisted's license had been suspended, but because the psychologist was in the process of suing to get it back, he remained licensed to practice. The letter gave no details about the nature of the complaints.
""He was given a clean bill of health by the only agency that had anything to say about it," said Dr. Adrian Haston, a psychologist who coordinates the school district's psychological services, and who, years ago, shared an office with Plaisted.
Haston emphasized that none of the schoolchildren referred to Plaisted were molested. ""And we never had anything untoward, any problems of that sort," he said.
Asked why the district would risk using a psychologist once accused of being a child molester, Haston replied, ""This is something the district did, and you can ask the director of special education why."
Garcia said in a recent telephone interview that he could not remember whether he knew about the child molestation charges at the time he wrote to the psychology board.
""All I know is we asked for what his status was and they said he could still practice," he said. ""We knew he was under review, but we didn't know what for.
""Look, the state board of psychologists, they're the ones that allowed him to continue to practice," Garcia added angrily.
""If anyone should be asked as to why this guy was allowed to continue, it should be the state board of psychology."
Pressed for further details, Garcia abruptly ended the interview and hung up the phone.
Although Plaisted was acquitted in August 1986 in the Alvarado case, the psychology board continued its investigation and ruled in November of that year that Plaisted had violated professional standards.
The board officially suspended his license for two years, but said he would be allowed to resume his practice in three months.
Meanwhile, Plaisted challenged the suspension in state district court in Austin, arguing the psychology board had unfairly considered allegations that had not been introduced during his hearing, denying him the opportunity to defend himself against them. The judge agreed, and in January 1987 reversed Plaisted's suspension.
While the board was investigating Plaisted's case, they were contacted by Corpus Christi psychologist George Kramer.
Kramer, who had hired Plaisted in 1982 before Plaisted was licensed, told the board to subpoena records of the state Department of Human Resources. It did, and found other instances of alleged molestation by Plaisted.
In April 1989, the board reached an agreement with the psychologist that allowed him to keep his license if he agreed to be supervised for 11/2years. Plaisted was to treat children only in the presence of an associate or in a location where he could be observed by a television monitor. He also was to pay to have Corpus Christi psychologist Joseph Horvat supervise his casework.
Horvat met with Plaisted weekly, but after a year - convinced that Plaisted was doing nothing wrong - he recommended the supervision be terminated six months early. The board decided to continue the supervision.
""I have found no evidence in any way, shape or form of any behavior on his part which could be in any way construed as unprofessional or unethical," Horvat wrote to the board.
Included in one of his reports to the board was a review of Plaisted's treatment of an 8-year-old girl - a child Plaisted was later charged with molesting.
The board's general counsel, Barbara Holthaus, acknowledged past actions taken by the agency were inadequate.
""With hindsight, of course it wasn't appropriate, because look at what happened," Holthaus said. But she said the board has since added lay people to its ranks and has a new, tougher state law giving it better enforcement powers.
""Now, if we get a report that a psychologist is molesting a client, we can go before a judge and say we want to temporarily suspend the license," she said.
Holthaus said the board has filed a motion to revoke Plaisted's license, but Plaisted is fighting it.
""It's all kind of moot, because he's incarcerated," she said.
Soon after Plaisted completed his board-ordered supervision, Corpus Christi police received new information from state child welfare workers that Plaisted had been molesting girls at his office, in church and at home in his hot tub.
Former detective Eric Michalak, who now works in Colorado, remembered taking the Plaisted case to a Nueces County assistant district attorney for prosecution.
""He wanted to get a warrant for the doctor and arrest him, because we had very strong evidence against him," Michalak said. ""We had multiple victims and you had a guy in the position he was in, where he had access to all these victims.
You would want to take quick action rather than let it go on for so long."
The prosecutor was overruled by then-District Attorney Grant Jones, Michalak said. ""(Jones) just said, `We're not getting a warrant. We're taking our time.' He wanted the kids reinterviewed by one of the prosecutors.
""Any time you go after someone like that, there's a lot of politics that come into play," Michalak added. ""Instead of stepping in right then, and bringing it out in the open and taking it to a grand jury (for indictment), they delayed."
Jones contends that any delay in prosecution was an effort ""to tie the case down tight. We didn't want to lose him twice,"
said Jones, on whose watch Plaisted was acquitted in the Alvarado case.
Jones called it ""outrageous" the psychology board still hasn't revoked Plaisted's license.
""They should have done it in 1986," he said. ""What they want to do is wait around until you go to trial and you convict him, and then they come in behind your conviction and revoke his license. Well, what's he doing in the meantime? He could be out in the community molesting kids for two years."
Michalak said the case was finally taken to the grand jury several months later after he leaked the information about Plaisted's investigation to the local media.
""It was taking too long, and it wasn't being handled like another case," he said. ""And it was because he was so prominent in the community."
Plaisted was finally indicted in Corpus Christi in October 1992. He posted bond, closed his practice in Corpus Christi, and negotiated an agreement with the psychology board to place his license on inactive status until he could prove his innocence.
He then moved to Boston, where he enrolled in Boston University Law School and successfully completed his first year of studies by May 1994.
While in law school, Plaisted began calling a former patient - the girl whose treatment Horvat had reviewed in Corpus Christi. Plaisted convinced the girl's mother - who was also a patient of his - to bring the girl to Boston for additional therapy.
Plaisted's plans were foiled when a policeman setting up a speed trap in his neighborhood accidentally intercepted on his police radio a sexually explicit telephone call between the girl and Plaisted, who was using a cordless phone.
FBI agents were called in, six other calls were taped, and Plaisted was arrested on June 3, 1994, after he met the girl, then 13, and her mother at the train station and took them to a budget motel.
""The mother wasn't aware" of the molestations, said Adolfo Aguilo, an assistant Nueces County district attorney. ""The mother had a borderline personality disorder - she developed dependency on people -and unfortunately for her the person she developed a dependency on was Dr. Plaisted."
Sgt. Michael Harpster, a police detective from suburban Boston who helped arrest Plaisted, described him as ""very congenial, almost shy."
""He'd answer questions very courteously, but he didn't show any outward signs of knowing the seriousness of the situation," Harpster said.
Last January, Plaisted was sentenced by a federal judge in Boston to a two-year prison term after he pleaded guilty to transporting a minor across state lines to engage in illegal sexual activity.
The Corpus Christi conviction and sentence came almost a year later.
In the end, Plaisted admitted molesting four victims. But prosecutors say no one will ever know how many others failed to come forward.
""I imagine there could be several other victims. Through his practice and the church he probably had access over the years to thousands of children," said Aguilo, the Corpus Christi prosecutor who eventually secured Plaisted's guilty plea.
""To me, any kid that came in contact with this guy was a victim in some way or another," added Michalak.
When Plaisted was sentenced last month, it was a bitter emotional meeting for many of his young victims and their parents, who had been called as witnesses in case Plaisted decided against the plea bargain.
Parents said Plaisted stood up straight, held his head high and looked the judge in the eye. And when he saw the relatives of his former victims, he acted as if he were attending a reunion of old friends, they said. One parent said Plaisted looked as if he thought they were there as supporters or character witnesses.
""He turned around and gave the families a big smile," Alvarado said. ""I couldn't believe it."
Alvarado, who sued Plaisted in civil court, has received a settlement for an undisclosed amount. Her son, now a teen-ager, is still struggling with his past abuse, she said, and she continues to feel betrayed by those who would not join her in speaking out years ago.
""I told them if they had helped me in the beginning, none of this would have happened," she said.
Plaisted timeline
Key dates in the career of Dr. James R. Plaisted:
January 1983: Licensed to practice psychology in Texas.
October 1984: Investigated by Texas Department of Human Resources for allegedly molesting a neighbor's child.
April 1986: Charged in criminal case for allegedly fondling a boy during therapy.
August 1986: Acquitted by jury in Corpus Christi.
October 1992: Indicted for sexual abuse of three Corpus Christi girls.
December 1992: Closed Corpus Christi office; moved to Boston to begin law school.
June 1994: Arrested by FBI agents for luring a 13-year-old former Corpus Christi patient to Boston.
January 1995: Indicted by Corpus Christi grand jury on three counts of aggravated sexual assault for incidents years earlier involving the same girl.
January 1995: Sentenced to two years in federal prison in Boston case.
Dec. 7, 1995: Sentenced to 40 years in state prison by a Corpus Christi judge after pleading guilty to five counts of aggravated sexual assault of a child.
Wednesday, July 18, 2007
Thursday, May 24, 2007
Randy Farenthold had refused to back down, and he was murdered because of it.
"i'M WAITING" AS spoken by Sonic The Hedgehog
The Randy Farenthold Murder
©Lee Paul
In all of Jim Peters’ years as a Texas Ranger, there was probably never a more widely-publicized murder investigation than that of George Randolph Farenthold, multi-millionaire playboy step-son of gubernatorial candidate, Frances “Sissy” Farenthold. When Randy’s body was found in the surf off Mustang Island, shocked Texans everywhere demanded a quick ending, but it wasn’t to be. Before his death was finally solved, it involved literally hundreds of investigators, half a dozen or so investigative agencies, no clues, theories by the score, and a reward that approached one million dollars. It was Jim Peters who probably provided the most evidence leading to a solution of the case, and it was Peters who finally brought Randy’s killer back to Texas for justice. It’s a case no one involved will ever forget.
It began on Monday, June 6, 1972. That morning, elderly Port Aransas fisherman Carl Carson and his helper, Joe, expected just another routine day. As they did every day of the week before the sun peeked over the horizon, they drove in Carson’s battered old pickup truck down the packed sand of Mustang Island beach and searched for any signs of bait fish in the surf. Their usual custom after Carson found what he was seeking was to park the truck, drag a large beach seine down to the surf, wade into the shallow water pulling the seine, make a large circle, and then tow the fish-laden net ashore. Carson would sell the catch to charter and pleasure boat captains and pay Joe. Over the years, he’s captured tons of bait fish in that manner.
This morning, however, was different. It was a little past 6:00 a.m., and the sun had already topped the horizon before Carson finally spotted what he wanted in the surf. The two men would have to hurry if they expected to sell their catch to early-morning boat captains. The charter boats left at 8:00 a.m. sharp for their first excursions of the day.
Carl Carson parked his truck just out of reach of the tide, and along with Joe, waded into the gentle waves with the big net. They walked in their customary circle, dragging the seine, and as the net filled with mullet and became hard to tow, it snagged on something heavy in the water. The old fisherman stepped gingerly out to see what it was. Peering into the clear water, he recoiled in horror. Sightless eyes in a bloated face stared back at him through the mesh of the seine.
The two men struggled to drag the corpse to shore, which was no easy task because of the condition the body was in. After stooping down to examine it closely, Carson left Joe guarding the discovery, jumped in his truck, and sped back down the beach to the Port Aransas Police Department.
Port Aransas is a small beach community of about 5,000 permanent residents, and the Police Department shares a facade with City Hall. Carson parked in front of the building, entered, and reported to the dispatcher on duty, Sergeant Paul Olsen. He told Olsen of finding a body in the surf on Mustang Island, and then added for definite clarification, “and it wasn’t no accident, either. The man’s been beat, cut, and tied up with wires and chains...and there’s a concrete block wired to his neck!”
Sergeant Olsen stared at Carson like he was crazy, but the old man was a well-known character and had a reputation for being nobody’s fool. Olsen got up and walked into the inner office where the Chief of Police, Jim Wright, was sipping his morning coffee. “You’re not going to believe this,” Olsen began, and then filled his chief in on the details as Carson had told them.
Chief Wright listened dumbfounded. Violent crime never happened in Port Aransas. He hurried to the outer chamber, talked a few moments with Carson, and then instructed the old fisherman to lead the way to the body. He jumped in his patrol car and followed the old man’s battered pickup truck down the beach.
At precisely where Carl Carson said it would be, Jim Wright bent over and examined the mutilated corpse. It was a gruesome sight to behold. Not only was the face cut, bruised, bloated, and chalky white from being immersed in the sea, but wire and chain were wrapped tightly around the neck---the other end of the chain being secured to a 40-pound concrete block. Yet, even through the distortion and grotesque appearance, the face looked vaguely familiar.
“My God!” breathed Chief Wright. “I think it’s Randy Farenthold.” He raced to his patrol car and radioed Sergeant Olsen with the news. The Sergeant notified the Nueces County Sheriff’s office and the County Medical Examiner, Doctor Joseph Rupp.
By 8:00 a.m., the area was teeming with police and medical officials from Port Aransas and Corpus Christi. Several of the public officials present agreed that the corpse looked like Randy Farenthold, but no one could actually be certain because of the advanced state of decomposition. One deputy, however, made a prophetic statement, “If that IS Randy Farenthold, there’s going to be hell to pay.”
The coroner ordered the body removed to Corpus Christi, and ambulance attendant, Don Moore, who would later become a Port Aransas police officer himself, drove it to the Nueces County Medical Examiner’s office. By nightfall, the coroner had a verdict. The body found in the surf at Port Aransas was, indeed, that of George Randolph Farenthold. It was the coroner’s opinion that the victim had died of a combination of strangulation, beating, asphyxiation, and drowning.
George Randolph Farenthold, or Randy as he liked to be called, was Corpus Christi’s one and only playboy millionaire. Oh, there were millionaires in the “Sparkling City by the Sea,” but none had the charm, the good looks, or the connections that Randy had. He had friends by the thousands, acquaintances by the score, and no apparent enemies---or so everyone thought.
His grandfather was the late Rand Morgan, the wealthiest industrial businessman for miles around. When Randy turned twenty-one in 1961, he inherited Morgan’s cotton and maize farms, and several large cotton gins all over South Texas. One of the largest of the gin complexes was on Rand Morgan Road, located just outside the Corpus Christi city limits on the northwest side of town. Much to the surprise of others in the business community, Randy leaped whole-heartedly into the company and ran it with a firm hand. He seemed imbued with business acumen, and it wasn’t long before he had multiplied his considerable fortune many times over.
Randy married and fathered two children, and to all outward appearances, he seemed a devoted parent and husband. But trouble brewed on the horizon. The more successful he became, the more time he spent pursuing his leisure activities of gambling, pigeon shooting, and sports fishing. Although things were friendly and he kept in close contact with his family, there was first a legal separation from his wife, and then a divorce.
In 1970, Hurricane Celia changed his life forever. The windy lady blew ashore between Corpus Christi and Port Aransas with peak wind gusts estimated at more than 210 miles per hour---no one knows for sure, as all wind barometers blew away. She damaged or destroyed practically everything in her path. One of her casualties was the Farenthold cotton gin on Rand Morgan Road. It was completely destroyed, and that seemed to be the turning point in Randy’s life. He did not rebuild the gin. Instead, he shucked the business world altogether.
Randy Farenthold was an avid sports fisherman, and one of his memberships was with the Port Aransas Boatman’s Association. His pride and joy was a 35-foot yacht, THE LOLLIPOP, which he kept docked at the island community, and his presence around town soon became a common sight to the local islanders. In fact, his transformation became so complete, that the locals looked upon him as one of their own, which is no easy feat in an island community where anyone in coat and tie is looked upon with suspicion. Randy took to wearing worn tee shirts, old faded jeans, and sneakers without socks.
Although extremely wealthy, Randy had several things going for him with the Port Aransas island community. Foremost among them was that he never “put on airs” with the local folks. He always treated everyone with such open friendliness that he achieved a reputation as “just a good ole boy.” Randy was also one “hell of a fisherman,” and it gained him the respect of all the boat captains in the whole area. The islanders vied with each other to work on THE LOLLIPOP.
It seemed inconceivable to everyone that Randy Farenthold could be murdered. The Saturday before his body was found, the Farenthold family celebrated Sissy Farenthold’s entry into Texas politics. She had narrowly missed becoming her party’s gubernatorial candidate, and it was a sign of the changing times in the Lone Star State. Although Randy’s absence at the party was duly noted, no one ever suspected that at that very moment, miles away on the Texas Riviera, as the Gulf Coast around Corpus Christi was known, he was being brutally murdered, his body being dumped into the sea. Everyone just assumed he had gone deep sea fishing---the bill fish were running---and that he would show up later that night. When his body was found Monday morning, as the deputy had said, “all hell broke loose.”
Nueces County Sheriff Johnnie Mitchell was on vacation when Randy’s body was pulled from the surf. He had just won re-election in a particularly arduous political campaign and was looking forward to a few days of rest and relaxation before returning to Corpus Christi and the influx of summer visitors. When he learned the identity of the victim, however, he caught the first plane back to personally take charge of the investigation. He knew the Farenthold family was sure to apply pressure from every quarter for a quick arrest in the case.
Sheriff Mitchell assigned investigators Ted Jolly and Lester Manson to the case, and they began on Mustang Island trying to trace Randy’s last hours. It was a monumental undertaking from the beginning. The tourist season was just beginning, and already, thousands of visitors were in Port Aransas for fishing and swimming in the warm Gulf waters. Men, women, and children milled everywhere up and down the main thoroughfare, and cars were bumper to bumper at the ferry landing---both entering and leaving the island paradise. The two officers just stood on the steps of city hall and stared aghast at the situation. Randy’s killer could be anyone.
Deputies Jolly and Manson decided to start their search along the waterfront dock area. Before the day was over, they had interviewed sailors, fishermen, boat captains, bartenders, waitresses, waiters, and service station attendants. They were confident they had traced every movement Randy had made in the last week of his life. Nowhere did they turn up the name of anyone who would want to kill him. Randy Farenthold seemed to be well-liked and admired by everyone in town.
At the same time the sheriff’s deputies were conducting their investigation, Jim Peters exercised his prerogative of entering the investigation of any crime occurring in Texas by beginning his own formal study of the case. Even though one of the issues on Sissy Farenthold’s ticket had been the abolition of the Texas Rangers Organization --- probably the single, most important reason why she lost the election --- Jim Peters gave the case everything he had. His attention to detail missed nothing.
Peters conducted his investigation in practically the same manner as the sheriff’s deputies. He went to Port Aransas and interviewed hundreds of islanders, gleaning as much as possible about the last few days of Randy Farenthold’s life. He learned that in the previous week, Randy had participated in a deep sea fishing tournament in New Orleans and had then brought THE LOLLIPOP back to Port Aransas, where he had it hauled out of the water to repair some minor hull damage.
On June 2nd, Randy had been seen around his beach house. He had also gone to a swank nearby restaurant for dinner, and so meticulous was the investigation that Peters learned what Randy had ordered from the menu. Randy spent the night at his beach house, got up early the next morning, and had breakfast at a local cafe. He had then gone down to his boat and helped the boat captain repair the damage, spending the remainder of the day at the dock.
On June 3rd, Randy had driven down the beach to Padre Island and had entered Corpus Christi via the John F. Kennedy Causeway, voting before the polls closed. From there, he went to his elegant Corpus Christi home, showered, and changed clothing. His next stop had been the Corpus Christi Yacht Club, where he enjoyed two drinks around 6:00 p.m., before driving to his ex-wife’s home for dinner with her and their two children. He left that residence around 8:00 p.m. and headed for a local nightclub.
Randy had spent an aimless night on June 3rd. He went from one night spot to another, before becoming engaged in a crap game which witnesses claimed had netted him several thousand dollars. It could have been a motive for murder, but Jim Peters learned that all the men in the crap game were wealthy and in the same social class as Randy. Furthermore, Randy had really only won several hundred dollars, not thousands as reported, and the sheriff’s deputies had already found the money from the game where Randy had carelessly tossed it---in a dresser drawer in the master bedroom of his house.
One puzzling aspect to the case concerned the finding of Randy’s car keys in the grass in front of his house. His car was parked neatly in the driveway. Had he been accosted before reaching his front door? Peters thought he had, but how to account for the money from the crap game in the dresser drawer? Perhaps, Peters reasoned, the money in the dresser drawer wasn’t from the crap game after all. Suppose it was Randy’s “mad money,” money he routinely kept on hand all the time? Peters also theorized that Randy might have been home, left the money, and had been accosted as he was leaving for somewhere else. It would be months before Peters would know which theory was correct.
Peters learned that Randy had received a phone call from a woman prior to leaving the last nightclub. Thinking she might have lured Randy home to his house, where he had then been abducted and killed, he tracked her down and interviewed her. It was a false lead. The woman in question had only called and asked Randy to join her for a drink, which he had politely refused. When Peters checked, her story held up.
Randy Farenthold met his killer sometime in the early morning of June 4th...someone who hated him enough to hack him with a knife, beat him viciously with a club, and then garrote him with wire, before chaining at least one 40-pound concrete block to his neck and dropping him into the Gulf of Mexico. But who? And why? The thirty-two-year-old Randy was liked and admired by everyone.
Jim Peters sent the chains, wires, and concrete block to the Crime Lab in Austin for analysis, but it proved to be fruitless. Items of that nature were so common that they littered practically every boat yard and dock on the Gulf Coast from the Mexican border to the tip of Florida. Peters then turned his attention to an expert on coastal tides, in an effort to discover exactly where Randy had been dumped into the sea.
The scientist contacted the coroner’s office and obtained the weight and measurements of the body, along with the weight of the chains that had bound the body to the concrete block. Knowing that Randy had died in the early hours of Saturday morning, the tide expert consulted his charts. In his opinion, the body had been tossed into the water at the mouth of the jetties, which border the ship channel running between St. Joseph and Mustang Islands.
The Port Aransas side of the jetties are always packed with fishermen from the crack of dawn until shortly after the sun sets, and the only activity in the area after dark is usually from the shrimp boats headed out for their harvest of the ocean floor. Pleasure craft seldom clear the harbor at night. Even the big, commercial shipping vessels normally “lay to” off the jetties at night, preferring to maneuver the ship channel in daylight. Jim Peters knew Randy’s body had probably been dumped by a shrimp boat. But which one? All of them denied any knowledge in the matter. In fact, they all seemed more than willing to take the law into their own hands the moment Randy’s murderer was caught. Everyone in Port Aransas felt the same way.
Meanwhile, the two sheriff’s deputies from Nueces County, Ted Jolly and Lester Manson, were also busy with the shrimp boats. They intensively questioned the crews of two boats, learning only that another shrimper had left Port Aransas for Houston around the time of the killing. The two deputies then journeyed to Houston to question the suspect, but it turned out that the shrimper had only gone to Houston to voluntarily check himself into the Veterans Administration Hospital for narcotics addiction. Another dead end.
Things took a strange turn of events when the Federal Bureau of Investigation entered the case. It turned out that Randy Farenthold was a key witness scheduled to testify in federal court on a fraud case involving a Corpus Christi contractor with alleged ties to the Mafia. The trial was set to begin four months away---in October.
According to the FBI, Randy had been approached in 1969 by contractor Bruce Bass with a get-rich-quick-scheme of buying short-term U.S. Treasury notes at a huge discount from a Mafia source in Houston. Bass claimed that he was unable to raise the cash on his own, but he offered to cut Randy in as a partner if Randy would finance the plan.
Randy knew Bass from years of associating in the same “by-invitation-only” gambling and pigeon shooting clic that also involved others of wealthy, independent means. Although the two were acquaintances, they were not close friends, and for some unknown reason, Randy still agreed to the proposition. He put up $100,000 to purchase $166,000 worth of bonds. His instructions were to withdraw the money in cash, check into a Houston hotel, and wait for his contact. The bills were to be in small denominations with non-consecutive serial numbers.
Randy did as instructed, and presently his contact arrived. The “Mafioso” type asked to see the money, satisfied himself that it was all there, and the two men sat down to discuss the transaction. Meanwhile, Randy had called down to Room Service for some soft drinks, and when a knock sounded at the door, he naturally assumed it was the waiter with the drinks. He opened the door, and in rushed a man in a Batman costume, brandishing a sawed-off shotgun. “Batman” robbed Randy of his money, and the Mafioso guy of $10,000---money which Randy said he never saw.
This angered Randy, and he was all for calling in the police, but Bruce Bass talked him out of it. Bass and a companion then placed a call to Las Vegas, Nevada, and claimed they talked with a highly placed Mafia official who promised to listen to Randy’s story. If the official believed what Randy said, he would then recover the stolen money and also sell Randy double the amount of the bonds.
Somewhat mollified, Randy returned to Corpus Christi, secured yet another $100,000, and boarded a plane to Las Vegas with the money. During the journey, however, he came to his senses, and as soon as the plane landed, he went straight to the police. He told them everything. The police officials referred him to the Federal Bureau of Investigation, where agents took his statement and promised to investigate. Randy Farenthold then returned to Corpus Christi, and when Hurricane Celia blew away his cotton gin, committed himself full-time to the gambling, pigeon shooting, and sports fishing activities that he so loved.
Meanwhile, the Special Agent-in-Charge of the Corpus Christi branch of the FBI, Penrod Harris, was hot on the trail. He had a copy of Randy’s statement, and after a thorough investigation of the charges, presented everything to the U.S. Attorney. Early in 1970, Bruce Bass and a Corpus Christi accomplice were indicted for fraud. The charges also named two men from Louisville, Kentucky, as co-conspirators. After numerous delays by lawyers for the defense, the trial was scheduled to begin in October 1972.
With Randy Farenthold the key witness, prosecutors thought they had a sure thing. He was an upstanding citizen of the community with family members highly placed in State politics. Furthermore, he insisted on testifying against Bruce Bass and his associates. He made a powerful witness. The prosecution, however, failed to take into account the power of Randy’s adversaries. When Randy reported death threats on his life, if he persisted in testifying against Bass and his associates, authorities failed to take them seriously. It turned out to be a colossal mistake.
It now appeared to Jim Peters that he had, at last, stumbled over the motive for the murder. He concentrated his efforts on Bruce Bass and his associates. The four men in the indictment, however, had iron-clad alibis for the time of the murder, but that didn’t faze Peters. He reasoned that the murder could have been committed by a hired hitman.
By now, the Port Aransas area literally swarmed with federal investigators. They found nothing more than what the sheriff’s deputies or Jim Peters had found. The FBI then expanded its investigation to include New Orleans, where THE LOLLIPOP had been entered in the fishing tournament the week prior to the murder. Every participating fisherman, every boat captain and dock worker, who had even the remotest contact with Randy, was interrogated and released. Hotel desk clerks, waitresses, bellhops, bartenders, maids...no one was overlooked by the FBI. New Orleans turned up an absolute blank.
Next, the FBI brought a banker over from Georgia, a man who was involved in the gambling clic that Randy belonged to. The banker testified that it was his practice to fly a bunch of the gambling members to the Bahamas, and they would gamble on his plane, spend a couple of days in the sun, and fly back. During the investigation, however, the FBI became highly interested in all the money that the banker was spending, and the man eventually ended up in the penitentiary for embezzling a lot of money from several banks.
Things just went on this way, turning all these weird rocks over, but nothing led to the apprehension of Randy’s killer.
When the federal authorities decided to look for any shadowy character in Randy’s past that might have borne him a grudge, they traveled the Gulf Coast from Cozumel, Mexico, to Carabel, Florida, stopping and interrogating people in hundreds of places. They questioned yachtsmen and shrimpers, jet setters and the downtrodden, running the social gamut from the fabulously wealthy to the unemployed. They expended thousands of investigative hours and learned only one thing---Randy Farenthold had been well-liked by virtually everyone, and they all wanted to see his killer brought to justice.
Meanwhile, right after Randy’s body was found with no trace of his killer, the Farenthold family prepared to issue a news statement with the offer of a six-figure reward for the arrest and conviction of Randy’s slayer. Sheriff Johnnie Mitchell talked them out of it---temporarily anyway. The Sheriff feared the announcement would bring an onslaught of false tips and interference from the general public, especially thrill seekers. He may as well have saved his breath. Everyone in the Coastal Bend area attempted to help, reward or no, and investigators from all the agencies involved found themselves stumbling over each other, as they tracked down each lead and false clue.
The murder car was finally found abandoned in a maize field off Weber Road in the far southwestern part of the city. Chemical tests of the trunk proved it to be the vehicle which had transported Randy to the dock for his final journey to his watery grave, but the owner of the car had reported it stolen. The owner also had an iron-clad alibi. In fact, no one could be found who could even be suspected of driving the death car.
Finding the murder car also presented more problems. To get the body into the trunk required two or more people. Randy stood five feet, ten inches tall, and he weighed 250 pounds. He was healthy and strong, in the prime of life. It seemed unlikely to Jim Peters that any one person could have subdued Randy and inflicted the terrible damaged that he had suffered. Furthermore, one person could not have lifted the body from the trunk and carried him onto the boat---unless the killer was some kind of gigantic weight lifter.
Things took another weird twist when Bruce Bass called the police to his home, pointing in terror to his front door where someone had left a crudely lettered note: “YOU WILL GET YOURS.” Some investigators believed it was just a ruse to put lawmen off the scent, but others believed that it was a genuine threat from Randy’s friends on Mustang Island. The islanders, all 1,218 of them, would have done just about anything to see Randy Farenthold’s murder avenged.
By the time the fraud case was due to come to trial in October, there was still no indictment in Randy’s murder. And without the key witness, the charges against Bruce Bass and associates were dropped. The four co-conspirators scattered.
As the years passed, Jim Peters worked the case at every free moment that he had. His gut feeling told him that Bruce Bass had something to do with the murder, even if Bass’s iron-clad alibi did put him somewhere else at the time. It remained only for Peters to find the evidence which would point to Bass’s guilt. Peters was not alone in his belief. As he searched for the missing clue, the Nueces County Sheriff’s Department, the FBI, the Corpus Christi Police Department’s Organized Crime Unit, and the Nueces County District Attorney also continued to work the case. No one lost track of Bruce Bass.
There also continued to be false leads pouring in from the community in response to the reward offered by the Farenthold family, which now approached one million dollars. Every one was methodically checked out. One promising lead claimed Randy had been killed by a hired killer from Mexico, only when Jim Peters checked into it, the suspect could not be found and the story could not be verified. Peters eventually chalked it all off as a red herring.
By this time, there were so many investigators from so many different investigative agencies that keeping up with the traffic of paperwork seemed all but impossible. Peters finally decided it was time to try yet another tactic. A friend of his, Ken Bung, a lieutenant in the Corpus Christi Police Department assigned to the Organized Crime Unit, called him early one morning, suggesting that they interrogate a prison inmate in the state penitentiary, who might be able to shed some light on the Farenthold investigation. The two lawmen journeyed to Huntsville, near Houston. The inmate had admitted to killing twelve people---“they all deserved killing, but I never picked on any officer”---but he was only convicted of killing two. Although the prisoner readily agreed to talk to the officers, he wasn’t able to help in any way.
Disappointed, Peters and Bung left the penitentiary. They hadn’t gotten very far before Peters’ intuition kicked into gear. “Ken,” Peters said, “Robert Walters is up here. He may be able to help us. Let’s go talk to him while we’re here.”
“Sure,” replied Bung. What did they have to lose?
Peters reached for the radio and called the Huntsville headquarters, known as “The Walls,” to find out which prison Walters was in.
Robert Walters was in jail in Rosharon for his part in the Robert Graham jail break, and the lawmen drove over to the prison to interview him. He didn’t say anything, other than to “let me think about it.” Two weeks later, he sent Peters a letter. “Come back. I want to talk to you,” he wrote.
Jim Peters and Ken Bung drove back to Rosharon, and Robert Walters gave them an earful.
“I’m not interested in any reward money,” Walters said. “I’m also not interested in getting out early. I’m doing my time, and I’ll be out soon. This is the way it went down.”
Walters said that Bruce Bass had come to him and had asked him to set everything up for the hit. According to Walters, Bass had told him to rent two cars, buy a boat and motor to transport the body out into the Gulf, and buy a chain and the big concrete blocks which were used to weigh the body down. Bass then had him buy a navigation map, rent a boat slip in the water at Port Aransas, and rent a boat barn stall in Corpus Christi. Walters then explained how Bass got rid of the boat and the stolen murder car---the whole works. With this information, Jim Peters and the Corpus Christi Organized Crime Unit began to corroborate everything Walters said.
Meanwhile, the unthinkable happened. It was now 1975, and Bruce Bass was involved in a serious automobile accident. As he lay in guarded condition, close to death, police officers, who were so close to arresting him, became frantic with worry. They were almost in a state of sheer panic. “If he dies,” one of them remarked, “we’ll never close the case.” “Yeah, I’d give that guy blood if it’d induce him to give us a statement.”
When Bruce Bass, the prime suspect, finally recovered from the accident and was released from the hospital, he left Texas for Grand Junction, Colorado. He rented a two-bedroom apartment for $250 a month under the alias of Ponders.
Jim Peters and officers of the Organized Crime Unit were finally able to put all the evidence together, and they gave it to District Attorney William B. Mobley. In March 1976, Mobley laid it before the Grand Jury. The panel members spent three months reviewing the evidence. Just before its session was due to expire in July, they requested, and received, a three month extension to continue the study of the evidence. On September 8th, in a sealed indictment, the Grand Jury charged Bruce Bass with the murder of Randy Farenthold.
The indictment was passed on to the District Attorney’s office, and a warrant for arrest was issued for Bruce Bass. Grand Junction, Colorado, authorities then arrested Bass without incident. He waived extradition proceedings, and on September 10th, Jim Peters and two members of the Organized Crime Unit flew in a Department of Public Safety plane to Grand Junction and escorted Bruce Bass back to Texas.
On the way back, the plane stopped in Lubbock, Texas, to refuel, and Peters escorted the prisoner to a comfortable chair in the lounge, where they could wait. Bruce, who hadn’t spoken one word to Peters since the officers had picked him up, suddenly turned and said, “Peters, as skinny and frail as I am, do you think that I could kidnap Randy Farenthold, put him in the trunk of his car, take him out there, take him out of his car and put him into another car, transfer him from car to car, take him out there off Weber Road, beat him with a pistol and choke him to death, put him back in the car, take him over to Port Aransas, put him on a boat, take him out in the Gulf and lift him out of the boat with all those chains and concrete?”
The tall Ranger looked Bruce evenly in the eye and said, “No, but I know you had it done. They got Randy when he got home. They kidnapped him in his driveway and put him in the trunk of the car. They transferred him from one car to another, and you ordered it.”
Robert Walters, in his talks with Peters, also named another person with Bass, and although all the law enforcement officers knew the other person with Bruce, the man was never prosecuted and his name cannot be given. Several years later, this other man died from a heart attack.
Robert Walters was given immunity for his cooperation in breaking the case. He said that he and his brother, Donnie, had gotten everything together for Bruce Bass. At the time Jim Peters interviewed Robert in Rosharon, Donnie was in a federal penitentiary in Kansas, and Robert wanted to talk to Donnie.
“Can you make it possible for me to talk to my brother?” Robert asked the tall Ranger.
“Sure. Be glad to,” Jim Peters replied. It was a call from a prisoner in a state penitentiary to a prisoner in a federal penitentiary in another state.
“When we told the FBI about it later,” Peters laughed, “they said, `That’s impossible. There’s absolutely no way that it can be done.’ I said, `Oh yeah? I’m a Texas Ranger, and Rangers can do anything.’”
Bruce Bass stood trial for the murder of Randy Randy Farenthold had refused to back down, and he was murdered because of it. District Attorney William Mobley spoke for all lawmen everywhere when he said, “...to kill any witness in another case is about as bad as you can get....”
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The Randy Farenthold Murder
©Lee Paul
In all of Jim Peters’ years as a Texas Ranger, there was probably never a more widely-publicized murder investigation than that of George Randolph Farenthold, multi-millionaire playboy step-son of gubernatorial candidate, Frances “Sissy” Farenthold. When Randy’s body was found in the surf off Mustang Island, shocked Texans everywhere demanded a quick ending, but it wasn’t to be. Before his death was finally solved, it involved literally hundreds of investigators, half a dozen or so investigative agencies, no clues, theories by the score, and a reward that approached one million dollars. It was Jim Peters who probably provided the most evidence leading to a solution of the case, and it was Peters who finally brought Randy’s killer back to Texas for justice. It’s a case no one involved will ever forget.
It began on Monday, June 6, 1972. That morning, elderly Port Aransas fisherman Carl Carson and his helper, Joe, expected just another routine day. As they did every day of the week before the sun peeked over the horizon, they drove in Carson’s battered old pickup truck down the packed sand of Mustang Island beach and searched for any signs of bait fish in the surf. Their usual custom after Carson found what he was seeking was to park the truck, drag a large beach seine down to the surf, wade into the shallow water pulling the seine, make a large circle, and then tow the fish-laden net ashore. Carson would sell the catch to charter and pleasure boat captains and pay Joe. Over the years, he’s captured tons of bait fish in that manner.
This morning, however, was different. It was a little past 6:00 a.m., and the sun had already topped the horizon before Carson finally spotted what he wanted in the surf. The two men would have to hurry if they expected to sell their catch to early-morning boat captains. The charter boats left at 8:00 a.m. sharp for their first excursions of the day.
Carl Carson parked his truck just out of reach of the tide, and along with Joe, waded into the gentle waves with the big net. They walked in their customary circle, dragging the seine, and as the net filled with mullet and became hard to tow, it snagged on something heavy in the water. The old fisherman stepped gingerly out to see what it was. Peering into the clear water, he recoiled in horror. Sightless eyes in a bloated face stared back at him through the mesh of the seine.
The two men struggled to drag the corpse to shore, which was no easy task because of the condition the body was in. After stooping down to examine it closely, Carson left Joe guarding the discovery, jumped in his truck, and sped back down the beach to the Port Aransas Police Department.
Port Aransas is a small beach community of about 5,000 permanent residents, and the Police Department shares a facade with City Hall. Carson parked in front of the building, entered, and reported to the dispatcher on duty, Sergeant Paul Olsen. He told Olsen of finding a body in the surf on Mustang Island, and then added for definite clarification, “and it wasn’t no accident, either. The man’s been beat, cut, and tied up with wires and chains...and there’s a concrete block wired to his neck!”
Sergeant Olsen stared at Carson like he was crazy, but the old man was a well-known character and had a reputation for being nobody’s fool. Olsen got up and walked into the inner office where the Chief of Police, Jim Wright, was sipping his morning coffee. “You’re not going to believe this,” Olsen began, and then filled his chief in on the details as Carson had told them.
Chief Wright listened dumbfounded. Violent crime never happened in Port Aransas. He hurried to the outer chamber, talked a few moments with Carson, and then instructed the old fisherman to lead the way to the body. He jumped in his patrol car and followed the old man’s battered pickup truck down the beach.
At precisely where Carl Carson said it would be, Jim Wright bent over and examined the mutilated corpse. It was a gruesome sight to behold. Not only was the face cut, bruised, bloated, and chalky white from being immersed in the sea, but wire and chain were wrapped tightly around the neck---the other end of the chain being secured to a 40-pound concrete block. Yet, even through the distortion and grotesque appearance, the face looked vaguely familiar.
“My God!” breathed Chief Wright. “I think it’s Randy Farenthold.” He raced to his patrol car and radioed Sergeant Olsen with the news. The Sergeant notified the Nueces County Sheriff’s office and the County Medical Examiner, Doctor Joseph Rupp.
By 8:00 a.m., the area was teeming with police and medical officials from Port Aransas and Corpus Christi. Several of the public officials present agreed that the corpse looked like Randy Farenthold, but no one could actually be certain because of the advanced state of decomposition. One deputy, however, made a prophetic statement, “If that IS Randy Farenthold, there’s going to be hell to pay.”
The coroner ordered the body removed to Corpus Christi, and ambulance attendant, Don Moore, who would later become a Port Aransas police officer himself, drove it to the Nueces County Medical Examiner’s office. By nightfall, the coroner had a verdict. The body found in the surf at Port Aransas was, indeed, that of George Randolph Farenthold. It was the coroner’s opinion that the victim had died of a combination of strangulation, beating, asphyxiation, and drowning.
George Randolph Farenthold, or Randy as he liked to be called, was Corpus Christi’s one and only playboy millionaire. Oh, there were millionaires in the “Sparkling City by the Sea,” but none had the charm, the good looks, or the connections that Randy had. He had friends by the thousands, acquaintances by the score, and no apparent enemies---or so everyone thought.
His grandfather was the late Rand Morgan, the wealthiest industrial businessman for miles around. When Randy turned twenty-one in 1961, he inherited Morgan’s cotton and maize farms, and several large cotton gins all over South Texas. One of the largest of the gin complexes was on Rand Morgan Road, located just outside the Corpus Christi city limits on the northwest side of town. Much to the surprise of others in the business community, Randy leaped whole-heartedly into the company and ran it with a firm hand. He seemed imbued with business acumen, and it wasn’t long before he had multiplied his considerable fortune many times over.
Randy married and fathered two children, and to all outward appearances, he seemed a devoted parent and husband. But trouble brewed on the horizon. The more successful he became, the more time he spent pursuing his leisure activities of gambling, pigeon shooting, and sports fishing. Although things were friendly and he kept in close contact with his family, there was first a legal separation from his wife, and then a divorce.
In 1970, Hurricane Celia changed his life forever. The windy lady blew ashore between Corpus Christi and Port Aransas with peak wind gusts estimated at more than 210 miles per hour---no one knows for sure, as all wind barometers blew away. She damaged or destroyed practically everything in her path. One of her casualties was the Farenthold cotton gin on Rand Morgan Road. It was completely destroyed, and that seemed to be the turning point in Randy’s life. He did not rebuild the gin. Instead, he shucked the business world altogether.
Randy Farenthold was an avid sports fisherman, and one of his memberships was with the Port Aransas Boatman’s Association. His pride and joy was a 35-foot yacht, THE LOLLIPOP, which he kept docked at the island community, and his presence around town soon became a common sight to the local islanders. In fact, his transformation became so complete, that the locals looked upon him as one of their own, which is no easy feat in an island community where anyone in coat and tie is looked upon with suspicion. Randy took to wearing worn tee shirts, old faded jeans, and sneakers without socks.
Although extremely wealthy, Randy had several things going for him with the Port Aransas island community. Foremost among them was that he never “put on airs” with the local folks. He always treated everyone with such open friendliness that he achieved a reputation as “just a good ole boy.” Randy was also one “hell of a fisherman,” and it gained him the respect of all the boat captains in the whole area. The islanders vied with each other to work on THE LOLLIPOP.
It seemed inconceivable to everyone that Randy Farenthold could be murdered. The Saturday before his body was found, the Farenthold family celebrated Sissy Farenthold’s entry into Texas politics. She had narrowly missed becoming her party’s gubernatorial candidate, and it was a sign of the changing times in the Lone Star State. Although Randy’s absence at the party was duly noted, no one ever suspected that at that very moment, miles away on the Texas Riviera, as the Gulf Coast around Corpus Christi was known, he was being brutally murdered, his body being dumped into the sea. Everyone just assumed he had gone deep sea fishing---the bill fish were running---and that he would show up later that night. When his body was found Monday morning, as the deputy had said, “all hell broke loose.”
Nueces County Sheriff Johnnie Mitchell was on vacation when Randy’s body was pulled from the surf. He had just won re-election in a particularly arduous political campaign and was looking forward to a few days of rest and relaxation before returning to Corpus Christi and the influx of summer visitors. When he learned the identity of the victim, however, he caught the first plane back to personally take charge of the investigation. He knew the Farenthold family was sure to apply pressure from every quarter for a quick arrest in the case.
Sheriff Mitchell assigned investigators Ted Jolly and Lester Manson to the case, and they began on Mustang Island trying to trace Randy’s last hours. It was a monumental undertaking from the beginning. The tourist season was just beginning, and already, thousands of visitors were in Port Aransas for fishing and swimming in the warm Gulf waters. Men, women, and children milled everywhere up and down the main thoroughfare, and cars were bumper to bumper at the ferry landing---both entering and leaving the island paradise. The two officers just stood on the steps of city hall and stared aghast at the situation. Randy’s killer could be anyone.
Deputies Jolly and Manson decided to start their search along the waterfront dock area. Before the day was over, they had interviewed sailors, fishermen, boat captains, bartenders, waitresses, waiters, and service station attendants. They were confident they had traced every movement Randy had made in the last week of his life. Nowhere did they turn up the name of anyone who would want to kill him. Randy Farenthold seemed to be well-liked and admired by everyone in town.
At the same time the sheriff’s deputies were conducting their investigation, Jim Peters exercised his prerogative of entering the investigation of any crime occurring in Texas by beginning his own formal study of the case. Even though one of the issues on Sissy Farenthold’s ticket had been the abolition of the Texas Rangers Organization --- probably the single, most important reason why she lost the election --- Jim Peters gave the case everything he had. His attention to detail missed nothing.
Peters conducted his investigation in practically the same manner as the sheriff’s deputies. He went to Port Aransas and interviewed hundreds of islanders, gleaning as much as possible about the last few days of Randy Farenthold’s life. He learned that in the previous week, Randy had participated in a deep sea fishing tournament in New Orleans and had then brought THE LOLLIPOP back to Port Aransas, where he had it hauled out of the water to repair some minor hull damage.
On June 2nd, Randy had been seen around his beach house. He had also gone to a swank nearby restaurant for dinner, and so meticulous was the investigation that Peters learned what Randy had ordered from the menu. Randy spent the night at his beach house, got up early the next morning, and had breakfast at a local cafe. He had then gone down to his boat and helped the boat captain repair the damage, spending the remainder of the day at the dock.
On June 3rd, Randy had driven down the beach to Padre Island and had entered Corpus Christi via the John F. Kennedy Causeway, voting before the polls closed. From there, he went to his elegant Corpus Christi home, showered, and changed clothing. His next stop had been the Corpus Christi Yacht Club, where he enjoyed two drinks around 6:00 p.m., before driving to his ex-wife’s home for dinner with her and their two children. He left that residence around 8:00 p.m. and headed for a local nightclub.
Randy had spent an aimless night on June 3rd. He went from one night spot to another, before becoming engaged in a crap game which witnesses claimed had netted him several thousand dollars. It could have been a motive for murder, but Jim Peters learned that all the men in the crap game were wealthy and in the same social class as Randy. Furthermore, Randy had really only won several hundred dollars, not thousands as reported, and the sheriff’s deputies had already found the money from the game where Randy had carelessly tossed it---in a dresser drawer in the master bedroom of his house.
One puzzling aspect to the case concerned the finding of Randy’s car keys in the grass in front of his house. His car was parked neatly in the driveway. Had he been accosted before reaching his front door? Peters thought he had, but how to account for the money from the crap game in the dresser drawer? Perhaps, Peters reasoned, the money in the dresser drawer wasn’t from the crap game after all. Suppose it was Randy’s “mad money,” money he routinely kept on hand all the time? Peters also theorized that Randy might have been home, left the money, and had been accosted as he was leaving for somewhere else. It would be months before Peters would know which theory was correct.
Peters learned that Randy had received a phone call from a woman prior to leaving the last nightclub. Thinking she might have lured Randy home to his house, where he had then been abducted and killed, he tracked her down and interviewed her. It was a false lead. The woman in question had only called and asked Randy to join her for a drink, which he had politely refused. When Peters checked, her story held up.
Randy Farenthold met his killer sometime in the early morning of June 4th...someone who hated him enough to hack him with a knife, beat him viciously with a club, and then garrote him with wire, before chaining at least one 40-pound concrete block to his neck and dropping him into the Gulf of Mexico. But who? And why? The thirty-two-year-old Randy was liked and admired by everyone.
Jim Peters sent the chains, wires, and concrete block to the Crime Lab in Austin for analysis, but it proved to be fruitless. Items of that nature were so common that they littered practically every boat yard and dock on the Gulf Coast from the Mexican border to the tip of Florida. Peters then turned his attention to an expert on coastal tides, in an effort to discover exactly where Randy had been dumped into the sea.
The scientist contacted the coroner’s office and obtained the weight and measurements of the body, along with the weight of the chains that had bound the body to the concrete block. Knowing that Randy had died in the early hours of Saturday morning, the tide expert consulted his charts. In his opinion, the body had been tossed into the water at the mouth of the jetties, which border the ship channel running between St. Joseph and Mustang Islands.
The Port Aransas side of the jetties are always packed with fishermen from the crack of dawn until shortly after the sun sets, and the only activity in the area after dark is usually from the shrimp boats headed out for their harvest of the ocean floor. Pleasure craft seldom clear the harbor at night. Even the big, commercial shipping vessels normally “lay to” off the jetties at night, preferring to maneuver the ship channel in daylight. Jim Peters knew Randy’s body had probably been dumped by a shrimp boat. But which one? All of them denied any knowledge in the matter. In fact, they all seemed more than willing to take the law into their own hands the moment Randy’s murderer was caught. Everyone in Port Aransas felt the same way.
Meanwhile, the two sheriff’s deputies from Nueces County, Ted Jolly and Lester Manson, were also busy with the shrimp boats. They intensively questioned the crews of two boats, learning only that another shrimper had left Port Aransas for Houston around the time of the killing. The two deputies then journeyed to Houston to question the suspect, but it turned out that the shrimper had only gone to Houston to voluntarily check himself into the Veterans Administration Hospital for narcotics addiction. Another dead end.
Things took a strange turn of events when the Federal Bureau of Investigation entered the case. It turned out that Randy Farenthold was a key witness scheduled to testify in federal court on a fraud case involving a Corpus Christi contractor with alleged ties to the Mafia. The trial was set to begin four months away---in October.
According to the FBI, Randy had been approached in 1969 by contractor Bruce Bass with a get-rich-quick-scheme of buying short-term U.S. Treasury notes at a huge discount from a Mafia source in Houston. Bass claimed that he was unable to raise the cash on his own, but he offered to cut Randy in as a partner if Randy would finance the plan.
Randy knew Bass from years of associating in the same “by-invitation-only” gambling and pigeon shooting clic that also involved others of wealthy, independent means. Although the two were acquaintances, they were not close friends, and for some unknown reason, Randy still agreed to the proposition. He put up $100,000 to purchase $166,000 worth of bonds. His instructions were to withdraw the money in cash, check into a Houston hotel, and wait for his contact. The bills were to be in small denominations with non-consecutive serial numbers.
Randy did as instructed, and presently his contact arrived. The “Mafioso” type asked to see the money, satisfied himself that it was all there, and the two men sat down to discuss the transaction. Meanwhile, Randy had called down to Room Service for some soft drinks, and when a knock sounded at the door, he naturally assumed it was the waiter with the drinks. He opened the door, and in rushed a man in a Batman costume, brandishing a sawed-off shotgun. “Batman” robbed Randy of his money, and the Mafioso guy of $10,000---money which Randy said he never saw.
This angered Randy, and he was all for calling in the police, but Bruce Bass talked him out of it. Bass and a companion then placed a call to Las Vegas, Nevada, and claimed they talked with a highly placed Mafia official who promised to listen to Randy’s story. If the official believed what Randy said, he would then recover the stolen money and also sell Randy double the amount of the bonds.
Somewhat mollified, Randy returned to Corpus Christi, secured yet another $100,000, and boarded a plane to Las Vegas with the money. During the journey, however, he came to his senses, and as soon as the plane landed, he went straight to the police. He told them everything. The police officials referred him to the Federal Bureau of Investigation, where agents took his statement and promised to investigate. Randy Farenthold then returned to Corpus Christi, and when Hurricane Celia blew away his cotton gin, committed himself full-time to the gambling, pigeon shooting, and sports fishing activities that he so loved.
Meanwhile, the Special Agent-in-Charge of the Corpus Christi branch of the FBI, Penrod Harris, was hot on the trail. He had a copy of Randy’s statement, and after a thorough investigation of the charges, presented everything to the U.S. Attorney. Early in 1970, Bruce Bass and a Corpus Christi accomplice were indicted for fraud. The charges also named two men from Louisville, Kentucky, as co-conspirators. After numerous delays by lawyers for the defense, the trial was scheduled to begin in October 1972.
With Randy Farenthold the key witness, prosecutors thought they had a sure thing. He was an upstanding citizen of the community with family members highly placed in State politics. Furthermore, he insisted on testifying against Bruce Bass and his associates. He made a powerful witness. The prosecution, however, failed to take into account the power of Randy’s adversaries. When Randy reported death threats on his life, if he persisted in testifying against Bass and his associates, authorities failed to take them seriously. It turned out to be a colossal mistake.
It now appeared to Jim Peters that he had, at last, stumbled over the motive for the murder. He concentrated his efforts on Bruce Bass and his associates. The four men in the indictment, however, had iron-clad alibis for the time of the murder, but that didn’t faze Peters. He reasoned that the murder could have been committed by a hired hitman.
By now, the Port Aransas area literally swarmed with federal investigators. They found nothing more than what the sheriff’s deputies or Jim Peters had found. The FBI then expanded its investigation to include New Orleans, where THE LOLLIPOP had been entered in the fishing tournament the week prior to the murder. Every participating fisherman, every boat captain and dock worker, who had even the remotest contact with Randy, was interrogated and released. Hotel desk clerks, waitresses, bellhops, bartenders, maids...no one was overlooked by the FBI. New Orleans turned up an absolute blank.
Next, the FBI brought a banker over from Georgia, a man who was involved in the gambling clic that Randy belonged to. The banker testified that it was his practice to fly a bunch of the gambling members to the Bahamas, and they would gamble on his plane, spend a couple of days in the sun, and fly back. During the investigation, however, the FBI became highly interested in all the money that the banker was spending, and the man eventually ended up in the penitentiary for embezzling a lot of money from several banks.
Things just went on this way, turning all these weird rocks over, but nothing led to the apprehension of Randy’s killer.
When the federal authorities decided to look for any shadowy character in Randy’s past that might have borne him a grudge, they traveled the Gulf Coast from Cozumel, Mexico, to Carabel, Florida, stopping and interrogating people in hundreds of places. They questioned yachtsmen and shrimpers, jet setters and the downtrodden, running the social gamut from the fabulously wealthy to the unemployed. They expended thousands of investigative hours and learned only one thing---Randy Farenthold had been well-liked by virtually everyone, and they all wanted to see his killer brought to justice.
Meanwhile, right after Randy’s body was found with no trace of his killer, the Farenthold family prepared to issue a news statement with the offer of a six-figure reward for the arrest and conviction of Randy’s slayer. Sheriff Johnnie Mitchell talked them out of it---temporarily anyway. The Sheriff feared the announcement would bring an onslaught of false tips and interference from the general public, especially thrill seekers. He may as well have saved his breath. Everyone in the Coastal Bend area attempted to help, reward or no, and investigators from all the agencies involved found themselves stumbling over each other, as they tracked down each lead and false clue.
The murder car was finally found abandoned in a maize field off Weber Road in the far southwestern part of the city. Chemical tests of the trunk proved it to be the vehicle which had transported Randy to the dock for his final journey to his watery grave, but the owner of the car had reported it stolen. The owner also had an iron-clad alibi. In fact, no one could be found who could even be suspected of driving the death car.
Finding the murder car also presented more problems. To get the body into the trunk required two or more people. Randy stood five feet, ten inches tall, and he weighed 250 pounds. He was healthy and strong, in the prime of life. It seemed unlikely to Jim Peters that any one person could have subdued Randy and inflicted the terrible damaged that he had suffered. Furthermore, one person could not have lifted the body from the trunk and carried him onto the boat---unless the killer was some kind of gigantic weight lifter.
Things took another weird twist when Bruce Bass called the police to his home, pointing in terror to his front door where someone had left a crudely lettered note: “YOU WILL GET YOURS.” Some investigators believed it was just a ruse to put lawmen off the scent, but others believed that it was a genuine threat from Randy’s friends on Mustang Island. The islanders, all 1,218 of them, would have done just about anything to see Randy Farenthold’s murder avenged.
By the time the fraud case was due to come to trial in October, there was still no indictment in Randy’s murder. And without the key witness, the charges against Bruce Bass and associates were dropped. The four co-conspirators scattered.
As the years passed, Jim Peters worked the case at every free moment that he had. His gut feeling told him that Bruce Bass had something to do with the murder, even if Bass’s iron-clad alibi did put him somewhere else at the time. It remained only for Peters to find the evidence which would point to Bass’s guilt. Peters was not alone in his belief. As he searched for the missing clue, the Nueces County Sheriff’s Department, the FBI, the Corpus Christi Police Department’s Organized Crime Unit, and the Nueces County District Attorney also continued to work the case. No one lost track of Bruce Bass.
There also continued to be false leads pouring in from the community in response to the reward offered by the Farenthold family, which now approached one million dollars. Every one was methodically checked out. One promising lead claimed Randy had been killed by a hired killer from Mexico, only when Jim Peters checked into it, the suspect could not be found and the story could not be verified. Peters eventually chalked it all off as a red herring.
By this time, there were so many investigators from so many different investigative agencies that keeping up with the traffic of paperwork seemed all but impossible. Peters finally decided it was time to try yet another tactic. A friend of his, Ken Bung, a lieutenant in the Corpus Christi Police Department assigned to the Organized Crime Unit, called him early one morning, suggesting that they interrogate a prison inmate in the state penitentiary, who might be able to shed some light on the Farenthold investigation. The two lawmen journeyed to Huntsville, near Houston. The inmate had admitted to killing twelve people---“they all deserved killing, but I never picked on any officer”---but he was only convicted of killing two. Although the prisoner readily agreed to talk to the officers, he wasn’t able to help in any way.
Disappointed, Peters and Bung left the penitentiary. They hadn’t gotten very far before Peters’ intuition kicked into gear. “Ken,” Peters said, “Robert Walters is up here. He may be able to help us. Let’s go talk to him while we’re here.”
“Sure,” replied Bung. What did they have to lose?
Peters reached for the radio and called the Huntsville headquarters, known as “The Walls,” to find out which prison Walters was in.
Robert Walters was in jail in Rosharon for his part in the Robert Graham jail break, and the lawmen drove over to the prison to interview him. He didn’t say anything, other than to “let me think about it.” Two weeks later, he sent Peters a letter. “Come back. I want to talk to you,” he wrote.
Jim Peters and Ken Bung drove back to Rosharon, and Robert Walters gave them an earful.
“I’m not interested in any reward money,” Walters said. “I’m also not interested in getting out early. I’m doing my time, and I’ll be out soon. This is the way it went down.”
Walters said that Bruce Bass had come to him and had asked him to set everything up for the hit. According to Walters, Bass had told him to rent two cars, buy a boat and motor to transport the body out into the Gulf, and buy a chain and the big concrete blocks which were used to weigh the body down. Bass then had him buy a navigation map, rent a boat slip in the water at Port Aransas, and rent a boat barn stall in Corpus Christi. Walters then explained how Bass got rid of the boat and the stolen murder car---the whole works. With this information, Jim Peters and the Corpus Christi Organized Crime Unit began to corroborate everything Walters said.
Meanwhile, the unthinkable happened. It was now 1975, and Bruce Bass was involved in a serious automobile accident. As he lay in guarded condition, close to death, police officers, who were so close to arresting him, became frantic with worry. They were almost in a state of sheer panic. “If he dies,” one of them remarked, “we’ll never close the case.” “Yeah, I’d give that guy blood if it’d induce him to give us a statement.”
When Bruce Bass, the prime suspect, finally recovered from the accident and was released from the hospital, he left Texas for Grand Junction, Colorado. He rented a two-bedroom apartment for $250 a month under the alias of Ponders.
Jim Peters and officers of the Organized Crime Unit were finally able to put all the evidence together, and they gave it to District Attorney William B. Mobley. In March 1976, Mobley laid it before the Grand Jury. The panel members spent three months reviewing the evidence. Just before its session was due to expire in July, they requested, and received, a three month extension to continue the study of the evidence. On September 8th, in a sealed indictment, the Grand Jury charged Bruce Bass with the murder of Randy Farenthold.
The indictment was passed on to the District Attorney’s office, and a warrant for arrest was issued for Bruce Bass. Grand Junction, Colorado, authorities then arrested Bass without incident. He waived extradition proceedings, and on September 10th, Jim Peters and two members of the Organized Crime Unit flew in a Department of Public Safety plane to Grand Junction and escorted Bruce Bass back to Texas.
On the way back, the plane stopped in Lubbock, Texas, to refuel, and Peters escorted the prisoner to a comfortable chair in the lounge, where they could wait. Bruce, who hadn’t spoken one word to Peters since the officers had picked him up, suddenly turned and said, “Peters, as skinny and frail as I am, do you think that I could kidnap Randy Farenthold, put him in the trunk of his car, take him out there, take him out of his car and put him into another car, transfer him from car to car, take him out there off Weber Road, beat him with a pistol and choke him to death, put him back in the car, take him over to Port Aransas, put him on a boat, take him out in the Gulf and lift him out of the boat with all those chains and concrete?”
The tall Ranger looked Bruce evenly in the eye and said, “No, but I know you had it done. They got Randy when he got home. They kidnapped him in his driveway and put him in the trunk of the car. They transferred him from one car to another, and you ordered it.”
Robert Walters, in his talks with Peters, also named another person with Bass, and although all the law enforcement officers knew the other person with Bruce, the man was never prosecuted and his name cannot be given. Several years later, this other man died from a heart attack.
Robert Walters was given immunity for his cooperation in breaking the case. He said that he and his brother, Donnie, had gotten everything together for Bruce Bass. At the time Jim Peters interviewed Robert in Rosharon, Donnie was in a federal penitentiary in Kansas, and Robert wanted to talk to Donnie.
“Can you make it possible for me to talk to my brother?” Robert asked the tall Ranger.
“Sure. Be glad to,” Jim Peters replied. It was a call from a prisoner in a state penitentiary to a prisoner in a federal penitentiary in another state.
“When we told the FBI about it later,” Peters laughed, “they said, `That’s impossible. There’s absolutely no way that it can be done.’ I said, `Oh yeah? I’m a Texas Ranger, and Rangers can do anything.’”
Bruce Bass stood trial for the murder of Randy Randy Farenthold had refused to back down, and he was murdered because of it. District Attorney William Mobley spoke for all lawmen everywhere when he said, “...to kill any witness in another case is about as bad as you can get....”
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Friday, April 20, 2007
Friday, April 06, 2007
Well I not never pray......I let the melody shine, let it cleanse my mind,
"i'M WAITING" AS spoken by Sonic The Hedgehog
Allspirit Song Lyrics
Bittersweet Symphony
The Verve
'Cause it's a bittersweet symphony, this life
Try to make ends meet
Your a slave to money then you die
I'll take you down the only road I've ever been down
You know the one that takes you
to the places where all the things meet yeah
No change,
I can't change I can't change, I can't change
But I'm here in my mold, I am here in my mold
But I'm a million different people from one day to the next
I can't change my mold
No, no, no, no, no
Well I never pray
But tonight I'm on my knees yeah
I need to hear some sounds
that recognize the pain in me, yeah
I let the melody shine, let it cleanse my mind,
I feel free now
But the airways are clean
and there's nobody singing to me now
No change,
I can't change I can't change, I can't change
But I'm here in my mold, I am here in my mold
And I'm a million different people from one day to the next
I can't change my mold
No, no, no, no, no
I can't change I can't change
'Cause it's a bittersweet symphony, this life
Try to make ends meet
Try to find some money, then you die
I'll take you down the only road I've ever been down
You know the one that takes you
to the places where all the things meet yeah
You know I can't change, I can't change
I can't change, I can't change
But I'm here in my mold, I am here in my mold
And I'm a million different people from one day to the next
I can't change my mold
No, no, no, no, no
I can't change my mold
no, no, no, no, no,
I can't change
I'll take you down the only road I've ever been down
I'll take you down the only road I've ever been down
(It justs sex and violence melody and silence)
(Been down)
(Ever been down)
That you've ever been down
That you've ever been down
LYRICS INDEX
Allspirit Song Lyrics
Bittersweet Symphony
The Verve
'Cause it's a bittersweet symphony, this life
Try to make ends meet
Your a slave to money then you die
I'll take you down the only road I've ever been down
You know the one that takes you
to the places where all the things meet yeah
No change,
I can't change I can't change, I can't change
But I'm here in my mold, I am here in my mold
But I'm a million different people from one day to the next
I can't change my mold
No, no, no, no, no
Well I never pray
But tonight I'm on my knees yeah
I need to hear some sounds
that recognize the pain in me, yeah
I let the melody shine, let it cleanse my mind,
I feel free now
But the airways are clean
and there's nobody singing to me now
No change,
I can't change I can't change, I can't change
But I'm here in my mold, I am here in my mold
And I'm a million different people from one day to the next
I can't change my mold
No, no, no, no, no
I can't change I can't change
'Cause it's a bittersweet symphony, this life
Try to make ends meet
Try to find some money, then you die
I'll take you down the only road I've ever been down
You know the one that takes you
to the places where all the things meet yeah
You know I can't change, I can't change
I can't change, I can't change
But I'm here in my mold, I am here in my mold
And I'm a million different people from one day to the next
I can't change my mold
No, no, no, no, no
I can't change my mold
no, no, no, no, no,
I can't change
I'll take you down the only road I've ever been down
I'll take you down the only road I've ever been down
(It justs sex and violence melody and silence)
(Been down)
(Ever been down)
That you've ever been down
That you've ever been down
LYRICS INDEX
Saturday, March 31, 2007
FirmFinance™: provides revolving and term loans of up to $25 million dollars,
"i'M WAITING" AS spoken by Sonic The Hedgehog
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http://laws.findlaw.com/1st/962280.html
U.S. 1st Circuit Court of Appeals
US v GONZALEZ-GONZALEZ
United States Court of Appeals
For the First Circuit
____________________
No. 96-2280
UNITED STATES OF AMERICA,
Appellee,
v.
MANUEL GONZALEZ-GONZALEZ,
Defendant, Appellant.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Juan M. Perez-Gimenez, U.S. District Judge ]
____________________
Before
Lynch, Circuit Judge ,
Coffin and Cyr, Senior Circuit Judges .
____________________
Laura H. Parsky , Trial Attorney, with whom John C. Keeney , Acting Assistant Attorney General, and Theresa M.B. Van Vliet , Chief of the Narcotics and Dangerous Drugs Section, Department of Justice, were on brief, for appellee.
Lawrence E. Besser for appellant.
Manuel Gonzalez-Gonzalez on brief pro se.
____________________
February 5, 1998
____________________
LYNCH, Circuit Judge . Manuel Gonzalez-Gonzalez was convicted of a major drug smuggling and money laundering conspiracy based in Puerto Rico. Gonzalez' defense at trial was that such a conspiracy did exist, but that he was not part of it. Gonzalez now argues through counsel that an admittedly improper definition of reasonable doubt argued by the prosecutor in closing requires a new trial, as does a jury instruction on the effect of a guilty plea by a co-defendant. Gonzalez also filed a brief pro se, arguing that the district court erred for other reasons in denying his motion for a new trial. We affirm.
I. Gonzalez was charged on November 2, 1994 with conspiracy to
possess with intent to distribute cocaine and marijuana, possession with
intent to distribute marijuana, possession with intent to distribute
cocaine, importation of marijuana and cocaine, and aiding and abetting in
the laundering of monetary instruments. After a nineteen-day trial, the
jury found Gonzalez guilty as charged. Gonzalez was sentenced on
September 20, 1996 to life imprisonment and was fined.
Because this appeal involves admittedly improper remarks by the prosecutor, and because the verdict could have been tainted by these remarks, we do not consider the facts in the light most favorable to the jury's verdict. Our description of the facts is "designed to provide a balanced picture of the evidence appropriate for determining whether the remarks were harmless or prejudicial." United States v. Hardy , 37 F.3d 753, 755 (1st Cir. 1994). See Arrieta-Agressot v. United States , 3 F.3d 525, 528 (1st Cir. 1993).
Several witnesses testified that they belonged to Gonzalez' drug smuggling and money laundering operation. This extensive testimonial evidence was corroborated by tape recorded conversations, surveillance photographs, passport entries, travel records, and telephone records. Ricardo Rivero ("Rivero") testified that Gonzalez recruited him to retrieve and repackage 900 pounds of marijuana imported from Colombia in 1991. Rivero testified that Gonzalez stored cocaine and marijuana at a house belonging to Manuel Garrido, which other witnesses, a co-defendant and an FBI agent, subsequently confirmed.
Gonzalez transported 125 kilograms of cocaine from Puerto Rico to New York for distribution with help from Rivero. Gonzalez also hired Roberto Garraton-Rivera and Alberto Maysonet to transport cocaine. Garraton testified that Gonzalez came to his house to deliver cocaine to Maysonet. Garraton and Maysonet traveled to New York in August of 1991 to deliver cocaine to Gonzalez. While in New York, Gonzalez instructed Ricardo on how to distribute the cocaine and resolved a dispute over payment for the drugs. After the success of this deal, Gonzalez purchased several cars before returning to Puerto Rico.
Witnesses described other drug transactions in 1992. Co-defendant Luz Marina-Giraldo testified that she helped Gonzalez import 6,500 pounds of marijuana into Puerto Rico. Gonzalez stored the marijuana at a stash house and sold it in Puerto Rico. Rivero also testified about that marijuana shipment. According to Rivero, Gonzalez supervised the unloading and transportation of the marijuana.
Both Rivero and Marina-Giraldo testified that Gonzalez was involved in transporting 300 kilograms of cocaine from St. Martin to Puerto Rico in 1992. These witnesses also testified about a major shipment of cocaine and marijuana Gonzalez had imported from Colombia to Puerto Rico in September of 1992. Part of this shipment was seized by the police.
Several witnesses testified that they helped Gonzalez' cousin, Augustin Rivero ("Augustin"), import 625 kilograms of cocaine in November of 1992. Ricardo Rivero testified that Gonzalez supplied a motor for a boat to help bring in the shipment. Roberto Sierra-Rivera, a paid informant, testified that Gonzalez provided surveillance for this shipment, which was later sold in Puerto Rico and New York. Sierra-Rivera testified that Gonzalez and Augustin agreed that each time one of them brought in a load of cocaine, the other would be given 10 kilograms of cocaine or $100,000. There was also testimony about later cocaine smuggling operations conducted by Gonzalez' cousin Augustin.
Angel Santiago-Mora, a cooperating witness, and Martin Suarez, an FBI agent, testified that Gonzalez and his associates often delivered money to them to be laundered. On several separate occasions Gonzalez delivered hundreds of thousands of dollars to them. Other people closely connected to Gonzalez also delivered substantial sums of money to be laundered.
The government also presented tape recordings of conversations between Gonzalez and his associates in which Gonzalez admitted his involvement in drug smuggling and distribution. This evidence was supplemented by tapes of Gonzalez' associates referring to Gonzalez' involvement in drug trafficking.
Gonzalez testified and denied it all.
II. Gonzalez argues that he was deprived of his Sixth Amendment
right to a jury trial because in the prosecutor's closing argument the
prosecutor said:
[Y]ou heard [defense counsel] say at the end of his argument, that there was reasonable doubt as to whether he was or was not and I am going to tell you something, you will listen to the instructions from the judge as to what reasonable doubt is -- it is something very simple. If in your mind you think that he was a member of the organization, and in your heart, you feel that he was a member of the organization, then he was a member of the organization, and you say so with your verdict. Don't let yourselves be confused by the definition of reasonable doubt.
The government appropriately concedes that the prosecutor's remarks incorrectly defined reasonable doubt. Because there was no objection to these remarks (which the defendant concedes), we apply a plain error standard of review. See United States v. Crochiere , 129 F.3d 233, 237 (1st Cir. 1997); United States v. Taylor , 54 F.3d 967, 972-73 (1st Cir. 1995). The "decision to correct the forfeited error [is] within the sound discretion of the court of appeals, and the court should not exercise that discretion unless the error 'seriously affect[s] the fairness, integrity or public reputation of the judicial proceedings.'" United States v. Olano , 507 U.S. 725, 732 (1993) (quoting United States v. Young , 470 U.S. 1, 15 (1985)).
Gonzalez relies on a series of cases holding that jury instructions which misstate the reasonable doubt standard require a new trial. He argues that the prosecutor's comments on reasonable doubt are the "functional equivalent" of jury instructions, especially since the prosecutor followed his incorrect definition with a statement that the jury should not be confused by the definition of reasonable doubt. Gonzalez argues that the prosecutor essentially told the jury to ignore the judge's instructions on reasonable doubt and to follow his "mind and heart" test instead. We start with the latter contention.
The remark, "Don't let yourselves be confused by the definition of reasonable doubt" is ambiguous, and could have at least three meanings. It could mean "Don't be confused by the definition that I, the prosecutor, have just told you." It could mean, "Don't be confused by the definition you hear from either lawyer." And it could mean, "Don't be confused by the definition you hear from the judge," with the implication that the prosecutor's definition governs.
In context, the third meaning is by far the least likely of the three. 1 The prosecutor prefaced his remarks by telling the jury to listen to the judge's instructions, and his statement that the jury should not be confused by the definition of reasonable doubt is subject to benign interpretation. Furthermore, the prosecutor concluded his argument by stating, "You will listen to the instructions of the Honorable Judge, as he explains them to you, you will decide what the facts in this case were [and] you will apply the law . . . ." The prosecutor's own comments went a long way toward curing any understanding of the comment as an admonition to ignore the court's instruction.
The problem with the prosecutor's error was obviated by the court's instructions on reasonable doubt, which Gonzalez concedes were correct, as well as the court's admonition to the jurors that instructions on the law come only from the court, and not from counsel.
We flatly reject Gonzalez' argument that a misstatement of the law by a prosecutor should be treated the same way as a misstatement of law by the judge. No juror would mistake a prosecutor for a judge. Our law assumes that the jurors follow jury instructions and thus that they followed the judge's, not counsel's, definition of reasonable doubt. See United States v. Rivera-Gomez , 67 F.3d 993, 999 (1st Cir. 1995) ("[O]ur system of trial by jury is premised on the assumption that jurors will scrupulously follow the court's instructions."); Refuse & Envtl. Sys., Inc. v. Industrial Serv. of Am., Inc. , 932 F.2d 37, 40 (1st Cir. 1991) ("A basic premise of our jury system is that the jury follows the court's instructions."). That assumption is especially so here, since the prosecutor also told the jury to listen to the judge.
Whether the prosecutor's remarks amount to plain error warranting a new trial depends on analysis of several factors: "(1) the extent to which the conduct is recurrent and/or deliberate; (2) the extent to which the trial judge's instructions insulated the jury against, or palliated, the possibility of unfair prejudice; and (3) the overall strength of the prosecution's case, with particular regard to the likelihood that any prejudice might have affected the jury's judgment." Taylor , 54 F.3d at 977.
We make no determination on the first of the Taylor factors. We do note a long history of improper statements in closing argument from federal prosecutors in Puerto Rico. See, e.g. , United States v. Rodriguez- Carmona , 111 F.3d 122, 1997 WL 157738, at *4 (1st Cir. 1997); United States v. Fernandez , 94 F.3d 640, 1996 WL 469009, at *17 (1st Cir. 1996); United States v. Cartagena-Carrasquillo , 70 F.3d 706, 713 (1st Cir. 1995); United States v. Levy-Cordero , 67 F.3d 1002, 1009 (1st Cir. 1995); Arrieta-Agressot , 3 F.3d at 527 (citing cases); United States v. Ortiz- Arrigoita , 996 F.2d 436, 441 (1st Cir. 1993) ("We do not understand, however, why after numerous warnings from this court, the prosecuting attorneys in the District of Puerto Rico persist in spiking their arguments with comments that put their cases at risk.") (collecting cases). In light of this history, the government gains no advantage under the first factor.
As to the second factor, we are persuaded the jury was not led astray. That is because of the court's concededly correct jury instructions on reasonable doubt and the direction to disregard statements about the law from counsel. As to the third factor, the government had a very strong case against Gonzalez. Given these considerations, we do not think the jury's judgment was affected and a new trial is not warranted. Cf. Levy- Cordero , 67 F.3d at 1008 (holding that several "obviously improper" prosecutorial comments did not warrant a new trial).
III. In his counselled appeal, Gonzalez says the district court
committed error in its jury instructions regarding the guilty plea of co-
defendant Luz Marina-Giraldo.
2
Specifically, Gonzalez argues
that the court's statement that his co-defendant's guilty plea is not "in
and of itself" proof of Gonzalez' guilt implies that the plea could be
considered as evidence of guilt in conjunction with other evidence in the
case. There was no objection to these instructions, so we apply the
plain error standard of review (which Gonzalez concedes).
See
Taylor
, 54
F.3d at 976;
United States
v.
Colon-Pagan
, 1 F.3d 80, 81 (1st Cir. 1993).
The phrase "in and of itself," in isolation, could be understood to mean what Gonzalez posits: that standing alone, the guilty plea of a co- defendant could not be evidence of guilt of the defendant, but, in combination with such other evidence, the plea could be taken as evidence of the defendant's guilt. That is, of course, not the law, nor, we are sure, was that the trial judge's intended meaning when he gave the instructions.
The trial judge may have relied on dicta in United States v. Rivera- Santiago , 872 F.2d 1073, 1083 (1st Cir.), cert. denied , 492 U.S. 910 (1989), and cert. denied , 493 U.S. 832 (1989). In describing the events at the trial, this court's opinion referred to the following language given by the trial judge as a "standard accomplice" instruction: "the fact that an accomplice has entered a plea of guilty to the offense charged is not evidence in and of itself of the guilt of any other person." The language of the instruction itself was not at issue in Rivera-Santiago 3 and this Court has not ruled on the propriety of such language in an accomplice instruction. We do so now and discourage the use of such "in and of itself" language. There is no need for such language, as the pattern jury instructions from other jurisdictions make evident. 4
Despite the potentially misleading nature of the "in and of itself" language, a new trial is not warranted here. The district court instructions, taken as a whole, repeatedly and unequivocally told the jury not to consider the co-defendant's guilty plea as evidence of the defendant's guilt. 5
We examine jury instructions in the context of the charge as a whole to determine whether the court's instructions require a new trial. See United States v. Rose , 104 F.3d 1408, 1416 (1st Cir. 1997). When we take this context into account, it is apparent that the court's instructions in this case do not warrant a new trial. We also reject Gonzalez' claim that the synergistic effect of two errors requires a new trial.
IV. In his pro se brief, Gonzalez argues that the district court
erred in denying his motion for a new trial.
6
The motion
based the request for a new trial on claimed newly discovered evidence
and claimed prosecutorial misconduct, including presentation of false
testimony.
7
We review a trial judge's ruling on a motion for a new trial for manifest abuse of discretion. See United States v. Brimage , 115 F.3d 73, 79 (1st Cir. 1997). "The remedy of a new trial is rarely used; it is warranted 'only where there would be a miscarriage of justice' or 'where the evidence preponderates heavily against the verdict.'" United States v. Andrade , 94 F.3d 9, 14 (1st Cir. 1996) (quoting United States v. Indelicato , 611 F.2d 376, 386 (1st Cir. 1979)). See United States v. Montilla-Rivera , 115 F.3d 1060 (1st Cir. 1997). In a motion for a new trial based upon newly discovered evidence, the defendant must establish that "the evidence was: (i) unknown or unavailable at the time of trial, (ii) despite due diligence, (iii) material, and (iv) likely to result in an acquittal upon retrial." United States v. Tibolt , 72 F.3d 965, 971 (1st Cir. 1995). But Gonzalez' complaints are largely about what happened at trial and were not newly discovered.
The district court gave a careful explanation of its denial of Gonzalez' motion, and we affirm for the reasons stated in the court's Memorandum and Order dated December 3, 1996. We add only that the "new evidence" Gonzalez presents does not come close to "so undermin[ing] the government's case as to give rise to a 'reasonable' probability of acquittal on retrial." Tibolt , 72 F.3d at 972 (quoting Sepulveda , 15 F.3d at 1220)).
The judgment is affirmed.
FOOTNOTES
--------------
[1]
We note but need not resort to the rule that when a prosecutor's comments are ambiguous, and there is no contemporaneous objection, the ambiguity is construed in favor of a proper meaning. See Taylor , 54 F.3d at 979 ("[W]hen the target of the comments does not interrupt and register a timely objection, it seems especially appropriate to 'give the arguer the benefit of every plausible interpretation of her words.' . . . Given the absence of a contemporaneous objection, we must cede to the government the benefit of a legitimate, plausible interpretation of the prosecutor's words.") (quoting United States v. Sepulveda , 15 F.3d 1161, 1187 (1st Cir. 1993)).
--------------
[2]
Before Marina-Giraldo testified as a witness, the court instructed the jury:
[T]he government must establish each case against each defendant separately. Now, the fact that this co-defendant is going to testify, you are going to hear from her that she did enter a plea of guilty and now she is testifying for the government. Now the fact that a co-defendant has entered a plea of guilty to the offense charged, that fact also, the entering of a plea of guilty in and of itself is not evidence of any guilt of any other of the co-defendants. I repeat that. The fact that a co-defendant has entered a plea of guilty to the offense charged is not evidence in and of itself of the guilt of any other co-defendant and I cannot emphasize that enough.
The guilty plea of Luz Marina-Giraldo may not be regarded by you as substantive evidence of the other defendant's guilt nor may you draw any inference of guilt as to the remaining co- defendants. The fact that she pled is what I am talking about, that cannot be used as evidence against the other defendants nor may you draw any inference from the fact that she pled guilty. . . .
[W]hat you cannot consider is the fact that she has entered a plea of guilty, that fact cannot be considered. It is not evidence against the other defendants and affords no inference or suggestion of guilt as to the other defendants.
--------------
[3]
The Fifth Circuit also described a similar "in and of itself" accomplice instruction in United States v. Abravaya , 616 F.2d 250 (5th Cir. 1980). The new District Court Criminal Law Pattern Jury Instructions for this circuit do not address guilty pleas by accomplices or co-defendants.
--------------
[4]
The pattern instructions of other circuits are more straightforward and do not contain "in and of itself" language. For example, Sixth Circuit pattern jury instruction 7.08 reads as follows:
(3) The fact that ________ has pleaded guilty to a crime is not evidence that the defendant is guilty, and you cannot consider this against the defendant in any way .
The Seventh Circuit's pattern jury instruction 3.23 reads:
The witness, ________, has pleaded guilty to a crime arising out of the same occurrence for which the defendant is now on trial. You may give his testimony such weight as you feel it deserves, keeping in mind that it must be considered with caution and great care. Moreover, his guilty plea is not to be considered as evidence against the defendant .
Pattern jury instruction 2.19 from the Eighth Circuit states:
You have heard evidence that witness (name) has pleaded guilty to a crime which arose out of the same events for which the defendant is on trial here. You must not consider that guilty plea as any evidence of this defendant's guilt . You may consider that witness' guilty plea only for the purpose of determining how much, if at all, to rely upon that witness' testimony.
Finally, Ninth Circuit pattern instruction 4.12 reads:
The witness, _________, has pleaded guilty to a crime arising out of the same events for which the defendant is on trial. This guilty plea is not evidence against the defendant and you may consider it only in determining this witness' believability. You should consider this witness' testimony with great caution, giving it the weight you feel it deserves .
--------------
[5]
The court also instructed the jury:
Now, the case against Luz Marina-Giraldo has been disposed of and will no longer be before you. It is very important that you realize that you cannot guess or concern yourselves or speculate as to the reason for the disposition of her case. The disposition cannot and should not influence your verdict with reference to the remaining defendants that are on trial here.
If you recall, I think I advised you on the first day that each defendant, although being tried together, has a right to have the jury consider his case separately of the other defendants and considering the evidence that applies or that is admitted as to that defendant specifically. . . . [A]lthough [the defendants] are being tried together, you must give separate consideration to each defendant. . . . I repeat that you cannot and you must not consider the fact that Luz Marina-Giraldo is not here again and it should not enter into your deliberations. . . . [The disposition of her case] should not enter whatsoever in your deliberations as to the other two defendants.
In its final instructions to the jury, the court said:
[D]uring the course of the trial, I instructed you that the case against Luz Marina-Giraldo . . . [had] been disposed of, and was no longer before you. And the disposition of the case[] . . . should not influence your verdict with reference to . . . Gonzalez and you must base your verdict solely on the evidence against Mr. Gonzalez-Gonzalez. In other words, the government must establish its case against Mr. Gonzalez separately of the disposition of the cases against the other two defendants.
And I also instructed you, the fact that co-defendant Luz Marina- Giraldo entered a plea of guilty to the offense charged is not evidence in and of itself of the guilt of the defendant here on trial and I cannot emphasize this enough. The guilty plea of Luz Marina-Giraldo may not be regarded by you as substantive evidence of the guilt [of] Mr. Gonzalez-Gonzalez. Nonetheless, you may give her testimony such weight as you think it deserves, keeping in mind that it must be considered with caution and great care.
--------------
[6]
After oral argument in this case, Gonzalez filed a letter with this court, which we accepted as a supplemental brief, raising issues in addition to those raised by his able counsel. We requested the government to file a responsive brief, which it has done. We reach the merits of Gonzalez' pro se appeal.
--------------
[7]
Gonzalez also complains of a factual error concerning whether the name "Lin" appeared on any of the drug packages from Loiza beach, an error contained in the transcript. At oral argument before us, the government conceded this factual error, saying the name did not appear.
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http://laws.findlaw.com/1st/962280.html
U.S. 1st Circuit Court of Appeals
US v GONZALEZ-GONZALEZ
United States Court of Appeals
For the First Circuit
____________________
No. 96-2280
UNITED STATES OF AMERICA,
Appellee,
v.
MANUEL GONZALEZ-GONZALEZ,
Defendant, Appellant.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Juan M. Perez-Gimenez, U.S. District Judge ]
____________________
Before
Lynch, Circuit Judge ,
Coffin and Cyr, Senior Circuit Judges .
____________________
Laura H. Parsky , Trial Attorney, with whom John C. Keeney , Acting Assistant Attorney General, and Theresa M.B. Van Vliet , Chief of the Narcotics and Dangerous Drugs Section, Department of Justice, were on brief, for appellee.
Lawrence E. Besser for appellant.
Manuel Gonzalez-Gonzalez on brief pro se.
____________________
February 5, 1998
____________________
LYNCH, Circuit Judge . Manuel Gonzalez-Gonzalez was convicted of a major drug smuggling and money laundering conspiracy based in Puerto Rico. Gonzalez' defense at trial was that such a conspiracy did exist, but that he was not part of it. Gonzalez now argues through counsel that an admittedly improper definition of reasonable doubt argued by the prosecutor in closing requires a new trial, as does a jury instruction on the effect of a guilty plea by a co-defendant. Gonzalez also filed a brief pro se, arguing that the district court erred for other reasons in denying his motion for a new trial. We affirm.
I. Gonzalez was charged on November 2, 1994 with conspiracy to
possess with intent to distribute cocaine and marijuana, possession with
intent to distribute marijuana, possession with intent to distribute
cocaine, importation of marijuana and cocaine, and aiding and abetting in
the laundering of monetary instruments. After a nineteen-day trial, the
jury found Gonzalez guilty as charged. Gonzalez was sentenced on
September 20, 1996 to life imprisonment and was fined.
Because this appeal involves admittedly improper remarks by the prosecutor, and because the verdict could have been tainted by these remarks, we do not consider the facts in the light most favorable to the jury's verdict. Our description of the facts is "designed to provide a balanced picture of the evidence appropriate for determining whether the remarks were harmless or prejudicial." United States v. Hardy , 37 F.3d 753, 755 (1st Cir. 1994). See Arrieta-Agressot v. United States , 3 F.3d 525, 528 (1st Cir. 1993).
Several witnesses testified that they belonged to Gonzalez' drug smuggling and money laundering operation. This extensive testimonial evidence was corroborated by tape recorded conversations, surveillance photographs, passport entries, travel records, and telephone records. Ricardo Rivero ("Rivero") testified that Gonzalez recruited him to retrieve and repackage 900 pounds of marijuana imported from Colombia in 1991. Rivero testified that Gonzalez stored cocaine and marijuana at a house belonging to Manuel Garrido, which other witnesses, a co-defendant and an FBI agent, subsequently confirmed.
Gonzalez transported 125 kilograms of cocaine from Puerto Rico to New York for distribution with help from Rivero. Gonzalez also hired Roberto Garraton-Rivera and Alberto Maysonet to transport cocaine. Garraton testified that Gonzalez came to his house to deliver cocaine to Maysonet. Garraton and Maysonet traveled to New York in August of 1991 to deliver cocaine to Gonzalez. While in New York, Gonzalez instructed Ricardo on how to distribute the cocaine and resolved a dispute over payment for the drugs. After the success of this deal, Gonzalez purchased several cars before returning to Puerto Rico.
Witnesses described other drug transactions in 1992. Co-defendant Luz Marina-Giraldo testified that she helped Gonzalez import 6,500 pounds of marijuana into Puerto Rico. Gonzalez stored the marijuana at a stash house and sold it in Puerto Rico. Rivero also testified about that marijuana shipment. According to Rivero, Gonzalez supervised the unloading and transportation of the marijuana.
Both Rivero and Marina-Giraldo testified that Gonzalez was involved in transporting 300 kilograms of cocaine from St. Martin to Puerto Rico in 1992. These witnesses also testified about a major shipment of cocaine and marijuana Gonzalez had imported from Colombia to Puerto Rico in September of 1992. Part of this shipment was seized by the police.
Several witnesses testified that they helped Gonzalez' cousin, Augustin Rivero ("Augustin"), import 625 kilograms of cocaine in November of 1992. Ricardo Rivero testified that Gonzalez supplied a motor for a boat to help bring in the shipment. Roberto Sierra-Rivera, a paid informant, testified that Gonzalez provided surveillance for this shipment, which was later sold in Puerto Rico and New York. Sierra-Rivera testified that Gonzalez and Augustin agreed that each time one of them brought in a load of cocaine, the other would be given 10 kilograms of cocaine or $100,000. There was also testimony about later cocaine smuggling operations conducted by Gonzalez' cousin Augustin.
Angel Santiago-Mora, a cooperating witness, and Martin Suarez, an FBI agent, testified that Gonzalez and his associates often delivered money to them to be laundered. On several separate occasions Gonzalez delivered hundreds of thousands of dollars to them. Other people closely connected to Gonzalez also delivered substantial sums of money to be laundered.
The government also presented tape recordings of conversations between Gonzalez and his associates in which Gonzalez admitted his involvement in drug smuggling and distribution. This evidence was supplemented by tapes of Gonzalez' associates referring to Gonzalez' involvement in drug trafficking.
Gonzalez testified and denied it all.
II. Gonzalez argues that he was deprived of his Sixth Amendment
right to a jury trial because in the prosecutor's closing argument the
prosecutor said:
[Y]ou heard [defense counsel] say at the end of his argument, that there was reasonable doubt as to whether he was or was not and I am going to tell you something, you will listen to the instructions from the judge as to what reasonable doubt is -- it is something very simple. If in your mind you think that he was a member of the organization, and in your heart, you feel that he was a member of the organization, then he was a member of the organization, and you say so with your verdict. Don't let yourselves be confused by the definition of reasonable doubt.
The government appropriately concedes that the prosecutor's remarks incorrectly defined reasonable doubt. Because there was no objection to these remarks (which the defendant concedes), we apply a plain error standard of review. See United States v. Crochiere , 129 F.3d 233, 237 (1st Cir. 1997); United States v. Taylor , 54 F.3d 967, 972-73 (1st Cir. 1995). The "decision to correct the forfeited error [is] within the sound discretion of the court of appeals, and the court should not exercise that discretion unless the error 'seriously affect[s] the fairness, integrity or public reputation of the judicial proceedings.'" United States v. Olano , 507 U.S. 725, 732 (1993) (quoting United States v. Young , 470 U.S. 1, 15 (1985)).
Gonzalez relies on a series of cases holding that jury instructions which misstate the reasonable doubt standard require a new trial. He argues that the prosecutor's comments on reasonable doubt are the "functional equivalent" of jury instructions, especially since the prosecutor followed his incorrect definition with a statement that the jury should not be confused by the definition of reasonable doubt. Gonzalez argues that the prosecutor essentially told the jury to ignore the judge's instructions on reasonable doubt and to follow his "mind and heart" test instead. We start with the latter contention.
The remark, "Don't let yourselves be confused by the definition of reasonable doubt" is ambiguous, and could have at least three meanings. It could mean "Don't be confused by the definition that I, the prosecutor, have just told you." It could mean, "Don't be confused by the definition you hear from either lawyer." And it could mean, "Don't be confused by the definition you hear from the judge," with the implication that the prosecutor's definition governs.
In context, the third meaning is by far the least likely of the three. 1 The prosecutor prefaced his remarks by telling the jury to listen to the judge's instructions, and his statement that the jury should not be confused by the definition of reasonable doubt is subject to benign interpretation. Furthermore, the prosecutor concluded his argument by stating, "You will listen to the instructions of the Honorable Judge, as he explains them to you, you will decide what the facts in this case were [and] you will apply the law . . . ." The prosecutor's own comments went a long way toward curing any understanding of the comment as an admonition to ignore the court's instruction.
The problem with the prosecutor's error was obviated by the court's instructions on reasonable doubt, which Gonzalez concedes were correct, as well as the court's admonition to the jurors that instructions on the law come only from the court, and not from counsel.
We flatly reject Gonzalez' argument that a misstatement of the law by a prosecutor should be treated the same way as a misstatement of law by the judge. No juror would mistake a prosecutor for a judge. Our law assumes that the jurors follow jury instructions and thus that they followed the judge's, not counsel's, definition of reasonable doubt. See United States v. Rivera-Gomez , 67 F.3d 993, 999 (1st Cir. 1995) ("[O]ur system of trial by jury is premised on the assumption that jurors will scrupulously follow the court's instructions."); Refuse & Envtl. Sys., Inc. v. Industrial Serv. of Am., Inc. , 932 F.2d 37, 40 (1st Cir. 1991) ("A basic premise of our jury system is that the jury follows the court's instructions."). That assumption is especially so here, since the prosecutor also told the jury to listen to the judge.
Whether the prosecutor's remarks amount to plain error warranting a new trial depends on analysis of several factors: "(1) the extent to which the conduct is recurrent and/or deliberate; (2) the extent to which the trial judge's instructions insulated the jury against, or palliated, the possibility of unfair prejudice; and (3) the overall strength of the prosecution's case, with particular regard to the likelihood that any prejudice might have affected the jury's judgment." Taylor , 54 F.3d at 977.
We make no determination on the first of the Taylor factors. We do note a long history of improper statements in closing argument from federal prosecutors in Puerto Rico. See, e.g. , United States v. Rodriguez- Carmona , 111 F.3d 122, 1997 WL 157738, at *4 (1st Cir. 1997); United States v. Fernandez , 94 F.3d 640, 1996 WL 469009, at *17 (1st Cir. 1996); United States v. Cartagena-Carrasquillo , 70 F.3d 706, 713 (1st Cir. 1995); United States v. Levy-Cordero , 67 F.3d 1002, 1009 (1st Cir. 1995); Arrieta-Agressot , 3 F.3d at 527 (citing cases); United States v. Ortiz- Arrigoita , 996 F.2d 436, 441 (1st Cir. 1993) ("We do not understand, however, why after numerous warnings from this court, the prosecuting attorneys in the District of Puerto Rico persist in spiking their arguments with comments that put their cases at risk.") (collecting cases). In light of this history, the government gains no advantage under the first factor.
As to the second factor, we are persuaded the jury was not led astray. That is because of the court's concededly correct jury instructions on reasonable doubt and the direction to disregard statements about the law from counsel. As to the third factor, the government had a very strong case against Gonzalez. Given these considerations, we do not think the jury's judgment was affected and a new trial is not warranted. Cf. Levy- Cordero , 67 F.3d at 1008 (holding that several "obviously improper" prosecutorial comments did not warrant a new trial).
III. In his counselled appeal, Gonzalez says the district court
committed error in its jury instructions regarding the guilty plea of co-
defendant Luz Marina-Giraldo.
2
Specifically, Gonzalez argues
that the court's statement that his co-defendant's guilty plea is not "in
and of itself" proof of Gonzalez' guilt implies that the plea could be
considered as evidence of guilt in conjunction with other evidence in the
case. There was no objection to these instructions, so we apply the
plain error standard of review (which Gonzalez concedes).
See
Taylor
, 54
F.3d at 976;
United States
v.
Colon-Pagan
, 1 F.3d 80, 81 (1st Cir. 1993).
The phrase "in and of itself," in isolation, could be understood to mean what Gonzalez posits: that standing alone, the guilty plea of a co- defendant could not be evidence of guilt of the defendant, but, in combination with such other evidence, the plea could be taken as evidence of the defendant's guilt. That is, of course, not the law, nor, we are sure, was that the trial judge's intended meaning when he gave the instructions.
The trial judge may have relied on dicta in United States v. Rivera- Santiago , 872 F.2d 1073, 1083 (1st Cir.), cert. denied , 492 U.S. 910 (1989), and cert. denied , 493 U.S. 832 (1989). In describing the events at the trial, this court's opinion referred to the following language given by the trial judge as a "standard accomplice" instruction: "the fact that an accomplice has entered a plea of guilty to the offense charged is not evidence in and of itself of the guilt of any other person." The language of the instruction itself was not at issue in Rivera-Santiago 3 and this Court has not ruled on the propriety of such language in an accomplice instruction. We do so now and discourage the use of such "in and of itself" language. There is no need for such language, as the pattern jury instructions from other jurisdictions make evident. 4
Despite the potentially misleading nature of the "in and of itself" language, a new trial is not warranted here. The district court instructions, taken as a whole, repeatedly and unequivocally told the jury not to consider the co-defendant's guilty plea as evidence of the defendant's guilt. 5
We examine jury instructions in the context of the charge as a whole to determine whether the court's instructions require a new trial. See United States v. Rose , 104 F.3d 1408, 1416 (1st Cir. 1997). When we take this context into account, it is apparent that the court's instructions in this case do not warrant a new trial. We also reject Gonzalez' claim that the synergistic effect of two errors requires a new trial.
IV. In his pro se brief, Gonzalez argues that the district court
erred in denying his motion for a new trial.
6
The motion
based the request for a new trial on claimed newly discovered evidence
and claimed prosecutorial misconduct, including presentation of false
testimony.
7
We review a trial judge's ruling on a motion for a new trial for manifest abuse of discretion. See United States v. Brimage , 115 F.3d 73, 79 (1st Cir. 1997). "The remedy of a new trial is rarely used; it is warranted 'only where there would be a miscarriage of justice' or 'where the evidence preponderates heavily against the verdict.'" United States v. Andrade , 94 F.3d 9, 14 (1st Cir. 1996) (quoting United States v. Indelicato , 611 F.2d 376, 386 (1st Cir. 1979)). See United States v. Montilla-Rivera , 115 F.3d 1060 (1st Cir. 1997). In a motion for a new trial based upon newly discovered evidence, the defendant must establish that "the evidence was: (i) unknown or unavailable at the time of trial, (ii) despite due diligence, (iii) material, and (iv) likely to result in an acquittal upon retrial." United States v. Tibolt , 72 F.3d 965, 971 (1st Cir. 1995). But Gonzalez' complaints are largely about what happened at trial and were not newly discovered.
The district court gave a careful explanation of its denial of Gonzalez' motion, and we affirm for the reasons stated in the court's Memorandum and Order dated December 3, 1996. We add only that the "new evidence" Gonzalez presents does not come close to "so undermin[ing] the government's case as to give rise to a 'reasonable' probability of acquittal on retrial." Tibolt , 72 F.3d at 972 (quoting Sepulveda , 15 F.3d at 1220)).
The judgment is affirmed.
FOOTNOTES
--------------
[1]
We note but need not resort to the rule that when a prosecutor's comments are ambiguous, and there is no contemporaneous objection, the ambiguity is construed in favor of a proper meaning. See Taylor , 54 F.3d at 979 ("[W]hen the target of the comments does not interrupt and register a timely objection, it seems especially appropriate to 'give the arguer the benefit of every plausible interpretation of her words.' . . . Given the absence of a contemporaneous objection, we must cede to the government the benefit of a legitimate, plausible interpretation of the prosecutor's words.") (quoting United States v. Sepulveda , 15 F.3d 1161, 1187 (1st Cir. 1993)).
--------------
[2]
Before Marina-Giraldo testified as a witness, the court instructed the jury:
[T]he government must establish each case against each defendant separately. Now, the fact that this co-defendant is going to testify, you are going to hear from her that she did enter a plea of guilty and now she is testifying for the government. Now the fact that a co-defendant has entered a plea of guilty to the offense charged, that fact also, the entering of a plea of guilty in and of itself is not evidence of any guilt of any other of the co-defendants. I repeat that. The fact that a co-defendant has entered a plea of guilty to the offense charged is not evidence in and of itself of the guilt of any other co-defendant and I cannot emphasize that enough.
The guilty plea of Luz Marina-Giraldo may not be regarded by you as substantive evidence of the other defendant's guilt nor may you draw any inference of guilt as to the remaining co- defendants. The fact that she pled is what I am talking about, that cannot be used as evidence against the other defendants nor may you draw any inference from the fact that she pled guilty. . . .
[W]hat you cannot consider is the fact that she has entered a plea of guilty, that fact cannot be considered. It is not evidence against the other defendants and affords no inference or suggestion of guilt as to the other defendants.
--------------
[3]
The Fifth Circuit also described a similar "in and of itself" accomplice instruction in United States v. Abravaya , 616 F.2d 250 (5th Cir. 1980). The new District Court Criminal Law Pattern Jury Instructions for this circuit do not address guilty pleas by accomplices or co-defendants.
--------------
[4]
The pattern instructions of other circuits are more straightforward and do not contain "in and of itself" language. For example, Sixth Circuit pattern jury instruction 7.08 reads as follows:
(3) The fact that ________ has pleaded guilty to a crime is not evidence that the defendant is guilty, and you cannot consider this against the defendant in any way .
The Seventh Circuit's pattern jury instruction 3.23 reads:
The witness, ________, has pleaded guilty to a crime arising out of the same occurrence for which the defendant is now on trial. You may give his testimony such weight as you feel it deserves, keeping in mind that it must be considered with caution and great care. Moreover, his guilty plea is not to be considered as evidence against the defendant .
Pattern jury instruction 2.19 from the Eighth Circuit states:
You have heard evidence that witness (name) has pleaded guilty to a crime which arose out of the same events for which the defendant is on trial here. You must not consider that guilty plea as any evidence of this defendant's guilt . You may consider that witness' guilty plea only for the purpose of determining how much, if at all, to rely upon that witness' testimony.
Finally, Ninth Circuit pattern instruction 4.12 reads:
The witness, _________, has pleaded guilty to a crime arising out of the same events for which the defendant is on trial. This guilty plea is not evidence against the defendant and you may consider it only in determining this witness' believability. You should consider this witness' testimony with great caution, giving it the weight you feel it deserves .
--------------
[5]
The court also instructed the jury:
Now, the case against Luz Marina-Giraldo has been disposed of and will no longer be before you. It is very important that you realize that you cannot guess or concern yourselves or speculate as to the reason for the disposition of her case. The disposition cannot and should not influence your verdict with reference to the remaining defendants that are on trial here.
If you recall, I think I advised you on the first day that each defendant, although being tried together, has a right to have the jury consider his case separately of the other defendants and considering the evidence that applies or that is admitted as to that defendant specifically. . . . [A]lthough [the defendants] are being tried together, you must give separate consideration to each defendant. . . . I repeat that you cannot and you must not consider the fact that Luz Marina-Giraldo is not here again and it should not enter into your deliberations. . . . [The disposition of her case] should not enter whatsoever in your deliberations as to the other two defendants.
In its final instructions to the jury, the court said:
[D]uring the course of the trial, I instructed you that the case against Luz Marina-Giraldo . . . [had] been disposed of, and was no longer before you. And the disposition of the case[] . . . should not influence your verdict with reference to . . . Gonzalez and you must base your verdict solely on the evidence against Mr. Gonzalez-Gonzalez. In other words, the government must establish its case against Mr. Gonzalez separately of the disposition of the cases against the other two defendants.
And I also instructed you, the fact that co-defendant Luz Marina- Giraldo entered a plea of guilty to the offense charged is not evidence in and of itself of the guilt of the defendant here on trial and I cannot emphasize this enough. The guilty plea of Luz Marina-Giraldo may not be regarded by you as substantive evidence of the guilt [of] Mr. Gonzalez-Gonzalez. Nonetheless, you may give her testimony such weight as you think it deserves, keeping in mind that it must be considered with caution and great care.
--------------
[6]
After oral argument in this case, Gonzalez filed a letter with this court, which we accepted as a supplemental brief, raising issues in addition to those raised by his able counsel. We requested the government to file a responsive brief, which it has done. We reach the merits of Gonzalez' pro se appeal.
--------------
[7]
Gonzalez also complains of a factual error concerning whether the name "Lin" appeared on any of the drug packages from Loiza beach, an error contained in the transcript. At oral argument before us, the government conceded this factual error, saying the name did not appear.
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Sunday, January 07, 2007
Good Prosecution = Good Government ~“It shall be The primary duty of all prosecuting attorneys … not to convict, but to see that justice IS DONE."RITE
"i'M WAITING" AS spoken by Sonic The Hedgehog
This is the html version of the file http://www.juvenilelaw.org/Articles/2005/Juvenile%20Law%20Conference/ShackelfordFairDefenseAct.pdf.
G o o g l e automatically generates html versions of documents as we crawl the web.
To link to or bookmark this page, use the following url: http://www.google.com/search?q=cache:qg05WjyUBFUJ:www.juvenilelaw.org/Articles/2005/Juvenile%2520Law%2520Conference/ShackelfordFairDefenseAct.pdf+THE+TEXAS+DEFENSE+ACT&hl=en&gl=us&ct=clnk&cd=7&client=firefox-a
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These search terms have been highlighted: texas defense act
Page 1
Ethics: Texas Fair
Defense Act
Professor Robert O. Dawson Juvenile Law Institute
18
th
Annual Juvenile Law Conference
February 1-3, 2005
Wesley Shackelford
Special Counsel, Task Force on Indigent Defense
e-mail: wesley.shackelford@courts.state.tx.us
Page 2
Good Defense = Good Government
Indigent Defense Work as Public Service:
“A lawyer should render public interest legal
service. A lawyer may discharge this
responsibility by providing professional services
at no fee or a reduced fee to persons of limited
means or to public service or charitable groups or
organizations. . . “
-Rule 6.1 of the Model Rules of Professional Conduct
Page 3
Good Defense = Good Government
General Concepts:
• System of private assigned counsel means that the
private defense bar is providing a key government
function
• Adversarial judicial system relies on zealous
representation to see justice is done
• Same level of commitment is owed to paying clients
as to indigent clients even though pay may be lower
• Defense attorneys must carefully balance public
appointments and retained clients
Page 4
Good Defense = Good Government
General Concepts:
• Public defense is successful where component parts
of the system work together
• Zealous advocacy in court must be balanced with
cooperation on system of public defense
Page 5
Good Defense = Good Government
Role of Defense Attorneys
• Organize the local criminal/juvenile defense bar into
formal or informal associations to be represented in
public defense discussions
• Advocate for additional resources or procedures
needed to provide high quality public defense
services (locally and at state level)
• Report problems or grievances about system to local
policymakers and the Task Force
Page 6
Good Defense = Good Government
Role of Defense Attorneys
• Build public support for indigent defense
services through community groups, public
officials, and media
• Private defense attorneys play important role to
assure the system meets their needs and those
of indigent defendants
• Role is more important when no public
defender office exists as institutional
representative for defense interests
Page 7
Good Prosecution = Good Government
Role of Prosecutors
“It shall be the primary duty of all prosecuting
attorneys … not to convict, but to see that justice
is done.”
-Article 2.01, Code of Criminal Procedure
Page 8
Good Prosecution = Good Government
Role of Prosecutors
• Work with defense bar, courts, and others to improve
system of providing justice
• Work effectively with probation department (especially
initial case processing)
• Assure that law enforcement officers files reports in a
timely manner
• Promptly review cases that are filed in your office
Page 9
Good Judiciary = Good Government
Role of Judges
• Responsible for system of indigent defense to assure
capable representation is provided to indigent juveniles
• Actions Judges can take to get highly qualified counsel:
• Actively recruit qualified attorneys
• Act on attorney fee vouchers promptly
• Schedule hearings so that attorneys can handle
multiple cases with one trip to juvenile court (esp. if
away from courthouse)
Page 10
Good Judiciary = Good Government
Role of Judges
Task Force study found best indigent defense
systems included:
• Active judicial leadership with approach that includes
stakeholder involvement
• Problem-solving mindset
• Use of field experiments to test different approaches
• Networking with other counties for new ideas
Page 11
Good Probation = Good Government
Role of Juvenile Probation Officer
• Dedicated court probation officer(s) can facilitate
communication about cases between defense and
prosecution
• Probation officers may explain court process and the role of
probation prior to counsel being appointed
• Probation officers can assist court in notifying juveniles and
their parents about appointment of counsel process
Page 12
Bottom Line
Efforts of Everyone is Needed for
an Effective Indigent Defense
System
Page 13
State Reporting Requirements
1. Report Indigent Defense Plan Information–
Annually by January 1
st
2. Report County Indigent Defense Expenditure
Data- Annually by November 1
st
Page 14
Juvenile Plan Requirements
• Establish Attorney Qualifications
• Establish Attorney Selection Method
• Prompt Access to Counsel
• Standards for Determining Indigence
• Process to Pay Fees/Expenses
Page 15
Task Force Duties
• Collect indigent defense plans and
expenditure reports from counties
• Distribute state grant funds to counties
• Develop policies and standards related to
indigent defense services
• Provide technical support to improve
indigent defense systems and
compliance with state laws
Page 16
Expenditures on Indigent
Defense Services
Total Direct Court Expenditures:
FY 01 - $82 million
FY 02- $102 million ($9 million Juvenile Court)
FY 03- $117 million ($12 million Juvenile Court)
FY 04- $124 million ($13 million Juvenile Court)
Page 17
Increased Number of Indigent
Defense Cases
Juvenile Cases:
• Cases increased 22% from FY 2002-2004
• FY 2002 = 43,375 cases
• FY 2004 = 53,097 cases
Criminal Cases:
• Cases increased 33% from FY 2002-2004
• FY 2002 = 278,479 cases
• FY 2004 = 371,167 cases
Page 18
Projects on the Horizon
Potential Projects:
• Develop best practices/guidelines in
following areas:
•
Contract Counsel Systems
•
Performance standards
•
Caseload standards
• Create substantive monitoring program
• Create annual conference on indigent
defense practices
Page 19
Trends in Indigent Defense
• New public defender offices with Task Force grants:
• Bexar County (criminal appeals)
• Hidalgo County (misdemeanor criminal)
• Mental Health Issues
• New Mental Health units in El Paso and Dallas public
defender offices
Page 20
Task Force’s Website
• Information Available by County:
– All Indigent Defense Plans and Forms
– Indigent Defense Expenditure data
(including number of cases appointed)
– Grant Award amounts
– Population, Poverty Rate,
Demographic Data
Page 21
Task Force’s Website
•Other Information:
•Model Forms
•CLE rules
•Task Force and staff members
•Annual Report
•Other indigent defense-related
resources
Page 22
Where to Get More Information
• Task Force website-
www.courts.state.tx.us/TFID
• Texas Criminal Defense Lawyers
Association website-
www.tcdla.com
• ABA- Standing Committee on Legal Aid &
Indigent Defendants
www.abanet.org/legalservices/sclaid/defender/
• National Legal Aid & Defender Association
www.nlada.org/Defender/
• The Spangenberg Group-
www.spangenberggroup.com/
This is the html version of the file http://www.juvenilelaw.org/Articles/2005/Juvenile%20Law%20Conference/ShackelfordFairDefenseAct.pdf.
G o o g l e automatically generates html versions of documents as we crawl the web.
To link to or bookmark this page, use the following url: http://www.google.com/search?q=cache:qg05WjyUBFUJ:www.juvenilelaw.org/Articles/2005/Juvenile%2520Law%2520Conference/ShackelfordFairDefenseAct.pdf+THE+TEXAS+DEFENSE+ACT&hl=en&gl=us&ct=clnk&cd=7&client=firefox-a
Google is neither affiliated with the authors of this page nor responsible for its content.
These search terms have been highlighted: texas defense act
Page 1
Ethics: Texas Fair
Defense Act
Professor Robert O. Dawson Juvenile Law Institute
18
th
Annual Juvenile Law Conference
February 1-3, 2005
Wesley Shackelford
Special Counsel, Task Force on Indigent Defense
e-mail: wesley.shackelford@courts.state.tx.us
Page 2
Good Defense = Good Government
Indigent Defense Work as Public Service:
“A lawyer should render public interest legal
service. A lawyer may discharge this
responsibility by providing professional services
at no fee or a reduced fee to persons of limited
means or to public service or charitable groups or
organizations. . . “
-Rule 6.1 of the Model Rules of Professional Conduct
Page 3
Good Defense = Good Government
General Concepts:
• System of private assigned counsel means that the
private defense bar is providing a key government
function
• Adversarial judicial system relies on zealous
representation to see justice is done
• Same level of commitment is owed to paying clients
as to indigent clients even though pay may be lower
• Defense attorneys must carefully balance public
appointments and retained clients
Page 4
Good Defense = Good Government
General Concepts:
• Public defense is successful where component parts
of the system work together
• Zealous advocacy in court must be balanced with
cooperation on system of public defense
Page 5
Good Defense = Good Government
Role of Defense Attorneys
• Organize the local criminal/juvenile defense bar into
formal or informal associations to be represented in
public defense discussions
• Advocate for additional resources or procedures
needed to provide high quality public defense
services (locally and at state level)
• Report problems or grievances about system to local
policymakers and the Task Force
Page 6
Good Defense = Good Government
Role of Defense Attorneys
• Build public support for indigent defense
services through community groups, public
officials, and media
• Private defense attorneys play important role to
assure the system meets their needs and those
of indigent defendants
• Role is more important when no public
defender office exists as institutional
representative for defense interests
Page 7
Good Prosecution = Good Government
Role of Prosecutors
“It shall be the primary duty of all prosecuting
attorneys … not to convict, but to see that justice
is done.”
-Article 2.01, Code of Criminal Procedure
Page 8
Good Prosecution = Good Government
Role of Prosecutors
• Work with defense bar, courts, and others to improve
system of providing justice
• Work effectively with probation department (especially
initial case processing)
• Assure that law enforcement officers files reports in a
timely manner
• Promptly review cases that are filed in your office
Page 9
Good Judiciary = Good Government
Role of Judges
• Responsible for system of indigent defense to assure
capable representation is provided to indigent juveniles
• Actions Judges can take to get highly qualified counsel:
• Actively recruit qualified attorneys
• Act on attorney fee vouchers promptly
• Schedule hearings so that attorneys can handle
multiple cases with one trip to juvenile court (esp. if
away from courthouse)
Page 10
Good Judiciary = Good Government
Role of Judges
Task Force study found best indigent defense
systems included:
• Active judicial leadership with approach that includes
stakeholder involvement
• Problem-solving mindset
• Use of field experiments to test different approaches
• Networking with other counties for new ideas
Page 11
Good Probation = Good Government
Role of Juvenile Probation Officer
• Dedicated court probation officer(s) can facilitate
communication about cases between defense and
prosecution
• Probation officers may explain court process and the role of
probation prior to counsel being appointed
• Probation officers can assist court in notifying juveniles and
their parents about appointment of counsel process
Page 12
Bottom Line
Efforts of Everyone is Needed for
an Effective Indigent Defense
System
Page 13
State Reporting Requirements
1. Report Indigent Defense Plan Information–
Annually by January 1
st
2. Report County Indigent Defense Expenditure
Data- Annually by November 1
st
Page 14
Juvenile Plan Requirements
• Establish Attorney Qualifications
• Establish Attorney Selection Method
• Prompt Access to Counsel
• Standards for Determining Indigence
• Process to Pay Fees/Expenses
Page 15
Task Force Duties
• Collect indigent defense plans and
expenditure reports from counties
• Distribute state grant funds to counties
• Develop policies and standards related to
indigent defense services
• Provide technical support to improve
indigent defense systems and
compliance with state laws
Page 16
Expenditures on Indigent
Defense Services
Total Direct Court Expenditures:
FY 01 - $82 million
FY 02- $102 million ($9 million Juvenile Court)
FY 03- $117 million ($12 million Juvenile Court)
FY 04- $124 million ($13 million Juvenile Court)
Page 17
Increased Number of Indigent
Defense Cases
Juvenile Cases:
• Cases increased 22% from FY 2002-2004
• FY 2002 = 43,375 cases
• FY 2004 = 53,097 cases
Criminal Cases:
• Cases increased 33% from FY 2002-2004
• FY 2002 = 278,479 cases
• FY 2004 = 371,167 cases
Page 18
Projects on the Horizon
Potential Projects:
• Develop best practices/guidelines in
following areas:
•
Contract Counsel Systems
•
Performance standards
•
Caseload standards
• Create substantive monitoring program
• Create annual conference on indigent
defense practices
Page 19
Trends in Indigent Defense
• New public defender offices with Task Force grants:
• Bexar County (criminal appeals)
• Hidalgo County (misdemeanor criminal)
• Mental Health Issues
• New Mental Health units in El Paso and Dallas public
defender offices
Page 20
Task Force’s Website
• Information Available by County:
– All Indigent Defense Plans and Forms
– Indigent Defense Expenditure data
(including number of cases appointed)
– Grant Award amounts
– Population, Poverty Rate,
Demographic Data
Page 21
Task Force’s Website
•Other Information:
•Model Forms
•CLE rules
•Task Force and staff members
•Annual Report
•Other indigent defense-related
resources
Page 22
Where to Get More Information
• Task Force website-
www.courts.state.tx.us/TFID
• Texas Criminal Defense Lawyers
Association website-
www.tcdla.com
• ABA- Standing Committee on Legal Aid &
Indigent Defendants
www.abanet.org/legalservices/sclaid/defender/
• National Legal Aid & Defender Association
www.nlada.org/Defender/
• The Spangenberg Group-
www.spangenberggroup.com/
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