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Gatlin v. State

December 10, 1998

LARRY GATLIN
v.
STATE OF MISSISSIPPI



The opinion of the court was delivered by: Roberts, Justice

DATE OF JUDGMENT: 05/04/95

TRIAL JUDGE: HON. KEITH STARRETT

COURT FROM WHICH APPEALED: LINCOLN COUNTY CIRCUIT COURT

NATURE OF THE CASE: CRIMINAL - FELONY

DISPOSITION: AFFIRMED - 12/10/98

EN BANC.

STATEMENT OF THE CASE

¶1. This case is appealed unto this Court from the Lincoln County Circuit Court where Larry Gatlin was indicted by a grand jury of six counts of wire fraud in violation of Miss. Code Ann. § 97-19-83. Prior to trial Gatlin filed a motion to quash the indictment for failure to state facts sufficient to constitute a crime. The trial Judge entered an order taking the motion under advisement.

¶2. Gatlin was convicted by a jury of all six counts of wire fraud. He was sentenced to serve in the Mississippi Department of Corrections for a term of five years on Counts 1, 2, and 3 to run concurrently, and five years on Counts 4, 5, and 6 to run concurrently. Counts 1, 2, and 3 were to run consecutively to Counts 4, 5, and 6, with the last four years suspended for five years probation. Also, Gatlin was ordered to pay court costs, attorney fees, $1000 as to Count 1, and $1000 as to Count 4.

¶3. After receiving the verdict and sentence, Gatlin filed a motion for j.n.o.v. which was denied. His motion for a new trial was also denied. Aggrieved by the lower court's decisions Gatlin perfected his appeal unto this Court asking for a reversal and dismissal of the indictment against him, or at the very least a remand for imposition of a lesser sentence. He appeals raising the following issues:

I. WHETHER THE TRIAL COURT ERRED IN FAILING TO QUASH ALL SIX COUNTS OF THE INDICTMENT RETURNED AGAINST GATLIN WHERE THE COUNTS DID NOT ALLEGE OWNERSHIP RIGHTS OF MONEY WHICH WAS THE SUBJECT OF THE ALLEGATIONS OF FRAUD.

II. WHETHER THE TRIAL COURT ERRED IN DENYING GATLIN'S RENEWED MOTION TO QUASH THE INDICTMENT FOR FAILURE TO PROVE THAT THE DEA HAD POSSESSION, CUSTODY, CONTROL OR ANY OWNERSHIP RIGHTS WHATSOEVER OF ALLEGED DRUG MONEY; OR ALTERNATIVELY, WHETHER THE TRIAL COURT ERRED IN DENYING GATLIN'S MOTION FOR DIRECTED VERDICT WHEN THE STATE FAILED TO PROVE THAT THE DEA HAD POSSESSION, CUSTODY, CONTROL, OR ANY OWNERSHIP RIGHTS WHATSOEVER IN THE ALLEGED DRUG MONEY.

III. WHETHER THE TRIAL COURT ERRED BY ALLOWING INTO EVIDENCE UNAUTHENTICATED TELEPHONE CALLS AND DOCUMENTS ALLEGED TO HAVE BEEN MADE AND MAILED BY GATLIN.

IV. WHETHER THE SENTENCE PRONOUNCED AGAINST GATLIN WAS CONSTITUTIONALLY DISPROPORTIONATE TO OTHERS SIMILARLY SITUATED.

¶4. The lower court was correct, did not commit reversible error, and Gatlin's claims on appeal are without merit. Accordingly, the lower court's decision is affirmed.

STATEMENT OF THE FACTS

¶5. On February 3, 1994, Phyllis Wilson and Felicia Beasley purchased two round-trip airplane tickets at the ticket counter of the New Orleans, Louisiana airport to Los Angeles, California and planned to return the following day. The two had been brought to New Orleans by Anthony Snell, who was Wilson's boyfriend and Gatlin's nephew. Wilson, Beasley, and Snell all lived in Brookhaven, Mississippi. Snell had instructed Wilson to take a sum of money to Los Angeles, stay at a particular hotel, and wait for a contact person to come and take the money from her.

¶6. Acting on a tip from a concerned citizen, Keith Simone and another officer with the narcotics unit of the Jefferson Parish Sheriff's Office approached Wilson and Beasley. The two officers worked in conjunction with the Drug Enforcement Agency as part of a narcotics interdiction task force.

¶7. When questioned separately by the officers, the women gave conflicting stories as to the purpose of their trip to Los Angeles. The women also appeared very nervous while being questioned by the officers. The two women consented to having their luggage searched. A Crown Royal bag with $19,000 was found in Wilson's luggage. Simone did not believe Wilson's explanation and suspected the large amount of cash was narcotics related. A narcotics detective along with a drug dog was called, and the dog alerted to the cash. Simone testified that a dog alerts to something when it is contaminated with the scent of drugs.

¶8. Simone informed the women that the money was going to be seized by the officers. He then issued to Wilson a receipt for the money which was seized. The receipt was a form that contained the time and date of the seizure, the denomination of the currency, and the person to contact in order to retrieve the seized money. The contact person was Captain Kenny Gaillot, an employee of the Jefferson Parish Sheriff's Department who was assigned to the DEA in Metarie, Louisiana. Simone took the money to the First National Bank of Commerce to obtain a cashier's check made payable to the United States Marshall Service and turned the money over to Gaillot.

¶9. Gaillot reviews cases to determine if there is probable cause for forfeiture and then to go forward with the appropriate proceedings. If the money is over $5,000 with no arrest for a drug related offense, but there is suspicion that the money is proceeds from drug trafficking, the forfeiture proceeding is handled by the Department of Justice.

¶10. At trial, Gaillot stated that as part of the forfeiture proceedings the Department of Justice sends out notices by registered mail and publishes notices of forfeiture in the USA Today every Wednesday for three consecutive weeks prior to completion of the forfeiture.

¶11. Gaillot determined probable cause existed in the case of the $19,000 and instituted forfeiture proceedings. The money was handled as an administrative forfeiture by the DEA. Wilson received the registered letter informing her of the proceedings that had been instituted to forfeit the $19,000. She discussed the letter and the situation with Snell. This conversation took place in the presence of Gatlin. At the trial, Wilson testified that Snell did not want any part of the money, but Gatlin stated he was going to claim the money.

¶12. Gatlin lived in Brookhaven, Mississippi, and contacted Gaillot across jurisdictional lines by telephone and mail in making his claim for the forfeited money. Gatlin attempted to contact Gaillot on February 16, 1994, but Gaillot was unavailable. A note was left with a return telephone number that indicated the caller wished to discuss the forfeited $19,000. The caller was Gatlin. When Gaillot returned Gatlin's call, Gatlin stated the $19,000 was actually his. He informed Gaillot that he had earned the money working offshore, working at a detail shop, and in construction. Gatlin later told Gaillot that the money was to be delivered to California to help pay some of his mother's medical expenses as she was in a hospital and a portion was to be held for him by his sister.

¶13. In order to prove his claim to the money, Gatlin sent Gaillot his 1993 W-2 form, which revealed that Gatlin had a gross income of $15,288 and that $12,718 of that income was from unemployment compensation. Gaillot was not convinced that this was sufficient to prove Gatlin's claim to the money. Gaillot requested Gatlin sign a Social Security waiver form which would allow access to Gatlin's Social Security records to determine his earnings for the last ten years. Gatlin agreed to sign the waiver.

¶14. Gaillot mailed Gatlin the Social Security form to a post office box in Brookhaven, Mississippi. Gatlin completed the form and returned it, along with a handwritten letter, through the mail to Gaillot in New Orleans, Louisiana. The letter stated the alleged reasons why the money was being sent to Los Angeles.

¶15. Although he attempted to provide proof as to his claim for the $19,000, Gatlin was unable to convince the Department of Justice the money was his. The documentation did not support his claims. The final judgment forfeiting the $19,000 to the United States government was dated May 9, 1994.

¶16. As a result of his attempts to claim the money, Gatlin was indicted on six counts of wire and mail fraud pursuant to Miss. Code Ann. § 97- 19-83. He was convicted and sentenced to serve a term of five years on Counts 1, 2, and 3 to run concurrently. He was sentenced to serve a term of five years on Counts 4, 5, and 6 to run concurrently. Counts 1, 2, and 3 were to run consecutively to Counts 4, 5, and 6 with the last four years suspended for five years probation. Gatlin was also ordered to pay a $1000 fine for Count 1 and $1000 fine for Count 4, along with attorney fees and court costs. Aggrieved from the decision of the lower court, Gatlin appealed to this Court.

DISCUSSION OF THE ISSUES

I. WHETHER THE TRIAL COURT ERRED IN FAILING TO QUASH ALL SIX COUNTS OF THE INDICTMENT RETURNED AGAINST GATLIN WHERE THE COUNTS DID NOT ALLEGE OWNERSHIP RIGHTS OF MONEY WHICH WAS THE SUBJECT OF THE ALLEGATIONS OF FRAUD.

II. WHETHER THE TRIAL COURT ERRED IN DENYING GATLIN'S RENEWED MOTION TO QUASH THE INDICTMENT FOR FAILURE TO PROVE THAT THE DEA HAD POSSESSION, CUSTODY, CONTROL OR ANY OWNERSHIP RIGHTS WHATSOEVER OF ALLEGED DRUG MONEY; OR ALTERNATIVELY, WHETHER THE TRIAL COURT ERRED IN DENYING GATLIN'S MOTION FOR DIRECTED VERDICT WHEN THE STATE FAILED TO PROVE THAT THE DEA HAD POSSESSION, CUSTODY, CONTROL, OR ANY OWNERSHIP RIGHTS WHATSOEVER IN THE ALLEGED DRUG MONEY.

¶17. Gatlin argues on appeal that the trial Judge erred by denying both his motion to quash the indictment and his motion for directed verdict. This Court's standard of review regarding such ruling by a trial Judge is well settled.

In considering a motion for directed verdict, the reviewing court must consider evidence introduced in light most favorable to State, accepting all evidence introduced by the State as true, together with all reasonable inferences therefrom; if there is sufficient evidence to support a guilty verdict, motion for directed verdict must be overruled. Edwards v. State, 615 So. 2d 590 (Miss. 1993). If the evidence presents an issue for determination by the jury, then the case must be submitted to the jury and will not be disturbed, if evidence and those inferences support the guilty verdict. Jackson v. State, 440 So. 2d 307 (Miss. 1983). In fact, evidence favorable to the defendant is disregarded during the consideration of whether to grant a motion for a directed verdict. Bullock v. State, 391 So. 2d 601 (Miss. 1980), cert. denied; Noe v. State, 616 So. 2d 298 (Miss. 1993). The standard of review in determining the correctness of a trial Judge's ruling on a motion for directed verdict is essentially the same. Roberson v. State, 595 So. 2d 1310, 1320 (Miss. 1992)." Yates v. State, 685 So. 2d 715, 718 (Miss. 1996).

¶18. The issues before this Court concern whether Gatlin violated the provisions of Miss. Code Ann. § 97-19-83 (1994) *fn1 by engaging in activities that constituted mail and wire fraud. Gatlin argues on appeal that the trial Judge erred in failing to quash the indictment on the ground that the indictment failed to allege that the DEA owned the money which Gatlin sought to obtain by means of a fraudulent scheme transmitted via wire across jurisdictional lines.

¶19. A pretrial hearing was held on the issue of the sufficiency of the indictment. Gatlin argued that the indictment was deficient because it failed to allege any ownership rights by the DEA in the money. Using McNally v. U.S., 483 U.S. 350 (1987), as authority to support his contentions, Gatlin claimed the money could not be defrauded from the custody of the DEA if it did not have property rights in the money. The Judge took the motion under advisement, and the case proceeded to trial.

¶20. After opening statements were made, the Judge entered a ruling on Gatlin's motion to quash the indictment.

THE COURT:

All right. I find that the fact that there was a potential claim, and the fact that the money was in the possession of the DEA, based on the suspicions that will be testified to or I understand will be testified about today, based on the opening statement, that there was a sufficient ownership claim to the money or colorable claim to the money to justify this Court overruling the motion to quash the indictment, based on the fact that ownership had not been established. The defendant has, I think it's the McNally case. . . .

THE COURT:

And its progeny. The defendant has urged the McNally case and its progeny. And I find that that case is not applicable or those cases are not applicable to the case at bar in that there is a colorable claim for real money, possession of real money, and not just a ...


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