Robert James Smith v. United States

HOLLAND, Senior District Judge

(dissenting).

Appellant was indicted, convicted by jury and sentenced to one year in the custody of the Attorney General and to pay a fine of $1,000.00, to stand committed until paid, for a violation of Section 35, Title 18, U.S.C.

The one-count indictment reads as follows: “That on or about January 30, 1959, at Cincinnati, Ohio, in the Southern District of Ohio, Western Division, Robert James Smith did willfully impart and convey and cause to be imparted and conveyed, false information, knowing the same to be false, concerning an attempt and alleged attempt being made and to be made to willfully place and cause to be placed a destructive substance, to wit: a bomb, in, upon and in proximity to a civil aircraft used, operated and employed in interstate commerce with intent to damage, destroy, disable and wreck such aircraft, a crime prohibited by Section 32, Title 18, United States Code; a part of Chapter II, Title 18, United States Code, by telephoning from Cincinnati, Ohio to Paul V. Downs, an *23 Air Ways Operation Specialist employed by the Federal Aviation Agency in the Control Tower of the Greater Cincinnati Air Port, Boone County, Kentucky, false information to wit: that a bomb was on an outgoing aircraft; in violation of Section 35, Title 18, United States Code.”

Five assignments of error are involved in this appeal. For convenience of discussion, they will be considered out of their assigned order.

Assignment Number III is as follows: “Did the District Court err in failing to instruct the jury of the elements of the offense charged?”

The District Judge could well have pin-pointed the issues to be decided in language somewhat of this type: Section 32 aforesaid makes it criminal to actually damage, destroy, disable or wreck civil aircraft used, operated or employed in interstate commerce, then next makes it criminal to intentionally place or cause to be placed any destructive substance in or upon or in proximity to such aircraft, and thirdly, provides for the imparting of false information concerning the same subject in language as follows, and then ■quote Section 35. Now I have told you that you are the sole judges of the facts, and that any expression of mine as to the facts is not binding on you. With this admonition I now charge you that as I see the case there is no fair inference from the evidence but that the telephone ■call to the airport was the conveyance of false information concerning an alleged presence of a bomb, as described in the said statute, thereby leaving for your decision the determination of the issue as to whether the defendant was or was not guilty of conveying such false information or causing same to be conveyed and whether it was willfully and intentionally conveyed.

While such an additional charge of this nature could well have pin-pointed the issues submitted to the jury after they had sat in such a prolonged and tedious ■case, yet the charge given was not erroneously given. In fact defense counsel was asked to express himself as to the charge at its conclusion and counsel for the defense did not object to the charge as given. The Court’s charge not only covered the statutes involved and the general charges, but included a well prepared charge on the alibi defense. I see no ground for upsetting this judgment on the basis of Assignment of Error Number III. Conley v. United States, 6 Cir., 257 F.2d 141 .

Assignment Number II is as follows: “Did the District Court err in prohibiting the defense counsel from pointing out in final argument that there was a lack of evidence in the form of records as to the making of the call from appellant’s office and then permitting the prosecutor to insert unsworn, incompetent evidence on this point in his argument?”

Interruptions by opposite counsel during the closing arguments to the jury are unfortunate and as nearly as possible they should be frowned upon by the Trial Judge with the observation by the Court that the jury is to draw its conclusions as to the facts from the evidence alone and reasonable deductions to be drawn therefrom. Attempts by the Court during the arguments to analyze and settle disputes between counsel as to just what is in the evidence lead to disorderly procedure. Counsel imbued with the rightness of their positions often malee the task of the Trial Judge difficult and such was the case here. Interruptions, however, of the opposing counsel during argument are to be discouraged, leaving the objecting counsel to answer in his closing argument, and leaving to counsel not enjoying an answering opportunity, the right to apply to the Judge for relief, such as he, the Judge, may dispense in the exercise of a sound discretion. In this case, the actions of the District Judge were in the exercise of a sound discretion.

Assignment of Error Number IY is as follows: “Was it error for the District Court to call the defense counsel before him just prior to the opening of the case for the defense, accuse him of unethical conduct, and warn him that he would be *24 held personally responsible for the testimony given by defense witnesses ?”

During the examination of Government witness Laurence Pittman, the court queried defense counsel as to a subject matter as to which defense counsel had alluded in defendant’s opening statement to the jury. The defense counsel had stated that the defense proposed to show that several persons (later called as government witnesses) had conspired to place the blame for the making of the “hoax bomb” telephone call on defendant Smith. The Trial Judge concluded that defense counsel intended to show who did make the call as well as proving that the defendant had not done so. This incident led to the Court alerting the agents of the Federal Bureau of Investigation for possible perjury, and to the Court, in Chambers, advising defense counsel that this had been done. The defendant by this Assignment of Error claims that defense counsel was sorely handicapped in presenting the defendant’s evidence. Reference by defense counsel to an alleged conspiracy by persons (later called as Government witnesses) to place guilt for the call on defendant could well have the double implication of not only holding defendant guiltless but also of directly placing guilt on members of the conspiracy. Different constructions by court and counsel led to this unfortunate situation complained of by this assignment. The matter was one which addressed itself to the sound discretion of the Trial Judge and there was no reversible error in actions taken by him.

Assignment of Error Number I is as follows: “Should the District Court have admitted the evidence of witnesses called for the defense which would have shown the bias, prejudice and hostility of key prosecution witnesses toward defendant, shown the existence of a plot or scheme against the defendant, and impeached statements made by a prosecution witness earlier in the trial ?”

There is merit to this assignment. Government witness Anthony D. Hoob-ler on cross-examination denied making a statement to Donald Chapman “that he would get Bob Smith (defendant) one way or the other and it did not make any difference how.” Later in the case Donald Chapman was called as a defense witness, and under the rulings of the Court the defendant was denied the privilege of impeaching Tony Hoobler’s testimony that he is not hostile to the defendant. This evidence was proffered by the defendant and the objection to the proffer was sustained. This was error. The attempt to impeach the credibility of Anthony Hoobler was important to the defense and the denial of the proffer was reversible error.

The denial of the proffered evidence of Evelyn Walters and Eunice Mae Coon was right. Witness Evelyn Walters was not allowed to testify as to conversations heard by witness between Anthony D. Hoobler and Richard Hoobler, which did not take place in the presence or hearing of the defendant. Neither was defense witness Eunice Mae Coon allowed to testify as to overheard conversations between Anthony D. Hoobler, Richard Hoobler and Bob Frye which did not take place in the presence or hearing of the defendant. It would have been proper for these witnesses Anthony Hoobler, Richard Hoobler and Bob Frye to have been questioned by defense counsel as to whether they made such statements, when denials by them, if made, would have laid a predicate for the admissions in evidence of the “Walter’s” and “Coon’s” proffered evidence.

The defense not only contended that this evidence was admissible as proof of a conspiracy but proposed the theory of res gestae as making this proffered evidence admissible. The theory of res ges-tae as extending beyond the making of the “bomb” telephone call is not well taken. There was no error in denying the proffered “Walter’s” and “Coon’s” evidence.

Assignment Number V is as follows: “Did the District Court err in permitting the United States Attorney to improperly cross-examine the defense key witness Harold Shapiro about an alleged offense which was not a state or federal offense *25 over the insistent and repeated objections of defense counsel?”

The witness Harold Shapiro was an important and key witness for the defense. His credibility was of the utmost importance. He was by the government sought to be discredited by reason of his having been convicted of a Police Court charge.

Commission of crime is admissible on the question of credibility, but the crime must measure up to felonious significance or involve moral turpitude. The government contends that the municipal ordinance, a violation of which Shapiro was convicted, was patterned after and embraced the elements of the state statute making criminal “larceny by trick.” That statute is Section 2907.21 of the Ohio Revised Code, and reads as follows: “No person shall obtain possession of, or title to, anything of value with the consent of the person from whom he obtained it, provided he induced such consent by false or fraudulent representation, pretense, token, or writing.”

The government further contends that the statute makes the offense both felonious and of a misdemeanor type, since it could have been prosecuted as a felony provided the amount involved justified same. The case was prosecuted in the Police or Municipal Court, a court not having jurisdiction for the prosecution of felonies.

Inasmuch as this improper attack upon the credibility of the witness Shapiro is a prime reason for my dissent, I wish to analyze the ruling in detail.

The basic rule on this subject in this circuit is stated in Henderson v. United States, 6 Cir., 202 F.2d 400 , decided in 1953 and cited in United States v. To-maiolo, 2 Cir., 249 F.2d 683 . The rule is that for impeachment purposes the crime committed must be a felony or one involving moral turpitude. Incidentally, it is quite interesting to read the case decided by this court, Circuit Judge Taft speaking, as far back as 1893, in the case of Baltimore & Ohio R. Co. v. Rambo, reported in 6 Cir., 59 F. 75 .

The term “moral turpitude” as used in the Henderson ease, means in a case prosecuted in a court of record. McClain v. United States, 5 Cir., 224 F.2d 522 . United States v. Tomaiolo, 2 Cir., 249 F.2d 683 . I voice no opinion as to whether the larceny by trick statute quoted, as its provisions may be carried into the City Penal Code of the City of Cincinnati, carry the chastisement that such is or is not a crime involving moral turpitude, but I do think that the successful prosecution of the witness Shapiro in the City Court for the violation of a City Ordinance patterned after the state statute quoted, was improperly used by the government to discredit the credibility of said witness.

The attempt to discredit the witness Shapiro was further objectionable, in the cross-examination, as to witness Shapiro’s honorable discharge from the Armed Forces. Such examination was calculated to unduly prejudice him before the jury. This was a collateral matter altogether.

While this was reversible error yet I cannot refrain from commenting on the action of the defense counsel, wherein he was guilty of a like offense in his cross-examination of government witness Laurence Pittman. The cross-examination of witness Pittman was with reference to guilt in a traffic offense prosecution. While both government and defense were alike vulnerable, the success of the defendant does not negative the error of which the defendant justifiably complains.

I dissent to the affirmance of this case, as I think that the judgment should be reversed and the ease remanded for a new trial.