# United States v. Edward J. Barrett > Court of Appeals for the Seventh Circuit · January 2, 1975 · 505 F.2d 1091 URL: https://www.frixlaw.com/law-library/cases/9461190 ## Case - **Full name:** UNITED STATES of America, Plaintiff-Appellee, v. Edward J. BARRETT, Defendant-Appellant - **Court:** Court of Appeals for the Seventh Circuit - **Decided:** January 2, 1975 - **Citations:** 505 F.2d 1091 - **Precedential status:** Published - **Opinion:** Dissent by Stevens - **Judges:** Hastings, Stevens, Sprecher - **Cited by:** 72 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9461190 ## How later opinions describe it (automated extraction) - holding that the government may grant civil immunity in exchange for testimony and stating that “[i]f the government can excuse criminal or civil liability in settling a criminal case, surely it can use that power of compromise to obtain guilty pleas or to procure testimony in… - holding that 18 U.S.C. § 201(h), the predecessor of § 201(c)(2), does not require evidence obtained through a promise of immunity be excluded ## Opinion text STEVENS, Circuit Judge (dissenting). In order to determine whether the cumulative effect of the several errors in the proceedings below was sufficiently *1108 prejudicial to require a new trial, it is necessary to evaluate their effect in the context of the entire record. It is not our function to determine guilt or innocence, but, rather, notwithstanding our own persuasion on the question of guilt, to determine whether the jury’s judgment may have been substantially swayed by error. Unless “when all is said and done, the conviction is sure that the error did not influence the jury, or had but slight effect,” it is our duty to order a new trial. 1 This ease proceeded to trial against a backdrop of extensive publicity given to allegations of corruption in local government. During the week in which the selection of the jury commenced, unprecedented publicity was given to the conviction of Judge Kerner. Because of its exceptional character, I think the trial judge should have granted a short continuance to allow the impact of the publicity to subside, particularly since there was no valid objection to such a delay. I do, however, accept the majority’s conclusion that the denial of the motion for a continuance was a permissible exercise of the trial judge’s discretion. It is, nevertheless, perfectly clear that the publicity did not help the defendant’s cause, and may well have tended to develop a “bandwagon” psychology that would make his conviction more likely. Indeed, a volunteered comment by the trial judge on the first day of the trial indicates that even he may have been influenced by widespread publicity about corruption in local government. During the direct examination of the witness Meyers, who was describing his rental of safe deposit boxes in which he kept funds to bribe public officials, the following occurred: Q. Now, the box that you maintained with your name on it and your wife’s name on it, was that ever changed in any way? A. Yes, to a larger box. Q. Now, do you recall the names— The Court: Was it as big as a shoebox? The Witness: Pardon me, sir? The Court: Next question. (R. 427) (emphasis added) I think we may take judicial notice of the symbolic significance of a shoebox in view of the notoriety which followed discovery of former Secretary of State Paul Powell’s cash hoard in such a container. That a federal district judge would make a gratuitous reference to a shoebox during the bribery trial of another public figure, who may well have been associated with Powell in the minds of some jurors, is, to say the least, distressing. His comment reminds us of how difficult it is to evaluate subtle effects of publicity in the trial of a prominent political figure. In view of that difficulty, I believe the possibility that the extensive publicity may have enhanced the likelihood of conviction is a factor we must weigh in evaluating the significance of trial error. Another factor that compels close scrutiny of any error that may have influenced the jury is the extraordinary character of the government’s arrangement with the witness Meyers. Judge Sprecher has demonstrated that Meyers’ testimony was admissible. Nevertheless, since the government provided him with such a powerful financial incentive to testify that he paid large cash bribes to Barrett and to others — for every bribe described in his testimony, Meyers was to receive a tax benefit in like amount —there was certainly a strong possibility that the jury would find good reason to doubt Meyers’ veracity. Since the prosecution’s case rested largely on the *1109 credibility of this witness, 2 and since the credibility determination is exclusively within the province of the jury, this is a case in which appellate judges have a special responsibility to evaluate the significance of the rather plain errors which did occur. I shall identify those that trouble me the most. 3 1. The joinder of two separate offenses was highly prejudicial to the defendant and, in my opinion, not authorized by Rule 8(a). Unquestionably the jury’s knowledge that for several years Barrett had been accepting secret insurance commissions on County business enhanced the likelihood that they would credit Meyers’ testimony about secret cash bribes. Consider the impact of the prosecutor’s argument : “See, it wasn’t enough for Edward Barrett to receive $180,000 in bribes. After he got the machines he got a little hungrier and he wanted some more money, and so he went ahead and worked out an agreement where he could insure the machines, something he was required to do under the terms of his job, and then get a kickback in the form of a broker’s commission.” R. 1484 In its brief in this court the government argued that the insurance arrangement which originated as early as 1961, and the bribery in connection with the purchase of machines in 1967 and thereafter, were “parts of a common scheme or plan.” The evidence affords no support at all for that contention and, quite properly, it is not accepted by the majority here. The two arrangements were made with entirely different sets of persons, at different times, and neither was in any way dependent upon the other. As the government states in its brief, “other than with regard to background information, no one witness testified to events underlying both the bribery and the mail fraud offenses.” 4 *1110 Thus, considerations of trial convenience do not support this joinder. The theory on which the joinder is upheld is that the two crimes were “connected” because they both involved a breach of Barrett’s public trust. No special significance is, or should be, attached to the fact that they both involved voting machines. In my judgment that “connection” is too tenuous to justify such a prejudicial joinder. Indeed, I believe the result is foreclosed by both branches of our decision on the severance issue in the Quinn case. 5 There the fact that the unlawful disbursement of funds on April 3, 1963, and again on July 8, 1963, both involved a breach of Quinn’s fiduciary obligation to the depositors and shareholders of the Beverly Savings & Loan Association was insufficient to justify the joinder. Moreover, the similarity between the two transactions in the Quinn case, both of which involved the same institution, the same source of funds, and an appropriation of a large sum for the defendant’s own benefit, was much more marked than the fact, present here, that two different illegal schemes both happened to relate to voting machines. Frankly, I have some doubt about the validity of the Quinn holding, but even if it were to be rejected, I would disapprove of this joinder. Certainly if Quinn is viable today, prejudicial error was committed in this case. 2. Documentary evidence which tended to support defendant’s theory of the case was erroneously excluded. A restatement of certain facts is necessary to explain the significance of the court’s refusal to admit defendant’s Exhibit 1-A, a letter to Shoup’s customers announcing a 4% increase in the price of voting machines effective July 1, 1966. That letter listed prices, F.O.B. factory, for eight different models of voting machines, including a “50 Bank/Manual” at $1,862.00. The machines used in Cook County were of that kind, but instead of using the standard 10-column model, Cook County used a modified machine with only six columns. Meyers testified that he told Barrett that that fact would justify a higher price in Cook County than elsewhere. 6 If the modification were ignored, defense counsel argued that the cost of transporting machines from the factory to Chicago would produce a delivered price of about $1,890.00 for the 50 Bank/Manual model. The defense took the position, quite properly, that these facts were relevant to an evaluation of the credibility of Meyers’ testimony concerning the reason for a price increase in Cook County. Meyers testified that Barrett’s demand for a bribe of $200 per machine made it necessary for Shoup to increase its price on sales to Cook County. This was, of course, an especially dramatic element of the government’s proof. The testimony indicated that the bribe demand was made in December of 1965, a few months after Shoup had offered to sell Cook County machines at a $1,791.00 price. Ultimately, in October, 1967, the parties agreed on a price of $1,890.00. It was the government’s theory that this price increase between 1965 and 1967 was attributable to Barrett’s demand for a bribe. It was the defendant’s theory that the increase was attributable to “higher costs of steel and other manufacturing expenses” — the factors referred to in the 1966 price increase letter — factors which had an impact on prices throughout the country. *1111 Whether or not the letter expressly related to sales to Cook County, it unquestionably tended to support defendant’s version of the facts. The colloquy relating to the admissibility of this exhibit is remarkable. Out of the presence of the jury, before the prosecution rested its case, government counsel advised the court that the defendant intended to offer certain documents in evidence before putting on any witnesses, and that although authenticity had been stipulated, the government had reserved the right to object to relevancy. 7 The court then asked defense counsel to “go down the list" to avoid unnecessary interruption of the proceedings before the jury. Defense counsel then started to describe Exhibit 1-A and, without any objection being made by the government, a long colloquy between the court and defense counsel ensued. During the first portion of that colloquy the court’s comments suggest that he considered the letter immaterial because it did not prove any wrongdoing by Meyers; 8 later the court seemed to suggest that the document was inadmissible because Meyers had acknowledged that it was genuine and had given testimony on cross-examination which was consistent with the contents of the letter; 9 finally, the prosecutor joined the discussion and suggested that the letter was irrelevant because there was no evidence that it was sent to Cook County, 10 and, further, because Cook County did not use the standard 50 Bank machine referred to in the letter. 11 The court then observed that the letter made no reference to the six-column 50 Bank machine which was used only in Cook County, and ultimately decided to exclude it. If the court’s ruling was based on the ground that the exhibit was cumulative —as the government argues on appeal —it was plainly erroneous. Unquestionably a document of this character, which can be reviewed at leisure during jury deliberations, may have a much greater impact on the jury than mere recollection of precisely what a witness may have admitted in the course of a lengthy cross-examination. The suggestion that the document was irrelevant is so manifestly frivolous that, to its credit, the government no longer places any reliance on that argument. The exhibit should have been received in evidence; *1112 unquestionably its rejection was prejudicial to the defense. In my judgment, two other categories of exhibits should also have been received. For its corroboration of the bribery testimony, the government relied, in part, on records of entries to safe deposit boxes to which Lemisch and Hirshorn had access. According to the government’s evidence, only two such boxes were used to hoard the cash which was paid to Barrett, and its documentary proof was limited to those two boxes. The defendant offered five records proving that there were additional safe deposit boxes which Hirshorn and Lemisch opened on many occasions. Proof that there were such numerous entries would, of course, have minimized the significance of any particular entry close in point of time to one of Meyers’ trips to Chicago. The defense exhibits were, therefore, relevant and admissible. 12 The defendant contended that Meyers accumulated his huge cash hoard, on which he paid no income taxes, to finance his own extravagant personal expenses. In support of this contention, defendant offered numerous exhibits tending to prove high expenditures for gambling, travel, rent, the purchase of securities, and other personal items. Although some of these exhibits were received, it seems to me that it was error to exclude those which disclosed Meyers’ rent and apartment expenses and his bank statements and income tax returns. 3. The trial judge made prejudicial and inaccurate comment on the testimony. In support of his theory that Meyers used cash hoards for personal expenses rather than bribes, defendant attempted to establish that Meyers habitually carried large sums of cash on his person. On cross-examination, Meyers was asked about conversations with a policeman who had been called after a burglary of Meyers’ apartment. He was unable to recall telling the policeman that he had won $1,600 at the races earlier that day (R. 838-839) or that his wife had told the officer that he carried large sums of money on his person. Without any objection having been raised by the prosecutor, a colloquy then ensued in which, it is fair to say, the trial judge belittled defense counsel, and the witness categorically denied having had “a bad habit of carrying large sums of money on [his] person.” 13 *1113 Later in the trial, the defense produced the police officer; he testified that both Meyers and his wife had, in fact, made the statements that Meyers had been unable to recall. In each instance, without any objection from the government, the trial judge volunteered a comment incorrectly indicating that the officer was corroborating, rather than contradicting, the substance of what Meyers had said: Q. Mr. Witness, did Mr. Meyers tell you at that time, during that conversation, that he had been to the racetrack the day before and hit the big exacto for around $1600? A. He did. The Court: There is no impeachment there. Mr. Foran: Exactly the opposite, your Honor, Mr. Meyers had denied that he had told the police that. The Court: This is cross examination. He is not impeaching Mr. Meyers’ statement. He said he told them that. (R. 1204-05) And a few minutes later: Q. Mr. Witness, did Mrs. Meyers tell you at that time that Mr. Meyers had a bad habit of carrying large sums of money on his person and was quite careless about showing it? A. Yes, she did. The Court: Now you have corroborated Mr. Meyers. That is what he said to you. Mr. Foran: Your Honor, he denied that very thing. Your Honor, I have a motion, your Honor, and I would like to make it out of the presence of the jury. The Court: Hold your motion. We have had enough motions, until ten minutes to 4:00. We will rule on it after the jury leaves. We are not going to run a swinging door courtroom this afternoon. What is the next question ? (R. 1209) 14 The comments by the trial judge are significant not merely because they were inaccurate, but more importantly because they must have given the jury the impression that the judge fully credited the testimony of the government’s key witness. I do not believe the impact of such an incident can be completely cured by a subsequent instruction “to disregard any intimation that you may have got from anything I said.” Defendant has called our attention to other comments by the trial judge that may have implied approval of Meyers’ testimony. Those comments are consistent with defendant’s interpretation, but, as they appear in a cold transcript on *1114 appeal, I am unwilling to characterize them as prejudicial. 15 4. The trial judge also made certain comments outside the presence of the jury that revealed a judgment, formed before all the evidence had been heard, that the defendant was definitely guilty. For example, during a colloquy in which the subject of renting a larger safe deposit box was under discussion, the following exchange occurred: The Court: And when did they open the joint box? Mr. Foran: Not until 1967, your Honor. The Court: Well, they didn’t need to open one because they hadn’t met Mr. Barrett yet. Maybe the boxes that they had were sufficient, but when they met him they needed bigger boxes. (R. 1146) The comment was not heard by the jury and I am sure it did not intimidate the defendant’s experienced trial counsel. Nevertheless, it was a highly improper remark for the presiding judge to make and may well have had an impact on the defendant himself when, presumably, he may have been considering whether or not to take the witness stand. He did not testify. Notwithstanding the cautionary instruction to the jury about drawing no adverse inference from his failure to do so, the fact that an important public official did not personally deny the serious charges which Meyers had made almost certainly had an influence on the jury’s deliberations. It is less clear that the decision of this 73-year old defendant was influenced at all by the trial judge’s hostile comment. Instead of speculating about the actual impact of the comment, however, I consider it so manifestly improper that I would presume that it was prejudicial. Certainly it makes me wonder if it is appropriate to construe other ambiguous comments made in the presence of the jury as having been harmless. As I reflect on the record in this case, I must confess to some doubt as to whether the errors warrant a new trial. For the evidence of guilt is indeed strong, and the crimes of which Barrett has been convicted involve the shabbiest kind of breach of trust. It is, therefore, unusually tempting to acquiesce in a decision which may well represent the just and inevitable conclusion of this matter in all events. The temptation is particularly strong when I note the professional manner in which the prosecutor tried the case. 16 Nevertheless, because more enduring values are challenged whenever there is reason to doubt that a notorious public trial has been conducted in an evenhanded manner, I feel obligated to resolve my doubts in favor of a position which would minimize the danger that fair and regular procedures may be compromised in the future. *1115 This case brings to mind the trial of Titus Oates, a guilty man who was convicted by improper methods. Macaulay’s observation about that trial is worth repeating : “That Oates was a bad man is not a sufficient excuse; for the guilty are almost always the first to suffer those hardships which are afterwards used as precedents against the innocent.” 17 I respectfully dissent. . Kotteakos v. United States, 328 U.S. 750, 764 , 66 S.Ct. 1239 , 90 L.Ed. 1557 . In a passage which is too long to quote, but which is well worth rereading, Justice Rutledge carefully explained the distinction between the jury’s function to determine guilt or innocence and the appellate judges’ function, notwithstanding their own persuasion on the question of guilt, to determine whether the jury’s judgment may have been significantly affected by error. See id., at 763-765 , 66 S.Ct. 1239 . . The corroboration, though extremely persuasive, was not entirely unambiguous. Thus, the safe deposit box entries were sufficiently numerous that the entries shortly before Meyers’ trips to Chicago were not unusual; the records of telephone calls to Barrett are innocuous since, admittedly, the negotiations relating to the purchase of voting machines were conducted by Meyers and Barrett; the airline records indicated that Meyers was in Chicago on the dates to which he testified, but, of course, told the jury nothing about what he did or whom he met; and the price increase attributed in his testimony to Barrett’s demand for a bribe on Cook County sales was effective throughout the country and arguably justified by legitimate cost factors. . I should also express my agreement with the majority’s conclusion that under the law of this circuit a violation of the mail fraud statute was proved, although I would rest that conclusion on the holding in United States v. Isaacs, 493 F.2d 1124, 1150 (7th Cir. 1974), cert. denied, 417 U.S. 976 , 94 S.Ct. 3184 , 41 L.Ed.2d 1146 rather than United States v. George, 477 F.2d 508 (7th Cir. 1973), cert. denied, 414 U.S. 827 , 94 S.Ct. 155 , 38 L.Ed.2d 61 , because I believe this record, unlike the record in George , forecloses the contention that the County, as a purchaser of insurance, may have suffered a pecuniary injury. Disclosure of the commercial bribery in the George case might have enabled Zenith to buy supplies at a lower price; here, however, the uncontradicted evidence indicates that disclosure of the commission payments to Barrett would not have enabled the County to obtain insurance on any better terms. . Government’s Brief at p. 43. The statement is made in support of the government’s position, which I accept, that there was no significant risk that the joinder would tend to confuse the jury. The possibility of confusion, however, is not the source of prejudice which troubles me about this joinder. Bather, it is the vice of using evidence of one crime to prove the defendant’s disposition to commit another. I think the government is correct in suggesting that Judge Hand’s analysis in United States v. Lotsch, 102 F.2d 35, 36 (2d Cir. 1939), would lead to approval of this joinder. I believe, however, that prevailing opinion favors the views expressed long ago in Kidwell v. United States, 38 App.D.C. 566, at 570 (1912), as follows: “It is doubtful whether separate and distinct felonies, involving different parties, npt arising out of the same transaction or dependent upon the same proof, should ever be consolidated. But it should not be permitted where the crimes charged are of such a nature that the jury might regard one as corroborative of the other, when, in fact, no corroboration exists.” . United States v. Quinn, 365 F.2d 256, 263-267 (7 Cir. 1966). The court held both (1) that the joinder was improper and (2) assuming no misjoinder, that the potential for prejudice required a severance. . This statement is based on Meyers’ direct testimony. (It. 406-407) I recognize that he testified on redirect examination that the cost to manufacture Cook County machines was actually less than the cost of Shoup’s standard 10-column model, and that converting a standard 10-column manual machine to a 6-column machine enabled Shoup to use four columns of parts in the production of their machines. (R. 918-919). Such testimony relates to the weight the jury might properly give to the price increase letter but, in my judgment, clearly does not affect its admissibility. . R. 1122-1124. . The Court: Does an automobile salesman commit a crime because he doesn’t charge the suggested factory price of an automobile? Mr. Foran: I am not saying that Meyers commits a crime at all, your Honor, but I am saying that— The Court: I mean, prices are pretty flexible. If you want to sell machines real bad, you can shave a little bit. (R. 1129) . The Court: You have got all that in verbatim from his lips. He has— Mr. Foran: Your Honor— The Court: He has acknowledged sending this out. He has explained it on your cross examination. Nobody has tried to shake him from what he said. Nobody has made a motion to strike what he said. It’s in the record. I don’t know why you need a piece of paper in there. Mr. Foran: Because, your Honor, it’s in his own handwriting. The Court: He has already acknowledged that. Mr. Foran: Well, your Honor, just as a matter of argument, I can show them that for once the only way that I could make the man tell the truth was when I could show him something in his own handwriting. Your Honor, that’s an essential piece of evidence. It— The Court: I mean, if I followed your logic, Mr. Foran, the government would have to bring in sixty-five calendars that Friday, the 28th — or that the 28th of August was on a Friday, because one calendar isn’t enough. You have got this in the record from his lips, and it’s uncontradicted and it’s unde-nied, and I don’t know why you need a piece of paper since he has acknowledged, in the presence of the jury, what that thing says. Mr. Foran: And so therefore I should be able to show it to the jury, show them what he acknowledged, your Honor. (R. 1131-32) . R. 1132-33. . R. 1135. . I am not by any means suggesting that they disprove the government’s theory of the evidence; I merely make the point that they should have been included in the record for the jury to evaluate. . Q. And in that same conversation, your wife also informed the officer that the victim had a bad habit of carrying large sums of money on his person, and was quite careless about showing it, didn’t she? A. I don’t recall my wife ever saying that. Q. Did she say to them in your presence— The Court: Are you going to call his wife to impeach him with that statement? Mr. Foran: No, your Honor, but I certainly can call the policeman whom she made the statement to, in his presence. The Court: You can’t impeach his wife on the basis of what his wife said to a policeman. Mr. Foran: I am not trying to impeach his wife. The Court: You can’t impeach him on the basis of what his wife said to a policeman. By Mr. Foran: Q. Well, is it true, Mr.— A. I don’t recall the statement. The Court: He is about to ask you a question. Let’s see what happens now, after he says, “Is it true. ...” By Mr. Foran: Q. Is it true, Mr. Meyers, that you do have a bad habit of carrying large sums of money on your person, and that you are quite careless in showing it? A. No, sir. Q. That every time you leave a restaurant, you stand outside and pull out your bankroll and count it in plain view of somebody passing by? A. Is that a— The Court: Are you going to have a passer-by to impeach him? The Witness: Is that a serious question? Mr. Foran: What I’m saying, your Honor, is that this man was present after — he has testified here that he did not keep a lot of cash on hand. The Court: That’s right. *1113 Mr. Foran: He has testified that lie did not carry large bills around with him. The Court: That’s right. Mr. Foran : And now— The Court: Now are we going to have some witnesses that say that he stands in front of restaurants and waves his bills in the air to all the passers-by? Mr. Foran: I asked him whether he was present at a conversation where his wife told the policeman that in the course of this burglary. He said he was not, and I am asking— The Court: That doesn’t impeach him, whatever his wife said to a policeman. The objection is sustained. (R. 842-844) [The “objection” which the court sustained does not appear in the record.] . What happened after the jury was excused is not apjiarent from the transcript before us. However, the substance of the court’s action is apparent from his comment at tlie commencement of the next session: The Clerk: Case on trial. The Court: Are there any Monday motions? The Monday motion for a mistrial is denied. Mr. Casey: Your Honor, in reviewing the transcript from Friday, although Defendant’s Exhibit— The Court: One newspaper says I over- ruled it and one newspaper said I didn’t. If I have done it already, I will do it a second time, and if I haven’t done it, I will do it the first time, on the motion for a mistrial. Mr. Casey: O.K., Judge. The Court: So at least it is done at least once and maybe twice. (R. 1244) . For example, during the attempt to establish Meyers’ excessive expenditures, he was asked what stock he owned. Without an objection having been interposed, the trial judge interjected: “Well, now, this is not the Governor requiring somebody to make a net worth statement if he works for the State of Illinois. He is not required to disclose to you what stocks he owns now.” (R. 788) . This should not be construed as approval of the prosecutor’s position on the Bill of Particulars question. I think the government should have been required to provide the defendant with a more definite statement of the dates on which Meyers traveled to Chicago to deliver bribe money to Barrett. The specific dates were established by airline records, and I see no reason why this information should not have been made available to the defense in advance of trial. A rule which would have denied the government the right to introduce evidence as to dates not specified would have done no harm in this case, since there was no uncertainty as to its theory of the evidence. If there had been doubt as to the dates of the meetings between Meyers and Barrett, an appropriate caveat in the government’s response to the order would have preserved its ability to place proper evidence before the jury. Perhaps, as the government argues, defendant cannot demonstrate specific prejudice, but certainly the refusal to provide precise information which was readily available made the preparation of the defense more difficult. . Macaulay’s History of England, Yol. 1, p. 440. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9461190. Public record. Not legal advice.