Appendix — Skillman v. United States

Supreme Court brief1971

Ask Donna

What actually matters in this document.

Text

UNITED.STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

j No. 19,978 °

| ‘United States of America, LA ppeal from the

Appellee, ~ United States Dis-

VS trict Court, West-

; ; (ern District of Mis-

Bill Miles Skillman, . 1 4. .ooem, Western Di-

; Appellant. | ‘vision.

~~ | [Apel 30, 1971:} ©

‘Before idan, Chief Judge, HEANEy, Circuit Judge; VAN -

ne PELT, Senior District J udge.

oe PELT, Senior District Judge. Race oe

Defendant, Bill Miles Skillman, snseas from a judg-

ment of conviction upon three counts of an indictment

charging in separate counts a violation of 18 U.S.C. § 371*

1. “If two. or more persons conspire either to somaias any

offense against the United States,.or -to defraud the United

States, or any agency thereof in any manner ‘or for any pur-

* pose, and one‘or more of such persons do any act to -effect

the object of the conspiracy, each shall be fined not moré than

$10,000 or imprisoned not more than five years, or both.

“ “If, however, the offense, the commission of.which is

the object of the conspiracy, is a misdemeanor only, the

punishment for such conspiracy shall not exceed the maxi-

‘mum punishment provided for such misdemeanor.”

pte praareees

I tees Re

ve sis tage etal ee Bo Beam Se

. .

{Sek Beinn ALCS I AAS: MIN Rae 8 PARTI Sa SBN Nias Moa

ASEM Pea I ist L8G Seb CEASA cp hick iii t ODS,

(conspiracy to receive and dispose of stolen: U. S.' Postage

Stamps) and two violations of 18 U.S.C. § 641? (receiving

and disposing of U. S. Postage Stamps). The trial judge

imposed a sentence of five years on the conspiracy count

and separate sentences of seven: years upon each of the

other two counts, all sentences to ‘run. ey We

affirm the*tfial court.

I SUFFICIENCY OF THE EVIDENCE

The evidence established two post office eonlinlan.

In the burglary of the Station C Branch in Atlanta, Geor-

gia, on February 20, 21, 1967, there was a shortage of

stamps and-mponey of $56,717.18. In the burglary of the

Florence, Alabama, post office on March 7 and 8, 1967,

there was a shortage. in Stamps . and money of $107,630.42.

Included in the stamps stolen was $3500.00 in 30¢ siiaee

delivery stamps.

-Knight,* a had. pled guilty, wis a> principal wit-

ness against the defendant. He testified that he and one |

2. “Whoever embezzles, steals, purloins, or knowingly con-

-verts to his use or the use of another, or without authority,

sells, conveys or Gisposes of any record, voucher, money, or

thing of value of the United States or of any department or

agency thereof, or any property made or being made under ,

contract for the United States or any department or “agency -

thereof; or

“Whoever siteiede. conceals, or adaben the same with

intent to convert it to his use or gain, knowing it to have been

embezzled, stolen, purloined’ or converted— -

“Shall be fined not more than $10,000 or imprisoned not

- more than ten years, or both; but if the value of such-property

** does not exceed the sum of $100, he shall be fined not more

than $1,000 or imprisoned ‘not more than one year, or both."

“The word ‘value’ means face, par, or market value, or

cost price, either wholesale or retail, whichever is greater. uy

3. Knight entered a plea of| guilty to the charges contained

in the indictment. It was Knight who informed the government.

of the identities of those persons who had participate in- the

burglaries, and the manner in which the stamps were sold.

? .

°é

Bernie Lewis had been involved in-several ‘previous bur-.

glaries, an

gia,

hat the two men had driven to Atlanta, Geor-

Station C Branch Post Office. He testified to the de-

tails of the burglary, which: areyyunimportant to’ this

appeal, and that after the burglary he and Lewis returned. °

to the motel in Chamblee, Georgia, a suburb of Atlanta,

where they, had checked in previously. There they sorted

the articles stolen and placed certain articles in a trunk

purchased for that purpose and some green army laundry

bags. Knight then called Bob’ Matthews in Omaha, Ne-

'-braska, to discuss the sale of the stolen postage starnps.

Matthews informed Knight that he had a “drop” -ssouth

of him (Matthews). Knight advised Matthews he had

about $25,000 worth of stolen stamps, and Matthews in-

formed ‘Knight’ he would see. what he could do.

Knight and Lewis started for Omaha. Whileen route,

they again contacted Matthews and were instructed to

proceed to Kansas City, Missouri, and advise him when

they arrived. Another call was placed from Columbia,

Missouri, and Matthews instructed the two men to proceed

to Chicago, Illinois, since the party in Kansas City was

not in town.‘ ‘Knight and Lewis proceeded on to Chicago >

and there disposed, of some $3500.00 worth of stolen stamps

“after a call to Matthews. Another call was placed to Mat-

thews, and the two men were again told to proceed on to

Kansas Citys Upon their arrival, and checking in at a.

motel, they again-placed a call to Matthews who instructed

them to-wait and that he would get in touch with the Party

in Kansas City.

from Kansas City to New Orleans and ret

call was made. —

“4. Exhibit 9, an airlines ticket, ee flew |

ed on the day Sis

ebr ary 20, 1967, for the purpose of burglarizing )

«>

w yr REPT, PRINS

CHORUS IARI AAT SER Taga RE MIE EE aN PRESS HK Jae

A4 ©

4 Later, Knight again telephoried Matthews, and. was |

instructed to call VIctor 2-1777° and ask for “Bill”. -Knight

called the number and defendant: stwweréd. | After intro-

_ ducing himself, Knight | informed defendant a party in

\ Omaha had given him his number, and defendant told

him to come to his office, Room 707, Rialto Building, at

‘Ninth and Grand, Kansas City, Missouri. After Knight .

- arrived; he informed defendant he had approximately ©

$50,000 worth of stolen stamps, to which defendant replied

‘that-he had been told that there was only $25,000 worth

‘ of stamps, and-that he wasn’t prepared to buy $50,000

worth. Knight replied that when he talked to Matthews :

he had not completed counting the stamps and had told

Matthews he had only $25,000 worth. A sale was: consum-

mated on the basis of 20% of the face value of the stamps.

' Half of the money was paid at that time and half: was to.

be paid aftér Skillman and his partner had made a final -

count.

_ The stamps Were delivered to defendant’s office later

that day in a foot locker and in green army bags.\, Skill-

"man had requested that delivery be delayed until every-

"one was out of ‘the building. . Skillman also arranged for ~

Knight to-get his car fixed, and Lewis took the car to the.

Shepherd Motor Company in North Kansas City. ’ The

‘ two men then left Kansas City via airplane. Knight re-

turned in a few days and was given the rest of the money

-due from the sale of the stamps. _It was agreed between

Knight and defendant at Skillman’s office, that before any ~

‘more stamps were brought to Kansas City, Knight would

call defendant in advance and inform him of his impending

arrival and the quantity of stamps to be purchased.

- §. The stone indicntes that this number is one of defend-

ant’s office —— one numbers in Kansas City.

A5 Pan a

Siboonaiy, on March -8, 1967, Knight, have. and

one Smith burglarized the path Office at Florence, Ala-

- bama. Knight again contacted Matthews, and was advised

fo proceed to Kansas City. Upon arriving they checked

. into a motel, where the stamps were put into two foot-

lockers and green army laundry bags. Knight then tele-

phoned defendant and the three men went to defendant’s

office where the stamps stolen !n the second burglary

were purchased by defendant after some negotiation. Late

in the afternoon the footlockers and laundry bags contain-

ing the stamps were placed-in a storage room in the base-

ment of the Rialto Building, the use of which Skillman had»

obtained from the building manager, where they remained

for several days.

Only defendant and the building manager had keys ‘to |

the storage room. The footlockers eventually disappeared.

‘The building-manager found empty green bags in the

room. - Defendant told the maffager he could do anything

he wanted with the bags. They were turned over to the

postal inspector, and ‘upon examination, it was discovered

that they contained perforations or punchouts identical

in size and texture to those from genuine United States -

postage stamps. A portion of a — cent — delivery

stamp was also found.: |

Various telephone, motel, credit. card, and other records

were identified in the stipulations filed in this case which

sufficiently corroborate ‘the travel and phorie calls of

Knight, Lewis, and Smith, as well as the travel and calls

of the defendant.

"Appellant challenges the mitiicleney of the govern-

ment’s evidence to establish a conspiracy. - In ‘considering

this question, ‘we must view the evidence in-the light most

favorable ‘to the jury’s verdict. United States v. Marttila,

‘484 F.2d 834 — Cir. Nov: 25, 1970); —— States v. Ben- °

SERN Wann a Waimea Soak

. :

re i

RENIN TTS PLENARY

at nd

nett, 428 F.2d 772 (8th Cir. 1970); United States v. Warner,

428 F.2d 730 (8th Cir. 1970); United States v. Fryer, 419

_ F.2d 1346 (8th Cir. 1970), cert. denied, 397 U.S. 1055 (1970).

We must accept as true and established all reasonable in-

ferences that tend to support the jury’s actions and con-

clusions. United States v. Marttila, supra; United States v.

Fryer, supra; Peterson v. United States, 405 F.2d 102° (8th

Cir. 1968), cert. denied, 395 U.S.-938 (1969), rehearing de-

nied, 396'U.S.'870 (1969); Cave v. United States, 390 F.2d

— 58 (8th Cir. 1968), cert. denied, 392 U.S. 906 (1968) ; Phelps

v. United States, 160 F.2d 858 (8th Cir. 1947), —

denied, 161 F.2d 940 (8th Cir. 1947).

‘The offense of conspiracy ‘consists of an agreement be-—

tweenthe conspirators té commit an offense. attended by

an act of one or more of the conspirators to effect the object

of the conspiracy. United States v. Falcone, 311 U. S. 205,

210 (1940); Kirschbaum v. United States, 407 F.2d 562, 565

- (8th Cir. 1969); Cave v. United States, 390 F.2d 58, 69 (8th —

_ Cir. 1968), cert. denied, 392 U.S. 906 (1968). In order to

‘establish a conviction under 18 U.S.C.A. § 371, the govern-

“ment must prove (1) an agreement, (2) a combination of

two or more persons, (3) an unlawful purpose, and (4) an . ~

overt act committed by one of the conspirators in further-

ance of the conspiracy. Cross v. United aa, 392 F.2d ©

rt 362: (8th Cir. 1968). |

Recognizing that proof of a conspiracy is seldom, if

ever, established by a, formal statement of such a con-

spiracy,” defendant asserts ‘there must be.some deliberate

. participation in furtherance of a common goal. “Defend-

ant contends that the evidence here establishes at best only

‘a mere sale, and dges not sufficiently establish any agree-

- ment to support a conspiracy conviction. Defendant relies

'* -6. .See Kooligh v. United. States, 340 F.2d 513, 523-24, (8th

Cir. 1965).-

AZ. e a a. 5

principally upon United States v. Ford, 324 F:2d. 950 (7th

Cir. 1963): we

% ;

_ “The relationship of Kalver and seller absent any

prior. or contemporaneous understanding beyond the

mere sales agreement does not prove a conspiracy to

sell, receive, barter or dispose of stolen property al-

though both parties know of the stolen character of

the goods. In such circumstance, the buyer’s purpose

‘is to buy;- the seller’s purpose is to sell. There is is no

joint objective.” Id at 952.

See also Varelli v. United States, 407 F.2d: 735 (7th Cir. |

:1969). : =

Taking the evidence in the light most favorable to the

’ jury’s verdict, we think there was Sufficient evidence to

establish more than’a mere. bu er-seller arrangement. .

*Knight’s testimony ‘indicated that e made several calls

to Matthews in Omaha, who eventually told. Knight to

proceed to Kansas City, call defendant’s telephone num-

ber, and ask for. Bill, in- order to dispose of the stolen

stamps. From this it ¢an be inferred that Matthews and

_SkiHiman worked together in the disposition of the-stolen |

‘stamps, with Matthews acting as a go“between. When ;

Knight told Skillman he. had $50, 000 worth of stolen

stamps, defendant’s resporise was that. he had been told

only half that amount would be delivered. This. testimony,

“if believed, clearly established a prearranged sale of the

"Stamps, and thus meets the requirements | of (1) a prior

agreement beyond the mere sale, (2) a ‘combination | ee

at least three persons, (3) an. unlawful iia and eS :

an overt act.

There is another senett to the iidiie of conspiracy. |

‘Defendant _ contends that there was but a single trans-

'@)

action which occurred giving rise to both thé conspiracy | 7

charge and the counts charging a substantive violation,

Bh ASE }

aaa . : A8

and that the maintenance of a prosecution on these

charges, the conspiracy and the substantive offense, was

untenable and prejudicial error.

In Pinkerton v. United States, 328 U.S. 640 (1946), the

United States Supreme Court held that the commission

of a substantive offense and a conspiracy to commit that,

offense are two separate and distinct crimes, with certain -

-. exceptions: am eycene be

“There are, of -course, uitonoes where a conspiracy

charge may not be added to the substantive charge.

One is where the agreement of two persons is.neces-

sary for the completion of the substantive crime and

there is no ingredient in the conspiracy which is not

present in the completed crime. See United States v.

Katz, 271 U.S. 354, 355-356; Gebardi v. United States,

287 U. S.°112, 121-122. Another is where the definition

of the substantive offense excludes from punishment

for conspiracy .one who voluntarily participates in

. another’s crime. Gebardi v. -United’ States, ey me

But those exceptions are, of.a limited chara cter.

common law rule that-the substantive offense, i az.

felony, was merged~in the ee ans. has little vi-

‘tality in’ this country., It has. been long. ard con-

sistently recognized by the Court that the commission

of the substantive offense and a conspiracy to commit —

it are separate and. distinct offenses. The power of

Congress to separate the two and to affix to each a

different penalty is well established. Clune v. United

States, 159°'U.S. 590, 594-595. A conviction for the

conspiracy may be had though the. substantive offense

was completed. See Heike v. United States, 227 US; =

13], 144. And the plea of double jeopardy is no de-

~ fense to a conviction for both offenses. Carter v.

McClaughry, 183 U.S. 365, 395. It is only an identity .

‘ of offenses which is fatal: See Gavietes v. United’

'. States, 220, U.S. 338, 342. Cf. Freeman v. United

States, 146 F.2d 978. A-conspiracy is a partnership

in crime. United States v. Socony-Vacuum Oil.Co.,

- 310 U.S. 150, 253. It has ingredients, as well as im-

plications, distinct fr the completion of the un-

lawful project. As stated in United States v. Rabino-

wich, 238 U.S. 78, 88:

‘For two or more ix confederate and combine

together to commit or cause-to be committed a

breach of the criminal laws, is an offense of the

gravest character, sometimes quite outweighing,

in injury to the- public, the mere commission of

the contemplated crime. It involves deliberate

plotting to subvert. the laws, educating and prepar-

ing the conspirators for further- -and habitual crim-

inal practices. And it is characterized by secrecy, |

‘ rendering it difficult of detection, requiring more,

time for: its discovery, and adding to the importance

of pnishing it when discovered.’ ae

And see ‘Sneed. v. United States, 298 F. 911, 912-913;

Banghart’v. United States, 148° F.2d 021.” Id. at 643-

44 (footnotes omitted). .

‘See also Callanan v. United States, 364 U.S. 587 (1961),

rehearing denied, 365 U.S. 825 (1961); Williams v. United

States, 292 F.2d 157 (8th Cir. 1961); Garner v. whic

States, 277 F.2d 242 (8th Cir. 1960). ;

: —Défendant asserts that the. cases of Ashe v. Swenson,

397° U.S. 436 (1970), and Waller V. Florida, 397 U.S. 387

(1970), have weakened this long- -established rule, and that

_ Since the conspiracy and substantive offense are included

in the same transaction, the government cannot success-

fully maintain two separate prosecutions. While such an

argument is interesting, we consider it to be without merit.

Generally, a conspiracy requires’ different. proof of facts.

than does the substantive offense, and in that manner they

do not arise out of precisely the same acts or transaction.

Where both the conspiracy and the substantive offense do

consist of the same acts or transaction, a conspiracy charge

' es 2

Al0

may not be added to the substantive charge. Pinkerton V.

United States, supra.

The second exception where a conspiracy chargé may

not be added to the substantive charge as arfounced in

Pinkerton has significante in this case. Where the defini-

_ tion of the substantive offense excludes from any punish-

ment a party who participated voluntarily in another’s

crime, then it is permissible to add a.conspiracy to the

substantive offense. Here the evidehce shows that Mat-

thews. was a go-between, acting as the middleman between

the sellers and the purchaser. It was Matthews who ar- ;

ranged both meetings, and with whom both Knight and

the defendant were in contact. The government relies to

a considerable extent on United States v. Smolin, 182 F.2d

782 (2nd Cir. 1950), where the court stated:

“While the crime of receiving and possessing stolen

goods necessarily involves the cooperation of the thief ~

and: the buyer, it does not necessarily involve the co-

" operation of the buyer and a go-between. as,

F.2d at 786. a

While the instant case is readily distinguishable from

Smolin, in that there was.no evidence that: Matthews and

Skillman were buyers of the stolen stamps, it is sufficiently

analogous to lend support to our.holding. We conclu

that the evidence establishes more than.a mere buyer

seller arrangement, and hold that the evidence addu

on the charge of conspiracy was sufficient. ?

II— THE TAPE RECORDING

At the trial Skillman took the stand. He told what he

did on February 24, 1967 and denied making any pay-

ment to Knight on that date. He said he had no contact

with Knight at any time for any purpose and did not have

a call from him in March,, 1967 relating to merchandise or

-y'

- : a ya

All

goods for sale. He said he had+no contact with Knight on

‘March 1, 1967 and did not speak’ to Knight on March 9,

Lv 1967. On March 14 he met several people ss did not have

any cortact with Knight.

The foregoing was in response to wilentione of his own

counsel. On cross- examination he again anSwered that he

had never had contact with Knight and hade never talked

to him and stated that he had never talked to him on the

telephme. .

It was then that on rebuttal witness Ritchie, a postal ’

inspector, was recalled. He told of the procuring of a tele-

.phone eall from Knight in Tampa, Florid@, to Skillman

and to recording the conversation. This. recording was

then offered for impeachment purposes and played. Parts a |

were uninteljigible. It did show sufficient conversation to

indicate acquaintance between Knight and: Skillman on a

first nme basis and contact between them.

Skillman on sur-rebuttal testified that his arn did

reflect this call, that he didn’t¢@hear the tape very well

“but apparently it ‘was my voice on the pther end. * * *:

And had not someone directed me to the date of November -

the 24th, I still would have said I had never talked to Bill

‘Knight. Q. In fact; did you know this Bill Knight at the

time that this call was apparently received by you? A.

No, and Bill Knight was not impressed maa me until after

the indictment.”

The court told the jury that the recording and the tele- |

phone conversation were admitted solely for such evi-

dentiary value as they might have to rebut Skillman’s

statement that he never had a telephone conversation with

Knight and not for any other purpose.

The receipt of this recording and the evidence relative

thereto is assigned as ag

id a

pass

gs”

y Al2

On June 23, 1969, a date well in advance of the trial,

’ Skillman filed.a. motion entitled “S arate Motion of Bill

Miles Skillman to Compel Disclosure of All Evidence

Favorable to Defendant” (R. pp. 69-71). We will not pro-

long this opinion by. copying it in full.

On. June 26 the court entered an conten. enumerating

the last two of the requests for information, including:

“Written or recorded statements, or a summary of any

statement made by defendant or copies of such.statements.”

. dnd “The results of reports of any scientific or economic

tests or experiments or studies made in connection with

the instant case, or copies of those reports.” And then

ordered in part: “The motion is therefore overruled ‘to that

extent, but with respect to the last two requests, if the Gov-_

ernment has any’such information, it should be made avail-

responded “The government advises it does not have in its

possession any written or recorded statement of .. . any

statement made by defendant Bill Miles Skillman.”

It is the failure to produce this recording and its sub-

~ sequent use that is assigned as error, it being claimed that

it was entrapment and improper interception without no-

tifying the party that the conversation was being recorded.

It is flyther claimed that the questions asked the defendant

were not sufficiently specific -and thereby’ there..was. an

improper foundation. It is:‘now claimed that there was no

me a eee court’s order requiring production of ~

all written recorded statements, This contention js

made for the first time in this appeal. .Therefore, it cannot

be considered controlling. See Peterson v. United States,

¥'.2d 102; 107-08 (8th Cir: 1968), cert. denied, 395 U.S.

938 (1969), rehearing denied, 396 U.S. 570 (1969).

The matter was; however, fully discussed with and by

the trial court. When defendant’s counsel mentioned that

} able to the defendant.” The government on July 22, 1969

»:

A13

“

a ee

the government had been ordered to produce various lab

reports and other. reports, the court responded that the

tape was not a lab report. Counsel did not pursue this.

issue any further. At the time of the original order and

at the time of the government’s response above noted, the

_ United States Attorney. was unaware of. the exgstence of -

the tape recording later used for impeachment. ¢

‘Even if we were to hold this issue cognizable on this

appeal, the argument is without merit. The recorded con-

versation was not a““relevant statement” under the mean-

ing of Rule 16. It was introduced not as a part of the

government’s case-in-chief, but on_ rebuttal. Cf. Harris v.

United States, 400 F.2d 264 (5th Cir. 1968). It was not

admitted for its truth, ‘but was admitted solely for the .

purpose of impeaching Skillman’s denial that he had ever —

‘talked with Knight> There was nothing in the statement

which had any bearing on the substantive crimes charged.

See United States v. Garrett, 305 F.Supp. 267 (S:D. N-Y.

1969): Cf. United States v. Federman, 41 F.R.D. 339 (S.D.

~ N.Y. 1969). The substance of the conversation was con-

_‘ceededly innocuous, and the court instructed the jury not

_ to consider the conversation for any purpose other than

impeachment.* .

Defendant relies upon Davis v. United States, 413 F.2d

1226 (5th Cir. 1969), and United States v. Crisona,..416

F.2d 107 (2nd Cir. 1969), cert. denied, 397 U.S. 961 (1970),

for the proposition that secretly made’ tape recordings are

discoverable under Rule 16 (a)> There is no dispute with

6(a) Added authority supporting the correctness of the trial

court’s receiving the conversation for impeachment purposes is

found in the case of Harris v. U. S., == WE copa ae U.S.L.W.

4281, decided Feb. 24, 1971. The Harris case. olds that a state-

ment inadmissible against a defendant in thé prosecution’s case

Vv. Arizona, 384 U. S. 436 may under the facts of Harris be used

for impeachment purposes to attack a defendant’s credibility.

é&

——1-8-

oe M

Riga MTN s as I A ON Oo ado

this generalizef rule. However, the facts surrounding the

introduction of the tapes in Davis, and in Crisona, are —

readily distinguishable from the case at bar? Even if

defendant had properly raised the Rule 16 issue, we con-

clude that, there was no abuse of discretion in admitting

competent evidence not previously disclosed under Rule

- 16(g). See Hanson v. United States, 393 F.2d 763 (8th

Cir. 1968), cert. denied, 393 U.S. 833 (1968).

Defendant alleges further that a proper foundation for

introduction of the tape for purposes of impeachment had

not been laid, since there was no direction as to time,/place,

or circumstance of the: making of the tape. . Defendant

denied categorically he had ever engaged in a, conversation

with Knight, or anyone representing himself to be Knight.

7. In Davis, defendant was convicted by : a jury for posses-

sion of and passing counterfeit federal reserve notes. The govern-

ment introduced as part of its case-in-chief a tape recording of

’ a conversation between defendant and.a gdvernment informer

in which defendant agreed to sell the counterfeit notes. The con-

versatioh was recorded with the informer’s knowledge. The court

‘of appeals held that the lower court erred in failing: to allow dis-

covery of the tape.

In Crisona, defendants ‘were cbt victed of fraud and con-

spiracy. They "had utilized a foreigd corporation owned by one |

of the defendants to issue. real estate financing commitments. The

falsified corporation was used as a front for obtaining advance

. fees from various individuals in exchange for commitments to

secure real estate financing. Tape. recordings of various conver-

sations were made prior to defendant’s arrest, and defendant

moved for production. which was denied. Only | one tape was

received in evidence as part of the government’s case. On appeal

the court held that the tape recordings were discoverable under

Rule 16(a), but that failure to compel disclosure was not re-

versible error, since defendants were given a transcript of the

one which was played for the jury, and none of the others con--

tained any information which could have reasonably been of use .

to defendant.

It is readily apparent that in both cases the tapes were in-

troduced as part of the government’s case-in-chief, and Were held

discoverable. - Here, the tape was introduced as rebuttal evidence

only. We are not unmindful of the teachings of Kolod v. United*

- States, 390 U. S. 136 (1968), and Alderman v. United States, 394

U. S. 165 (1969). Upon examination, however, we conclude’ that

our holding is not in conflict -with the rules therein established.

~“scourt of appeals will

Al5

= ° . Pt ¢

The court heard argument and testimony outside the pres-.

ence of the jury on the objection to foundation and ad-

mitted the tape for purposes of impeachment. After ex-

pressing a great deal of concern, the court stated that the

_categorical denial of defendant was sufficient for the limited

admission of the tape. The court conceded that is admissi-

bility was a close question.

Gerierally speaking, the admissibility of evidence is a

question within ‘the di

ion of the trial coutt, and a

nfine its inquiry to whether there

was an abuse of that distretion. DeRosier v. United States,

407 F.2d 959, 961 (8th Cik. 1969); Wangrow v. United States,

399 F.2d 106,-115. (8th Cir. 1968), cert. ‘denied, 393 US. 933

(1968). This discretion is particularly broad where de- ©

fendants are charged with conspiracy. Wangrow v. United

‘ States, supra. See also <n p v. United States, 382 F.2d

other grounds, 393 U.S. 410 .

871 (8th Cir. 1967), rev’d o

(1968); Cotton v. United States, 361 F.2d 673 (8th Cir.

1966); West v. United States, 359 F.2d 50, 55 (8th Cir.

1966), cert. denied, 385 U.S. 867 (1966). We, <Onélnde that 7

there was no abuse of discretion. oN

Defendant’ Ss next allegation is that the tape recording

was garbled and unintelligible in ‘Certain respects, thus

prejudicing his rights by permitting speculation as to its

contents. Had the tape been admitted for its substantive

truth, we would conclude that the point is at least argu-

able. However, as we have earlier pointed out, the tape

was not admitted for its contents. The jury was not left

to speculate, for they were specifically told to disregard

the contents of the tape recording. We hold there was no

error.

me % However, the fact that certain ‘portions of a tape record-

ing are inaudible does not necessarily render the entire tape -

inadmissible. That question is addressed to the sound: discretion

of thestzial court. United States v. Weiser, 428 F.2d 932 (2d Cir.

1969); United oe V. Carlson, 423 F. 2d 431 (9th Cir. 1970):

Aas

ATIWAL TENGE RL ITL

TARRY NRRL at

He See

PEARL FEUD RYE ENS HH) AR

akon males oeodtone LAR IRL EY

: .

MRE OILY

: POE ROA

Shiva j

peters Gieseietmsereeeerenennememeetaes

Al6 .

‘Deferidant also: argues that at the ¢ time the recorded

_phone call was made; Knight was acting as a government

agent in procuring the call, and that it was procured in

- derogation of defendant’s fourth amendment rights. De-

fendant relies on Massiah v. United States, 377 U.S. 201

(1964), Katz v. United States, 389 U.S. 347 (1967), and

United States v. White, 405 F.2d 838 (7th Cir. 1969), cert.

granted, 394 U.S. 957 (1969), reversed ........ i. “aa , de-

cided April 5, 1971./ Katz is- readily distinguishable on

its facts and is not applicable.® ‘Katz involved electronic

» surveillance without the knowledge of any of the par-

ticipants in the conversation. Here the conversation was

recorded with Knight's permission. This same procedure

has been upheld by the United States Supreme Court in

opez v. United States, 373 U.S. 427,439 (1963) | where the

e of a tape recording to corroborate testiniony of a gov-

ernment agent was approved:

“We think the. risk that petitioner tok: in offering a

bribe to Davis fairly included the risk that the offer’

would be accurately reproduced in court, whether by

- faultless memory or mechanical recording.”

See also Lee v. ‘Florida; 392 U.S. 378 (1968) ; Rathbun Vv.

United States, 355. U.S. 107. (1957) ; Hemphill v. United

States, 392 F.2d 45 (8th Cir. 1968); cert. denied, 393 USS.

877 (1968). We are not persuaded that the teachings of -

‘Lopez have been.set-aside by Katz, and therefore reject

the holding of the Court of Appeals. in. United Statés v.

White, supra.** Accord, United States v. Kaufer, 406 F.2d

9. Counsel for defendant conceded on oral argument that

‘“. Katz is not controlling in this case.

9(a) After the submission of this cause; it was concluded

to await the opinion of the United States Supreme Court in U. S.

v. White which was to be argued in October, 1970. : The opinion

was filed April 5, 1971 and is reported in tes See

U.S.L.W. 4387. A majority of the Court reject and reverse the

holding of the Seventh Circuit in White and.give support to an

additional ground for rejection which was not discussed in the

body of our opinion. White holds, as did Desist v. U. S., 394

sesh | Al17

550 (2nd Cir 1969), aff'd 394 U.S. 458 (1969), rehearing

denied, 395 U.S. 917 (1969). Cf. United States v. Hickman,

426 F.2d 515 (7th Cir.1970). .- 4

Similarly, Massiah v. United States, supra, is not here

controlling/ The situation in Massiah occurred after de- .

fendant had been indicted, and was held to have violated.

his sixth amendment right to counsel, not his fourth amend-

ment rights, as contended by defendant in this case. The

statements in Massiah were damaging in themselves; here

the statements are totally innocuous... We hold defendant

was not deprived of his constitutional rights by the intro-:

‘duction of this recording. .. a |

Finally, in regard to the 'tape recording, defendant_as-

serts the court erred in not ordering production of the tape

at the conclusion of either Knight’s testimony, or at the

conclusion of the. direct examination -of Postal Inspector

Ritchie. He relies upon 18 U.S.C.A. § 3500:

“(a) In any criminal. prosecution brought by the

‘United States, no statement or report in. the posses-

Sion of the United States which was made by a Gov-

ernment witness or preg} ective Government witness

(other than the defendant to an agent of the Govern-

- ment shall be the subject of subpena, [sic] discovery,

or inspection until said witness has testified on direct

- examination in the trial of the case. _

a .

(b) After a witwéss called by the United States

has testified on direct examination, the court shall, on

motion of the defendant, order the United States to

produce any statement (as hereinafter defined) of the *

U.S. 244, that the case of Katz v. U. S., 389 U.S. 347, decided De. >

cember 18, 1967, is not to. be applied retroactively to electronic

surveillance which occurred prior to December 18, 1967. _ Mr.

Justice Brennan concurred in the result in White solely on ‘this

ground, citing Desist, supra. The electronic surveillance used

for rebuttal in Skillman for impeachment only related to a con-

versation which took place on November 24, 1967. For all of

these .additional reasons we are satisfied with the soundness of

our original rejection of White. - 4

§.

a a aera CS ne Ke

¥ .

RNCNRSSOMRDOR SCE Ae cS eRe vid pcm oeitde aN NAT A Meee!

a i

ey IE MKB rR ote

Pb eed wisi ak he NP RP Tk Teg Pi Lhe He

Al8 :

ae ae "

witness in the possession of the United States which

_ relates to the subject. matter as to which the witness

has testified. .If the entire cortents of:any such state-

‘ment relate to the subject matter of the testimony of -

_ the witness,«the court shall order it to be delivered

directly to the defendant for his examination ard use. |

_ = * *

(e) The term ‘statement’, as used. in subsections

(b),; (c), and (d) of this section in relation to any

witness called by the ee E means—

* * *

(2) a stenographic, mechanical, electrical, or

other recording, or.a transcription thereof, which is a

substantially verbatim recital of an oral statement

_made by said witness to an agent of the Government

yee uch oral a ~e

Ze To this eohtention there are two answers. First, it is evi-

dent that the statute is not applicable in this case since

there was no testimony on direct examination either by

Knight or by Ritchie relating to this conversatég. The

» substance of the recording in no way dealt with the subject

matter of their testimony, nor did it pertain to the sub-

stantive offense charged. Second, the tape reocrding was. . .

not a § 3500 statement within the meaning of the statute.

In United States v. Sopher, 362 F.2d 523 (7th Cir. 1966),

_ cert. denied, 385 U.S. 928 (1966), the court precisely ex-

plained what is meant by a § tei statement:

“A § 3500 statement is a recorded recital of p

occurrences made bya prospective prosecution it-

ness. From its very nature, necessarily. it: is “made

after those events have taken place. If a prosecutor,

in .reliance on the statement, uses as a witness the

maker thereof as a part of the government’s case, the

statement must *be ssinetdons for the use of defense

Boss recorded contemporaneously with the making of -

5 ° ”

ee |

“0 .

counsel. But a concurrent tape neni of : a conver-

sation between the payer and the recipient of an alleged

cash. bribe is obviously of contemporaneous sounds.

The result is a preservation of a conversation just as it

was spoken. It is direct evidence relevant on the is-

sue of the alleged guilt of the defendants on. trial.

Made when the allegedly extorted bribe money was be-

ing paid, the tape recording.in this case is of the actual

voices of the briber and the bribee. “It is therefore |

not a recital of a past occurrence by a prospective.

witness and is not within the general purview of

§ 3500.”. Id. at 525. (Emphasis in original) -—.

Neither Davis v. United States, supra, nor United States :

v. Crisona, supra, are ‘helpful to defendant. *We conclude -

there was no error in —* to order production. of the -*

. tape under § 3500.’ ~?

ELLE NS I MT SR

. x ‘ ba =

FEST Le 5 ELPA NS AR ee. eal it PRE RN

i. _ IV—SEVERANCE |

Defendant next contends the court erred in failing to

grant ‘his motion for severance. Specifically, defendant

_ contends that*because of defendant Lewis’ criminal record - .

the jury was unable to heed the court’s cautionary re- £

marks and defendant was prejfidiced thereby; the court :

- limited the ‘conspiracy ‘solely to the first burglary;. and

defendant Skillman was not charged in Count IV. Failure

‘to grant the motion, in light of these developments, it is

contended was prejudicial. We disagree.

SPORES

AUP LEY

SES EM EY,

’ The conspiracy © count charged Matthews, Skill-

man, Lewis, Knight, and Smith as codefendants, and .

covered a series of events occurring from February 20,

1967, to December 8, 1967, relating to: both the Atlanta and, °

Florence burglaries. ‘Counts IT and III charged Matthews,

- In any event, there was other evidence corroborating

Knight’ s testimony that he had conversed with defendant on the °

telephone other than the tape recording. We are-thus hard

pressed to find that admission of the tape constituted prejudicial °

error.

HER NY ar Pees nome pel ere

5 ‘ =

’ °

—A20., .

Knight, Skillman, and Lewis with the purchase and sale

of stamps stolen from the Atlanta ‘burglary, and Counts

V and VI charged Skillman, Smith Knight, and Lewis -

with the. purchase and sale of stamps stolen from the ..

Florence burglary. Count IV related to the transporta- |

tion of the stamps, from Florence, Alabama, and charged .

only Lewis, Knight, and Smith. Counts ‘II, IV and V were

dismissed at the close “of | the evidence? * o

Rule 8 (a) and (b) #Fed. R. Crim. P. provides

“(ay Joinddr of. Offenses. Two or more offenses

may be. charged in th same indictment or informa-

» tion in a Separate count for each offense if the offenses

charged,. whether ‘felonies or misdemeanors or both, ‘

' are of the same or similar character or ‘are based on

the same_act’ or transaction or on two or more acts or

- transactions connected. together or —_- parts ~

of a common scheme or: plan..- :

| (b) Jobidiae of Defendants. Two or more. de-

fendants may be charged in the same indictment or in-

formation if they are alleged to have participated in

™ the same act or pipiens oo8 or in the same series of

“acts or, transactions constituting an offense or offenses.

. Such defendants may be charged in one or moréd counts

‘together or separately and.all of the defendants need

‘ot be charged in each count.”

In. United States v. McKuin, 434 F.2d 391 (8th Cir. Oct.

16, 1970), this court. said that

“gnder Rule 8(a), Fed. R. Crim.P., joinder of offenses

_is ordinarily appropriate where, as here, the specific

counts refer to-the same type of offenses occurring

_ over a:relatively short. period of time, .and the evi-

' ** dence as f> each count of necessity overlaps. Fur-

thermore,.under Rule 14, Fed. R. Crim. P.,-it.is well

settled’ that: the trial. court has a wide range of dis- »

cretion in granting separate trials on different offenses

and for different defendants, and in order to secure a’

PON RNC ONE eM SANSOM iI DE li ARE eee ete toe

reversal it must be affirmatively shown that prejudice

resulted from the failure to grant separate trials.

Fisher v. United States, 324 F.2d 775, 780-781 (8th Cir.

1963). To the same effect, see United States v. Chris-

tian, 427 F.2d 1299 (8th Cir. 1970), Cf. Gresham v.

United States, 374 F.2d 389, 390 (8th Cir. 1967). ‘

~ See also Johnson Vv. United States, 356 F.2d 680, 682 (8th.

Cir. 1966), cert. denied, 385 U.S. 857 (1966).

The conspiracy count provides the connecting link for -

joining both the offenses as well as the defendants. _ The

‘rule should nct be interpreted in a technical sense. 8 J.

‘Moore, Federal Practice, ]8.05[1], at 8-19 (2d ed. 1968).

In Tillman vy. ‘United States, 406 F.2d’ 930 (Sth Cir. 1969),

‘ vacated on other unds, 395 U.S. 830 (1969), the court

there succinctly analyzed the scope of inquiry under Rule

8. Because we think the rules announced therein have |

considerable significance here, we quote at length: '

_. “Where, as here, the ‘offenses arose out of a. series

of connected acts, trial convenieace dictates ‘that the

government should not be made to prove the same

facts more than once.’, . . . 8 Moore, Federal Prac-

tice 8. 05[2], p. 8-19 (2d ed. 1968).. See Johnson v.

‘United States, 8 Cir., 1966, 356 F.2d 680, 682. ‘Thus,

~ there was no misjoinder of offenses in the present case.

' “Similarly, there was no misjoinder of defendants.

In conjunction with a Rule 8(a) joindel ‘ of offenses, ;

Rule 8(b) has the effect of permitting -joinder of de-

fendants. where their alleged violations of law have

_~ arisen out of the same act or series of acts. 8 Moore,

Federal Practice {8.06/1],.p. 8-23'(2d ed. 1968):, citing

United States v.-Granello, 2 Cir., 1966, 365 F.2d 990,

993; Cupo v. United States, 1966, 123 yen

324, 359 F.2d 990; King v. United States, 1 Cir,, 1966,

NEE IE

siioccoas Nilont ae

ee N

ie : * Age

" 355 F.2d’ 700, 704-705; Ingram v. United States, 4 Cir.,

1959, 272 F.2d 567.

- 7 7

“Having found that there was no misioinder of of-

fenses or defendants under ‘Rule 8, it is still necessary

to determine whether there -was sufficient prejudice

to require a severance under Rule 14 of the Federal . |

Rules of Criminal Procedure. Smith v. United States,

5 Cir.; 1966, 357 F.2d 486, 489; Bayless v. United

States, 9 Cir., 1967, 381 F.2d .67, 72; Brown v. United

States, 1967, 126 U.S.App.D.C. 134, 375 F.2d 310, 315.

See 8 Moore, Federal.Practice [14.02 [1] (2d ed. ie).

Rule 14 states, in relevant part, that

‘If it appears that a defendant or the govern-

ment is prejudiced by a joinder of offenses or of

defendants in an indictment or information or by

’ such joinder for trial together, the court may order

an election or separate trials of counts, grant a

severance of defendants or ‘provide whatever other

relief justice requires.’

The existence of prejudice, in large measure, depends

upon the facts and-circumstances of each case, Flores

v. United States, 5 Cir.,. 1967, 379 F.2d 905, 909;

' Blachly v. United States, 5 Cir. 1967, 380 F.2d 665,

- 675; Peterson v. United States, 5 Cir., 1965, 344 F.2d

419, 422, and it is axiomatic that the granting of a_

severance is within the discretion of the trial judge.

Smith v. United States, 5 Cir., 1967, 385 F.2d 34,

_37.. The burden of demonstrating prejudice is a diffi-

cult one,’and ruling of the trial judge will rarely

be disturbed ‘on review. 8 -Moore, Federal Practice

914.02 [1], p. 14-3 (2d ed. 1968). The defendany must

show something more than the fact that ‘a separate

trial might offer him a better chance of acquittal.’

Id. at 14.04 [1], pp. 14-10—14-11, citing Spencer v.

‘Texas, 385 U.S. 554, 87 S.Ct. 648, 17 L.Ed2d 606.

(1967); Robinsorm v. United States, 1954, 93 U.S.App.

—_—— _ De: 347, 210 F.2d 29. . See also Johnson v. United

ey Sain

— LE NAO AO i EDC EGS GET Tie

: 7. i ar

. States, 8 Cir., 1966, 356 F.2d 680; Butler v. United

States; 8 Cir., 1963, 317 F.2d 249; Smith v. United States,

1950, 86 U.S.App.D.C. 195, 180 F.2d 775.”

See also Peterson v. United States, 405 F.2d 102 (8th Cir.

1969), cert. denied, 395 U.S. 938 (1969), rehearing denied,

- 396 U.S. 870 (1969) ; Johnson v. United States, 356-F.2d

680 (8th Cir. 1966), cert. denied, 385 U.S. 857 (1966) ;

Butler v. United States, 317 F:2d 249 (8th Cir. 1963),

. cert. denied, 375.1LS. 836 (1963).

We.conclude that joinder of offenses and of defendants

was proper in this case. Only two of the defendants were

involved in the trial of this case, and each had their own

attorney. Defendant Lewis did not ‘testify, and thus his 7

criminal record was not before the jury. The court care-

to separately convict each: defendant. “Although defendant

was not charged in Count IV, we are unable to discern

how he was. prejudiced by ‘the joinder of that Count. It

is not. Fequired that all defendants be charged in each

count. United Stdtes v. Godel; 361. F. 2d 21 (4th Cir. 1966),

cert. denied, 385 U.S. 838 (1966). In any event, Count IV

was dismissed = with Counts II and V. We hold there

was no error.

-V— DELAY BETWEEN OFFENSE AND

INDICTMENT

Defendant contends the court erred in failing to dis-

miss the indictment for undue delay between the commis-

sion of the offense and the filing of the indictment, based

on the fact.that a lapse of nine months occurred. De-

fendant contends he was prejudiced by the delay ‘in that

one of his key witnesses died during this period. This _

issue was first raised by defendant in his motion for new

‘trial, and as such is not now cognizable: en this appeal.

URN mer a orate oratorio orem en stomp emt pt et iw aiathcummaciama la ema

GPSS JOC STE

smeagipeenicenpsitgsinperaie sheesigninian

Nisa ase ;

A24

Peterson v. United States, supra. Assuming arguendo that

it were properly before us, the contention is without merit.

So long as the applicable statute of limitations is ob-

served, delay of indictment, without more, does not con-

stitute a denial of due process. See United States v.

Snyder, 429 F.2d 1242 (9th Cir. 1970); Whatley v. United

States, 428 F.2d 806 (5th Cir. 1970); McGregor v. United |

States, 422 F.2d 925 (5th Cir. 1970); United States v. Mc-

Cagthy, 422 F.2d 160 (2nd Cir. 1970), petition for cert. dis-

missed, 398 U.S. 946 (1970); Terlikowski.v. United. States,

379 F.2d 501 (8th Cir. Bye"), cert. denied, 389 Us. 1008

(1968).

It is settled law in 1 this circuit that the Sixth Amend-

ment applies only: from the date of commencement of the

criminal prosecution. . There is here no evidence. of inten- -

- tion of vexatious’ delay on the part of the government ,

Terlikowski v. United States, 379 F.2d 501 (8th Cir. 1967).

The contention that defendant was prejudiced by the —

death ofa principal witness for his case must be rejected,

for the record indicates that this witness died before the

government learned from Knight who had committed the

burglaries, and the manner in which the stolen .stamps

wer sold. Further, there is no indication as to what this - :

witness would have said. The actual delay between the

time‘the government learned of defendant’s identity and

his participation in the crimes.and the indictment was

only a period of seven months. In light of the proof ad-

duced at. trial, and the complicated nature of the case we -

hold the tia was not prejudicial to defendants.

VI— SPEEDY TRIAL

Defendant also asserts he ‘was denied the right to a

speedy trial, alleging. he was indicted on December 8, 1967,

and was not tried until August 18, 1969, some twenty

ed)

‘months Titer. In Hodges v. United States, 408 F.2d 543,

| ~ ,

8 NARA gen MGR MR Hind NNO Og AeA:

A259.

549 (8th Cir. 1969), this oni quoting -_ United States

v. Ewell, 383 U.S. 116 (1966), stated:

“{1) ‘We cannot agree that the passage of 19

months between the, original arrests and the hearings _

‘on the later indictments itself. dernéfistrates/a viola-,

tion of the Sixth Amendment’s guarantee of a speedy

trial.’ (2) The guarantee ‘is an ‘important safeguard

to trial, to minimize anxiety and concern accompany-

ing public accusation and to limit the’ possibilities that

long. delay will impair the ability of an accused to

defend himself.’ (3) However; ‘the ordinary proce-

dures for criminal prosecution are designed to move

- ata deliberate pace. A requirement of unreasonable

- speed would have a deleterious effect both upon the _£&

rights. of the accused and upon the ability of society to .

‘protect itself.” (4) ‘Then, quoting from earlierscases _ E

' "The. right of a speedy trial is necessarily relative. It - c

_ is consistent ‘with delays and depends upon circum- -

stances. It secures rights to a defendant. It does not

preclude the rights of public justice.’ ‘Whether delay

in completing a prosecution * * * amounts to an un-

constitutional deprivation of rights depends upon’ the

circumstances. * * * The delay must not be purposeful

or oppressive.’ ‘T]he essential ingredient is —

? expedition and not mere speed.’ ”

PLEO RLS

‘

See also, Whitlock v.- United States, 429 F.2d 942, 945- 46

(18 Cir. 1970). anes ‘

The passage of some twenty months in this dust. does: ;

not, in and of itself, demonstrate a denial of the right to ar ,

a speedy trial. The first safeguard, the prevention of un-

' due harasgment and incarceration prior to trial, and the

second, Se to minimize anxiety and concern ac-

companying public accusation, have not been raised by this

record. The third safeguard, limiting the possibilities that

a long delay will prejudice the accused’s ability to defend

himself, has no merit. No mention is made. of the evidence

aa rue

bre “: A26-

lost by the lapse of time. The death of one of the proposed

‘defense witnesses has already been discussed. The allega-

tion that defendant was deprived of Matthews’ testimony.

deserves little comment in light of the fact that his deposi-

tion was secured before trial. Nowhere is an offer made

. as to the contents of that deposition. -The record indicates

that the prosecution requested an earlier trial, and that ‘the

only delay occasioned by the prosecution resulted from’ an

injury to the prosecuting attorney. Deferffant filed numer-

‘ous motions during this time period, and his only motion

to dismiss for lack of a speedy trial was filed four days

before the trial began. The trial took place within the-

pertinent statutory time limit. Under. all the circum-—

stances, we hold there was no unreasonable delay which

deprived defendant of his constitutional rights.

. VII— THE COURT'S CHARGE

Defendant contends the court erred in its charge to the -

jury in twa significant respects. First, defendant points

to the statements by the court referring to the inci@ent as

a robbery of post offices or banks when the evidence. estab- >

lished a post office burglary. Second, the court allegedly .

coercéd a verdict by implying in its main charge that a

verdict of acquittal or conviction must be returned by the

jury. hia | or 3

(1) The court referred several times in its final

charge to the offense. of a “robbery”, ‘and since the evidence

establishes a burglary, defendant contends there was a

fatal error. This contention is without merit. It is axio-

matic that instructions must be read as a whole, and words

or phrases cannot be read in isolation. Goings v. United -

States, 393 F.2d 884, 885 (8th Cir. 1968), cert. denied, 393

~ U.S. 883 (1968). The indictment was read to the jury,

which in Count I includes-a detailed description of the

_overt acts target. The evidence adduced at trial clearly

OS Scan"

Ce OAT A

A27

established a\ burglary. _ The. jury was fully aware of the

charges against the defendant. The court carefully out-

lined each offense for them, ‘and corrected itself when the-

error was brought :to its attention. This court has pre- -

viously been confronted with analogous contentions and

has rejected them. See e.g., Theriault v. United States,

401 F.2d 79 (8th Cir. 1968), cert. denied, 393 U.S. 1100.

(1968); Beatrice Foods Co. v. United States, 312 F.2d 29.

(8th Cir. 1963), cert. denied, 373 U.S. 904 (1963). We hold

there was no error. =

(2) Defendant next-contends that the district court,

in effect, coerced a verdict by advising the jury in its main

charge that unanimity was required, and explaining the

effect of a guilty verdict and a not guilty verdict, leaving.

- untouched the third alternative of-a hung jury. Defendant

urges this court to adopt the rationale of United States v.

Fioravanti, 412 F.2d 407, 420 (3rd Cir. 1969), cert. denied,

396 U.S. 837 (1969), where the Court of Appeals for the

Third Circuit announced the Allen charge would no longer

be accepted.'!. We decline to do so.

11. ‘The charge delivered in the court’s main instruction in

Fioravanti, and objected to by the Court of Appeals for the Third.

Circuit is markedly different from the charge given in thjs case:

“Now, members of the ‘jury, I ‘respectfully tell you it.

is necessary for the purpose of finding a verdict that all.

of you agree upon that verdict. In other words, when I say

- the verdict has tq be unanimous, it has to be twelve to

‘nothing. a ; Pos ce

“It is your duty, however, to agree, if possible. When

conferring with each other, you should pay a proper respect

to each other’s opinions and examine such differences in a

spirit of fairness and.candor. . This. does not méan any mem-

ber of the jury shall yield his well-grounded opinions or -

. Violate ‘his oath. It does mean he shalJ,not stand out in an

unruly and obstinate way through mere stubbornness. Mem-

bers of the jury should always closely scrutinize the facts~

from their own standpoint and the viewpoint also of the

fellow-members of the jury. | é

“While undoubted]y the verdict of a jury should rep-

resent. the opinion’ of each individual juror, it by no means

aoe opinions may not be changed by conferences in the

T a

es | :

j ‘ A28 x Pg a. :

This court in Hodges v. United States, 408 F.2d 543. .

| (8th Cir. 1969), considered the question of whether the

f) Allen charge was still valid. In answering: that ‘question

in the —— —— (now Mr. —, Blackmun,

stated: :

itself must be held today, some 70 years

- decision, to be coercive, prejudicial, and

| “We initially tabunt the claim that the Allen cine oe

tional. The Supreme Court has not yet segh fit to dis-

avow it and, so long as it stands appro in decided

Supreme Court cases, we are = to yésolve that issue

contrarily.- *

“Attack upon charges of ~ Allen typé® however,

.are increasingly frequent. This court has encountered

_‘them.- In a numbe er of cases the challenged instruc-

tion has been upheld. Examples are Bowen v. United

States, 153 F.2d 747, 751 (8 Cir. 1946), cert. denied,

328 U.S. 835, 66 S.Ct. 980, 90 L.Ed. 1611; Costello v.

United States, 255 F.2d 389, 398 (8 Cir. ,1958), cert.

denied, 358 U.S: 830, 79 S.Ct: 51,-3 L.Ed.2d 69;. Janko

-y. United States; 281 F.2d 156, 167-168, and cases cited

inn. 17 (8 Cir. 1960), rev’d onother grounds, 366 U.S.

716, 81 S.Ct. 1662, 6 L.Ed.2d 846; Holdridge v. United

States, 282 F.2d 302, 311 (8 Cir. 1960).” Id. at 552. Bees

In Hodges, the court was confronted with a supplemental

charge: to the jury.” In the instant case, the language

jury-room. The very object of a jury system is to secure

unity by a comparison of these views.- The jury should

. listen with deference to arguments of fellow-jurors and ‘dis-

trust of his own judgment if he finds a large majority of*the

jury taking a different view of the case from that what he

does, himself.” 412 F.2d 414-15 (emphasis in original).

ey Compare this instruction with the one given in the instant case,

* -note 13, infra. ’ =

12. The charge given in satus: is set out at 408 F.2d at

553-54, n. 4.

A29

complained of was given in the court's main charge." The

American Bar Asséciation has approved such a procedure:

. “For thgsreasons set forth in the Commentary to

section 5.4(b), infra, the Advisory Committee has con-

cluded that the instruction commonly referred to as

the Allen Charge or ‘dynamite charge’ should not be

‘13. “Now, mémbers of the jury, it requires all twelve of

‘\. your number agreeing to return a verdict. . . . “You should

f aaa every.possible effort t6 arrive at a verdict of some

kind, whatever you decide it to be. You should consider the

evidence, consider the opinions of each other. It is never |

quite possible: to attain perfection, and it is the duty of a

jury—I have never asked any juror and I never shall, to

sigr? a verdict that is against his or-her conscience. But I do

say to you that it is the duty of the jurors to attempt to

arrive at a verdict, if it is possible to do so, with understand-

ing among each other. It is the only, way we have of trying

cases of -this -kind. If one jury can not decide. it, another

jury of the same kind from the same area will have to be

called to pass on. the case, so every possible effort consistent

with’ your conscience and consistent with your oath shoul

be made to arrive at a verdict.” ' . 5 Say

In discussing a similar aspect of the charge in Hodges,’ the

court observed>at 554: <

“Of course, one may argue that, technically, it is not.

correct for the court to say that ‘the case must sometime be

decided’ or that ‘sonie other jury will have to be brought

back’, see United States v. Harris, supra, 391 F.2d at 355,

rather than ‘disposed of sometime’, see W. Mathes and E.

Devitt, Federal Jury Practice and Instructions, § 15.16

(1965). Further, a reference to the expense of trial is not

everywhere approved. See United States v. Smith, 303 F.2d

341, 343 (4 Cir. 1962). We feel, however, that the references

of this kind which were employed here are, realistically, of

small consequence. It is obvious to a jury that a lawsuit is

costly and time consuming. It’ is also obvious to a jury that,

if it is unable to arrive at a verdict, the case does hot fade

away, but remains for decisions or other disposition. Judge

most pertinently observed:

‘The statement that some other ‘Jury would have to

decide the casé if this.one could not was accurate as a

generality and; in-any event, could have had no coercive

’ impact on the jury. If they already knew what -would

likely happen if they deadlocked, ¥ was surplusage; if they

did not know, this information, fkr from being coercive,

- would have had the effect of. reducing the pressure on

- them to reach a verdict.’ ” aes

. Burger in Fulwood v. United States, supra, 365°F.2d at 963, ;

Qian. unre Pinan ae t

A30

given to a jury which has been unable to agree after

some deliberations. Nonetheless, it is most appropriate

for the court .to instruc jury initially.as to the

nature of its duties in the course of deliberations, and

section 5.4(a) so provides. The standard does not re-

quire the use of any particular language, but does

identify the five points on which the Jury might | meee

erly be advised.

“Illustrative of an instruction consistent with sec-

tion 5.4(a) is Instruction 8.11 6f Jury Instructions and

Forms for Federal Criminal Cases, 27 F.R.D. 39, 97-98

(1961), which reads:

The verdict must represent the considered judg-.

ment of each juror, In order to return a verdict, it is .

' necessary that each juror agree thereto* Your verdict

must be unanimous. ‘

It is your duty, as jurors, to consult with. one an-

other and to deliberate. wi ith a view to reaching an

agreement, if you can do so without violence, to: in- |

dividual judgment. Each of you must decide the case

_ for yourself, but do so only after an impartial con-

sideration of the evidence with your-fellow jurors. In

_ the course of your deliberations’ do not hésitate to re-

examine your own views and change your opinign if

convinced it‘is erroneous. But do not surrender your

’ honest-cortviction as to the weight or effect of evidence

solely because of the opinion of your fellow jurors, or

for the mere purpose of returning a verdict. |

You are not partisans. You are judges—judges of

the facts. Your sole interest is to ascertain thé truth

from the evidence in the case.

Because the instruction contemplated in section °

5.4(a) is to be given prior to the time the jury has re-

tired (and thus prior to the time a minority has be@n

established to exist), and because it makes no “reference

to the minority but instead charges all jurors to con-

sult with one another, the proposed instruction does *

not have the coercive impact of the Allen charge. See

* A3l

Burroughs v. United States, 365 F.2d 431 (10th Cir. |

~ 1966), recommending the practice provided for in sec-

tion 5.4(a}.” Advisory Committee on the Criminal

. Trial, ABA Project on Minimum Standards for Crim-

inal Justice, Standards Relating’ to Trial by Jury— -

Tentative Draft at 146-47 (1968).

The Court of Appeals for the Tenth Cireuit has also

suggested that the substance.of the charge be included in

the original instructions.. United States v. Wynn, 415 F.2d -

‘2135, 137 (10th Cir. 1969) ;cert. denied, 397 U.S. 994 (1970).

We conclude that such a procedure is appropriate and not

prejudicial to the rights of the defendant. Indeed, ‘the

charge given in this case in the main instruction was much

less coercive than that given and approved in Hodges. The

objection to such a charge raised in Fioravanti, that a court

. should not direct a juror to distrust his own judgment and

reexamine his opinien in light of the majority opinion of the

other jurors is not applicable here because Judge Duncan

did not so instruct. The charge given is very similar to that

approved by the court in Fioravanti and by the American

Bar Association. We hold there was no error.

VIlI— DENIAL OF PSYCHIATRIC.

; EXAMINATION |

;

Defendant’s final contention is that the Sisiieas court

erred in denying his. pretrial motion for psychiatric ex-—

~ amination of the government’s chief witness, Knight, on v4 :

ground that there was and is some question as to Knig

competency. Defendant points specifically ‘to evidence in- -

dicating Knight was addicted to narcotic drugs,. and had -’

. been involved in numerous criminal activities during his

‘life.

Commies’ of a witness is, as a general rule, a inthe

to be decided in the sound discretion of ‘the trial judge.

United States v. Hicks, 389 F.2d 49 (3rd Cir, 1968), cert.

Saat SHEL cele ee ATER? hee cae

REE ERIE IRF 149

A32

denied, 391 U.S. 970 (1968), and cases oe This court

will not interfere unless there has been an abuse of that.

- discretion. We have examined Knight’s testimony, and it

demonstrates that he was responsive, clear, and intelligent

in his answers. . In addition, the court properly cautioned

the jury as to Knight? s participation in the conspiracy and

burglary.’ We hold there was ho error.

® IX— CONCLUSION

After careful examination of ‘this detailed record, and

analysis of the arguments presented on behalf of defend-

ant, we conclude there was no error. The judgment of

conviction is affirmed. : |

A true copy.

Attest: Beet

Clerk, U: S. Court of Appeals, Eighth Circuit.

14. ‘‘Now, there is also in this case an accomplice. The

Government’s principal witness in this case was Knight.

Knight was a defendant.in this case but he has not—has

entered-a plea of guilty, as the record shows, and he is not

here for trial. An accomplice is one who unites with another

‘person or persons in the commission of a crime voluntarily

and with common consent. The testimony of an accomplice

is competent evidence and the credibility of such 4n accom-

plice is for the jury to pass upon as they pass upon the

credibility of any other witness. The testimony of an-ac-

complice must be received with great caution, but- if the

testimony carries conviction and the jury are convinced of

its truth, they should give it the same weight as would be

given to the testimony of a witness who is in no respect

implicated in the offense. While it is a rule of law that a

. person accused of a crime may be convicted upon the uncor-

roborated testimony of an accomplice, still a jury should”

always act upon such testimony with great care:and caution

and subject it to careful examination in ‘light of all the other

evidence in the case; and the jury ought not to convict upon

such testimony alone unless after a careful examination of

such testimony, they are satisfied beyond a —" doubt

of its trutt and that they can seed rend upon it.”

* au the Sugeest Court af the ited States e

OCTOBER TERM, 1971.

No. 70-345

_ BILL MILES SKILLMAN, PETITIONER

Vv.

UNITED ‘STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE EIGHTH CIRCUIT

: | e

BRIEF FOR THE UNITED STATES IN OPPOSITION

« - /

OPINION BELOW. 3

- The adinien of the ion of — (Pet APP. A)

‘is not yet sci

yal

aa —

eit JURISDICTION -

‘The judgment of .the court of appeals was entered -

on April 30, 1971. Mr..Justice Blackmun extended ~

the time for filing a petition for a writ of certiorari

to June 29, 1971, and the petition was filed on June

(1)

_ & 2

28, 1971. The jurisdiction of this Court is invoked

under 28 U.S.C, 1254(1).

QUESTIONS PRESENTED

:1L Whether a tape recording of a. sie con-

versation between petitioner and a government wit-

ness, who consented , to the recording, was properly .

admitted on rebuttal for impeachment purposes.

2. Whether there was sufficient evidence of a con-.

Pa separate from thé substantive offense.

3. Whether the trial court properly refused to

compel a psychiatric examination of a government —

witness. |

4, Whether the trial judge’ s charge to sae jury

was coercive. ”

STATEMENT

_After a jury trial in the United States District

Court for the Western District of Missouri, petitioner

was convicted on two counts of receiving stolen U.S.

pay sevee and one count of conspiring to receive

stol S. postage stamps in violation of 18, U.S. C.

641. He was sentenced to concurrent sentences of

five years’ imprisonment on the conspiracy count and

seven years’ imprisonment on each of the substantive

counts. The: court of appeals affirmed in a compre-

hensive opinion (Pet. App. A).

The evidence, which is fully summarized in the

court of appeals opinion (Pet. App. A2-A5),, showed

that Knight and Lewis, _after burglarizing a Post |

Office in Atlanta, Giorgi, communicated with Bob

MattheWs in Omaha, Nebraska, to discuss ‘the sale

_ of the stolen postage stamps, which they estimated. _

to be worth $25,000 (A 284-298). Following the ~

‘instructions of Matthews, the two. men proceeded

- with their loot to Kansas City, Missouri, and, then:

to Chicago, where $3500 worth o& fhe stamps were:

disposed: of (A 297-298, 301-306). ‘On their return

_' to Kansas City they again telephoned Matthews in

Omaha and were instructed to call a number i in Kan-—

sas City (A 307-309). They-talked with. petitioner

at the Kansas City number and arranged a meeting, .

at petitioner’s Office (A 309-310).. Petitionér bought — . a

the stamps for 20° percent of face value, paying half

the money at that time (A 811- 312). After the

‘stamps had been -deliyered, Knight-teturned: for the

second half of the payment. Jt was agreed that: as to

any future sale of stamps. Knight would call peti- |

tioner to make advance arrangements (A 318-314, : 2

319-322). . |

After Knight, Lewis, and a, third : man bcaidlnniaal Ne

another post office at Florence, Alabama, less than

two weeks later, they again proceded to Kansas City

on instructiong, from Matthews (A 341-348), and .

' sold the stolen | ‘postage stamps to petitioner at his:

office (A 350, 356-361). :

‘At the trial, Knight testified against petitioner.

On direct examination petitioner denied any contact

with Knight on the specific dates of the transactions

(A 567, 569-571, 574-576). On cross-examination

petitioner denied any contact with Knight and said —

"Ae TRE AA PNT SS aga

Socal ate tone

Cy RACH SEH «

[= refers to the record appendix in the courtof appeals,

smampopy of which is being lodged with the Clerk of this Coart.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.