# Appendix — Skillman v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385605_1278%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1971 - **Citation:** 404 U.S. 833 ## Text Al 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, A2 (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. ? . e. °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 on at nd A6 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 te . ' 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 s é = 4 = ¥ 4 % * id a FE : ci EA 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 ~ a 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 » | 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& eo ——1-8- oe M Riga MTN s as I A ON Oo ado a 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 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 = §. = or > ot a a aera CS ne Ke ¥ . 7) RNCNRSSOMRDOR SCE Ae cS eRe vid pcm oeitde aN NAT A Meee! ¢ we 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 | Ww “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 s 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..- : Cd | (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’ hy 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. as 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, +) ms \- \ > 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). é 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. i] ' URN mer a orate oratorio orem en stomp emt pt et iw aiathcummaciama la ema a 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) oe ‘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 prevent undue, and oppressive incarceration prior © 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 ~ j 4 .* - 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 A OS Scan" of 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: : ar 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 ee 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.” ta sf * au the Sugeest Court af the ited States e OCTOBER TERM, 1971. No. 70-345 _ BILL MILES SKILLMAN, PETITIONER Vv. UNITED ‘STATES OF AMERICA a ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT ta : | 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 — nl 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. <7 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385605_1278%3A2. Public record. Not legal advice.