Bernard Smith v. United States
332 F.2d 720
D.C. Cir.
1964
Check Treatment

*1 merely due in the manner which he application in the filled form while his though pending. was still case Even answer, he should have a fuller

the whole course of out- events above lined indicates cause of his loss copilot position appear of his was his arguing court, case, in ance right wear, uniform he had a

resulting pressure exerted Eastern by personnel of the Government. petitioner has in fact received

greater punishment than the Board and represented the Administrator consequence of Board’s His order. being

punishment by has been increased deprived position copilot, posi- of a tion he was hold entitled to notwith-

standing order. I would remand the case reconsid- by respondents fairly

eration of what petitioner’s should be done view of rec- whole, including

ord as a conduct during copilot employment his recent

Eastern. SMITH, Appellant,

Bernard America,

UNITED STATES of Appellee. No. 17959. Morgan, Jr., Messrs. Jo V. and Gilbert Hahn, Jr., Washington, (both ap C.D. Appeals United States Court of pointed by court), with whom Mr. District of Columbia Circuit. Sandground, Washington, C, Mark D. Argued Dec. brief, appellant. was on the April 23, , H. Decided M r Willcox, . William Asst. U. S. Atty., with whom Messrs. David C. Ache- -^-tty., and Frank Nebeker son> and Blackwell, Attys., U. S. Asst. brief, appellee.

were on Fahy, McGowan, Before Danaher and Judges. Circuit Judge: DANAHER, Circuit appeal from a con- housebreaking rape, viction of we *2 721 showing prosecutor’s of that at the first trial he because testi- reversed closing argu- prejudicial derived, part fied his income was references at report least, a not in evidence. to medical from numbers.” ment in convic- A second trial also resulted transcript just The shows that before on both counts. tions got way according the first trial under during appellant’s testimony Appellant that now contends the trial trial, judge granted he abandoned his intended should his motion defense “going allegedly acquittal alibi and decided that he was for insub because up a complain set defense of consent.” In aid stantial corroboration of the position, appellant testimony. agree, his testified We do not ant’s that on paid ample each of two occasions he had we are was satisfied that evidence complaining might presented upon witness which the se- $25 cure properly her consent to find corroboration1 of the com relations with lawyers asked, testified, His plainant’s had how version of occurrences. he was able to have available out of $25 ruling Appellant also a attacks salary per $65 week. respect with which tended to evidence “Q. you What did credibility. tell them? impeach his He testified had at had trial making I “A. told I them was having to his with money, getting consented relations numbers. I was cross-examination, writing her. the Gov everything, numbers and produced appellant’s pretrial making ernment af money extra. prepared support fidavit his motion “Q. writing You were numbers subpoenas. the issuance of everything, what else besides 2 (b) spells requirements 17 out the doing the numbers were to make showing indigent which an defendant money? accordingly Appellant must make. had Making money any “A. kind of expected that he sworn “to establish way, money. make I was at the scene of the crime at “Q. Any way long kind of so the time it was committed” and that the it; right made is that ? sought evidence he was to his material right.” “A. That’s my defense it will “because establish 3 circumstances, alibi.” Under use such That without ob- purposes impeach jection; of the affidavit for perhaps as a matter of again permitted tactics, thought strength- ment the second the defense following this court’s decision on appellant’s ened the claim. appellant’s appeal.4 opinion That At the second trial the controlling here; may indeed, is we note great took the stand and testified in de- appeal that after the instant had been brought tail. It was out he had filed, appellant’s this court denied motion robbery been convicted of in the Dis- hearing very for a en banc as to this iss February 1952, 22, trict of Columbia on ue.5 imprisoned Lorton, put and was as he Finally, it, years, claims er for “five five months and seven- days.” following ror in the denial of his for a point motions teen At some argues preju release, appellant’s wife, mistrial. He that he was mother of ruling permitted diced complaining witness, went elsewhere y. States, U.S.App. States, 1. Walker v. United 96 4. Smith 114 United 148, 152, 154, 617, 613, (1962). 140, D.C. 223 F.2d 619 312 F.2d 867 (1955). 5. And see Tucker v. 2. Fed.R.Crim.P. 164, 168-169, 299, U.S. 14 S.Ct. 38 L.Ed. Appellant (1894); lied to admitted cf. Walder v. United attorneys 354, when he claimed to them 347 U.S. L.Ed. 74 S.Ct. the wanted estab- witnesses would lish his alibi. having paid claim liv- commenced to reside. stepdaugh- for intercourse with ing Jones. He $25 named a woman ter, asked: her one he left occasion testified *3 bring night to in of the the middle “Q. bed way, you By have other the witness, complaining and then food to the you income, ? haven’t paid he for which her had with relations “A. kind income? What trial, nothing. he testified As at the first “Q. you Oh, numbers, write don’t of two oc- paid on each had her he $25 you? engage with in intercourse to casions (Emphasis No, add- “A. sir.” ed.) crime, evening ac- the In before the cording appellant, taken he had to the objection by Upon judge counsel the defense automobile, stepdaughter to ride in question an- struck and the whisky procured and had for her had swer. night bought On the sandwich for her. subject Promising up to connect a roll of bills he handed her of the crime matter, with the then pillow. put After under the her, which she hand, transcript un of the first trial discovered she relations question references and answer dertook only Then, paid she had her $17. he testimony appellant’s the first to the began him with scream and threatened to mistrial for a trial. The defense moved complaint knife, and her fol- a butcher At confer denied. a bench which was his claim was the nature lowed. Such judge appel to the trial observed ence developed an out- into of “consent” attorneys: has “When someone lant’s cry $8, only he testi- lacked he because things of all the he convicted has been fied. of, to answer convicted it seems me been ing developed cross-examination, it sig question is no of numbers that he knew the judge explained at all.” The nificance in had small the house three children ruling was made earlier when pregnant and was then four months given “I did know had testi that he her husband who had left for overseas mony saying num did write Answering Navy. in the service bers.” questions, prosecutor’s ad- in mitted various convictions Caro- South to the Because of the deference due 1935,® Spartanburg in in for bur- lina colleague, we of our have care- views 1936; glary in the of Colum- fully District record this considered the entire 7 robbery bia in 1952. He testified that no sub- case.6 are convinced that We earning per rights week. He was he $65 were stantial this steep remarked, asked: it a judge then “Was little trial affected. As the Taylor pay Mrs. when supra, $25 is inconceivable that the “No, slightest had sexual relations with her?” more would have weight than the sir,” answered, explaining he he appellant’s to this admission Fur- had other from loans. “income” at the first he had testified to hav- ing engaged ther cross-examination on various de- numbers.”8 9 any “error, financial situation provides tails 52 de- saying irregularity borrow fect, led he tried to or variance which does rights from a co-worker to additional funds not affect substantial shall be dis- stepdaughter regarded.” whom identified his We are satisfied that even bearing recipient. say judge Still intended we to here had were boy young Boyer, 6. “I when I was a was convicted 80 United States v. Of. robbery.” 202, 203, 595, 596, 150 166 F.2d (1945). A.L.R. 209 750, 7. Kotteakos v. 328 United U.S. 66 90 L.Ed. S.Ct. Fed.R.Crim.P. erred, ruling only- petent, could and had no relevance case slight trial, effect.10 the fact that at the something earlier had said about Affirmed. “writing numbers” could not render it Judge (dissenting): FAHY, Circuit relevant material. The court denied mistrial, objection. but sustained the decision court when rephrased question, Counsel before, case was Smith here recalled the at the U.S.App.D.C. 140, F.2d leading trial, up, again, to the admissibility same tes- (1962), sustains the timony writing Objec- about numbers. impeaching purposes the affidavit *4 again tion was A Except made. bench confer- 17(b). of under followed, prosecutor ence at controlling which the prior for the of effect the said, impeaching “I am man this on question. his I decision would reconsider the testimony,” former which of course could As to the now admission the trial (1) impeachment not be done because ap- the under review of that evidence cannot be based on evidence which was engaged pellant “writing num- previous at a admitted which but bers,” correctly, quite the Government as properly objected was into trial as me, inferentially to it seems least con- incompetent; (2) as no there conviction however, contends, cedes error. It that “writing of numbers” so that evidence of harmless, pointing the evidence was out “writing competent numbers” not was merely credibility pertained it that impeaching at the evidence second trial urging appellant, and that his credi- any more than it was at the first. The bility challenged strongly by was so other point, however, trial court at this said jury evidence that could have the not testimony it did not know of the at the prejudiced. been writing numbers, trial about and guilt depended primarily The issue of added to one who had been con- jury whether the com- believed the appel- victed of other offenses often as plaining or the witness accused. The answering ques- lant it seemed that the credibility. crux was the case De- signifi- tion about numbers was no fendant had not “writ- been convicted of maintaining counsel, cance. Defense ing numbers,” and objection, pointed his out was there engaged doing competent so was not purpose except impeachment. no The purpose impeaching for the credi- prosecutor saying, acquiesced, “I want to bility. prosecution’s Yet in cross- the impeach explained him.” He following examination of the purpose impeachment. was Defense “By way, occurred: other the have pointed counsel out that it was an at- income, you ? haven’t A. kind of What tempt prove to of which crime defend- numbers, Oh, income? write convicted, ant had not been to which the you? No, sir, don’t A. I don’t.” De- prosecuting goes attorney responded, “It objected. counsel fense The court sus- credibility” to his char- and shows his objection tained the and re- struck the any acter —that he a nickel would make mark, question num- struck the about way objection could he make The one. prosecutor per- bers. The nevertheless lengthy was overruled. There followed sisted. He to recalled his tes- jury of tes- review before the timony regarding previous at the timony at the an- earlier trial his sources of if income and asked swers about numbers.” something say did not then about “writ- that, ing foregoing It will be seen from the numbers.” Defense counsel moved prosecuting mistrial, pointing attorney the was determined out bring impeach appellant. court had counsel to this evidence to warned not to use obviously this out. was incom- The deemed Since evidence ley U.S.App.D.C. 406, Campbell v. United (1949); Beas- F.2d 366 176 F.2d of. convincing importance in critical jury rather that the should be believed.

than the accused unwilling prose- hold I am wrong importance cutor was about jury might I evidence. attach jury in-

cannot conclude the which the Govern- fluenced evidence ment insisted should be admitted influencing jury

very purpose credibility, upon issue issue guilt. This evidence turned issue of just may factor the added been against appellant. that turned the scales quite prosecution anxious go should not without the case

it. incompe- such A conviction aided duly evidence, prejudicial ob- and tent jected to, on the sustained should not be supposition affect Washington did not the evidence Nicolaides, Mr. Richard H.

the result. (appointed by court), D. C. Rich- Messrs. V. T. Justis and whom W. for a new and remand I would reverse Washington, Bartl, C., were ard A. D. evidence. trial on the admissible brief, appellant. on the Messerman, S. Asst. U. Mr. A. Gerald Acheson, Atty. with whom Mr. David C. Atty., Ne- and Messrs. Frank U. S. Attys., Renne, Asst. and Paul U. beker S. appellee. brief, Messrs. on the were Caputy, Terry A. John and Victor W. appear- Attys., Asst. U. S. also entered appellee. ances FLETCHER, Appellant, Robert J. Pretty- Judge, Before Chief Bazelon, Judge, Senior Circuit and WASH- man, America, UNITED STATES Judge. INGTON, Circuit Appellee. No. 18223. Judge: PRETTYMAN, Circuit Senior Appeals Court United States indicted, tried Appellant Fletcher District of Columbia Circuit. robbery. charge and convicted on Argued March allegations and two were April Decided companions a cab and directed hailed address, driver to them to certain take they beat and that arrival there unconsciousness

driver almost into alleged robbers robbed One of juvenile He was named Anderson. apprehended referred to the Juvenile Court, National him to the sent Training He later School. testified be- grand relating jury, affair fore the