*1 troubles The severe table. undoubtedly produced lot strike employees form of freeloaders nego- happy the unions to have who were for them without increased benefits

tiate There is paying dues. union

themselves employer suggest nothing union a new

would have welcomed petitioners, around was, employer long; with- petitioners’ concern visible sign status, ready minority possible

agreement sev- reached terms bargaining, provided that months of eral deriving their lawsuits

the unions settled

from the strike. certainly thus, were,

The conditions with- for a use of the threat recognition drawing bargaining majori- objective unrelated

achieve

ty minority The conclusion status. circum- the Board from these

drawn inferential a zone

stances is within would, reasonableness, all

respect, let it alone. TURNER, Appellant,

Charles V. America,

UNITED STATES Appellee.

No. 21443. Appeals

United States Court District of Circuit. Columbia

Argued Dec.

Decided June Rehearing Denied

Petition July *2 dire, conducted “a voir outside the

presence jury, concerning all surrounding circumstances testimony.” deter Thus a McFarland’s could made as to mination in whether McFarland had been coerced testimony testifying and his before grand produced could have been But ascertain his motivation. produc had no motion for such tion, credibility had and McFarland’s thoroughly tested at trial.2 judge cautioned as to its con testimony perjurer, sideration of the of a Clearly and informer. Washington, Garber, Mr. J. William lay province its within the C., for D. assessment of each of Jr., Clarke, Special Asst. Mr. David A. weight, as well as of the witnesses Atty., Messrs. David whom U. S. any, accorded to to be Bress, Atty., time U. at S. G. of McFarland.3 Q. filed, Nebeker, Asst. Frank brief was Atty., the brief was the time U. S. II filed, Sullivan, Asst. S. and Harold J. U. verdict, support of a After and in brief, appellee. Atty., on for were trial, motion for counsel for Judge, FAHY, Circuit Before Senior Tyler juror, one Birek- asserted that a * McGOWAN, Cir DANAHER head, informed him of comments two Judges. cuit jurors indicating Then women bias. counsel, joining motion, in that Turner’s Judge: DANAHER, Circuit Tyler’s attorney, stenographer a court were Four men on December and both were convicted accused robbery. This in a involved hearing judge as the conducted a guilty.1 At Tyler were found and one Birckhead called as chambers. gunpoint $3,300 taken witness. employees Food whom Giant Store trial, He testified that after forcibly up herded rounded robbers Tyler’s attorney approached him and Turner meat Both into a box. questioned Birckhead told Then him. Tyler employees as identified were questioner that he had overheard fur- who testified well as McFarland in a a woman she had read planning to the ther in detail as so,” newspaper “so and some robbery. execution thing “bad that “he” was a effect one.” hearing he de Birck- what As the went forward Turner advances “admittedly juror, identify novel head the woman could scribes on brief judge paper he did not know she contention” what * 2. Hoffa v. United Judge Senior 385 U.S. Danalier became Cir- Circuit (1966) ; Judge January 23, L.Ed.2d cuit U.S.App. Laughlin v. United Flynn guilty, One was found not 27, 33, D.C. 385 F.2d McFarland, accomplice, testified denied, 1003, 88 S.Ct. cert. June, the trial the Government 20 L.Ed.2d By that McFarland bad been time imprisoned another Bush v. United conviction on charge. robbery port inquiry, referred to mind, or she had these accused witness, robbery— or some tried for a defendant to be armed entering. breaking some son.4 appraisal Birckhead’s must have seemed Each four women appropriate to the trial knowledge conversa- such denied presided pretrial *3 over voir dire vaguely had at- Birckhead so tion as hearing. post-trial as had well the He to one of them. tributed in conducted full trial and thus the was time, now, been for the first It has weight position to assess to the be ac- placed argued judge have circumstance, corded to the there jurors respective oath and under ample was basis the view arranged a confrontation be- should have judge espouse. to decided women Birckhead and the four tween hindsight, Of a of it course as matter might possible ex- have been bias might Birckhead better posed. literally responded to have the first objec- Neither defense counsel voiced might place that counsel himself decide procedure adopted tion to reject accept whether to or as Birckhead ques- judge. then a Neither raised juror. remote When such details be- taking of testi- as to the unsworn tion known, post-trial, judge came mony. lack of Neither mentioned the deciding grant whether or not to to now said have confrontation which pending to motion was into bound take pursued, indeed the infected the course (1) pur- account: whether Birckhead Tyler’s counsel ex- record shows that posely had to failed answer deliberate- plained return to that Birckhead had ly facts; so, had concealed the if accordingly to excused work he was (2) emerged there had testimony. of his the conclusion imputation of failure such bias respecting In this state record prejudice require as to trial.7 new time, first claims advanced such denied, Here motion and im- was judge’s find no in the trial we error plicit ruling finding was a that no for a trial. denial motion significance was to be attached to judge circumstance. Where the trial Ill clearly possessed grasp Denying for a new the motion background, whole we find un- ourselves n.o.v., trial, judge observed say upon able to review home, reported5 parents’ his Birckhead such an abuse re- discretion as to many years earlier, entered quire reversal.8 nothing had taken.6 “He made of voir dire no disclosure time IV think this inci did relevant,” dent was wrote. Finally, appellant here contends that prosecutor’s questions, context of in rebuttal In the exact correctly interpreted “was the im- outside the Birckhead evidence and was cal- very Appellant bis testi- 4. on brief describes friends [sic] close who have mony “equivocal.” been robbed? queried hearing Apparently Prospective Now, spective been robbed. prospective I’d like to know ^[*] in chambers. one of defense counsel: ^[*] the incident occurred jury panel panel members ^[*] voir members close have dire :¡: relatives yourself ^[*] pro- s Co., Id.; Ryan ub nom. Duncan v. United cf. U.S.App.D.C. Somerville F.2d 779 S.Ct. Capital L.Ed. cert. denied Transit being appeal passions prejudiced. his culated We are prejudices jury.” McFarland suaded that the so transcended incident legitimate all defense under cross examination the bounds require rec- re- Actually, counsel had admitted his criminal reversal. following appear unnecessary ord, his current incarceration marks more than having regrettable robbery, acted when conviction his Government’s criminals, entirety against retrospect. informant in its is viewed in as an participation time, experience shows, his From as an time our might “over-prove” be ex- crime. As his instant will arguments challenging case, zeal, pected, and even his assume the defense veracity speak, witness, his made the most of venal- of a so to his role beyond reject go argument, ity undertake in as the was asked testimony. outline of the facts the inferences *4 wants a from them. he draw closing prosecutor endeavored The in pointed have out that “Absolute We pointed to rehabilitate witness perfection,” fairness is a counsel of occasion come that criminals on very least, prosecutor at a for the forward and become witnesses highest practicable hold himself to the argument prosecution. recalled His Here, of standard fairness.10 our ad- testimony how the from McFarland’s verse criticism does not amount robbery planned, how issue at had been conclusion that conviction Turner’s advance, alibis had fabricated degree any significant turned routes had followed what the robbers argument.11 closing the Government’s of the and details as their division made,12 prompt objection Had spoils. could Such judge then we have no doubt the trial by only partici of the come one have that such would instructed argument pants, had it. as rebuttal references to the record matters outside that The then observed no in the determina- were have Capote’s had read some guilt tion of the accused innocence of they Blood,” know “In Cold book would in this case. depicted crime found so that charge accomplices came In one of the the course of his trial lution when Again vein,9 like instructed the thus: and in forward. prosecutor recalled that the whereabouts Now, gentlemen, ladies and fugitive Dillinger criminal arguments of statements and counsel one “with disclosed authorities They only in- are are evidence. criminal ranks.” understanding you tended to assist evidence and the here have us contentions The would made, inevitably parties. led to Reference was that such references 30; Singer v. Fed.R.Crim.P. Unit 9. There was no that evidence Cf. 783, States, Capote book, 380 ed U.S. had read the or that knowledge history. (1965) ; 630 Villaroman v. 13 L.Ed.2d States, U.S.App.D.C. 240, reference, 87 184 For United United see Austin v. States, U.S.App.D.C. 180, 188, F.2d 261 382 127 129, id., Not until the close of the U.S. F.2d App.D.C. Tyler’s incident coun- noticed. Then at 149 200 n. 382 F.2d motion was sel moved a mistrial. The n. 10. obviously As it seemed denied. States, 10. McFarland v. 80 U.S. United judge, may appeared so it have App.D.C. F.2d objection (who Turner’s counsel voiced no any time) lacked the references significance. Keeble v. United other than There illustrative (8 1965) ; Fogarty Cir. no effort here Unit to link the accused (5 ed Cir. with the characters mentioned. 1959); F. Padron (5 1958). 2d Cir. Perhaps you instance, Dis- some of read Truman book, Capote’s He Attorney Blood. book Cold to a certain trict thirty years probably made a million dollars writ- some character certain Dillinger. ing story. men- ago, That was one purpose of il- solely for the tioned lustrating you you story If read know informers occasion vicious, crime horrendous would associates come from former not have for an ac- been solved but charged crime, that persons with complice coming forward, someone nothing more. something, who heard one from the coming up. criminal crime ranks weighed care we have Just is solved. fully impact here allusions you go account into back a farther have taken little bit challenged, we judge.13 history, early His 30’s, into back assessment rejected. Dillinger- lightly judgment be John you is not cannot one —there in all in this case who doesn’t fact remember the The evidence respects strong Dillinger. illustra prosecutor can proffered tions country plagued After no to more than amounted long time, fugitive, was a the Bureau judge. “do recognized Informers Investigation him, trying to find testify to crim come forward” up bank, he robbed another he is locked *5 part former on the of their inal conduct again, escapes again, he he kills a of common That is a matter associates. policeman Chicago. city knowledge.14 indeed The references Dillinger can’t found. How But be nothing illustrative, “that you Dillinger? Only find put more,” it. someone from the criminal within Affirmed. coming forward, ranks notorious lady in red. Judge (dis- FAHY, Senior Circuit you forward, She came will senting) : partner recall she told the testimony very degree To a substantial policeman who had been killed where convicting by jury in considered night given would be on a given by accomplice. appellant was and as he came of the theater and testifying This witness at the time gun, moved his was killed. he serving actually prison sentence was surely Had he not other killed been robbery. Moreover, cross-' on bank policemen would have killed and been he that he made examination admitted would banks have been robbed. argu- through living In robberies. crimes, just today, But not not the ing ac- to defense the case 1, 1965, crime of December but crimes credibility cordingly of this attacked the throughout history large are solved in responding this attack to witness. by cooperation measure of some attorney prosecuting pointed to criminals who come forward. obtaining general evi- difficulties in say: crime, on to and went dence arguments At conclusion of get objection by it from ap- You within. was made counsel for Cupp, 731, supra States, 2, Frazier v. 394 89 U.S. Hoffa v. United note 1420, 311, 418, 22 S.Ct. L.Ed.2d 684 385 87 U.S. S.Ct. at L. 17 374, quoting Judge Ed.2d com Hand’s example stat- as a recent tlie facts See Dennis, ment in United States v. F. 183 by ed Mr. Justice in Foster Fortas 201, (2 1950). 2d Cir. 1127, California, 440, U.S. 89 S.Ct. (April 1969). 1, Clearly presents “Courts L.Ed.2d the instant none Berger use of informers have countenanced of the characteristics v. United immemorial,” usually 78, as a mat- from time and see necessity, observed ter of the Court L.Ed. 1314 from former form set occasion informers come pellant’s eodefendant crime; persons margin, pointing to the associates of accused forth accomplice, this it was whether prejudice to all defendants.1 record, should be basis of his criminal representative This right jury had a course the believed. Of undoubtedly preju- government him, to believe because proper of course If diced Dillinger episode crimes or the described improper, prejudice. must stand Capote. Mr. my opinion. I required in reversal prosecutor, in his It seems to me the improper. highly argument was think the weakness of the testi dilemma over the persuade attempt a deliberate It was mony relying upon, he was due accept this witness’ very grave having criminal witness notorious criminals certain highest record, to “the did not adhere brought justice, criminal or their practical of fairness” the court standard through of in- ended, aid careers opinion approves, quoting from the references did formers. These McFarland v. slightest relevance to the 594; this who testified Berger States, 295 see v. United U.S. case. 1314; Cross 79 L.Ed. S.Ct. court advised U.S.App.D.C. v. United solely il- to was referred came on occasion informers lustrate that prejudice3 The test of has firm- charg- persons from former associates ly Supreme established Court: disagree respectfully ed with crime. purpose.2 There this its sole say, But one cannot with fair as- refer for the no need surance, pondering hap- all that Dillinger and other notorious pened stripping the erroneous without illustration, cases to furnish such *6 judg- whole, action from the accomplice illustrative. himself was this by swayed substantially ment was not press upon the purpose was to main The error, impossible to conclude it is wholly un- jury extraneous instances rights not af- substantial so as to the case on trial related merely inquiry fected. The cannot be accept the suade the enough support whether there was accomplice of the service of this result, phase apart from the af- government informers rendered the rather, fected error. It is even More- mentioned. in the other instances so, error itself sub- over, problem not whether so, or if one stantial influence. * * - respectfully may recall, prosecu- I [Counsel]: I [the The court: As words, Honor to withdraw move Your had to tor’s] those two references upon stage solely spectacle mistrial and declare a at this with the of one Government, coming rebuttal is involved with criminals forward the giving to a included two references which state’s evidence. against designed ory deny your this to inflame I will motion. prejudice in fact and did defendants agree I to this was its Even were defendant. this purpose sole I would still consider Truman Ca- his reference to One was prejudicial improper, references book, pote’s in this which had no their effect. important all, more but even trial at opinion court The Dillinger his reference to John states: case Dillinger played in criminal role that here would have us The likened that role to these activities inevitably such references led defendants. three being prejudiced. to his We are persuaded highly tran- inflam- the incident I submit this was legitimate argu- matory. designed bounds of be such and scended the It was require prejudice as to reversal. defendants. ment in fact these did grave doubt, the conviction left stand.

cannot States, 328 U.S. United Kotteakos v. 90 L.Ed. crime,

Dillinger’s career of Blood, had in In Cold

crimes described case”

“no connection inferable Handford

against See this 298-299 United grave “left (5th Cir.). And I am doubt” —Kotteakos prosecution supra, reliance —that instances unconnected those upon the ver influence substantial no against appellant, de dict. The questioned identifica

pending upon a Compare tion, McFarland was close. Indeed, pre supra. Cross, both unable

vious trial agree upon a conviction. was crucial gained credence because not have upon the

prosecution’s reliance Blood cases. Cold respectfully dissent. Henry LATNEY, Sea Able-bodied

James Marine, man, United States Merchant

Appellant, Secretary IGNATIUS,

Paul R. Navy, al., Appellees. et

No. 21681. Appeals States Court Mr. Arthur John Keeffe of the bar Circuit. Columbia District Appeals York, the Court pro of New Argued vice, by special June court, hac leave Rothwell, Jr., Mr. Thomas A. New York 30, 1969. Decided June City, Green, Asst. U. S. Mr. Thomas C. Atty., G. David with whom Messrs. Bress, Atty., at the time brief U. S. Q. filed, Nebeker, Asst. U. S. Frank filed, Atty., at time the brief Altshuler, Atty., and Oscar Asst. U. S. brief, appellees.