*1 690; page contrary, Pierson time. On the is controlled at it 928, by Commissioner, Cir., 113(a) (2) provides 253 F.2d Section v. gift by property acquired that if the 931. was 31, 1920, after December the basis shall stock, not taxpayers acquired The the be the it would in the hands same as through estate, the but under decedent’s preceding donor or the last owner the provisions De- instruments. trust of the gift. acquired whom it not was transfer the stock cedent’s death did not gift Appellants acquired stock at the taxpayer. the from estate to decedent’s trusts, the time the creation of event, merely happening of an It was through though even the medium it was picked by trust, which creator nature of a con a trust and taxpayers’ possibility of eliminated the tingent Shaugh remainder. Smith v. vesting. not in the stocks interests 176, 181, nessy, supra, 318 63 S.Ct. taxpayers eventu- Whatever interest not in error 545. Commissioner was The ally provi- acquired owned under the was fixing basis as the value sions the trusts. at the donor stock hands ignores argument Appellants’ also although gift made, when the time practical decedent facts that neither the gift ulti not until later that the “acquired” nor decedent’s estate ownership. mately ripened complete into trusts. stock after creation Helvering Campbell, supra, 313 U.S. v. reversionary of the dece- interests Helvering Reyn 798; 15, 22, 61 v. contingent dent of his estate were 428, 433-434, supra, olds, upon happening of events. certain happened, dece- never These events Court is District “acquired” estate never the stock dent’s affirmed. anybody. appellants’ further We find no merit in within the trusts fall
-contention that 113(a) (5) of the provisions Section Code, in it is a Internal Revenue having property “transfer pay life to income for
red in trust to the order direction or grantor, right reserved UNITED STATES of Matter of In the grantor prior death to to his at all times America, Petitioner, in The trusts herein trust.” revoke the 5755, Original. grantor No. reserve not volved did right dowe the trusts and to revoke Appeals Court contingent reversion not construe First Circuit. grantor as same be the favor Feb. Helvering Wood, to revoke. L.Ed. 60 S.Ct. reversion became if the 796. Even and terminated interest vested “at all effect trusts, it did death,” required prior
times statute. of the stock
Accordingly, the cost basis controlled hands appellants’ 113(a) (5) Internal Rev- Section given its rea- cannot Code enue the date of value market sonable theory that death Williams’ beneficiaries acquired *2 Richardson, Elliot L. Atty., U. S. Bos-
ton, Mass., George Caner, with whom C. Jr., Joseph Mitchell, Jr., S. Asst. Attys. U. petitioner. S. were on brief, for Clair, James D. Mass., St. Boston, Perry whom Dorr, Blair L. and Hale & Boston, Mass., brief, were on for Stand- ard Coil Co., Inc., Products intervenor. Boston, Angoff, E. Mass., Samuel Grant, Angoff, whom Goldman & Man- ning, Boston, Mass., brief, was on Knupp Fong Foo, Robert intervenors. WOODBURY, Judge, Before Chief ALDRICH, and HARTIGAN and Circuit Judges. Judge. WOODBURY, Chief petition This the United States directing judge for a writ of mandamus of the United District Court for Massachusetts, District of also Court, “Judg- that District to vacate a Acquittal” entered ment reassign in a criminal the ease trial, such other and further just. as this court deem relief grand jury in below A re- in nine an indictment counts turned Co., against Products Coil Standard Inc.r tracts and related documents under corporation, at the time which an Illinois had a manu the radiosondes were manufactured indictment covered Dighton, facturing Mas Coil Products Inc. He plant Standard in North “Quality Repre- em then called the Assurance sachusetts, then individuals and two *3 Army Signal Supply plant, by as the ployed one sentative” it at Agency Quality Department who had been stationed at of its Control Chief Dighton corporate supervisor and defendant’s North at first as and the other during charge plant the time involved in later as the foreman purpose inspection supervising instru production of certain electronic charg by personnel. plant An ex- presently, radiosondes ments to be described ing of conceal amination of the record shows that while offenses all three with conspiring to con this witness was on direct examination and material facts by fully many questions matter within he was asked facts in a ceal material agency by of the United the the Assistant United anof Moreover, Attorney. on 18 U.S.C. of Title States § in violation during occasions, specifically the and direct More several cross-examination, both 1001 and § charges September 1956 from ridiculed witness were that words, respect had know re- accused to his use of with peatedly to November 1957 ingly conspired grammar, wilfully falsified, and and his corrected many others him to remember and with times admonished themselves between being man falsify, in his state- of radiosondes1 that he should be careful tests testifying plant at in a crim- time ments since he was ufactured at the Dighton en contracts examination of under two inal As the North case. questions proceeded Products Coil tered into Standard witness Agen Signal Army Supply sharp Inc., comments of the with the sometimes clearly cy. the wit- considered show he testimony unworthy of belief. ness’s were indictment to dismiss the Motions were set Attorney and the defendants denied The Assistant United States pleas by jury their on be tried briefly the bar to identi- who next called a witness guilty. subse- be used fied certain charts to then quent “chalks” and witnesses as of the two One Assistant United States identi- to the stand who called witness Attorneys represented who the Govern- having “final been the fied himself as opening ment at the trial made an state- employed inspector of radiosondes” explained ment to which he corporate its North the Dighton defendant general charges nature of the laid during period plant covered in the indictment and the evidence he indictment. saying proposed to introduce presentation of the Government’s case examination of direct this witness naturally parts, closely into pattern would fall two followed the of the direct consisting part explana- first tory of evidence inspector. examination pro- day, instruments and of the Toward the end of a while still testing for them examination, and the second cedures direct this witness was consisting part of evidence of deliberate for asked the date of conference he conniving falsification of plant the tests been invited to attend at the office run on the instruments corporate the defend- with counsel defendant. carrying program out this ants. the He said at first that he did not remem- Assistant United States pressed in ber the date but when for his best charge at the trial thought called a said that he recollection he through meeting he early whom introduced the con- he believed signals These are electronic devices fur transmit continuous radio to Morse Code nishing designed indicating weather data temperature, to be dropped airplanes places humidity pressure through remote of the air floating by parachute they pass. while to earth person February That is to criminal should not sure. entirely left say, put of the conference alone the date he testimony. indict- course of must period his You covered after the elementary morning, still know that mentary while fact and ele- next ment. The examination, the witness rule.” direct again date certain if he was asked During colloquy further in the same vein again he he said of the conference said that he did not mean that being once asked was not. On “per- counsel for the Government said, “Approxi- he recollection best sonally something deliberately” doing judge then mately September 1957.” wicked,” “knew and that to be he talked with *4 he had if asked the witness any discipli- “proposing was nary take to testifying in while counsel against only action” them but was saying he that case, the and the witness finding interested in out whether the had, judge in a crim- that remarked the “situation” he one in which “must was not “correct.” inal that was respond to After more col- a motion.” later, A loquy judge little while cross-examina- in the of the course which corporate suggested again tion ant, for counsel the defend- that the “situation” might require response admitted had the witness that he “in him to act changed testimony motion,” his the date of as to a counsel for each defendant meeting orally a result of a acquittal. the as conference moved for with Assistant strenuously one of the United States for Counsel opposed the Government during Attorneys preceding ground over- motions on that these night judge recess. The then excused the witnesses far heard were not vital so jury and asked the Assistant United primarily to the case but were intended Attorney lay involved he to only States wished for concrete testi- basis any per- mony guilt make statement “as a matter and that there to follow privilege.” many government sonal The latter answered in witnesses at- were any why that unaware of yet he was reason to be heard tendance the courtroom ready he should not talk with his own credibility witness he for whose was during a recess called course of the suggested He the most vouch. that that ex- witness’s direct examination and pressed be to strike the should done would that testimony astonishment under examina- the witness any think that im- should tion. having propriety in done his so. At conclusion of the Assistant then ordered witness to leave Attorney’s remarks the States United the courtroom and the Assistant United jury, ordered the recalled the wit- again having Attorney, expressed States stand, opened and ness back ignorance any impropriety in what he as follows: statement said, very done, “You will learn,” and Members of the soon and addressed Assistant “Mr. Foreman say anything Attorney else, Jury, as I let before follows: absolutely you here and make it clear that “You were he me knew You for stand. the defendants well was on the knew there princi- persuaded You know the that neither a recess. the Court are Attorney2 ple must be nor that a witness examined the United States consciously that, public. You know his assistants without either any deliberately suggesting you a moment canon that or violated n any improper they inducement, were familiar. offered with acting subjectively They tampering with a witness is one of dangerous things good faith, I do not the most mean connec- stage particularly I the remarks am about to tion with joined 2. The States himself had dur- United two assistants in courtroom course of trial. other, in com- both reasons the sense them in make criticize bination, we think his action was were con- that believe beyond his plainly wrongdoers.” erroneous but scious jurisdiction. implied Following testimony principal two Assistant he considered the specifically Attorney’s witnesses whom we conference infringe- certainly and con- confused referred was serious witness recess a rights flicting. But, although appellate civil ment the defendants’ regarded “cold,” testimony record trial court the of a he clear; produced it is principal far it can nevertheless be so two witnesses unworthy wholly before us that clear from the record to be the Government belief, saying and conflicts these witnesses’ showed confusion testimony that both part awareness no minor due in “a stand lamentable lack sharp judge’s persistent, capacity connection or lack obligations” cross-examination sometimes throughout caustic their testimonial “has shown their direct examination. then on the stand memory anor lack of either lamentable It is evident that the memories of the *5 extraordinary power of inventiveness.” entirely Government’s witnesses were not the remarks his the At conclusion reliable, particularly as to details and it acting jury in re- judge to the said they is also evident that were not masters acquittal made sponse motions for to the English language. every of the But as defendants by for the individual counsel lawyer experience knows, with trial the defendant, “I direct corporate and the you memory sharp, witness whose clear and is stage verdicts to return at this is who in court neither over-awed nor respect in- to each acquittal with cockily over-confident, and who has the corpo- respect to with and dividuals clearly capacity ques- to understand the directed then ration.” language and tions asked the command of announced, up and stand to defendants briefly accurately to answer and is indeed by acquitted direction been “You have only a rara avis. can on Cases be tried by Your Court. and Court testimony knowl- those who have are free.” You is terminated. bail edge may issues, they whoever judge happen be, often, all too cannot be sure to and indeed We whether coming usually, they witnesses, as of the defendants be- ordi- directed thought testimony body general narily do from the cause he two by speak put public, on neither think nor of the four witnesses Unit- with clarity precision at the outset of the trial and of academicians. ed only part to belief or For most entitled because he witnesses with not thought average capac- Assistant action Unit- education and intellectual talking ity tools which trial counsel are the ed States they Moreover, can. witness recess as best must work every occupation its own vernacular. direct has while witness called men, engineers, doctors, deprived Sailors, the defendants of railroad examination right. lawyers, nu- too civil whether the not omit some basic judge to others mention, or he did one reason or less uncon- acted as merous to day judgment charged in 9 1001 and 371 next entered 3. On the U.S.C. counts, and follows: 1960, upon Defendants, September 20, Coil the al- Standard Prod- “The “On Fong Foo, Inc., of motions made Robert lowance ucts defendant, having Knupp, each set bar to on behalf of is by be, and that each defendant tried oifenses of “Ordered acquitted hereby is, facts and oifenses material con- concealment spiring charged, and it is conceal material facts to agen- each of an “Further Ordered defend- within matter discharged.” be, hereby cy is, violation of ant place, sciously slip their the first delicate into the vocabularies it is a matter callings. Naturally can and about ob- which counsel to witnesses think twice ject judge. required explain question the words asked should be necessary, hardly objects place, how- In the second It is use. judge’s question ground ever, caustic or on the that it to do so with ridicule repeatedly criticism, a wit- leads to check the witness into matters he was not or reasonably testify about, common offered counsel runs ness’s use words English risk, exemplified case, reference to the Oxford of com- use this Dictionary, require jury imply- adherence ment or strict before the legiti- grammar. seeking is The bench rules of he is off cut appropriate inquiry. hand, from which mate rostrum On if coun- not other English grammar object the niceties of sel does not finds his to teach he soons floundering igno- usage. displaying again and, provoking rance inas It well be that solicitude critical either comments rights requires of an accused essential intelligence the witness’s or on counsel’s govern- the trial to cross-examine prepare failure to his case. an accused with ment witnesses when rights capacity protect insists his recognize We in the federal conducting defense when own relegated courts the trial wholly represented inade- accused quate position He a mere moderator. is be- No such situation counsel. duty rulings has the to make here, however, for accused fore us govern law but also to the trial to assure skillfully represented able proper Quercia conduct. v. United *6 very experienced were trial counsel who 1933, States, 466, 469, 289 53 U.S. S.Ct. preserve qualified to their client’s well Moreover every think it would have interest. We duty shoulders that the rests see performance of that far better had trial is conducted with solicitude for the Trial left counsel. function been rights basic and essential of the accused. forget judges questions must not v. United Glasser 60, 71, naturally properly from the bench 62 86 L.Ed. 680. ordinary great impact upon fall with when the trial assumes the role of and that counsel are reluctant witnesses adversary system counsel breaks object questions a asked into down confusion confounded as worse giving There can be for fear of offense. clearly in the record this case shows. give and take court between no even in on the and counsel for counsel provides prime This record a ex floor do not stand on even terms with consequences ample of the of overzealous judge on the bench. participation in the examination of wit judge, the trial nesses it is clear performance the trial While judge’s sharp persistent, duty, function, some to see of his indeed badgering, questioning ordinarily almost times truth is elicited re clarifying remarks first made the witnesses quires questions caustic wary from the maybe bench, sharp and overcautious and then con on occasion inconsistencies, duty in warnings, fused them into it is not his function or disrupted orderly presenta away addition the conduct of a case from to take according Counsel, of the Government’s case tion as in this who counsel. jury by plan outlined to the to the the examination of his witnesses sees Attorney by Assistant tak taken over led into mat matters its witnesses into not intended ters the witnesses were testimony. testimony in opened to cover their not offered in their and so cover Running cross-examination as to those matters for cross-examination by during bench, particularly side, witness’s di other finds himself in a examination, embarrassing is innovation rect. most difficult situation. definitely peal. practice does not have Nor it resort to mandamus as approval appeal. a substitute for of this court.4 is writ available “to correct error in mere to understand a loss We are at judicial power.” exercise of conceded De judge’s basis for criticism Mines, Ltd., Beers Consolidated States, 1945, v. United Attorney for Assistant United States 212, 217, 65 S.Ct. talking dur witness with a Government 1130, 1133, 89 avail- L.Ed. 1566. It is any ing a not aware of recess. We are able, however, judicial action correct otherwise, “elementary” law, or rule of usurpation which is not mere error but any for professional conduct canon of power, id. One of the writ’s two tra- bidding course, practice. Of ditional uses “both at law and common ordinarily tactics, of trial counsel matter been, appro- federal courts has talking during a a witness avoid priate cases, to confine inferior courts the witness recess called while jurisdic- prescribed exercise their opposing provide coun so as not to stand Export tion.” Alkali jury. argue point sel with Ass’n, Inc., v. United thing and rules are But tactics one quite an are of ethics and canons law L.Ed. 1544. Therefore distinction to nothing wrong we There other. ex- drawn is between an error in the talking a witness know power an at- ercise of a conferred and court. intervals his examination tempt power possessed. to exercise a Cir., States, 9 in Frazer v. United Indeed 1956, for the Gov F.2d There can be no doubt of privately re commended ernment 29(a) of the court under Rule minding a false statement Procedure, Federal Rules of Criminal U.S.C.A., causing thereby testimony her to in her entry to order the change testimony conform to her acquittal, motion either its own truth. defendant, or on one or motion of as to charged the offenses in an indict- The Assistant United States ment or information “after the evidence guilty was not propriety, or im- misconduct *7 on either side is closed if the evidence is if he and even had it to sustain a of such insufficient conviction seem that the most the defendants spite clear offense or offenses.” In would be entitled to would be an order wording Rule, perhaps, as the Gov- Berger States, mistrial.5 of v. United concedes, although again ernment we do 629, 78, 55 L.Ed. decide, not need to judgment not decide do judge Moreover, should have might properly of credibility pass on the allowed in some even before entered situations introductory the Government’s of wit- case, as, for of the Government’s close allowed Government to nesses instance, opening when Government’s presentation proceed with of its con- unmistakably statement shows charged. evidence of the offenses crete proposes it to introduce would evidence what, any- question remains as The thing, pro- conviction, or when it sustain and should this court can do to cor- showing conclusively ei- duces evidence judge’s trial error. rect ther it has no or that the ac- that Certainly judge’s error was cused has iron-clad defense. But United prejudicial States. suggestion no such situa- is of obviously ap- cannot here, abruptly tion termi- are to be tried 4. If cases acquittal might judgment of be warranted by counsel, pro- of the rules of instead that deliberate misconduct the event drastically will have to be re- cedure outrageous counsel is so Government vised. progress to render the trial Conceivably, although unfair but also make a fair trial we have no oc- impossible. decide, casion to and do not decide future ordering refuse enforce a result ease law would nated the Government’s acquittal on entry in the destruction of the conceded of a long powers showing departments, be- the other no defense evidence opportu- had an hence leave no had law to be enforced.” fore the Government nity had or not to show whether name, A Ex later case of the same igno- case; moreover, so and, did he parte or the nature exact rance of either the 77 L.Ed. guilt cogency specific evidence nearly point. the Court In that case had he said which Government’s ordering a issued its writ of mandamus ready present. and was available warrant, to issue a bench pur- which ported in the he had refused to do of two Primarily on the basis discretion, for the exercise of his presently, discussed cited and cases to be “fair arrest of one under an indictment the circumstances that under we think properly con- on its face” returned pow no had us the case before grand jury. stituted The case cited jurisdiction, termi say, er, that is to significant particularly shows in that it presentation the Government’s nate mandamus this issuance of entering judg mid-course its case in present in aid case would mandamus acquittal and that ment of jurisdiction, appellate shows our and also error. lies to correct judge’s jurisdictional a trial limits of parte United In Ex powers neces- and the in criminal cases 27, 37 S.Ct. sity issuing confine the writ to that, practice in certain held the Court judges limits. within those contrary including this one circuits judge in the notwithstanding, a district place, In first since the Court authority statutory absence of expressly in the case cited above was ex suspend manda- permanently ercising original con years for of 5 tory sentence minimum ferred 262 of the Judicial § lay to mandamus fraud and (the bank present Code forerunner of § his errone- require to vacate (a) 28), we, of Title as an intermediate suspension. ous order appellate court, safely rely upon can it as authority direct for our issuance reaching the Court conclusion appellate jurisdiction. writ in aid our holding consequences of to the adverted Judge Magruder’s See Chief discussion holding is, contrary, Josephson, Cir., 1954, in In re 218 F.2d thwart judicial power could inherent 174, 177-180. If, spite of the fact that sentence legislative determination may ultimately an accused be found not *8 saying: guilty, Supreme Court of the United “ legis- plain States, it be in the exercise of its ultimate dis [I]f fixing specific cretionary pun- jurisdiction a lative command actions review to subject by for crime to be of the inferior federal ishment courts certio implied rari, power permanently set aside has in its discretion to issue upon power judicial considerations mandamus to federal or district court legality dering charged properly of con- to the arrest of one extraneous necessarily grand viction, jury, seem to crime it would then this court, appel could be likewise in the exercise of follow that its direct discretionary authority jurisdiction, implied a to late must also have discre try tionary power permanently refuse to a criminal to issue mandamus to re charge judge, court, quire permit of the or because conclusion to present particular act made criminal to at least the United States its guilt ought proper treated as an accused not to be crimi- when law evidence charged brought pass ly come has been And thus it would to with crime nal. judicial possession for There is thus no need us to to trial. authority permanently power to issue department whether to consider
564
grand
might
acquittal,
of the
jurisdiction
also ment of
the action
writ in
of our
aid
returning
Evaporated Milk
the indictment
be found in Roche v.
just
938,
flouted,
Ass’n,
21,
the Govern-
1943,
as much
and
63 S.Ct.
fully
perform-
Buy
1185,
Leather
in the
Howes
ment
as frustrated
L.Ed.
or La
reg-
309,
duty
persons
249,
prosecute
1957,
1 ance
77 S.Ct.
of its
to
charged
ularly
as
properly
with crime
L.Ed.
though
judge
re-
at the outset
place
the considerations
the second
for
fused to issue a bench warrant
parte
in Ex
relied
which the Court
of the
The action
arrest
the accused.
249-
little
falls as
in one situation
its
L.Ed.
S.Ct.
permit enforcement
short of a refusal to
did
conclusion that the district
in the other. See
of the criminal
as
law
deny
jurisdiction
Govern-
have
to
page
page 250,
at
Id. at
53 S.Ct.
petition
ment's
for a bench warrant
they
Though
different
are
the situations
charged with
properly
of one
arrest
clearly comparable.
are
the dis-
support
crime
conclusion
our
industry
and our own
of counsel
The
did
us
before
trict
in the situation
squarely
no case
research has unearthed
prevent
to
not have
point.
does
a trial
going
on with
United States
presentation
power
prevent
the arrest
have the
to
guilt.
We
of its evidence
crime,
anyone
held
properly
accused
specific
the statement
reference
parte United
Ex
in the later case entitled
page
that a
page 250,
at
above,
for no
to refuse
cited
or
by properly
proper
returned
indictment
charge
try
a criminal
valid reason ever
“conclusively”
grand jury6
constituted
earlier case
as indicated in the
probable
existence
determined the
above,
name,
it seems
same
also cited
holding
answer
the accused
cause for
no
has
to follow that a trial
us
charge
state-
also to the
to a
of crime
arbitrarily
trial of
halt the
page
page
ment on
government has
accused when
begun
the dis-
that the effect
the refusal
guilt.
present its evidence
warrant
issue a
trict court to
principle
between
difference
We
blocking
see
charged
“an indictment
arrest of one
threshold
at the
a criminal trial
properly
found
fair
its face
blocking
has
it when
equivalent
a denial
returned
barely
put
toe
had a chance
government, mat-
absolute
door.
on trial
stand,
put the accused
ters
**
question
jeopardy
of double
re-
discloses
mere statement
*.
mains for consideration.
importance gravity
public
that,
at-
like
if a
question. It is obvious
Strictly speaking the
defense
Courts
District
be taken
titude should
jeopardy
double
is not now before us.
generally,
interference
serious
confidently anticipate, however,
We can
for crim-
persons indicted
prosecution of
that the defense will be raised
the de
might result.”
inal offenses
by plea
acquit,
fendants
autrefois
observations,
acquittal,
former
and others we
when
are set to
These
*9
again. Therefore,
might
opinion
quote from the same
the bar to be tried
therein,
pertinent
mandamus,
are
since issuance
when within
cases cited
discretionary,
power,
If,
our
under the circumstances dis-
and it would
here.
pointless
us,
for us to issue the
if
record before
a district
be
writ
it
closed
judge
foregone
good
plea
can
conclusion that the
for no
reason
halt the were
acquit
good
would
of the
evi- of
be
at
presentation
Government’s
autrefois
-
trial,
appropriate
judg-
it is
and enter
another
here
in a criminal case
brief
dence
say
to dismiss the
for
indict-
tions
indictment were
can
the same
de-
We
judge.
bar.
nied
the district
case at
At least
ment
contrary
suggestion
and mo-
to the
is no
appropriate
that it
be
for
double
sometimes
ly
defense
to the
to advert
say
acquittal
a district court to
an
direct
for
jeopardy.
will suffice
us
It
government’s
prior
closing
that
conclusion
that from our
judge
say
evidentiary defect,
no case because of
power,
is to
some
that
had no
unnecessary
acquit-
says
but
I
judgment of
to decide.
jurisdiction, to enter
do
think
principles
well
one can leave this matter
tal,
too
it follows under
hanging, but, rather, I
author-
believe its resolu-
require
citation
established to
all-important.
nul-
tion to
judgment
be
is void—a
ities that the
lity
for
no basis
hence affords
unnaturally,
—and
Not
of the fact
view
jeopardy.
Mitchell
See
double
defense
general right
that the
has no
Youell, Cir.,
F.2d 880.
v.
authority
appeal,
paucity
there is a
respect
application with
in its
The United States
evidentiary
acquit
any
specifically
pre
asked
defects at
for mandamus has not
reassigned liminary stage.
In United
case be
States v.
us
order
judge.
Dietrich, C.C.D.Neb.1904,
Never-
126 F.
another
for trial before
Judge
pages 677-678,
(after
so,
not see
do
Circuit
do
we
theless we shall
unnecessarily
Justice)
said,
taken wards Mr.
Van Devanter
has
how a
who
wit-
upon
himself to cross-examine
“Where,
opening
statement
extensively
also
nesses
prosecution
for the
trial,
a criminal
sharply
their testi-
listen to
can either
opportunity
and after full
weigh
mony reflectively
testi-
their
any ambiguity,
the correction of
ror,
er-
mony dispassionately.
statement,
or omission in the
directing
that
will
Mandamus
issue
clearly
deliberately
fact is
ad-
acquittal
in United
entered
necessarily pre-
mitted
must
Products
Coil
v. Standard
States
require
an
vent
conviction and
ac-
desig-
Fong
Knupp,
Inc.,
and Robert
Foo
quittal,
may, upon mo-
Criminal Docket
nated on the
counsel,
tion or that of
close the case
Dis-
District Court
by directing a verdict for the ac-
60-6-W,
as CR.
be
trict of Massachusetts
pow-
cused. The court has the same
ordering
the above case
vacated
upon
an admission
er
act
such
reassigned by
be-
that court for trial
it would
to act
the evi-
have
judge.
fore another
produced.
dence
It would be a
waste of time to listen to evidence
Judge
ALDRICH,
(concur-
Circuit
other matters when at the outset a
ring).
clearly
deliberately ad-
fact is
agreed
prose-
If I
that one
with the court
mitted which must defeat
why
could not
sure of the reason
cution in the end.”
acquittal
I
district court ordered the
say
I see no reason to
the court there
disagree
its conclu-
well-recognized
applying
erred in
jeopardy.
sion
the issue of double
proceeding.
principle
civil
criminal
general
subject
im-
is of some
Since the
Cir.,
See McGuire v.
1945,
my
portance, I
reasons.
will state
manner,
152 F.2d
580. In like
Maryland Cooperative
think that a court is “without
cannot
in United
power,”
is,
jurisdiction,”1
Inc.,
Producers,
D.C.D.C.1956,
“without
Milk
F.Supp. 151,
order
midst
was ordered
ground
government’s
stipulated during
that evi- when facts were
government’s
already
fatally
dence
introduced is so
de- course of the
case which
possibil-
precluded
could be allowed to
fective
the court believed
*10
assumes, arguendo,
liability.
ity
court
convict. The
of criminal
See also United
apparently
“power”
uses
over
the
The
trict
court’s
case
“jurisdiction”
interchangeably.
Certainly
Accordingly,
I
and over the defendants.
“power.”
question
term
is no
here about
dis-
will hereafter use the
there
cry
saying
cannot,
Weissman,
far
that it
in a
States v.
weigh
attempt
bona fide
in
567
sibly
only testimony
make a
involved.
progress
also to
unfair but
which
changed
I
impossible.”
the witness had
aas
result of
fair trial
in the future
conferring
imagine
circumstances
counsel was the
to
date
find it difficult
warranting
particular
assumption.
Cf. a
an
conference. The date was a
such
States, 1953,
preliminary
Nothing
92 U.S.
about
matter.
United
Caldwell v.
App.D.C.
11,
355,
note
had
conference
been admitted
evi-
205 F.2d
930,
present
denied,
75 S.Ct. dence. The
effect of
new
349
certiorari
testimony upon
773,
all events
trial
nil.
Its
was
one the actual basis respect, share the all I do not
With uncertainty. expressed As soon court’s why appeared changed testimony district'court Assistant excused asked.the personal Attorney, U. S. “As a matter America, UNITED STATES of you privilege do want to make state- Appellee, in talk- The court stated that ment?” violated an to his witness counsel had TOMAIOLO, Appellant. Charles “elementary rule,” it was “in- and that No. Docket 26722. situation terested whether this is a Appeals United States Court of respond I must motion.” The to a Second Circuit. conduct as then described court counsel’s Argued “a violation of Subse- Jan. civil liberties.” jury, quently the court called stated Decided Feb. acting “subjectively in that counsel
good of a faith the standards [but that] prosecution in
criminal require a constant awareness guaranteed by
rights and liberties It is true States Constitution.” thereafter mentioned the lack witnesses’ “lamentable capacity in con- or lack of of awareness obliga- with their testimonial
nection generally. tions,” and discussed the case length to it returned at some coun- witness, with the dis- conference
sel’s confessions, unlawful extorted
cussed duty seizure, and “the of a
search gets every see that man a fair “Bearing
trial,” concluded, in mind responding principles, and
these acquittal made
motions * * stage you *, I direct at this * * the verdicts of return that the district court
It “elementary have conceived of this already annoyed had not if it
rule” testimonial deficiencies
witnesses, have no reluctance in
concluding granted reason motions for was the same