*2 TUTTLE, Bеfore CAMERON and JONES, Judges. Circuit Judge. TUTTLE, Circuit challenge legal- appeals These two ity judgment imposed and sentence appellant following cases, trial of the two by agreement parties. combined case, first The commenced filing charged information, of an provisions violation of the criminal Act, Fair Labor Standards U.S.C. seq., second, A. et § com- charged indictment, menced violation 1503 of the Criminal § Code which prohibits corruptly endeavoring fluence, impede intimidate or a witness court, influence, in a federal or obstruct justice. the administration of accepts appellant’s case, present statement of the so we pretty appellant. much as outlined 15,645 appeal No. Cause of Karl judgment L. Smith from the of the Unit- ed States District Court the Southern Florida, Tampa Division, District of No. case 6157-T-Cr. wherein the adjudged guilty employing lаnt was persons production goods certain for interstate commerce for work-weeks longer forty paying than hours without employees such for hours in excess of forty at a rate not less than one and a regular rate; half times the and that unlawfully discharge he did a certain employee employee because said had filed complaint gave with, testimony to, Wage and Hour and Public Contracts Smith, appellant, Department of was al- U. Karl L. S. Divisions leged unlawfully engaged op- Labor; trans- to have been Preserving port, ship eration of the Lone Palm sell in interstate commerce *3 Company Florida, goods Sola, production at which Palma cross- certain the of in village approximately employees employed roads of located four in violation were City from in (requiring compen- miles the of Bradеnton 7 Section sation) overtime Act, County, Manatee Florida. The Lone Fair Labor Standards of the engaged Preserving Company (hereinafter Palm was 207 referred U.S.C.A. § preparation “Act”); in guava in of and distribution as the offenses (3), jellies 29, 215(a) (2), preserves. violation of Title and was al- § leged (1) (3) U.S.C.A., 15(a) (2), portions and of substantial those Section guava (1) jellies produced preserves of the and Act. Preserving Company Lone Palm were 15,646 appeal Karl Cause No. of is the transported many shipped points and judgment L. Smith from in United outside the State of Florida. States District Court for the Southern Florida, Tampa Division, and District in The Hour and Public Con- of tracts case No. 6424-T-Cr. appellant In Divisions of De- case the the United States investigation partment adjudged guilty corrupt- of Labor made an was of ly endeavoring operation, influence, of that business Lone Palm intimidate Preserving impede Company, certain on various dates witnesses in the case August 27, April 16, Smith, of the between United 1951 and States v. Karl L. 6157-T-Cr., investigation, No. pending 1952. As then result of for trial appellant charged in the Criminal District Court of in a the United States 19, Florida, 1953, for the Information filed March Southern District in 1503, violation five of Title violations of Fair Labor Section Stand- U.S. C.; Act; adjudged guilty corruptly ards alleging Count one of that Information endeavoring pay wage; influence, failure minimum obstruct impede alleging justice pay proper Count two failure due administration compensation; in day that on overtime or about Count three al- the 21st March, leging discriminatory discharge; presented Count to the Assis- alleging records; keep tant four Attorney, United States failure to an officer alleging shipments and Count five United States in- District Court Florida, Southern terstate commerce when District of in violation of false affidavits and the overtime section of Act. other communications con- cerning the case of United v. United States States dismissed Counts Smith, Karl L. four, Criminal Action No. 6157- one and and at the on the T, knowing well charges alleged that the said case was otherwise informa- pending tion, trial in court, appellant the said in viola- was convicted of tion of 1503, U.S.C., two, Title Section and Counts three and five. knowing the affidavits to filing be false. Subsequent to the Crimi- 19, 1953, nal Information on March to- Information and the Indictment day March, 1953, ap- 21st wit pellant prepared request consolidated trial at the signed and obtained counsel for the United States at persons request from several involved statements of the Karl L. defendant charges outlined Smith. the Criminal Information. Said statements were os- Throughout proceedings tensibly pre- taken under oath and were filing appeal, notices of the de- date appellant sometime sented counsel, represent- without fendant was March, the 25th of to the Assistant persona. propria himself in There is Tampa, United States Flori- no contention that was denied da. right constitutional reason 18, 1954, having counsel, since the November choice was his On knowingly own, freely on the indicted basis made. affidavits might alleging Title In these we well circumstances violations five counts repeat what we said Smith v. In substance the U.S.C. § alleges con- :1 affidavits dictment part corrupt stituted a endeavor “One reason found the courts have influ- Smith to Karl L. that assistance of counsel or an in- ence, wit- certain intimidate and telligent competent waiver of United States nesses in case of the such is essential to due assistance Smith, No. Karl Action v. L. Criminal process ain trial under our Consti- 6157-T, cor- and that said defendant many tution is that technicalities influence, ruptly obstruct endeavor to op- of trial sometimes affect the *4 due administration the portunity of a the accused to have justice and state- in that the affidavits appeal. real review of his trial on presented Assistant ment to the supra Zerbst, Johnson v. U.S. [304 Attorney for the South- United States S.Ct. 1461]. L.Ed. false. and were ern of Florida District however, found, Once it is that such properly an accused has waived his alleged charges Upon the trial of the right flowing counsel, to effects the indictment, con- the accepted from that decision must three, two, four victed on Counts by together him, the benefits acquitted one. Count on ive and was sought presumably which ob- he to ” (1) alleged de- the are: errors * ** tain therefrom. by of the prejudiced reason fеndant was Upon authority might such we well be judge numerous on trial fact the justified dismissing appeal in the for that the fact the commented on occasions grounds present any to failure error testify right in his to had a defendant of which we In could take notice. what prej- behalf; (2) the defendant own concern be considered an excess of by the fact reason of the udiced rights protection ap- for the of the suggested Attorney in his United States pellant peculiar under the circumstances argument the defendant case, however, proceed we to his own be- stand taken witness the points consideration of on. the he relies half; consolidat- (3) court erred the Here court demonstrated the trial; (4) ver- for the cases great patience unusual tolerance with by substan- supported neither dicts were who combine accused undertook to weight evidence nor tial behalf, argument, testimony in his own evidence. interrogation of witnesses. trial outset, appropriate note to it is At the conceivably court would not have tolerat except the fact that for self-serving ed statements made any counsel, without lant to trial went the accused and flat denials state required af- to appellate would be court by witnesses, and ments made his irrele considera- without firm convictions these comments, by lawyer. vant In if made raised, no points because tion fact, criticism now levelled at the basic follow case did referring right for to court recognized, universally to requirements, testify in his own behalf accused complained errors present review the entirely patient from the court’s .arose objections; timely he no He made of. explanation, repeatedly made to Smith mistrial; he made no motion made gov purported cross as examine he challenged objections actions no witnesses, that he could ar ernment judge United States or either trial them, gue dispute or as with them he re timely Attorney; made no he did, get peatedly if he wanted ought trial or for for new di- motion proper to take his views There is witness stand. no merit verdict. rected 1. 5 Cir., F.2d produce testimony to a prejudiced failure court contention that the the appellant by any phase upon defense statements or of such rely. together. accused seeks all of them taken appellant’s complaint As to charge respect With prejudiced by he was a consolidation suggested trial, province the cases for it is not the should have taken that the accused put judge of this court to the trial complained stand, witness the statement acquiescing request error for in not, think, susceptible we telligently competently made said: construction. He Nothing appears accused himself. continuously “And talks way indicate that he was in misled these of the De- ‘criminal actions’ making requests into or that he was partment of These investi- Labor. prejudiced by the consolidation. gators, criminal actions that Finally, complaint performed. we turn to the have He had jury’s unsupport that the verdicts were opportunity present criminal *5 thought ed the evidence. It be serious cannot action or was what he argued ly that there was not substantial for a criminal action in the basis testimony provisions of evidence the violation of
form of
in
two
the last
days,
you
of
Fair
Labor
seen
of it.
Standards Act. The
have
none
principal
strength
you
any
And
аttack is made on the
won’t see
of it.
‘Crim-
”
government’s
felony
inal actions.’
case on the
charges.
quite clear
We think
it
was fair
on the defendant’s
Although
comment
indictment
touching
produce
charged
on
failure to
corrupt
that the defendant “did
subject
injected
ly
con
influence,
he
his
endeavor to
intimidate and
argument
During
signers
duct of the
his
witnesses,
impede”
trial.
of the affidavit and
and cross-examination of
concerned,
statement
the statute makes
alleged
gov
referred to
of
criminal acts
any person
any
anit
offense for
to do
one
by
ernment witnesses. The comment
things
of these
as
ato witness or as to
the United States
ac
justice.
of
administration
haveWe
opportunity
present
cused had the
to
charge
proper
held that it is
to
in the
criminal action in the form of
allegations
conjunctive the various
is similar to thаt which was found
accusing pleading
speci
where a statute
Lang
unobjectionable
the court to be
ways
fies several means or
in which an
ford v. United States.2
state
There a
may
offense
be committed in the alterna
ment
counsel
“the
defendant
;4
tive. Heflin v. United Price v.
impeach
no
has witness to
the stories of
corollary
A
United States.5
to the rule
[government
was held
pleading
witnesses]”
of
in such matters is
rule
the court to be in
only
substance a statement
of
that
ways
one
the several means or
committing
stories
were not contradicted.
the offense need be
As this court has
said
Jamail v. Unit proved.
States, supra;
Heflin v. United
States,3
against commenting
ed
the rule
Crain v. United States.6 Thus it was
testify
on the
only necessary
failure of a
defendant to
here for the
go
in his own behalf
prove
“does not
persons
the ex
as to each of the threе
forbidding argument by
tent of
two,
counsel
named
counts
three and four of
for the
corruptly
effect that the the indictment that Smith had
evidence
is
influence,
defendant
uncontra endeavored either to
or intimi
dicted.”
date,
respect
The same is true or
him as a witness in the
Cir.,
48,
Cir.,
2.
283,
9
178 F.2d
55.
5
F.2d
5.
certiorari
denied
789,
473,
U.S.
S.Ct.
mony. brought Finally, itself, Court, taking is inconceivable that the mere hearsay prejudicial some out mony.8 testi- the three statements possibly could violate He statute. them, to make some use or at government attorney knew, when tempt them, to make some use put hearsay evidence, ap- that before the statute could be violated. pellant was hot familiar with the rules and the knew evidence the same charging Under ap- the three counts thing calling questions when it aslied pellant having corruptly attempted with hearsay testimony. prosecu- for the witnesses, the three it is clear tion, escape responsibility cannot for the that he not could be convicted unless testimony introduction of the attempted to use the statement testimony other inadmissible mentioned given had been him to influence the tes- opinion. in this timony of these three witnesses. There
HI. testimony not a line of that this was prosecuting done. All three were used as perfectly plain : Tt is to me that witnesses, not one stated that icompletely to Government make' failed 9. I ' n . V , r.unit off. n , (cid:127)- wit ty - h 'because, .worked . .the' ¡son during etc. .if be ther, fourteen weeks . using of-all of the assumption ular ended t’o.beafaet? pie worked set forth. cooking during son' twelve hours a a n “The - [Emphasis Added.] hour „ each , '.“The “The Court: “The “The Witness: “The “The Witness: “The Court: week will yóu tried on —and [*] * told case etc.—that employees and they got' one? but am at the nesses, viólate not Witness: Court: you Court: ¿nd longer Witnesá: up yie I under the. -.[Meaning would discuss the Information fur- [*] exemption n f don’t have think it competent entire time. s. end of the fourteen weeks.” .that inflammatory . have a Did of that hours day or back -down From You are entitled to that Now, seventy to cook get have These Well, Well, during the-busy worked [*] *. you cheek that, * If exemption During year, it. Now those information during that each firm tó be did * year evidence you people right long they hours a week *. fifty-six you find features parties regular — course—- so that of the # * opinion that the around the off sea- preparation, stuff —that violate the if-you ] period said were would stripped up should period prosecuting hours here? hours $ * here they that they first peo- reg- wit sea- fif - investigator, Department applied this fourteen week inferable, conducted can understand them. fourteen by weeks the facts him, trying his own case In overtime the foolish effort of before the tion. But he did not succeed in period the basis for pear under a Administrator. ity” sonal character Davis, appellant’s be following 29 TJ.S.C.A. the seasonal, as an whom much ought properly tivities special rights to-appellant tive A court of The Court In Moreover, fully another trial preserving addition, under under * * * employee engaged arbitrarily see taking place in developed. pay weeks regulation promulgated by most of the September developed from the an extended busy beginning its called § prosecuting it seems *10 justice ought for a was entitled to 213(a). develop year when, undisputedly, ends thwarted business is n season was or local all fourteen weeks’- This exemption provided reason to be his McCutcheon back and - period have been classified to a reason warfare was 1st, of that manufacturing these examination of whether much of Wage' - the three months likely apparently operation. retailing capac- it seems witness point first fundamentally, not to the fact that entirely of the sea- own “administra- matters can period. because of and Hour that Mrs. exemption respect to exceeding fourteen where I lawyer. exemp- getting waged, handle disap- stand likely It is gave over ac- ining usual attorney, provided the the statement mentioned had ever lant attorney not asking did irritant if the that not fact is it was taken. after Mc- prosecute to appellant consider his refusal that intimated one of three side-track, a “cover-up, a Cutcheon a to approached an effort him in had ever although they whitewash”. tone down his daily alongside himof had worked many perfectly plain appellant did It is that the state- time months between attempt or use the so-called use trial of the was pa- ment executed petition affidavit or or other possibly be said it How could per any purpose except case.10 all to in- at endeavoring corruptly appellant was prosecution duce This of McCutcheon. impede affirmatively or to intimidate positive evidence shows putting taking of the statement mere intention of never had pocket? in his attempting it use those documents pending connection Information with the only completely bar- Not is the record against him or to intimidate or important on this ren of evidence witnesses, or to influence the government’s witness point own but the attorney prosecution or the as far as that purpose and appellant’s sole showed that against him was concerned. His sole bring about, could, if he intent was to purpose and effort were directed towards investigators. prosecution of the hitting enemy causing back at United States The Assistant prosecution to be instituted. That placed on the stand crime, be some sort of a it is not the ingredient supply to proof this essential prosecut- crime for which entirely so, do but made failed ed. complete indictment defense to the out is, therefore, clear that the burden stating that in all of its counts. After appellant upon prove rested yond be- days come his officefour appellant, a reasonable doubt that information had been filed and after the subpoena taking Ex- statement known as served, attorney testified 12, infra, hibit f.n. did so with the in- as follows: “Karl Smith came to the making tention use of that statement building indignant my and came to office way in some calculated to influence the me these documents and and handed testimony of the witnesses in the case urged I, as Assistant United States pending then him. Failure to Attorney, prosecute a man Mc- govern- named prove that intent is fatal to the Dulaney ment’s case. The witnesses and a man named covered Cutcheon -* * *11 upon counts of the Indictment Appellant, in cross-exam 11. Other impeding veloped in you cally sign might will read correct, who here evidence. action “Q. intimidation might will see that stated quoted: Exhibit 3. only one happen based And he statements sir? one lose his Mrs. Davis answered there merely that he on those influencing A. desired that to him attorney’s testimony intimating any had been no effort those documents His That’s job the witness statements; requests like opinion if he refused to her right. you “figured” effect testimony. take some probative that, approach categori- If as de- Moore there what you Mr. at cuted. that case? is get McCutcheon tion trict Court lieve cause the fullest you get took sir. Cutcheon pending information. [Emphasis Added.] “Q. “Q. ***** [*****] pending against appellant.] He was it to mean petition the words you withhold Did the In I never heard of Mr. impression? reading * * * extent of impression [Referring * * * arraigned filing literally Mr. ’? A. You the law .7. B. Mc- Dulaney of these Those further action that one of them document, ‘to to the documents, what it said” prosecute day Dulaney. are, say affidavits informa- A. on that prose- I be- did I Dis- No, I *11 396 appellant upon all testified. Not was convicted affidavit which the indictment gave slightest signed is based.12 one of them hint that The witnesses who attempted use state- asked, one, affidavit were one signed it, ment with manner whatso- them in whether but of not one that, of ever. them More than was asked whether the affidavit government attorney be- establishes contained untruth. The farthest
yond testimony concerning the sole in- of reasonable doubt that reаch this of tent was to use the state- document is that did not proposed fully go ments a criminal read it over and did not before notary a McCutcheon. to swear to it. The affidavit demonstrates artlessness than rather government accept- showed its perfidy. accept must not have foregoing ance of the of statement government's theory ed concerning by requesting defining law- instructions Mrs. Davis because it found intent. Without such a concession the guilty charged against of the crime him plain. law is v. Morrisette dealings in connection with his with her. States, 1951, 246, 240, U.S. S.Ct. expressive Much of the affidavit was 288; States, 96 L.Ed. v. Caldwell United explicit by ap contention made 1954, U.S.App.D.C. 35, 218 F.2d pellant throughout trial, —that C.J.S., Obstructing Justice, and 67 § prosecuting witnesses were not his em pp. 56-57. ployees, he, along them, but employees Moreover, Preserving carried the Lone Palm Company. He demonstrating tried to falsity stress in the en burden of busy job taking full Florida, with a time at home 12. “State children, young- County of three small care of Manatee. baby arms, est, old, “Personally year appeared me, about one before tbe un- dersigned authority husband. and in and said state “We, us, Smith, county, each of know that Karl L. L. Karl D. Rose employed Davis, Lathe, has em- Smith ployees numerous Thomas D. Robert C. establishment, Moore, Moore, of this Mattie Edith Un- M. A. guaranteed Underwood, derwood, who, each worker has drawn a Oscar N. aft- (seventy-five per duly sworn, cents) being say: minimum .75c er worked, are, (have been) working togeth- or more. hour “We “We, us, er, dba, Preserving each of know and Palm state Lone Co. Palma discharged Sola, growing preserv- D. Davis Rose has not been Fla. a fruit Smith, operation, caller, Karl L. nor has she hired been did have J. B. Mc- not, Cutcheon, him. She is nor has bеen since introduced who himself as a employee establishment, Department an this member of U. S. of La- here, bor, October, still worker about the middle states “Said, satisfied, under oath that she is B. J. McCutcheon receive very wants to be left alone the U.. time each us S. De- considerable in a partment manner, through of Labor. was fairly courteous conducted “(Signed) Smith, plant explanation Karl L. our with a full (Karl operation, Smith), L. of our. but he was allowed to investigation, Moore, Robert O. make-no or examination of (Robert being explained records, Moore), O. several times Moore, Mattie M. him door was closed to S, (Mattie Dept, Labor, Moore), M. member U. due Underwood, Edith the Criminal of a former A. to gation, acts investi- agitation. (Edith Underwood), and labor A. Smith,. Underwood, Underwood, “Karl L.. Edith Oscar N. A. (Oscar Underwood). Oscar Underwood knew N. N. Mrs. (Myrtle Coulter) very well, R. D. Coulter “Sworn and subscribed me before premises day March, lived on the 21st as! she of the Pre- serving 1951; “Clancy Hebb, Plant 1950 and state Notary Public, that at no. time was Mrs. R. said D.. State of Smith, Large. hired- or.fired Karl L. Coulter Florida at partnership My expires or- the dba Palm Lone Pre- commission Dec. 1955.” Coulter, serving very Mrs. Co. R. D: *12 only pain, pleasure part a this questioning that of tire course to be life are satisfactions of Whether co-operative venture. things. They developed found material corporation not was not protect sought government’s Americans in their “testimony” of unless beliefs, thoughts, argument their emo- closing their is to be counsel They tions their sensations. proof.13 accepted as against govern- conferred, as phase case is of this The short right ment, the let alone—the be rights appellant was within well comprehensive rights most pеti- seeking which material right most valued civilized prose- government attorney to tion the * * * men. Men born free- did not The McCutcheon. cute naturally repel dom inva- are alert to Judge government; belong and the to the liberty by sion their evil-minded Attorney could United States and the greatest dangers rulers. The regarded The as untouchables. not be liberty lurk in encroach- insidious sought mean- to make this he sole use well-meaning zeal, ment men of ingless make an unsuc- document was to understanding.” but without [Em- government proper plea cessful phasis supplied.] instituted official investigator. government naturally Those are under- words produce Omnipotent evi- stood the Cult of the failed sustaining any captive Bureaucrat. Indict- Its count members dence governed by the fetish that men must be ment. superior insight those wisdom and IV. might up who make of the central necessary government. goal to condone is not Their is under- and actions to Washington attitudes may lant’s reach of be so extended plain from this en- long, It is stand them. may its insensate arm be laid natural, if too upon his was record that tire the individual citizen wherever he uncontrolled, aggressive may reaction to be, to the end that the intimate de- prevalent of mi- all too officiousness tails of his life into be directed se- im- functionaries. nor federal subjected lected channels to minute pulses regulations. dictated his conduct were They which are oblivious of the deep- teachings which are not different from those history gov- too much every country. citizen of this seated always ernment from too far off has been Mr, gave expres- Justice Brandéis once tyranny. counted lying behind sentiments sion to the appellant and the race of But which guar- Speaking prоtection them.14 is know and understand those scion Bill to individual citizens anteed and for centuries have counted words Rights, he said: among shibboleths under them the sacred happily men live can and fruit- “The makers our Constitution fully. The from which tribe Smith conditions fa- to secure undertook backbone, hope, sprang- pursuit happiness. once vorable —at always glory significance recognized of this nation —has They been build spiritual nature, accustomed to monuments those of his feel- man’s light They of freedom ings in whose breasts has knew of his intellect. corporation ‘corporations’. That is when the 1953. Who “He talks misleading formed.” case? There is this corporation; evidence of a no dissont in Olmstead v. 14. His fact, Lone Pre- and m Palm truth 438, states, 1927, 478-79, 277 U.S. Company incorporated serving un- wasn’t 72 L .Ed 944 5 cited with S.Ct indictment was returned til after approval in Brock this Court v. United States, 1955, 223 F.2d *13 398 brightest аnd will- burned who been have WILLIAMS, Appellant, Leonard J. greatly satisfy sacrifice ought yearning let alone. v. to be thought fire, fanned to be UNITED America, of STATES Bran- Appellee. of men of the stature Mr. Justice déis, quenched by dec- could be two brief No. 16032. of the Era the Lost Sense ades Appeals Court
Proportion. Fifth Circuit. June 1956. do not excuse
These considerations under went excesses to which Rehearing July 31, Denied goading their who directed of those repeatedly hamlet efforts to this so Florida, when hinterlands of at time reports
their complex admit that obedience Labor Fair
structures in Standards had not been achieved Act
fifty industry percent the na- testing they important tion.15 in But government judging whether
proved appellant’s criminal intent on “wilfully”
part, “cor- he acted —that ought ruptly”. they that, More than inspire
have served to upon that, whatever
be its mettle see forbearance, patience, in the cost in in
understanding, magnanimity, this en- in including episode tire below should conducted strict conformity rules with of fairness and Anglo-Saxon accepted concepts
with
Justice. оbliga- lay us, too, upon And proceedings tion to test all these light their details eternal making
principles, sure that we have joined per- in the demonstrated loss of spective ready we stand ever appearance appellant. entered No miscarriages plain prevent justice. Hamilton, William N. William O. ample power justice We have to see that Braecklein, Attys., Dallas, Asst. U. S. 52(b), is done this case. Cf. Rule Tex., Floore, Atty., U. Fort Heard L. S. Rules Criminal Procedure. I would Tex., appellee. Worth, judgment reverse the of the Court be- acquit low directions to under the HUTCHESON, Judge, Chief Before again try indictment the informa- BROWN, and RIVES and Circuit Judges. tion under the standards here defined. lation of Basic percentages of “Establishments in vio- from and of the those Quotations Hour- the Annual investigated, Department of set Public Provisions”, forth Reports to be: Contract Division Labor appellant’s based show upon brief [1950] ..... ..... ..... ..... ..... 57% 56% 52% 58% 51%