Lambert v. United States

SIBLEY, and Before HUTCHESON HOLMES, Judges. Circuit HUTCHESON, Circuit Judge. physician, Appellant, a indicted in selling, in a fifth four count counts narcotics, conspiracy to sell to one Christian, in violation Harrison Act, seq. 1040 et Narcotic U.S.C.A. § counts, acquitted He was on the substantive conspiracy convicted and sentenced on appeal By his assails the ver- count. unsupported by as dict as acquit- inconsistent with itself because it only ted him on substantive count sub- convicting him of mitted to while spiracy. trial He assails the as attended rulings erroneous with such of, by, and comment actions the trial deprive judge, as to him of fair trial. complained on evidence are admission evidence as (1) the paid drugs, for narcotic Christian, furnishing them acts before, occurring having the substantive no relation to offenses therefore, claims, charged, him; conspiracy to convict (2) placed appellant’s ex- limitations cross witnesses, of Government amination prevented claimed he was illegal showing that ar- rangement was entered into. complain- judge The actions the trial depriving appellant ed of as of a fair trial brusqueness severity are the of some remarks, occurring and actions of his dur- appellant’s counsel, ing colloquies with over offering his efforts and conduct and in to, finally objecting Resulting evidence.. imposition of a fine and an order to put jail, marshal him in later re- scinded, colloquies up bound are so defendant’s efforts cross with tion, examina- HOLMES, Judge, dissenting. Circuit and are illuminative atmos- further, out is evidence to phere set them that we count, support conviction on the a note.1 appellant may complain he was verdict’s want of As not also convicted on the substantive count. evidence, appellee points that while out at verdict did move for a exceptions It answers the to case, it did not close of the Government’s well evidence that these were not motion all the evidence renew the when taken, were, if no substantial was in. prejudice resulted to the there- from; inconsistency comment and action claim of while as to the answers the complained depriving in of the court of as insisting (1) the verdict inconsistency, appellant’s him a because of fair it insists was no himself, brought guilty could of a to counsel on ob- sale; streperous, conduct, if guilty sell without the actual not being of contumacious witness, record, he could “I 1 The Dr. Har have his am not Government’s ap going grove, day talking being cross-examination, to sit under here all question; pellant’s counsel asked this the same matters.” any questioned Doctor, you con- witness then “Q. was as to agreed conspire whether he to federate or with Dr. Lambert with Dr. Lambert any any bring sale, commit or other sale act or about this crime reference any any man, laws, Christian A. I did in violation of this one else? State Objection sustained, national; not consider it so. question yes, exception. “Q. You can there was an answer that questions you?” substance, no, Doctor, The same in can’t objections objection Whereupon made, asked and the same Hargrove improper, when Dr. Vernon in was on was because it called effect whereupon stand, legal conclusion, “I for a the Court made said: and sus- you, Edwards, you have told Mr. couldn’t tained. question. you argument Judge ensuing, ask that you An Now know what rul- you ing really can’t, being can ask and I that the witness ask- you legal conclusion, don’t want to have to ed for a warn and Edwards contending following differently, more about this.” col- on, loquy Later another when Government had. stand, object witness was on the for de- “Mr. Edwards: I counsel to the attitude objection Judge fense thought an made the Court in this case I towards me. myself frivolous, said: have tried to and he conduct in the best getting “Now, Edwards, I am Mr. tired manner how, that I know but the Court your part, keeps continually jumping on of this method conduct on me in the going stop it, presence I and I am have of this and it have no can you.” prejudice fine other effect than to the minds excep- jury against my a bill “Mr. Edwards: I take me and in client object remarks, simply and I trying get tions to the Court’s I this case. am some presence to' them 'made in the facts this I I witness that think jury; have, it could other effect than am have entitled to and which the Court my eyes prejudice object get. trying me and client seems to me jury.” objecting to, “The Court: “What I am you Edwards, I Edwards, told “The Court: Mr. Mr. continual habit of up. jumping arguing me, to shut in and going every ruling I am shut “Mr. Edwards: not I face make. Now I am going up. going my rulings respected am to talk as I to have I my put you jail. client demands. interest have to Go ahead. a fine of five Enter dollars “Mr. I “The Court: Edwards: will withdraw Edwards, inquiry Mr. Mr. Clerk. whole line of again.” and start over jail go I will and rot “Mr. Edwards: my life, I for the rest of in there Thereafter the witness was asked sub- my represent going stantially I question, client as am the same and the ob- jection saying: sustained, fit. see the Court Marshal, “Now, Edwards, take Mr. Ed- stop Court: Mr. “The Mr. want jail. put subject up him in Take some other wards this. minute, going you proceed Edwards: Wait I am “Mr. to let get my papers fellows, let me before one.” this way. drag exception argument me off There was an my Bring by' thought him into office. Mr. “The Court: Edwards that he he had adjourn questions until tomorrow morn- Court will to ask the and make ing, up ruling by at 9:30.” his record the Court that

963 Katz, all, appear v. and after does L. prejudice States, Cir., from what occurred. Ed. Young resulted v. United F.2d 26. that, appellee agree We say This is not different evi- inconsistency of conviction on one count dence Lambert found not. others, evi acqidttal where the sell, aiding and of on them all to sustain dence sufficient sale, abetting v. Unit- c/f Smith conviction, o inconsistency f which States, Cir., say, 50 F.2d 46. criminal case com a defendant though, proof charges under inconsistency is is plain. as there Such spiracy selling, sell and of that one hjs complain only of a favor. He buyer purchase, to effect a which is without proof acting is not that he was only do when ei evidence. This he Every sellers effect a sale. fact and cir- to timely way in moved ther has an points appel- in cumstance record the verdict, against or the verdict instructed Christian; lant as aider and abettor of manifestly is, record, him un single points not a one to him as an aider require the court notice just as to Hargroves. or abettor of the The Dis- Appellant fail having own of its motion. so, Judge, seeing trict was as to the evi ed to renew it at the close of all counts, 2, 4, the substantive sale 3 and dence, motion he the waived the made at properly for defend- instructed verdict close case for direct of the Government’s seeing on these. jury, ant The verdict, not, therefore, and count, properly so as to the first acquit- was evidence, for want of unless reversal here him aiding abetting and the ted of in sale record, upon an examination of the the charged in that count. The same evidence motion, convic court’s own that the shows which failed to establish that he aided and unsupported manifest wholly and was sales, abetted in these likewise failed to es- ly unjust. party tablish he was a with the Har- appellant’s complete view of ac these, groves conspiracy to a make direction, quittal by by and jury’s the ver sales, morphine, other to Christian. charging dict on all the counts him with error, plain therefore, ap- There was aiding abetting and in the sales Chris parent on the face the record letting in tian, and of the state of the record as to the go jury, the case in and thereafter conduct we have of our own letting stand, which the carefully motion examined the evidence. judgment must be reversed. Finding appellant’s in for con error, too, count, There reversible in conspiracy viction on the we reverse complained unjust. conviction as and Judge’s the District actions and comments theory The of the indictment in the in the course of the trial. counts, four substantive charg- and in that ing conspiracy appellant, acting is that with Directly charged in the indictment Hargroves, junior, senior and first con- conspired having with with the two Har sell, spired and then carried out tile groves to against commit “offenses spiracy by selling, morphine to Christian. States, viz. United violations of Har nothing legally wrong There is with this Act”, rison Anti-Narcotic defendant was theory. entitled, examination, on cross to sift thor oughly Appellant could him guilty witnesses to show sell, agreement he had made no also of with aiding and morphine witnesses sell abetting in the sale. The to Christian and difficulty here is proof. All that to make clear all that it shows with appellant said done is that questions with intended. The acted Christian in his efforts asked and perhaps purchase. general, excluded were does not show too that he asking very sense with were close witnesses concert questions the answer Hargroves, sellers. His concert their Christian, purchaser, United States Spaulding, verdict. See v. not with the 273, 617; Hargroves, 293 55 the sellers. Under the U.S. S.Ct. 79 L.Ed. Sauls, Cir., 886; 4 no more have held United States v. 65 he could F.2d Christian, States, sell, Cir., than United 5 Miller v. 71 F.2d States, Cir., S., Cir., 362; 357; Hamilton U. 5 73 F.2d Lott United 9 205 v. v. F. c/f McLoud, L.R.A.,N.S., 409; 204 Norris v. v. United Walker Cir., States, F.2d 495. Counsel seemed to think United States States, Cir., 82 F.2d v. United son questions rejecting these complained offered the evidence But examine denying cross him motive appellant’s light on here threw no Though we negatively. both positively and charges or intent connection purpose do not think that was the or effect Indeed, there trial. for which he was on rulings, misunderstanding, pur- of the free- Appellant point. was no issue on that persistence, perhaps sued counsel -with ly admitted he took Christian contumacy, caused so serious and heat- morphine, while help get him doctors disagreement ed a Court engaged vigorously denying that he was atmosphere hinder, so tense as en- any conspiracy action with concert of tirely prevent, a fair trial. Hargroves. overwhélm- The evidence replied If was the it is to this that it judge this, jury and ingly established untactful, contentious, and al disagreeable, counts. four substantive so found personally in which most offensive manner objected then, was without to evidence appellant’s which counsel conducted his case charge for he was relevance brought very mildly him down Its could have on trial. introduction court, disciplinary the record action eyes effect, prejudice one him appellant’s was, plainly counsel shows that him, jury, be- tend to convict faith, good good judgment, if not with prior connec- having conduct cause finesse, represent endeavoring tact and to with, to, or relation the offense ability. his client to the best of his And in he which on trial. client, counsel, end it the not who but , trial, though In the of another event irascibility and suffered from his counsel’s it, upon think we point no was made we provocativeness, Judge’s and the District palpable call a error in attention to should kind, response to it. situations of this charge, question reasonable upon the the preserve certainly Judge while the should 2 it in It erroneous ef doubt. is protect dignity the court requires acquit him the defendant fect greatest doing should be care exercised self, requiring rather than the Government upon so as not to react the defendant Subject only one inter to convict him. himself, controversy least as to who at only one ef pretation, it have had could counsel, wholly in court and is a between upon jury to believe fect have them bystander. nocent duty, by his that it was the defendant’s too, permit It was error testi as to raise a reasonable doubt mony purchases morphine made, as did guilt, and that unless his evidence prices paid morphine by ap and as Instead, so, convicted. he should be pellant prior wholly 'to and uncon short, Government, by requiring its matters nected for which was evidence, guilt, to establish defendant’s be trial; permit testimony as it was to as doubt, yond putting all reasonable thus transactions between defendant, on it convict burden prior Christian also and unconnected defendant, required by his evi charge charged. indictment dence, doubt in his to raise a reasonable favor, upon put him the thus burden prose doubted not be that in acquitting as innocent. himself conspiracy, cutions for evidence similar judgment is reversed the cause or acts committed at about the same time remanded for further and inconsistent is purpose, a fraudulent is admissible proceedings. bearing as on motive or intent in proving fraudulent criminal a or scheme. Reversed and remanded. John- by duty acquit. ease, your “If the evidence offered tbe Gov On then it is outweighs by you weigh- band, feel, ernment that tbe other offered you defendant, equally balanced, ing pre- is all of the evidence been that has by sides, come to conclusion based all of sented both that of the outweighs equally presented, the evidence that is wit defense balanced is by stand, Government, took the nesses who the documen with that offered aft- given by tary might you applying offer as er the law evidence by ed, Oourt, acquit, and if offered Government should but then outweighs by by defendant, equal offered it fails to balance or that offered taking testimony and as rea- the Government and not that presented, applying spoken, has it the which I sonable doubt about duty given you- by Court, law are then to find defend- beyond charged.” a convinced reasonable doubt ant as has failed a the Government make out

9 Go HOLMES, (dissenting). immediately occurred thereafter. Judge Circuit material to show the whole deal course of case, by as established The facts in this Moreover, ing parties. between the it tend undisputed the verdict evidence and ed to refute the contention that jury, as follows: are by was actuated humanitarian motives physician Appellant practicing was a had financial interest transactions special paid registered who tax, Hargroves between Christian and the by required as 26 U.S.C.A. §§ Grayson S., Cir., 553, 558, v. U. F. by man began treating a when he denied, 637, 42 Certiorari 257 U.S. Christian, formerly who had the name of S., Cir., 66 L.Ed. Madden v. U. of narcotics. to the use been addicted F.2d denied Parente v. Certiorari complaint, chronic Christian had a States, United 48 S.Ct. person having bona a a classed as re- was not for narcotics and fide need assigned Error to the refusal of the Appellant, garded by doctors. al- other require Hargrove give Dr. immediately, began supply pa- most categorical question, answer to the “Doc- prescription morphine, tient tor, confederate or con- practitioners, by legitimate usually done spire bring with Dr. Lambert to except emergencies and in bedside treat- other, any- himself, sale or sale to this man or ment, drug dispensing the one else?” The was answered charging about ten times the therefor cost statement, so”; “I did not consider it drug. yes insisted an- Christian for several supplying After swer, appellee objected. Since an profit years at of two or three dollars simple negative answer form could have indicted, day, appellant entered per probative had no more value than ac- fine, paid guilty, and surrendered plea error, tually given, any, prej- the was not dispense license to and administer nar- his udicial, and affirmance should follow under thereafter, immediately cotics. Almost he 391. 28 U.S.C.A. § of about took Christian distance one hun- question It conceded that must be the Hargrove, dred miles to a doctor named see improper ruling and that of was the the persuaded sup- appellant agree to whom correct; majority court was the finds ply narcotics Christian at the same rate appellant may that counsel received, pay prescriptions of he had that, misled, and due to his obstinate in- patients written therefor the names of be upon question, unpleasant the an attended, sistence Hargrove and whom Dr. filled provoked operated which was scene the Hargrove, druggist. of Dr. son ,of appellant. Even if it con- prejudice be arrangement, Pursuant to this Christian predicated reversal be that a should ceded purchases Hargroves, many made from the adequately upon failure of the court ten, fifteen, purchase being each of appellant against obstinacy protect morphine twenty grains of at one dollar counsel, his own erudition of lack of per drug grain, being none in or of the case does not in this record original stamped package, from the as re- following is taken from conclusion. quired by (a), 26 U.S.C.A. 1043 and none special eighth and bills of ex- seventh prescriptions legitimate of the for a appellant, preserved by ception rather than bearing medical name use or of the testimony, be- from the narrative of sold, patient drug to whom the as re- present appel- verbatim what cause quired (2). 26 U.S.C.A. 1044 (c) That occurred, elder Har- lant contends sales constituted violations these conspirators, alleged be- one of the grove, Harrison Narcotic Act is too clear dis- stand: “The Court: The ing witness cussion, jury and es- ‘confederate,’ words, ‘conspire’ or sus- are formation tablishes the of a criminal con- interpretation, legal Mr. Ed- ceptible of spiracy, in violation of 18 U.S.C.A. § really asking wards, you are him error There was no the admission meaning interpret of those do is to testimony relating morphine to sales of something go on else.” Now words. by appellant prior to Christian to the for- counsel, excepted ruling was conspiracy. This It mation of the showed that record, his making insisted who furnishing had been narcotics substantially the same permitted ask privilege Christian until he lost court ob- sustained twice. The drugs. disputed dealing such is not thereto, exceptions duly Efargroves jections with the the transactions repeti- proper question, repeatedly propound- Upon the third and allowed. taken tion of the improper appears being ed ones. objection that.coun- question, conduct, sel’s which him to You later caused “The Court: made, court ruled: fined, patient Edwards, subsequent be him, if he made may Mr. ask narcotics, explanation court, painstaking by the which respect agreement to these clearly in viola- counsel understood. but whether or he was question of law.” law is -a There was no reversible error (the witness Subsequently, another when dealing court an un- action alleged younger Hargrove, also ruly attorney, nor be can it said that cross-examination, the spirator) under bystander, was an innocent since occurred: following him guilty found might justi- on evidence also Q. Did and Dr. “By Mr. Edwards: fied a conviction on the substantive offenses any conver- father have Lambert charged indictment. The together or confer conference sation or present, presumably countenanced any law? violating about employed acquit- the methods secure his Honor, Now, Your I ob- Hardin: “Mr. Early attorney began tal. his thing the same he that. That is ject argue with the to been made Your other witness that went over prog- him. As trial out. Honor ruled ressed, object he went so far as to ob- I have ruled on that “The Court: tending preju-. attitude of the court as jection Mr. Edwards. and sustained him jury. and his before dice client these wit- ask have told Then became defiant and said he was any agreement they had nesses talk as as the going interests narcotics, wheth- delivery or sale of fine demanded. A dol- client five the law is it was violation of er only provoked say him lars that he would the witness cannot law that a matter of life, jail rot the rest go of his pass You ask him about on. going represent he was client any agreement was arrived at agreement, if circumstances, as he saw fit. narcotics, but he regard to the sale predicated upon reversal should presumption express any opinion wheth-. 'about cannot er prejudice resulting any law. they agreed to violate misconduct of counsel. Q. “By Did Mr. Edwards: testimony majority finds The which the any the sale agreement of narcotics sustain on the insufficient to a conviction only agree- ? A. man Christian The this conspiracy count includes the uncontradict- I that to let Mr. ment we had was co-conspirator testimony of a ed that morphine— this Christian have agreed, per- reluctantly after much latter “Q. (interrupting) That was with commit, appellant, to and did suasion commit, agreement father, did have an all but crime, viz., supply narcotics a morphine to sell together that him were pointed It is out the ma- Christian.1 he it in violation of if wanted when and conspired appellant jority had with that any law ?” purchase the narcotics. On Christian to Katz, authority (271 of U. S. v. U.S. clearly appears that the Thus it court 513, 354, 986), prop- urged 70 L.Ed. counsel as it is only instructed not may charged buyer a not be with the manner in which procedure er line of tually pursued, the sale is the offense de- might be but ac- where inquiry seller nounced, that, appellant conspired getting in him to ask since succeeded buyer, may not be being convicted properly. The answer un-

question In interrupted conspiracy seller. the Katz quickly satisfactory, counsel purchaser case, holding again put the direct- witness and not be held the seller ruling liquor court. could ly contrary It to the sale, court conspiracy to make the this from that counsel should be evident avoid- embarrassment be permit witness answer said: “This would not a aids, counsels, States, abets, appellant crime, com- counseling ed induces, procures 550, mands, principal its commis- under § 18 U.S.C.A. principal. 5323, 5427; sion, (R.S. Code, (Criminal §§ sec- as follows: “§ 550. 1909, 332, 321, ‘Principals’ 332.) 4, c. 35 Stat. § Who- Mar. defined. constituting 1152.)” directly act commits ever in law of the Unit- an offense defined quotes in indictment for a con- Mr. criminal Holmes Steckler Justice S., Cir., 59, 60, v. spiracy only buyer if the and seller were U. 7 F.2d as follows: commit sub- “The most charged conspiring to that can be said such cases is ingredient in ad- the verdict having an shows stantive offense that either sale, acquittal requiring agree- or the jury dition not conviction to the not completion.” speak conclusions, persons.for their real ment of its does two but that not they show that were not convinced of Supreme clear what the It is Court guilt. interpret the defendant’s We meeting nec- of the minds holds that the acquittal assumption as no more than their complete essary the offense of sale power of a which they to ex- charge not be made basis of ercise, disposed but that, spiracy, substantive offense lenity.” through requiring concurrence of be one not whole, When read as a the instructions charged. parties, conspiracy both jury do contain The not error. Here, purchaser. It judge appears trial his to have modeled Christian’s, mind, definition of reasonable doubt the case necessarily met with the minds of the Har- Hopt Utah, v. 120 U.S. 7 S.Ct. complete groves the sale. When the technically but even de conspiracy formed between fective, I part am convinced that the de present, Hargroves, Christian was and the fining prejudicial. reasonable doubt was not assent, attesting his own and the sale was is certain that attorney appellant persuaded completed when it, requested found no fault with no modifi co-conspirators the sale. to make The ef- cation, exception, assigned took no no er finding fect of the between ror, and did not mention init his brief or appellant and Christian is no more than to argument. oral conspiracies, guilty of two find him both might charged of which judgment think the of the district court him, purchase unlawful to as well should be affirmed. drugs. 26 as to sell such U.S.C.A. § for Rehearing. Motion On States, Berger v. United Cf. PER CURIAM. L.Ed. 1314. 55 S.Ct. judges concurring neither of the As appel- true these facts made rehearing, decision desires a mo- offenses, guilty lant of the substantive is overruled. tion therefor acquittal all that the verdict the other .on counts is inconsistent majori- count. consistency ty agrees that verdicts points required, to the action of the THE NORLAND. instructing on Counts LOE v. GOLDSTEIN et al. acquitting the action of the 1, judge Count as evidence that No. 8862. appellant more considered than aider Appeals, Circuit Court of Ninth Circuit. Christian, not and abettor of the Har- Feb. judge, groves. As to the the record shows 2, 3, that he instructed as Counts present, made, proximity, when the sales were close not think he did aider and abettor under circum- stated: “Of He also course as stances. entirely the situation is differ- one, ent, agree- act of because the after the into, becomes ment is entered the act of ” * * * all. way of knowing We whether jury took the view or not ascribed to States, (284 In Dunn v. United them. U. 52 S.Ct. S. 161), establishing 80 A.L.R. the rule consistency required, verdicts is

Case Details

Case Name: Lambert v. United States

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Feb 24, 1939

Citation: 101 F.2d 960

Docket Number: 8832

Court Abbreviation: 5th Cir.