Luther M. O'Brien v. United States

Atty., orderly certain Conway, Mo- duct an trial and to make S.TJ. Don Asst. possible is no mis- bile, Ala., appellee. far that there for understanding testimony of the the GODBOLD, Cir- Before GEWIN Considering the conduct witnesses. CHOATE, Judges, District cuit entirety, the conclude that trial in we its Judge. judge the error.2 not commit trial did testified After Government a witness Judge: GEWIN, Circuit examination, counsel for direct appellant guilty of jury the found requested opportunity “to make an charges two-count indict- contained a request the a under the statute of given concurrent one- ment and he was presence Jenkes case.” Out of the [sic] Count year each count. sentences under presence the the the but in unlawfully charged retained One attorneys, defendant, the Government’s print-punch mon- concealed a stolen appellant’s attorney the and Postal ey issuing and United machine Brown, Inspector the court considered postal orders with the States request thoroughly. counsel’s The Gov- gain to his use and tent them to convert requested to “turn ernment then of 18 U.S.C. 641. violation any al- over to leged statement unlawfully, charged know- Two him wit- been made ingly wilfully appropriating the into the matter ness.” The court went carefully in viola- own use same his cautiously, no “state- 1707. tion of U.S.C. § purview of ment” within the the Jencks following Appellant contends Act, or decisions U.S.C. § (1) committed: the errors were interpreting it, to exist. was shown judge questioned excessive- the witnesses requested appellant Counsel for then (2) ly inappropriately; the court inspector postal court to instruct the inspector to postal have ordered a should grant I out confer with him can find “so appellant’s counsel an interview to statements, any, previous if him what determining purpose for the whether for had made to someone this witness prior a had made purpose The examination.” cross statements; (3) im- oral inconsistent testify postal inspector before did not (4) admitted; proper evidence was jury during trial.3 The court Attorneys made Assistant or in- would not order stated that arguments jury; improper inspector or not to struct to submit (5) was not sufficient requested The interview. submit to the sustain the conviction.1 effort, if record does not show what any, to dis- counsel for made judge conduct of trial The inspector or cuss case with of fair must measured a standard inspector to discuss the had refused impartiality. He is not ness and duty appellant’s to con- counsel. mere It matter with is his moderator. Appellant’s specify contentions 1. not errors We have listed the brief does certainty. caption portions “Is as set forth in other Under argument. his brief and in oral For is the fol sues Presented Review” lowing : Kyle F.2d 443 court 1. Whether or not the trial 1968) (,5th ; Estrada erred in its extensive examination prosecution. F.2d for witnesses Ostendorff, United States v. below commit error Did court refusing defendant, request inter- his for an out of court testify investigator inspector did in connection for the view with an of wit- fifth amendment claims ? cution nesses, appear as wit- but he did not 3. Was it error the trial judg- deny against motion for ness defendant’s acquittal? ment of Supreme placed arguments Court has Those which no duty judge plain affirmative trial to was made do constitute ob- administer Jeneks Act. Final deci vious error.6 production sion as to must rest within Finally, come to the conten we good experience” “the sense and tion not sufficient evidence judge, guided by district the standards to sustain the conviction. At the conclu Supreme outlined in Court decisions.4 appel sion of the Government’s

We find no violation Jeneks Act judgment acquittal lant moved for a any rulings or error offering rested his case without evi judge on issue.5 dence. The district court denied mo admissibility of evidence tion and here attacks that rul governed ing. considering trial of criminal cases In contention by rule 26 Rules of Crim appellant perhaps important of the Federal his most requires retry inal application rule Procedure. The one—we do not the case or substi judgment common law as inter jury. tute our for that of the preted light courts in the the Federal We must review all except experience, light reason where whole in the most favorable to the Congress the other criminal Government and determine whether a provide rules test reasonably otherwise. The chief reasonable-minded could ruling materiality. is relevance guilty conclude that the defendant was evidentiary questions beyond court the trial a reasonable doubt. The evi rulings has wide latitude and its thereon largely dence in this case was circum should not be disturbed in the absence stantial. Such evidence must be consist of an guilt abuse discretion. We are un ent with the of the accused and able to the trial court conclude that com also every inconsistent with reasonable respect rulings hypothesis mitted error to such of his innocence.8 in this case.® clearly The evidence shows that September 1965 the United Post jury argument During the there Nesbitt, Mississippi Office in was bur- objections by were both Government glarized print-punch money and a and the The trial ruled approximately machine and 600 United objections view, and, on all in our made Money States Postal Order forms were During correctly jury. instructed postmaster stolen. The estimated that argument court, oral before this weighed order machine ques raised an additional proximately forty fifty pounds. tion about one made very witness, reluctant prosecution object in to which he did not Hinds, carefully testified that present the trial re court. We he was rulings viewed all the trial when the machine and judge and error. find them be without stolen. The orders were States, Kyle States, 4. Palermo 7. supra; v. United v. United Samuels 354-355, States, (5th 79 3 L.Ed.2d S.Ct. 1287 v. United 398 F.2d 964 Cir. States, (1959); Campbell 1968) ; 365 States, Garcia v. United 315 85, 89, (5th 1963); U.S. 81 S.Ct. 5 L.Ed.2d 428 F.2d 133 Dunn v. (5th .Cir. States, United 883 Cir. 1962). States, v. E.2d Williamson United (5th 1966). Montoya States, Cir. 402 F.2d (5th 1968) ; 847 States, Cir. Weaver v. United States, (5th v. 361 F.2d 1967); Cotton United 374 F.2d 878 Cir. (8th 1966); Phillips States, Cir. Williamson v. United 365 F.2d (9th States, (5th 1966) ; Cir. 356 F.2d Cir. Strauss v. United 1965) ; States, (5th Holt v. 342 F.2d 311 F.2d 926 1965). McFarland v. United from the Nesbitt Post Of- Memphis, and those taken Arkansas to West taken accompany among them as fice. She did not ways wit- four were divided Washam, three, requested. Finally the persons identified three other ness and together appellant, Sweeney left and the Washam, Sweeney and Henderson. taking car, appel- the two boxes that the name testified Hinds them. conversation mentioned lant was property. the stolen about with Washam principles we have Tested he saw testified that He further above, there outlined we conclude Memphis, Tennes- lant with Washam was sufficient sustain a ver evidence to question, “Did see. When asked guilty One. dict of under Count Since defendant, give see Washam one-year imposed under sentence O’Brien, dollars to and five one hundred one- Two is concurrent payment on his automobile make a year One, do sentence under Count we to Mobile down here duce him to come sufficiency question not reach the of the postal money pass orders?” the and support of of the evidence to the verdict responded, “I there was believe Hinds guilty under Count Two.9 gave money an automobile some [sic] Judgment affirmed. part payment. the other Now what was that, question?” He testified (dissent- GODBOLD, Judge Circuit going to talk about while there had been ing): Mobile, nothing about O’Brien was money point passing the At this on orders. conviction should reversed respectfully grounds. the shifted scene I elicited either two Mobile, Memphis to Alabama. dissent. charged Appellant was with violation Bolling testified The of 18 U.S.C.A. § § first that she met for the the (1) first are elements offense Sweeney he, Washam and time when possession property (2) knowl- Septem- Mobile in came to her home in edge that stolen from the United it was trav- ber 1965. three of them were The (3) with intent to convert together eling model Cadillac in a late gain. possessor’s Section use or her entered the three automobile. When requires by steal- actual conversion carry- Sweeney were home Washam and ing, embezzling, appropri- purloining, ing the con- two She did see boxes. ating property used the United tents of the one as boxes but described element the States.1 On each being obviously than the other. heavier present ment from which must evidence nothing O’Brien said might guilty be- find accused presence hearing Washam yond a doubt. reasonable Sweeney they told Mrs. money judgment contained orders. Appellant’s boxes motion for Sweeney, importuned They, acquittal counts, Washam and end filed at the on both go money pass government’s her to with them to was denied. case They buy clothes, promised My her Appellant orders. presented no evidence. wigs things hairpieces, judges proof other dis- brother conclude guise on appearance. the verdict was sufficient to sustain her She was assured One, fool-proof possession count. Since and that Count the scheme was They appellant apprehended. sentences concurrent she would not be on do not the evidence were review told her that orders 99, (4th States, States, Hirabayashi 1959). 1375, L.Ed. 1774 63 S.Ct. (1943) ; States, 345 Mishan v. United elements of both Fabianich 1. For a discussion F.2d offenses, Conerly U.S.App.D.C. v. nee (1962) ; Clark 350 F.2d 679 eight Two, count. counts the conversion orders in violation of conspiracy. forgery judgment insuffi- my and one count of the evidence was Causey The motion established cient counts. evidence on both judgment acquittal out of the house where should have been was being forged granted. night forging place, that took Only the occurrence trip de- he took an auto with the other connect tend to the incident in appellant fendants, trip that on the some stolen with the passed, that stolen orders were pos- support he was inferences that register signed guest defendant requisite intent.2 and had the session couple group of motels. for the court out of hand Without discussion the rejected place significance took of what insufficient on the evidence as Bolling’s rests apartment in Mobile except count, conspiracy all aft- wrung ultimately stipulation, discussing er held as to that the facts trial, from the nothing proved count had been apartment, and nothing at the lant said opportunity, by than an association with single and that with guilty parties, conspira- to become a nothing exception he did doubtful apartment tor. pres- other than to be of dis- stolen and ence of the Montoya In v. 1968), concerning pleas Mrs. to it. The cussion this court reversed orders, prom- money pass to transporting a conviction for tating and facili- clothing disguises, the assur- and ises of transportation and conceal- apprehended, the not be ances she would quantity ment of of a marihuana on evi- (unopened) the two identification of possession considerably strong- dence of containing money forms boxes as Montoya presented er than that here. machine, punch the state- and and the riding passenger was arrested while a orders, money ment of the value body, pick-up truck with a closed Sweeney, and all came Washam containing weigh- 25 sacks of marihuana only appellant. infer- none from ing pleaded pounds. The driver ence, for below reasons discussed guilty to a narcotics offense. But Mon- tending one, to show is a tenuous toya along asserted for that he had been ambiguous anything refer- did is an jail the ride in to visit his brother “they” taking to the boxes ence to merely way home. En route putting seat. them in the back car and strange ranch, driver went to men a two Causey away took the truck and later returned 1965) requires for in- it, Montoya reversal resumed driver sufficiency This court journey. of the evidence. their The road where Burl E. Cau- Montoya’s reversed the conviction of were arrested did not to lead receipt, charging con- sey count on one house. This court there concluded that money postal proof of possession. cealment retention was insufficient quoted by Hinds, else, answer of in been the mind of someone calls majority, concerning for a for a conclusion. imply payment, that Hinds to car seems quoted answering part only that THE evaded COURT: can answer He question asked if the which what he saw and heard. On basis appellant may question. to come to induce to answer the pass money But orders. Thus all we know from the question gave appellant answer and the occurrence is between the that Washam by ruling payment and a there was an for a car and that passing money follows: the court as orders was not discussed. subsequently appellant Counsel]: [Defense MR. HAAS We know please, Now, if this witness was in the Court Mobile with Washam and Sween- may may ey, not have know what in whose car doesn’t we do not know. matter, stipulation on this for re- forced my also calls In this case view argu- the heart to in which went prosecutorial overkill versal impossible found it pros- had ment’s ment, inextricably earlier linked to taking during to to hold counsel it. ecutorial conduct again de- testimony.3 and over Over representatives by official Statements objected, without often fense government taken must be of our (de- success, in the efforts they say. must And courts mean what Bolling’s apart- scribing events willing be that what said insist sweep of ment) appellant to catch discipline law- adhered “Judicial to. “they” describing did terminology what self-operating. yers It must be is not said, “they” the occurrences Pound, Criminal Jus- invoked.” Roscoe posses- to the issues are central there America, 195-196 187 at tice intent sion Unfortunately is not case time, to the wall forced And each when fairly say that counsel which one can counsel, government accuracy, of strict momentarily away “the carried recognition Bolling, and Mrs. receded of the trial” and “the ardor excitement appellant.4 “they” include did not advocacy,6 or mere these were reading missteps. forensic government In the first the consistent thread of record discloses “they” ap- resumed the government appellant effort to catch including proach, in both what done and said the net what was apart- “they” “they” at the did and characterizing others occurrences counsel, objection by ment. On terms that included him. prosecutor court reminded argument, stipulation in at- noth- not all. had said ing. thought tempting appellant, tie One would have last, would, long counsel overstated what the evidence have ended a in- approach showed as matters. These which never should critical cutorial argument begun. that cluded a statement But in final government picked up orders the Hinds discussed second counsel testimony. highly prejudicial re- no such refrain. His —there objection, peatedly each instance after incorrect remarks are set out margin.5 objection court would if the instruct that no There was disregard fairly correct point. statements not fault But one cannot them. In the context of this case those defense had met little counsel. He admonitions were not sufficient. throughout success in his efforts trial counsel to restrain re- over tarring appellant brush having ferred to mis- defense as literally having plural Bolling pronoun, treated and maltreated Mrs. problem, people testimony 3. For a full discussion that there is Nesbitt, Singer, burglarized Misconduct see R. Forensic Mis- Grew, sissippi it Federal Prosecutors —How Post Office —came here to (1968). Street, Ala.L.Rev. 227 went into a house to Church Washam, together O’Brien, and Sween- Bolling 4. On of Mrs. cross-examination ey. they boxes That took these two objections counsel, most of his they That there. discussed fact “they” having been to the in those boxes were the sought unsuccessful, prior in- to show a print-punch money the stolen Bolling to consistent statement passing they And machine. discussed nothing. appellant had said the effect that They help passing them. them. needed gov- It this time was not until girls go And asked these objecting ernment, to the statement irrelevant, acknowledged (Emphasis added) them. as nothing apartment. had said 486, Dunlop : it be doubted that 17 S.Ot. L.Ed. 5. MR. Gan SEGREST Washam, one M. Luther O’Brien having every legitimate bring cruel to her on the use been means to just prosecutor referred to the stand. One about a one. apartment men U.S. at S.Ct. at 79 L.Ed. Objection to sus- “hoods.” this was at 1321. tained, denied, motion for mistrial prosecutor apologized court. The final sentence the first

ment was: guilty. is We know he

“He is ought

guilty, and I the verdict submit added) guilty.” (Emphasis

to be objection to this There was no statement knowledge judicial personal extra GENERAL CORPORATION, FOODS guilt, coming Plaintiff-Appellee, it the last but did as argument, plain word of it was error.7 COMPANY, CARNATION Defendant- Appellant. prosecutorial is much over- There so instances, single kill in this case No. separately focused of which if several Appeals States Court of reverse, upon to be would alone tend Seventh Circuit. submerged cumula- in the whole. The June impels conclusion that tive effect pellant deprived of a fair trial. ringing Berger proclamation

still alive: Attorney United States ordinary

representative par- ty controversy, sover- obligation govern eignty im-. whose obliga-

partially compelling is as as its govern all;

tion to and whose terest, therefore, a criminal cution shall win a is not that justice As done. shall be

such, peculiar very defi- he is law,

nite sense the servant guilt aim of twofold which is escape

shall innocence nor suffer. may prosecute

He with earnestness vigor indeed, so. he should do But, blows, may hard while he strike liberty is not at to strike foul ones. duty

It is refrain from as much his pro-

improper methods calculated to wrongful conviction it is

duce a Berger fairly support Sutherland Justice record does not [by personal knowledge “riding “[Assertions inference that defense counsel was attorney] apt verdict,” prosecuting are Crocklin Cf. weight carry against the accused much E.2d 561 He carry repeatedly properly sought keep government none.” should when Berger U.S. within bounds once in oral (for L.Ed. 1314 S.Ct. moved a mistrial “hoods”). reference to

Case Details

Case Name: Luther M. O'Brien v. United States

Court Name: Court of Appeals for the Fifth Circuit

Date Published: May 19, 1969

Citation: 411 F.2d 522

Docket Number: 25376_1

Court Abbreviation: 5th Cir.