*1 UNITED America STATES
August SCHARTNER, Jr., Edward Appellant.
No. 17747. Appeals,
United States Court of
Third Circuit.
Argued 15,1969. Sept.
Decided March Rehearing on Denial of
As Amended
26, 1970.
June
*2
Defender,
identify any
Stewart,
one
shown
P.
three men
William
Asst.
photographs
Philadelphia, Pa.,
appellant.
as the robber. Two
days
July 8, 1966,
police
on
later
offi-
McGill,
Raymond
Jr., Asst. U. S.
J.
brought
photographs
cer
three or four
(Louis
Atty., Philadelphia,
Bech-
C.
Pa.
Harvey picked
out one
the bank
Pa.,
Philadelphia,
Atty.,
tle, U. S.
which she identified
robber.
brief),
appellee.
photograph
On
That
was of Schartner.
*3
BIGGS, KALODNER
and
Before
evenings
July
8, 1966,
the
of
Ro-
7 and
FREEDMAN,
Judges.
Circuit
photo-
groups
sinski examined several
of
July 8,
graphs
police
the
On
station.
OPINION OF THE COURT
he
one of
in
selected
these which was
BIGGS,
Judge.
photograph
fact a
of Schartner.
Circuit
appellant
for
The FBI obtained
a warrant
The
was convicted
Schartner
by FBI
Schartner
and he was
indictment
arrested
on each count of a four count
agents
entering
July 30,
charging
(1)
on
1966 in
cabin at
him with
a feder-
a
Lodge
ally
Lake Texoma
in Oklahoma. The
insured bank with intent
to commit
agents
(2)
larceny,
taking $84,550
found cur-
searched the cabin and
the
totalling
including
force,
rency
$45,000
over
bank with
and intimida-
violence
tion, (3) taking
The
one hundred two-dollar bait
this sum with intent
bills.
day following
steal,
(4)
arrest,
knowingly jeopardizing
the
the FBI ob-
and
employees
tained
warrant
lives of two bank
with a
a
search
the
standing
gun,
2113(a),
automobile
rent-
in violation of 18
front of his
U.S.C. §
(d).
(b)
ed cabin. A search
and
of the automobile
containing
a
revealed
billfold
$120
there were
currency,
cards,
other
identification
and
prejudicial errors at his
The evi-
trial.
papers.
following:
dence showed
In the af-
the
Bridesburg
July 6,
ternoon of
1966 the
August 1966,
Harvey
In
Rosinski and
of
branch
Bank in
Girard Trust
by
agents
were
FBI
asked
to attend
Philadelphia, Pennsylvania, was robbed
arraignment
room
S.chartner’s
court
a
$84,550.
bespectacled
of the sum
A
of the United States District Court
young man,
later
Schart-
identified as
Philadelphia.
Harvey
Rosinski
and
ner,
a
at-
entered
bank
brown
with
were informed that Schartner would be
pretext
desiring
case
on
tache
and
present
in the court room. Three men
open
gained entry
a new
into
account
sitting
both
box and
Ro-
the office
and an
with
interview
bank officers observed the three men
sinski,
manager. The
an assistant bank
and then left
the court room. Rosinski
pistol
Ro-
intruder
a
ordered
drew
and
Harvey independently
separate-
sinski
lead him
bank’s vault
ly identified Schartner
as the robber
teller, Harvey,
where
head
was work-
any
agents.
coaching by
without
FBI
ing at
At
robber’s com-
time.
7, 1967,
April
On
found
Harvey
mand Rosinski and
filled the at-
guilty by
jury.
a
On October
$84,550 including
tache case
num-
a
however,
Judge granted
the trial
mo-
his
ber of
two-dollar
After
bait
bills.
post-
tion for a new trial
because
they
threatening
pair
if
with death
discovery
testimony
of an
attempt
help or
should
an
seek
sound
alleged incriminating
witness,
eye
Den-
alarm the
loot.
robber fled with his
Jones,
nis James
was false.
evening
robbery Harvey
the On
of photographs
by
produced
again
examined
At his second trial Schartner
police
Philadelphia
guilty
police
at the
station was found
on all
four counts.
approximately
hours.
four
She
motions
for new trial and
resembling
judgment
chose three of these
as
arrest of
were denied
robber, stating
“were
similar
on December
he was sentenced
description,”
prison
twenty-two
to his
years
facial
she
term
but
did
on
Fourth Amendment
being
sition that
count,
sus-
sentence
fourth
by
supported
quires
a warrant be
counts.
other three
pended on the
issuing
enabling
officer
information
appeal followed.
independent
on the
to exercise
obtained
probable
Admission
cause.
Johnson
I.
issue of
incident
13-14,
conducted
68 S.
search
appellant’s
point
arrest.
We
comparable
justification,
however,
for
permitting
II. Trial court’s
the Govern-
routinely
searching
rooms other
than
reopen
ment
to
its case
the
after
or,
that
in which an arrest
for
argu-
close
all evidence and
occurs —
of
matter,
searching through
all
jury
proof
ments
the
to allow
the desk
other
drawers or
closed or con-
an essential
element
of
cealed
room
areas in
itself.”
395
charged.
crime
763,
U.S.
89
2040.
S.Ct.
contends next
Schartner
refusing appellant’s
the search at Schart
While
trial court
erred
might
acquittal
cabin
have rendered the evi motion for
at
dence seized therein
under
inadmissible
close
all evidence. After
the de
Chimel,
completion
conclude that
does
we
Chimel
nial of this motion
after
apply
arguments
jury,
in cases
where
counsel
prior
rulings
Chimel,
(10
1963) ;
2. The
are set
out
F.2d 494
317
Cir.
760,
supra, at
v.
89 S.Ct.
United
States
ex rel. Linkletter
(5
1963) ;
Walker,
475
they
recognized
desire
had
Schartner
the Government declared his
as
stipula-
soon
had been a
had
the court
confirm that
there
entered
room
federally
sitting
robbed
while
was
box
tion that
the bank
was
he
in a
Although
insured,
being
es-
two other men.
insurance
an
Rosinski and
federal
charged. Harvey were
the crime
sential
element of
informed
Judge
would be in the
indicates
the trial
court room the
The record
witnesses
impres-
point
respective
under the
did not
also
disclose their
identifi-
at this
stipulated
until
fact had been
cations
each
sion that
this
identification
had
Wade,
previously.
de-
been made.
After defense
counsel
United
v.
States
388
stipulation,
of such a
1149
the existence
U.S.
S.Ct.
18 L.Ed.2d
nied
granted
(1967)
California,
motion of
trial
and Gilbert
388 U.
reopen
sup-
S.
United
its case
S.Ct.
18 L.Ed.2d
States
missing
(1967)
proof
ply
of the
held that
of this
element
absence
pretrial
lineup
fi-
at a
offense.
defense counsel
Thereafter
violates
Sixth
agreed
nally
stipulate
Denno,
bank Amendment.
While Stovall v.
federally
We
stated
insured.4
U.S.
S.Ct.
L.Ed.2d
(1967),
past
in similar
circumstances:
held that
Wade
Gilbert
prospective only,
unnecessary
are
“It
for us to consider
is
it was stated that a
time,
pre-trial
may
question whether
academic
confrontation
violate due
government
process
originally
totality
case
if under
rested its
“the
of circum-
ver-
stances” the
motion for directed
defendants’
confrontation
“unneces-
suggestive
granted.”
sarily
irrep-
dicts should
United
have been
and conducive
Maggio, 126 F.2d
arable mistaken
States v.
identification.”
388 U.
more
S. at
was no
at 1972. Under
totality
prejudiced by
fed-
establishment
circumstances
case at
bar,'
particular point
proc-
eral
there was no
insurance at
violation of due
operative
ess.
Lipowitz,
the trial
than if this
rather
United
States v.
stipulated
1969);
fact
Ac- F.2d
had been
earlier.
Dade
cordingly,
U.S.App.D.C.
we find no abuse
discre-
Judge’s denying appel-
tion in the
open purpose. its case this limited Webb, v. 398 F.2d States sufficiency IV. As Count IV of 553, 1968); (4 Morgan Unit- Cir. proof the indictment and the of States, (9 Cir. ed 380 F.2d thereunder. 1967); States, F.2d Lucas v. United Schartner contends trial (8 1965). supra, Maggio, 2-3 Cir. Cf. Judge refusing erred in his motion for Massey v. United acquittal on Count IV of the indictment (10 charging jury and in on that count. charges Count IV “did Schartner arraignment III. Schartner’s identifi- knowingly put unlawfully jeop- cation Government witnesses. ardy by dangerous weapon, use of a gun, Stephen Rosinski, wit: a Mr. Man- above, As stated the Govern ager Harvey, and Mrs. Rose Head Teller. only eye ment’s two to the witnesses * * *” this crime, Harvey, Rosinski and identified count is defective it does not re- because during the course of a Gov “put jeopardy”. veal what was ernment-arranged pre-trial confronta arraignment The tion at room test for whether an in his a court sufficiently (a) particular dictment is of Court House in is United States Philadelphia. whether defendant in a subse- Both witnesses testified could Testimony of at 917-28. *7 gun, Schartner with a that he was opposing counsel’s he statement that gun, threatened with a brought that Schartner “read could the rest of statement”. gun into the vault where (Emphasis added.) Harvey working, was and that Schartner It is contended the United threatened to kill of them should both States that since the reference to they sound an There need be no alarm.7 charge previous Schartner’s criminal gun that loaded. direct evidence was emphasized not and in a sense was was 1, Roach, 321 United v. F.2d See States oblique it did not constitute fundamental (3 1963). 5 Cir. affecting error constitution Schartner’s prior crim-
V. to Schartner’s rights. States, Lyda Reference al v. United inal record. (9 1963) 788, and 321 F.2d 791 Cir. Henderson, F.2d also that the trial United 185 contends States (7 189, court committed in fail- 192 With this we reversible error Cir. O’Brien, Testimony 60-61, 64-65, 7. at See United States v. F.2d Notes of 78- (7 80, 104, 109, 111, Cir. Testimony 6. Notes of at 939-40. certainly a fair of some somewhat reluctant- characterization albeit
are accord although However, attorney ly. prosecuting can- them. we But the should prosecutorial expression permitted that not condone to read not have been personal proving guilt,8 portion of the belief in statement Schart- an accused’s expression prior trial such conviction and is not reversible error prevented fairly should such an oc- when remarks construed only fer peculiar If not for the belief currence. it were based on the evidence surrounding opinion and not to an this incident formed from circumstances facts not hold error. in evidence. we would it be reversible See United States v. Meisch, (3 1966); 370 F.2d Cir. closing argument. Prosecution’s VI. Gradsky States, v. United 373 F.2d (5 1967); Cir. Orebo v. United following that asserts (9 1961), 293 F.2d Cir. attorney prosecuting remarks den., cert. 368 U.S. 82 S.Ct. him, closing argument, objected all L.Ed.2d 389 We believe that prejudicial: improper the first and third remarks set out gentlemen jury, of the “Ladies and properly above are construed as belief when one trial commenced about this based on the evidence. ago, week said I the Government prosecutor’s guilt prove would of the statement defendant you “I beyond can any any I tell be- if I know reasonable doubt. all, witness could done who lieve that the Government elaborate has they say,” matter appears what what it do.” had to out to set directly provoked have been During «* * * trial, Schartner’s counsel. you i I can teli if attempted counsel to inter any elabo- knew who could witness ject figure into of Dennis they all, rate at no matter what had Jones, James * * # to at an referred earlier gay point opinion. in this As mentioned earlier Jones was a Government witness eloquent or el- “I I be as wish could trial, at Schartner’s first it justice oquent enough to do to the tes- upon discovery basis of that his timony presented the Government has testimony had been false that a new say it I and I be- here. it have said granted. trial was counsel just say again, fore I and will it is argued should overwhelming. draw an inference favorable his client duty protect “I the inno- have a from the failure of the United States to guilty cent and to see do call Jones. The of the statement Gov you escape. say sin- I with all the apparently ernment’s in cerity you I can muster do if tended rebut insinuation this defendant, guilty convict will attempting United States was to hide a added.) escape.” (Emphasis witness, and in these circumstances this ****** statement was not reversible error. See jury, this man “Members of is a Gray way [sic.] this the an honest man 1968) —is v. United Green you would this what would act? Is 1960), 282 F.2d expect you if were on trial den., cert. *8 case ?” (1961). L.Ed.2d argument jury Another to the these challenged by Schartner, “clearly expres as we have involve an statements stated, prosecuting attorney’s ques the opinion on the sion counsel’s “ * * * question guilt.” rhetorical is is this This tion defendant’s Meisch, concurring opinion Judge v. 370 F.2d United States Freedman’s (1966). way It only the an honest man would act?” tenanee these Not do remarks. might they imply personal have been is contended a belief in Schart- interpreted by jury guilt, they directly as comment on the but also invite testify, jury rely thus the Schartner’s failure to to on the Government at- quiring torney’s experience prosecuting the of his conviction. reversal crimi- California, generally See Griffin v. 380 U.S. nals the and on Government 610-612, attorney’s “sincerity”. L.Ed.2d S.Ct. Neither the rehearing den., prosecutor’s general experience nor his (1965). However, integrity anything moral L.Ed.2d 730 has do with to context, the taken in this statement can be evidence in the In case. these re- interpreted readily spects to more refer to these statements differ from and produce prejudicial Schartner’s to a failure witness are more than the unadorned him, only permissible grudgingly known to a infer- statement of belief which we Meisch, supra,9 approved ence. See Pennewill United We hold U.S.App.D.C. F.2d 870 constitute reversible error. argued Gambert, counsel Schartner’s had States 410 F.2d Cf. jury large money to the the sum of seized from the time of his Schartner at VII. Failure trial Court readily afford explained by arrest could be as opportunity Schartner’s counsel having game” “crap his it in won object charge to the outside of by having his it from the stolen bank. jury’s hearing. the immediately prior In to the rebuttal and honesty, the contends that he was to Schartner’s denied reference judge's prosecuting attorney a fair the comment- refusal to let had been objections ing him produce state on to the court’s Schartner’s failure jury charge required theory at side witness bar as to corroborate 30, Fed.R.Crim.Proc., money might Rule 18 U.S.C.10 have been derived gambling winnings. This contention has merit also Since the state- and war- ambiguous, reversing rants ment our is at worst the trial jury conviction in court court’s instruction to the below. any
draw
inference
from Schartner’s
After
of all
close
testify
failure
sufficient
to ne-
presummation-instruction
there was a
gate any possible prejudice.
See United
conference
between
counsel
Nasta,
States v.
398 F.2d
Judge
charge
in chambers.
Points
parties.
were
both
'submitted
Some
granted;
refused;
There
for our
some were
remains
consider
exceptions
attorney’s
ation
certain
Government
re
were taken
Schart
Judge
duty
protect
marks that “I
ner’s counsel.
have a
counsel
guilty
then
innocent and to
do
returned to
see that
the courtroom and the
Judge
say
escape.
you
I
with all
delivered his instructions
sincerity
jury.
charge
you
I
At
can muster
do not
of the
close
if
jury
guilty
convict the
still
will es
the box
said
defendant
cape.”
added.)
respect
“Now, gentlemen,
(Emphasis
In
counsel:
is there
anything
to this remark
that either
or
counsel not
the Government
only objected
charge
requested
requests
the defendant
me
but also
juror.
jury?”
withdrawal of
We
coun
said:
cannot
9. In
Meisch,
U.S.C.,
supra,
Rule
370 F.2d at
Fed.R.Crim.Proc.
prosecutor
provides
pertinent part:
following opening
“Opportunity
made the
convinced,
given
objection
I am
shall be
statement:
as I am
to make the
[to
“And
you
you
charge]
hearing
sure
will be when
hear the evi
out of the
of the
and,
request
any
presented
you,
party,
before
out of the
dence and see
presence
(Emphasis added.)
question
jury.”
will he
of the
there
but
that defend
(cid:127)
*
*
*
guilty
ant
of the crime
(Emphasis
added.)
charged.”
*9
please.”
thereby.
“Yes, sir,
The
diced
if the Court
See Sultan v. United
States,
requests,
prosecutor
(5
1957);
he
no
said that
had
F.2d
Cir.
Titus,
“I
counsel next stated:
United States v.
221 F.2d
and Schartner’s
just
(2
to
few minor
comments
573-574
have
a
Other cases
Cir.
as-
make,
“May
non-compliance
I do
at side
sert
sir.” and
it
with the rule
added).
(Emphases
appears
bar?”
To this re- warrants
reversal unless it
af-
“No.”, stating
quest
answered,
firmatively
the court
the defendant was not
prejudiced.
Hodges
no reason for his refusal.
Schartner’s
See
v. United
asked, “No?”,
and,
(5
counsel
then
receiv-
243 F.2d
283-284
Cir.
Judge
ing
1957); Lovely
no answer
from the
his
to
v. United
169 F.
question,
objected
(4
1948). Finally,
in-
2d
next
to certain
Cir.
at
structions
relevant
here.
Schart-
least one decision
that a trial
indicates
object
to
counsel
the fail-
court’s
ner’s
did
failure to abide
the terms of
give
opportu-
ure of
court to
him an
Rule 30 demands
automatic
reversal.
nity
Hall
to state his comments out of the
v. United
examination of right prejudice
denial did showing can- Schartner’s cause. Such a present record.
not be made States, 328 decision in Bihn v. United L.Ed.
U.S. S.Ct. though (1946), fours in not on all in- with those of
its circumstances think, case, is, persuasive toas
stant we reach here. result we should judgment
For reasons stated the will be re-
will be reversed and case proceedings
manded for consistent with opinion. (dissent-
KALODNER, Circuit
ing) : Judgment
I would affirm the of Sen- reasons so well stated
tence Judge Body Opinion
District denying appellant
Order acquittal for a or
motions
for a new trial. TURNER, Appellant,
Gene Robert America,
UNITED STATES of Appellee.
No. Appeals,
United States Court of
Sixth Circuit.
7,May
Notes
ing
suggestive
acquittal
quent
plead
prosecution
former
to strike a reference
of
(b)
prior
it enabled
criminal
record. On the
or
whether
conviction and
Harvey,
prepare
See Russell
cross-examination
defense
him to
his defense.
763-764,
part
from
counsel read
of a written ac-
369 U.S.
v. United
prior police
18 count
of a
interview
8 L.Ed.2d
82 S.Ct.
Harvey.
2113(d),
underlies Count
On re-direct examination of
which
U.S.C. §
witness,
IV, actually
separate crimes.
the
began
the Government’s
defines two
punishment
provides
of one
of the state-
read the balance
It
robbery
objected.
ment
bank
when
who in the course of a
Schartner’s counsel
During
puts
any person,
short
or
discussion with
trial
either “assaults
any person Judge
objection
jeopardy
in
* *
the life of
as to
merits
allegation
IV
counsel for
Count
the United States said
The
“unlawfully put
stating
law that “when counsel refers
that Schartner
Harvey
part
statement,
jeopardy”
former
I can
in
sonably
rea-
Rosinski and
putting
read the
rest
to refer to
statement
can be held
* *
jeopardy
When the trial
then
in
Harvey. Bearing
Rosinski and
lives
stated
his intention
overrule
in mind that Schart-
objection,
stated,
challenge
indictment
Sehartner’s counsel
“I
ner
made
objection.”
will
con-
withdraw the
Govern-
in the court
it is difficult to
below
hampered
proceeded
ment counsel then
could
been
read
ceive how he
statement,
including
preparation
6To
in his recitation
of his defense.5
Harvey
photograph
indictment en-
“selected a
determine whether the
August
Schartner,
plead prior
Dauphin
ables
con-
Edward
the defendant to
* *
County
acquittal,
Prison D
or
viction
we can consider
States, Schartner’s
counsel moved to strike
whole record. Heaton v. United