United States v. George James Grooms

their and a most inter- broadest liberal

pretation. holdings are Those the best Supreme posi-

indication of the Court’s tion.

V. Conclusion convincing majority presents arguments justify precluding appel- suing

lant Calderone from under Section Clayton 4 of the claim Act. Calderone’s pur- to relief is consistent with the basic pose of the statute and with the inter- pretation Supreme Court. It

would fit under the directness doctrine “target

or under the area” test as formu- lated the Ninth Circuit. Second involving Circuit cases the restrictive “target area” test not encountered have presented the essential facts or issues and, thus, here are not conclusive on this precedent court. Neither is the case law applicable of the Third Circuit in this case. The Seventh Ninth Circuits put forth a far more feasible and flexible

approach taking into funda- account the policy mental considerations of stat-

ute under which Calderone can sue. Kiley, Judge, Therefore, Circuit dissented have no alternative but opinion. filed

to dissent and vote to reverse. America, UNITED STATES Plaintiff-Appellee,

George GROOMS, James Defendant- Appellant.

No. 17421. Appeals, United States Court of Seventh Circuit.

Jan. 1972. 27,1972. As Modified March Chicago, Hilliard, 111.,for P.

James defendant-appellant. Atty., Thompson, M. S. J. U. R. James Chicago, Atty.,

Fitzsimmons, Asst. U. S. J. 111., plaintiff-appellee; William Chicago, 111., Atty., John Bauer, U. S. Atty., Lulinski, U. S. Asst. Peter Greco, North- counsel, Don assisted University of Law. School western Judge, SWYGERT, RIL- Chief Before Judges.. PELL, Circuit EY

Judge. SWYGERT, Chief gunpoint 1968 two men

On June Bank of National robbed First Ridge, Norman Grand Illinois. charged and Allen of the crime under 18 U.S.C. commission 2113(d). Defendant-appellant, James § charged Grooms, was under the same aiding robbery. Upon statute with guilty Bayer pleas their day, or after its year prison sen- them that either before and ten seven received Ford was commission. the time At respectively. After Grooms tences covering given a apprehended, an ticket jury, airline guilty by he was found Chicago seeking flight Baltimore to which a re- year In twelve sentence. assigns issued wife had been to Grooms’ his conviction versal of April to this As alleged 1968 was found. errors. ,a number circumstance, that he testified Grooms unnecessary the to state it deem We prior to had in the car and his wife been great its suffi- detail since in robbery. date of the the robbing ciency question. After in is not ma- bank, fled in a the two robbers the 1968, 7, his on June After rearrest police Plymouth were The car. roon agent questioned Grooms was Strat- pursuit. two in While called and set out agent that oc- The testified that on ton. gravel driving aon of the officers stated had dis- casion the defendant he they Ridge, met a road outside of Grand cussed the it with traveling high rate at a car white Ford According Figge. Bayer matching speed. Plymouth, the de- A agent, admitted that he had Grooms also getaway car, scription was follow- gone Figge geta- the over with sought ing police to set the Ford. agent, way from the route bank. The roadblock, Plymouth up eluded a but the cross-examination, on that at the said they away; however, sped them and denied that he same interview Grooms Figge, stop were able to Ford. agreed had to aid driver, mon- arrested and the was stolen behalf, testifying Grooms, on own his ey was found in the car. helped plan that the rob- denied he had twenty-five About minutes later commission, bery al- or assisted in its Plymouth approached another roadblock riding though he while admitted that some from distance where it and Figge robbery, days two before the passed police Ford had the two officers. thinking Figge had said that he attempt roadblock, In an to elude the robbing Ridge bank and the Grand Plymouth collided with another car they getaway had route driven over the Bayer, driver; overturned. was ar- proposed to take. he which said day, present- Later that rested. Grooms ed himself to the local sheriff’s office learning that he was wanted being questioned, After he

authorities. During presentation the Government’s days Two later he was released. case, agent its testified Stratton alleged participation for rearrested on at his interview the defendant in the crime. 7, that he had Grooms June told indicating The evidence formation defendant submitted “gone conflicting. get-away to Grooms was route” with The two of- over the Figge, responded: encountering Plymouth ficers first to which Grooms gravel positively “Yeah, on the . road . but blow- [sic] identified Grooms, they ing proportion.” de- whom had known this all out of long that, indirectly time, as the driver of the Oth- fendant contends car. least, Bayer er fashion evidence showed in this Government got only person jury the content state- in the it when before Bayer codefendants, crashed at the second ments made roadblock and that Bayer’s fingerprints Figge, admission of ones and that were the agent Moreover, hearsay United found Bruton violates on car. 1620, 20 States, Stratton of the Inves- 391 88 S.Ct. Federal Bureau of U.S. light tigation admitted, (1968), particularly cross-examination, L.Ed.2d 476 that, cross-examination had told him of defense counsel’s thought though they be must had met the witness which with Grooms be- brought out robbery, fore the and which had not been with undertaken they pres- would be indeed defense counsel information fact Figge. trial. Moreover is clear sent at the it Bayer and come prior to at no time that the defendant must be Defendant’s contention requested the Government trial Bayer During rejected. examina his direct kept produced be or be tion, did not indicate Stratton responsible for A available. did he at information of his nor source production in court of the witnesses any statements to either tribute testify he desires his behalf. Figge. Clearly admis no there was or U.S.App. United Thomas v. implicating by a codefendant sion (1946). 314, 158 F.2d Con- D.C. agent’s Only testimony. versely, responsi- the Government has re witness did the on cross-examination compe- bility all to call witnesses who are source of his information. veal testify. Washington tent situation, Thus, if it can be Bruton 687, 1960). (5th States, F.2d 690 275 Cir. all, created said that one existed at all by When the relevant are facts by not and himself considered, we are of the Government; view that the this basis cannot form the judge district did not abuse his discre of reversible error. denying petition tion in since was it not filed until after the full trial was in II Litigants progress. charged are 16, Figge July Bayer 1968 en- On and responsibility acting timely of in ob pleas guilty tered to the bank taining witnesses. Gates v. United charge. they September 10, On 1968 States, (10th 122 F.2d Cir. immediately sentenced and trans- 1941). ported penitentiary. federal September Grooms’ trial started 25. On Ill day the second of the trial and after the case, Government had rested its de- Grooms also that the clos claims require petition fendant filed a ing argument prosecution prej of the production Bayer and as wit- deprived proc udicial him and of his due Further, nesses in his he asked behalf. right ess a fair He ob trial. first for a continuance until these witnesses jects that the Government misstated the penitentiary. could be returned from the stating that on summation peti- The district court denied both fingerprints Grooms’ were found in and tion the continuance. Under the Plymouth stating and in that Grooms circumstances we find no error. confessed that he Objec Neither statement created error. Although different counsel promptly tion was made to statement represented Bayer Figge, and Grooms’ regarding fingerprints after which attorney fully Bayer aware that exchange following place: took pleas guilty had entered Grooms, If I said [Prosecutor]: had been prison. sentenced to He was your Honor, misspoke. I Ladies chargeable knowledge therefore with the gentlemen, say Bayer. I meant to that trans been say ported You did Chicago The Court: Grooms. from peni to the federal tentiary. petition In his defense coun apologize [Prosecutor]: “by sel stated pretrial that reason of de Bayer. jury. say court and I meant to velopments” he believed that co- prints Grooms’ were never found Grooms’ by defendants would be used the Govern Plymouth. say me this now: Let ment witnesses in its case. Yet there anything say you If I be- that do not was no showing government that you lieve that heard from that witness any representation made stand, taking there is one me Figge would be returned. testimony, The record down the and there are provides assumption basis for you. Therefore, you twelve of are they possibility amplify re- than I am to tend to times better twelve jurors may lay from wit- be misdirected said from that what was member say weighing properly im- stand, anything that I the evidence so ness evidentiary disagree you plicit adopt the people invitation to you twelve attorney. asser- assessment of the Such completely throw can out. condemned as tions of belief have been objection principal may justify improper dis- conduct which argument closing lies the Government’s against attorney ciplinary action contends, convey which, he in statements dulging the old Canon 15 of them personal prosecutor’s as to belief of Professional Ethics Canons quality proof elements of certain by Disci- American Bar Association or misstate the evidence. of the case 7-106(C) (4) plinary or- Rule challenged statements were: ganization’s Professional new Code of gentlemen, I submit “Ladies Moreover, Responsibility. least one presented has not defense regards the federal circuits iota of evidence. We one believable per se. statements as reversible error man that have a confession this Greenberg F.2d United robbery, bank he went (1st 1960). Such 474-475 get-away I believe route. over per approach se has followed not been change car —” [in- drove D’Antonio, circuit, this United States v. objec- terrupted by defense counsel’s 151, (7th 1966), 362 F.2d 155 Cir. but tion] recently proposi- we have restated the objects tion, doubted, the and Defendant first such if ever it was foregoing of the consti- personal opinions proper third sentences are not issues improper an the be- present tuted assertion of to a fact United to finder. prosecutor quality Handman, (7th the as the liefs of to 447 F.2d 853 States v. quantity 1971). He ob- of the evidence. Cir. jects relating to the second sentence herein, A of record review the “planned” he Grooms’ “confession” that however, reveals that the was defendant robbery the sentence not founded is represented by at and that counsel trial on the evidence. As this second objections his counsel made several sentence, is to note that it sufficient prosecutor’s various statements in the in re- Stratton testified of Grooms not, however, object He did summation. buttal: said discussed “He any arguably at time statements to the the it with prohibited injecting person as counsel’s argument Bayer.” The was thus Similarly, objection al was beliefs. proper alleged to the since as confession arguments, at of made the close final urged based it a reasonable inference cautionary specifi nor was a instruction properly evidence admitted. cally dealing problem state of by prof statements of ments of The belief counsel ever challenged improperly propounding as also fered The issue was court. personal quality beliefs as to the not in of raised defendant’s Ar “Motion guilt Judgment, Judgment the evidence and the of of the defend rest of and for require examination, Acquittal, Alternative, ant closer a however. and in the twenty-nine It should be clear now that state New Trial” set out which short, purported ments counsel as to their belief or trial In other errors. veracity presented lack of belief in of we a re evidence are situation culpability and in party quiring “plain of a have no us to determine whether place only in the do trial cases. error” exists within the intendment Not anything 52(b), comments fail in add Rule On Fed.R.Crim.P. way probative us, real issues con record before we are constrained to fronting they fact, the trier of cannot but also this contention determine possess plain appropriately the seeds of as reversible error in be characterized

1313 thus, justify question and, participation cannot reversal. in error States, Bayer attempt 131 U.S. frustrated Harris See (4th 105, escape App.D.C. 402 F.2d 656 for the arrest bank ; (Burger, J.) United 1968) Lawn v. cf. presented at trial 15, 78 n. S.Ct. 355 U.S. testimony of officers Dummet and (1958). 2 L.Ed.2d identifying Hess driver of Plymouth during ear the elusive ma-

IV neuver to avoid the first roadblock. stop Dummet Hess were unable to contends that Defendant further Plymouth pur- passed, as it but imposed improperly a court the district caught up suit to the white Ford which longer upon him than those im sentence they stopped. The officers arrested and posed upon participants other handcuffed who Ford. justification was for that dis crime without During Plymouth this time the was parity than the reason other forbidden driven to the second roadblock three pleaded innocent and the miles distant from the first roadblock. However, pleaded guilty. others running arrested disparity called fact of the Plymouth which overturned at- judge attention of the district tempting the second block. judge to avoid sentencing, time of re sponded: Both “That is correct. government’s theory proof pleaded guilty, and if this place [the others] some the road- between mastermind, as the got man was the Plymouth, blocks Grooms out of the was, seems heav- got to think he feel up Plymouth from his imposed ier sentence should on this hiding be place and took over If as driver. individual.” We believe that district did not reach second judge permissible away reason for the cited roadblock —three miles —for inter-, disparity minutes, when stated that theory have some would preted guilt jury’s the support. nothing determination in But there is the meaning jury as the believed de- elapsed that evidence to show that 25 minutes fendant masterminded the crime. police stopped and after the the Ford ar- Figge,

rested and and the handcuffed Plymouth Bay- overturning of the V only away. er’s The arrest three miles Finally, argues that his point testimony that is that of offi- agent pro- statement to Stratton was cers it took 15 Dummet Hess that properly advising cured without him of stop to white Ford minutes for them the rights required by as Miranda v. Ar- custody. the take into While izona, 384 U.S. S.Ct. Plymouth chasing police Figge, the were (1966). L.Ed.2d 694 That contention is speeding presumably to- was three miles directly testimony contradicted the stip- ward It was the second roadblock. agent that, prior questioning Stratton to ulated trial that an the sec- at officer at defendant, the he read the waiver of roadblock, testified, ond would if he rights prescribed by form Miranda to Plymouth ap- have stated that was the defendant and that the defendant proaching 90 miles an at hour. stated that its understood contents. No one Grooms at the second saw judgment The of the district court is appeared roadblock, until or later affirmed. police Bayer’s day station. fingerprints, Grooms’, not on the KILEY, Judge (dissenting). Circuit Plymouth. Agent testified Stratton respectfully I I dissent. start told him Grooms barely enough view there is robbery, evi- day not with them the of the prima dence jury facie day. to take to before but been Strat- prosecutor iden- Later stated impression was that ton’s first Plymouth jury: as the of Grooms tification although mistaken, later driver was “I he drove that A. believe that changed impression. vestigation change car.” good shown reason is there Nor B. “We have a confession from this why, mile drive between in the three robbery, man that he the bank armed, roadblocks, Bayer, who was two getaway route.” went over get permitted out Grooms objected that there was Grooms’ counsel escap- Plymouth escape, instead no confession nor that Grooms ex- ing Normally not one does himself. getaway. planned any He stated among pect thieves. altruism agent the word “dis- Stratton used a thin It is clear that at best this was “It is cussion.” The district court said government. weak The prosecutor case1 for the an admission.” The then government’s proof right was in stated, link “All he ad- ... strange argu- chain of events in which mitted that he The it.” police- the two was identified ment went on: Plymouth, then dis- men as driver you “IC. . . leave wheth- during appeared as into thin air guilty er or not this man is whom I be- mile drive to the second roadblock three guilty. be lieve to ...” police at 90 an hour. The officer’s miles testimony weak identification is the A. to the al- adduced to connect Grooms leged firmed crime. This weak link was argument prosecutor that the be- argument up prosecutor’s to the lieved Grooms drove the jury. highly improper. go I need not as far evidentiary Greenberg It was in the context as the dis- court prosecutor, my States, cussed (1st above that the 1960), 280 F.2d 472 view, argument prejudicial made hold that the naked statement is reversi- jury. prelude enough As a ble discussion of error. It I think that argument pointed prosecutor’s it should be out may belief have been cross-examination of basis which the inferred Stratton, asked, although Grooms’ testimony counsel “What “Well, answer, did participation do?” weak, asked knowledge Mr. if he Mr. had some that the jury robbery was on the with them.” He did not have was the that Grooms volunteered, “They then I of said ‘No.’ driver and had thus sajd, They participated ‘Did robbery he know about it?’ in the as an aid- supposed go said ‘Yes. He er possibility to with abettor. This is morning strengthened by us but this unexplained change when we left for robbery original go pick of up. we didn’t impression him Stratton’s planning way. He was in on the all officers Dummet and Hess mistak- ” agreed go He en identity on it.’ The volun- their of Grooms. There is testimony given teered question no evidence in answer what was discovered in a investigation was stricken later on motion of testified to Strat- changed original counsel and ton pression as to what was in- im- disregard structed to what coincide with the views Bayer had told Dummet and Stratton. Hess. recognize, however, 1. I though possible. testimony that even But the identification Ply the identification of Grooms as the is weakened when further considered itself, mouth’s driver is weak in it is not the framework of other circumstances inherently improbable physically or im- I the trial which shall now discuss. prosecutor opinion of the is not an issue B. jury. Hand 1971). for man, United States v. Agent that Grooms Stratton testified (7th 447 F.2d conversa- he had “several told him that guilt express I view or Bayer] about tions [with opinion my nocence Grooms. It robbery that he had at but denied that he was denied a fair trial because robbery;” agreed go on time government presented a weak evi- “that had sev- that Grooms admitted dentiary case which was buttressed with them” about the eral discussions with robbery. Agent appearances what has deliberate use Vornberger testified prejudicial vapor aof created insin- told him that he had dis- Grooms argument.' exaggeration uation, I “robbery Bayer and cussed this with would the conviction and reverse order Figge” and also said “But wasn’t new trial. there.” Neither said had “planned” used the word or admitted planned

had use the “planned” The first leading in a the word question prosecutor put to Stratton rebuttal, “Did admit to Mr. Grooms . . he had . discussed robbery the bank

Figge?” Objection “plan- the word Stratton, ned” was Then overruled. answering question, George al., H. ADAMS et Plaintiffs- Again “planned.” first objection time said an Appellees, said, failed. Stratton then “I asked him whether gone ... MIAMI POLICE BENEVOLENT ASSO getaway over CIATION, INC., Defendant-Appellant. and he that he admitted No. 71-2108. Figge.” Twenty-six pages lat- transcript er in the Appeals, United States Court of capped by asserting, Fifth Circuit. the insinuations planning “He rob- admitted [Grooms] Feb. 1972. bery.” progressive expansion of This what Grooms said to Stratton and Vorn- berger suggests unfair, —in prelude view of the mentioned at the

beginning argu- of this discussion anxiety

ments—an to insinuate that Grooms aided and abetted the “planning” use of the word in volun- tary government answers of witnesses argument. as well The volun- stricken, teered answer was but seems to purpose. have achieved its

C. Shortly capping after that statement —mentioned above—the told his belief that Grooms was guilty. argument. improper This is Greenberg supra,, See personal 280 F.2d at 3. n.

Case Details

Case Name: United States v. George James Grooms

Court Name: Court of Appeals for the Seventh Circuit

Date Published: Mar 27, 1972

Citation: 454 F.2d 1308

Docket Number: 17421

Court Abbreviation: 7th Cir.