United States v. Gerald L. Singer, United States of America v. Raymond E. Wagner

jurisdiction, in favor of the tion, exclusive USDA as the majority implies. Supra at majority pur- turns to the “broad remedial The 1292. State of South Dakota has a pose” authority for of the FDCA to find comprehensive statutory framework that jurisdiction, on relying FDA permissible the defines bounds for manu- . . Drug v. An Article of . Bacto-Unidisk facturing, labeling and distributing a broad ., agree at 1290-1291. supra . . range of animal remedies. See S.D.Code §§ the has such a broad FDCA to (1980).5 39-18-1 39-18-53 liberally should to that the Act be construed Congress is free to intra- thus confer purpose. further Bacto-Unidisk and jurisdiction USDA, the upon state or even however, espouses, simply the do policy it FDA, upon leave or to such matters present not As ma- apply to case. hands state authorities as it has since notes, product jority involved in Bacto- case, any Congress 1913. In because has “drug” Unidisk would either be deemed a once, institution, spoken it is a “device” within the definition of courts, any regulatory formulate new Although 1290,1291. Supra FDCA. arrangement. more would be regulation degree of FDA stringent product if was deemed a

“drug,” clearly juris- the FDA would regardless

diction of the definition the Here, product under. fell any jurisdiction whether the FDA has light express grant of authority America, Appellee, STATES of UNITED biologies over USDA animal express scope. restriction on the FDCA’s SINGER, Appellant. L. Gerald accept We cannot the conclusion that general purpose provides behind statute America, Appellee, STATES of UNITED so sweeping authority source of outweigh express could im- restriction

posed within the same statute. WAGNER, Appellant. Raymond E. majority properly notes that Con- 80-1983, Nos. 80-1997. gress power Court, has the to overrule this Appeals, States Court but then risk congres- indicates that the Eighth Circuit. sional inertia should fall those that would resist federal regulation. Supra at April 1981. Submitted 1291, 1292. This sentiment misplaced seems Decided Oct. context. It is axiomatic that a 11,1982. Jan. Denied Certiorari regulatory agency authority has the See authority such as be conferred upon Congress. Where, here, byit Con-

gress jurisdiction has granted exclusive

another agency exempt and has chosen

altogether jurisdic- some element

tion, there is no “risk of inertia” for courts simply allocate —there no authority regulate subject exempted matter.

It should noted that jurisdiction FDA’s claim would not ren- biologies der regula- intrastate free of all us, however, 5. The record before re- does not activity veal the extent enforcement at the state level. Conrad,

Raymond Jr., C. Federal Public Mo., Defender, argued, City, W. D. Kansas Mo., appellant Singer. for Moody, J. Atty., Whitfield Asst. U. S. Petren, Atty., argued, Carol Ann Asst. U. S. Mo., City, appellee. Kansas for Wyrsch, argued, City, R. James Kansas Mo., appellant Wagner. for HEANEY, Before and STEPHENSON McMILLIAN, Judges. Circuit McMILLIAN, Judge. Circuit Singer Wag- L. Raymond Gerald and E. appeal ner judgments from final in entered District Court1 the Western District upon finding Missouri verdicts them guilty goods to sell conspiracy stolen I) (count violation U.S.C. §§ shipment of an in viola- theft interstate (count II). The tion of 18 U.S.C. §§ Singer years district to four court sentenced imprisonment years for for count I and six Hunter, 1. The Honorable Elmo B. Judge Senior District for the Eastern District Missouri. Gordon, II, concurrently, accompanied by On March 23

count to be served Beverlin, agent, met Thomas years to four I and two undercover C. count Singer, Wagner Alley, at a local restau- years II, to be for count served concurrent- wearing recording rant. Gordon was a de- ly. meeting videotaped by vice and the was For reversal ar- both police tape team. surveillance Both (1) gue that the district court abused its recording videotape meeting and the of this admitting discretion into evidence on Beverlin, jury. played Alley, for the cross-examination conviction more than Singer, and discussed the details of (2) ten old district erred arrangement. Delivery set for la- judgment motions for evening parking ter lot a local acquittal ground on the of insufficient evi- motel.3 tractor-trailer con- Wagner argues dence. 38,000 pounds beef tained over which (1) denying court erred in his motion to being shipped was from Iowa Beef Proc- indictment, (2) refusing dismiss the to ad- Kansas, Emporia, essors in Pack- Omaha probation mit into evidence that his would Boston, Massachusetts, ing in Allied revoked, (3) denying his for motion mis- Transportation Alley Services. worked as a ground prosecutorial trial on miscon- Transportation driver for Allied and had duct, (4) severance, denying his motion for assigned shipment been to deliver this (5) denying his judgment motion for Singer a Alley Boston. was mechanic. had acquittal, (6) denying requests and his for picked up Emporia, the tractor-trailer from disclosure of Brady materials. For the rea- Kansas, and stop, driven a local truck below, sons discussed we the judg- affirm Singer where he left the tractor-trailer. ments of district court. would then drive the tractor-trailer stop parking the truck to the motel lot. spring In City, of 1979 the Kansas payment agent, After the undercover who Missouri, police department and the local driver, posing had been as a truck was to office of the Investiga- Federal Bureau of away drive the tractor-trailer later to and (FBI) began tion joint a undercover investi- it, destroy following suggestions proffered gation possible illegal activity in the li- by Singer Wagner. morning and The next quor vending and industry in the Kansas Alley report would the tractor-trailer had City During area. the course of this under- stop. been stolen from the truck cover investigation, two agents FBI met an individual named Kenneth Gordon. Gordon developed according plan. Events The cooperated with agents the undercover police organized in surveillance of the motel investigation. 21, 1980, this On March parking Gor- and p.m. lot. At about 8 Gordon don informed agents Beverlin, undercover agent and the undercover met Robert G. Beverlin2 sell offered to him a Wagner, Singer and at the motel. After (about 40,000 pounds) truckload of beef indicating money change no would per pound. day, $.50 The next with the inspected, hands until the meat was approval of the agents, undercover agent Singer Gordon undercover asked to move the discussed sale with and Wag- Beverlin tractor-trailer to a different section of the ner arranged meeting and parking Singer another for the lot for inspection. moved following day, March approached by tractor-trailer and was guilty infra, plea Wagner argues place 2. Beverlin entered a before trial. text Alley Wagner, Singer delivery went with and trial was Missouri moved from Kansas to in guilty, was found but was jurisdiction not sentenced at the order to “manufacture” federal Singer Wagner, same time as and and therefore govern- the basis of The interstate commerce. party appeals. is not a in these place delivery ment was changed parking because the motel lot was a Delivery originally arranged was for a loca- better location for surveillance and arrests and Olathe, place tion delivery in Missouri, Kansas. The City, police because Kansas de- changed parking was then to motel lot in partment investigation. was familiar with the City, Kansas Missouri. As discussed guilty but The returned verdicts and Singer ran off agents. two undercover appeals Wagner and followed. was arrested. Beverlin these later general were arrested at the motel. Admissibility I. of Prior under Conviction Transportation

manager of Allied testified 609(b) Rule Singer morning him in called him he March and told had been Singer Wagner argue Both and truck, testdriving stopped had at a local its abused discretion admit- motel, “hijacked” by and had been two men. evidence, following a ting hearing into out presence an on-the- Singer theory was admissibility,4 record determination of that, during the events of March grand for lar- felony state convictions acting they had been as informants for the transformer). ceny (stealing electric requisite spe- FBI and therefore lacked the Singer That had been code- Special Agent cific intent. FBI Emmett L. prosecution in the 1968 state fendants Sing- Trammell testified he had known put jury.5 also before the Singer er for about two and that brought out that had been convicted supplied information about stolen vehicles concealing a stolen motor vehi- several times. Trammell further testified cle and that had been convicted Singer during that he had interviewed transportation interstate of a sto- evening late hours March and at len motor vehicle. (Trammell’s) 28,1980, request on March 1980, during Singer By August that interview the told him time of trial in the vehicle, a testdriving prior question that he had been in convictions were more motel, stopped years Thus, for coffee at a ten local and had than old. district court the “hijacked” by individuals, correctly been two of analyzed one the of admissi- Singer gun. 609(b).6 whom believed Wagner bility had a under dis- Fed.R.Evid. assisting Singer hearing pres- claimed that he had been in court a trict held out of the activity. his undercover Singer Both of the ence the and determined on in their justice, testified own defense and record that “in the interests impeached by prior sup- were probative references felo- the value of the conviction ny ported by specific convictions. facts and circumstances appellant argues statement, honesty regardless the Neither the or false give punishment. failed the defense advance notice prior impeach intent to use (b) the conviction to Time limit. of a Evidence conviction credibility. period under this is not if rule admissible a years elapsed than more ten has since point Singer a 5. On related of the date conviction release of information that codefendants imposed witness confinement prosecution particularly preju- 1968 state was conviction, date, whichever later note, however, dicial. We identi- determines, in unless the interests Singer during fied as his codefendant his testi- justice, probative value of the mony objection by without defense counsel. supported specific conviction facts and Singer did not refer to as his codefend- substantially outweighs circumstances its during testimony. ant However, prejudicial of a effect. evidence provides part: 6. Fed.R.Evid. 609 in years conviction more than 10 old as calcu- (a) General rule. For at- herein, pro- lated is not admissible unless the tacking witness, credibility of a ponent gives party adverse sufficient that he has been [or she] convicted of a crime advance notice of such written intent to use shall be if admitted elicited from him her] [or provide party evidence to the adverse with a by public during or established record cross- opportunity fair such contest use of (1) examination but if the crime was evidence. punishable by imprisonment death or ex- in Here, pled guilty that he testified year cess of one under the law under which grand larceny charge probation and received convicted, he [or the court she] dispute from the There was no bench. probative determines that the value of admit- running ten-year period. ting outweighs prejudicial this evidence its defendant, (2) effect dis- involved

1300 pates probative substantially outweighs prejudicial prior its ef- value of a con- ' balancing fect.” Id. The district court not make Congress did viction. The scale specific findings permit- on given the record7 but weighted against has the courts is ted the to outline the reasons finding probative value of a supported admissibility.8 which 10-year-old more than conviction substan- ro, tions L.Ed.2d 149 1426, 1978); 1978), denied, Estelle, 1764, 1980), v. v. v. United Cobb, Sims, Portillo, in (4th 734-36 more 68 L.Ed.2d 241 cert. cert. Fed.R.Evid. effect States 552 434 U.S. L.Ed.2d 588 F.2d 588 F.2d than ten denied, (2d Cir.), 633 F.2d denied, (1977). F.2d 1978); admissibility Cavender, 119, rebuttable 607, 871, 58 L.Ed.2d 666 450 U.S. 609(b) Accord, (1981); (1979); cert. 1313, 120 612 & n.8 98 1147-49 Mahler, old.9 establishes what denied, (5th Cir.), 1323 1043, S.Ct. United States United States United States 947, prior presumption See Mills 579 F.2d considering (9th (6th (8th 439 U.S. 214, convic (1978); Shapi 1977). S.Ct. cert. Cir. Cir. Cir. 54 v. printed cordance with the crimes ler, to determine the “interests of Cong. & Ad.News News Rep.No. Cong., (5th News reprinted tle, H.R.Rep.No. “[T]he tially Federal Evidence Cir. 7051, 7051, 2d should States outweighs its 93-1597, 1979) (citations omitted). 1980), citing trial court Sess., reprinted in ^[1974] 7103; 7085; whether ^[1974] 93-650, be admitted at Cathey, Spero, 3 D. Louisell C.& Muel- 93d U.S.Code S.Rep.No. terms U.S.Code 7051, judge (8th Cir.), 93d prejudicial § United States v. Lit Cong., evidence of 591 F.2d Cong., 7061; ^[1974] (1979). F.2d Cong. ‘best situated Rule 93-1277, Cong. 2d trial, justice” effect. H.R.Conf. 1st Sess., U.S.Code 268, See also 609(b).” & Ad. & Ad. in ac Sess., prior ’ 93d 275 re- general rule, therefore, is inadmissi bility. Moreover, Report However, the Senate under the cir Evidence, the Rules of the Senate noted cumstances we believe the district court that years gen “convictions over ten permitting old its abused discretion in the erally probative do not have government impeach appellants much value.” to with the presumption is, against First, The admissibility probative 1968 convictions. the value therefore, legislative per founded on a questionable. of is the convictions ception passage that the of time dissi- These convictions are more than twelve 7. impeaching Neither that the appellant district of a shed lit- witness, they often finding court’s light that the value of probative the tle on the the wit- present of tendency outweighed prejudi- conviction its substantially ness towards and veracity. truthfulness cial effect was because inadequate (6th United States Sims, court did not on the record and specifically 1978). Cir. supporting balance explicitly the facts and cir- jury The misuse the con- may by evidence See cumstances. United States v. Spero, sidering the defendant a of criminal person (8th 1980). F.2d 779, 781 Cir. and, therefore, tendencies more likely committed the crime for which he is she] [or According government, 8. following the being if tried, or the is simi- conviction prior circumstances the of supported admission the charges, lar to the new the misuse may Singer 1968 convictions: were act- guilt, conviction as prior evidence of ing together, desire explain professed just willing be more convict a clear acting their criminal records as by who has been person already convicted for a informants, and each been appellant had com- different crime. mitted within the of ten-year period another (5th (Tr.III, States v. 591 F.2d 117-18). Cathey, offense. 1979), citing Estelle, Cir. Mills v. 552 F.2d 9. 609(b) An of important Rule is to (5th Cir.), convicting avoid criminal defendants as a re- (1977), 214, 54 L.Ed.2d 149 and United prejudice sult of caused the cumulative by (5th Martinez, 555 F.2d effect of old criminal convictions. When 1977). stale convictions are offered for the purpose strong Although very the district court years old.10 conversation, tape larceny of a recorded grand is a crime consisted concluded testimony videotape, of dishonesty,11 finding such a “in- and the Gordon involving is itself, agents.12 justification, by several undercover use sufficient presumption prior conviction[s]. Judgment Acquittal Motion over-age the use of conviction involving dishonesty.” there are admitted Cong. lants’ that convictions over 10 al been substantially weakened already use of mony recent convictions. S.Rep.No. bility Cathey, circumstances.”). so of their defense credibility. & Ad.News these weak that been supra, Special Agent prior very rarely no 93-1277, supra, case which would impeached by convictions to exceptional conviction was for a crime 591 F.2d at 276. Id. In falls before a Both at Trammell. theory addition, 276-77; circumstances ^[1974] (“It impeach appel- appellants by use of more old will be justify is intended exception- the credi- the testi- U.S.Code see also ing Second, already finding had Appellants gue their motions for failed granted only where ‘the from the evidence. the evidence in tion for by inferences that appellants’ testimony ground as Appellate review of a denial of a mo- familiar to establish informants. We “[a] Both judgment motion for argue that principles. insufficiency the benefit judgment specific the light may logically court erred in and must Thus, we acquittal disagree. acquittal We must examine intent in evidence, of all most favorable the evidence. acquittal government reasonable be drawn should be have said give viewed guided face act ar light most favorable the Govern- however, persuaded, er- We are ment, is reasonably such minded ror was harmless. See United jury must have a reasonable as to doubt 736; Mahler, supra, of. 579 F.2d at Grant v. of any existence ele- essential White, 1978) (per ” charged.’ of the crime ments curiam) (habeas corpus; impeachment of juvenile proceed- Anziano, defendant reference to ings represent- (citations wherein 1979) curiam) defendant was not (per omit- ted, error). emphasis ed counsel original). held harmless We have care- Ad.News 7051, 7103: 2d Sess., Mills as truthful as a normal ten-year supporting alized ished for ten ment” the Conference means crimes perjury son. can no pretense, ness, ment, volves propensity [T]he ten-year See By crimen v. if an H.R.Conf.Rep.No. the Estelle, criminal reprinted some longer or subornation falsification period is evidence that (a phrase or o. offender falsi, to use of lawbreaker policy any years, element of testify truthfully. supra, be drawn time limit could be fraud, the “dishonesty other prior keeps he will statement ^[1974] commission bearing embezzlement, offense citizen, 93-1597, is more crime perjury, his record unblem- deceit, U.S.Code on the accused’s and false presumed [by impeachment i. e., that the inference likely certain per- 93d untruthful- false state- the nature Congress] conceptu- which Cong. such or false Cong., to state- to be the lie) in- & 12. 439 U.S. 991, 99 S.Ct. (1978). tors victed 579 think the due ready “Discretionary L.Ed.2d 159 case and the fact tions case without supra, conviction to determine whether volved cert. rize “[I]t In view emphasis F.2d 730, may the denied, by been defendants; dishonesty 591 F.2d necessary the offense.” Ashley, eliminate of the impeached by (1978). jury.” the use of 439 is 736 n.21 restraint on not strength 569 F.2d that both at U.S. to look rather placed appealable United States may 276 could have 853, (2d Cir.), the than also ensure that of n.16, the 975, prior appellants States 99 the 1968 convictions. the 58 L.Ed.2d 666 part merely issues 979 citing government’s the crime prior conviction, cert. basis of proved v. Cathey, v. (5th prosecu Mahler, 163, convic catego denied, United Cir.), con un in al 58 its I 1302 independently.14 must function strong the

fully reviewed record conclude that attorneys which ly suggest government’s there sufficient evidence from that the jury appellants the could have found present presigned not indictments acting not as informants and instead know grand jury. Such forbearance consistent ingly purposely acted violation of the independent grand jury with the role the appellants’ We note that law.13 informants may provide criminal defendants with primarily upon their depended cred opportunities fewer to attack indict ibility. elementary “It issues of However, appeal. ments on ab “[i]n credibility generally are witnesses sence of some additional evidence that Pugh, the trier of v. fact.” United States prosecutors actually exerted undue influ curiam), (8th 1977) (per 566 628 grand jury, ence on the the fact that their denied, rt. 98 ce signatures to been affixed before, indictment rather than after grand jury’s significant consideration is not Appellant Wagner III. enough require to indict dismissal We now to turn individual alle- Tedesco, ment.” United States 441 gations of error. (M.D.Pa.1977); accord, F.Supp. Motion to Dismiss Indictment F,2d Frantze, States first that the district 1981); Levine, court erred in motion dismiss 1972) (pre Wagner argues indictment. indictment reversible error signed attorney improperly sub influence); where record reveals no undue presigned mitted a grand indictment Inc., v. Climatemp, jury and unduly that such conduct influ (N.D.Ill.1979); F.Supp. cf. United grand jury’s enced the deliberations. Fed. Gold, supra, F.Supp. States at 1354- 7(c)(1) R.Crim.P. requires that indict “[t]he indictment, which was one of (presigned . . signed by ment . shall be attorney many grand jury, instances of abuse government.” for the signature per “This mockery grand condemned as “a jury forms the attesting function of to the ac system”). Cox, See also United States v. tion of grand jury. Its execution is (5th Cir.) (banc), 342 F.2d 167 intended to attorney show that the for the L.Ed.2d 700 joins grand jury with the in (1965). ” instituting proceeding . . . . United Gold, F.Supp. also (citations (N.D.Ill.1979) omitted). government’s attorney improperly appeared appellant’s objection In our view grand as a witness jury before the ex presigned submission of a indictment to plaining the elements of the offenses grand jury some grand has merit. The jury grand jury.15 appearance An before the developing 13. The district court instructed with a record with properly respect respect charges specific intent. to his of prosecutorial misconduct be- grand jury. fore the Under the circum- 14. “The very requirement stances, did not err re- grand [an be indicted individual] fusing because, to order disclosure as discussed jeopardy limit [that individual’s] to offenses Wagner above, text failed to that show charged group aby of his fellow [or citi- her] grounds may have existed to dismiss the indict- acting prosecuting zens of either independently charges ment. When confronted with serious judge.” attorney Stirone v. United States, might good a misconduct, prosecutorial 361 212, 218, U.S. 80 4 L.Ed.2d idea if the district court conducted a prelimi- (1960) (footnote omitted). 252 examination camera of the relevant nary grand jury and other materials. transcripts Wagner argues 15. On a related point that Roberts, See United States F.Supp. refusing district court erred in to disclose the Douglas (C.D.Cal.1980); see also Oil Co. grand jury proceedings of the transcript pursu- Northwest, Petrol U.S. 6(e)(3)(C)(ii). Stops Wagner ant to Fed.R.Crim.P. ar- (1979). gues 60 L.Ed.2d 156 that the failure to disclose him prevented grand probation. as his jury by government’s attorney opposed testimony proffered grounds this on the a prosecutor both a and witness would vio- any proba- reference to revocation of Responsi- late both Code of Professional speculative. tion was 6(d). bility Fed.R.Crim.P. See United and 1351; Gold, supra, F.Supp. we Under the circumstances can find no Treadway, F.Supp. ruling. error district court’s (N.D.Tex.1978) (establishing per Wagner testify permitted district court to rule). However, se probation attor- that he was on the time of the offense, employment that he had and insur- ney may explain the elements of the of- probation- his problems ance as result of investigation grand fenses under to the status, ary and he was interested in jury. Such conduct does not make the obtaining pardon. The district court government’s attorney a witness before the permit Wagner testify to refused to that his grand jury. Cf. United States Interna- probation would fact be revoked. The Co., (S.D. Paper F.Supp. tional possibility effect of revocation of Tex.1978) (prosecutors’ presentation of sum- Wagner’s motive, probation spe- on lack of testimony maries of from massive and com- intent, good cific and faith belief that he plex investigation grand jury to was not acting presented was as an informant were grand prosecuting attorney abuse of jury; jury during arguments. closing guiding serves “the grand as arm of the for Motion Mistrial jury” responsible orderly and is and case). intelligible presentation Wagner argues next court erred in his motion for a Wagner argues also the in ground prosecutorial mistrial mis- multiplicitous was dictment and should conduct. charged been dismissed because it him During opening statement with conspiracy both to commit a substan government’s attorney made the follow tive offense the substantive offense.16 ing comment: This argument is not well taken. “It States, On behalf of the United I would firmly established ‘that the commission you briefly explain like to outline for the substantive to conspiracy offense and a you begin you give edge you an separate commit it are and distinct of to listen to the evidence what the ” Govern- Clark, fenses.’ United States v. you prove ment will introduce to to all of (2d 1979), beyond any guilt doubt the of these three 101 S.Ct. defendants, Singer, Alley, Wagner. (1980), States, citing Pinkerton v. United argues an this comment was 640, 643, 1180, 1181, impermissible expression personal be- L.Ed. 1489 opinion government’s attorney lief guilt defendants. Testimony about Revocation of Probation agree that argues that the district personal expression of defendant’s [a] [a] refusing court erred in permit him to culpability, which inserts extraneous testify possible about the revocation jury, and irrelevant issue before the probation. Wagner argues that this infor particularly objectionable highly im- mation was relevant the issue of motive. prosecutor, proper when made Wagner contends that he could not have position public experi- whose trust and participated activity in further criminal ence criminal trials induce requisite with specific intent because he weight accord some unwarranted activity knew such jeopardize would to the comment. charged

16. The also ment with indict charge Wagner stealing ment did not with stolen sell meat with conspiracy conspiracy government’s commit a offense substantive and commission the meat. We do not reach the argument. govern the same substantive offense. 1131, give cautionary jury. instruction to the Splain, 545 F.2d (8th 1976). However, declined, prosecutorial stating Cir. Defense counsel coun- challenged any sel caused comment here does consti- did not believe the reference expression personal prejudice prefer tute an belief in and would not to call the read, Wagner’s guilt. Fairly jury this comment attention of the to the reference. Un- government’s Wagner refers to the evidence and der the circumstances has no government’s theory grounds complaint. introduces the of the for case. that, Wagner argues response next government’s also attorney’s question government’s attorney improperly prej you jury “Would tell the members udicially referred to the you carry gun?”, defendants whether or not witness Following objection by “crooks.” an gun de Gordon answered that he carried a counsel, fense self-protection district court ordered the and because he was afraid. question stricken from the record and cau Under circumstances the district court jury disregard question. tioned the refusing grant did not err in a mistrial. First, Under the volunteered, circumstances we find no basis the witness’s answer was 1134, citing for reversal. government. See id. United not solicited Cook, 1093, (7th States v. 432 F.2d exploit 1106-07 did not the answer and 1970), denied, cert. type U.S. 91 advised the witness to avoid that (1971), Second, 28 L.Ed.2d 535 following Unit answer in the future. Hoffman, ed (7th 415 F.2d objections, defense Cir.), denied, cert. promptly U.S. jury informed the that there had (1969). However, 24 L.Ed.2d 423 we em been no evidence of threats phasize that clearly remarks are im jury witness in the case and instructed the proper, States, Hall v. United 419 F.2d disregard the answer. Cf. United States 1969), prosecutors must Vitale, (8th Cir.) (per type avoid this of characterization of crimi curiam) (other crimes), nal defendants. Splain, States supra, 545 1134.17 (1977); Splain, supra, (other crimes). F.2d at 1133

Wagner similarly argues that government’s attorney improperly asked govern- questions two containing the words attorney during closing arguments ment’s “crimes” and “theft.” agree improperly expressed personal opinion her government’s attorney should have used of the credibility18 defendants’ and made more neutral words in framing ques these two references about statements However, tions. grounds we find no to the FBI supported by which were not reversal. The respect district court instructed the record.19 With to the reference to disregard the “crimes” credibility, agree the defendants’ we respect answer. ques With to the “theft” perilously this remark comes close to an tion, initially the district court However, expression personal opinion. overruled objections but then later court, offered to as noted such remarks type government’s attorney closing This of shorthand characterization 18. The stated in accused, evidence, espe- argument: you thing not based on “I submit can’t believe a cially likely you to stick in credibility.” the minds of the told because of their and influence its deliberations. Out of the grey starkly usual welter of facts rises— attorney inaccurately 19. The succinct, pithy, colorful, expressed in a Special Agent stated that told Tram- sharp break with the decorum which the citi- help “Imell want the FBI in the future” and expects representative zen from the of his nothing “I don’t know the March 23 government. incident.” States, Hall v. United 1969) (description of defendant as a “hood- lum”).

1305 closing arguments not both were not in this were evi- by sides uncommon The court cautioned trial. dence. Under the circumstances the dis- attorney about the choice of government’s jury trict court’s admonitions to the were jury words and had earlier instructed the Miranda, sufficient. Cf. United States v. closing arguments only provided an 877, 1977)(govern- argument by opportunity counsel and attorney argument ment im- in rebuttal were not evidence. properly portions transcripts read from When en reviewed context tape recordings; transcripts were not in trial, tire we satisfied that the remark evidence; are cautionary given). instructions does not warrant reversal. See United We are concerned about the cumulative Dawkins, 562 States F.2d ques- improper effect of statements 1977) curiam), citing (per prosecutor tions of the and affirm be- Chrisco, (8th Cir.), F.2d cert. strong against very cause of the case denied, L.Ed.2d U.S. prompt cautionary defendant and the ac- (1974). conflicting In view of testi by judge. tions taken In af- mony about the defendants’ status as infor firming, repeat we the admonition of Mr. mants, credibility upon some attack Berger Justice Sutherland justified. See United States v. Frank States, 629, 633, lin, (8th Cir.), (1935): L.Ed. 1314 Attorney rep- The United is the L.Ed.2d 807 The at States torney during made this remark ordinary the course resentative not of an party to a argument a closing in which re she controversy, sovereignty but aof whose peatedly emphasized jury was the final obligation govern impartially to is as judge credibility of the witnesses. obligation govern compelling as its to at persuaded We are that under the circum all; interest, therefore, and whose in a carry stances this remark “did not infer prosecution criminal is not it shall jurors ence of ask knowledge outside or case, justice win a but that shall be done. rely prosecutor’s credibility.” on the own such, peculiar very As he is in a Dawkins, citing Id. law, definite sense the servant of the supra, 562 at 569. guilt twofold aim of which is that shall allegations find more troublesome escape may He not innocence suffer. government’s attorney inaccurate- prosecute vigor with earnestness and —in- ly repeated allegedly statements made deed, But, he so. he should do while Wagner to FBI. accept We do not blows, liberty strike hard he is not at government’s argument these state- duty strike foul ones. It as much his ments reasonably were in effect in- drawn improper refrain from methods calculated upon ferences Wagner’s apparent based produce wrongful conviction as it is cooperation lack of past with the FBI in the every legitimate bring use means to the time of the in question. events just one. clearly The presented statements argument only as but were referred to Motion for Severance by Wagner. govern- statements made argues that the dis carefully ment must accuracy review denying attributing statements of this trict court erred in his motion kind before particular them to a Wagner argues witness. theory severance. that his of defense was inconsistent with that of his Nonetheless, we do not find the dis- coeonspirators’ state Alley, codefendant trict court abused its discretion admitted, improperly ments were and the the motion for mistrial. Each time the against his was “far evidence codefendants objected references were made and counsel, damaging” more than the district court cautioned argu him. These are severance testimony to recall the familiar the wit- ness. had been instructed earlier ments. persons

It court general the rule that district did not abuse its discretion charged conspiracy in a should be tried motion for severance on this together, particularly proof where ground. charges defendants is based Wagner next that upon the evidence the dis same and acts. Sever- upon granted ance showing will be allowed trict should his court motion prejudice real an individual defendant. to sever because several statements made However, the motion to sever Fed. by Alley Singer erroneously and were ad [under R.Crim.P. is addressed discre- during 14] coconspirators’ as mitted statements court, tion of the trial and a denial Jordan, joint general trial. man Sam grounds severance is not for reversal un- ager Allied on Transportation, testified prejudice less clear and an of dis- abuse Alley redirect examination that called him cretion are shown. A defendant must Monday, 5:45 a. about m. March show something more than the mere fact reported that missing his truck was that acquittal his chances for [or her] happened that he had no idea what had would have better been had defend- [the Singer it. also that Jordan testified called separately. been tried defend- ant] [The him morning about 8:30 a. m. that must “affirmatively demonstrate ant] reported that he had taken the truck out joint trial prejudiced [his] [or drive, stopped for a test had at a local motel right Thus, to a fair trial.” before her] cup coffee, ap for a and had been the refusal to sever be deemed an proached by “hijacked” two men who abuse on part of discretion of the trial truck. Jordan testified he further court, prejudice to a right defendant’s Alley Tuesday, talked March 25.20 a fair trial must established. Alley Jordan also testified that neither nor Jackson, 523- F.2d told him were working (8th Cir.) (citations omitted), cert. de police.21 the FBI nied, U.S. 52 L.Ed.2d admitting not err in court did (1977); Knife, see United States v. testimony into evidence Jordan’s Al about (8th 1979); F.2d 480-81 United ley’s Singer’s telephone calls on the Martinez, 532-33 morning of Monday, March 24. These tele 1978). phone properly conversations were admissi First, Wagner argues that his defense See, coconspirators’ ble e. statements. antagonistic was to that of his codefendant Williams, g., United States v. Alley. Alley’s theory was intoxica- 1979). Contrary Wag assuming tion. Even argument, though ner’s even these calls Alley’s antagonistic, defense theories were day were made the after events any prejudice failed to show to his question, the calls admissible were as “acts defense. “In order to demonstrate of concealment done in furtherance of discretion, abuse of defendants show must conspiracy.” main criminal more than Grunewald the fact that co-defendants States, 391, 405, strategies whose generally antagonis- 963, 974, (1957) tic were together.” (emphasis tried Jackson, supra, original). at 525 n.6. The charges Jordan did with the about the substance of case. testify Defense Following object (Tr. second conversation with did not Alley. counsel to this testimony. government’s a bench 54). challenge conference, attorney III at Defense did counsel questioning. pursued another line of The dis- attorney’s question trict court had earlier instructed the FBI communications between and the U.S. being the second conversation was re- office. The district court Attorney’s sustained ceived as to objection Alley. and the was stricken question record. The district further challenges also instructed this admissibility noth Agent Sing ing Special Trammell’s to do with the the case testimony issues and direct er disregard wanted to if know Trammell him could ed them to help the question. preference joint that his further trials of defend- indicted, right jointly sixth confrontation ants particularly amendment where charged, violated admission into conspiracy not limited Alley’s extrajudicial statements under any requirement quantum Singer, the coconspirator exception. Unlike of each culpability defendant’s Alley testify did not at trial. We distin equal. imagine It is indeed hard to guish States, 123, v. Bruton United 391 U.S. multiple defendant in which the case evi- (1968), 88 S.Ct. 20 476 L.Ed.2d cited against dence individual is ei- defendants by Wagner, Alley’s because statements quantitatively qualitatively equiv- ther coconspirators’ properly were admitted as alent. A not defendant is entitled to In statements. the case of a confrontation merely severance because the evidence challenge clause to evidence admitted under against is damaging a co-defendant more exception hearsay rules, to the this court against than the evidence him [or her]. See, case-by-case analysis. g., follows a e. necessary Severance becomes where the Scholle, United States v. 553 F.2d proof jury is such that a could not be Cir.), denied, 1119-20 434 expected compartmentalize evi- 54 L.Ed.2d 300 separate dence as it relates to defendants. Alley’s We find that the admission state Jackson, supra, v. States 549 F.2d at ments not did violate confronta (citations omitted); see v. States rights. tion The statements were made Knife, supra, 592 F.2d 480. Despite at telephone during made voluntarily calls length (and opinion), of the trial this this the declarant. The were dam statements relatively was a straightforward case. The aging because with were consistent government’s unduly evidence was not com- government’s ease; however, theory plex confusing. principal questions the statements not were critical at trial credibility involved the wit- light case in strong other nesses. was represented by Each defendant guilt. evidence of Jordan was cross-exam own his counsel. The district in- court ined; weigh able his credi structed the to consider the evidence bility as Finally, a witness. the district against separately. each defendant Even if gave court appropriate cautionary instruc accept Wagner’s we evaluation of the rela- jury. tions to the strengths against tive of the evidence each Having Alley’s Sing- concluded that defendant, that factor would not war- alone er’s properly statements were admissible as rant a severance. See United States coconspirators’ not statements and did vio- Jackson, supra, F.2d clause, late the confrontation the district court did not abuse its discretion in Judgment Acquittal Motion for Wagner’s motion for severance on that Wagner next the dis ground. in denying trict court erred motion Last, Wagner argues that judgment acquittal ground on the granted should have a severance be- failed to establish an essen cause against the evidence his codefendants charged element the offense in each tial was “far damaging” more than the evi- count. first dence him. stresses requisite “manufactured” the Monday telephone morning calls made interstate commerce element under 18 by Alley particularly dam- (count I) by deliberately U.S.C. § aging and these characterizes calls false Olathe, place changing delivery from exculpatory statements. Kansas, City, to Kansas Missouri. note See supra. rejected no find abuse of discretion in the district court this say finding challenge. district court’s denial for sev- We cannot that this motion Moreover, ground. erance on clearly this the record erroneous. strictly construed, statutes are to be indicates that the beef was transit Massachusetts; required are Kansas to this fact was es- courts to abandon com lading shipment sense. The of 18 bills of mon tablished U.S.C. protect shipments. is to interstate invoices. the circumstances § Under Stealing the truck with moving its contents clear that the beef was in interstate Thies, certainly violative of the See United most statute States commerce. proscribes which theft of contents. (3d 1978) (18 U.S.C. F.2d 1272-73 Cir. Garber, 2315); cf. United § Green, 1980) (3d (18 F.2d 1147-52 U.S.C. omitted); see Unit- 1971) (citations cert, 659), § Padilla, ed States United (2d (1981);22 1967). Franklin, supra, Nondisclosure of Materials Brady (18 659). U.S.C. § argues next the dis in denying request trict court erred his for government’s evidence failed to show that of exculpatory disclosure certain materials the defendants the beef removed Brady Maryland, under trailer. the district (1963). Wagner L.Ed.2d granted court should have motion sought government information about wit acquittal under count II because 18 U.S.C. beginning of ness Gordon and the un removal requires of goods § in investigation. dercover The question from the disa vehicle. must opposed court disclosure. ex gree. in camera and de amined the documents take, phrase steal, In the “did request, noting nied disclosure carry away truck,”[23] from a motor largely ongoing documents involved FBI in tracking indictment was language vestigations nothing perti and contained statute, penal theory. 659. U.S.C. While nent to We have § hampered question, by legal 22. Without conviction not to be under technical con- [18 ceptions." 659 can be sustained if U.S.C.] § there goods Garber, items stolen “moving part (3d 659) (footnote as or 1980) (18 which are a of which or § U.S.C. shipment foreign constitute an omitted), or interstate citations freight.” requirement There is no of literal movement; goods part which are of or con- provision The interstate commerce in 18 foreign shipment stitute an interstate or are U.S.C. 2315 almost § the sáme as that in 18 covered the statute if even not in motion provides § U.S.C. 659. 18 § U.S.C. in at the time the theft. The deter- test for part: mining goods part whether are inter- of an sells, disposes any Whoever . . . or foreign shipment practical state or is a one $5,000 goods, more, ... of the value of or based on common sense and administered on as, moving of, part .. . or which are or an ad mination, basis. hoc In order make this deter- foreign which constitute interstate or com- factors, variety courts look to a merce, knowing the same to been sto- relationship consign- such as the between the len, converted, taken;. unlawfully . . ee, carrier; consignor, and of in- indicia foreign terstate or commerce at the time of $10,000 Shall be fined not more than theft; preservation the gressional and the con- imprisoned years, not more than ten or both. (cid:127)' enacting intent in this statute. delivery goods a carrier before the in 23. The case indictment contained occurred, applicable, theft physical if arid “stole, embezzled, phrase the away took carried shipment location of the when im- stolen are vehicle, is, from a a trailer owned portant considerations, but no one factor is Transportation Incorporated, goods Allied of a Rather, conclusive. each case must be evalu- is, $100.00, approxi- value excess of particular facts, recognizing ated on its own 38,000 mately pounds hanging beef carcass- designed promote that § 659 was the flow es.” goods commerce, foreign in interstate and carrying that “the out of this reviewed the documents

agree with the district court’s assessment. LABOR NATIONAL RELATIONS The district court did not abuse its discre- BOARD, Petitioner, denying Wagner’s request tion disclo- Washington, sure. See United CORPORATION, METAL CONTAINER U.S.App.D.C. Respondent, curiam). (1972) (per Accordingly, judgments of the district International Brotherhood of Electrical are affirmed. Workers, 1, AFL-CIO, No. Local

Intervenor/Petitioner. STEPHENSON, Judge, Circuit concur- No. 80-1782.

ring. Appeals, States Court majority opinion I concur in the except Eighth Circuit. respect holding with to its permitting court abused its discretion Submitted June appellants to impeach with Decided Oct. (twelve old), 1968 convictions al though holding the same was harmless er

ror. See majority opinion at 1299-1301. my

It view that the convictions were properly supports admitted. The record finding probative

district court’s value of the convictions under the facts of ease outweighed prejudicial

this effect. Spero, See 625 F.2d 779 1980); Little, Cir.), credibility appellants of both was im portant. they claimed had no Both intent were, to violate law but substance, gathering information for the Furthermore, government. appel neither could rely lant on the presumption that an unblemished record for ten carried an inference that had been rehabilitated. majority opinion See n.10. Evi indicating appel dence received each felony lant been convicted of another ten years within instant offense.

Case Details

Case Name: United States v. Gerald L. Singer, United States of America v. Raymond E. Wagner

Court Name: Court of Appeals for the Eighth Circuit

Date Published: Oct 5, 1981

Citation: 660 F.2d 1295

Docket Number: 80-1983, 80-1997

Court Abbreviation: 8th Cir.