United States v. Kenneth C. Gordon

rec- do not find such evidence We court arrived think the trial

ord. We by speculation what as to conclusion indulging presump- without occurred Supreme of Ohio tion, which says prevails evidence until rebutted contrary, plaintiff’s intestate exercising ordinary care. sub- opinion, have been should the case proper instruc- under

mitted

tions. view, trial court also In our objec sustaining defendant’s erred interrogatories plaintiff’s Nos.

tions 2, 3, 4, Rule 6. Civil Procedure interroga U.S.C.A., provides relate to matters tories Finnegan Schnackenberg, Cir- subject inquiry proper Rule 26 under Judges, part. cuit dissented in coverage, 26(b) (b). Rule is broad in it, deponent may that, ex under identity respect “the amined knowledge persons location ground it is not relevant factsand testimony objection inad will be testimony trial, if missible at sought appears reasonably calculated to discovery of admissible evidence.

lead to judgment is reversed and the case for a new remanded trial. America,

UNITED STATES of Plaintiff-Appellee, GORDON,

Kenneth C. Defendant- Appellant.

No. 11929. Appeals States Court of Seventh Circuit.

Feb.

178 George Callaghan F. and R. Anna

Lavin, Chicago, Ill., appellant. Tieken, Atty., Robert U. S. John Chicago, Lulinski, Atty., Peter Asst. U. S. ll., appellee. I DUFFY, Judge, Before Chief FINNE- GAN, SCHNACKENBERG, HASTINGS PARKINSON, Judges. Circuit PARKINSON, Judge. Circuit A four-count indictment was returned by Jury the 1950 Grand for the Northern Illinois, Division, District of Eastern against Gordon, Kenneth C. Kenneth J. MacLeod and Albert Swartz. 1 Counts alleged unlawfully 3 that defendants possessed goods being stolen while trans- ported commerce, in interstate viola- tion of Title 18 U.S.C.A. 2 4 prop- counts and that caused the erty described in counts and 3 transported further com- interstate merce, in violation of Title 18 U.S.C.A. § previous 2314. Swartz died to trial. guilty Gordon and MacLeod were found by jury counts, upon all judg- on ment ap- was entered the court. On peal, this court affirmed. United States Gordon, Cir., v. 196 F.2d 886. The Su- preme Court allowed certiorari and re- versed. States, Gordon United U.S. 97 L.Ed. trial, Upon a second MacLeod was ac- quitted counts, on all a directed ver- dict as to counts 3 verdict as counts 1 and 2. Gordon was guilty found all counts and sentenced garage jointly con- pe- which was stored imprisonment court to Mac- count, trolled Both Gordon them. years each seven riod of concurrently. occasions assisted Leod on or both one served to be sentences car, loading Marshall into his appeals. the film judgment Gordon From Michigan plates. In bore license argues numer- and asserts Defendant this car the transported occasion film on each In grounds reversal. for as ous errors accompanied by Marshall, raised form, thus issues abbreviated Chicago Swartz, De- from to Detroit. the indict- (1) 3 of 1 counts and are: as a contradict- fendant Gordon witness allega- anof void the absence ment are testimony Marshall all mate- ed the on property stolen of the the value tion as to alleged concerned, of rial matters. course, We are defend- possessed to have been testimony conflicting with this sus- ; (2) proof insufficient to is ants posture present of the because in the verdict, particularly jury tain case, proof in the must be considered vari- (3) fatal is a 2 counts and light government. most favorable to the allega- proof and the ance between consider- Moreover the record furnishes and to value the indictment as tions of corroboration Marshall’s able testi- (4) property; description of the mony. rejection and in its admission court erred No testimony; (5) is raised as to the suffi- erred court ciency proof the inter- relative to denying defendant’s transportation film from state panel, distribution based Illinois, Rochester, Chicago, Jurors”; (6) York New jurors a “Handbook transit, failing poll or as that it was stolen while in court erred in the regarding transportation by (7) Mar- to its newspaper publicity, interstate and Detroit, Chicago, shall from Michigan Illinois to deprived of his con- the court occasions men- on two to counsel. stitutional alleged is neither nor claimed tioned. conclusion which we In view that either Gordon or the other named disposal of the relative to a have reached case, already film. As defendants stole the only issues consider those shall we noted, possession counts, 1 and 3 are regard In in- as decisive. which we 4, transportation 2 and counts. The opin- brevity, refer to our we terest allege counts the defend- former two that appeal reported 196 on the first ion film, possession with ants of the Su- as well as that 886 F.2d knowledge that it had been stolen. The state- preme for a more detailed allege latter two counts defend- necessary to make of facts than ment transport “knowingly ants did and cause purposes. present for our transported be in interstate com- Kodak film It was shown merce” merchandise described Rochester, shipped truck from New counts 1 Chicago, stolen while Illinois was York to appeal In our on the first portion A film transit. unnecessary it found to decide the issue Detroit, Michigan, subsequently found sufficiency as to counts Marshall, possession of one or in recognized theory on the well persons possession of who had re being sentence, general, supported govern He was from him. it ceived 2 and 4. We counts have now reached present principal witness in the ment’s conclusion, subsequently reasons previous trial. Marshall well as stated, proof insufficient to concerning trips from two testified judgment support the counts and 4. Chicago car, in his accom Detroit Therefore, becomes it essential to con- (named panied Swartz a defend defendant’s attack on sider the sufficien- deceased), July 20 and since ant but cy 1 and 3. of counts July occasion 1950. On the of these 659, upon MacLeod, Section contacted Gordon these he visits predicated, provides procured counts are so certain far as film whom from * * * is, therefore, “It well settled that “Whoever here material goods grade larceny, or con- where the sequently possession such has in punishment, depend in- [previously from an stolen chattels knowing property, is es- same value shipment], terstate have, property stolen,” sential shall that the value or embezzled charged impris- $5,000 or than “fined not more be alleged both; proved, taken be Am. years, or more than ten oned not * * Jur., 112, p. Sec. 1023.” of such value if the amount but goods $100, exceed does not chattels Illinois, definitely settled $1,000 or not more allegation he shall fined proof there must both year, or imprisoned imprison one place not more where the value 1, entitled length ment, 18 U.S.C.A. § Title both.” of sentence or the “(1) classified,” provides: thereon; dependent “Offenses amount of fine is im- or punishable death Any further, proof offense ab value in the exceeding year one allegation prisonment term for a sence of an as futile as a felony. (2) Any allegation offense is proof. is a Brown v. Peo without apparent once ple, 34, 37, 106; People It misdemeanor.” 173 Ill. 50 N.E. de- Jackson, 611, 612, consideration statute under v. 312 Ill. 144 N.E. dependent offenses, 314; People 236, Swinson, 233, classes scribes two v. 406 Ill. is, property, that of the the value 92 N.E.2d 758. $100, a and felony exceeds value a if the government points to ex- so does not if value misdemeanor incorporate by 4 fact that counts 2 and con- 3 count count 1 nor ceed. Neither goods reference in counts 1 set forth allegation, any or oth- reference tains allege 3, and $5,000. a value of more than property erwise, value of as to allegation, This while aid to unlawfully pos- alleged 3, counts 2 4 is no aid 1 this reason the counts sessed. Are which, noted, contain no reference ? hold law We matter of insufficient as a government argues 2 counts and 4. The they are. reading “that after indictment in this rule, so far as anyone’s the universal It is case no doubt aware, goods in in an “each count mind that set in counts forth regarded sep was a as if it 1 3 at more dictment and were valued than $100.” Assuming true, argument United Dunn v. indictment.” such to arate 189, 393, 390, States, 52 S.Ct. 284 U.S. issue. Each is beside the count must be 356; allegations, United 190, judged Walker v. 76 L.Ed. its own either 798; 796, Cir., directly United States, 176 F.2d or 9 those made To reference. 668, Cir., Denny, allegation 165 F.2d 7 v. hold that an of value not States States, 670; place 10 v. United McClintock essential would both the accused true, 839, Cir., awkward, 840. It is in an if in 60 F.2d the court tolerable, course, be aided count situation. A one defendant should allegations expected required plead incorporating of another or not be knowledge Both Walker a as to reference. count without whether count charges felony the same cases so hold. To or misdemeanor. a A McClintock effect, Taylor, Cir., guilty 2 207 plea such a count would leave United States v. 438, Supreme 437, cita in the dark as to whether to with the court impose F.2d felony proposition. support or sentence for misde of the tions argues government that it meanor. The no Federal where case know of We allege from a failure to follow does not decided. How- precise issue has been This, proved. no offense was value that Cartwright States, ever, 5 v. United true, is immaterial. The issue is if court, 133, the in discuss- Cir., F.2d 146 allege, prove. a failure failure to statutory ing distinction between a Tinder v. United misdemeanor, (page cites felony stated 565, L. States, 97 135):

181 (page who, Scarlata, 595): full knowl- “One v. States Ed. Cir., edge purpose contra- with which United States F.2d goods used, band furnishes Cir., Both are to be Marpes, F.2d them, goods involved those to so use to another Scarlata cases the Tinder and proceedings actively participates in the scheme 28 U.S.C.A. Title under plan to so use them.” correct sentences. to vacate or question gov- is not shown which the factual basis sufficiency raised of the indictments support suffi- ernment relies in Marpes de- put case issue. ciency proof brief is stated in its indictments, tried two fendant as follows: allege value failed to one of which possession and furtive “From the Again goods stolen. disposition of this film manner of sufficiency of the was raised as to the inferring justified on review was issue indictment. The that the defendant Gordon knew concerning proof value al- whether the leged film to have been stolen and was suf- indictments in one of the number known Swartz of be said The most that can ficient. years, jewelry of that he was is these that where cases Detroit, done in and he had business sufficiency no to the as raises on a number of business with him allege value and which fails to of count two occasions occasions and that on convicted, guilty is plea enters a of or loading he in- stolen film assisted judgment for a count will sustain a such bearing Michigan license to the car plates, felony. We a misdemeanor but not a they justified also in in- were govern- they are no think of benefit ferring the film that where he knew situation. ment the instant going.” was Even this favorable statement is more A is made serious government justi- than the record sufficiency proof on counts fies. “Bold” accurate would be more allege is, trans and portation. that those which “furtive,” than inasmuch as the film was It is not claimed and there disposed daylight, thickly of in in a broad actually transport proof no that Gordon Chicago. populated Defendant area of Chicago ed to Detroit as the film from proof, asserts that find there is no and we alleged. transportation noted, As none, knowledge he Swartz that had that ain car owned and was made driven jewelry Detroit, was in the business in Marshall, accompaniedby Swartz. Proof he or that had business him on done with loading stolen Gordon assisted in that proof numerous occasions. There sufficient, it film Marshall’s car is so into knowledge that defendant saw had argued, aider to make him an placed that the car which the film was commission of the offenses abetter Michigan plates. gov- bore license The charged, therefore, properly he was statement is ernment’s loaded in- with govern principal. convicted as a jury required ferences. The was to infer theory it ment concedes that under this knowledge that defendant had incumbent to show that Gor was it stolen, film had theretofore been infer don, at the time the film loaded into knowledge that he had that car bore knowledge car, Marshall’s had that it was Michigan plates, license and further infer transported in to be interstate commerce. knowledge had that film was government fact, relies An transported by Marshall to be and Swartz States, Cir., stess v. United F.2d Chicago Detroit. from court, of this wherein it a decision view, was held that one who sells contraband In our the assertion defend- whiskey knowledge knowledge another ant had such ing rest on noth- strong transport suspicion. purchaser un more than a intends it purchaser’s lawfully participates indicates that record after the film was car, plan transport. The court stated loaded into the had no fur- proceeds therein, guilt defendant, ther interest or in the with the they but being any to be therefrom. Such derived must be inconsistent with case, have hypothesis what difference could it other reasonable that can predicated evidence; or, trans- whether the film on the Gordon ported form, to some stated in another Marshall and Swartz it is not Chicago, or city sufficient proved other location in the circumstances Illinois, point with, for, such some other coincide account probable how Peoria shown or Cairo? It is not therefore render hypothesis guilt transportation of the film to Detroit asserted any prosecution, defendant. to or concern of benefit but must exclude certainty beyond to a moral suggests: brief every hy- doubt, reasonable “What would be more natural get pothesis single guilt, but the one of place away from the [the film] or the must find the defendant theft, officers the law enforcement where guilty.” searching it, would market, instruction, disposed such If the had followed this some distant argument inescapable im- conclusion is not Detroit.” The that defend- pressive. acquittal ant was Gordon entitled to a verdict We cannot assume that any parties reason counts involved under discussion. Cer- tainly proof offi- to believe enforcement does not law exclude to vigilant certainty hypothesis moral transportation cers of Detroit were less that the- Chicago. film than those Marshall and Swartz was a matter of indifference- causing property A conviction of stolen to defendant and he had no concern transported commerce be in interstate knowledge place with or of its. depend character of the proof destination. We hold the insuffi- Pereira transaction. Illustrative is cient to sustain conviction on a counts 2. States, 9,1, S.Ct. U.S. 358, 435, States v. 98 L.Ed. and United 391, Sheridan, 379, 329 U.S. pass thinkWe should not un we 332, cases, de- 91 L.Ed. 359. In those phase one noticed of defendant’s con cheeks fendants cashed worthless drawn deprived tention that he was of a fair- located in states. The banks other trial because of the admission incom proof court held that was sufficient petent testimony. The witness Booth ground causing transportation, statement, testified, objection, over ato knowledge at had the defendants by April 1952, to him made MacLeod in they they the time cashed the checks that McCormick, and the witness also over an sent for across state would be collection objection, testified as to a conversation they lines to the banks were (These with MacLeod in June 1952. con knowledge imputable drawn. This was place years, versations took almost two they knew to the defendants because alleged after commission of the place checks could there was no subsequent crimes and to the reversal of' contrast, knowledge sent. such be previous conviction.) Both state imputable to defendant in the instant by ments MacLeod made were to these point of case because the destination presence out witnesses of the of Gordon.. place one could have been as well as an- only against They were admitted Mac other, a and was matter of indifference Leod, cautionary usual instruc to defendant. by tion court that were not to- against jury, considered The court instructed the be Gordon. The im statement; portant portion properly think: of MacLeod’s we related Booth is as follows: justify “In find- order ing guilty “Kenneth Gordon up based on cir- a verdict was mixed evidence, stolen the circum- some film that cumstantial at time that only not be consistent had been stored in rear stances must of the: * * assumption prejudicial effects garage had naive 217, he and that stolen be overcome instructions Gordon had Kenneth * * * lawyers jury [citing case], practicing gotten film all or had unmitigated stored it know to fiction.” had from some thief garage at 217 Bast at the back A Su- similar issue before the any- Erie, that he hadn’t preme v. United in Delli Paoli thing deal, and that he out of the States, 1 L. S.Ct. * * * caught got they had had judgment of con- Ed.2d wherein ** * * ** with it. Gordon de- viction affirmed a five to four mean, was that deal I that the majority cision. The cautionary reasoned that supposed send said Gordon was court were instructions of with cars and he fellows over supposed circumstances of sufficient under the cars help it load rights safeguard case to co-de- profit, percentage in- fendant. circumstances they got caught was no there case, point out, are stant shall profit for him.” by the different and observations made by dissenting court in Paoli MacLeod’s statement testified members of the pertinent. (352 states is as follows: dissent McCormick 302): page page U.S. at 77 S.Ct. at first he had said “He [MacLeod] too “The is that often fact matter films, had film stolen against such admonition misuse in- from the obtained Gordon been people * * * trinsically ineffective in that the effect said He stole it. who can- of such nonadmissible declaration nothing do with had had that he wiped jur- from the brains film; that the first theft again page 248, (352 ors.” And U.S. at Gordon was when he knew about it page 303): “The 77 S.Ct. at Government brought Erie to 215 East should not windfall Street; film want the that he didn’t jury be influenced evidence place, but that he in the first against which, as a matter a defendant partnership in at were and Gordon law, they should not consider but roominghouse and that time they put cannot out of their do about much he could there wasn’t minds.” Gordon told also said that it. He money they some him make would case The circumstances instant it.” important least one are different respect, testimony is, is this that doubtful if the tes- is that It evident damaging timony properly discussion under have been not incriminating prejudicial to Gordon. characterized as admis- MacLeod; fact, admission, however, by they justifies sions ex- incriminating. represented culpatory incriminat- It premise rather than MacLeod ing is not discernible how these statements admissions cautionary any instruc- been of material to the court’s could have aid and that against government’s sufficiently protected Gordon. Nu- case MacLeod. tions time, they were, have em- as to surprising cited which At the same Gor- cases are merous deadly theory don, poison. dam- It not the fanciful braced age was cured convicted Gordon ac- to Gordon done damaging jury. quitted MacLeod. While That to admonition court’s cling theory, testimony this still effect of was cured courts it, cautionary ignores tendency repudiate growing instructions to real- ais logic contrary done, this all the sooner ities and com- think flimsy Justice Jackson sense. Its admission on stat- mon As late better. concurring pretext which it was offered in Krule- ofwas his ed 440, 453, States, require prejudicial nature as to such v. United witch 716, 723, L.Ed. “The reversal. foregoing was, by opin- is and present That it is too late to July 16, 1957, dispositive question ion of of this petition for the first on a time appeal. However, rehearing case on we then went so well cita settled that say although on to authority superfluous. no tion there was would be necessity considering However, other errors under the circumstances aof upon by relied con- the defendant we felt reversal of the cause for the reasons exception ignore strained stated, and con- make heretofore the failure challenge challenge sider the venire. properly defendant’s to the venire to The lenge defendant had filed a written chal- raise the handbook ex would panel petit jurors challenge clearly entire tend beyond office of such a grounds proper permit the District all limits and they ground had been furnished with a addition of a heretofore rec pamphlet ognized by entitled “Handbook for Ju- the law and for which there is justifiable Deputy rors” either the Clerk or reason This whatsoever. Marshal; that such handbook had im- we must not do. properly they indoctrinated them so that array or, A fairly impartially could jurors sit jurisdictions, entitled in some a chal case; the handbook lenge to the venire is of law common misleading contained erroneous origin. partiality It was based on some reading statements “the of which would or default of sheriff under prospective juror so influence that he and, duty officer as it was the give could not to the defendants a fair jury, sheriff to summon was the impartial and the distribution trial” ground only challenge. Chitty’s for such deprived thereof of due Law, Edition, Criminal Fifth American process of law. I, pages 539; Cooley’s 535(a) Vol. only evidence offered de- Blackstone, Edition, II, pages Third Vol. attempt prove fendant those al- goes 357 to 359. to the form and legations testimony of was the one Mar- making up panel manner of the whole garet Mulane, person whom legality drawing, and relates to the petit jurors report at the commence- selecting impaneling array. Whip gave service, ment of their that she a pany Paperboard Co., Inc. v. Local No. copy pro- of the handbook to each of the 301, 1952, 11 N.J. 93 A.2d spective jurors and told them it was “a only partiality It can lie when there is they nice book and should read it” or misconduct the sheriff or some ir but that did not know whether she regularity making list, out the State did read it not. or Levy, 1924,187 581,122 386, N.C. S.E. Kirksey, 1947, State v. 227 N.C. The Government no issue 445, 613, 614, only 42 S.E.2d will question properly as to whether the was ground upon affecting allowed validity some the challenge we, raised upon a to the venire growing panel of the whole out challenge record that proceedings selecting of the and sum admittedly pre- made was sufficient to moning jurors composing panel. gave question review, for mi- serve the Smith, 1951, 196, State v. 138 Conn. careful consideration to the nute 816, A.2d 820. It is universal and well handbook and contents of the held that it that, statutory established law absent challenge prejudicial was that enactment, challenge array a to the or sustained. should only question venire raise the of the petition then filed a Government The invalidity panel of the entire because of rehearing pertaining solely era banc vitiating irregularity some or defect portion opinion handbook our to the summoning ju the selection or contending challenge specifically that Jury page rors. Am.Jur. Vol. § array properly does not to the raise the 262, p. 50 C.J.S. Juries granted petition and, question. We sitting banc, challenge era reheard The of the defendant issue. Gordon raised whatsoever as selecting impaneling any juror drawing, tion or on voir dire revealed to the grounded disqualified array was it or nor he was biased venire because prejudiced against any charge partiality upon default reading handbook, or summoned can- of the officer who selected grounds right. complain. panel. Moreover, He has waived that properly challenge, even if sufficient District Court was correct issue, supported present were not overruling challenge the defendant’s only proof. of- evidence sufficient the venire. that fered the defendant Judgment reversed and remand- cause pro- were distributed handbooks ed. suggestion jurors spective that opinion July 16, Our former completely they be read. record is superseded hereby and is withdrawn. any any devoid of evidence that the handbook members read DUFFY, Judge (concurring). Chief any as to its contents or had information opinion Judge I concur in the or, read, influenced if would have been prepared against PARKINSON thereby after this Court defendant. again considered the issues this case intro- incumbent the defendant to by holding rehearing offer, sup- en banc. I duce, am or to distinct evidence pleased challenge that what we said in port our former and the failure to opinion with reference prove to “Handbook for his contentions was fatal. Glasser longer part opinion Jurors” 60, 87, is no S., v. U. 457, S.Ct. Court, first, strong- because I am 86 L.Ed. 680. ly of the view erroneous conclu- Assuming, arguendo, reached, secondly, sion was pre- panel the entire read handbook and opinion stated, effect, vious the handbook did contain state discussion as to the handbook was dicta. inimical a defendant in a crim ments opinion discussing In that before right case, the defendant had inal Handbook, Jurors’ “In said: view of challenge polls. voir On dire ex held, appears we have what no ne- right, amination he had the unless cessity considering re- errors it, duty, desired waive and it was his upon by lied defendants.” to ascertain the true facts. the event I was not a member of the division any member had read handbook and panel originally or Nevertheless, heard this case. give reason could not him a fair entirely willing I would be impartial right trial he forego expression my views on for cause. Failure the Jurors’ Handbook were it not for an proper of the court to sustain such a by Judge Finnegan. herein filed challenge would constitute er reversible ignore charge I majority right ror to a fair and defendant’s “flimsy the Court relies technicality” archaic preserved. impartial trial would be Un being incorrect and as der the law he could assert that adding light issues under dis- manner. no other cussion. S., 1948, In of Frazier the case v. U. 201, Judge Finnegan quoted S.Ct. L.Ed. has in extenso Supreme opinion Court of from former the the United States our which has now jurors superseded the had to held that be examined been and withdrawn. It individually prejudice arguing for actual bias or anomalous opin- about an resulting employment. longer from opinion their This which is no ion of the procedure Nevertheless, is the that must be followed Court. important it seems panel legally when the properly has and to indicate that some of the members of selected, agreement and drawn summoned this Court are not in with the portions opinion without favor. In the of absence a chal- of the former which lenge polls cause, interroga- Judge Finnegan for if has set forth in sep- “dissenting justice pensing It opinion of in those courts. which he labels arate many judg- undoubtedly of was part.” the belief juror under- es an informed who previous opinion stated: In our something proper functions stood of “While, noted, the distribu- we think juror more of a do a better and prejudicial to of tion the handbook was intelligent job who went into than one objection defendant, important more a jury blank mind box with a impinge- an that its constituted use vaguest ideas of where with none but jury system, an upon as well ment judicial a into federal fitted legis- prerogatives of of the invasion picture. charged of lative branch providing responsibility of with the Judicial Conference jurors.” qualifications I read for States, the Judi- then known as I find pamphlet, and can and reread the Judges, cial Conference of Senior Circuit saying use no reasonable basis Stone authorized Chief Justice Harlan impingement an booklet was appoint a of district to judges committee five jury system invasion the prerogatives study, a recom- to make legislative branch selecting mendations, of the manner of government. a statement Such of jurors of in federal courts. One unchallenged. go should colleague, members selected late was our opinion previous we also stat- In our Lindley, Honorable Walter whom the C. “So, dis- situation the ed : the instant regards of writer depar- of handbook tribution experi- been one of the ablest and most scheme, statutory and the from the ture country. judges enced trial question for is its effect on consideration judges also other four were selected showing system rather than They experience. Judge were wide trial prejudice I an individual case.” John C. Knox the Southern District nothing about distribution see Judge York; James Proctor of New M. departure handbook which is a statutory from Judge Columbia; of the District of Colin Furthermore, I do scheme. Mexico; Neblet of the District New agree for consid- Judge Harry E. Watkins of the system is the effect eration Northern Southern Districts of showing prejudice to than a rather Virginia. It will be that this West noted at bar. in the case the defendant represented splendid cross committee previous opin- also stated our We judges, of all federal section view, “In the most serious ion: experience trying jury wide pamphlet as means criticism the urban and rural areas. cases both conveying information is which committee drafted which is stat- rather than that omitted jurors and before handbook submit- Judges I the Committee of take it ed.” ting Conference, Judicial same prepared pamphlet among circulated all it to be fed- caused the United Conference Judicial country inviting sug- judges in the eral gave approval in- never States which gestions criticisms. After further complete ex- the booklet to be tended consideration, the committee made its might apply position of rules that to a report and submitted handbook to ease. or to a criminal The booklet civil approved Conference which Judicial to be all-inclusive not intended authorized its distri- criminal and civil law.

treatise time time From certain modi- bution. improvements many sug- learned and ex- fications were Prior judges gested, perienced realized in 1953 trial the committee recom- proper in fed- certain amendments. administration of law mended jurors judges if sent to all be aided letter was federal en- would a closing eral courts proposed asking general as to role revision and information some play supposed they in dis- for further comments. The to handbook were following excerpts Judicial Con- The hand- from the then submitted purpose approved and au- book same illustrative ference which are as to the pamphlet: to have Office thorized the Administrative printed revised The and distributed. it (a) judge “The determines the more attractive- version was shorter and ly printed applied law to be in the case while original draft. than the jury decides facts.” jurors has been The handbook for (b) judge law “The what the widely in courts used federal declares law be.” throughout Many country. states (c) “The verdict is reached with- jurors adopted handbooks thereafter regard may opin- out to what be the of such states. used in courts be judge facts, ion of the as to the through The American Bar Association though charge as to the law his Administration, is section of Judicial its controls.” grand working on a handbook for now (d) jury “The case a criminal pur- jurors. apparent It must determine are the true what pose not to an handbook was be judge jury facts and the tells the principles exposition of the or treatise what is the law.” law, rather, in but civil and criminal (e) “In both civil and criminal Judge Ruby Hulen, language of M. cases, jury’s duty to it decide Bar Jour- in the American in an article the facts in accordance with the 1952, page October, 815: nal of “ principles of law down * * * laid something jurors to tell charge judge jury.” his importance, work, how it about their performed, (f) give approached and “Each should close should along testimony. of Court attention to He is with the fundamentals prejudices procedure.” discard sworn to his terms follow the court’s instructions.” functioning jury proper (g) “They if violate oath their system in our is of tremendous courts their render decision on the Many importance. a citizen is times their of the effect verdict basis jury who has had no service called have on other situations.” experience. previous jury All too often previous opinion he is of this he is resentful because thinks Court though unpleasant chore at rela- were faced treats the handbook as tively pay jury will interfere instruction to the the case small However, and activities. His duties bar. the court below instruct- with other jury are now further in- mental attitude towards service ed as follows: “You However, reading good. you decide case structed that shall only upon here in would show evidence received here in guardian open Court, be the under the instructions of how a emphasizes being given rights people; a free now Court which are juror occupies position you.” Also, you idea that “If have heard or read dignity great importance. anything concerning of juror or observed told, effect, open Court, he is an offi- than here case otherwise you juror’s court, disregard wholly and that it cer of the is the instructed just find facts you heard, seen, as it is the function so read what appli- judge’s solely upon function to determine the case to decide this open produced law. cable here in evidence being given now under the instructions reading clearly of the handbook A dis- you.” jurors orientation of is broad closes it conceding any specific But, arguendo, reference without lawsuit. some handbook could fundamental manner the contains information consid- concerning operation case, instructions the instant federal ered as taking justification system. there is words 188 Judge The ex- sentences of context. Chief of was direct- out each Circuit report cised be read ed the sentences words must the Conference as to charge. part United as needs of mat- of the entire his Circuit and as to Marie, Cir., respect F.2d 7 226 ters in of administra- States De which the v. Cir., justice Phillips, 7 tion of in of the United United States v. the courts ap- 435, 443; improved. v. Wi- 217 States It is thus F.2d United States be parent Congress

coff, expected Cir., Judi- 7 187 F.2d proposals cial Conference consider Considering whole, as a the handbook might improve which the administration claiming that it con- is no basis justice of in the federal courts. prejudicial in the case at tained error pro- Instead, impression upon a bar. Congress provided When for a Direc- likely spective juror’s mind to be of tor Administrative Office by Harlan F. described Chief Justice many Courts, United it States outlined September 1, when, of Stone under date of his duties. Title U.S.C.A. § hand- “Foreword” wrote a he provided: ad- “The Director be the shall handbook de- as follows: “This book courts, officer ministrative language readily understood scribes supervision under the and direction of juryman in the Fed- functions the Judicial the United Conference of * * Every prospective eral courts. Paragraph 12 States shall upon its advice should read and reflect provided Di- the directions following it, to make his and resolve “perform rector shall such other duties adminis- own contribution to better assigned him Su- will, believe, Many justice. I tration of preme Court or the Judicial Conference gratified surprised to learn Hence, appears the United States.” greater far that contribution can be without doubt that the Judicial Confer- supposed.” had powers approv- ence acted within its ing committees, report of its of one Judge something Finnegan has added appointed Chief Judicial Confer- new. discovered the He Justice, authorizing Adminis- acting was be- ence of yond United States publish and distribute trative Office authorizing authority “Handbook for Jurors.” the booklet publication of the Hand- and distribution judge who Each district received It is difficult to believe for Jurors. book advised and understood that booklet was seriously Yet, made. contention is optional him whether the was opinion, has con- I understand in his be used court. booklet was to Congress was nec- an Act cluded that essary publication and authorize the HASTINGS, Judge. Circuit handbook. distribution opinion prepared I concur period During when the handbook Judge and I also PARKINSON concur distributed, published Chief concurring opinion by separate in the had been United States Justice Judge DUFFY. Chief Congress summon to an directed Judge (dissent- FINNEGAN, Circuit Judge meeting of each Chief annual ing part). country. The Circuit Judicial entered October preside order Our directed to Justice was Chief government’s petition granting meeting group des- the ignated rehearing banc, delineated the issue en the Judicial Conference opinion But for reconsideration. 28 U.S.C.A. 331. Title States. July 16, (U. S. specifically Gor- handed down directed Conference don) survey rewritten and for that has been comprehensive of a make my report position I must reason courts of the United business joining in the suggestions second case. While total States, and to submit remandment, disapprove- I of uni- reversal in the interest courts various rehearing part expedition all formity of business. evidence, disprove duces Jurors” to the discussing For “Handbook expressed plaintiff’s prove de- through and case to all views which and by a I was fendant’s is an inac- claims.’ That panel, which initial applied regarding curate a civil now statement as to member, troublesome singu- accorded case a defendant is deleted. where pamphlet, have been It day my privilege required to broth- but how late in note lar to damaging produce flimsy tech- archaic evidence. The a unearth would ers glossing effect likely nicality which misinformation their warrant as judges produce amplified to three over what thought was, impingement statement, procedure originally in a ‘The right a fair to criminal “upon of a defendant in a United States Dis- case guaranteed very many impartial as trict Court is similar in law, respects except to in civil case Constitution a * *” * be must it does the United States think speak- Judge Major, always begins again, remembered that the case.’ And ing panel, said also unanimous for a has hand- ‘What been said opinion: “The procedure Gordon book in civil the first about the admittedly venire, general to applies way sufficient to preserve cases in a review, was criminal trials.’ think this ane- We jurors distribution mic based distinction between a criminal ”* * * (Em- pamphlet 14-page likely implant and a civil case necessary play added.) phasis juror If isit mind of a erroneous concepts the de- impression, particularly common law with the so when the despite motion, Government’s pamphlet fense makes no reference to the thought plea, I safeguards then provided by and second waiver numerous 52(b), Rules Federal invoke would Rule the Constitution otherwise U.S.C.A., Procedure, protection of Criminal of a defendant plain af- or defects “errors notice the case. In no manner was a criminal juror rights” fecting stimulated substantial informed a defendant indoctrinating jurors means of charged with entitled to the crime is Handbook. presumption of and that innocence guilt proving be- burden of his the yond divergence present ex- of views The a reasonable doubt is ought by my ex- pressed to be brothers states, government. pamphlet following against passages amined pre- ‘The has a defendant Judge Major part of his authored appraisal open at the trial in sent evidence Handbook: judge petit court before the and the either as er- “Defendant criticizes jury.’ juror was not informed misleading many of the roneous or required is not that present hand- contained in the statements any evidence, a de- or that book, detailed discussion of may, option, at his become a fendant opinion. unduly prolong this would no and that is to witness inference view, most serious criti- In our indulged against him for his fail- be pamphlet as a means cism of conveying to do. ure so information is that pamphlet states, “The which is ‘What sen- rather than that is omitted given pamphlet purports tence stated. procedure jury. juror concern must inform the Sentencing rights parties in is the function of a civil therefrom, judge and, alone.’ We assume that distinct case rights substantially parties a correct procedure statement Referring law; fact, court in case. to a in a criminal instant case, instructed the is informed that ef- case civil However, following pro- calls witnesses fect. the last ‘Defendant proceeds: tutor quotation pamphlet selected too late to been is the more guilty neces- him so will become that he ‘A of does verdict competent. sarily will mean the that long he or that receive sentence “While, noted, think we any sen- required serve will be to distribution of handbook impose may judge tence at all. The prejudicial defendant, im- a more appears him to such sentence as portant objection use that by just law fixed limits with the impingement constituted suspend proper he case jury system, inva- as an as well on place sentence and legis- prerogatives of the sion of the probation.’ lative branch of charged responsibility in the with the an instruction “We think jurors. providing qualifications language quotation for last Congress Title reversible This done. See constituted has would have plain seq. invita- 28 U.S.C.A. 1861 et It amounts to error. § “ jury * * * a verdict to return tion to jn situation instant consequences guilty and leave handbook the distribution thus information court. The statutory departure was a from the juror possessed form scheme, for consid- argument potent win for a basis jury sys- eration is its effect wavering juror. over a doubtful showing prej- tem than a rather right of a de- * prejudice * It could in an udice individual case. on the issue fendant to a fair “With we reach the reluctance guilt of his or innocence. conclusion matters “While there are sustained. venire should have been which are in the contained say We with reluctance because propriety, what we think of doubtful recognition our able and dis- is sufficient we have shown tinguished members of the Federal present purpose. judiciary hand- who authored the good book, purpose and laud- whose impressed with the are not “We open question. is not able motive any argument government’s impinges upon If its use jury imparted to the misinformation impar- a fair and of a defendant im- handbook is means of the guaranteed by the Con- tial trial as event, any because, material law, and the as we think stitution obliged ap- accept does, judicially sanc- it cannot be given to it ply the law purpose because of the noble tioned any At instructions. court in its sponsors.” of its strange phi- rate, us as it strikes juror utterly pur- losophy after he has that-a One embarks on futile searching any of- can be called for service Act of Con- been when suit authorizing ficially gress publication with mislead- and dis- indoctrinated ing information Handbook inaccurate the Judi- tribution will premise in the end he the United cial Conference States. prop- Certainly precatory instructions be words found in court’s unavailing, yet we think erly Neither do informed. 331 are 28 U.S.C.A. similarity great between of the book under cover appears citizen after where a of the United States seal situation wording: For service “Handbook selected Jurors serv- has ing information official States furnished District Courts sanction, by Authorization judicial and a situa- —Published the Ju- infor- the United a citizen receives Conference States.” dicial where tion added.) Only recently, January (Italics all from a non- available mation the Administrative has Director of After a source. official course, joined transmitted notion the United States Courts who legis- asking Congress, him, tangential bills, ex- followed him in since sent holding empower Obviously Judicial cursion. dicta, lative action to study recommend ex- Conference “to changes nor an isolated sentence tirpated of produce to the rules in and additions from such con- context practice procedure Judge federal version, Major simply and in the for treated pretty ground clear I courts.” would think with an of decision. alternative g. Co., can- Realty moment the Conference this See e. Woods v. Interstate go beyond issuing 1949, 1235, 535, 537, not recommendations 331, suggestions. U.S.C.A. See 28 93 L.Ed. ex rel. Foster v. State 902, 497, amended, 71 Naftalin, 1946, 70 Stat. Stat. 246 Minn. 74 N.W.2d of 249, 266; 476. I some Langlie, Stat. am well aware that State ex rel. Lemon colleagues my respected participated in P.2d Wash.2d preparation Handbook, and the point was in the before court express my yet, regretfully, views I beginning must and found firm basis living judge. in fellow For are record. material That the handbook symbols signs, times when and tokens dicta is also not substantiated per- day “hidden the order of the urgency, in second manifest opinion, evident among responses suaders” exert desired undercutting for defense laymen. unthinking and uneducated motion. motion That had to be devita- ill-equipped need this Jurors so government’s in lized order to hurdle the prey in Handbook will errors to the point led, failure to raise the Judge pit- Major it. the Handbook’s saw ground dicta, deci- but an alternate of incomplete state- falls described its sion. opinion, in now ments his emasculated. Judge SCIINACKENBERG, Circuit goes deeper I All of even (concurring dissenting part in educating, any process think utilized part). informing jurors orientating, of Congressional requires au- their duties important part of The most this case policy. and manifestation of thorization challenge has do with of right to An has a constitutional accused to the use of so-called handbook by jury does mean trial and this jurors. importance of incompletely by jurors especially and regard thereto, properly duty The in- conditioned for escapable as such. argued raised, panel and decided presence of actual issue of originally, appeal which heard this brought of handbook those us matter of interest to all makes the courts grips problem. panel with the first including States, the fed- Examination of first brief filed for eral district courts. point: Distribu- shows his “IV Gordon impinged upon the of the handbook tion opinion panel The unanimous right by jury. to trial defendant’s Judge was written retired Circuit panel should have been judge Major, a former chief of this Indeed, responding when sustained.” court, background distinguish- of Government, mentioning without practicing lawyer, pro- as a ed service motion, proceeded to a bland defense secuting attorney and United States dis- explanation of handbook’s admirable judge. trict Judge read To now out of attributes. Responding unpleasant passages upon opinion to a direct Major’s all attack juror’s by attributing bearing use handbook and handbook on this de- inconsistency labeling govern- use offered fense its first himto Judge attorney, Major calmly (who as dicta while he ment efforts un- own fortunately diligently expanded material, cannot such sit court as Implicit this, hearing, all member of an en banc be- undeserved. likely implant mind ex- retired),1 wrote now cause impression, juror a particularly an erroneous he reviewed in which cellent pamphlet so when the pertinent and concluded decisions numerous “impinges makes reference use of safeguards provided by Consti- fair and to a the impartial a defendant protec- tution and otherwise for guaranteed the Con- criminal law,” cannot tion a defendant “it stitution and the was a In no manner case. judicially because sanctioned charged He informed sponsors.” that a purpose noble pre- with crime is entitled to the pointed out that the sumption and that propriety of innocence way questioned beyond guilt proving his challenge-to-the-array defend- burden gov- court, a reasonable doubt is district ant which, in at trial states, pamphlet said, Judge ernment. Major “admit- The right pre- ‘The defendant has a to tedly preserve sufficient to open in sent evidence at the trial his for review”. petit judge and the before the court hand- Speaking contents jury.’ juror not informed The said, part, book, Judge Major in required to that a defendant is not “ * ** any evidence, present a or that de- view, most In our may, option, fendant his become pamphlet as serious criticism the inference is a witness and that no conveying information a means of indulged against him for to be rather is that which is omitted failure so to do. pamphlet that which is stated. pamphlet states, juror as ‘What sen- purports to “The inform the to given par- rights tence the defendant procedure jury. and, must be of no concern to the distinct in civil case ties a rights Sentencing therefrom, is procedure and the function of judge alone.’ assume is parties ease. We in a criminal substantially Referring case, a correct statement a is to civil a law; fact, in in- the court in the ‘Defendant calls wit- informed that- evidence, produces instructed the to dis- stant case to nesses following However, plaintiff’s that effect. prove case and to quotation pro- pamphlet prove last claims.’ That the defendant’s guilty ap- ceeds : ‘A necessarily does verdict of statement is an inaccurate plied defend- mean that the defendant a a civil case where to long privilege will a or but not receive sentence is accorded the ant required produce he will be to serve sen- required evidence. judge may impose damaging tence at all. The misin- effect which this appears likely produce him by such sentence as formation amplified just statement, “The the limits fixed law proper may suspend a in case he procedure a criminal case a place very District sentence the defendant on United States many respects probation.’ to that in similar except think “We an instruction in that the United a civil case language always begins quotation this last States again, would constituted And ‘What has reversible case.’ plain handbook about error. It amounts said invita- applies procedure civil tion return a cases verdict guilty general way consequences to criminal trials.’ leave ain this anemic distinction court. The information think thus We by juror possessed and a criminal civil case could form between 46(c).

1. 28 U.S.C.A. 250; argument to win 88 F.2d potent A. F. Lum Withrow basis for a wavering juror. Glasgow Co., Cir., ber Co. v. Inv. over doubtful or Folding F. Reece prejudice Mach. Co. v. Fen wick, Recog Cir., issue 140 F. fair defendant to a nizing per guilt that on this record are not innocence. of his point mitted to consider a not season matters are other “While ably raised, required and are therefore contained ignore Judge says it, PARKINSON propriety, we think of doubtful “This we do.” must What there about is sufficient what shown we have ipse justify dixit, this ease to present purpose.” explain. does not He cites no authorities Judge persua Major relied sustain him. Schoos, People 399 Ill. sive 527, proceedings particu- in this case 245, 2 A.L.R.2d 78 N.E.2d larly application call for an afore- publication, the use of a similar where During argument said rule. before “Jury Primer”, held known as a petition the court en banc for rehear- convic of a criminal cause reversal ing, appellant, Miss Lavin of counsel for rel. Toth He States ex cited United tion. pointing disadvantage out 1, 8, Quarles, 11, 23, S.Ct. 76 v. appellant’s put which counsel had quoted L.Ed. the court with 100 8 where government’s failure, in its main Schiedt, approval 293 from Dimick v. challenge-to- herein, brief the-array to attack the 474, 486, 296, L.Ed. U.S. 79 raising method of follows: handbook, toas intimated that as a “Maintenance point brought matter of fact the also fact-finding body import- of such district court’s attention in an- occupies place firm ance and so way, which she felt could she history jurisprudence upon argument relate rehearing, any seeming curtailment require inasmuch go would her to to a should scruti- that, outside record. She stated nized with the utmost care.” any event, agree did she significant Judge It is PARKIN- point had not been raised in the district disagreement Judge SON offers Major’s ehallenge-to- court otherwise recog- handbook, criticism of the the-array. Whereupon Judge Chief nizing “gave that this minute and court whether, DUFFY asked her aas matter consideration to contents careful fact, the district court pre- handbook held that it was point. raised otherwise Miss Judge judicial.” Instead PARKINSON responded Callaghan, Lavin that Mr. who considering from refrains issue, handbook trial, was at the had informed her that panel did decide. He jurors several had been asked where, is confronted with situation they voir their dire whether had read the neither in nor in the district court they handbook and said that had. court, government briefs has the Callaghan Mr. Neither nor assistant dis- array contended that a proper attorney Lulinski, trict were who both attacking not the mode of the present when Miss Lavin made this re- Actually of the handbook. the first use disagreed sponse, with her statement. point has been time made the Actually, Callaghan Mr. nodded in the government petition in its for a re- affirmative. hearing in The rule is this court. well- seasonably is too late. Mitchell settled that If attack had been Greenough, Cir., 1006; efficacy v. 9 100 F.2d on of Bertino, challenge-to-the-array, appellant’s Marion Steam Shovel Co. v. coun- Cir., 945, 948; produced 82 F.2d Merriman v. sel in this court the Chicago Co., Cir., pertaining & E. I. R. 66 F. whole record to the attack County Delany, Cir., Bank Nat. Otoe handbook the district court. presented thus In view the situation Judge Ma- us, it is unfortunate to jor’s opinion issue is handbook courts and that discarded point country until wait will have to criminal again future raised in some and an in a conviction

trial appeal. results is that result net I feel that the opinion is wholesome effect jus- dissipated administration and the suspended left tice is a court of comes before until it issue time Thus another time. review at unnecessarily wasted. expense first to our

I would adhere

herein. Fungone, appellant.

Joseph Edward Kosik, Hourigan, Edwin M. Robert J. Scranton, Pa., appellees. Judge, BIGGS, Chief Before KALODNER, Judge, Circuit Judge. WRIGHT, District FUNGONE, Appellant, Joseph Edward PER CURIAM.

v. and J. C. America validity STATES It is clear that and correct UNITED Peniten Taylor, Warden, United States may not a sentence be attacked ness of by way Pennsylvania, Lewisburg, et al. tiary, corpus aof habeas without the 12363. No. appli previously petitioner sentencing court for review cation Appeals Court of States United 2255, 28 pursuant to Section Title United Circuit. Third Hay v. Code. See United States States 21, Jan. Submitted 263, 205, man, 342 U.S. 17, 1958. March Decided Leguil ex L.Ed. rel. States Davis, Cir., 1954, 212 F.2d v. lou Anselmi, Cir., United States F.2d it does 312. Since application has appear such an sentencing court, judg made to will be affirmed. ment of court below

Case Details

Case Name: United States v. Kenneth C. Gordon

Court Name: Court of Appeals for the Seventh Circuit

Date Published: Feb 19, 1958

Citation: 253 F.2d 177

Docket Number: 11929

Court Abbreviation: 7th Cir.