United States v. Walker
190 F.2d 481
2d Cir.
1951
Check Treatment

*2 SWAN, FRANK, Before CHASE and Judges. Circuit CHASE, Judge. Circuit Following the reversal this court of conviction, appellant his former again upon tried the same indict- guilty ment was found and sentenced. charged in The indictment one count that, February on or about transported approximately $26,- sum of 000.00 in from Hous interstate commerce ton, Y., Texas, York, N. to New know ingly and willfully pro in violation of the visions of Title 18 U.S.C.1 The § except second count was like the first money the sum of alleged ap to be proximately $23,500.00 transporta and the tion about June opinion The facts stated our former 2 are so close to what was shown in this trial familiarity that we shall assume up with them grounds and take at once the upon reversal, which the relies for adding only as necessary such facts disposition points new now made following our former decision those which were raised before. question no There was raised as to sufficiency indictment and it good. sub silentio as Now it treated argued fatally that each count was defec of alleging tive instead that “mon transported ey” value was stated re “sum” of a stated fers to the amount of It would be to think of dollars. hard objection to insubstantial more indict it should detain us long. ment and 18 U.8. Code, Criminal 2. 2 Revised 1. 1948 § 2314. C.A. Surely Federal agent, well as the 7(c) since Rule to the cir- testified U.S.C.A., Procedure, search, cumstances

Rules Criminal and we are un- spun finely became attack able to effective such a conclude that denial *3 seriously prejudicial ap- was motion on an indictment is There was to the fruitless. pellant compliance and no possibility clear with that rule because of the that some- necessary. thing report in might more was United States the have been incon- Cir., testimony at Josephson, agent’s 165 certiorari sistent with the F.2d the hearing. denied U.S. 68 S.Ct. particulars Moreover, was bill of appellant’s The in summa counsel any by filed which removes government the pointed agents government that tion out prejudice the defendant. possibility of to certain admis had testified in this trial to Ashe argued when Mrs. It is that they had appellant the which not sions of the delivered two to defendant the checks By way of mentioned the earlier trial. him, pass and to she intended to the title that explanation, agent the one had stated deny a it for court to that was error the prosecutor in had told him earlier trial the it was request charge jury that to the Presum to these admissions. not mention not he so intended was found that she to persuade the infer ably further to This, charged in indictment. as the guilty admissions had that it was untrue the of however, out account entirely leaves perhaps suppressed, or so made and been which, according by of deceit the element misconduct, charge prosecutor the to with her to induced to he substantial point also to appellant’s sought counsel the and them to him. obtain the checks deliver present case that the the out transportation of The statute covers the present and assisted at the had had been money by regardless fraud obtained trial, objection an but was sustained former Cir., title, States, see Davilman United Appellant’s counsel to observation. charge and failure to F.2d fact, record showed that insisted requested not erroneous. requested point to leave out and to and record, judge, read from the but the evi trial, Before dently believing that he meant the record of suppress which had moved to evidence trial, request saying, denied the former by agent a government been obtained “No, the record not introduced this after arrest luggage his his a search of attorney The trial.” then said meant jail. luggage while he was in and -stood, denial the record this trial searched, had been seized him, your “conclude judge told Ashe, occupied by room Mrs. in the hotel argue and do not with summation me.” appellant’s thought she was who then Apparently episode nothing this shows entry wife, into agent’s both the impatience, judicial which more than we and the seizure search hotel room say prepared unjustified un are her. The consented luggage circumstances, but, der the however that suppress the evidence thus ob motion to be, more it was no than exercise denied, appel for the rightly tained was to limit summation of the discretion object search right lant had no judge justifiably point which the be occupied him nor premises not already been made repetitiously. had lieved property posses not within his seizure of Cir., Reiburn, During the summation of the district States v. at- sion. United Cir., objection no Ebeling, torney was made to re- United States v. States, ap- but at Cf. Stein United marks the end counsel 146 F.2d 254. pellant moved for a mistrial because certiorari denied “prejudicial summation, In nature” of the pointed specific suppress, out terms the motion which had connection been produc appellant. moved used to characterize counsel appellant’s also report investiga government B. I. fact the F. included at- tion court, torney jurors by the “to test told the that he tion, believed for examination Mrs. in this agent. guilt the evidence case that the credibility” of “on incontestably” proved never them I think of this man has heard before and acquit "they you they Judge him will instruct I am and that if unless jurors.” wrong, they competent to serve as all. were not are witnesses at you The motion denied. No reference We don’t know fact and no have charge right made to the summation to conclude as there is no evidence excep- request point. so nor on the there was to do no part any tion such failure on “We don’t this natural son know whether of the court. despised of an man unnatural father him. us loved Now draw conclu- let no peroration assistant In a sort of *4 sions it.” about refute attorney to undertaken had district by appel argument made of the referring The argument in is made that how de attorney by pointing out lant’s appellant “this natural his son as appel did show spicable evidence prosecutor son of an unnatural father” the The evi to have misconduct been. lant’s abusive, especially was warrant without that, while he ample to show dence evidence, an because it was accusa- wealthy suitor part of a playing the appellant tion that of a was the father he wanted Mrs. Ashe that of so enamored son born is true that out wedlock. It gone to him, appellant had marry her to expression meanings is one of the through the mar gone there had Ohio and son,” Wagnalls see Funk & New “natural from woman another ceremony with riage may Dictionary, be Standard and it taken fraudulently obtaining he whom had legal parlance. to have that connotation in cur money during the amounts sizeable Co., R. C.C.Ohio, Marshall v. Wabash her quickly deserted then rent months. may F. 273. But it mean a also be- through the go to Mrs. go back to to gotten one, in adopted child contrast to an her within marriage pretense of a “human,” mean may “natural” or nor- marriage pretended This following month. opposed meaning to “unnatural” mal, upon her practiced fraud part was a “abnormally cruel or wicked.” Webster’s money charged with he to obtain Thus, New Dictionary, International Ed. commerce. in interstate transported having instead anof unfounded slur which more or a such portrayal the evidence a Such subtly less appellant being accused the comment, itself to caustic person did lend son, illegitimate father of an lan- referring to terms used some of guage expressed used well have “ * * * these tele- appellant thought ignore should the defendant no one grams over which son appellant as a “silent witness” for him to face show their control, on any had it was ap- unknown whether the phony, a is, crook he a what pellant’s dispise own son love or normal did make two two and sure as plain and is his language wicked At least the father. type worm.” crafty, and a tricky, four, ambiguous attacked was now so if doubtless, could, prosecutor Although the counsel felt that the taste language with better his chosen have would believe the meant what advanced have the better doing so argued objection is it now should have reverse disposed to cause, arewe his permit a clarification been made to then and sting sensibili- instead, chose to because, that, accept there. Without we will shorter, blunter, and somewhat ties with equally plausible interpretation which was words. unsophisticated scope within the of fair comment on the to “silent he referred point another At record prose- as made at the trial. The had counsel appellant’s whom witnesses” cutor’s direct assertion of his belief that meaning mentioned, those who previously proved testimony this 'or that which them the dis- testified, among appellant’s guilt, established while im- ap- son of the included attorney proper, strictly argument speaking, up- trict -as follows: language was pellant. matter' not irrelevant prosecutor believed in what the that re- talks Mr. Sabbatino silent witnesses “The consequence. hold, witness, To gard was of no have type of about, the new 114; timely any Volkmor U. however, v. in the absence 544, 552, S., Cir., Fish v. U. 215 F. readily fault correctable objection such 809; People 1915A, Fielding, L.R.A. height of reversible be raised Peo out N.Y. 53 N.E. merely a mountain L.R.A. would make error 506-507, ple Reimann, App.Div. 505, mole-hill. of a 599; People Teiper, N.Y.S.2d re Finally urged that was is App.Div. 830, 175 N.Y.S. Common charge a re error refuse versible Capalla, wealth v. 322 Pa. 185 A. govern emphasized quest which 205-206. appel prove the ment had burden striking Such contrast conduct doubt, and guilt beyond reasonable lant’s prosecutor Mr. the standard set for the burden to sus appellant had no that the Sutherland, speaking for a unani- acquitted on all the Justice must be tain and Supreme mous v. United Berger Court reasonable doubt there was a evidence States, request The substance of guilt. “The Attor- L.Ed. 1314: United States that, clearly charged and without *5 representative ordi- ney is not of an the choosing language, is all to which nary party controversy, a to a but of entitled. obligation govern to sovereignty whose Judgment affirmed. obliga- impartially compelling as its is as all; interest, govern and tion to at whose therefore, prosecution is not in a criminal FRANK, (dissenting). Judge Circuit case, justice but that shall that it shall win a prosecutor far exceeded the I think the * * * may prosecute be done. He with legitimate argument in sum- his bounds vigor indeed, earnestness he should and — mation, I that this error do not believe and But, may blows, do so. he hard while strike short, I do be- “harmless.” In not liberty not he is at to strike foul ones. fair that the defendant received the lieve duty It is as much to refrain from im- he entitled. trial to which was proper produce methods calculated to a wrongful every as it prosecutor’s conviction is to use The summation was shot abusive, prejudicial, legitimate bring just to through 'with intem- means about a one.” perate language, error at and constituted in Moreover, setting strong of such respects. three least language, say I doubt whether can one jury my with confidence that accorded prosecutor engaged in a bitter colleagues’ charitable construction name-calling attack on defendant. prosecutor’s description of son defendant’s epi Here are of his more colorful natural son fa- as “this an unnatural He dubbed “a crook thets: the defendant ther.” plain phony, and a and sure is as as prosecutor jury (a) 2. The told the four, tricky, crafty, and two make two guilty, he defendant and believed type a of worm.” “The defendant is and testimony that he did not believe the (b) earth, type roaming of worm to of a defense witness: that, man, creature, him call is a God he help him, (a) guilt, not a Of man but a creature christen defendant’s prosecutor believe, type you do, “He is “If ed Donald Walker.” said: I on the evi- John preys society slimy guilt in this dence in bird this case that the on of this man ” * * * e., field the field of con proved incontestably; has been you if [i. be- me, you fidence The defendant was also lieve at remember back man]. “ * * * depraved described as trial that the start of this the Government’s creature of mind.” attitude twisted This from the first was that the sort first people aggressive good enough abuse is more than ardor twelve box were advocacy me, is v. for I error. Viereck don’t believe a jury —it 236, 247-248, people, any twelve, L. twelve I will take S., Cir., could fail Ed. Ross v. U. F.2d to find this guilty defendant 166-168; S., Cir., with, charged Beck he F.2d the crime is because the jury the proof overwhelming, credibility attack on Mrs. is and if Ashe’s error, overwhelming clearly Toscano, Cir., evi find did not so on this U. S. v. case, -might People Fielding, well said dence in this 158 N. perhaps they Y. not com 53 N.E. 46 L.R.A. 641. someone ”* * * Further, likely It im petent serve. seems more than that it 586-587; People 78, 86-88, 55 you nothing of the truth Weathers and I think angle, the defendant is there to is a enough to timony, proper, Pa. “ count guilt. * (b) this manner his colored improper. * perjurer. Of one * * * Cf. * try think, v. U. get in the I ask Commonwealth the colored Rossi v. U. boy *6 you A. defense witness S.Ct. suggest Berger v. U. * as far as I S., Cir., 117 F.2d will you to find that he told telling Reimann, * belief in 629, guilty racial discrimination so find.” boy ”* prosecutor to you lie, about this you told am L.Ed. Capalla, S., 295 U.S. defendant’s er brought the second concerned, “was This, too, App.Div. his tes- maybe case, jury, state -cute 585, up sufficed to time, dict of part: because that you it was have Some returned and asked for statement to the F. B. I. Mrs. lied, had a credibility, [*] “ * I pausing doubt whether charge retired second the displayed obviously “You eighteen telling guilty. merely you [*] jury ultimately brought cure this if for -had briefly acquit don’t believe her one.” The was not marked effect you marked prosecutor about a hours been you to defend Mrs. Ashe’s the believe on last disagreement receive, later,1 given defendant.” After judge’s half-hour, Court’s “the judge error, for, went on jury. here identification.” nor after first original instruction replied, Exhibit in its ver this, evidence; that she may you For at one having to the then say: also aft jury, open-and- clearly 599. this 42 N.Y.S.2d not an case, shut obviously and it had im- closing, course of his Finally, in the 3. pressed by prosecutor’s the misadversion not to a document prosecutor referred the to a document not in evidence on an issue lawyer had defendant’s in evidence. The styled which he himself had as crucial to Ashe, credibility Mrs. de- the attacked Toscano, case. U. supra. S. v. principal witness “wife” the fendant’s But do- my I not rest on this dissent Government, -pointing that by out doubt alone. must be It considered in the trial of her first gave at the she the account setting intemperate heaped the abuse conflicted with defendant meeting with on the defendant in closing argument, the which she same event of the the version together prosecutor’s the vigor- the initial written statement to gave in her ously stated affirmation both of his belief reply, said: In F. B. I. “ guilt defendant’s * * * of his disbelief in all he [defense counsel] credibility of a witness. defense Tak- summation its with in his on had to work together, en I think may that these errors pontradiction, you ostensible but face an tipped well have against the scales de- is another exhibit that there remember fendant. here, I Exhibit which showed Court’s Reading merely pages, testimony ap- a second state- seven Mrs. pears type, cold F. gave against B. I. case which she him ment “strong” seems Mrs. to the Exhibit Ashe's reader. But agents.” Court’s it could not overly F. B. I. was in have seemed original so to the jurors statement since, previously noted, -as Exhibit 1 not. they but at one Court’s time disagreement, were -in to it to rebut reference it took prosecutor’s The them stay overnight S., Including in a hotel. ation. Cf. Bollenbach U. appears 611-612, that S. S.Ct. the record From eight deliber- spent hours in actual about colloquial by prosecutor- That agree in all to nineteen 'hours statements easily applying by the talk of a kind fact borne in mind must be understandable jurors, impress Kottea and thus them test of error” calculated to “harmless stated in 764-765, formal, far legal 66 S. more than the terms of kos v. U. 328 U.S. judge’s charge le- “And the as to the substantive Ct. 90 L.Ed. 1557: gal Yet, question is, they right rules.4 jury] judge if the had erred not were [the rule, wording legal we judgment, regardless in their of the error of a substantive would upon ignore or its effect It is rather reverse.5 the actualities the verdict. We reasonably and condone abuse if we hold harmless the what effect the error had plain viciously upon jury’s prejudicial be taken to have had remarks impact prosecutor. thing decision. The crucial is the thing wrong of the the minds of done probability Because grave of the that men, own, other on one’s in the total these improperly swayed jury, errors * * * setting. I think we should hold did that defendant trial, give receive a fair and should “If, done, con when all is said him a new one. not in viction is sure the error did ef Nor can jury, very slight agree fluence tile or had but defendant fect, objections failed judgment to save these verdict and errors. * * * stand, say, moved But cannot for a mistrial at the one close summation, assurance, pondering laying grounds all with fair after as his the lan- guage I happened stripping the er have set without forth. Whether or not whole, the trial judge justified denying roneous action from the motion, swayed by that judgment substantially highly improper such argu- was not called, ment error, very least, impossible strong at the it is to conclude specific words, rights charge, not affected. in the substantial cure errors, request even inquiry merely cannot absence whether there enough result, defense counsel. support apart Viereck v. 236, 247-248, phase from the affected error. It is *7 rather, Berger S., so, 78, 85, v. 295 U. even whether the error itself U.S. 55 S.Ct. 629, 1314; 79 so, People L.Ed. Fielding, had substantial influence. If or if one v. 158 542, 543, 553, 497, N.Y. doubt, 53 grave is left in N.E. 46 the conviction L.R.A. cannot Quercia 641. Cf. S., 466, U. st and.”3 v. 289 U.S. 472, 698, 53 S.Ct. 77 L.Ed. 1321. many hours, With the in doubt for past In I have often disagreed with say I cannot see how canwe that the er- my colleagues application rors had substantial no influence. Those “harmless error” doctrine.6 It is a delicate largely improper errors highly consisted Judge Magruder: 1, supra. words of “If 2. Note See rely is not content on the S., 3. See also Krulewitch v. U. U.S. 336 untainted to ‘button chooses 440, 445, 716, 790; 69 S.Ct. 93 L.Ed. up’ perjured the case the known use of 639, 638, S., 633, Bihn v. U. 328 U.S. testimony, ensuing conviction cannot 1172, 1485; 66 S.Ct. 90 Bollen stand, specu- and there is no' occasion to 613-615, S., 607, 66 bach v. U. 326 U.S. upon late what would have done 350; S., 402, 90 L.Ed. Weiler U. S.Ct. v. perjured testimony without before it.” 548, L. 323 65 S.Ct. 89 U.S. Coggins O’Brien, Cir., 130, v. 1 495; 287, S., Bruno v. U. 308 Ed. (concurring opinion). 139 198, 257; 293-294, Mc 60 S.Ct. 84 L.Ed. S., 342, People Fielding, 542, 298 U.S. 347- v. U. 4. Candless 348, Cf. v. 158 N.Y. 764, Berger 553, 497, 543, 80 56 N.E. 46 L.R.A. 82-84, 78, S., 84-89, Capalla, 200, S. U. v. v. Commonwealth 322 Pa. 629, Echert U. 79 L.Ed. v. Ct. 205. 185 A. 336, 341-342; Sang Cir., 188 F.2d my dissenting opinion 5. in U. See S. v. Fa- S., Cir., 167 F.2d v. U. Bur Soon Cir., rina, 2 184 F.2d 18. Kempe Cir., 432-433; Cir., Dressler, Liss, ; 689-690; U. S. 6. U. S. v. F.2d F.2d Mitchell, Cir., Compare 977-981. S. á88 careful task, best, requires a which at from, to case. less, case

weighing more my dif- to state justified venturing feel from again because

ferences here once has struck Supreme

time time the Court and has held

a balance different from ours had called we prejudicial which errors convic- I would reverse

“harmless.” a new trial.

tion and direct

WAH v. SHAUGHNESSY.

No. Docket 21997. Appeals,

United States Court of Circuit.

Second

Argued June

Decided June *8 Rubenstein, 287, 198, Cir., 257; 1011-1012; 2 U.S. 60 S.Ct. U. S. v. 84 L.Ed. Bennett, 915, 919; S., 607, Bollenbach U. S. v. v. U. S. U.S. 151 F.2d 342, 402, 350; 346, S., Cir., reversed sub nom. Ct. 90 L.Ed. Bihn v. U. Bihn, 633, 1172, 1485; U.S. S.Ct S. v. 66 S.Ct. L.Ed. U. S., U. Antonelli S. v. 90 L.Ed. Kotteakos v. 328 U.S. Co., Cir., 631, 642; Fireworks 90 L.Ed. Krulewitch v. U. Farina, 2 21. S., U. S. 336 U.S. 69 S.Ct. Berger 55 S.Ct. Bruno v. U.