Luther M. O'Brien v. United States

411 F.2d 522, 1969 U.S. App. LEXIS 12337

• Court: Court of Appeals for the Fifth Circuit
• Decided: May 19, 1969
• Docket: 25376_1
• Status: Published

Opinions

GEWIN, Circuit Judge:

A jury found the appellant guilty of charges contained in a two-count indictment and he was given concurrent one-year sentences under each count. Count One charged that he unlawfully retained and concealed a stolen print-punch money order issuing machine and United States postal money orders with the intent to convert them to his use and gain in violation of 18 U.S.C. § 641. Count Two charged him with unlawfully, knowingly and wilfully appropriating the same property to his own use in violation of 18 U.S.C. § 1707.

Appellant contends that the following errors were committed: (1) the district judge questioned the witnesses excessively and inappropriately; (2) the court should have ordered a postal inspector to grant an interview to appellant’s counsel for the purpose of determining whether a government witness had made prior inconsistent oral statements; (3) improper evidence was admitted; (4) the Assistant United States Attorneys made improper arguments to the jury; and (5) the evidence was not sufficient to sustain the conviction.¹

The conduct of the trial judge must be measured by a standard of fairness and impartiality. He is not a mere moderator. It is his duty to conduct an orderly trial and to make certain as far as possible that there is no misunderstanding of the testimony of the witnesses. Considering the conduct of the trial in its entirety, we conclude that the trial judge did not commit error.²

After a Government witness testified on direct examination, counsel for appellant requested an opportunity “to make a request under the statute of the Jenkes [sic] case.” Out of the presence of the jury but in the presence of the defendant, the Government’s attorneys, the appellant’s attorney and Postal Inspector Brown, the court considered counsel’s request thoroughly. The Government was then requested to “turn over to defense counsel any statement alleged to have been made by this witness.” The court went into the matter carefully and cautiously, but no “statement” within the purview of the Jencks Act, 18 U.S.C. § 3500, or any decisions interpreting it, was shown to exist. Counsel for appellant then requested the court to instruct the postal inspector to confer with him “so I can find out from him what previous statements, if any, this witness had made to someone for the purpose of cross examination.” The postal inspector did not testify before the jury during the trial.³ The court stated that it would not order or instruct the inspector to submit or not to submit to the requested interview. The record does not show what effort, if any, counsel for appellant made to discuss the case with the inspector or that the inspector had refused to discuss the matter with appellant’s counsel.

The Supreme Court has placed an affirmative duty on the trial judge to administer the Jeneks Act. Final decision as to production must rest within “the good sense and experience” of the district judge, guided by the standards outlined in Supreme Court decisions.⁴ We find no violation of the Jeneks Act or any other error in the rulings of the district judge on this issue.⁵

The admissibility of evidence in the trial of criminal cases is governed by rule 26 of the Federal Rules of Criminal Procedure. The rule requires the application of the common law as interpreted by the Federal courts in the light of reason and experience, except where Congress or any of the other criminal rules provide otherwise. The chief test is relevance and materiality. In ruling on evidentiary questions the trial court has wide latitude and its rulings thereon should not be disturbed in the absence of an abuse of discretion. We are unable to conclude that the trial court committed error with respect to such rulings in this case.®

During the jury argument there were objections by both the Government and the appellant. The trial court ruled on all objections made and, in our view, correctly instructed the jury. During oral argument before this court, counsel for appellant raised an additional question about one argument made by the prosecution to which he did not object in the trial court. We have carefully reviewed all of the rulings of the trial judge and find them to be without error.

Those arguments to which no objection was made do not constitute plain or obvious error.^{6 7}

Finally, we come to the contention that the evidence was not sufficient to sustain the conviction. At the conclusion of the Government’s case, the appellant moved for a judgment of acquittal and rested his case without offering evidence. The district court denied the motion and appellant here attacks that ruling. In considering this contention of appellant — perhaps his most important one — we do not retry the case or substitute our judgment for that of the jury. We must review all of the evidence as a whole in the light most favorable to the Government and determine whether a reasonable-minded jury could reasonably conclude that the defendant was guilty beyond a reasonable doubt. The evidence in this case was largely circumstantial. Such evidence must be consistent with the guilt of the accused and also inconsistent with every reasonable hypothesis of his innocence.⁸

The evidence clearly shows that in September 1965 the United States Post Office in Nesbitt, Mississippi was burglarized and a print-punch money order machine and approximately 600 United States Postal Money Order forms were stolen. The postmaster estimated that the money order machine weighed approximately forty to fifty pounds. A very reluctant Government witness, Hinds, testified that he was present when the machine and money orders were stolen. The money orders were taken to West Memphis, Arkansas and were divided four ways among the witness and three other persons identified as Washam, Sweeney and Henderson. Hinds testified that the name of appellant was mentioned in a conversation with Washam about the stolen property. He further testified that he saw appellant with Washam in Memphis, Tennessee. When asked the question, “Did you see Washam give the defendant, O’Brien, one hundred and five dollars to make a payment on his automobile to induce him to come down here to Mobile and pass the postal money orders?” Hinds responded, “I believe there was some money gave [sic] as an automobile payment. Now what was the other part of the question?” He testified that, while there had been talk about going to Mobile, nothing was said about O’Brien passing money orders. At this point the elicited testimony shifted the scene from Memphis to Mobile, Alabama.

Government witness Bolling testified that she met the appellant for the first time when he, Washam and Sweeney came to her home in Mobile in September 1965. The three of them were traveling together in a late model Cadillac automobile. When the three entered her home Washam and Sweeney were carrying two boxes. She did not see the contents of the boxes but described one as being obviously heavier than the other. O’Brien said nothing but he was in the presence and hearing of Washam and Sweeney as they told Mrs. Bolling that the boxes contained money orders. They, Washam and Sweeney, importuned her to go with them to pass the money orders. They promised to buy her clothes, hairpieces, wigs and other things to disguise her appearance. She was assured that the scheme was fool-proof and that she would not be apprehended. They told her that the money orders were those taken from the Nesbitt Post Office. She did not accompany them as requested. Finally the three, Washam, Sweeney and the appellant, left together in the car, taking the two boxes with them.

Tested by the principles we have outlined above, we conclude that there was sufficient evidence to sustain a verdict of guilty under Count One. Since the one-year sentence imposed under Count Two is concurrent with the one-year sentence under Count One, we do not reach the question of the sufficiency of the evidence to support the verdict of guilty under Count Two.⁹

Judgment affirmed.

1 . Appellant’s brief does not specify errors with certainty. Under the caption “Issues Presented For Review” is the following :

1. Whether or not the trial court erred in its extensive examination of witnesses for the prosecution.

2. Did the court below commit error in refusing counsel for the defendant, his request for an out of court interview with an investigator for the prosecution ?

3. Was it error for the trial court to deny defendant’s motion for judgment of acquittal?

We have listed the contentions of the appellant as set forth in other portions of his brief and in oral argument.

2 . Kyle v. United States, 402 F.2d 443 (,5th Cir. 1968); Estrada v. United States, 392 F.2d 529, 530 (9th Cir. 1968); United States v. Ostendorff, 371 F.2d 729, 732 (4th Cir. 1967).

3 . The inspector did testify in connection with fifth amendment claims of witnesses, but he did not appear as a witness against the appellant.

4 . Palermo v. United States, 360 U.S. 343, 354-355, 79 S.Ct. 1217, 3 L.Ed.2d 1287 (1959); Campbell v. United States, 365 U.S. 85, 89, 81 S.Ct. 421, 5 L.Ed.2d 428 (1961).

5 . Williamson v. United States, 365 E.2d 12 (5th Cir. 1966).

6 . Cotton v. United States, 361 F.2d 673, 676 (8th Cir. 1966); Phillips v. United States, 356 F.2d 297, 301 (9th Cir. 1965); Holt v. United States, 342 F.2d 163, 166 (5th Cir. 1965).

7 . Kyle v. United States, supra; Samuels v. United States, 398 F.2d 964 (5th Cir. 1968); Garcia v. United States, 315 F.2d 133 (5th .Cir. 1963); Dunn v. United States, 307 F.2d 883 (5th Cir. 1962).

8 . Montoya v. United States, 402 F.2d 847 (5th Cir. 1968); Weaver v. United States, 374 F.2d 878 (5th Cir. 1967); Williamson v. United States, 365 F.2d 12 (5th Cir. 1966); Strauss v. United States, 311 F.2d 926 (5th Cir. 1963); McFarland v. United States, 273 F.2d 417 (5th Cir. 1960).

9 . Hirabayashi v. United States, 320 U.S. 81, 85, 63 S.Ct. 1375, 87 L.Ed. 1774 (1943); Mishan v. United States, 345 F.2d 790, 791 (5th Cir. 1965); Fabianich v. United States, 112 U.S.App.D.C. 319, 302 F.2d 904, 905 (1962); Clark v. United States, 267 F.2d 99, 101 (4th Cir. 1959).