United States v. Alvin McBride

463 F.2d 44

• Court: Court of Appeals for the Fifth Circuit
• Decided: August 11, 1972
• Docket: 71-2332
• Status: Published

Opinions

COLEMAN, Circuit Judge:

This is an odd case.

Almost three years ago, the grand jury for the Eastern District of Louisiana indicted Alvin McBride for the theft of thirteen bags of coffee, while it was moving in foreign commerce from Mexico to the United States, 18 U.S.C. § 659. A conviction followed. This Court affirmed, United States v. McBride, 438 F.2d 517 (February 10, 1971). We held, “There is no merit to any of the appellant’s contentions”.

Our opinion [Judges Brown, Wisdom, and Roney] further stated:

We note especially that there was probable cause to arrest the defendant and seize the coffee when the harbor police officer, Captain Allemand, observed the coffee in the rear of the parked truck which had been driven by the defendant.

The Supreme Court denied certiorari, McBride v. United States, 403 U.S. 920, 91 S.Ct. 2236, 29 L.Ed.2d 698 (1971).

About a month subsequent to the denial of certiorari, alleging the discovery of new evidence, McBride filed a motion for a new trial. This motion was denied. McBride again appeals. We affirm.

At the original trial there was a motion to suppress the coffee which had been seized at the time of McBride’s arrest. It was argued that there was no probable cause for the arrest; hence the search of McBride’s truck, from which the coffee had been seized, was unlawful. The key witness at the suppression hearing was Captain Allemand, of the New Orleans Harbor Police.

There had been a rash of thefts from the docks. Prior to the date of the offense in question a paid informer had been calling the harbor police to report various thefts. On the day of McBride’s arrest, this informer notified the harbor police that he had observed a vehicle used in one of the previous thefts. Captain Allemand and some of his men set out to investigate. On Market Street, they spotted a van and commenced to follow it. It later turned out that this was not the van observed by the informer.

At the suppression hearing, Allemand testified that he identified McBride as the driver of the van and this aroused his suspicion because McBride had been involved in an investigation of dock thefts some four years before (from which no arrest or conviction resulted). After McBride’s van had been followed for sometime, it turned into a driveway at a residence. Allemand got out of his vehicle and approached the van. He looked into the van through the rear windows, upon which he saw burlap bags on the floor, which he identified as coffee bags. McBride was arrested, the truck was searched, the bags were seized, and they had been stolen from the wharves.

With that testimony in the record, this Court held that there was probable cause to arrest the defendant and to seize the coffee.

To this point, there is no difficulty, but difficulties soon developed in a most unprecedented manner.

After McBride had been convicted, Captain Allemand suffered a stroke. McBride was out on bail, pending appeal. He went to see Allemand at the hospital, visited him every night in his home, and taught him to walk again.

On November 23, 1970, Captain Allemand’s condition took a quick turn for the worse and he was rushed to the hospital. He died the next morning. Before he died, Allemand sent for McBride to come to the hospital. They conversed privately. Allemand told his wife that he had not told the truth at the suppression hearing; that, in fact, he had not recognized McBride when the van was first sighted but had followed the van essentially out of general suspicion. Moreover, he had not looked into the van nor had he seen any coffee bags before making the arrest. Specifically, Allemand thus repudiated the testimony which had established probable cause and had paved the way for the admissibility of the stolen coffee. He asked Mrs. Allemand to so inform the Court.

In the light of these developments, McBride moved for a new trial. The District Court heard Mrs. Allemand’s testimony, stated that he had no doubt that she was telling the truth as to what her husband had said, but denied the motion.

Under the recited circumstances the sole issue is: Did the District Court err in the denial of a new trial ?

Rule 26 of the Federal Rules of Criminal Procedure provides that:

The admissibility of evidence and the competency and privileges of witnesses shall be governed, except when an act of Congress or these rules otherwise provide, by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience.

The common law applied by the Federal Courts is determined by the Supreme Court of the United States on all points on which that Court has spoken, United States v. Heideman, 21 F.R.D. 335, 339 (D.D.C., 1958), affirmed, 1958, 104 U.S.App.D.C. 128, 259 F.2d 943, cert. denied 359 U.S. 959, 79 S.Ct. 800, 3 L.Ed. 2d 767.

This situation points directly to the decision of the Supreme Court in Mattox v. United States, 156 U.S. 237, 15 S.Ct. 337, 39 L.Ed. 409 (1895).

In that case Mattox, on his third trial, had been sentenced to death for a murder allegedly committed in a part of the Indiana Territory within the exclusive jurisdiction of the United States. Mattox had been once convicted and that conviction was reversed. A second trial resulted in a hung jury. At the trial under review the government introduced, by transcript, the testimony of a witness who had died since the preceding trial. Mattox then proposed to impeach this testimony by showing that subsequent to the former trial the dead man had said that he did not see Mattox do the shooting, that he could not tell who did the shooting, that all he had testified to on the former trial was false, and that he wanted to leave the country; moreover, he had told a second individual that he had been forced to testify falsely.

Quoting the opinion of the Supreme Court, 156 U.S. at 245, 15 S.Ct. at 340:

Objection was made by the district attorney to the introduction of this testimony upon the ground that Whitman [the deceased witness] had been examined and cross-examined upon the former trial; that the questions could not be propounded to the witnesses James and Violet for the purpose of impeachment, as the government had lost the opportunity, by the death of the witness Whitman, of putting him upon the stand and contradicting them. The facts were that the statements of Whitman, which the defendant proposed to prove by the witnesses James and Violet, were made after the former trial, so that the proper foundation could not have been laid by asking “Whitman whether he had made such statements.

The Supreme Court, although divided six to three, held:

The authorities, except in some of the New England States, are almost unanimous to the effect that, before a witness can be impeached by proof that he has made statements contradicting or differing from the testimony given by him upon the stand, a foundation must be laid by interrogating the witness himself as to whether he has ever made such statements. Justice to the witness himself requires not only that he should be asked whether he had ever made such statements, but his attention should be called to the particular statement proposed to be proven, and he should be asked whether, at such a time and place, he had made that statement to the witness whose testimony is about to be introduced. This method of impeachment was approved by this court in Conrad v. Griffey, 16 How. 38, 46 [14 L.Ed. 835], wherein the rule is stated to be ‘founded upon common sense, and is essential to protect the character of a witness. His memory is refreshed by the necessary inquiries, which enable him to explain the statements referred to, and show that they were made under a mistake, or that there was no discrepancy between them and his testimony.’ In this case the deposition of a witness taken in the cause was sought to be impeached by a letter of the witness written before his deposition, and addressed to the plaintiff, with an affidavit annexed by him of the same date. The general rule is also approved in The Charles Morgan, 115 U.S. 69, 77, 5 S.Ct. 1172 [29 L.Ed. 316], although in that particular case it was held that proper foundation had been laid for the introduction of the evidence. The principle was also approved in Chicago, Milwaukee & St. Paul Railway v. Artery, 137 U.S. 507 [11 S.Ct. 129, 34 L.Ed. 747].

It is insisted, however, that the rule ceases to apply where the witness has died since his testimony was given, and the contradictory statements were either made subsequent to the giving of his testimony, or, if made before, were not known to counsel at the time he was examined ; that if such contradictory statements be not admitted, the party affected by his testimony is practically at the mercy of the witness; that the rule requiring a foundation to be laid is, after all, only a matter of form, and ought not to be enforced where it works a manifest hardship upon the party seeking to impeach the witness. The authorities, however, do not recognize this distinction [emphasis added].

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While the enforcement of the rule, in case of the death of the witness subsequent to his examination, may work an occasional hardship by depriving the party of the opportunity of proving the contradictory statements, a relaxation of the rule in such cases would offer a temptation to perjury, and the fabrication of testimony, which, in criminal cases especially, would be almost irresistible. If it were generally understood that the death of a witness opened the door to the opposite party to prove that he had made statements conflicting with his testimony, the history of criminal trials leads one to believe that witnesses would be forthcoming with painful frequency to make the desired proof. The fact that one party has lost the power of contradicting his adversary’s witness is really no greater hardship to him than the fact that his adversary has lost the opportunity of recalling his witness and explaining his testimony would be to him. There is quite as much danger of doing injustice to one party by admitting such testimony as to the other by excluding it. The respective advantages and disadvantages of a relaxation of the rule are so problematical that courts have, with great uniformity, refused to recognize the exception.

Three of the Justices filed a strong dissent:

If the evidence tending to show that the testimony of an essential witness cannot be relied on, because he has made contradictory statements elsewhere, and at other times, is valid and admissible, as the authorities all concede, why should the right to put in such evidence be destroyed by the incidental fact that the witness, by reason of death, cannot be produced to deny or to admit that he made such statements? Does not the necessity call for a relaxation of the rule in such a ease ?

* x- * X- X- X-

To conclude: The rule that a witness must be cross-examined as to his contradictory statements before they are given in evidence to impeach his credit is a rule of convenient and orderly practice, and not a rule of the competency of the evidence.

To press this rule so far as to exclude all proof of contradictory statements made by the witness since the former trial, in a case where the witness is dead, and the party offering the proof cannot, and never could cross-examine him as to these statements, is to sacrifice substance of proof to orderliness of procedure, and the rights of the living party to consideration for the deceased witness. 156 U.S. 257, 260, 15 S.Ct. 345.

A thorough search of the reported criminal cases discloses no subsequent decision of the Supreme Court, or of any other Federal Court, on this question.¹

It is obvious, therefore, that in its Mattox decision the Supreme Court has, to this point in time, determined the rule of evidence controlling the admissibility or inadmissibility of Captain Allemand’s unsworn, dying retraction of his prior sworn testimony, Rule 26, Federal Rules of Criminal Procedure. The record reveals that in the court below neither the United States Attorney nor counsel for the defendant were aware of the Mattox case. It therefore was not called to the attention of the trial Judge. Nevertheless, when he denied the new trial he reached the right result. Since the dying statements of Captain Allemand may not now be used to impeach his former testimony, a new trial would be useless. There could be nothing new to consider.

Diligent counsel for McBride, who have vigorously represented him every step of the way, contend that Mattox v. United States, supra, should be distinguished on the ground that the impeaching testimony there declared inadmissible was offered at a trial on the merits rather than on motion for a new trial. This, as we see it, is of no help. On a new trial, the threshold (and determinative) issue will again be the suppression of the coffee as evidence in the case. If Allemand’s former testimony cannot be impeached by his ex parte, unsworn statements, offered without the required foundation for impeachment, then the record will stand unchanged, both on the motion to suppress and as to the detection of McBride in the possession of recently stolen goods.

It is also argued that the rule announced in Mattox “fails to come to grips with the real problem, as described by Wigmore and other authorities and is in conflict with the evolving new rule as well as the Code of Evidence sponsored by the American Law Institute”. The Supreme Court has decided the question and we are bound thereby.

It is further asserted that the real issue is “whether or not there has been fraud, perjury, at the first trial which demands a new trial,” but there is no claim that the prosecution knowingly used false or fraudulent testimony against McBride.

Finally, it is said that Rule 33 of the Federal Rules of Criminal Procedure provide for a new trial “if required in the interest of justice”. Even if the testimony were admissible, and considering that the granting of a new trial is for the sound discretion of the trial Judge, it contradicts human experience that the victim of perjured testimony [McBride] would react to that terrible wrong by visiting the author of it [Allemand] on a daily basis, in the hospital and at home, assuming the prodigious task of teaching him to walk again.

While the District Court made no findings on this point, it would be reasonable to believe that McBride felt no ill will toward Allemand because he knew that the officer had not lied under oath. Additionally, it would be equally as reasonable to believe that the seriously ill, Allemand was overborne by this highly uncommon kindness, even to the extent that he felt unrestrained remorse, however unjustified, for having been an instrumentality in sending his lately acquired benefactor to prison.

If otherwise admissible, the dying statements would present a more substantial discretionary issue if McBride had not so constantly maintained personal contact with a very sick man. See, e. g., Martin v. United States, 5 Cir., 1927, 17 F.2d 973 [Judges Walker, Bryan and Foster], in which the Court held that a youthful retractor had been taken advantage of by reason of his youth and absence from home.

The motion to suppress brought on a hard fought contest in which Allemand was severely cross examined and his credibility attacked. In this connection see United States v. Dara, 5 Cir., 1970, 429 F.2d 513.

The judgment of the District Court, denying a new trial, is

Affirmed.

1 . The Fifth Circuit has held that in a criminal case a living witness may not be impeached “until his attention has been called specifically to the former statements, with particularity as to time, place, and circumstance so he can deny or explain them”, Burton v. United States, 5 Cir., 1949, 175 F.2d 960, 965.

In a civil action, the Third Circuit, without citing Mattox, has held that a deceased witness may not be impeached without the proper foundation. Franzen v. E. I. Du Pont Do Nemours & Co., 146 F.2d 837 (1944). The Court cited Ayers v. Watson, 132 U.S. 394, 404, 405, 10 S.Ct. 116, 118, 33 L.Ed. 378 (1889) “ * * * it is believed that in no case has any court deliberately held that after the witness’ testimony has been taken, committed to writing and used in court, and by his death he is placed beyond the reach of any power of explanation, then in another trial such contradictory declarations, whether by deposition or otherwise, can be used to impeach his testimony”.

In a civil case involving the testimony of a deceased witness as to an allegedly hired assassination, the Supreme Court of Mississippi has explicitly followed Mattox, Kelly v. King, 196 So.2d 525 (1967).