United States v. William Marcellus Parker, United States of America v. Chauncey Lee Jones

491 F.2d 529

• Court: Court of Appeals for the Eighth Circuit
• Decided: May 13, 1974
• Docket: 73-1138, 73-1194
• Status: Published

Opinions

LAY and HEANEY, Circuit Judges

(dissenting).

We dissent from the denial of a rehearing en banc. The government’s attempt to use a similar report in the form of a written summary of its proof has been ruled improper by every circuit which has been faced with the question, including our own. See Sanchez v. United States, 293 F.2d 260 (8th Cir. 1961); United States v. Brown, 451 F.2d 1231 (5th Cir. 1971); United States v. Ware, 247 F.2d 698 (7th Cir. 1957). Cf. United States v. Adams, 385 F.2d 548 (2d Cir. 1967).

The reasoning that the report is simply cumulative has been rejected by these same courts. As the Fifth Circuit in United States v. Brown, 451 F.2d 1231, 1234 (5th Cir. 1971), observed:

We conclude, as did the Court of Appeals of the Seventh Circuit, that even though “the persons who made the memoranda were present at the trial and were tendered for cross-examination (and) that the memoranda were merely cumulative of other evidence properly in the record and that there was overwhelming evidence properly received of the defendant’s guilt”, we cannot say that the error did not influence the jury, to the defendant’s detriment, or even that it had but very slight effect.

The majority opinion distinguishes Sanchez v. United States, 293 F.2d 260 (8th Cir. 1961),¹ on the ground that in Sanchez custody and identification were not in issue, whereas Parker and Jones challenged the government’s chain of custody and identification. The majority here indicates that where “custody is not in issue and proper objection is made, the sending of such exhibits to the jury might well be found to be error.” Thus, the defendant who attempts to assert objection to a possibly faulty chain of custody or misidentification must risk that in so doing he subjects himself to prejudicial hearsay containing a condensation of the government’s case. As stated by the Seventh Circuit, “[t]he government’s witnesses in effect accompanied the jury into the jury room.” United States v. Ware, 247 F.2d 698, 700 (7th Cir. 1957).

In cases where such hearsay is contained in the report, it would be a simple procedure to excise the prejudicial portion before giving it to the jury. Hopefully, our disagreement will point up to the government that if such a prejudicial report is in the future offered into evidence it may face a possible reversal, whether custody is challenged or not.

1 . It is significant that two members of the Sanchez court, Judge Vogel and Judge Gardiner, felt the error committed was so prejudicial that it constituted plain error. As Judge Van Costerbout pointed out in his concurring opinion, no objection was made in the trial court to the exhibits.