United States v. Gordon

• Decision Date: 07 June 1952
• Docket Number: No. 10439.,10439.
• Citation: 196 F.2d 886
• Parties: UNITED STATES v. GORDON et al.
• Court: U.S. Court of Appeals — Seventh Circuit

196 F.2d 886 (1952)

UNITED STATES v. GORDON et al.

No. 10439.

United States Court of Appeals, Seventh Circuit.

May 14, 1952.

Rehearing Denied June 7, 1952.

George F. Callaghan, Maurice J. Walsh, Chicago, Ill., for appellant.

Otto Kerner, Jr., U. S. Atty., Richard E. Gorman, Asst. U. S. Atty., Chicago, Ill., for appellees.

Before MAJOR, Chief Judge, and DUFFY and LINDLEY, Circuit Judges.

LINDLEY, Circuit Judge.

Defendants were indicted on four counts, I and III of which averred their unlawful possession of goods stolen while in interstate commerce, in violation of 18 U.S.C. § 659, and II and IV, that they caused the property mentioned in I and III to be transported further in interstate commerce in violation of 18 U.S.C. § 2314. The jury found both defendants guilty, whereupon judgment entered, imposing upon each a sentence of ten years. This appeal followed.

Defendants assert that, (1), counts I and III are insufficient in law; (2), the proof is insufficient to support the verdict; (3), a fatal variance exists between the proof and the indictment; (4), defendants were unduly limited in cross-examination; and (5), the court erred in charging the jury.

We deem it unnecessary to comment at length on the proof adduced in support of the convictions. It is sufficient to say that, viewing the evidence, as this court must, in the light most favorable to the government, the jury was completely justified in returning the verdicts, and all motions challenging the sufficiency of the proof and its alleged variance with the indictment were properly overruled. Also, assuming arguendo that counts I and III were defective in that they failed to allege the value of the goods unlawfully possessed, the conviction and resultant judgment should still stand, absent prejudicial error, for the verdict and sentences, being general, are supported by counts II and IV. Claassen v. United States, 142 U.S. 140, 147, 12 S.Ct. 169, 35 L.Ed. 966; Evans v. United States, 153 U.S. 608, 14 S.Ct. 939, 38 L.Ed. 839; Hirabayashi v. United States, 320 U.S. 81, 85, 63 S.Ct. 1375, 87 L.Ed. 1774; De Jianne v. United States, 3 Cir., 282 F. 737.

Among the salient essential facts are the following. On July 10, 1950 a large quantity of camera film was stolen from an interstate shipment which had, as its origin, Rochester, New York and, as its destination, Chicago, Illinois. On July 20 and 27, 1950, in Chicago, certain portions of the film were observed in the possession of Gordon and MacLeod, being loaded into an automobile owned by James I. Marshall of Michigan. This man, accompanied by one Swartz, now deceased, then drove the car, loaded with film, from Chicago to Detroit. There a part of the merchandise was disposed of; the balance was eventually recovered. All four were charged with participation in the criminal undertaking. Marshall waived indictment and, on August 14, 1950, entered a plea of guilty to an information before the District Court in Detroit. Swartz and the two appellants were jointly indicted in the Northern District of Illinois. Later the charges against the deceased Swartz were dismissed.

Appellants' primary contention is that of alleged undue limitation imposed on their cross-examination of Marshall. While other proof tending to establish guilt of defendants was introduced, there can be no doubt that Marshall, an admitted accomplice, was an important witness. His testimony unequivocally established possession of the stolen film in Gordon on July 20 and in MacLeod on July 27, for he testified that on those dates the two defendants directed him and Swartz to the location of the stolen property and assisted in loading it into his automobile, which he then drove from Chicago to Detroit. Marshall was peculiarly the character of witness requiring the exercise of the most extended freedom of the right of cross-examination. Greenbaum v. United States, 9 Cir., 80 F.2d 113.

The trial court recognized this and extended extreme liberality to defendants in their efforts to weaken the witness' story. They were allowed to indulge in the all exploratory cross-examination suggested in Alford v. United States, 282 U.S. 687, 51 S.Ct. 218, 75 L.Ed. 624. However, in the course of the cross-examination, defendants elicited from Marshall, the information that, following his arrest by agents of the Federal Bureau of Investigation on July 28, 1950, he had made a statement concerning the details of the crime, in which he admitted he had in no way implicated either defendant. Furthermore, he admitted having later made four or five additional statements to the F. B. I. between that date and August 25, 1950. These statements varied from each other, he said, in some degree, and it was not until the last one, on August 25, that he, as he testified, in any way connected defendants with the undertaking. Upon evoking this information, defendants asked the court to "compel the government to produce that statement" (referring to the first one,) and "for the production of these statements," (referring to all of them). The court denied the requests.

The argument concerning this action upon the part of the trial court gives rise to several questions: Did the defendants take proper steps to bring about production of the evidence; does Rule 17(c) of the Federal Rules, 18 U.S.C., providing for the issuance of a subpoena duces tecum exclude other methods of securing production of documents; if the procedure adopted by defendants was proper, was it within the discretion of the trial court in such a situation as is presented here to refuse to order production of such documents, and certain subsidiary questions.

Rule 17(c) providing for a subpoena duces tecum does not of itself answer any of these inquiries, for it does not in so many words exclude other procedure. Rule 26 admonishes us to proceed in accord with the principles of the common law, in the light of reason and experience. Some federal courts have held that when production of pertinent documents in the possession of the United States Attorney is requested, it is the duty of the court to compel the production. Examples are Boehm v. United States, 8 Cir., 123 F.2d 791, certiorari denied 315 U.S. 800, 62 S.Ct. 626, 86 L.Ed. 1200; Asgill v. United States, 4 Cir., 60 F.2d 776, 779; U. S. v. Krulewitch, 2 Cir., 145 F.2d 76, 156 A.L.R. 337; U. S. v. Toner, D.C.E.D.Pa., 77 F.Supp. 908, 917, reversed on other grounds, 3 Cir., 173 F.2d 140, 143. Cf. Bundy v. U. S., D. C.Cir., 193 F.2d 694; Marin v. U. S., 6 Cir., 10 F.2d 271. Some of these cases were decided before the Criminal Rules of Procedure were promulgated and some of them after that date.

Other courts have held that it is not always erroneous for the court to refuse to order production of such documents. In Boehm v. U. S., 123 F.2d 791 at page 805, 806, the court said: "The trial court's refusal to compel the production of statements made by the government's witnesses before other witnesses on occasions other than on the pending trial manifestly affected no constitutional right of appellant." See also U. S. v. Toner, D.C., 77 F.Supp. 908, reversed on other grounds in 3 Cir., 173 F.2d 143; Goldman v. U. S., 316 U.S. 129, 62 S.Ct. 993, 86 L.Ed. 1322; Marin v. U. S., 6 Cir., 10 F.2d 271; Chemical Specialties Co. v. Ciba Pharmaceutical Co., D.C., 10 F.R.D. 500; U. S. v. Rosenfeld, 2 Cir., 57 F.2d 74; Carpenter v. Winn, 221 U.S. 533, 31 S.Ct. 683, 55 L.Ed. 842; Bundy v. U. S., D.C.Cir., 193 F.2d 694; Little v. U. S., 8 Cir., 93 F.2d 401, certiorari denied 303 U.S. 644, 58 S.Ct. 643, 82 L.Ed. 1105, rehearing denied 303 U.S. 668, 58 S.Ct. 756, 757, 82 L.Ed. 1124; Chevillard v. U. S., 9 Cir., 155 F.2d 929. Many courts have announced that it is only when the witness uses the document while on the witness stand to refresh his memory that the right to compel production exists. Lennon v. U. S., 8 Cir., 20 F.2d 490; Morris v. U. S., 5 Cir., 149 F. 123.

However, in view of our conclusion, further consideration of this procedural question is unnecessary to a correct disposition of the alleged error. Thus, admitting for the purpose of this decision that issuance of a subpoena was not a necessary condition precedent to the court's power to compel production of the documents requested, we have left for disposition the crucial question of whether it was reversible error to deny the request here. We think the rationale of the authorities as we read them leads to the conclusion that on this record the court committed no error, certainly no prejudicial error, in refusing to require the government to produce the statements. In the first place, defendants made no adequate showing that the documents were in the possession of counsel for the government then before the court. Even had they been, their production was proposed, insofar as the court was advised, for the sole purpose of impeaching the witness by showing his previous contrary statements. But, so far as the evidence discloses, there was no contradiction between the statements and his cross-examination. He was exhaustively cross-examined by two able counsel, and freely admitted that he did not name Gordon or MacLeod in the statements first made to the F. B. I. Had they been produced, showing, in this respect, the very fact to which he testified, they would not have amounted to impeachment and would not, therefore, have been admissible. Under these circumstances, we think the court did not abuse its discretion.

In U. S. v. Krulewitch, 2 Cir., 145 F.2d 76, 156 A.L.R. 337, cited in this connection by defendants, the decision was limited to a situation where the document definitely contradicted the witness' testimony. Here, in contrast, there is nothing to suggest any such impeaching value in the statements in question. See U. S. v. Ebeling, 2 Cir., 146 F.2d 254; U. S. v. Walker, 2 Cir., 190 F.2d 481.

Nor were the statements relevant because of the mere fact that the witness had made them. He had not used them in...