205 F.2d 879 (D.C. Cir. 1953), 11116, Caldwell v. United States

Docket Nº:11116.
Citation:205 F.2d 879
Case Date:June 18, 1953
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

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205 F.2d 879 (D.C. Cir. 1953)




No. 11116.

United States Court of Appeals, District of Columbia Circuit.

June 18, 1953

Argued February 20, 1953.

Mr. Albert J. Ahern, Jr., Washington, D.C., with whom Messrs. James J. Laughlin and Henry Lincoln Johnson, Jr., Washington, D.C., were on the brief, for appellant.

Messrs. William Hitz and Lewis A. Carroll, Asst. U.S. Attys., Washington, D.C., with whom Mr. Charles M. Irelan, U.S. Atty., Washington, D.C., at the time of argument, and Mr. Joseph M. Howard, Asst. U.S. Atty., Washington, D.C., at the time brief was filed, were on the brief, for appellee. Mr. Leo A. Rover, U.S. Atty., Mr. George Morris Fay, U.S. Atty., Washington, D.C., at the time record was filed, and Mr. William R. Glendon, Asst. U.S. Atty., Washington, D.C., at the time of argument, also entered appearances for appellee.

Before EDGERTON, WILBUR K. MILLER and wAshington, Circuit judges.

WASHINGTON, Circuit Judge.

This is a criminal case, in which the central issue is whether the appellant was denied a fair trial by reason of the tactics of the prosecution.

Bennie Caldwell was indicted in mid-1950 for attempting to 'reach' the jurors in the criminal trial of another person. 1 He was tried and convicted in the following May. He then moved 'for a judgment of acquittal or for a new trial' upon the ground, among others, 'that defendant and his counsel were unwarrantedly, unduly

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and illegally hampered and interfered with in the preparation and presentation of the defense.' The motion was denied after an extended hearing. Caldwell then appealed from the judgment of conviction and from the denial of the motion for a new trial.

At the hearing upon the motion it developed that, while appellant was under indictment and before his trial, the prosecution had hired one Bradley to find out who was 'behind' appellant's alleged offenses, as inciter or provider of funds. In the course of this under-cover employment, Bradley became intimately acquainted with appellant and his then counsel. Soon, Bradley was solicited to work for the defense, on a number of matters arising in the preparation of the case. He reported this to the prosecution and was told not to undertake employment with the defense or to accept money from them. But not long after, Bradley reported that the defense had offered him large sums if he would negotiate the theft of certain files, including the entire file in the Caldwell case, from the United States Attorney's office. Thereupon the prosecution caused Bradley to extend his activities with a view to bringing about conviction of persons associated with the defense for conspiracy to steal the files.

In his dual capacity as defense assistant and Government agent, 2 Bradley so conducted himself that he gained free access to the planning of the defense. At the hearing on the motion for a new trial, he testified that he 'was never refused admission into Johnson's (the defense counsel's) conferences with witnesses or lawyers. He could come and go freely and did not hear some witnesses merely because he had no opportunity to do so.' 3 The Government does not dispute this. Neither his dealings with the defense nor his reports to the prosecution were limited to the proposed unlawful acts of the defense: they covered many matters connected with the impending trial. 4 The earlier inhibition against his working for the defense went overboard. The prosecution may have deplored Bradley's activity for the defense, but it knew that it was going on, got full reports on it (sometimes two or three times a day), and made little or no effort to stop it. The alleged plan to steal the files was never carried out. 5 The trial of Caldwell proceeded, with Bradley ostensibly continuing to 'aid' the defense but also reporting to the prosecution. The jury found Caldwell guilty on May 18, 1951. Six days later, Caldwell filed a motion for a new trial, alleging that he had just discovered Bradley's double dealing. The motion was supported by a lengthy affidavit by Bradley. At the hearing, Bradley testified in support of the motion.

The testimony was voluminous and at some points conflicting. There is much controversy as to whether Bradley actually interfered with or prejudiced the defense. Appellant claims, for example, that Bradley led the defense into a fruitless investigation of the whereabouts of an imaginary witness. But we have endeavored, in the foregoing recital, to set forth only those facts which are conceded by the Government or are undisputed in substance. 6 The

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Government's attacks on the credibility of Bradley do not erase...

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