United States v. Provoo

• Decision Date: 27 August 1954
• Docket Number: No. 272,Docket 23084,273,23130.,272
• Citation: 215 F.2d 531
• Parties: UNITED STATES, Appellee, v. John David PROVOO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

215 F.2d 531 (1954)

UNITED STATES, Appellee, v. John David PROVOO, Defendant-Appellant.

Nos. 272, 273, Docket 23084, 23130.

United States Court of Appeals Second Circuit.

Argued June 16, 17, 1954.

Decided August 27, 1954.

George A. Spiegelberg, Mandeville Mullally, Jr., N. Peter Rathvon, Jr., and Murray E. Gottesman, New York City, for appellant.

J. Edward Lumbard, U. S. Atty., New York City, for appellee; Harold J. Raby, Leonard S. Sand and Powell Pierpoint, Asst. U. S. Attys., New York City, of counsel.

Before SWAN, MEDINA and HARLAN, Circuit Judges.

SWAN, Circuit Judge.

After a long jury trial the defendant was convicted of treason, as defined in Article 3, Section 3, Clause 1 of the Constitution and made punishable by statute, 18 U.S.C.A. § 2381.¹ He was a staff sergeant in the United States Army who was captured by the Japanese upon the surrender of Corregidor, Philippine Islands. The indictment charged twelve separate overt acts of treason alleged to have been committed by him between May 6, 1942 and August 14, 1945 while he was a prisoner of war. Only seven of the overt acts charged were submitted to the jury, the others having been dismissed by the trial judge. The jury found him guilty of four of the seven submitted, and as to three reached no agreement. Of the four acts of which the defendant was found guilty one was an offer of services to the Japanese on Corregidor; another was reporting that Captain Thomson, who was also a prisoner of war on Corregidor, was anti-Japanese and uncooperative, with the result that Thomson was put to death by the Japanese; and the other two were radio broadcasts from Tokyo during the spring of 1944. The main defense was duress and lack of treasonable intent. On March 12, 1953 Provoo was sentenced to life imprisonment and the statutory mandatory fine of $10,000 was imposed. He promptly appealed. For convenience this will be referred to as the main appeal.

In April 1954, while the main appeal was pending, the defendant applied to the District Court pursuant to 28 U.S.C.A. § 2255 for an order vacating the judgment for treason, or, in the alternative, granting a new trial, on the ground that newly discovered facts showed that he had been tried in the wrong district in violation of the venue provisions of 18 U.S.C.A. § 3238. The motion was heard by Judge Noonan, on supporting and opposing affidavits, and was denied in an opinion not yet published in the Federal Supplement. D.C., 124 F.Supp. 185. From this order an appeal was duly taken. The two appeals have been argued together.

At the outset the court wishes to express to counsel for both parties appreciation for their able briefs and arguments. To the court-appointed attorneys for the defendant a great debt of gratitude is owing for the public service they have rendered without compensation. Both in the trial court and in this court attorneys of experience and professional distinction have devoted an enormous amount of time, energy and skill to provide the defendant with competent representation. The general public is perhaps unaware of how frequently members of the legal profession render gratuitously aid of this sort to the courts. The present case is a notable illustration of such public service.

On the main appeal the appellant has alleged numerous errors; they relate to the charge to the jury, the sufficiency of the evidence to support the verdict, the admission of certain exhibits, and alleged unfairness in the conduct of the trial, particularly in respect to cross-examination of the defendant which, it is urged, was intended to, and did, bring home to the jury collateral matters so prejudicial and inflammatory as to require a reversal for this reason alone, regardless of other errors. We shall at once address consideration to this contention.

The defendant took the stand in his own defense. His direct examination dealt with four periods of his life: (1) his birth in San Francisco in 1917 and the years prior to his capture by the Japanese in 1942; (2) his experiences and conduct while he was a prisoner of war; (3) his experiences in Japan after liberation by the American forces; (4) his return to the United States in April 1946 and his experiences in the Army from the date of his return up to September 2, 1949. The challenged cross-examination is concerned only with the fourth period. Provoo's direct examination on this period brought out that he had received an honorable discharge at Fort Dix, New Jersey on August 17, 1946; that he reenlisted at Camp Beale, California, on September 5, 1946, and thereafter was ordered to various Army posts and hospitals. At Fort Bragg, North Carolina, in 1948 and Fort Meade, Maryland, in 1949, he was imprisoned in the stockade, and on two other occasions he was under physical restraint during hospitalization at Walter Reed Hospital, Washington, D. C. While he was in the Walter Reed Hospital and in the stockade at Fort Meade he was interrogated by representatives of the Department of Justice concerning his prisoner of war days and gave signed statements. On September 2, 1949 he was brought under guard from Fort Meade to Fort Jay, Governors Island, N. Y., was ordered to accept an "undesirable discharge" from the Army, and was thereupon turned over to F. B. I. agents who forthwith arrested him on the charges of treason for which he was later indicted and tried.

The direct examination of Provoo on the subject of his experiences after reenlistment occupies less than ten pages of the record.² It contains no intimation as to the reason for his imprisonment at Fort Bragg and Fort Meade or for his confinement at the Walter Reed Hospital. Almost at once the cross-examiner put the question, "What were the circumstances, please, that caused your arrest and confinement," at Fort Bragg. An objection to this line of inquiry was overruled, and the cross-examination as to the reasons for his imprisonments and hospitalizations was continued over repeated objections for more than 200 pages of the record. It was designed to draw from the witness an admission that he had been charged with, or suspected of, being a homosexualist, and it culminated in the direct question: "Now, Mr. Provoo, isn't it a fact that in November 1946 you were hospitalized at Camp Lee, Virginia, because of homosexual aberrations?" A motion for a mistrial was promptly made and overruled, the court telling the jury that "this question and any similar questions and the answer to these questions is being permitted solely in connection with the question of the credibility and the weight to be given to the witness' testimony." The defendant answered that he was hospitalized at Camp Lee "because I was sick, and I haven't any idea what diagnosis was made at that time or what the doctor may or may not have put in his report at that time. But I am not a homosexual." The prosecutor then showed the defendant certain pages of Government's Exhibit 2 for identification (his army record) and asked if that refreshed his recollection as to the reason he was at the hospital at Camp Lee. The answer was that it did not refresh his recollection. He was then shown another page of Exhibit 2 for identification and asked if that refreshed his recollection as to the reason for his confinement in Fort Sill, Oklahoma in 1947. The defendant answered it did not but added "It does state I was a suspect." The next question was: "Now Mr. Provoo, isn't it a fact that you were sent from Fort Sill, Oklahoma to Brook General Hospital at Fort Sam Houston, Texas, because you were a homosexual suspect." The answer was "No, Sir. That is a lie." Similar questions were then asked as to the defendant's confinement at Fort Bragg, at the Walter Reed Hospital and at Fort Meade.

It is obvious that the cross-examination informed the jury that on several occasions after reenlistment the defendant had been charged with being, or suspected by military authorities or hospital doctors of being, a homosexualist. Neither by court martial nor by a civil court was he ever brought to trial and convicted on any charge of sodomy. Obviously such a charge was utterly irrelevant to the issue whether he had committed treason while a prisoner of war. But these highly inflammatory and prejudicial collateral and irrelevant charges were brought to the jury's attention. Nor was it done by accident or unintentionally. In colloquy between court and counsel in argument as to their admissibility, the prosecutor stated: "I also said I was going to bring it out through the defendant * * * and I made the declaration that if the defendant took the stand, he was laying himself open to that kind of cross-examination." That the facts so developed were so prejudicial as to constitute reversible error, if they were improperly admitted, is too plain for debate. They had no relevancy to charges on which he was being tried and were certain to degrade him in the eyes of the jury. See Gideon v. United States, 8 Cir., 52 F.2d 427, 430. We may add, in passing, that the use of Government's Exhibit 2 to impeach his testimony under guise of "refreshing his recollection" was at best questionable. See Wigmore, Evidence (3rd ed.) § 764 (Supp.) note 1.

Two theories are advanced by Government counsel in attempted justification for bringing such prejudicial matter to the knowledge of the jury. It is urged, first, that the direct examination "opened the door" to inquiry on cross-examination as to the true nature of defendant's incarceration and hospitalization; and, secondly, that in any event a defendant who takes the stand in a criminal trial may be questioned as to any criminal or immoral act of his life since such information is relevant to his credibility as a witness.

This court had occasion to discuss the doctrine of "opening the door" in United States v. Corrigan, 2 Cir., 168 F.2d 641, 645. As there explained, with the citation of authorities, "The doctrine * * * is an application of the principle of...