286 F.2d 556 (1st Cir. 1961), 5755, In re United States

Docket Nº:5755, Original.
Citation:286 F.2d 556
Party Name:In the Matter of UNITED STATES of America, Petitioner,
Case Date:February 02, 1961
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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286 F.2d 556 (1st Cir. 1961)

In the Matter of UNITED STATES of America, Petitioner,

No. 5755, Original.

United States Court of Appeals, First Circuit.

February 2, 1961

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Elliot L. Richardson, U.S. Atty., Boston, Mass., with whom George C. Caner, Jr., and Joseph S. Mitchell, Jr., Asst. U.S. Attys. were on brief, for petitioner.

James D. St. Clair, Boston, Mass., with whom Blair L. Perry and Hale & Dorr, Boston, Mass., were on brief, for Standard Coil Products Co., Inc., intervenor.

Samuel E. Angoff, Boston, Mass., with whom Grant, Angoff, Goldman & Manning, Boston, Mass., was on brief, for Robert Knupp and Fong Foo, intervenors.

Before WOODBURY, Chief Judge, and HARTIGAN and ALDRICH, Circuit Judges.

WOODBURY, Chief Judge.

This is a petition by the United States for a writ of mandamus directing a judge of the United States District Court for the District of Massachusetts, and also that District Court, to vacate a 'Judgment of Acquittal' entered by the judge in a criminal case, to reassign the case for trial, and for such other and further relief as this court may deem just.

A grand jury in the court below returned an indictment in nine counts against Standard Coil Products Co., Inc.,

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an Illinois corporation, which at the time covered by the indictment had a manufacturing plant in North Dighton, Massachusetts, and two individuals then employed by it at that plant, one as the Chief of its Quality Control Department and the other at first as a supervisor and later as the foreman in charge of the production of certain electronic instruments to be described presently, charging all three with the offenses of concealing material facts and conspiring to conceal material facts in a matter within the jurisdiction of an agency of the United States in violation of Title 18 U.S.C. § 1001 and § 371. More specifically the charges were that from September 1956 to November 1957 the accused had knowingly and wilfully falsified, and conspired between themselves and with others to falsify, tests of radiosondes 1 being manufactured at the time in the plant at North Dighton under two contracts entered into by Standard Coil Products Co., Inc., with the Army Signal Supply Agency.

Motions to dismiss the indictment were denied and the defendants were set to the bar to be tried by jury on their pleas of not guilty.

One of the two Assistant United States Attorneys who represented the Government at the trial made an opening statement to the jury in which he explained the general nature of the charges laid in the indictment and the evidence he proposed to introduce saying that the presentation of the Government's case would fall naturally into two parts, the first part consisting of evidence explanatory of the instruments and of the procedures for testing them and the second part consisting of evidence of deliberate and conniving falsification of the tests run on the instruments by the defendants. In carrying out this program the Assistant United States Attorney in charge at the trial called a witness through whom he introduced the contracts and related documents under which the radiosondes were manufactured by Standard Coil Products Co., Inc. He then called the 'Quality Assurance Representative' of the Army Signal Supply Agency who had been stationed at the corporate defendant's, North Dighton plant during the time involved for the purpose of supervising the inspection of radiosondes by plant personnel. An examination of the record shows that while this witness was on direct examination he was asked fully as many questions by the judge as by the Assistant United States Attorney. Moreover, the judge on several occasions, both during direct and cross-examination, ridiculed the witness with respect to his use of words, repeatedly corrected his grammar, and many times admonished him to remember that he should be careful in his statements since he was testifying in a criminal case. As the examination of this witness proceeded the questions and sometimes sharp comments of the judge clearly show that he considered the witness's testimony unworthy of belief.

The Assistant United States Attorney next called a witness who briefly identified certain charts to be used by subsequent witnesses as 'chalks' and then called a witness to the stand who identified himself as having been the 'final inspector of radiosondes' employed by the corporate defendant at its North Dighton plant during the period covered by the indictment.

The direct examination of this witness closely followed the pattern of the direct examination of the government inspector. Toward the end of a day, while still on direct examination, this witness was asked for the date of a conference he had been invited to attend at the plant office with counsel for the corporate defendant. He said at first that the did not remember the date but when pressed for his best recollection he said that he thought the meeting was early in 1958, he believed

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in February but was not sure. That is to say, he put the date of the conference after the period covered by the indictment. The next morning, while still on direct examination, the witness was again asked if he was certain of the date of the conference and he again said he was not. On being asked once more for his best recollection he said, 'Approximately September 1957.' The judge then asked the witness if he had talked with government counsel while testifying in the case, and the witness saying that he had, the judge remarked that in a criminal case that was not 'correct.'

A little while later, on cross-examination by counsel for the corporate defendant, the witness admitted that he had changed his testimony as to the date of the meeting as a result of a conference with one of the Assistant United States Attorneys during the preceding overnight recess. The judge then excused the jury and asked the Assistant United States Attorney involved if he wished to make any statement 'as a matter of personal privilege.' The latter answered that he was unaware of any reason why he should not talk with his own witness during a recess called in the course of the witness's direct examination and expressed astonishment that the judge should think that there was any impropriety in his having done so. The judge then ordered the witness to leave the courtroom and the Assistant United States Attorney, again having expressed ignorance of any impropriety in what he had done, the judge said, 'You will very soon learn, ' and addressed the Assistant United States Attorney as follows:

'You were here and you knew he was on the stand. You knew there was a recess. You know the principle that a witness must be examined in public. You know that, without suggesting for a moment that you offered any improper inducement, tampering with a witness is one of the most dangerous things in connection with a case, and particularly a criminal case, that a person should be left entirely alone during the course of his testimony. You must know that elementary fact and elementary rule.'

During further colloquy in the same vein the judge said that he did not mean that counsel for the Government were 'personally deliberately' doing something they 'knew to be wicked, ' and that he was not 'proposing to take any disciplinary action' against them but was only interested in finding out whether the 'situation' was one in which he 'must respond to a motion.' After more colloquy in the course of which the judge again suggested that the 'situation' might require him to act 'in response to a motion, ' counsel for each defendant moved orally for judgment of acquittal. Counsel for the Government strenuously opposed these motions on the ground that the witnesses so far heard were not vital to the case but were primarily intended only to lay the basis for concrete testimony of guilt to follow and that there were many government witnesses in attendance in the courtroom yet to be heard for whose credibility he was ready to vouch. He suggested that the most that should be done would be to strike the testimony of the witness under examination.

At the conclusion of the Assistant United States Attorney's remarks the judge recalled the jury, ordered the witness back to the stand, and opened a statement to the jury as follows:

'Mr. Foreman and Members of the Jury, before I say anything else, let me make it absolutely clear that counsel for the defendants as well as the Court are persuaded that neither the United States Attorney 2 nor either of his assistants consciously or deliberately violated any canon with which they were familiar. They were acting subjectively in good faith, and I do not mean at any stage of the remarks I am about to

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make to criticize them in the sense that I believe that they were conscious wrongdoers.'

Following this the judge implied that he considered the Assistant United States Attorney's conference with the witness during recess a serious infringement of the defendants' civil rights and that he regarded the testimony of the two principal witnesses so far produced by the Government to be wholly unworthy of belief, saying that both showed on the stand 'a lamentable lack of awareness or lack of capacity in connection with their testimonial obligations' and that the witness then on the stand 'has shown either lamentable lack of memory or an extraordinary power of inventiveness.'

At the conclusion of his remarks the judge said to the jury that acting in response to the motions for acquittal made by counsel for the individual defendants and the corporate defendant, 'I direct you at this stage to return verdicts of acquittal with respect to each of the individuals and with respect to the corporation.' The judge then directed the defendants to...

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