351 F.2d 868 (6th Cir. 1965), 15968, United States v. Bell

Docket Nº:15968, 16231.
Citation:351 F.2d 868
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Henry F. BELL, Defendant-Appellant.
Case Date:October 14, 1965
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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Page 868

351 F.2d 868 (6th Cir. 1965)

UNITED STATES of America, Plaintiff-Appellee,

v.

Henry F. BELL, Defendant-Appellant.

Nos. 15968, 16231.

United States Court of Appeals, Sixth Circuit.

October 14, 1965

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William J. Harte, Chicago, Ill., and C. Allen High, Nashville, Tenn. (Edward B. Henslee, Jr., Francis H. Monek, Chicago, Ill., on the brief), for appellant.

Daniel H. Benson, Atty., Dept. of Justice, Washington, D.C. (Herbert J. Miller, Jr., Asst. Atty. Gen., Robert S. Erdahl, Beatrice Rosenberg, Attys., Dept. of Justice, Washington D.C., James F. Neal, U.S. Atty., Nashville, Tenn., on the brief), for appellee.

Before PHILLIPS and EDWARDS, Circuit Judges, and CECIL, Senior Circuit Judge.

CECIL, Senior Circuit Judge.

This cause is on appeal from a judgment of conviction in the United States District Court for the Middle District of Tennessee. Henry F. Bell, defendant-appellant, referred to herein as defendant, was found guilty by a jury on the third count of a three-count indictment. Count three 1 charged that he corruptly

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endeavored to obstruct and impede the administration of justice in the trial of United States v. James R. Hoffa and Commercial Carriers, Inc., in the United States District Court for the Middle District of Tennessee, in violation of Section 1503,2 Title 18, U.S.C. The defendant was sentenced to pay a fine of $5000 and to serve five years in prison.

The panel of prospective jurors for the Hoffa case mentioned in the third count of the indictment was selected on October 1, 1962, and the list was made public the next day. Trial of the case was begun on October 22nd and the jury was seated three days later. Gratin Fields and Mrs. Matthew Walker were members of that jury. The trial ended in a disagreement by the jurors. Judge William E. Miller, the trial judge, then ordered an investigation into charges of jury tampering and empaneled a special grand jury for that purpose. Judge Miller recused himself from further consideration of the matter and District Judge Frank Gray took over the supervision of the grand jury.

The substance of the charge in the third count of the indictment is that the defendant endeavored to induce Nathan Bellamy, a gambler and restaurant operator, to intercede with jurors Fields and Walker and to influence them to vote for the acquittal of Hoffa. It is alleged in the indictment that the defendant promised to make thirty thousand dollars available to Bellamy. The threshold question is whether there was sufficient testimony introduced by the government in support of the charge in the third count of the indictment to submit the case to the jury.

The sole direct testimony to support the charge was by witness Nathan Bellamy. The substance of this testimony was that in late October or early November, while the Hoffa trial was in progress, the defendant Bell came to see him at his restaurant, the Blackhawk Cafe. The visit lasted about twenty-five minutes, during which the defendant said he understood Bellamy was a gambler and knew how to keep his mouth shut and that it would be worth from five to thirty thousand dollars if he could 'tamper' with jurors Fields and Walker and get them to vote for acquittal. 3

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The testimony of Mr. Bellamy that the defendant came to see him in the Blackhawk Cafe was corroborated by June Ford, a waitress in the restaurant. Mrs. Ford testified that on the morning of the alleged visit of the defendant to the Blackhawk Cafe she answered the telephone and called Mr. Bellamy to the telephone. At the conclusion of this conversation, Mr. Bellamy told Mrs. Ford that a big white guy was coming over to see him and to call him when he came. Mrs. Ford identified the defendant as being the one who later came to see Mr. Bellamy.

Mr. Bellamy was a gambler, engaged in the numbers business or 'numbers racket' as it is commonly called. His testimony and that of Mrs. Ford is permeated with a recognition of this business and its illegality. His reliability as a witness might be subject to question but the government must take its witnesses where it finds them. This business of Bellamy as a gambler and law violator was thoroughly exploited on cross-examination. Mr. Bellamy's testimony, if believed, was sufficient to warrant the submission of the case to the jury. The defendant denied that he ever went to the Blackhawk Cafe and talked to Bellamy. This presented a question of fact for the jury to determine. The credibility of these two witnesses was a proper question for the jury to consider. We find no error on the part of the trial judge in denying the motion for a judgment of acquittal at the close of the government's case.

It is claimed that the court erred in permitting the witness June Ford to testify to a statement made by the witness Nathan Bellamy out of the presence of the defendant. Mrs. Ford testified that when the defendant left the Blackhawk Cafe, Mr. Bellamy followed him to the door and, immediately upon closing the door, he (Bellamy) told her that that man had offered him about $30,000 to tamper with the jury. The court allowed this statement to be admitted into evidence as a spontaneous utterance, which is an exception to the hearsay rule.

Professor Wigmore says there are three basic requirements which must be present before a hearsay statement may be admitted into evidence as a spontaneous exclamation: 1. There must be a startling event sufficient to shock the declarant placing him under stress of nervous excitement; 2. the exclamation must be made while the defendant is still possessed by this state of shock, that is, before he has time to reflect or fabricate; and 3. the exclamation must relate to the circumstances of the event which produced it. 6 Wigmore, Evidence, Section 1750 (3rd Ed. 1940). This rule known as the res gestae rule has been followed in a number of cases in this circuit.

In Fort Street Union Depot Co. v. Hillen, 119 F.2d 307, C.A.6, cert. den. 314 U.S. 642, 62 S.Ct. 82, 86 L.Ed. 515, two witnesses were permitted to testify that Hillen, the deceased, said at the scene of the accident that he had been riding the corner of a car and had been struck in the back or hip by the grabiron and got knocked off. The court said, 119 F.2d at p. 310,

'To be admissible it must appear that such statements were made under circumstances showing lack of opportunity for reflection. The time elapsing after the injury, the extent of the injuries, and all the circumstances bearing on spontaneity and lack of deliberation are factors to be considered.'

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The court said further, at p. 311,

'Much must be left to the sound discretion of the trial judge in rulings on admissibility of evidence of the instant character.'

In Aetna Ins. Co. of Hartford, Conn., v. Licking Valley Milling Co., 19 F.2d 177, C.A.6, cert. den. 275 U.S. 541, 48 S.Ct. 37, 72 L.Ed. 415, the manager of the claimed insured was permitted to testify that one Bennett, after a telephone conversation with Stone, agent of the insurer, said that the insurance was in effect. See also, Tuckerman v. United States, 291 F. 958, C.A.6, cert. den. 263 U.S. 716, 44 S.Ct. 137, 68 L.Ed. 522; Overland Const. Co. v. Sydnor, 70 F.2d 338, C.A.6.

Cases cited by counsel for the defendant are not in point. In Brown v. United States, 80 U.S.App.D.C. 270, 152 F.2d 138, the testimony in question was a story that a three year old child told to her mother several hours after an alleged assault and her story to police officers a day or two after the alleged assault. In United States v. Mountain State Fabricating Company, 282 F.2d 263, C.A.4, the testimony in question was a retrospective recital of events concerning a fire which an unidentified person had told the witness who proffered the testimony.

We conclude that the testimony of June Ford to which this assignment of error is addressed was admissible under the res gestae rule and that since the trial judge heard all of the circumstances in connection with it, he acted within his proper discretion in admitting it.

It is claimed that the court erred in not permitting defense counsel to cross-examine Bellamy, for impeachment purposes, on a series of arrests and convictions involving the 'numbers racket.' The trial judge limited this type of cross-examination to convictions for felonies. The general rule and the rule followed in this circuit is that only such questions as show the commission of a felony or crimes involving moral turpitude are permitted. Henderson v. United States, 202 F.2d 400, 405, C.A.6; Smith v. United States, 283 F.2d 16, 22, C.A.6, cert. den. 365 U.S. 847, 81 S.Ct. 808, 5 L.Ed.2d 811. In Smith v. United States, we said it would not be proper to show a conviction for disorderly conduct.

For the purpose of an offer of proof, the defense was permitted to cross-examine Bellamy out of the presence of the jury on the claimed convictions. One of these convictions was in the federal court which apparently was reversed by our Court. Seven of these alleged convictions were for vagrancy and loitering. Four of them were for operating a disorderly house 4 and one was for loitering around a disorderly house. Two others were for keeping a gaming house and for gaming. These offenses herein listed, we think, cannot be considered as involving moral turpitude. Five of the alleged convictions are for violating the state lottery law. On one of these the witness said: 'Well, you put up a cash bond, you don't go back.' This is not a conviction. Whether this applies to all of these cases was...

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