United States v. Bolden

• Decision Date: 25 February 1966
• Docket Number: No. 14907.,14907.
• Citation: 355 F.2d 453
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Abraham W. BOLDEN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

355 F.2d 453 (1965)

UNITED STATES of America, Plaintiff-Appellee, v. Abraham W. BOLDEN, Defendant-Appellant.

No. 14907.

United States Court of Appeals Seventh Circuit.

December 29, 1965.

Rehearing Denied February 25, 1966.

Raymond J. Smith, James F. Ward, Chicago, Ill., for appellant.

Edward V. Hanrahan, U. S. Atty., John Peter Lulinski, John Powers Crowley, Richard T. Sikes, Asst. U. S. Attys., Chicago, Ill., for appellee.

Before HASTINGS, Chief Judge, and KNOCH and SWYGERT, Circuit Judges.

En Banc.

SWYGERT, Circuit Judge.

Defendant Abraham W. Bolden, a former Secret Service agent for the Treasury Department, appeals from a judgment of conviction on all counts of an indictment charging him with seeking a bribe in return for acting in violation of his official duty, 18 U.S.C. § 201, corruptly obstructing the due administration of justice, 18 U.S.C. § 1503, and conspiring with Frank Jones to commit the crimes defined in these sections, 18 U.S.C. § 371.¹ A sentence of six years was imposed. Defendant also appeals from the denial of a motion for a new trial based upon newly discovered evidence.²

The evidence, as developed at the trial and considered in the light most favorable to the Government, tends to establish the following circumstances.

On April 26, 1964, Agent John E. Russell of the Secret Service office in Chicago prepared an original and seven copies of a report relating to the investigation of a counterfeit savings bond case involving, among others, one Joseph Spagnoli. The copies were distributed to agents in the Chicago office, including the defendant Abraham Bolden. On May 8, Agent Conrad Cross received from the defendant the copy of the report which had been designated for the defendant and him. Cross thereafter left his office for a short time; when he returned the report was gone.

On May 9, following the return of a grand jury indictment, arrests of Spagnoli and others who had been included in the counterfeiting investigation were made. After his arrest and while in the Secret Service office, Spagnoli spoke to Agent Bolden. He asked if Secret Service agents took money. The defendant replied that out of fourteen thousand agents, some did.

On the morning of May 11, the defendant went to the home of Frank Jones. Jones was then under indictment for counterfeiting and had twice been arrested by the defendant. Agent Bolden told Jones a number of facts about the Spagnoli case, including the whereabouts of Sandra Hafford. Hafford, an erstwhile friend of Spagnoli, had testified against him before the grand jury, and was being held in protective custody by the Secret Service in a downtown Chicago hotel. The defendant produced several onionskin papers stapled together and a small, typewritten piece of paper containing an excerpt from the summary report of the Spagnoli investigation. He asked Jones to go to Spagnoli's home, give Spagnoli the piece of paper, and tell him that he could have the entire file for $50,000. The defendant said that the money would be split between Jones and him.

Jones visited Spagnoli's home the following day and delivered the piece of paper. He told Spagnoli that he had a contact in the Secret Service and that the Spagnoli file was available for $50,000. Jones returned home and called the defendant. Soon thereafter Bolden picked Jones up in his official car. The defendant instructed Jones to inform Spagnoli that the Secret Service had arranged to have Sandra Hafford's hair dyed red that afternoon. The defendant also suggested that Spagnoli be cautioned not to curse when talking to Hafford on the phone because the conversation would be taped.

On the morning of May 13, Spagnoli called Maurice G. Martineau, the Secret Service agent in charge, and related Jones' offer to him. The fact of Spagnoli's call was in turn repeated within earshot of the defendant. Later that day the defendant called Jones, told him that Spagnoli had called the "boss," and instructed him not to talk to Spagnoli.

Subsequently, Spagnoli gave Martineau the paper he received from Jones and identified Jones as the person who had approached him. Jones was arrested on May 18. In the meantime, Agent Russell retrieved all copies of the Spagnoli summary report with the exception of the one designated for Agent Cross and the defendant.

The defendant left for Washington, D.C. on May 17 to attend a Secret Service training school. In the afternoon of the following day, in the company of three agents, he was returned to Chicago under pretext and taken to the United States Attorney's office. There Agent Martineau began to explain the situation. At one point the defendant interrupted him to observe that the Secret Service was free to check his typewriter. Martineau had not mentioned the typewritten nature of the excerpt from the Spagnoli file. Later, in response to a question by Agent Jordan, the defendant said he didn't know that the Secret Service was going to dye Hafford's hair. Then, within a few minutes, he volunteered that he didn't know they were going to dye her hair "red."

The defendant was formally placed under arrest late in the evening of May 18. A few days later he told a Secret Service informant, Richard Walter, that he would give $500 to the man who would kill Jones, the "stool pigeon."

The defendant's motion for a new trial based upon newly discovered evidence relates to certain events surrounding the counterfeiting trial of Government witness Spagnoli in January, 1965, some five months after the defendant's trial and sentencing.

At his own trial, Spagnoli testified that he had committed perjury in certain respects as a Government witness in the defendant's trial. He testified that his livelihood was gambling and that he had falsely testified during the defendant's trial that his mother supported him. He stated that this perjury was suborned by Government counsel in order to make him look better in the eyes of the jury. Spagnoli also testified that he had lied during the defendant's trial in reference to the date on which his call to Agent Martineau was placed, and possibly with reference to other dates. Spagnoli was thereafter found guilty and received a fifteen year sentence.

The defendant's motion for new trial also included the affidavit of his trial counsel. The affidavit stated that counsel had a conversation with Spagnoli following the latter's conviction in which Spagnoli complained that an assistant United States Attorney had "backed down from a deal" with him concerning his testimony against the defendant. During the defendant's trial, Spagnoli had testified that he had received no promise of leniency from the Government in exchange for his testimony.

The district judge, who presided at the trials of both Spagnoli and the defendant, entered findings of fact and conclusions of law with respect to the defendant's newly discovered evidence and denied the motion for a new trial.

I.

The defendant's first contention is that he was deprived of a fair trial by the prejudiced attitude of the trial judge, by certain prejudicial rulings, and by the misconduct of the prosecuting attorney. More specifically, the defendant points to a number of circumstances which, by reason of the district judge's allegedly preconceived opinion of the defendant's guilt, resulted in the unconscious oppression of defense counsel's best efforts, and which also purportedly demonstrate the excessive zeal of Government counsel. We have examined each of the defendant's charges in detail, but will discuss only a few of the more serious allegations.

After the jury had reached a deadlock in the defendant's first trial, the jury was returned to the courtroom and the so-called "Allen charge"³ was given by the trial judge. The judge added that in his opinion the evidence would sustain a verdict of guilty on all three counts of the indictment, but clearly informed the jury that his opinion could be entirely disregarded. The jury remained deadlocked and a mistrial was declared.

Prior to the second trial, defense counsel moved for a substitution of judges on the ground of prejudice. The motion was denied. The defendant says that the motion should have been granted, that since the judge had expressed an opinion of guilt, an impartial trial before the same judge was impossible. The defendant, significantly, cites no authority for his proposition. Nor do we find any merit in it.

A federal judge may, in his discretion, comment upon the evidence or, in exceptional cases, express an opinion of the guilt of the accused. United States v. Murdock, 290 U.S. 389, 54 S.Ct. 223, 78 L.Ed. 381 (1933); United States v. Gibas, 300 F.2d 836 (7th Cir.), cert. denied, 371 U.S. 817, 83 S.Ct. 32, 9 L.Ed. 2d 58 (1962). We do not see how the exercise of that discretion in one trial, without more, could necessarily result in prejudice against an accused in a second trial. An opinion as to what the evidence has demonstrated cannot be equated with personal bias. Trial judges are invariably called upon to conduct impartial trials despite whatever opinion they may have or which they may formulate during the course of the trial concerning the guilt or innocence of an accused. Such impartiality is precisely what is expected of them, and an experienced trial judge must be assumed capable of performing his essential function. In short, prejudice must be shown by trial conduct; it may not be presumed or inferred from the subjective views of the judge.

The defendant next contends that the record substantiates his view of the existence of preconceived judicial prejudice. He states that his trial counsel frequently failed to object to improper evidentiary procedures because of a timidity occasioned by the "criticism, belittling, condemnation and admonitions" of the trial judge. As an illustration, the defendant refers to a warning issued by the judge to defense counsel in connection with the cross-examination of Government witness Frank Jones. The...