United States v. Smith

• Decision Date: 04 December 1970
• Docket Number: No. 28302.,28302.
• Citation: 433 F.2d 1266
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Wallace Howard SMITH, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

433 F.2d 1266 (1970)

UNITED STATES of America, Plaintiff-Appellee, v. Wallace Howard SMITH, Defendant-Appellant.

No. 28302.

United States Court of Appeals, Fifth Circuit.

November 6, 1970.

Rehearing Denied December 4, 1970.

Robert J. Stamps, New Orleans, La. (Court-appointed, for defendant-appellant.

Richard M. Olsen, Asst. U. S. Atty., Gerald J. Gallinghouse, U. S. Atty., New Orleans, La., for plaintiff-appellee.

Before GEWIN, GOLDBERG and SIMPSON, Circuit Judges.

SIMPSON, Circuit Judge:

Wallace Howard Smith appeals a judgment of conviction and sentence to imprisonment for three years¹ following a jury verdict of guilty. The single count indictment charged appellant with violation of Title 18, U.S.C., Section 875(c),² for willfully and knowingly, on March 1, 1969, transmitting telephonically a threatening communication from New Orleans, Louisiana, to Houston, Texas, and that this communication threatened to injure the Honorable Charles Raymond Judice. Judge Judice was Judge of Corporation Court # 3, City of Houston, Texas.

Appellant asserts five grounds of error with respect to his conviction: (1) failure of the government to prove an essential element of the crime; (2) prejudicial curtailment of cross-examination of Judge Judice and his clerk Paul Orpys Neal; (3) admission of testimony relating to prior threatening calls by Smith to the judge's office which were remote in time and unrelated to the March 1, 1969 call; (4) prejudicial interruption by the trial court of appellant's closing argument to the jury; and (5) the verdict of guilty was conditioned upon the trial judge's granting leniency and hence was a compromise verdict and not a responsive verdict.

We find that prejudicial error is not made to appear in any of the particulars specified and affirm the judgment.

I.

Appellant's first contention, that the government failed to prove an essential element of the crime, is based on a claimed failure of proof that it was he who in fact made the threatening long distance call. He asserts his motion for judgment of acquittal³ should have been granted in the absence of definite proof of the identity of the caller. The government's proof tended to show the following:

The South Central Bell Telephone Company's coin phone records⁴ for the New Orleans area indicated that on Saturday, March 1, 1969, between the hours of midnight and 7:00 a. m.⁵ a night person-to-person operator handled a long distance telephone call from a specified coin telephone in New Orleans, Louisiana, to the listed home number of Judge Judice in Houston, Texas. Roy C. Bates, South Central's district accounting manager and custodian of the records, testified that the records show that only one call was made from the New Orleans number to the Houston number on Saturday, March 1, 1969. Judge Judice testified that the operator identified the long distance call as originating from New Orleans, Louisiana. He said that he recognized appellant's voice from past acquaintance and hearing him speak many times before, and further that the person speaking identified himself as appellant. Smith's physical presence in New Orleans at the time in question near the callbox location was established. Viewed in the light most favorable to the government, this evidence was amply sufficient to support a reasonable inference by the jury that the person calling was the appellant. Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1944); Gilliland v. United States, 5 Cir. 1967, 385 F.2d 912; Ruiz v. United States, 5 Cir. 1967, 374 F.2d 619.

II.

Smith asserts that the trial court prejudicially curtailed his cross-examination of the witnesses Neal and Judice.

Following the direct examination by the appellee of Judge Judice's clerk, Paul Orpys Neal, appellant called for the production of an alleged Jencks Act⁶ statement supposedly given by Neal to F.B.I. agents. On brief, appellant concedes that the statement he sought was given to the Houston police, not the F.B.I. After an in camera inspection of the document the trial judge denied appellant's Jencks motion, ruling that the statement was not relevant.

Later, during appellant's cross-examination of Judge Judice, his counsel attempted to question the judge about his relation to the "Texas House" and his knowledge of "George Griffin".⁷

As the quotation from the record in the margin indicates, the government's objection to the question about "Shaky" or "George" Griffin was sustained. The first objection to questions about the Texas House was overruled. When the subject was further pursued as to work required of inmates of the Texas House, disturbances created there by the appellant and like questions, the government's objection was sustained.

We find prejudicial curtailment of cross-examination in neither the Neal nor the Judice situations. As to Neal, it is clear the statement was made to a Houston police officer and not to a government agent as the Jencks Act contemplates.⁸

We do not find substance in the suggestion that the Houston police qualify as agents of the federal government. But assuming arguendo that the statement was covered by the Jencks Act, it was inspected by the court in camera and determined to be irrelevant to the subject of the direct examination. The purpose of a trial judge's in camera inspection is to keep collateral and confusing issues from the jury. Cf. Palermo v. United States, 360 U.S. 343, 354-355, 79 S.Ct. 1217, 3 L.Ed.2d 1287 (1959), rehearing den. 361 U.S. 855, 80 S.Ct. 41, 4 L.Ed.2d 94 (1959). Further, appellant's counsel was permitted — despite the trial judge's ruling — to read the statement prior to undertaking to cross-examine Neal. Counsel for appellant despite actual knowledge of the contents of the statement, fails on brief to make its exact nature clear to us. We are not able to determine what connection, if any, it has with the subject of Neal's direct examination. Prejudice is not demonstrated with respect to the trial court's ruling on the Jencks motion.

We turn to the claim of prejudicial restriction of the cross-examination of Judge Judice. Reasonable latitude was afforded on the "Texas House" question,⁹ even though continued probing in this fringe area finally resulted in objections being sustained on grounds of non-relevancy.

Questioning as to George Griffin was ruled out from the first objection. Allowance of questions on cross as to collateral matters is necessarily a matter within the wide discretion committed to the trial judge in his overall control of the trial. Certainly there was no connection with the phone call evidence. George Griffin's presence at the Texas House, his connection with it, and Judge Judice's knowledge of these matters were all far afield from any questions involved at trial. Appellant did not at trial make any tender of proof or any explanation of the purpose of the line of questioning so as to aid the trial judge in ruling. His brief here is likewise silent of any suggestion as to relevancy of the attempted examination.

The right to cross-examination is one of the essentials to a fair trial, Pointer v. State of Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965), but, as appellant must have recognized when he cited Dickson v. United States, 10 Cir. 1950, 182 F.2d 131, 133, essential to the absolute right to cross-examine is some minimal demonstration of materiality to the issue before the court:

"The trial court is invested with a broad discretion in the matter of permissible cross examination of a witness, but * * * the court may not limit cross examination so as to prevent bringing out matter material to the issue". (Emphasis added) 182 F. 2d at 133.

We are not unmindful of recent expressions¹⁰ of ours concerning the right to unrestricted cross-examination of key witnesses on matters material and vital. This holding in no sense encroaches on the decisions set out in footnote 10. The questions here were unrelated to the merits of the issues before the court.

No prejudicial error is made to appear with respect to the limitation of appellant's right to cross-examine Judge Judice.

III.

Next it is urged that it was error to admit Neal's testimony concerning several earlier threatening local Houston calls supposedly made by appellant to Judge Judice's office. There was also testimony that criminal charges had been lodged by the State of Texas based on the calls, but there had been no further action on the charges. Objections were made to this evidence on the grounds of remoteness and non-relevancy. These are essentially the grounds urged here as claimed error in the reception of the evidence. The dates of the prior calls were in 1967, 1968 and the indictment year 1969 prior to March 1. We are not convinced that error occurred in this respect. Although some of the calls were remote in time, they continued until a time near March 1, 1969. They were similar in content to the March 1 call. The evidence was admissible as tending to establish intent to commit the offense under indictment and trial and as establishing a criminal scheme to threaten Judge Judice by telephone. See United States v. Greenberg, footnote 10, supra; Gilstrap v. United States, 5 Cir. 1968, 389 F.2d 6, 9; Pardo v. United States, 5 Cir. 1966, 369 F.2d 922, 924-925; Weiss v. United States, 5 Cir. 1941, 122 F.2d 675, 682, and United States v. Dutsch, 4 Cir. 1966, 357 F.2d 331, 333. That the prior calls were local as opposed to the interstate nature of the March 1 call is of no moment. Dutsch, supra, is very closely in point on the facts. It also involved a prosecution under Title 18, U.S.C., Section 875, for a threat to injure a person communicated telephonically interstate. The Fourth Circuit approved the reception in evidence by the trial court, under proper limiting instructions, of testimony as to an incident occurring five years before the indictment phone call.

IV.

Smith next asserts that prejudice to him resulted from...