United States v. Jackson

• Citation: 448 F.2d 539
• Decision Date: 08 September 1971
• Docket Number: No. 30939.,30939.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Edward Lee JACKSON, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

448 F.2d 539 (1971)

UNITED STATES of America, Plaintiff-Appellee, v. Edward Lee JACKSON, Defendant-Appellant.

No. 30939.

United States Court of Appeals, Fifth Circuit.

September 8, 1971.

E. B. Peebles, Mobile, Ala. (Court-appointed), for defendant-appellant.

C. S. White-Spunner, Jr., U. S. Atty., Irwin W. Coleman, Jr., Asst. U. S. Atty., Mobile, Ala., for plaintiff-appellee.

Before COLEMAN, SIMPSON, and RONEY, Circuit Judges.

COLEMAN, Circuit Judge:

The appellant, Edward Lee Jackson, was convicted on two counts of obstructing the United States Mails by taking letters before they had been delivered to the persons to whom they had been addressed, 18 U.S.C. § 1702. The jury acquitted him of one count and the prosecution voluntarily dismissed another. We affirm the convictions.

Jackson was arrested shortly after midnight of a Thursday by Sergeant Simmons of the Mobile Police Department. He was charged with vagrancy pursuant to an investigation of a local offense, the forgery of a check. One Patricia Smith had implicated Jackson in that offense after she had sought to negotiate a check at the American National Bank. Jackson was docketed at the police department at 12:15 a. m., April 11, 1969. He was a city prisoner.

About noon on Friday, April 11, 1969, Sergeant Ogan of the Mobile City Police Department interviewed Jackson concerning the investigation of the forgery of the check. He testified that he read to appellant the Miranda Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 warnings, that appellant declined to talk, and that the interview ended. According to Sergeant Ogan's responses to the Court's questions, there was no force used on appellant, no threats made, no promises made, no physical abuse, and no coercion used. No one else from the Mobile Police Department interrogated Jackson on Saturday, Sunday, or Monday, April 12-14, 1969. No statements of any kind were made to the city police during this period.

The appellant testified that the Mobile City Police interrogated him twice on Saturday and once on Monday before Postal Inspector Zollie Brown. He testified that they did not give him the Miranda warnings.

On Friday, April 11, 1969, W. J. Shaeffer, an investigative aide with the Post Office Department, was called by the Mobile City Police Department, and was informed that appellant was in their custody. Previously that day, Investigator Shaeffer had interviewed Patricia Smith. She had given him a statement which had implicated the appellant. Investigator Shaeffer went down to the Mobile City Police Department at 3:30 p. m. to interview Jackson. Shaeffer testified that he gave the Miranda warnings, that appellant declined to talk, and that he (Investigator Shaeffer) left immediately.

On Monday, April 14, 1969, Zollie Brown, a Postal Inspector, of eighteen and one half years experience was entering upon the investigation of an alleged mail theft by appellant, Edward Lee Jackson. He was accompanied by Investigator Shaeffer. He interviewed Jackson in the Detective Bureau of the Mobile City Police Department at 9:00 a. m. Inspector Brown testified that he identified himself to appellant, showing his credentials, and read the Miranda warnings to appellant. The appellant was shown Government Exhibits #1 (check in the amount of $52, dated March 6, 1969), #2 (five invoices of purchases on Bankamericard, signed by Wiley D. Wood, II), and #3 (check for $41, payable to Miss Barbara Word), and appellant made incriminating statements. The inspector testified that he did not threaten the appellant physically or psychologically, did not coerce or cajole him, and did not promise him immunity or reward. The appellant made the incriminating statements freely and voluntarily.

Brown showed appellant the check made payable to Edward Lee Jackson and purporting to be signed by Wood, Government Exhibit #1. The appellant then admitted to Inspector Brown that he had seen a letter with a stamp on it containing the blank Wood checks in the purse of Patricia Smith. He further stated that Patricia Smith completed the face of the check, making it payable to him, and that he had gone to the First National Bank of Mobile and cashed the check. Inspector Brown further testified that appellant said at that time that Patricia Smith had told him that she knew of a place where people did not get their mail, that they both went around there that night and that he took mail out of the mailbox. Jackson told the Inspector that the mail was a letter addressed to Wood containing a Bankamericard. Appellant told the Inspector that he used the Bankamericard and identified the five invoices, Government's Exhibit #2. Also, according to Inspector Brown, appellant further stated to him that he had seen the Barbara J. Word check (Government Exhibit #3) in the possession of Patricia Smith, and that they participated jointly in cashing all the checks and using them for living expenses.

At the trial, appellant testified that everything Postal Inspector Brown testified to was true, except the appellant did deny that he took anything out of the mail. He claimed that Patricia Smith was the one who took mail out of the mailboxes.

After Inspector Brown left the jail he presented the case to the United States Attorney and a warrant promptly issued from the United States Commissioner. The United States Marshal had filed a detainer against Jackson, with the police department, on April 11. To further complicate Jackson's situation, he was rebooked on April 14 as a fugitive from justice in Mississippi.

On April 17, 1969, the Mobile City charge was nolle prossed. The appellant was released by Mobile to the Mississippi authorities pursuant to the fugitive charge. On April 17, the United States Marshal in Mobile forwarded his warrant to his counterpart in Jackson, Mississippi. That official then filed a detainer with the Sheriff in Pascagoula.

It is clear that although federal detainers were pending Jackson was never in the custody of federal authorities during the month of April.

On May 12, 1969, Jackson was indicted by the federal grand jury on the charges now before us. On May 14 a writ of habeas corpus ad prosequendum obtained his custody from Mississippi in order that he might be federally arraigned.

1. The Rejected Question on the Voir Dire

Prior to the qualification of the jurors, counsel for appellant presented the Court with a written request that certain voir dire questions be asked of the potential jurors. After receiving this request, the Court asked various general questions of the potential jurors, but did not specifically ask any of the questions requested by counsel. After completing its questioning, the Court, addressing itself to counsel for the appellant, stated:

"Now, Mr. Peebles, I have examined the questions that you have suggested here and I think I have generally covered most of them, but if there is anything in particular you want to suggest to me, I want to hear it."

Whereupon, counsel for the appellant replied:

"Yes, sir, particularly, question No. 14, the last question."

In reply, the Court stated:

"No, I shan\'t ask that, because I will instruct them on that. Does the Government have anything?"

Question No. 14, read as follows:

"Are you more apt to believe the testimony of an official of the Post Office Department, solely because he is an official of the Post Office Department, than you are to believe the testimony of the Defendant?"

At the afternoon session the request that Question No. 14 be propounded was rejected for a second time.

It is now said that the refusal to ask Question No. 14 was so unfair as to constitute an abuse of discretion, that it effectively denied the appellant a reasonable opportunity to obtain an impartial jury, therefore error.

Rule 24(a) Federal Rules of Criminal Procedure provides:

"The court may permit the defendant or his attorney and the attorney for the government to conduct the examination of prospective jurors or may itself conduct the examination. In the latter event the court shall permit the defendant or his attorney and the attorney for the government to supplement the examination by such further inquiry as it deems proper or shall itself submit to the prospective jurors such additional questions by the parties or their attorneys as it deems proper."

Hence, as to the manner in which the voir dire is conducted the widest discretion necessarily is reposed in the Trial Judge. United States v. Fernandez-Piloto, 5 Cir., 1970, 426 F.2d 892, 893; Grogan v. United States, 5 Cir., 1968, 394 F.2d 287, 291, cert. denied, 393 U.S. 830, 89 S.Ct. 97, 21 L.Ed.2d 100 (1968); Bellard v. United States, 5 Cir., 1966, 356 F.2d 437, 439, cert. denied, 385 U.S. 856, 87 S.Ct. 103, 17 L.Ed.2d 83 (1966). This broad discretion reposed in the Trial Judge is subject to the essential demands of fairness, Aldridge v. United States, 283 U.S. 308, 310, 51 S.Ct. 470, 75 L.Ed. 1054 (1931).

In questioning the prospective jurors, the Trial Judge asked if any venireman was a member, active and on duty, of a fire or police department of the state or any subdivision thereof, whether any were conscious of any personal bias or prejudice in any fashion or form in connection with the case, whether any was or recently had been engaged in law enforcement, either directly or indirectly, and whether any one of them knew of any reason why they could not be completely fair and impartial as a juror to the Government on the one side, and completely fair and impartial to the defendant on the other side. Also, the Judge, in refusing to ask the question now under consideration, stated that he would instruct the jury on the law. In a comprehensive charge to the jury, the Judge covered the recognized rules for weighing and evaluating the testimony of witnesses. Specifically, the judge charged that the jurors could consider the relationship a witness bears to the Government as affecting his credibility, and that ...