United States v. Grant

• Decision Date: 16 July 1979
• Docket Number: Crim. No. 79-86.
• Citation: 473 F. Supp. 720
• Court: U.S. District Court — District of South Carolina
• Parties: UNITED STATES of America v. Mary Beckham GRANT.

473 F. Supp. 720

UNITED STATES of America v. Mary Beckham GRANT.

Crim. No. 79-86.

United States District Court, D. South Carolina, Rock Hill Division.

July 16, 1979.

Thomas E. Lydon, Jr., U. S. Atty. for the District of South Carolina, Columbia, S.C., and Marvin L. Smith, Asst. U. S. Atty., Columbia, S.C., for the United States of America.

Thomas A. McKinney, of McKinney & Harrelson, Rock Hill, S.C., for Mary Beckham Grant.

ORDER ON DEFENDANT'S MOTION TO DISMISS

HEMPHILL, District Judge.

By motion filed June 1, 1979, defendant seeks of this court an order dismissing a criminal indictment which charges Mary Beckham Grant with embezzlement from the Piedmont Production Credit Association, Monroe, North Carolina, Rock Hill, South Carolina, branch, on six (6) separate occasions, accumulated in six separate counts in an indictment filed May 8, 1979. She pled not guilty on May 17, 1979. Defendant says that the indictment should be dismissed because the Assistant United States Attorney agreed to dismiss, without prejudice, a previous information against the accused and not reindict if (1) a "confession" to the crime by James Albert Jones was found to be voluntarily given; (2) defendant took and "passed" a lie detector test and (3) no additional evidence was found implicating the said Mary Beckham Grant with the crime. It appears that James Albert Jones "confessed" to the crime with which accused is now charged in the presence of two regular Rock Hill Police Officers and the husband of Mary Beckham Grant, also a Rock Hill Police Officer, was found guilty of the crime of stealing from the Production Credit Association and sent to the penitentiary.¹ Mary Beckham Grant did take and "pass" a lie detector test, but there is some dispute as to whether the government has discovered any additional evidence exists implicating the accused with the crime. This court is convinced that such exists.

In his return to the motion, the United States Attorney sets forth that the criminal information was previously dismissed, without prejudice, to reindict generally with the understanding that the criminal prosecution not be reinstituted unless there were further developments in the case. The United States Attorney says, and it is not disputed, that there was no grant of immunity given to Mary Beckham Grant² and that the United States Attorney did not have the authority to grant immunity even if such were desired.³ The return stated that after information had been brought to the attention of the United States Attorney, that Jones had been sentenced to six years for the crime with which the accused was charged, the Attorney caused a civil rights investigation to be made as to Jones which established that Jones' "confession" was not voluntarily given and an investigation by the F.B.I. revealed that the physical description of the premises where the money was embezzled would make it almost impossible for Jones to steal the money in question. The United States Attorney says in his return that Jones was tried while defendant knew that she was the guilty party and her husband had been present at the supposed "confession." The long affidavit by the United States Attorney sets forth that:

In two of the embezzlements, Mrs. Grant made writings in the file extending the maturity date of the loans, which had the effect of allowing the borrowers to skip one payment, thereby covering up those embezzlements. Only the Manager of the office had the authority to extend the maturity date of a loan by preparing a certain form which was required to be subsequently approved by the executive committee. This was not done.

- and -

In one of the embezzlements, a borrower made a cash payment to be applied to his life insurance premium and his monthly loan payment. Mrs. Grant deposited in the bank and gave him credit for that amount which applied to his insurance premium but did not deposit or give him credit for that amount which applied to his monthly loan payment.⁴

It affirmatively appears that this was probably not known to the government at the time of the prosecution of Jones, and if the United States Attorney's Office knew of the prosecution of Jones at all, or had any idea about the same, additional information is revealed, according to the government's theory, that Jones could not have committed the crime for which the accused is indicted.

Initially, it must be remembered that this is not a plea bargaining to a pending indictment. The United States made a proposition, but not a bargain, as the United States Attorney got nothing in return for his charity.⁵ The accused gave the government nothing in return for charity. If there had been a trade, this court would enforce it on directions issued by the Fourth Circuit in Cooper v. United States, 594 F.2d 12 (4th Cir., 1979).

This court is mindful of the general rule set forth in United States v. Thomas, 580 F.2d 1036, 1038 (10th Cir., 1978) wherein the court said:

An unkept promise by the Government in a plea bargaining situation which results in the entry of a plea of guilty in a criminal proceeding may justify either a setting aside of the plea of guilty or a remand for the purpose of compelling specific performance of the Government promise.

The record reflects that in Thomas the judge accepted a change of plea, did not later impose a sentence, when he had promised "on behalf of the judiciary that Thomas would not be sentenced until after all the other charges are filed and you have pled guilty to them." The judge who made the promise did not sentence Thomas. No such situation exists in this case, nor does the situation similar to that case of the co-defendant, Walters, against whom the judge dismissed the indictment, which the Tenth Circuit reinstated.

In United States v. Carter, 454 F.2d 426, 428 (4th Cir., 1972), the government said the indictment may be dismissed:

If it further appears that the defendant, to his prejudice, performed his part of the agreement while the Government did not, the indictment may be dismissed.

There is no prejudice in this case to defendant by what she did. She took a lie detector test. There is a conflict now as to whether or not the polygraph test was "passed" by the accused. It shows the unreliability of the polygraph test, but further shows that the same never should have been interjected in this particular case.

This court finds no reason to try an issue, ordinarily the responsibility of a jury, by use of a polygraph. In Frye v. United States, 54 U.S.App.D.C. 46, 293 F. 1013, (D.C.C.A., 1923), the first reported federal case on polygraph admissibility, the court stated the appropriate standard for the judicial determination of whether to use newly developed scientific and experimental evidence should be whether the scientific principle or discovery is "sufficiently established to have gained general acceptance in the particular field in which it belongs." The polygraph was found not to possess such standing and scientific recognition among physiological and psychological authorities. The Frye standard is still often applied in discussions of the polygraph and other new scientific techniques. See, e. g., United States v. Skeens, 161 U.S.App.D.C. 131, 494 F.2d 1050 (D.C.C.A., 1974) (polygraphs); United States v. Franks, 511 F.2d 25, 33 (6th Cir., 1975), cert. denied, 422 U.S. 1042, 95 S.Ct. 2654, 45 L.Ed.2d 693 (spectrographic analysis); United States v. Stifel, 433 F.2d 431, 438 (6th Cir., 1970), cert. denied, 401 U.S. 994, 91 S.Ct. 1232, 28 L.Ed.2d 531 (neutron activation analysis); Lindsey v. United States, 237 F.2d 893, 896 (9th Cir., 1950) (truth serum or sodium pentothal); United States v. Bruno, 333 F.Supp. 570, 574 (E.D.Pa., 1971) (ink identification). This court would proceed with caution on the basis of Frye.

In United States v. Alexander, 526 F.2d 161, 163 (8th Cir., 1975), the court indicated that reliability is one of the most important factors in determining "general acceptance." Courts such as Alexander which have considered admitting results from polygraph tests have noted their willingness to accept proven scientific techniques, but have rejected polygraphs following their hearing of expert testimony and review of the extensive body of articles and text on polygraphs. Though polygraph methodology and examiner training have substantially improved since the primitive systolic blood test employed in Frye, the polygraph has yet to attain sufficient scientific acceptance among experts in polygraphy, psychiatry, physiology, psychophysiology, neurophysiology and other related disciplines to justify admission. United States v. Alexander, id. at 164. Following three days of testimony, the trial judge in United States v. Urquidez, 356 F.Supp. 1363 (D.C. Cal., 1973), found the most obvious conclusion to be made about polygraphs to be that there are many variables other than the ultimate test of truth or falsity influencing results. He noted the numerous disagreements among "experts" about proper test administration and how results should be interpreted.

The "general acceptance" standard is often utilized in conjunction with considerations of the relevance, prejudice and burden on judicial time of polygraph evidence. These considerations rather than a "general acceptance" standard concerning evidential admission have been employed in Rules 401-403 of the Federal Rules of Evidence. The concepts present in the Rules strengthen the arguments against admission. See generally Abbell, Polygraph Evidence: The Case Against Admissibility in Federal Criminal Trials, 15 Am.Crim.L.Rev. 29, 54-59 (1977).

The eight Courts of Appeals which have considered the admission of unstipulated polygraph examinations have uniformly held polygraph results inadmissible. United States v. Bando, 244 F.2d 883, 841 (2nd Cir.) cert. denied, 355 U.S. 844, 78 S.Ct. 67, 2 L.Ed.2d 53 (1957) (dicta); United States v. Masri, 547 F.2d 932 (5th Cir., 1977); United States v. Cochran, 499...