Baker v. United States

• Decision Date: 28 October 1946
• Docket Number: No. 10984.,10984.
• Parties: BAKER et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Fifth Circuit

156 F.2d 386 (1946)

BAKER et al. v. UNITED STATES.

No. 10984.

Circuit Court of Appeals, Fifth Circuit.

July 10, 1946.

Rehearing Denied August 12, 1946.

Writ of Certiorari Denied October 28, 1946.

Hugh M. Wilkinson, John D. Lambert, Jacob J. Amato, G. W. Gill, Warren O. Coleman, Samuel J. Tennant, Jr., Thomas E. Furlow, and Clem H. Sehrt, all of New Orleans La., for appellants.

Rubein Johnson and A. M. Safir, in pro per.

Herbert W. Christenberry, U. S. Atty., and Robert W. Weinstein and Nicole E. Simoneaux, Asst. U. S. Attys., all of New Orleans, La., for appellee.

Before HUTCHESON, WALLER, and LEE, Circuit Judges.

Writ of Certiorari Denied October 28, 1946. See 67 S.Ct. 123.

HUTCHESON, Circuit Judge.

This is another in that long line of cases in which, claiming prejudicial variance, defendants seek reversal on the ground that the indictment charged one general conspiracy, while the proof at best for the government showed several separate conspiracies.¹

Charging a scheme to defraud and the use of the mails in connection with the sale, as oil bearing and otherwise valuable, of marsh and swamp lands, counts one, two and three charged violations of the Securities Act of 1933, Title 15 U.S.C.A. § 77q, counts four, five, six, and seven charged violations of the mail fraud statute, Section 338, Title 18 U.S.C.A. When the government rested, defendants, without offering any evidence, rested too. Counts six and seven were dismissed, a verdict was directed on count three, defendants' motions for directed verdict on the other counts were denied, each of the defendants was convicted and sentenced² on counts four and five, and each has separately appealed.

Some of the defendants, indeed most of them, assail their convictions and sentences on counts one and two, the "security" counts as without legal force. They insist that the proof showed not a sale of a security, i. e., "a sale of an interest in land where the investor looks for the success of his investment to the activities of the promoter", as in the cases relied on by the United States,³ but a sale of land where the investor looks to the land itself and to the activities of others not at all connected with the promoter.

Interesting as the question posed by these claims of error is and difficult as its answer may be, it is not necessary for us to concern ourselves with it. The sentences on these counts are made to run concurrently with those imposed on the mail fraud counts, and if those sentences are valid, the judgment must be affirmed,

Each defendant has separately appealed, and each has presented his separate assignments of error, but the chief reliance of each is upon the same general grounds of error. It will suffice, therefore, to treat these errors generally, referring to an individual appellant where in respect of a particular assignment he stands differently from other defendants, or where he presents an assignment not relied on by others.

Errors are assigned to the admission of evidence, to the giving and refusing of charges, and to the general conduct of the trial by the court. Some of the appellants complain that the attitude of the trial judge was prejudiced and unfair and in itself prevented a fair trial.

We are committed to the view that it is of the essence of a fair trial that the judge conduct it with complete disinterestedness, and that if he fails to do so, the judgment will be reversed.⁴ Because we are, and because of appellants' complaint, we have examined this record with the utmost care only to find the picture it presents is one of complete disinterestedness and fairness. Throughout, it exhibits good manners and an attitude of patience, courtesy and helpfulness on the part of the judge. Throughout, it exhibits a willingness, indeed an earnest desire to understand the claims and positions of the defendants. Throughout it presents a most painstaking effort to conduct the trial as a judge should conduct it not as a participant lending weight to either side, nor as a mere moderator, but as an impartial and disinterested governor of its course to keep the trial within legal bounds.⁵ Indeed, it is a matter of comment that so few claims of error have arisen in so long a trial.

Firmly committed, as we are, to the proposition that while it is the duty of a trial judge to conduct the trial with firmness, understanding and judgment, it is equally his duty to conduct it with patience, politeness, fairness and moderation, and that he is not to dominate the trial or to do more than, as administrator of it, keep it within legal bounds, we find in this record nothing to condemn, but only to commend. Good manners, patience, kindness, sympathy and understanding are required of a trial judge, but complete and perfect inerrancy is not and cannot be. "Abstract inerrancy is hardly possible in the trial of a case in a federal court; it is never an essential to a valid trial there. * * * Too much is said and done about too little in the heat and hurry of a trial, for it all to be important. Things of no moment in their transpiring are not made momentous merely by making record of them." Maryland Cas. Co. v. Reid, supra, 76 F.2d at page 33. When then a record shows that a long trial like this has been conducted throughout with complete single mindedness to hear fully and fairly and to rule with patience and judgment, appellants, if they would bring the trial to naught, must show something more than that a mere aberration from trial rules has occurred. They must show error which is, or reasonably may be considered to be, prejudicial, 76 F.2d at page 33.

More, while there are cases in which courts will notice plain error which goes to the substance of a case or adversely affects the just conduct of the trial, normally in order to put a judge in error, counsel must appropriately call desired action to the attention of the court and give the court an opportunity to avoid or correct error. They may not wait until appeal to point it out, 76 F.2d at page 33. Certainly they may not invite action by the court and then complain of such action as error.

It is in the light of these views that we turn to a discussion of the errors assigned on the conduct of the trial, taking up first, objections to evidence. Only one such objection was made. Only one of the appellants, Silverman, claims error in respect of it here. This objection was to the introduction in evidence of the books of the Plaquemines Land Company and the testimony about them. We find no reversible error here. The books were adequately proven up as the books of the company. Indeed it was not claimed that they were not. The district judge instructed the jury throughout the trial that a particular defendant would not be bound by what others said and did unless a party to the conspiracy to sell the land of Plaquemines Company. If Silverman was a party to that conspiracy, the acts of his co-conspirators in keeping the books and running the business of the company would bind him. If he was not, he would not be bound.

Certainly the books were admissible against Baker, the president of the company, and against those whom the evidence showed were officers or agents of the company engaged in the general scheme to sell the lands. They would be equally admissible against Silverman if he was a party to the conspiracy, and on this issue the jury were well instructed. Indeed there is no complaint on the score of the charge.

But if it be considered that there was error in the admission of the books, the error was not prejudicial. The books were brought into court and were available to both sides, and nothing that was testified to, from or about them could be said to have been prejudicial to Silverman or indeed any of the defendants. If there was error in their admission, it was harmless error.

The claimed errors in the charge fall into two categories: In the first are those which go to the refusal of the court to direct a verdict: (a) because of failure of the proof to show mailing as to some of the counts; (b) because of failure of the proof arising out of a variance between the charge in the indictment of one general conspiracy and the proof of many separate ones. In the second category three complaints which go to the form of the submission, are made. One is of the charge on the presumption of innocence. One is of the charge on reasonable doubt. One is of refusal to charge on defendant's failure to testify.

Of the presumption of innocence charge, it is sufficient to say that the attention of the district court was called to the error in the charge, and, before the jury retired, a charge was given correcting it. No one complained of, or took exception to, the correcting charge. The matter stands here with the defendants claiming error in a charge which, on their motion, was corrected by the trial court before the jury retired. The charge on reasonable doubt was not complained of below, or called to the trial court's attention by an exception to the charge, and no opportunity was offered the trial judge to correct it. If it was error to so charge, and this is extremely doubtful, it was not on this record such error as would require reversal.

The third error claimed, the refusal to the court, when first requested by some of the defendants, to charge the jury that a defendant did not have to take the stand and his failure to testify could not be in any manner considered against him, requires more extended discussion. This is the record. One of the defendants Silverman, requested the charge, two others, Diaz and Bird, joined in the request, the other defendants especially asked by the court whether they wanted the charge, said they did not, and the court then denied the charge. Later on when the jury after having been out several hours came back into court to ask a question, the judge of his own motion stated to the jury that he had been in error in refusing the charge, and that he wished now to correct...