Barton v. United States

• Decision Date: 26 February 1959
• Docket Number: No. 17093.,17093.
• Parties: Milton Ray BARTON and Leslie McCullem Mitchell, Appellants, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

263 F.2d 894 (1959)

Milton Ray BARTON and Leslie McCullem Mitchell, Appellants, v. UNITED STATES of America, Appellee.

No. 17093.

United States Court of Appeals Fifth Circuit.

February 26, 1959.

Howard H. Dailey, Dallas, Tex., Jerry D. Brownlow, Brownlow & Bailey, Grand Prairie, Tex., for appellants.

Minor L. Morgan, Asst. U. S. Atty., Dallas, Tex., William B. West, III, U. S. Atty., Fort Worth, Tex., for appellee.

Before HUTCHESON, Chief Judge, and RIVES and JONES, Circuit Judges.

RIVES, Circuit Judge.

The indictment under the Mann Act¹ charged in the first count that "on or about October 7, 1957," Milton Ray Barton and Leslie McCullem Mitchell transported in interstate commerce from Dallas, Texas, to Hobbs, New Mexico, "one Carolyn Anita McQueary, a girl," for the purpose of prostitution. The second count was the same, except it specified a different date, "on or about November 1, 1957," and a different female, "one Betty Jean Lane, a woman." The jury found each defendant guilty on both counts as charged, and the court sentenced each of them to imprisonment for a total of seven and one-half years. Both defendants appealed, but Barton has withdrawn his appeal and is now serving his sentence.

Before the trial Mitchell moved for a severance, attaching to his motion a copy of an unsigned statement given by his codefendant Barton, out of Mitchell's presence and hearing, to a Special Agent of the F.B.I.² The district court ruled on the motion for severance as follows:

"I believe we can control the evidence without a severance, and having two trials, so I will overrule the motion."

The Government stipulated that Mitchell was not present when Barton gave the statement. Upon the trial and just before the statement was offered in evidence, Mitchell renewed his motion for severance. In lieu of granting that motion the district court instructed the jury as follows:

"Gentlemen of the Jury, counsel is now somewhat showing the origin of the statement. If it is offered in evidence before you the Court will admit it only as evidence against the defendant that made it.

"If two men are engaged in a transaction and one of them makes a confession, it is admissible against him, and not against the other fellow. So while this admission may contain the name of Mitchell again and again, you will not consider that as part of the evidence against Mitchell, and the paper is offered in evidence only insofar as it shows evidence against Barton."

Over Mitchell's objection, Barton's statement, thus limited, was introduced in evidence.

At the conclusion of the Government's evidence, Mitchell again renewed his motion for severance and said motion was again denied.

The defendant Barton did not testify upon the trial either as a Government witness or for himself.

The district court further instructed the jury in reference to the statement in its final oral charge as follows:

"During the trial there was admitted a written paper purporting to be the written statement of one of the defendants, the defendant Milton Ray Barton, an admission, as we told you at the time, or confession of one man, if you might call it that. Any statement made by one defendant is not admissible against the other, so that was admitted against one of the defendants and not against them both. On that point, Counsel has asked me to charge you again on that point. You are charged as part of the law applicable to the case that you cannot consider the purported voluntary statement alleged to have been made by the defendant Barton as any evidence whatever against his co-defendant, Mr. Mitchell. Insofar as Mitchell is concerned, you will disregard this statement altogether, and if you consider it at all against the defendant Barton you must first find the evidence in the case, beyond a reasonable doubt, that said purported statement was freely and voluntarily given by the party."

The Government relies upon the familiar principle that, under Rule 14, Federal Rules of Criminal Procedure,³ the district court has a discretion to grant or deny a severance of defendants, and that its ruling is subject to review only for abuse of discretion.

We have quoted the main body of Barton's statement in footnote 2, supra. It accused Mitchell of being the instigator or of acting with Barton in every detail of the commission of each offense. It would be impossible to eliminate from the statement the parts prejudicial to Mitchell and no such attempt was made. The sole reliance for Mitchell's protection was the court's instruction to the jury, several times repeated, not to treat the statement as evidence against Mitchell. Considering the substance and terms of Barton's statement, we doubt whether it was at all possible to carry out that instruction. To do so certainly would require twelve minds more perfectly disciplined than those of the average human jurors.

Unless that admonition was effective, then Mitchell has been deprived of his constitutional right to be confronted with the witnesses against him,⁴ for he has been afforded no opportunity to cross-examine Barton as to the truthfulness of his many accusatory statements.

A few of the States grant a right of separate trial to every defendant in a criminal case, and several other States have liberal rules for the granting of severance in order to assure a fair trial to each defendant.⁵ The federal courts retain the discretionary rule expressed in Rule 14, Federal Rules of Criminal Procedure, quoted in footnote 3, supra, but they must nonetheless be alert to accord to every defendant a completely fair trial.⁶ For reasons which have been adequately expressed in Schaffer v. United States, 5 Cir., 1955, 221 F.2d 17, 19, 54 A.L.R.2d 820,⁷ we hold that the district court abused its discretion in denying the appellant Mitchell a separate trial.

The Government argues that a separate trial for Mitchell would have made no difference in the outcome, because "Mitchell was bound hand and foot by the most awesome array of evidence imaginable, quite apart from the confession of Barton." We cannot, however, substitute ourselves for the jury, whose duty it was to pass upon Mitchell's guilt or innocence. As was said in Kotteakos v. United States, 1946, 328 U.S. 750, 765, 66 S.Ct. 1239, 1248, 90 L.Ed. 1557:

"* * * The inquiry cannot be merely whether there was enough to support the result, apart from the phase affected by the error. It is rather, even so, whether the error itself had substantial influence. If so, or if one is left in grave doubt, the conviction cannot stand."

It is not necessary for us to pass on the other claims of error. For the district court's refusal to grant a severance to the defendant Mitchell, the judgment of conviction against him is reversed and the cause remanded for a new trial of Mitchell.

Reversed and remanded.

1 In pertinent part as follows:

"§ 2421. Transportation generally

"Whoever knowingly transports in interstate or foreign commerce, or in the District of Columbia or in any Territory or Possession of the United States, any woman or girl for the purpose of prostitution or debauchery, or for any other immoral purpose, or with the intent and purpose to induce, entice, or compel such woman or girl to become a prostitute or to give herself up to debauchery, or to engage in any other immoral practice; * * *

* * * * *

"Shall be fined not more than $5,000 or imprisoned not more than five years, or both."

18 U.S.C.A. § 2421.

2 The main body of that statement was as follows:

"About one week later, at the same drive-in, Mitchell suggested to McQueary and myself that we go to New Mexico together on a selling trip. Mitchell told us he had been to New Mexico before. Mitchell also suggested that I get a girl to take with us to help make some money. Mitchell and I agreed to take two cars, his 1955 blue Lincoln, and my 1957 black and white Mercury. Also during the time, when Mitchell and 1 were making plans for the trip, we both discussed the possibility of McQueary making money for us by filling dates of prostitution in New Mexico.

"Prior to leaving Dallas, my wife Bobbie Barton, had left me and had taken my car, and therefore Mitchell and I agreed to make the trip in his 1955 Lincoln. On or about October 7, 1957, the three of us, Mitchell, McQueary, and myself, left Dallas in Mitchell's car, bound for Hobbs, New Mexico. We went to Grand Prairie, where we picked up some of McQueary's clothes. We left from Dallas about noon, or shortly after. Shortly after leaving Grand Prairie, Mitchell asked...