Briggs v. United States

• Decision Date: 22 April 1955
• Docket Number: No. 12241.,12241.
• Citation: 221 F.2d 636
• Parties: Harry Russell BRIGGS, Appellant, v. The UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

221 F.2d 636 (1955)

Harry Russell BRIGGS, Appellant, v. The UNITED STATES of America, Appellee.

No. 12241.

United States Court of Appeals Sixth Circuit.

April 22, 1955.

L. E. Gwinn, Memphis, Tenn., for appellant.

James L. Roberts, Nashville, Tenn. (Fred Elledge, Jr., Nashville, Tenn., on the brief), for appellee.

Before SIMONS, Chief Judge; MILLER and STEWART, Circuit Judges.

MILLER, Circuit Judge.

The appellant, Harry Russell Briggs, was indicted under a 5-count indictment for presenting claims to a department or agency of the United States, knowing such claims to be false or fraudulent. Sec. 287, Title 18 U.S.Code. Following a verdict of guilty under Counts 1 and 2 and not guilty under Counts 3, 4, and 5, he was sentenced to two years imprisonment and a $1,000 fine upon each of the two counts, the sentence under the second count to run concurrently with the first count. Following denial of his motion for a new trial, this appeal was taken.

Appellant operated the Tennessee Mechanical Institute of Memphis, which was a school for training veterans in automobile mechanics, under contract with the Veterans Administration. Count 1 charged him with filing with the Veterans Administration at Nashville, Tennessee a false claim in the amount of $40.34 for instruction furnished a veteran, James A. Jones, which claim showed that Jones attended classes at the institute for 126 hours during the period of August 1 through 31, 1952, when the appellant well knew that he only attended classes for approximately 12 hours during said period. Count 2 charged a similar false claim in the amount of $40.34 for instruction furnished Jones, which claimed that Jones attended classes for 126 hours during the period from September 1 through 30, 1952, when the appellant well knew that such was not so. The 3rd, 4th and 5th Counts charged false claims for instruction furnished a veteran named Floyd Wiley for the periods of August, September and October 1952.

The institute had an enrollment of approximately 462 students. During the period from 1947 to 1952 it prepared and sent to the Veterans Administration a minimum of from 25,000 to 30,000 invoices. The Government's evidence showed the filing of the invoices in question and the fact that they were false. Appellant's contention was that Wiley and Jones entered the school and thereafter discontinued attending classes, that he had no knowledge of their discontinuing attendance at the school, that he personally did not make out the invoices, and that although the invoices were incorrect there was no knowledge on his part of their falsity or any intention on his part to defraud the Government.

Goldie Scott, Secretary of the Institute, made out the invoices. The Government, in presenting its case, relied upon the testimony of Goldie Scott and John Thomas, another employee of the institute, to prove knowledge and intent upon the part of the appellant. However, these witnesses did not testify in accordance with statements previously made to FBI agents, with the result that the Government sought to impeach their testimony by use of the statements previously made. It is very doubtful if the Government's evidence was sufficient to take the case to the jury, although the District Judge overruled a motion for judgment of acquittal made at the close of the Government's case. While the case was still in progress, the District Judge, on his own motion, issued bench warrants for these two witnesses, charging them with perjury and committed them to jail. They were released on $5,000 bond. This action was publicized in the Nashville Banner and the Nashville Tennessean, newpapers having a general circulation in the area from which the jurors were taken. After an overnight recess, during which the newpapers were available to the jurors, and following the close of the appellant's defense, the Government, over objection of appellant's counsel, reintroduced Goldie Scott and John Thomas in rebuttal. They then testified in accordance with their previous statements to the FBI agents. This testimony, allegedly in rebuttal, if believed by the jury, was sufficient to establish the necessary knowledge and intent on the part of the appellant.

Although appellant relies upon several alleged errors in the rulings of the trial judge, we are of the opinion that the disposition of this case rests upon the action of the trial judge in overruling appellant's motion for a mistrial when the Government offered Goldie Scott as a witness in rebuttal for the purpose of changing her testimony of the previous day and permitting her and John Thomas to then testify in accordance with their statements to the FBI agent.

One of the fundamental rules of criminal law is that a defendant in a criminal case is entitled to be tried by jurors who "should determine the facts submitted to them wholly on the evidence offered in open court, unbiased and uninfluenced by anything they may have seen or heard outside of the actual trial of the case." Stone v. United States, 6 Cir., 113 F.2d 70, 77; Mattox v. United States, 146 U.S. 140, 13 S.Ct. 50, 36 L.Ed. 917; Wheaton v. United States, 8 Cir., 133 F.2d 522, 527; Little v. United States, 10 Cir., 73 F.2d 861, 864.

Unfavorable publicity to a defendant given in newspapers about a pending jury trial is not necessarily grounds for setting aside a verdict. The Court may be satisfied from an examination of the facts that the newspaper article was not seen or read by any of the jurors. Itow v. United States, 9 Cir., 223 F. 25, 28. Or the account may be merely an accurate statement of the proceedings unaccompanied by newspaper interpretation or comment and, under proper instructions of the Court, not prejudicial. Miller v. Commonwealth of Kentucky, 6 Cir., 40 F.2d 820, 822-823; Klose v. United States, 8 Cir., 49 F.2d 177, 182, certiorari denied 284 U.S. 626, 52 S.Ct. 11, 76 L.Ed. 534; United States v. Pisano, 7 Cir., 193 F.2d 355, 360-361, 31 A.L.R.2d 409; Madden v. United States, 9 Cir., 20 F.2d 289, 294; United States v. Leviton, 2 Cir., 193 F.2d 848, 857, certiorari denied 343 U.S. 946, 72 S.Ct. 860, 96 L.Ed. 1350.

But newspaper publicity may be of such character as to result in prejudice to the defendant and to cause a mistrial. Concurring opinion of Justices Jackson and Frankfurter in Shepherd v. State of Florida, 341 U.S. 50, 71 S.Ct. 549, 95 L.Ed. 740; Griffin v. United States, 3 Cir., 295 F. 437; State v. Pierce, 178 Iowa 417, 159 N.W. 1050, 1056; Meyer v. Cadwalader,...