Byrnes v. United States

Citation327 F.2d 825
Decision Date11 March 1964
Docket NumberNo. 18752.,18752.
PartiesJerome BYRNES, Appellant, v. UNITED STATES of America, Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

COPYRIGHT MATERIAL OMITTED

Marcia King, Los Angeles, Cal., for appellant.

Francis C. Whelan, U. S. Atty., Thomas R. Sheridan, U. S. Atty., and Edward M. Medvene, Special Asst. to the U. S. Atty., Los Angeles, Cal., for appellee.

Before BARNES, HAMLEY and DUNIWAY, Circuit Judges.

BARNES, Circuit Judge.

Appellant, an investigator in the Alcohol Tobacco Tax Division, Treasury Department (hereinafter referred to as ATTD) was indicted on eight counts. Counts 1, 3, 5 and 7 charged him with violating 18 U.S.C. § 8721"attempted extortion" — allegedly occurring on four separate days, March 7, 8, 11 and 12, 1962. Counts 2, 4, 6 and 8 charged him with violating what was then 18 U.S.C. § 202,2 soliciting money by an officer and employee of the United States for the purpose of influencing his pending action, on the same dates.

Appellant was found guilty of Counts 1 through 5, and 7, and acquitted on Counts 6 and 8. Appellant was sentenced to eighteen months imprisonment on each count, the sentences to run concurrently.3

This verdict of guilty was arrived at on appellant's third trial. On the first trial, a verdict of guilty was returned on all eight counts, but thereafter a new trial was granted.4 On the second trial, the jury disagreed and a mistrial was declared.

This is an appeal in forma pauperis. The factual background of this case is quite complicated, as are the trial proceedings. There are two volumes and 250 pages in the Clerk's Transcript, a Reporter's Transcript in 12 volumes and 2200 pages; plus a Second Supplemental Reporter's Transcript of 50 pages and a Third Supplemental Reporter's Transcript of 160 pages. Before us is a typewritten Opening Brief of 80 pages, with an Appendix of similar size; a 55 page Government Brief, and Appellant's Reply Brief of some 20 pages.

The appellant was released on bail during the time of his trials, and is on bail pending appeal. He was represented by appointed (though different) counsel at his trials. The record is replete with various motions made on his behalf.5 Except as noted in note 5, supra, many if not most of defendant's various motions were granted, at least in part.

Jurisdiction below rested on 18 U.S.C. §§ 3231, 872, the previous 202 and the present 201. This court has jurisdiction pursuant to 28 U.S.C. §§ 1291 and 1294.

Twelve points are raised on this appeal. Appellant lists them as follows:

Point I. The evidence is not sufficient to sustain the verdict or judgment of guilty as to any count in the indictment.

Point II. The appellant was substantially prejudiced and deprived of a fair trial by the effect of the tainted and false testimony of the main defense witness, given under restraint, past intimidation, and fear of job reprisal.

Point III. The court erred in denying appellant's motion to dismiss the indictment based on the government's intimidation of defense witnesses.

Point IV. The court erred in denying appellant's motion for an order supressing certain evidence, and in denying appellant's motion to dismiss the indictment based upon violations of appellant's basic constitutional rights and denial of due process:

The illegality of the arrest, search and seizure; the faulty complaint, illegal detention, and indictment based upon "illegal and tainted" evidence.

Point V. The court erred in not permitting appellant full latitude to develop and introduce oral evidence of defense witness Malcolm Warner.

Point VI. The court erroneously admitted into evidence on behalf of the prosecution "Appellant's gun, holster and cartridges" without proper foundation and without evidentiary support in the record.

Point VII. The court erroneously admitted into evidence on behalf of the prosecution the note (Ex. 37), "On floor behind front seat of my car" without proper foundation and without evidentiary support in the record.

Point VIII. The appellant was substantially prejudiced and deprived of a fair trial by the trial court granting the prosecution's motion for a continuance during the trial, and denying appellant's motion for a mistrial.

Point IX. The court erroneously admitted on behalf of the prosecution, a tape recording (Ex. 36) not properly authenticated, indistinguishable in crucial parts, and without any showing of the proper chain of custody of the evidence.

Point X. The court improvidently exercised its discretion in excluding vital impeaching evidence in the third trial that had been in evidence in the second trial.

Point XI. The appellant was substantially prejudiced and deprived of a fair trial by reason of government counsel's misconduct in constantly misrepresenting the state of the testimony.

Point XII. The appellant was substantially prejudiced and deprived of a fair trial by reason of government counsel's use of a bound volume of the transcript of testimony from the second trial.

I. The evidence is not sufficient to sustain the verdict or judgment of guilty as to any count in the indictment.

Appellant charges that "this record fails to fulfill the minimum legal requirement for conviction." He then states it is "impossible and unnecessary" to reproduce all the evidence in the case, and proceeds to call our attention "to the principles governing review of the evidence upon a claim of insufficiency to sustain a verdict of guilty which are applicable to circumstantial evidence cases." (Emphasis by appellant. Brief, p. 22.)5a But this is not a circumstantial evidence case. Much direct evidence was introduced.6 It would be incorrect and in fact, impossible, for this court to consider this a case of circumstantial evidence alone. We are required, of course, in examining all evidence, whether direct or circumstantial, to draw all favorable permissible inferences to support the jury's verdict, and the judgment below. On appeal we are required, after a conviction, to consider the evidence in an aspect most favorable to the prosecution. Glasser v. United States, 1942, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680; Noto v. United States, 1961, 367 U.S. 290, 296-297, 81 S.Ct. 1517, 6 L.Ed.2d 836. And evidence to support one count, for which appellant was convicted will support an affirmance of all counts, in view of the concurrent sentences imposed. Sinclair v. United States, 1929, 279 U.S. 263, 299, 49 S.Ct. 268, 73 L.Ed. 692; Buford v. United States, 9 Cir. 1959, 272 F.2d 483, 486, n. 2. When so viewed there exists ample evidence to support the conviction.

II. The appellant was substantially prejudiced and deprived of a fair trial by the effect of the tainted and false testimony of the main defense witness, given under restraint, past intimidation, and fear of job reprisal.

This alleged error arises by reason of alleged discrepancies between the testimony of the witness Elroy Travis at the second and third trials.

At trial number three, Travis testified that the appellant had indicated to Travis that "he Byrnes had had a statement from Mr. Tallmadge, and * * * he felt Mr. Tallmadge was involved with other gun dealers in the East, and I can't recall any other conversation." (Appellant's Appendix, p. 74.)

On cross-examination, Travis testified he did not remember that appellant had represented that this statement contained any confession by Tallmadge that he had violated either the Federal Firearms Act or the National Firearms Act (separate Acts).

At trial number two, Travis testified under redirect examination that he "thought Mr. Byrnes had gotten a statement from Mr. Tallmadge which would implicate him in a violation" of one of the two Acts. (Emphasis added. Appellant's Appendix, p. 76.)

At trial number one, there is no record before us as to what Travis stated. Appellant's counsel states "upon appellant's best recollection and belief," that "the state of Travis' testimony" was the same at the first trial as at the second.

The testimony given at the second and third trials is not necessarily contradictory. The same questions were not asked of this witness at the two trials. At trial number two, Travis thought Byrnes had obtained a statement which would implicate Tallmadge in a violation of the Acts. This is not necessarily a confession Tallmadge had violated one of the Acts (though it might be). At trial number three, Travis testified that Byrnes told him he had obtained a statement from Tallmadge which Byrnes thought involved Tallmadge "with other gun dealers."

We cannot as readily as counsel for appellant does classify the second trial's testimony as "true testimony" (Brief, p. 28) and the third trial's testimony as "false testimony" (Brief, p. 29). No reason is given for such characterization. We cannot say one, and not the other, is false. Nor in fact, that either is.

Nor can we ascribe to the prosecutor herein an intent "to knowingly cause false and misleading testimony to go into the record." Nor that he "by design used the testimony in his closing argument to full advantage."7 (Brief, p. 29.)

We feel it much more likely that the differences between the testimony at the two trials, given in response to two differing questions (and whether those differences be small or substantial) establish at best a discrepancy never cleared up by subsequent questioning on either side. It surely falls far short of proof that one was false, or that a witness was intimidated, merely because it differed.

III. The court erred in denying appellant's motion to dismiss the indictment based on the government's intimidation of defense witnesses.

This "intimidation" charged is based on the original position taken by the ATTD that under Treasury Regulations it could not and would not permit its employees to talk about the case. This was modified to permit interviews with ATTD employees, but only if had in the presence of the United States Attorney, or...

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