Campbell v. United States, 5371-5373.

• Decision Date: 15 September 1959
• Docket Number: No. 5371-5373.,5371-5373.
• Citation: 269 F.2d 688
• Parties: Alvin R. CAMPBELL, Defendant, Appellant, v. UNITED STATES of America, Appellee. Arnold S. CAMPBELL, Defendant, Appellant, v. UNITED STATES of America, Appellee. Donald LESTER, Defendant, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — First Circuit

269 F.2d 688 (1959)

Alvin R. CAMPBELL, Defendant, Appellant, v. UNITED STATES of America, Appellee.

Arnold S. CAMPBELL, Defendant, Appellant, v. UNITED STATES of America, Appellee.

Donald LESTER, Defendant, Appellant, v. UNITED STATES of America, Appellee.

Nos. 5371-5373.

United States Court of Appeals First Circuit.

August 27, 1959.

Rehearing Denied September 15, 1959.

Lawrence F. O'Donnell, Dorchester, Mass., and Melvin S. Louison, Taunton, Mass., for appellants.

William J. Koen and Norman A. Hubley, Asst. U. S. Attys., Boston, Mass., with whom Anthony Julian, U. S. Atty., Boston, Mass., and John F. Palmer, Attorney, Department of Justice, Washington, D. C., on brief, for appellee.

Before MAGRUDER, Chief Judge, and WOODBURY and HARTIGAN, Circuit Judges.

HARTIGAN, Circuit Judge.

Each of the three defendants was convicted in the District Court of the United States for the District of Massachusetts on seven counts of an indictment charging violations of the Bank Robbery Act, 18 U.S.C. § 2113. Count 1 charged that the defendants violated § 2113(a) and Count 2 charged them with violating § 2113(b). Counts 3 through 7 charged them with the aggravated offense set forth in § 2113(d). Each of these latter five counts alleged that the defendants put in jeopardy the life of a different customer or employee during the commission of the bank robbery set forth in Counts 1 and 2.

The bank robbery was alleged to have taken place in the Canton Branch of the Norfolk County Trust Company in Canton, Massachusetts, on July 18, 1957.

The defendants do not contend that the Government failed to provide sufficient evidence to warrant finding them guilty but rather claim that the district judge committed such serious errors in the conduct of the trial as to deprive them of a fair trial. They charge that the district judge went beyond permissible bounds in commenting on the evidence and in the examination of witnesses and that his charge to the jury was argumentative in nature and was unfairly partisan in favor of the prosecution. They further contend that their right of cross-examination of the Government witnesses was erroneously curtailed and that the court further erred in allowing evidence as to a purported admission made by one of the defendants. A further point raised by the defendants concerns the refusal of the district judge to permit the defendants to examine a pre-trial report involving one of the Government witnesses.

The latter point concerning the denial of the right to examine this pretrial report does not warrant extended discussion in view of the recent decision of the Supreme Court in Palermo v. United States, 360 U.S. 343, 79 S.Ct. 1217, 3 L.Ed.2d 1287. It seems clear that the district judge in the instant case did not commit error in holding that an F. B. I. investigator's summary of an account of the bank robbery by a Government witness was not a "statement" under subsection (e) of the act of September 2, 1957, 71 Stat. 595, 18 U.S.C. § 3500, the so-called "Jencks" Act. It is to be noted that prior to the district judge's action he in camera discovered that this witness had never seen the report in question and that the report was not a substantial verbatim recital of what had been told to the F. B. I. agent. Under these circumstances the determination of the district judge was justified.

The defendants also charge that the district court committed reversible error in preventing them from inquiring of an important Government witness "* * * You smoke reefers, do you, Mr. Gibson?" However, it seems evident from the context in which this question was asked that its form was unclear and that the district judge was within his discretion in excluding it on this ground, as it is quite evident by the judge's later statements he would not prevent defense counsel from interrogating on this point if the question were put in proper form. It would seem reasonable to require that the defense counsel use a more explicit term than "reefers". If the purpose of the defense counsel, which is not clear from the record, were to show that the witness was under the influence of narcotics at the moment of testifying, the question should have been whether the witness was addicted to the use of cigarettes containing narcotics. See Wilson v. United States, 1914, 232 U.S. 563, 567, 34 S.Ct. 347, 58 L.Ed. 728. On the other hand, if the question was intended to show that the witness was under the influence of narcotics at the time when an admission was purported to have been made to him by one of the defendants, the proper question would have been whether at the time of that conversation the witness was under the influence of cigarettes containing narcotics. In this way the defendants would have been able to protect their right to show the possibility that this witness' testimony should not have been given as much weight as it would otherwise, but because of the improper form of the interrogation on this point the district judge was not in error in its exclusion.

The defendant, Arnold Campbell, contends that the admission into evidence of a statement made in his presence by his brother Alvin to Floyd Gibson was prejudicial error. This statement was that Alvin, Arnold and a third party had participated in a bank robbery in Boston. Gibson further testified that Arnold was present when this statement was made, in fact that he was sitting on his right during the conversation in question. Such a statement is admissible against the defendant Arnold Campbell for if it was heard by him, his silence under such circumstances could be construed as an admission. See 4 Wigmore, Evidence, § 1071 (3rd ed. 1940). The only instruction requested by the defendants concerned the scrutiny which the jury should give such admissions and the possibility of misinterpretation of the person speaking. It is the jury's function to determine whether this statement was heard by the defendant Arnold Campbell and the weight to be given it as evidence of guilt is also a jury function. The only point in the charge in which this admission is referred to was when the district judge was cautioning the jury that the facts were for the jury to find and that it was their obligation to weigh the evidence. Viewed in this context, the district judge's reference to the evidence relating to the conversation in question, although not entirely clear as to meaning, left it to the jury to find whether or not Arnold Campbell had in fact heard this statement sought to be used as an admission against him.

Another point raised by the defendants is that the district judge so abused his discretion in interrogating witnesses and in his comments on the evidence that they were deprived of a fair trial. Their contention is basically the same as that made in Daley v. United States, 1 Cir., 1956, 231 F.2d 123, certiorari denied 351 U.S. 964, 76 S.Ct. 1028, 100 L.Ed. 1484, and our comments made therein are applicable in this case. It is evident here also that while much of this intervention by the district judge was superfluous it is also clear that the patience of the judge was...