Charles v. United States

• Decision Date: 01 November 1954
• Docket Number: No. 13897.,13897.
• Parties: J. D. CHARLES, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

215 F.2d 825 (1954)

J. D. CHARLES, Appellant, v. UNITED STATES of America, Appellee.

No. 13897.

United States Court of Appeals Ninth Circuit.

September 24, 1954.

Rehearing Denied November 1, 1954.

Walter H. Duane, Robert B. MacMillan, San Francisco, Cal., for appellant.

A. William Barlow, U. S. Atty., Louis B. Blissard, Asst. U. S. Atty., Honolulu, Hawaii, Lloyd H. Burke, U. S. Atty., San Francisco, Cal., for appellee.

Before MATHEWS, HEALY and LEMMON, Circuit Judges.

MATHEWS, Circuit Judge.

On November 18, 1952, in the United States District Court for the District of Hawaii, appellant, J. D. Charles, also known as James D. Charles, was indicted for violating 26 U.S.C.A. § 2593(a), 53 Stat. 281,¹ which provided: "It shall be unlawful for any person who is a transferee required to pay the transfer tax imposed by 26 U.S.C.A. § 2590(a), 53 Stat. 279² to acquire or otherwise obtain any marihuana without having paid such tax; and proof that any person shall have had in his possession any marihuana and shall have failed, after reasonable notice and demand by the collector,³ to produce the order form required by 26 U.S.C.A. § 2591, 53 Stat. 280, 60 Stat. 40 to be retained by him, shall be presumptive evidence of guilt under 26 U.S.C.A. § 2593(a), 53 Stat. 281 and of liability for the tax imposed by 26 U.S.C.A. § 2590(a), 53 Stat. 279."

The indictment alleged that on or about November 8, 1952, in the City and County of Honolulu, Territory of Hawaii, appellant, "being a person who, as a transferee, was required to pay the transfer tax imposed by 25 U.S.C.A. § 2590(a), 53 Stat. 279, did knowingly, wilfully, unlawfully and feloniously acquire and obtain fifty-six and four-tenths (56.4) grains of marihuana without having paid said transfer tax, in violation of 26 U.S.C.A. § 2593(a), 53 Stat. 281."

Appellant was arraigned, pleaded not guilty, had a jury trial and was found guilty. Thereupon a judgment was entered sentencing him to pay a fine of $2,000 and to be imprisoned for five years.⁴ This appeal is from that judgment.

I

Eight witnesses were called by and testified for appellee, the United States. Appellant did not testify or call any witness or offer any evidence. After the jury was impaneled and before any witness was called, the following colloquy occurred:

"Mr. Landau:⁵ While we are discussing this matter, may we at this time ask that the witnesses be excluded?

"The Court:⁶ No. As you have probably heard, the rule doesn't exist any more.

"Mr. Landau: No. I am sorry I did not know that. * * * Is this a change in the rules of court, if the court please?

"The Court: No. There is no written rule that you are referring to. It is simply a custom that has grown up here in Hawaii and has been observed for many years as you and I both know. But I find that such a rule does not obtain generally elsewhere, * * * and it is my view that people are required to tell the truth under oath whether they hear anybody else testifying or not, and I know and you know that the rule is something of a theoretical abstraction because witnesses who have been placed under the rule have been known to testify and then run out and tell the others what was going on. So we will no longer in this division of the court⁷ have any such rule."

Thus, in effect, appellant requested, and the District Court refused to make, an order excluding the witnesses from the courtroom. The refusal is specified as error.

An order excluding witnesses from the courtroom is commonly called a rule, and witnesses so excluded are said to have been put under the rule.⁸ United States district courts have, and frequently exercise, the power to make such orders.⁹

The practice of putting witnesses under the rule is a time-honored one¹⁰ and should not be abandoned. Of course all witnesses are (as the District Court said) "required to tell the truth under oath whether they hear anybody else testifying or not." Unfortunately, however, some witnesses pay little heed to this requirement. Such witnesses may, and often do, shape their testimony to match that given by other witnesses within their hearing. To prevent such matching of testimony is the prime purpose of putting witnesses under the rule.¹¹

It is true that the power to put witnesses under the rule is a discretionary one,¹² and that where, in the exercise of its discretion, a district court refuses to put witnesses under the rule, its action is reviewable only in case of an abuse of discretion.¹³ Here, however, there was no exercise of discretion. Instead, there was, in effect, a declaration by the District Court that it had abandoned and would not follow the practice of putting witnesses under the rule. This was error.

However, the record does not show that any witness was in the courtroom while any other witness was testifying. We therefore cannot say that appellant was prejudiced by the District Court's refusal to put the witnesses under the rule or by its failure to exercise its discretion.

II

George F. Richcreek, an agent of the Bureau of Narcotics, called as a witness for appellee, testified¹⁴ that about 4:55 P.M. on November 8, 1952, at a house in Honolulu,¹⁵ Richcreek took appellant into custody; that Richcreek, assisted by Lowell W. Cain, an agent of the Bureau of Narcotics, and by Charles A. Gerlach, a police officer of the City of Honolulu, thereupon began a search of the house and adjacent yard; that Richcreek, Cain and Gerlach were later assisted in the search by other police officers, one of whom was Robert F. Vierra; and that:

"The search was continued and at about 6:45 P.M. Agent Cain asked Charles appellant how much money he had in the house. Charles replied that he had ten or twelve thousand dollars, he wasn't sure which was correct. He said that he had it in his bedroom. Agent Cain then told him that he would go to his bedroom and check the money so there wouldn't be any mistake, as if anything happened to the money during the search. Charles then led us to the bedroom, which is just off the rear door to the house, where he opened a rawhide wardrobe steamer trunk * * * and removed two brown grocery type bags of paper currency. This money was counted by Agent Cain and myself in the presence of the defendant appellant. * * * There was $17,011.11 in two brown paper bags. * * * That money was then placed back in the brown paper bags and relocked in the trunk by Mr. Charles. * * * The search continued, and Mr. Herbert Chock from the Internal Revenue Bureau, whom we had been trying to contact all evening in relation to the $17,011, arrived,¹⁶ and he interviewed Mr. Charles in relation to this money, and I believe, I don't understand internal revenue angles too much, but I believe he was talking to Mr. Charles about filing an estimated return for the year 1952."

The admission of the above quoted testimony is specified as error.

The above quoted testimony was irrelevant and should not have been admitted. Appellant says that its admission was prejudicial, in that it referred to the $17,011.11 found in appellant's possession and to Chock's interview with appellant and thereby indicated to the jury that appellant was "a large-scale operator in criminal enterprises of some kind" and was "an income tax violator." Actually, it did not so indicate. Furthermore, immediately following its admission, the District Court stated in the presence of the jury: "We are not trying an income tax case." Thereafter the District Court instructed the jury that appellant was "not on trial for having in his possession a large sum of money," and that there was "nothing unlawful about that."

We conclude that appellant was not prejudiced by the admission of the above quoted testimony.

III

The District Court gave the jury the following instructions:

"* * * Congress has said that if a person such as this defendant appellant, in relation to a charge such as this, is found to be in possession of marihuana, and upon notice and demand fails to produce an order form covering the transaction, that that person, if he fails to explain that possession, may on that, on those two facts being established beyond a reasonable doubt, alone may be convicted. And in that event, should that be your finding, it is not necessary for the Government appellee to prove those other things that I have mentioned in the indictment.

"So, consequently, although this indictment charges the defendant with being a transferee required to pay the internal revenue tax imposed by the law, and charges him also with acquiring and obtaining marihuana without having paid such tax, and thus is described as being a transferee, you are instructed that though that be the charge as written out specifically in the indictment, and that although the Government must prove this beyond all reasonable doubt, that the Congress has provided that the Government may prove it in this particular way — by establishing beyond all reasonable doubt two facts — one, that the defendant had possession of the article mentioned in the indictment, and two, that the defendant failed to produce the required order form covering the article after a notice and demand to produce such form had been made upon him by a representative of the collector of internal revenue, now the director.¹⁷ Now, if those two facts are proven, and the defendant offers no explanation, or if the explanation he offers does not satisfy, then the Government need go no further, and those two facts, proven beyond a reasonable doubt, warrant and require you to return a verdict of guilty. * * *

"And so I repeat that * * * to warrant a conviction at the hands of the jury of this defendant, the Government has to prove only two things, regardless of what is said in the indictment. One, it has to prove beyond a reasonable doubt that the defendant did in fact have actual or constructive possession of the marihuana, and two, it has to prove beyond a reasonable doubt that the defendant was put upon notice and demand was...