Cox v. United States

• Decision Date: 06 January 1961
• Docket Number: No. 16480.,16480.
• Citation: 284 F.2d 704
• Parties: Robert G. COX, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

284 F.2d 704 (1960)

Robert G. COX, Appellant, v. UNITED STATES of America, Appellee.

No. 16480.

United States Court of Appeals Eighth Circuit.

December 2, 1960.

Rehearing Denied January 6, 1961.

Solbert M. Wasserstrom, Kansas City, Mo., for appellant. Richard E. Graulich, Kansas City, Mo., on the brief.

J. Whitfield Moody, Asst. U. S. Atty., Kansas City, Mo., for appellee. Edward L. Scheufler, U. S. Atty., Kansas City, Mo., on the brief.

Before VAN OOSTERHOUT and BLACKMUN, Circuit Judges, and REGISTER, District Judge.

REGISTER, District Judge.

Appellant was tried under an indictment containing three counts. Count I charged that on August 16, 1959, the appellant and his wife received and sold certain merchandise valued at $5,000 or more which constituted interstate commerce, knowing said goods to have been stolen, in violation of Section 2315, Title 18 U.S.C.A. Count II (with which we are not here concerned) charged that on August 15 and 16, 1959, three persons therein named unlawfully transported said goods in interstate commerce, knowing the same to have been stolen, in violation of Section 2314, Title 18 U.S. C.A. Count III charged that between August 14 and September 12, 1959, the appellant, his wife, and one Morris John Jenshak, along with the three individuals named in Count II, unlawfully conspired to transport said goods in interstate commerce and to receive and sell said goods, all of the named defendants well knowing said goods to have been stolen, in violation of Section 371, Title 18 U.S. C.A.

Appellant and his wife were found guilty by the jury on Counts I and III, and defendant Jenshak was found guilty by the jury on Count III. The trial judge directed the jury to return verdicts of not guilty as to the three individuals named in Count II, and who were also named as co-conspirators in Count III.

Appellant was sentenced to serve concurrent terms of imprisonment of ten years on Count I and five years on Count III. He has appealed to this Court from the judgment and sentence of imprisonment.

At the close of the government's evidence appellant moved for a judgment of acquittal; said motion was overruled and denied. Thereupon appellant introduced testimony in his own defense, after which and following oral argument, the case was submitted to the jury under the court's charge. It is significant to note at this point that appellant failed to renew his motion for judgment of acquittal following the close of all the evidence and prior to the submission of the case to the jury. As will be subsequently developed herein, his failure to renew said motion precludes our consideration of some of appellant's main points for review, notwithstanding the fact that he did, following the jury's return of the guilty verdicts, timely move for a judgment of acquittal or, in the alternative, for a new trial.

The government's evidence established that a burglary took place at the warehouse of Helm's Inc., in Kansas City, Kansas, sometime between the close of business on Saturday, August 15, 1959, and the opening of business the following Monday morning, and that the property stolen consisted of 230 tires, 7 air conditioners and 17 television sets, having an aggregate value of $14,303.41. On September 10, 1959, agents of the Federal Bureau of Investigation seized 24 Firestone tires at Lowe's Conoco Station in Grandview, Missouri. Paul M. Lowe, the owner of this station, as a government witness testified that these 24 tires were a part of a total quantity of 184 tires he had received from appellant on August 16 and 17, 1959. On direct examination Mr. Lowe was asked whether there had been any conversation with appellant as to where the tires came from. After replying that "Nobody said anything where they came from or anything about that", the following appears of record (Tr. 71):

"Q. Mr. Lowe, you have previously testified, have you not, under oath before the grand jury? A. Yes, sir.

"Q. About this matter? A. Yes, sir.

"Q. On two different occasions, is that correct? A. Yes, sir.

"Q. Do you recall those occasions? A. Yes, sir.

"Q. I ask you whether or not you recall in answer to the following questions you gave the following answers —

"Mr. Graulich: One moment. Your Honor, I am going to object on that on the grounds that Mr. Moody is trying to impeach his own witness.

"The Court: Let me see that. Gentlemen, let\'s take a 10 minute recess at this time. Come into chambers, gentlemen."

Following the discussion in chambers the prosecutor proceeded to read aloud in the presence of the jury three separate portions of Lowe's testimony before the second session of the grand jury, which testimony dealt with certain conversations between the witness Lowe and appellant as to whether the tires were "hot". After hearing each portion of the grand jury testimony, Lowe was asked whether said questions and answers given before the grand jury were correct and whether he recalled making such statements, and whether they were correct to the best of his knowledge.

As a general rule the use of grand jury testimony to refresh the recollection of a witness rests in the sound discretion of the trial judge. Pittsburgh Plate Glass Company v. United States, 360 U.S. 395, 79 S.Ct. 1237, 3 L.Ed.2d 1323; United States v. Socony-Vacuum Oil Company, Inc. et al., 310 U.S. 150, 60 S.Ct. 811, 84 L.Ed. 1129, and United States v. Graham et al., 2 Cir., 102 F.2d 436. In Socony-Vacuum the Supreme Court said, at 310 U.S. at page 233, 60 S.Ct. at page 849:

"As in case of leading questions, St. Clair v. United States, 154 U.S. 134, 150 14 S.Ct. 1002, 1008, 38 L.Ed. 936, such use of grand jury testimony for the purpose of refreshing the recollection of a witness rests in the sound discretion of the trial judge. See Di Carlo v. United States 2 Cir., 6 F.2d 364, 367-368; Bosselman v. United States 2 Cir., 239 F. 82, 85; Felder v. United States 2 Cir., 9 F.2d 872. He sees the witness, can appraise his hostility, recalcitrance, and evasiveness or his need for some refreshing material, and can determine whether or not under all the circumstances the use of grand jury minutes is necessary or appropriate for refreshing his recollection. As once stated by Judge Hough, `The bald fact that the memory refreshing words are found in the records of a grand jury is not a valid objection.\' Felder v. United States, supra 9 F.2d page 874. * * *"

Appellant contends that the trial court erred in permitting the government to refresh the memory of witness Lowe by referring to certain testimony previously given by him before the grand jury for the reason that such testimony was not given contemporaneously with the events to which they related.

In support of this contention appellant cites as the leading case Putnam v. United States, 162 U.S. 687, 16 S.Ct. 923, 926, 40 L.Ed. 1118, along with the later cases of United States v. Socony-Vacuum Oil Company, supra, and N. L. R. B. v. Hudson Pulp & Paper Corp. et al., 5 Cir., 273 F.2d 660.

In discussing the so-called "doctrine of contemporaneity" the Supreme Court in Putnam said:

"The very essence, however, of the right to thus refresh the memory of the witness is, that the matter used for that purpose be contemporaneous with the occurrences as to which the witness is called upon to testify. Indeed, the rule which allows a witness to refresh his memory by writings or memoranda is founded solely on the reason that the law presupposes that the matters used for the purpose, were reduced to writing so shortly after the occurrence, when the facts were fresh in the mind of the witness, that he can with safety be allowed to recur to them in order to remove any weakening of memory on his part, which may have supervened from lapse of time."

The Court then, after commenting that the effort there involved was to refresh the memory of a witness as to an interview which had taken place in August, by referring to his testimony given more than four months later, concluded:

"We think it clear that testimony given after this lapse of time was not contemporaneous, and that it would not support a reasonable probability that the memory of the witness, if impaired at the time of the trial, was not equally so when his testimony on the prior occasion was committed to writing." 162 U.S. at pages 696, 697, 16 S.Ct. at page 927.

The doctrine of contemporaneity enunciated by the Supreme Court in Putnam was recognized and followed by this Court in the case of Tibbitts-Hewitt Grocery Co. v. S. E. Lux, Jr., Mercantile Co., 8 Cir., 5 F.2d 549.

In the Socony-Vacuum case the Supreme Court, with reference to the problem of contemporaneity, expressed itself thusly:

"Whatever may be said of the Putnam case on the merits * * * it does not establish an inflexible four-months\' period of limitation." 310 U.S. at page 236, 60 S.Ct. at page 850.

Then, after discussing some of the facts of the case before it, the Court continued by saying:

"On these facts we do not think there was an abuse of discretion on the part of the trial judge in permitting the testimony to be used. Measured by the test of whether or not the prior statement made under oath was reasonably calculated to revive the witness\' present recollection within the rule of the Putnam case, there certainly cannot be said to have been error as a matter of law."

310 U.S. a page 236, 60 S.Ct. at page 850.

In N. L. R. B. v. Hudson Pulp & Paper Corp., supra, counsel attempted to refresh the recollection of a witness by means of an affidavit given by the witness more than four months prior to his testifying in court. After commenting that "there was no lack of clear and distinct recollection in his response to the question" there involved, the Court stated:

"It would seem that even though the recollection of Miles had required refreshing, the statement used for that purpose was too remote from the event to be available for that purpose." 273 F.2d at page 665.

In the instant case the matter of inquiry was...