Foster v. United States

• Decision Date: 19 October 1962
• Docket Number: No. 16991.,16991.
• Citation: 308 F.2d 751
• Parties: Willie Frank FOSTER, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

308 F.2d 751 (1962)

Willie Frank FOSTER, Appellant, v. UNITED STATES of America, Appellee.

No. 16991.

United States Court of Appeals Eighth Circuit.

October 19, 1962.

Keith Mattern, St. Louis, Mo., for appellant.

William S. Martin, Asst. U. S. Atty., St. Louis, Mo., for appellee. D. Jeff Lance, U. S. Atty., on the brief.

Before VOGEL and VAN OOSTERHOUT, Circuit Judges, and VAN PELT, District Judge.

VOGEL, Circuit Judge.

Willie Frank Foster, who will hereinafter be referred to as the defendant, was charged by grand jury indictment in six counts with narcotic violations of 26 U.S.C.A. § 4705(a) and 21 U.S.C.A. § 174. He was originally brought to trial before a jury on October 18, 1961. During the cross-examination of the first government witness, one Oscar Hatcher, Hatcher reversed his testimony. On defendant's motion, a mistrial was declared. Hatcher was summarily found guilty of contempt of court and sentenced to six months' confinement. Defendant was charged under 18 U.S.C.A. § 1503 with intimidating a witness. On December 11 and 12, 1961, he was tried on the latter charge and acquitted by a jury. On January 22, 1962, there began the retrial of the defendant on the original charges. By jury verdict returned on January 24, 1962, defendant was found guilty on all six counts. He was sentenced to confinement for a period of twelve years. He appeals to this court from the judgment of conviction. Defendant lists what he claims to be errors on the part of the trial court as follows:

1. "The Court erred in refusing to allow defense to explain the charge and verdict in the case of United States vs. Willie Frank Foster, 61 Cr. 283(2) in Defense\'s opening statement." Defendant is referring to the intimidation case resulting in defendant\'s acquittal.

2. "The Court erred in refusing to allow defense an inspection of all pertinent portions of the file prepared by Agent Hall and used by the government in the trial."

3. "The Court erred in refusing to instruct the Jury in the matters contained in defendant\'s requested instruction No. 2."

We consider the first claimed error. Upon the commencement of the case, the government prosecutor opened his voir dire examination of the jury panel with a brief statement by way of background. He concluded it by saying:

"* * * Now, this is a narcotic case, and incidentally, this case was in court once before, and I would like to inquire, is there anyone on this panel that was on the panel when the case was in court once before? If so, would you indicate it by raising your hand. I don\'t have that jury list, and I don\'t recall everybody that was there."

Subsequently, counsel for the defendant stated to the jury:

"Mr. Mattern: Mr. Martin has asked you if there were any of you who were on the panel at the prior trial of this same case. Are there any of you who have knowledge of that prior trial, or any of you that have knowledge of the case of the U. S. vs. Willie Foster?"

After the selection and swearing in of the jury, government counsel made his opening statement detailing the six charges against the defendant, the defendant's plea of not guilty and gave an outline of what the government's evidence would be. No reference was made therein to the defendant's trial on the intimidation charge. Defendant's counsel in his opening statement, however, attempted to tell the jury about the intimidation trial and defendant's acquittal therein. The government objected. The following transpired out of the presence of the jury:

"The Court: Well, but you can do that when it comes to examining these witnesses, but to make those things in this opening statement — what do you intend to say?

"Mr. Mattern: I intend to say that the case was originally tried; that the government brought forth a paid informer, or informer, who reversed himself on the stand; a mistrial was declared, and my man was charged with intimidating the witness. My man was then found innocent of intimidation, and the original case is being tried here again today. I think they\'re entitled to know that nothing has changed from the opening of court at the original trial. Now, the jurors are under the impression that there have been cases gone on before in this trial, and I think they\'re entitled to know that my man — that the trials have either been declared mistrials or he\'s been found innocent of everything, and he\'s as free as one of us being tried. Of course I think they now have the impression that there have been several trials in here, and there\'s going to be created in their mind the idea that if they\'re bringing this many cases against him, they must have something.

"The Court: Well, I don\'t like to try a lawsuit this way, but if you referred to that other — as you said you did — I didn\'t recall it to be quite that extensive, but if you did refer to some former case, why I suppose probably he\'s entitled to show it."

Government prosecutor had not referred to the intimidation case but only to "* * * incidentally, this case was in court once before."

Counsel for the defendant still persisted.

"Mr. Mattern: I realize that, your Honor, but I still think that the jury should know that my man was indicted for the tampering with the witness in the first trial that caused the mistrial, and my man was found innocent of that, so they have to take this witness at face value rather than somebody who might still be under duress, for all the jury is going to know, because he\'s still going to say yes, but I said that because Foster told me to.

"The Court: Well, I think that better be left to see how the evidence develops, Mr. Mattern, and I\'d prefer you leave that other matter out. I\'ll let you refer to this first trial which was declared a mistrial, but leave the other out until we see how things develop. I\'m going to let you try everything that\'s fair to your client, I assure you, but I don\'t want this jury to be confused in trying this case by something that happened in some other case that has absolutely no bearing upon the issues in this case, except as there may be some impeachment."

The only purpose of opening statements is to inform the jury what the case is about and to outline the proof that will be used — on the one hand to establish the commission of the crime and on the other to outline the defense — so that the jurors may more intelligently follow the testimony as it is related by the witnesses. Here government counsel had made no reference in his opening statement to the intimidation trial. Only on voir dire had he referred to the fact that "this case" had been in court once before. Under the circumstances, whether testimony regarding the intimidation trial would become pertinent for impeachment was entirely conjectural. We think the trial court acted within his discretion and free of prejudice in refusing to allow defense counsel to go into the details of the intimidation trial in his opening statement and in directing that he "leave the other out until we see how things develop". Counsel for the defendant was, in the remainder of his opening statement to the jury, allowed to inform them as follows:

"* * * This is the second time that Willie Foster has been tried for these three acts that Mr. Martin has outlined to you. The prior trial, back in October, it started about October 17th, the trial commenced, and the government\'s witness, Oscar Hatcher, who Mr. Martin has made mention of, started to testify. Halfway through the cross-examination, or partially through; at least the cross-examination was started, Judge Weber, who is now deceased, stopped the trial and declared a mistrial. This is now a retrial of that first case, so when Mr. Martin refers to Mr. Foster being in court before on a narcotics charge, it\'s not another narcotics charge, it\'s the same one."

We think, additionally, that there is here much ado about nothing because later in the trial at the cross-examination of the witness Oscar Hatcher, defendant's counsel was allowed to bring out everything he wanted to include in his opening statement with reference to the intimidation trial of the defendant, Willie Frank Foster, and the fact that he was tried and acquitted of the alleged threats. Accordingly, if there could possibly have been error, and we feel certain there was not, it was completely healed by the subsequent disclosures.

Defendant's second alleged error is based upon the court's refusal "to allow defense an inspection of all pertinent portions of the file prepared by Agent Hall", apparently meaning a large investigation file used by government counsel during the trial and described by the trial judge as "a file which would be at least one inch thick of papers". Federal Bureau of Narcotics Agent Ernest H. Hall had testified for the prosecution with reference to two of the three purchases made by the witness Oscar Hatcher, who had preceded him on the stand. Defendant's attorney began his cross-examination of Hall as follows:

"Q. Agent Hall, have you made a written report of this case to the government?

"A. Yes, sir.

"Q. Have you given this report to the government?

"A. Yes, sir.

"Q. Was this report prepared in your office subsequent to your investigation?

"A. Yes, it was.

"Q. Is the testimony that you have given here today substantially the same as it appears in that report?

"A. To the best of my knowledge, yes, sir.

"Mr. Mattern: Your Honor, I move at this time for inspection of this report, for use in cross-examination for impeachment purposes.

"The Court: If you have such a statement, you may produce it, Mr. Martin.

"Mr. Martin: Mr. Hall, will you find it in there, please, sir?

"Witness: Do you want those as to each separate transaction?

"Mr. Mattern: I\'d like the written report that you have given to the government.

"Witness: You mean to Mr. Martin\'s office?

"Mr. Mattern: Yes, sir."

An 8-page typewritten report signed by Agent Hall was given to defendant's counsel. Defendant's counsel was not satisfied. Apparently...