Gross v. United States, 18818.

• Decision Date: 06 May 1968
• Docket Number: No. 18818.,18818.
• Citation: 394 F.2d 216
• Parties: Everett W. GROSS and L. Mary Gross, Appellants, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

394 F.2d 216 (1968)

Everett W. GROSS and L. Mary Gross, Appellants, v. UNITED STATES of America, Appellee.

No. 18818.

United States Court of Appeals Eighth Circuit.

May 6, 1968.

A. E. Sheridan, Waukon, Iowa, for appellants.

Stephen M. Turner, U. S. Atty. for the Northern District of Iowa, Sioux City, Iowa, and Donald E. O'Brien, Special Asst. U. S. Atty., for appellee; Patrick J. Foley, U. S. Atty. for the District of Minnesota, Minneapolis, Minn., on the brief.

Before VOGEL, Senior Circuit Judge, and BLACKMUN and LAY, Circuit Judges.

VOGEL, Senior Circuit Judge.

Everett W. Gross and L. Mary Gross, husband and wife, defendants and appellants herein, appeal from a denial of their pre-trial motions: To dismiss the 20-count indictment returned against them by a grand jury; to produce certain records for inspection, including grand jury proceedings; to provide a bill of particulars; and to suppress certain evidence. These motions were all denied by order of the trial court dated February 13, 1967. Appellants also appeal from a judgment of conviction entered March 29, 1967, which judgment was entered upon a jury verdict of guilty on all 20 counts returned February 18, 1967. Finally, appellants appeal from an order denying their motions for acquittal and for a new trial entered March 6, 1967.

The 20-count indictment, returned on December 6, 1966, charged that the appellants violated 18 U.S.C.A. § 1341 (using the mails to defraud or obtain money under false pretenses) and § 1343 (using wire, radio or television). Each of the counts related to specific transactions in a check kiting scheme which appellants allegedly operated over a 15-month period in 1962 and 1963 between Decorah, Iowa and La Crosse, Wisconsin.

Appellants have urged 26 separate assignments of error, many of them repetitious. We have examined all of them and find that none rises to the status of reversible error excepting only one based upon the government's cross-examination of appellants' character witnesses. Since we conclude that a new trial must be granted, we limit our discussion herein to the point requiring reversal.

The facts, taken from the record and dealing with the cross-examination by the government of the appellants' character witnesses, may be briefly stated as follows:

During the trial appellants called two witnesses to testify as to appellants' reputations in Helena, Montana, where appellant Everett W. Gross had moved in September 1962. (Mrs. Gross joined her husband in Helena at a later time.) Witness Stokes testified as to the character and reputation of both appellants in Helena, Montana, stating that:

"Other than a — Discounting this latest business that is under consideration here, I would say their reputation is good."

On cross-examination witness Stokes was asked:

"Have you heard, sir, that on September 24, 1957, a law suit was filed in Federal Court against Everett Gross and others wherein it was stated that the Charles City Bank had fraudulently lost $11,988.87 because bank money orders had been purchased by insufficient fund checks signed by Everett Gross?"

Appellants' counsel immediately objected that this was improper cross-examination, that the question called for incompetent, irrelevant and immaterial testimony, and that it was highly prejudicial to appellants. The objection was overruled and the witness answered:

"I was not aware of it, no."

The United States Attorney then asked the witness:

"Had you heard that a few days later on October 17, 1957, Federal Judge Henry Graven found that the statements just mentioned about Everett Gross were in fact true and that the Judge entered a judgment against Everett Gross for $11,988.87?"

Appellants' counsel raised the same objection to this question which was again overruled and the witness answered:

"No, I never heard that.

"By Mr. O\'Brien:

"Q. You haven\'t taken those into consideration; is that right?

"A. I knew nothing about it.

"Q. Would that in any way affect your opinion as to the truth and veracity that you have told us about?

"A. I would want to consider it a little bit further."

Appellants' counsel made no request for the court to immediately admonish or instruct the jury concerning the purpose and limited effect of the cross-examination and none was given.

Witness Erickson testified concerning the reputation of appellant Everett W. Gross in the Helena, Montana, vicinity and stated that Gross' reputation there was "very good". Erickson had known Mrs. Gross since June of 1964 and on cross-examination he stated that he would have included Mrs. Gross in his summarization as to having a good reputation had he been asked about her. Erickson was then cross-examined:

"Have you heard, Mr. Erickson, that Mr. Gross filed a petition in bankruptcy in 1958, and listed creditor claims against himself totalling $77,873.35 and that a portion of this amount was for unhonored checks by Mr. Gross? Had you heard that?"

No objection was taken by appellants to the question and the witness answered, "No." Erickson was then asked:

"And have you heard that none of these people were paid? Have you heard that?"

Appellants' counsel objected to this question as being incompetent, irrelevant and especially immaterial as to time. The objection was overruled but Erickson gave no answer to the question. Erickson was then asked:

"Have you heard, Mr. Erickson, that on October 31, 1960, Robert L. Larson, Chief Justice of the Iowa Supreme Court, issued an order, an injunction, prohibiting Everett W. Gross from practicing law in the State of Iowa? Had you heard that?"

No objection was made to the question and the witness answered, "No." Erickson testified further:

"Q. Now, if you had heard both of these matters would you have taken them into consideration in determining your statement as to reputation?

"A. I don\'t think so. I wouldn\'t judge a man by what he has done in the past by what — as much as what he does today. Just like Jesus judged the woman caught in adultery.

"Q. As far as you know in 1964, from that time on, when you saw him not more than once a month; is that right?

"A. Sometimes I saw him oftener because he came down and done work for me both in Billings and Montanan."

In addition to the objections made to the cross-examination of the witnesses Stokes and Erickson, appellants' counsel made a motion to strike the same at the close of all the evidence, which motion was overruled.

The court gave no instructions regarding such cross-examination and its relevancy or the very limited purpose for which the jury might consider it. The court also made no effort, outside the presence of the jury, to ascertain whether there was a basis in truth for the questions propounded on cross-examination, carrying as they did serious suggestions of other misdeeds. The prosecution also failed to offer to establish to the satisfaction of the trial court that such questions were in good faith. We consider here the question of whether prejudicial error was thus committed.

When a defendant places his reputation in issue by the introduction of what are loosely described as "character" witnesses, he opens the way for the prosecution to test the credibility of such witnesses by making inquiry on cross-examination as to whether the witness had knowledge of specific facts which, if known generally, would have a tendency to detract from the summary of reputation testified to by the character witnesses. The exercise of the right to test the credibility of character witnesses by such means is fraught with great danger. Unless circumscribed by rules of fairness and grounded in demonstrated good faith on the part of the prosecution, the result could be most prejudicial to the defendant and make for a miscarriage of justice. See, generally, Conrad, Modern Trial Evidence, § 205 (1956); Anno. 47 A.L.R.2d 1262.

Generally, in a criminal case, the defendant may introduce evidence of his good reputation relating to the time and place of the act or acts charged and before. See, Am.Jur.2d, Evidence, § 348; Underhill, Criminal Evidence, § 198 (5th Ed.).

"Inquiry as to the reputation of the person involved must relate in criminal cases to that existing at the time of the crime, and a reasonable anterior time through which such reputation continues, not too remote from the date of the crime.

"Reputation subsequent to the time of the commission of the crime is incompetent." Conrad, Modern Trial Evidence, § 200.

A careful reading of the record here discloses that the reputation testimony offered by defense witnesses Stokes and Erickson related to a different place than that of the offense and went to establish appellants' reputation at that place at a time subsequent to the commission of the allegedly criminal acts. The prosecution chose not to challenge the testimony on such grounds, however, and instead cross-examined with reference to a different time (before) and a different place (Iowa instead of Montana).

The right to introduce, through character witnesses, what the defendant's reputation was at the time of the crime alleged may be an extremely important right. In some circumstances the defendant's reputation alone may be sufficient to raise a reasonable doubt as to his guilt and the jury may be so instructed. Michelson v. United States, 1948, 335 U.S. 469, 476, 69 S.Ct. 213, 93 L.Ed. 168. It must be borne in mind, and the jury must be carefully cautioned to the effect, that we are dealing solely with reputation, not with reference to the truth of collateral facts which may be mere rumors but which may tend to make up the reputation with which we are concerned.

In Michelson v. United States, supra, the Supreme Court carefully considered the manner and extent of cross-examination of character witnesses in criminal cases. The court there stated, 335 U.S. at pages 480-481, 69 S.Ct. at page 221:

"* * * Both propriety and abuse of hearsay reputation testimony, on both sides, depend on numerous and subtle

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