Hall v. United States

• Citation: 419 F.2d 582
• Decision Date: 12 November 1969
• Docket Number: No. 25827.,25827.
• Parties: Donald Joseph HALL, Appellant, v. UNITED STATES of America, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

419 F.2d 582 (1969)

Donald Joseph HALL, Appellant, v. UNITED STATES of America, Appellee.

No. 25827.

United States Court of Appeals Fifth Circuit.

November 12, 1969.

Thomas M. Haas, Mobile, Ala., for appellant.

Don Conway, Asst. U. S. Atty., Mobile, Ala., Vernol R. Jansen, Jr., U. S. Atty., for appellee.

Before GEWIN and GODBOLD, Circuit Judges, and CHOATE, District Judge.

GODBOLD, Circuit Judge:

The appellant was convicted by a jury on a single-count indictment charging interstate transportation of a stolen automobile and sentenced to three years. The conviction must be reversed for improper and prejudicial statements made by prosecutors during oral argument.

The reversible remarks covered five areas: statements that appellant had tampered with witnesses; a statement by a prosecutor of his personal belief concerning a controverted issue of fact, i. e., whether FBI Agent Degnan had forced witness Beck to give a statement; a personal voucher by the same prosecutor that FBI Agent Degnan was a person of integrity; a statement that "we the United States Attorney's office try to prosecute only the guilty;" and a characterization of appellant as a "hoodlum."

In analyzing questioned prosecutorial forensic conduct there are many areas of possible concern. Without attempting to spell out and categorize the full spectrum, a number of areas of inquiry can be stated that are helpful in reaching a decision.

Are the prosecutor's statements made for the purpose, or do they have the effect, of getting before the jury for its consideration extrinsic evidentiary matter? Does the extrinsic matter consist of statements by the prosecutor of matters asserted as fact though not in evidence? Or does the extrinsic matter consist of statements which reasonably lead the jury to believe that there is existent evidence not available to them but the content of which is unrevealed?

Does the extrinsic matter, whether its content is delineated or its existence merely implied, tend to show the accused guilty of the offense charged? Or does it tend to persuade that he is guilty of some other offense than that charged? Or that he simply should be put away as a social undesirable? Does it go only to his credibility? Is the subject-matter of the remarks just abstract name-calling, not really related to evidence at all?

Some of these questions go to the content and purpose of the statements made. Others attempt to search out the extent to which the questioned conduct impinges on the procedural protections which the law has erected around the trial itself. Others center around the peculiar impact which the prosecutor's remarks may have upon the particular accused.

In considering the impact of what is said the court also must be concerned with the great potential for jury persuasion which arises because the prosecutor's personal status and his role as a spokesman for the government tend to give to what he says the ring of authenticity. The power and force of the government tend to impart an implicit stamp of believability to what the prosecutor says. That same power and force allow him, with a minimum of words, to impress on the jury that the government's vast investigatory network, apart from the orderly machinery of the trial, knows that the accused is guilty or has non-judicially reached conclusions on relevant facts which tend to show he is guilty.

1. The charge of witness tampering.

The first prosecutor to argue commenced his remarks with inflammatory statements directed not to appellant's guilt of the offense charged but to assertions that appellant had tampered with government witnesses. One of the government witnesses was Beck, a friend of appellant. He had pleaded guilty to stealing the automobile appellant was charged with transporting, and was on probation. Appellant testified that about a week before the trial he went to see Beck to try to get him to come to the trial. He stated Beck told him that although appellant had nothing to do with the car he feared to so testify because it would "hurt his probation." Appellant testified that Beck had been under extensive psychiatric care, and that during their conversation Beck went berserk, had a fit and foamed at the mouth, that he tried to take Beck to the hospital but was unable to get him in the car, and he then called Beck's father, a pharmacist. As far as appellant knew Beck was still in the hospital at the time of trial.

This testimony was the only evidence relating to Beck's nonattendance at the trial. There was no evidence that appellant did or said anything improper during his visit to Beck or that Beck was not ill or not legitimately confined to the hospital. There was not a whisper of evidence that Beck was afraid of appellant.

The first words of argument by government counsel were these:

MR. CONWAY: May it please the Court, gentlemen, I am sure you sense both the Prosecutors\' anger in this case and I hope the evidence leaves you with anger as it does us because I tell you there is nothing worse than messing with witnesses. And that is what the evidence shows very plainly that this defendant has done. Don\'t make any mistake about this, Gary Wayne Beck is scared to death of this man — scared to death of him. So much so that he just has a fit and goes to the hospital.

Defense counsel objected. The trial judge stated that he did not remember evidence that Beck was afraid of the defendant and admonished the prosecutor not to go beyond the evidence. He did not rule on the objection so far as the primary charge of tampering was concerned and gave no cautionary instruction to the jury. In the next breath the prosecutor picked up the cudgel again with these remarks:

I don\'t know what business appellant has got talking to him Beck anyway. He is under subpoena to come over here to testify, and after Mr. Hall talked to him and funds have been advanced to him, he can\'t come over here, he has to go to the hospital.

Of course, the government does not have exclusive pretrial access to witnesses.

Reed was another government witness. As to him the prosecutor said:

Now, gentlemen, I hope — I just hope one of you saw Mr. Reed when he walked in here wink at Mr. Hall because that tells the whole story right there. He winks at his buddy. Look out, old buddy, I am going to help you. That angers us. I can\'t help it, because we are public servants and we care about our duty. We try to prosecute the guilty and it disturbs us to see things like that. We want to try the cases with the witnesses, we don\'t want them messed with and fooled with like that.

The defense objected again. The court again did not rule but admonished the prosecutor to stick to the evidence. Reed too was a friend of appellant. But there was nothing — literally nothing — tending to show that appellant had anything to do with Beck's wink or that it carried the implication given it by counsel.

In Weathers v. United States, 117 F.2d 585 (5th Cir. 1941) the prosecutor stated to the jury that defendant's divorced wife, a government witness, had gotten on the stand and deliberately perjured herself, and then added: "It was plain to be seen that the defendant, or defendant's counsel or somebody, had gotten to this woman before the time she delivered that paper to us and the time she was called to testify." This Court reversed.

The issue with regard to witness tampering is not one of admissibility but of comment.¹ As to Reed, there was no evidence to support the charge of tampering by defendant. The prosecutor could not properly deduce from the fact of a wink the inference of an affirmative undertaking by Reed to "help" his "old buddy." An inference not reasonably deducible from the evidence may not be stated. Luttrell v. United States, 320 F.2d 462 (5th Cir. 1963). This charge was supported only by the improper implication that there was existent, but unstated, evidence of which the jury did not have the benefit. McMillian v. United States, 363 F.2d 165 (5th Cir. 1966).

The prosecutor's assertion that Beck was afraid of defendant was a bald assertion of fact not in evidence and therefore improper, e. g., Dunn v. United States, 307 F.2d 883, 885 (5th Cir. 1962). His inference of tampering could not be drawn from what meager facts were in evidence, United States v. Persico, 305 F.2d 534 (2d Cir. 1962); United States v. Schwartz, 325 F.2d 355 (3d Cir. 1963); Luttrell v. United States, supra. The highly inflammatory nature of the remarks is obvious. They charged a separate, and a serious, criminal offense.² They went to the integrity of the trial itself. And they were pursued and re-pursued after objection and admonition from the court. Where there are remarks such as here made the court should, as a minimum, sustain an objection and immediately and clearly instruct the jury that the argument is not supported by evidence. United States v. Pepe, 247 F.2d 838 (2d Cir. 1957).

2. The statement of opinion on a disputed issue of fact, and the vouching for Degnan as a person of integrity.

One of the issues that went to the jury was whether the witness Beck was intimidated by FBI Agent Degnan into making a statement that appellant had stolen the car. The second prosecutor met this issue by saying, as his initial point of argument:

There are some amazing things about this case. The defendant Hall has testified here that Beck told him that he was intimidated by the F.B.I. or forced to make a statement saying that Hall stole the car

Now, gentlemen, I get a little tired of the police and the F.B.I. being the whipping boys of criminals and liars. I just don\'t believe that Harry Degnan who took Beck\'s statement and whom you have seen in this courtroom all this time would force anybody to make a statement. I know him to be a fine F.B.I. officer — absolutely the finest I know. A man of absolute integrity. And I get a little tired of the F.B.I. being whipping boys for hoodlums. And that is the only way I know how to describe the

...