Lambert v. United States

• Decision Date: 25 March 1939
• Docket Number: No. 8832.,8832.
• Citation: 101 F.2d 960
• Parties: LAMBERT v. UNITED STATES.
• Court: U.S. Court of Appeals — Fifth Circuit

101 F.2d 960 (1939)

LAMBERT v. UNITED STATES.

No. 8832.

Circuit Court of Appeals, Fifth Circuit.

February 24, 1939.

Rehearing Denied March 25, 1939.

Thos. Arthur Edwards, of Lake Charles, La., for appellant.

Harvey G. Fields, U. S. Atty., and J. Fair Hardin, Asst. U. S. Atty., both of Shreveport, La.

Before SIBLEY, HUTCHESON and HOLMES, Circuit Judges.

HUTCHESON, Circuit Judge.

Appellant, a physician, was indicted in four counts for selling, and in a fifth count for conspiracy to sell narcotics, to one Christian, in violation of the Harrison Narcotic Act, 26 U.S.C.A. § 1040 et seq. He was acquitted on the substantive counts, convicted and sentenced on the conspiracy count. By his appeal he assails the verdict as unsupported by the evidence, and as inconsistent with itself because it acquitted him on the only substantive count submitted to it, while convicting him of conspiracy. He assails the trial as attended with such erroneous rulings on evidence by, and comment and actions of, the trial judge, as to deprive him of a fair trial.

The rulings on evidence complained of are (1) the admission of evidence as to what appellant paid for narcotic drugs, and his acts in furnishing them to Christian, occurring a long time before, and having no relation to the substantive offenses charged, and therefore, as appellant claims, to the conspiracy to convict him; (2) the limitations placed on appellant's cross examination of Government witnesses, by which it is claimed he was prevented from showing that no conspiracy or illegal arrangement was entered into.

The actions of the trial judge complained of as depriving appellant of a fair trial are the brusqueness and severity of some of his remarks, and actions occurring during colloquies with appellant's counsel, over his efforts and conduct in offering and in objecting to, evidence. Resulting finally in the imposition of a fine and an order to the marshal to put him in jail, later rescinded, these colloquies are so bound up with defendant's efforts at cross examination, and are so illuminative of the atmosphere of the trial, that we set them out in a note.¹

As to the verdict's want of support in the evidence, appellee points out that while appellant did move for a verdict at the close of the Government's case, it did not renew the motion when all the evidence was in.

It answers the claim of inconsistency in the verdict by insisting (1) that there was no inconsistency, because appellant could have been guilty of a conspiracy to sell without being guilty of the actual sale; and further, that if there is evidence to support conviction on the conspiracy count, appellant may not complain because he was not also convicted on the substantive count.

It answers the exceptions to the rulings on the evidence that these were not well taken, but if they were, no substantial prejudice resulted to the appellant therefrom; while as to the comment and action of the court complained of as depriving him of a fair trial, it insists that appellant's counsel brought it on himself, by his obstreperous, if not contumacious conduct, and after all, it does not appear that any prejudice resulted from what occurred.

We agree with appellee that the inconsistency of a conviction on one count and an acquittal on others, where the evidence is sufficient on them all to sustain conviction, is not an inconsistency of which a defendant in a criminal case may complain. Such inconsistency as there is is in his favor. He may complain only of a verdict which is without support in the evidence. This he may do only when either he has in a timely way moved for an instructed verdict, or the verdict against him is, on the record, so manifestly unjust as to require the court to notice it, of its own motion. Appellant having failed to renew it at the close of all the evidence, waived the motion he made at the close of the Government's case for directed verdict, and may not, therefore, have a reversal here for want of evidence, unless an examination of the record, upon the court's own motion, shows that the conviction was wholly unsupported and manifestly unjust.

In view of appellant's complete acquittal by direction, and by the jury's verdict on all the counts charging him with aiding and abetting in the sales to Christian, and of the state of the record as to the conduct of the trial, we have of our own motion carefully examined the evidence. Finding no support in it for appellant's conviction on the conspiracy count, we reverse the conviction as unjust.

The theory of the indictment in the four substantive counts, and in that charging conspiracy is that appellant, acting with the Hargroves, senior and junior, first conspired to sell, and then carried out the conspiracy by selling, morphine to Christian. There is nothing legally wrong with this theory.

Appellant could have been guilty of a conspiracy to sell, and also of aiding and abetting in the sale. The difficulty here is with the proof. All that it shows is that appellant acted with Christian in his efforts to purchase. It does not show that he was in any sense acting in concert with the Hargroves, the sellers. His concert was with Christian, the purchaser, not with the Hargroves, the sellers. Under the evidence he could no more have been held guilty of a conspiracy to sell, than could Christian. c/f Lott v. United States, 9 Cir., 205 F. 28, 46 L.R.A.,N.S., 409; Norris v. United States, 3 Cir., 34 F.2d 839; United States v. Katz, 271 U.S. 354, 46 S.Ct. 513, 70 L. Ed. 986; Young v. United States, 5 Cir., 48 F.2d 26.

This is not to say that on different evidence Lambert could not have been found guilty of a conspiracy to sell, and of aiding and abetting in the sale. c/f Smith v. United States, 8 Cir., 50 F.2d 46. It is to say, though, that proof under charges of conspiracy to sell and of selling, that one was acting with the buyer to effect a purchase, is not proof that he was acting with the sellers to effect a sale. Every fact and circumstance in the record points to appellant as an aider and abettor of Christian; not a single one points to him as an aider or abettor of the Hargroves. The District Judge, seeing that this was so, as to the substantive sale counts, 2, 3 and 4, properly instructed a verdict for defendant on these. The jury, seeing that it was so as to the first count, properly acquitted him of aiding and abetting in the sale charged in that count. The same evidence which failed to establish that he aided and abetted in these sales, likewise failed to establish that he was a party with the Hargroves to a conspiracy to make these, or any other sales, of morphine, to Christian.

There was plain error, therefore, apparent on the face of the record in letting the case go to the jury, and in thereafter letting the verdict stand, for which the judgment must be reversed.

There was reversible error, too, in the complained of rulings on evidence, and in the District Judge's actions and comments in the course of the trial.

Directly charged in the indictment with having conspired with the two Hargroves to commit "offenses against the United States, viz. violations of the Harrison Anti-Narcotic Act", defendant was entitled, on cross examination, to sift thoroughly the witnesses against him to show that he had made no agreement with these witnesses to sell morphine to Christian and to make clear all that was said and done and intended. The questions asked and excluded were perhaps too general, and were close to asking the witnesses the very questions the jury were to answer by their verdict. See United States v. Spaulding, 293 U.S. 498, 55 S.Ct. 273, 79 L.Ed. 617; United States v. Sauls, 4 Cir., 65 F.2d 886; Miller v. United States, 5 Cir., 71 F.2d 361, 362; Hamilton v. U. S., 5 Cir., 73 F.2d 357; Walker v. McLoud, 204 U.S. 302, 27 S.Ct. 293, 51 L.Ed. 495. Counsel seemed to think that by rejecting these questions the court was denying him the right to cross examine both positively and negatively. Though we do not think that was the purpose or effect of the rulings, the misunderstanding, pursued by counsel with persistence, perhaps with contumacy, caused so serious and heated a disagreement with the Court and an atmosphere so tense as to hinder, if not entirely prevent, a fair trial.

If it is replied to this that it was the untactful, contentious, disagreeable, and almost personally offensive manner in which appellant's counsel conducted his case which brought down upon him the very mildly disciplinary action of the court, the record plainly shows that appellant's counsel was, in good faith, if not with good judgment, tact and finesse, endeavoring to represent his client to the best of his ability. And in the end it was not counsel, but client, who suffered from his counsel's irascibility and provocativeness, and the District Judge's response to it. In situations of this kind, while the Judge should certainly preserve and protect the dignity of the court the greatest care should be exercised in doing it, so as not to react upon the defendant himself, who at least as to the controversy between court and counsel, is a wholly innocent bystander.

It was error too, to permit testimony as to the purchases of morphine made, and as to prices paid for morphine by appellant long prior to and wholly unconnected with the matters for which he was on trial; as it was to permit testimony as to transactions between appellant and Christian also prior to and unconnected with the indictment charged.

It may not be doubted that in prosecutions for conspiracy, evidence of similar acts committed at or about the same time with a fraudulent purpose, is admissible as bearing on motive or intent in proving a fraudulent or criminal scheme. Johnson v. United States, 6 Cir., 82 F.2d 500. But the evidence offered and complained of here threw no light on appellant's motive or intent in connection with the charges for which he was on trial. Indeed, there was no issue on...