Mullins v. United States, 73-1203.

• Decision Date: 16 November 1973
• Docket Number: No. 73-1203.,73-1203.
• Parties: Robert Dale MULLINS, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

487 F.2d 581 (1973)

Robert Dale MULLINS, Appellant, v. UNITED STATES of America, Appellee.

No. 73-1203.

United States Court of Appeals, Eighth Circuit.

Submitted September 12, 1973.

Decided November 16, 1973.

COPYRIGHT MATERIAL OMITTED

Donald E. O'Brien, Sioux City, Iowa, for appellant.

Robert L. Sikma, Asst. U. S. Atty., Sioux City, Iowa, for appellee.

Before GIBSON and BRIGHT, Circuit Judges, and SMITH, Senior District Judge.^*

GIBSON, Circuit Judge.

A grand jury indicted defendant Robert Dale Mullins on 20 counts of mail fraud in violation of 18 U.S.C. § 1341. The District Court dismissed two of the counts before submitting the case to the jury, who found defendant guilty of the remaining 18 counts. The Honorable Edward J. McManus, Chief Judge, United States District Court for the Northern District of Iowa, sentenced defendant to four years imprisonment on each count, the sentences to run concurrently, and suspended three and one-half years of the imprisonment term.

On appeal, defendant urges the following contentions: (1) the assistant District Attorney improperly cross-examined Leo Light, a defense "character" witness, in violation of Gross v. United States, 394 F.2d 216 (8th Cir. 1965); (2) the District Court should have suppressed defendant's business records seized from an office rented by defendant previous to the search; (3) the assistant District Attorney denied defendant a fair trial by allegedly abusing the Omnibus Directives of the United States District Court for the Northern District of Iowa in regard to discovery; (4) the District Court erred in admitting a Government exhibit of a letter by a former employee of defendant relating her reasons for leaving her job with defendant; (5) the District Court should have allowed defense cross-examination of a Government witness, a postal inspector, concerning an alleged felony conviction of a co-defendant, who was not then on trial with defendant; and (6) "character" witness testimony in defendant's favor should not have been limited to the community and time period of the mail fraud scheme. Rejecting each argument, we affirm the judgment of conviction.

Since defendant does not contest the sufficiency of evidence to support the jury's verdict, only a brief factual summary follows. During April and May, 1971, defendant with other business associates rented an office in Marquette, Iowa, from Mrs. McCracken and applied for a post office box in McGregor, Iowa, in order to commence selling magazine subscriptions under the name of States Circulation Service, Inc. (hereinafter States). States sold approximately 2,000 magazine subscriptions between May and September, 1971, and received receipts of over $12,000. No subscriber received his magazines through States, and may subscribers testified that defendant notified them by letters that the subscriptions had been mailed to the publishers but that additional time was necessary before their subscriptions would commence.

Leaving no forwarding address, defendant and his business-associate wife left Iowa during August, 1971, for the Western United States. The rent on the Marquette, Iowa, office was prepaid through October 31, 1971, and States' business records were left behind in the office. During February, 1972, United States postal inspectors, because of numerous complaints, began investigating States and were informed in late February by Mrs. McCracken, States' landlady, that States' business records were still in the Marquette office and that no rent had been paid for the office beginning November 1, 1971. On June 12, 1972, Mrs. McCracken unlocked the door to States' previous office in Marquette for a postal inspector, who seized two boxes of States' business records, some of which were subsequently admitted into evidence over defendant's objection. The District Court denied defendant's motion to suppress States' business records seized by the postal inspector.

Defendant first argues that the Government improperly cross-examined Leo Light, who testified on direct examination concerning the character and reputation of defendant in the magazine subscription business and the fact that he (Light) would have cleared defendant's subscriptions through Light's "clearing house" business, National Literary Association, whether or not defendant had paid for them. To impeach Light's testimony concerning defendant's reputation, the following question was asked:

Would you say that someone who has been terminated for cause, expelled from the Central Registry of Magazine Subscription Solicitors hereinafter Central Registry on two occasions, three different occasions, is a man who would have a good reputation in the magazine industry?

Defendant immediately objected to the question, and contends on appeal that it violated Gross v. United States, supra, since the question, prior to its asking, "had not been shown to the defense counsel, nor had there been an in camera hearing where the same was presented to the Court."

The defendant claims that Gross establishes, in all cases in which defendant has not been informed of a proposed impeaching question of a "character" witness, the procedure of an in camera hearing to evaluate whether the prosecution is acting in good faith when asking questions to impeach a defense "character" witness and whether there is a legitimate basis for the inquiry. Before Light answered the contested question in this case, the District Court held a hearing out of the jury's presence, during which Mr. Gene Ludtke, a postal inspector, testified that he was familiar with Central Registry and that he had personally inspected its records, which showed defendant to have been terminated three times for cause. During the hearing, the Government withdrew the contested question and, after the hearing, the District Court instructed the jury, immediately and in the charge, to ignore the question and also cautioned the jury that the entire line of questioning was only for the purpose of testing Light's credibility as a "character" witness.

Nevertheless, defendant argues that the asking of the question itself, absent a prior hearing out of the presence of the jury, violated Gross and that the Government's withdrawal of the question and the District Court's instructions did not correct the error.

The leading Supreme Court case on impeachment of "character" witnesses, Michelson v. United States, 335 U.S. 469, 69 S.Ct. 213, 93 L.Ed. 168 (1948), noted that the law does not invest a defendant with a presumption of good character, but excludes that matter from the prosecution's case in chief. The law then "gives defendant the option to show as a fact that his reputation reflects a life and habit incompatible with commission of the offense charged, it subjects his proof to tests of credibility designed to prevent him from profiting by a mere parade of partisans." Michelson v. United States, supra at 479, 69 S.Ct. at 220. A character witness may be cross-examined as to an arrest of defendant whether or not it culminated in a conviction and may even be asked about rumors¹ concerning an event not too remote in time. As stated in Michelson: "Defendants in general * * * have no valid complaint at the latitude which existing law allows the prosecution to meet by cross-examination an issue voluntarily tendered by the defense." United States v. Michelson, supra at 485, 69 S.Ct. at 223 (citation omitted).

However, in balancing the interest of the public in protecting the prosecution against a parade of partisan witnesses against the precepts of a fair trial in not introducing collateral and irrelevant matters to the central issues involved, the trial court must take care to ascertain that there is a basis for the impeaching inquiry. In other words, the question should be related to an actual occurrence or a bona fide rumor affecting reputation. Also, of equal importance is the trial judge's function of carefully instructing the jury as to the limited purpose of this type of evidence, which bears only on the impeachment of the character witness' testimony and is not to be taken and considered for any other purpose.

We think the defendant reads Gross too widely. It is true that Judge Vogel summarized the holding in Gross as follows:

It is our conclusion that when the prosecution attempts to attack the credibility of the defendant\'s character witnesses by questions beginning "Have you heard this" or "Have you heard that", that there should be a prior showing, out of the hearing of the jury, establishing to the trial judge\'s satisfaction the truth of the basis for such inquiry and, further, cautionary and guiding instructions should be given, preferably both at the time of the inquiry and in the closing charge to the jury.

Gross v. United States, supra 394 F.2d at 223 (citations omitted) (emphasis added).

However, Gross acknowledged the general rule set forth in Michelson, that "rarely and only on clear showing of prejudicial abuse of discretion will Courts of Appeals disturb rulings of trial courts on this subject"² and then went on to determine that Gross offered one of those rare circumstances where prejudicial abuse of discretion had been clearly established, pointing out that the trial judge took no precautions to ascertain the truth of the basis for the question prior to or after the cross-examination. To compound matters in Gross, no cautioning instruction was given to the jury concerning the cross-examination either at the time of the inquiry or in the court's final charge. Gross went on to point out the difference in Goodman v. United States, 273 F.2d 853 (8th Cir. 1960), which was also authored by Judge Vogel, finding no abuse of discretion by the District Court where the impeaching question had been first propounded to the character witness before the Government produced evidence of its veracity.

Gross emphasized:

The cross-examination in this case plus the failure to ascertain, out of the presence of

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