Osborne v. United States

• Decision Date: 12 October 1965
• Docket Number: No. 17702.,17702.
• Citation: 351 F.2d 111
• Parties: Alfred H. OSBORNE, Sr., Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

351 F.2d 111 (1965)

Alfred H. OSBORNE, Sr., Appellant, v. UNITED STATES of America, Appellee.

No. 17702.

United States Court of Appeals Eighth Circuit.

August 30, 1965.

Supplemental Opinion on Rehearing and Motion to Remand Denied October 12, 1965.

Robert G. Duncan, of Simon & Pierce, Kansas City, Mo., Kelso Journey, Clinton, Mo., for appellant.

Herbert W. Titus, Sp. Asst. U. S. Atty., Kansas City, Mo., F. Russell Millin, U. S. Atty., and Calvin Hamilton, Asst. U. S. Atty., Kansas City, Mo., for appellee.

Before VAN OOSTERHOUT, BLACKMUN and MEHAFFY, Circuit Judges.

VAN OOSTERHOUT, Circuit Judge.

Defendant Alfred H. Osborne, Sr., hereinafter frequently referred to as defendant, has appealed from his conviction and sentence upon each of two counts of an indictment. Count I charges defendant with conspiracy with Richard J. Leu, Mary Lee Dorrell and Dickie Dean Crouch to rob certain banks in violation of 18 U.S.C.A. §§ 371 and 2113. Count II charges Leu with robbing the First State Bank of Dearborn, Dearborn, Missouri, a federally insured bank, and the defendant and Dorrell and Crouch with aiding and abetting the robbery in violation of 18 U.S.C.A. §§ 2 and 2113.

Leu, Dorrell and Crouch entered pleas of guilty upon both counts prior to defendant's trial. Defendant Osborne entered a plea of not guilty and was tried to a jury and found guilty upon both counts. His post-judgment motions were denied and sentence was imposed.

Defendant by motion after his trial raised the issue that he was mentally incompetent at the time of his trial. The court committed the defendant to the Medical Center at Springfield, Missouri, for mental examination and thereafter held a full hearing upon defendant's competency at time of trial. The court determined defendant Osborne to have been competent during the period of his trial. No issue is raised on this appeal on the mental competency.

Defendant at the trial made timely motions for acquittal on the ground of insufficiency of evidence to support a conviction upon either count. Defendant in his present appeal does not raise the sufficiency of the evidence issue. Consequently, we deem it unnecessary to engage in a detailed discussion of the voluminous evidence.

Leu, Dorrell and Crouch testified at the trial. It is undisputed that Leu robbed a number of banks as charged, that Dorrell participated in such robberies and that Crouch participated in the Dearborn bank robbery. It is not claimed that Osborne took an active part in any actual robbery. There is, however, substantial evidence by the co-conspirators that Osborne had an active part in planning the robberies; that he secured Crouch as a participant; that he arranged for the deposit of funds secured from the robberies in the account of American Credit Associates in which he and Leu had an interest; that he arranged to be in Los Angeles at or shortly after each California robbery to arrange for the deposit of the proceeds; that he had full knowledge of the source of the funds and that he received a portion thereof for his own use.

Defendant did not testify at his trial. His position is that he had no connection with the robberies; that he gave information to the Kansas City police which led to the indictment and conviction of his co-defendants. In the statement first made by the co-defendants to officers, Osborne was not implicated in the robbery. Defendant's theory is that his co-defendants falsely implicated him as a means of revenge for his informing upon them.

The testimony of Leu, Dorrell and Crouch clearly implicates Osborne in the offenses charged. There is corroborating evidence in the form of plane tickets, motel registrations, and bank deposits which corroborates the co-conspirators' testimony that Osborne traveled to California at about the time of each robbery. We believe the validity of the conviction turns upon the credibility of the testimony of the alleged co-conspirators. To avoid repetition, additional facts will be developed during the course of the opinion.

Defendant raises six points as a basis for reversal. Both in the brief and oral argument, defendant has placed greatest stress upon his first point. Inasmuch as we believe the case must be reversed on this point, we will confine our discussion largely thereto. The first point is that a transcript of testimony given to a federal grand jury in California by Leu and Dorrell, which had not been offered or admitted in evidence at defendant's trial, was delivered to the jury by the court clerk, and that highly prejudicial and inadmissible evidence is contained in such transcript and that error in delivering such transcript to the jury has deprived defendant of a fair trial.

This error was raised in defendant's motion for a new trial which was denied by the trial court. The court's ruling contains no discussion of this issue.

The grand jury transcript in question has an involved history. The transcript containing the grand jury testimony of Leu and Dorrell had been made available to and was in the possession of the United States Attorney prosecuting this case. Defendant first requested the production of this transcript at a pretrial hearing. Such request was properly denied on the ground that it was premature. Defendant renewed the request during Dorrell's examination as a witness. The court denied the request upon the ground the grand jury testimony was confidential and that it could be released only by the California federal court in which the grand jury sat. With the cooperation of the United States Attorney, the California federal court judge authorized Judge Beck, who was presiding over this trial, in his discretion to release the transcript to the defendant for inspection and use in cross-examination. The transcript had been submitted to Judge Beck who had examined it in camera. It was sealed in an envelope marked Exhibit C-19. Judge Beck ruled that the transcript should be submitted to the defendant and at the suggestion of the United States Attorney, he released only the portion of the transcript relating to Dorrell's testimony and directed that the defendant's examination thereof be made in the courtroom. Defendant did use the transcript in cross-examining Dorrell and secured her admission with respect to making certain statements contained in the transcript which were believed to be inconsistent with her testimony at the trial. The transcript was not offered in evidence and it was returned to the Government.

During Leu's testimony, defendant asked for the grand jury transcript as to him. The court, after examining Leu's grand jury testimony, expressed doubt whether there was any inconsistency with his testimony at the trial but directed that the transcript, which then bore the identification Defendant's Exhibit 47, be given defendant. The record shows nothing with relation to marking the exhibit or who requested that it be so identified. Defendant examined the exhibit but made no use whatsoever of the transcript in the cross-examination of Leu. While Leu was on the witness stand, the following colloquy took place:

"The Court: For the purpose of the record, on the transcript of the proceedings before the Grand Jury, a copy of that transcript having been delivered to counsel for the defendant, as I understand it you are now returning it to counsel for the government?

"Mr. Simon: We have, Your Honor. We have returned to the Clerk, Exhibit D-47, the transcript.

"The Court: And you have no further use for it?

"Mr. Simon: We have no further use of it."

At the time of the hearing upon defendant's motion for new trial, it was stipulated that the transcript containing the grand jury testimony was in fact taken by the jury into the jury room. The record there made in part reads:

"The Court: What was the record on that? You offered it?

"Mr. Duncan: If my recollection serves me correct, Judge, the exhibit was never introduced.

"The Court: It was marked?

"Mr. Duncan: Yes, it was marked.

It was Defendant's Exhibit 47.

"The Clerk: And shows received.

"The Court: At whose instance, upon whose motion?

"The Clerk: I don\'t have that, Your Honor. As I recall, it was received partially on Mary Dorrell\'s testimony and later on it was received in full."

We have carefully examined the record, which is not satisfactorily indexed, with respect to exhibits and find no record whatsoever of the offer in evidence of Exhibit D-47 or any order or stipulation with respect to its admission. Absent such record, the unclear and unsatisfactory explanation of deputy clerk Cook as to his record showing admission carries little weight. Defendant's counsel denied they offered the exhibit in evidence. The Government makes no claim that either party offered the exhibit in evidence.

The delivery to the jury for their consideration of an exhibit not received in evidence constitutes error. Sawyer v. United States, 112 U.S.App.D.C. 381, 303 F.2d 392, 395; United States v. Grady, 7 Cir., 185 F.2d 273; United States v. Douglas, 7 Cir., 155 F.2d 894, 896. In Douglas, two affidavits attached to the information containing proof in support of the charges were given to the jury along with the information. As a basis for reversal, the court states:

"In fact, we think that there would be no difference in effect or result if the transcript of the testimony given before a grand jury as the basis for an indictment was submitted to the trial jury. Surely no one would seriously contend but that such procedure would constitute prejudicial error."

The Government in its brief asserts that no prejudicial error was committed in giving to the jury the transcript of the grand jury testimony, Exhibit D-47, for reasons which we have summarized as follows: (1) The record supports an inference that attorneys for both sides reviewed all exhibits prior to the delivery of the exhibits to the jury and hence any error in the delivery of Exhibit D-47 to the jury was waived. (2) Any error committed was...