Pekar v. United States

• Decision Date: 04 April 1963
• Docket Number: No. 19676.,19676.
• Parties: Charles Basil PEKAR, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

315 F.2d 319 (1963)

Charles Basil PEKAR, Appellant, v. UNITED STATES of America, Appellee.

No. 19676.

United States Court of Appeals Fifth Circuit.

April 4, 1963.

Charles E. Watkins, Jr., Atlanta, Ga., for appellant.

Robert H. Newman, Asst. U. S. Atty., Alfred E. Sapp, Asst. U. S. Atty., Miami, Fla., Edith House, U. S. Atty. for the Southern District of Florida, for appellee.

Before TUTTLE, Chief Judge, WOODBURY,^* Chief Judge, and BELL, Circuit Judge.

TUTTLE, Chief Judge.

This is an appeal from the conviction and sentence of appellant on six counts of an indictment charging him with being in possession of personal effects which he knew had been stolen after having been in possession, as baggage, of a common carrier for interstate transportation in violation of Section 659 of Title 18 U.S.C. Sentences aggregating fifteen years were imposed on the appellant.

The principal ground urged by appellant for the reversal of his conviction was the failure of the trial court to exclude from evidence the articles of personal belongings that were discovered by Federal investigative agents while in appellant's hotel room which they visited and discovered without a search warrant and without an arrest.

Equally serious is the ground that the trial court erred in overruling a motion for mistrial filed on appellant's behalf when it was made to appear that during one of the recesses during the trial the Assistant United States Attorney prosecuting the case sat down in the corridor with one or more jurors and carried on a lengthy conversation, dealing with the juror's business "and other matters". It is not contended that the attorney mentioned the case on trial.

Because of the significance of the conduct of the prosecuting attorney in the conduct of the trial of criminal cases, we are impelled to discuss first the improper communication with the juror as a ground for reversal of the conviction. As is customary in the Federal Courts, the jury was not immured from access by the public during recesses in the trial, and after the recess for lunch on the day of trial the following exchange took place between counsel and the trial judge.

"MR. LEHMANN: (Counsel for appellant) I have something that I don\'t believe concerns the jury, but I believe should go on the record, however.

(Thereupon counsel for the respective parties and the Reporter approached the Bench and the following proceedings were had out of the hearing of the jury:)

"MR. LEHMANN: I saw what purported to be a conversation between Mr. Newman, the Government prosecutor, and Juror No. 331, the insurance agent, Mr. Wittenstein, who is Juror No. 7 at the box. And, of course, although innocent as it may be, I did observe that.

"The defense is of the opinion that private communications between a juror and either counsel for the prosecution or the defense, without both of them being present, is prejudicial error and might be a basis for a mistrial. And I request — If I am wrong, I thought I did see you out there sitting at the table — or, at the chair in the hallway before coming back into the recess.

"And I request that if a conversation was going on — To me, upon best information and belief, a conversation was in process. And I request that if there was a conversation in process that the substance of the conversation be stated into the record.

"I am not moving for a mistrial at this time, but I would, if such a conversation did exist, I would request it to be stated for the record at this time. And, if I am wrong, why, please correct me.

"THE COURT: That is something I know nothing about.

"MR. LEHMANN: I observed that and I —

"MR. NEWMAN: We were sitting outside and talking, your Honor, in the hallway about the bonding business and other matters. I think I have said, `Hello\' to almost every juror since we have started this case.

"THE COURT: The law is that the jury will observe the admonitions I gave them and not talk about the case.

"MR. LEHMANN: I am aware of that. And the fact that saying, `Hello,\' to a juror is one thing — carrying on a conversation. I, as an Attorney, am very reluctant to carry on a conversation with any juror unless I specifically request opposing counsel to join in that conversation.

"Now, if Mr. Newman was talking about the bonding business, I don\'t know whether that is in connection with any bonding business of your own, or the bonding business in connection with the courts.

"Since Mr. Wittenstein is an insurance agent, I feel that it is a matter that might be prejudice in this case as him sitting as a juror.

"And I request that Mr. Newman state in more detail, with the Court\'s permission, as to what the nature of this bonding business conversation was.

"MR. NEWMAN: Well, if I can remember, I did not pay much attention to it. He said he was in the bonding business in Broward County. He told me where his offices were and he named some of the companies he represents. And he does not write any criminal bonds. He mentioned that. He writes mostly construction bonds, and things of that type.

"And I don\'t recall much more than that. It was just a general conversation about his business, not the bonding business but the insurance business he is in.

"THE COURT: Not about the case.

"MR. NEWMAN: He said he had nine employees working for him. He said he had a comfortable living. He wrote a bond this morning for $161,000. Someone called him about a building that they started three weeks ago and he charged them a percent one one-half interest on the bond.

"He said that he makes, I think, a third of what he charges as a premium in writing these bonds. I believe he said he had two or three salesmen working for him and the rest are clerical help to fill out forms, and things of that type.

"He has power of attorney from several bonding companies to do these bonds.

"I do not recall anything else. That was the general mode of the conversation.

"THE COURT: Is that all you wanted for the record?

"MR. LEHMANN: Yes. At this time, on the basis of what was stated, I make a motion for a mistrial.

"THE COURT: Which motion will be denied.

Thus, without even admonishing counsel as to the impropriety of his saying "Hello" to every member of the jury and sitting down and engaging in a conversation with one of them, presumably in the presence of any others who were passing through the corridors, the trial court permitted the case to go then to the jury, one of whose members at least had established a social contact with the prosecuting attorney. Such conduct is not only inexcusable, it is clear grounds for the setting aside of a conviction. It is not surprising that very few cases can be found in the Federal Courts where this subject is discussed. This is because such conduct is rare. However, the language used by the Supreme Court in Mattox v. United States, 146 U.S. 140, at page 150, 13 S.Ct. 50, at page 53, 36 L.Ed. 917, sets the standard. "Private communications possibly prejudicial, between jurors and third persons, or witnesses, or the officer in charge, are absolutely forbidden, and invalidate the verdict, at least unless their harmlessness is made to appear."

In Palmer v. Miller, 60 F.Supp. 710, a District Court case which was presided over then by the learned trial judge who conducted the trial now before us for review, the court had occasion to comment on the impropriety of counsel for one of the parties to a civil case conducting a conversation with the jury during the intermissions of the court. The Court there quoted from the Missouri case of McGraw v. O'Neal, 123 Mo.App. 691, 101 S.W. 132, 137, as follows:

"It is the duty of litigants and their attorneys to refrain, while the trial is in progress, from seeking the companionship of jurors during the necessary adjournments and recesses. They should avoid even the appearance of evil, and, when it is brought to the attention of the trial judge that any person interested in the result of the cause on trial is attempting to court favor with jurors by any sort of attention, a prompt and sufficient rebuke should be administered, and should it appear that a party or his counsel with improper design has succeeded in bestowing favor on a juror, though it consists of nothing more than social attention, a verdict in favor of the offending party should be set aside."

In the case of Palmer v. Miller the trial judge then commented as follows:

"Attention is called to the above case, not with the idea that the facts become so important in the present case, for the reason that on other grounds a new trial should be granted, but the admonitions of the opinion should be kept in mind generally by litigants and their attorneys in trying cases."

Since the rule as quoted above is clearly the universal understanding of the proprieties in the conduct of a civil trial, a fortiori it must be recognized that even a stricter standard, if possible, is required in a criminal case.

The appellant preserved the point for our review by making a motion for mistrial when this conduct was called to the Court's attention. Even if he did not do so, it is of such importance in the administration of justice that this court would be under the duty of noticing it as plain error under F.R.Crim.P. 52(b).

Since this court is remanding the case for a new trial, however, it becomes appropriate for us to comment on the other ground of appeal. The same question will be before the trial court on remand and, since we conclude that the court erred in not suppressing the evidence found as a result of the search in Pekar's hotel room at the time of the original visit by the F.B.I. agents, we proceed to answer the question.

Taking the evidence adduced on the motion to suppress the evidence most strongly in favor of the Government, the trial Court could find the following facts. The F.B.I. had been notified by one of the commercial airlines in Miami that several pieces of luggage had been missing from the air terminal there. On further...