Ray v. United States

• Decision Date: 22 November 1966
• Docket Number: No. 18235.,18235.
• Parties: Loyd Carl RAY, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

367 F.2d 258 (1966)

Loyd Carl RAY, Appellant, v. UNITED STATES of America, Appellee.

No. 18235.

United States Court of Appeals Eighth Circuit.

October 21, 1966.

Rehearing Denied November 22, 1966.

Gerald H. Galligan, of Galligan & Foley, Denver, Colo., for appellant.

Stephen H. Gilmore, Asst. U. S. Atty., St. Louis, Mo., for appellee. Richard D. FitzGibbon, Jr., U. S. Atty., St. Louis, Mo., was with him on the brief.

Before VOGEL, Chief Judge, and VAN OOSTERHOUT and LAY, Circuit Judges.

LAY, Circuit Judge.

Loyd Carl Ray was indicted on eleven counts of mail fraud under Title 18, U.S.C. § 1341 in April of 1964. The indictment charged that Ray acting under the alias of Willard T. Morton, set up a scheme to defraud a number of citizens by use of the mails. The scheme involved was to induce prospective purchasers to buy tours to Hawaii. A travel agency office was set up in St. Louis. Two salesmen and a secretary were hired by Morton. Brochures and various mailings were sent out to attract a clientele. The tours cost $485.00 each and were scheduled for December of 1963. Just before the trips were to take place, one called the Christmas Trip and the other the New Years Trip, the pre-trip parties were called off. The clients never received any tickets to go on the trip or any of their money back. The travel agency closed and Morton disappeared. The government claimed there was never any intention to provide the tours and that the defendant, Loyd Carl Ray, was the same Willard T. Morton who perpetrated the fraud.

Ray denied that he was Willard T. Morton and also denied that he was ever in St. Louis during the time the mail fraud took place. He produced relatives and lay witnesses to establish that he was in Denver at all times in question. Ray operated a travel agency in Denver during the same period of time (October-December, 1963).

This case was originally tried in September 1964, and ended in a hung jury. A new trial was ordered. On October 25, 1965, the second trial began. A jury returned a verdict against the defendant Ray on nine of the eleven counts of the indictment.

Mr. John Goodwin, a St. Louis attorney, was appointed in 1964 to represent Mr. Ray before the first trial. He acted as defense counsel in both trials. During the course of the second trial Mr. Goodwin was reappointed under the Criminal Justice Act, Title 18, U.S.C. § 3006A as amended.¹ Mr. Ray at that time qualified as an indigent under the Act. Appellant has retained other attorneys to perfect this appeal.

Prior to the first trial, a motion for a bill of particulars under Fed.R.Crim.P., Rule 7(f) was submitted on behalf of Ray, which contained the following inquiry:

"Please state the basis upon which it is alleged in the indictment that the said Willard T. Morton is the same person as the defendant Loyd Carl Ray?"

The court sustained the government's objection to this question. No further motion for a bill of particulars was filed before the second trial. No error is alleged herein as to the court's ruling on the first bill of particulars submitted.

In the first trial the government used certain handwriting experts, as well as a number of lay witnesses, who identified Ray and Morton, the proprietor of the Willard T. Morton Travel Agency, to be one and the same person.

In the second trial the government used the same lay witnesses and produced two new witnesses who were handwriting and fingerprint experts as well. These experts, Simeon Wilson from Chicago, Illinois, and Donald Gilbert Mooney of Washington, D. C., were both connected with the Post Office Department Identification Laboratory. They compared Ray's handwriting with that of Morton and determined that they were written by the same hand. In addition, they testified that Ray's fingerprints were the same as those taken from certain documents and a book that had been in the possession of Morton in St. Louis. Outside of the testimony concerning the fingerprints, it is agreed the evidence produced at both trials was generally the same.

Appellant raises two points of error on this appeal. First, the court erred in making certain comments prejudicial to Ray depriving him of a fair and impartial trial. Secondly, the appellant was deprived of his rights under the Criminal Justice Act of 1964, 18 U.S.C. § 3006A (e), as amended.

Appellant calls our attention to the trial court's examination of the first witness Shannon. After recross examination the following questions and answers took place:

"The Court: Now, Mr. Goodwin is asking you about Morton, and Mr. Gilmore is asking you about the defendant. Do you distinguish between Morton and the defendant?

"The Witness: I think I did in relation —

"The Court: Are they the same person?

"The Witness: They are the same person, as far as I am concerned. Yes, sir.

"The Court: All right.

"The Witness: Mr. Ray is Morton to me.

"The Court: Any other questions, gentlemen?

"Mr. Gilmore: No further questions.

"The Court: All right. Step down."

There was no objection made at the time of this examination.

It is obvious from this interrogation the trial court wanted to know if the particular witness distinguished between Morton and the "defendant", Ray. One of the chief roles of the trial judge is to see that there is no misunderstanding of a witness's testimony. The judge has a duty to comprehend what a witness says as much as it is his duty to see that the witness communicates with the jury in an intelligible manner. A trial judge can do this in a fair and unbiased way. His attempt to do so should not be a basis of error. Where the testimony is confusing or not altogether clear the alleged "jeopardy" to one side caused by the clarification of a witness's statement is certainly outweighed by the desirability of factual understanding. The trial judge should strive toward verdicts of fact rather than verdicts of confusion. There is certainly no error on this point. McCoy v. Blakely, 8 Cir., 217 F.2d 227; Nat'l Dairy Products Co. v. United States, 350 F.2d 321 (8 Cir. 1961).²

During the course of the cross examination of the expert Wilson, Mr. Goodwin asked the witness:

"Q. And you and Mr. Schicker (post office inspector) actually have the same employer, do you not, sir?

"A. Sure.

"Q. Post Office?

"The Court: So does Mr. Gilmore (government prosecuting attorney) and so do I.

"Mr. Goodwin: Well, I don\'t — that is all."

After recross by Mr. Goodwin with the expert Wilson, the court questioned the witness. Appellant contends this is further error. The court's interrogation was prompted by Mr. Goodwin's last question to the witness, which was as follows:

"Q. What you were saying is that you were trying to say that there is a mathematical probability here. It is by no means a certainty?

"A. That would be correct."

The court then asked the following questions:

"The Court: Well, it is a mathematical probability based on your judgment as an expert in this field, isn\'t it?

"A. This is correct.

"The Court: And have you ever found where these mathematical probabilities existed —

"Mr. Goodwin: If the Court please, I\'d like to object to this.

"The Court: Well, I want to get it straight in the record. Go ahead and make your objection.

"Mr. Goodwin: My objection has been covered by counsel for the Government and by myself. I think the Court unduly emphasizes something which the Government is trying to emphasize, and gives weight to it.

"The Court: The Court has the duty, Mr. Goodwin, to see that justice is done, and that is what the Court is attempting to do. (our emphasis)

"Mr. Goodwin: If the Court please, I meant no disrespect. I meant no disrespect to Your Honor.

"The Court: I am just telling you what I am going to do, and I got it in the record so we don\'t have any mistake about our respective positions.

"Mr. Goodwin: My objection again to His Honor\'s comment.

"The Court: Now, Mr. Wilson, based on this mathematical probability, have you an opinion as to whether or not these prints were made by the same finger, or thumb in this case?

"The Witness: May I put it this way, Your Honor? The possibility that these two patterns could occur coincidentally in the hands of two different individuals is so remote as to be unworthy of any serious consideration."

Counsel's attempt to end his cross examination on a strong point was virtually destroyed. But Mr. Goodwin perseveres and succeeds when, in a few short additional questions, the witness admits:

"In the final analysis, this is for the jury to decide whether the prints are in fact identical or not."

The error raised is not so much the examination by the court but the fact the court stated he wanted to "see that justice was done."

A federal judge has the right to comment fairly upon the evidence. Kansas City Star Co. v. United States, 8 Cir., 240 F.2d 643, cert. denied 354 U.S. 923, 77 S.Ct. 1381, 1 L.Ed.2d 1438; Woodring v. United States, 311 F.2d 417; Batsell v. United States, 8 Cir., 217 F.2d 257. Such right is derived from the common law. Vicksburg & M. Railroad Co. v. Putnam, 118 U.S. 545, 546, 7 S.Ct. 1, 30 L.Ed. 257 (1886); Capital Traction Co. v. Hof, 174 U.S. 1, 19 S.Ct. 580, 43 L.Ed. 873 (1898). The court in the Putnam case states:

"In the courts of the United States as in those of England, from which our practice was derived, the judge, in submitting a case to the jury, may, at his discretion, whenever he thinks it necessary to assist them in arriving at a just conclusion, comment upon the evidence, call their attention to parts of it which he thinks important, and express his opinion upon the facts; * * *"

However, as we have pointed out in the Woodring case, this is a right which the trial court must cautiously exercise since it can very easily result in prejudice to a litigant's rights. This is particularly true in a criminal case where life or liberty may be in jeopardy. The trial court's comments can disturb the balance of fairness of a jury trial. He should never assume the role of the...