Roberson v. United States

• Citation: 249 F.2d 737
• Decision Date: 25 January 1958
• Docket Number: No. 16626.,16626.
• Parties: Herman ROBERSON, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

249 F.2d 737 (1957)

Herman ROBERSON, Appellant, v. UNITED STATES of America, Appellee.

No. 16626.

United States Court of Appeals Fifth Circuit.

November 22, 1957.

Petition for Rehearing and Motion to Supplement Record Denied January 25, 1958.

COPYRIGHT MATERIAL OMITTED

Wm. J. Fuller, Jr., Montgomery, Ala., for appellant.

Hartwell Davis, U. S. Atty., Montgomery, Ala., Robert E. Varner, Asst. U. S. Atty., Montgomery, Ala., for appellee.

Before RIVES, JONES and BROWN, Circuit Judges.

JONES, Circuit Judge.

The appellant, Herman Roberson, was charged under the Dyer Act, 18 U.S.C.A. § 2313, in four counts of an indictment with receiving stolen motor vehicles which were moving in interstate commerce, and in a fifth count with having sold one of the cars. He was convicted on three of the counts for receiving stolen cars and on the count for selling. The conviction was reversed for a new trial. Roberson v. United States, 5 Cir., 1956, 237 F.2d 536. On a second trial Roberson was convicted on two of the counts for receiving stolen cars and on the count for selling. We now review on appeal this conviction.

On the appeal from the first conviction, one of the assignments of error was based upon the denial by the trial court of a motion for a bill of particulars. It was held that this did not constitute reversible error for two reasons; first, that the motion was filed on the day of the trial rather than ten days after arraignment as required by Rule 7(f), Fed.Rules Crim.Proc., 18 U.S.C.A.; and second, because the United States had furnished counsel for Roberson with the motor numbers of the automobiles involved. 237 F.2d 536, 538. After the mandate of this Court went down and on March 1, 1957, about four weeks before the second trial, the appellant filed an amended motion for a bill of particulars seeking more descriptive identification of the vehicles involved than was set forth in the indictment. The motion was denied and in its order denying the motion the district court held that the furnishing of the motor numbers was sufficient and that the identification of the cars was amply established in the evidence at the former trial, of which a transcript was available to appellant. The purpose of a bill of particulars is to enable a defendant to prepare for trial and to bar subsequent prosecution. Norris v. United States, 5 Cir., 1946, 152 F.2d 808, certiorari denied 328 U.S. 850, 66 S.Ct. 118, 90 L.Ed. 1623. The granting or denial of a bill of particulars rests in the sound discretion of the trial court, and in the absence of abuse of discretion or prejudice, its ruling will not be disturbed. Wong Tai v. United States, 273 U.S. 77, 47 S.Ct. 300, 71 L.Ed. 545; Reynolds v. United States, 5 Cir., 1955, 225 F.2d 123, certiorari denied 350 U.S. 914, 76 S.Ct. 197, 100 L.Ed. 801, rehearing denied 350 U.S. 929, 76 S.Ct. 301, 100 L.Ed. 812; Johnson v. United States, 5 Cir., 1953, 207 F.2d 314, certiorari denied 317 U.S. 938, 74 S.Ct. 632, 98 L.Ed. 1087. Roberson was not surprised. He knew the description of the cars he was charged with receiving and the car he was accused of selling. He was not in any way prejudiced by the trial court's order and its discretion was not abused.

One of the jurors was a friend of some years standing of the United States Attorney prosecuting in the trial. The friendship, though long enduring, was not close nor intimate and their contacts in recent years had been infrequent and casual. It was known to counsel for the appellant, prior to the time the jury was accepted, that the juror and the prosecutor were acquainted but the extent and duration of their acquaintance was not known to him nor was it developed on voir dire. During a recess of the court, the juror and the United States Attorney met in the rest room. The juror asked the prosecutor if the jury could go home that night if the case was not finished. The prosecutor said they could, and went on to say that although he could answer such a question as was asked, he could not discuss the case. The trial court declined to declare a mistrial or grant a new trial and this refusal is assigned as error. A juror is not per se disqualified because he is acquainted with or a friend of counsel in a case, whether advocating the cause of a private litigant or prosecuting in a criminal trial. See 31 Am.Jur. 658 et seq., Jury § 133. No prejudice of the juror was shown at or before the jury was sworn or at any time thereafter. The conversation between the district attorney and the juror was casual, it was in no way related to the issues of the case, no prejudice was shown and it was explained to the trial court. Its discretion was not abused in declining to grant a mistrial and in refusing to grant a new trial.

The appellant took the stand on his own behalf. While being cross-examined by Government counsel, he was asked, "Now, in 1941, on the 28th day of April, were you convicted of distilling and did you receive a sentence of three years?" Objection was made and sustained and the jury was instructed to not consider it. A motion for a mistrial was made and overruled. Later, Government counsel started a question with, "Now, I will ask you this question; On April 28, 1941, were you convicted of —" when he was interrupted by the court. The question was never completed. The court thought that counsel had not gone far enough with the question to require an instruction that it be disregarded. In support of his claim of prejudicial error, the appellant cites Alabama cases holding that a witness cannot be impeached by showing the conviction of a crime which does not involve moral turpitude and that violating prohibition laws is not an offense that does involve moral turpitude. Under the law of Alabama illegal manufacture of intoxicating liquor is punished by a penitentiary sentence of from one to five years. 29 Ala.Code 1940, § 103. In Alabama an offense that may be punished by imprisonment in the penitentiary is a felony. 1 Ala.Code 1940, § 7. Under the Federal law any offense punishable by imprisonment for more than a year is a felony. 18 U.S.C.A. § 1(1). The Alabama rule upon which the appellant relies is not applicable. In a recent opinion this court said:

"Congress has not given the states the power of prescribing the rules of evidence in trials for offenses against the United States. In criminal cases in the federal courts, the admissibility of evidence and the competency and the privileges of witnesses are governed, except when an act of Congress or the Federal Rules of Criminal Procedure otherwise provide, by the principles of the common law as interpreted by the courts of the United States in the light of reason and experience. Rule 26, Federal Rules of Criminal Procedure; On Lee v. United States, 343 U.S. 747, 754, 755, 72 S.Ct. 967, 96 L.Ed. 1270; McNabb v. United States, 318 U.S. 332, 341, 63 S.Ct. 608, 87 L.Ed. 819; Olmstead v. United States, 277 U.S. 438, 468, 469, 48 S.Ct. 564, 72 L.Ed. 944." Pollock v. United States, 5 Cir., 1953, 202 F.2d 281, 285.

See Holtzoff, Reform of Federal Criminal Procedure, 3 F.R.D. 445, 452, et seq. For the purpose of discrediting a witness in a Federal criminal trial it is not improper to show that the witness, including a defendant who has elected to testify, has been convicted of a felony or of a misdemeanor involving moral turpitude. See Pearson v. United States, 6 Cir., 1951, 192 F.2d 681, 699. Cf. Steele v. United States, 5 Cir., 1957, 243 F.2d 712. There was, it seems, some question before the adoption of the Twenty-first Amendment as to whether violations of the prohibition acts involved moral turpitude. See annotations 40 A.L.R. 1049, 71 A.L.R. 219. Since repeal, conducting a business of making, transporting or selling shine and defrauding the Government of taxes is a Federal offense involving moral turpitude. Jordan v. De George, 341 U.S. 223, 71 S.Ct. 703, 95 L. Ed. 886, rehearing denied 341 U.S. 956, 71 S.Ct. 1001, 95 L.Ed. 1377. The unanswered question did not say whether the query contemplated a Federal or State offense. If the latter it might be one which did not involve moral turpitude, but in any event it would have been a felony. There was no error in the question. There would have been no error had the appellant been required to answer it. The appellant has received a better break than that to which he was entitled.

Among the grounds for a new trial, rejected by the trial court, the appellant urged that the district judge was disqualified and this was unknown to appellant during the trial. One of the witnesses for the Government, Hollis Bryant, had been convicted in the Northern District of Alabama of some offense involving the interstate transportation of stolen motor vehicles, and the district judge who presided at the trial of the case before us was the United States Attorney who prosecuted Bryant in the Northern District of Alabama. This is the asserted basis for disqualification. A judge should disqualify himself in any case where he has been of counsel. 28 U.S.C.A. § 455. A United States attorney is of counsel for the Government in criminal prosecutions. United States v. Vasilick, 3 Cir., 1947, 160 F.2d 631; United States v. Maher, D.C.Me.1950, 88 F.Supp. 1007. The case before us was not against Bryant so it does not appear that the letter of the statute would be applicable. But if the cars involved in the trial over which the former United States attorney presided as district judge were the same as those involved in the investigation made and prosecution conducted by him as counsel for the Government, there might have been presented a situation under which the judge should have disqualified himself. A prior knowledge of the facts or a prior interest in an issue arising out of them may be a ground for disqualification. It is not shown that the cars were the same in this case as in the case against Bryant. The contrary is asserted and the statement of the trial judge that the ground is...