Smith v. United States

• Decision Date: 25 May 1956
• Docket Number: 15646.,No. 15645,15645
• Citation: 234 F.2d 385
• Parties: Karl L. SMITH, Appellant, v. UNITED STATES of America, Appellee (two cases).
• Court: U.S. Court of Appeals — Fifth Circuit

234 F.2d 385 (1956)

Karl L. SMITH, Appellant, v. UNITED STATES of America, Appellee (two cases).

Nos. 15645, 15646.

United States Court of Appeals Fifth Circuit.

May 25, 1956.

J. Danforth Browne (of Macfarlane, Ferguson, Allison & Kelly), Tampa, Fla., for appellant.

James R. Billingsley, Atty., U. S. Department of Labor, Washington, D. C., James L. Guilmartin, U. S. Atty., Miami, Fla., for appellee.

Before TUTTLE, CAMERON and JONES, Circuit Judges.

TUTTLE, Circuit Judge.

These two appeals challenge the legality of judgment and sentence imposed on appellant following trial of the two cases, combined by agreement of the parties. The first case, a prosecution commenced by the filing of an information, charged violation of the criminal provisions of the Fair Labor Standards Act, 29 U.S.C. A. § 201 et seq., and the second, commenced by indictment, charged violation of § 1503 of the Criminal Code which prohibits corruptly endeavoring to influence, intimidate or impede a witness in a federal court, or influence, obstruct or impede the administration of justice.

The government accepts appellant's statement of the case, so we present it pretty much as outlined by the appellant.

Cause No. 15,645 is the appeal of Karl L. Smith from the judgment of the United States District Court for the Southern District of Florida, Tampa Division, in case No. 6157-T-Cr. wherein the appellant was adjudged guilty of employing certain persons in production of goods for interstate commerce for work-weeks longer than forty hours without paying such employees for hours in excess of forty at a rate not less than one and a half times the regular rate; and that he did unlawfully discharge a certain employee because said employee had filed a complaint with, and gave testimony to, the Wage and Hour and Public Contracts Divisions of the U. S. Department of Labor; and that he did unlawfully transport, ship and sell in interstate commerce certain goods in the production of which employees were employed in violation of Section 7 (requiring overtime compensation) of the Fair Labor Standards Act, 29 U.S.C.A. § 207 (hereinafter referred to as the "Act"); which offenses are in violation of Title 29, § 215(a) (2), (3), (1) U.S.C.A., Section 15(a) (2), (3) and (1) of the Act.

Cause No. 15,646 is the appeal of Karl L. Smith from a judgment in the United States District Court for the Southern District of Florida, Tampa Division, in case No. 6424-T-Cr. In that case the appellant was adjudged guilty of corruptly endeavoring to influence, intimidate and impede certain witnesses in the case of the United States v. Karl L. Smith, No. 6157-T-Cr., then pending for trial in the District Court of the United States for the Southern District of Florida, in violation of Title 18, Section 1503, U.S. C.; and was adjudged guilty of corruptly endeavoring to influence, obstruct and impede the due administration of justice in that on or about the 21st day of March, 1953, he presented to the Assistant United States Attorney, an officer of the United States District Court for the Southern District of Florida, false affidavits and other communications concerning the case of United States v. Karl L. Smith, Criminal Action No. 6157-T, well knowing that the said case was pending trial in the said court, in violation of Title 18, Section 1503, U.S.C., and knowing the affidavits to be false.

The Information and the Indictment were consolidated for trial at the request of counsel for the United States and at the request of the defendant Karl L. Smith.

Throughout these proceedings to the date of filing notices of appeal, the defendant was without counsel, representing himself in propria persona. There is no contention that appellant was denied any constitutional right by reason of not having counsel, since the choice was his own, freely and knowingly made.

The appellant, Karl L. Smith, was alleged to have been engaged in the operation of the Lone Palm Preserving Company at Palma Sola, Florida, a cross-roads village located approximately four miles from the City of Bradenton in Manatee County, Florida. The Lone Palm Preserving Company was engaged in the preparation and distribution of guava jellies and preserves. It was alleged that substantial portions of those guava jellies and preserves produced by Lone Palm Preserving Company were transported and shipped to many points outside the State of Florida.

The Wage and Hour and Public Contracts Divisions of the United States Department of Labor made an investigation of that business operation, Lone Palm Preserving Company, on various dates between August 27, 1951 and April 16, 1952. As a result of that investigation, the appellant was charged in a Criminal Information filed March 19, 1953, with five violations of the Fair Labor Standards Act; Count one of that Information alleging failure to pay minimum wage; Count two alleging failure to pay proper overtime compensation; Count three alleging discriminatory discharge; Count four alleging failure to keep records; and Count five alleging shipments in interstate commerce when in violation of the overtime section of the Act.

The United States dismissed Counts one and four, and at the trial on the charges otherwise alleged in the information, the appellant was convicted of Counts two, three and five.

Subsequent to the filing of the Criminal Information on March 19, 1953, towit the 21st day of March, 1953, the appellant prepared and obtained signed statements from several persons involved in the charges outlined in the Criminal Information. Said statements were ostensibly taken under oath and were presented by the appellant sometime about the 25th of March, 1953 to the Assistant United States Attorney in Tampa, Florida.

On November 18, 1954, the appellant was indicted on the basis of the affidavits in five counts alleging violations of Title 18 U.S.C. § 1503. In substance the indictment alleges that the affidavits constituted a corrupt endeavor on the part of the appellant Karl L. Smith to influence, intimidate and impede certain witnesses in the case of the United States v. Karl L. Smith, Criminal Action No. 6157-T, and that said defendant did corruptly endeavor to influence, obstruct and impede the due administration of justice in that the affidavits and statement were presented to the Assistant United States Attorney for the Southern District of Florida and were false.

Upon the trial of the charges alleged in the indictment, the appellant was convicted on Counts two, three, four and five and was acquitted on Count one.

The alleged errors are: (1) the defendant was prejudiced by reason of the fact that the trial judge on numerous occasions commented on the fact that the defendant had a right to testify in his own behalf; (2) the defendant was prejudiced by reason of the fact that the United States Attorney suggested in his argument that the defendant had not taken the witness stand in his own behalf; (3) the court erred in consolidating the cases for trial; (4) the verdicts were supported neither by substantial evidence nor by the weight of the evidence.

At the outset, it is appropriate to note that except for the fact that the appellant went to trial without counsel, any appellate court would be required to affirm these convictions without consideration of the points raised, because in no case did the appellant follow the basic requirements, universally recognized, to present for review the errors complained of. He made no timely objections; he made no motion for mistrial; he made no objections to the challenged actions of either trial judge or United States Attorney; and he made no timely or proper motion for new trial or for directed verdict.

In these circumstances we might well repeat what we said in Smith v. United States:¹

"One reason the courts have found that assistance of counsel or an intelligent and competent waiver of such assistance is essential to due process in a trial under our Constitution is that the many technicalities of trial may sometimes affect the opportunity of the accused to have a real review of his trial on appeal. Johnson v. Zerbst, supra 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461. Once it is found, however, that such an accused has properly waived his right to counsel, the effects flowing from that decision must be accepted by him, together with the benefits which he presumably sought to obtain therefrom. * * *"

Upon such authority we might well be justified in dismissing the appeal for failure to present any grounds of error of which we could take notice. In what may be considered an excess of concern for the protection of the rights of appellant under the peculiar circumstances of this case, however, we proceed to a consideration of the points he relies on.

Here the court demonstrated great patience and unusual tolerance with the accused who undertook to combine argument, testimony in his own behalf, and interrogation of witnesses. The trial court would not conceivably have tolerated the self-serving statements made by the accused and his flat denials of statements made by witnesses, and his irrelevant comments, if made by a lawyer. In fact, the criticism now levelled at the trial court for referring to the right of the accused to testify in his own behalf arose entirely from the court's patient explanation, repeatedly made to Smith as he purported to cross examine government witnesses, that he could not argue with them or dispute them, as he repeatedly did, but that if he wanted to get his views to the jury he ought to take the witness stand. There is no merit in the contention that the court prejudiced appellant by any of such statements or by all of them taken together.

With respect to the charge that the United States Attorney suggested that the accused should have taken the witness stand, the statement complained of is not, we think, susceptible of that construction. He said:

"And he continuously talks about these `criminal

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