U.S. v. Knight, s. 73--1271

• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)
• Writing for the Court: Before TAMM, LEVENTHAL and ROBINSON; PER CURIAM
• Citation: 509 F.2d 354,166 U.S. App. D.C. 21
• Parties: UNITED STATES of America v. Arthur B. KNIGHT, Appellant. UNITED STATES of America v. Robert L. JOHNSON, Appellant. UNITED STATES of America v. Haywood T. KIRKLAND, Appellant.
• Docket Number: 73--1272 and 73--1274,Nos. 73--1271,s. 73--1271
• Decision Date: 14 January 1975

Page 354

509 F.2d 354 166 U.S.App.D.C. 21 UNITED STATES of America
v.
Arthur B. KNIGHT, Appellant.
UNITED STATES of America
v.
Robert L. JOHNSON, Appellant.
UNITED STATES of America
v.
Haywood T. KIRKLAND, Appellant. Nos. 73--1271, 73--1272 and 73--1274. United States Court of Appeals,
District of Columbia Circuit. Argued March 5, 1974.
Decided Dec. 13, 1974.
Rehearing Denied Jan. 14, 1975.

Page 356

Regina C. McGranery, Asst. U.S. Atty., with whom Harold H. Titus, Jr., U.S. Atty. at the time the brief was filed, John A. Terry and David G. Latimer, Asst. U.S. Attys., were on the brief, for appellee.

Michael A. Mulroney, Washington, D.C. (appointed by this Court), was on the brief, for appellant in No. 73--1271.

Walter D. Haynes, Washington, D.C. (appointed by this Court), was on the brief, for appellant in No. 73--1272.

John A. Shorter, Jr., Washington, D.C., for appellant in No. 73--1274 and argued for all appellants.

Before TAMM, LEVENTHAL and ROBINSON, Circuit Judges.

PER CURIAM:

Appellants were convicted in 1970 of several counts arising from the robbery of a mail truck. One of the principal prosecution witnesses at trial was Rice, a postal employee who had been aboard the truck as an armed guard at the time of the robbery. During the trial, defense counsel attempted to cross examine Rice and another witness regarding Rice's possible complicity in the robbery. ¹ The trial court ruled that such cross-examination would not be permitted unless defense counsel proffered evidence proving that Rice was involved in the robbery. ² On appeal, this court held that the ruling was erroneous, citing Alford v. United States, 282 U.S. 687, 691--92, 51 S.Ct. 218, 75 L.Ed. 624 (1931) and United States v. Pugh, 141 U.S.App.D.C. 68, 436 F.2d 222 (1970). The case was remanded to the District Court with the following instructions:

(T)hese cases are remanded to the District Court so that the witnesses Rice and Jones may be recalled for further cross-examination, and further direct examination if indicated, as to credibility and as to Rice's alleged complicity in the crime. In this connection, the District Court will order that all evidence

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in the Government's possession, documentary and otherwise, indicating that Rice was a confederate of the defendants be made available to appellants. See Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). This would include, of course, all of the statements and testimony of the witnesses Rice and Jones previously withheld. After a full hearing, '(i)f the (trial) court determines that the additional evidence so received produces relevant testimony which is material to the credibility (or the complicity) of the witness (Rice) it shall grant a new trial.' United States v. Fowler, (151 U.S.App.D.C. 79, 465 F.2d 664 (1972)). ³

Pursuant to these instructions a hearing was held in the District Court. The Court heard testimony from several witnesses and received several documentary exhibits in evidence. After the hearing, the District Court issued findings of fact and conclusions of law which it summarized as follows:

In summary, the Court finds that there is simply no evidence by which a jury could conclude that Rice was a conspirator in the robbery. It is not a question of determining whether the evidence on complicity was strictly 'relevant' or 'material'; there simply is no evidence of complicity. Even giving the jury the benefit of weighing the evidence and drawing inferences from it, and of weighing the demeanor of the witnesses, there is simply nothing here on the issue of complicity which could have altered the verdict in this case. ⁴

The court then denied defendants' motion for a new trial. This appeal followed.

In United States v. Fowler, 151 U.S.App.D.C. 79, 465 F.2d 664 (1972) we considered the problem of exploratory cross-examination and concluded that reasonable latitude should be afforded to defense counsel:

In a criminal case where prior discovery is necessarily limited, defense counsel often cannot know in advance of trial what facts may be brought out on cross examination. For that reason, his cross examination is necessarily to some extent exploratory, and he should be allowed a reasonable latitude even if he cannot state to the court what precise facts his cross examination will develop. A reasonable amount of exploratory questioning should be allowed, based on slight suspicion, especially when the Government's principal witness is involved.

465 F.2d at 666. While the Fowler decision sustains the right of a defendant to put exploratory questions to a Government witness based upon nothing more than 'slight suspicion,' it does not confer the right to conduct such probes in the presence of the jury. As we stated in Fowler, the exploratory cross-examination may be pursued either '(1) by nonaccusatory questions (in the presence of the jury) or (2) by questioning outside the presence of the jury.' Id. at 668. The latter course permits a less inhibited inquiry in the nature of a voir dire examination. This, in effect, was done in this case at the remand hearing. The only question remaining is whether sufficient evidence was produced at the remand hearing to require a new trial. We think not.

After reviewing the record of the proceedings subsequent to remand, we are convinced that the purported evidence of Mr. Rice's involvement in the robbery is so tenuous and speculative as to invite summary rejection. The evidence, had it been proffered at trial, could not have served as a predicate for additional cross-examination of Mr. Rice on the issue of his complicity in the robbery. The trial court properly denied appellants' request for a new trial and we adopt its opinion with respect to the issues decided therein.

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Our decision regarding the need for a new trial is also dispositive of appellants' various claims under the Brady doctrine ⁵ and the Jencks Act. ⁶ All documents sought by appellants were produced at the remand hearing. ⁷ The trial court ruled that they did not provide sufficient evidence of Mr. Rice's involvement to permit additional cross-examination on that subject at a new trial. The appellants do not contend that the new evidence would be useful for any other purpose or that it has led to the discovery of additional evidence warranting a new trial. Even assuming that these exhibits should have been produced by the Government at trial, therefore, failure to produce them was harmless beyond a reasonable doubt.

Appellant Johnson objects to the admission in evidence at trial of certain weapons and ammunition found in his apartment at the time of his arrest. The evidence included a .38 caliber pistol, a carbine and a quantity of ammunition. A Government witness testified that the pistol belonged to Johnson and was carried by him during the robbery. Tr. at 1029. Admission of the pistol was unquestionably proper. As to the rifle and ammunition, however, there is some question. The only apparent connection between these items and the crime charged is that they may have been purchased with the proceeds of the robbery. Tr. at 679. Without reaching the question of whether admission of this matter was error, it is clear that any error was harmless beyond a reasonable doubt. There is no danger that the evidence was inflammatory because other real and testimonial evidence that that the robbers were armed was properly presented to the jury. Moreover, independent evidence of appellant Johnson's guilt--including the eye-witness testimony of another participant in the robbery ⁸--was overwhelming.

Appellants also contend that the District Court erred in entering judgments, following guilty verdicts, that imposed sentences running concurrently for both mail robbery, in violation of 18 U.S.C. § 2114, ⁹ (count one ¹⁰) and robbery

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while armed, in violation of22 D.C.Code §§ 2901 and 3202 (count two ¹¹).

Each appellant was sentenced to three to ten years for mail robbery, ten years being the maximum under the federal statute in view of the fact that the verdict acquitted them of the charge in count one that appellants put the life of the custodian of the mail in jeopardy by the use of a dangerous weapon. Each appellant was given a longer term for robbery while armed, in violation of the D.C.Code. ¹²

A question arises notwithstanding the concurrency of the sentences in view of the possibility of adverse collateral effects of a conviction for two felonies. Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969); United States v. Canty, 152 U.S.App.D.C. 103, 115, 469 F.2d 114, 126 (1972).

The Government relies in this case on the doctrine of Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932), that in considering whether the same act or transaction violates

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two distinct statutory provisions, 'the test to be applied to determine whether there are two offences or only one, is whether each provision requires proof of an additional fact which the other does not.' The Government stresses that violation of the D.C. armed robbery statutes requires proof that the defendant was armed, which is not required to show violation of the mail robbery statute, and that violation of the federal law requires proof that the person robbed was the custodian of mail, and that this is not required to show a violation of the District Code.

Cases on the issue of multiple sentences tend to focus on legislative intent, wherein the court seeks to determine whether the legislature intends one criminal act to be prosecutable under two different statutory provisions. The leading cases are Prince v. United States, 352 U.S. 322, 77 S.Ct. 403, 1 L.Ed.2d 370 (1957), for the principle of lenity, and Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), for the principle of separate factual elements, but there are many cases in this field.

However, the field is not without...