U.S. v. Morlang

• Decision Date: 30 December 1975
• Docket Number: No. 74--2071,74--2071
• Citation: 531 F.2d 183
• Parties: 1 Fed. R. Evid. Serv. 171 UNITED STATES of America, Appellee, v. Theodore D. MORLANG, Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 183

531 F.2d 183

1 Fed. R. Evid. Serv. 171

UNITED STATES of America, Appellee, v. Theodore D. MORLANG, Appellant.

No. 74--2071.

United States Court of Appeals, Fourth Circuit.

Argued March 7, 1975.

Decided Dec. 30, 1975.

Nathan Lewin, Washington, D.C. (Miller, Cassidy, Larroca & Lewin, Washington, D.C., and Samuel D. Lopinsky, Charleston, W. Va., on brief), for appellant.

John A. Field, III, U.S. Atty. (Wayne A. Rich, Jr., and Robert B. Allen, Asst. U.S. Attys., on brief), for appellee.

Before BUTZNER and WIDENER, Circuit Judges, and CLARKE, District Judge. ^*

WIDENER, Circuit Judge:

The appellant, Theodore Morlang, was convicted by a jury on one count of an indictment charging him with conspiracy to bribe and bribery. ¹ The indictment was initially returned in seven counts, ² a number of which were dismissed prior to trial. The appellant was acquitted on the remaining substantive counts of the indictment which charged him with the acts of bribery.

The appellant has raised, through briefs filed by his attorneys, a number of issues regarding the conduct of his trial. These include: (1) Whether the prosecution's refusal to consent to the appellant's waiver of a jury trial denied the appellant an impartial trial; (2) Whether the court erred in permitting the prosecution to present to the jury, for purposes of impeachment, an out-of-court statement, which was a conclusion as to Morlang's guilt, purportedly made by its own witness; (3) Whether the prosecution was erroneously permitted to elicit from its own witness, his conclusion as to the relationship between the appellant and an alleged accomplice, by reading to him from his grand jury testimony; and (4) Whether the court erred in instructing the jury as to the general standards of conduct imposed upon James Haught, an unindicted co-conspirator, as an employee of the Federal Housing Administration. We reverse and remand for a new trial.

The conviction here stems from an alleged bribery scheme involving an FHA insured housing project. In the fall of 1967, the Federal Housing Administration began a drive to encourage the construction of low to moderate income rent-supplement housing projects throughout the United States. ³ Under the law, nonprofit organizations sponsoring the construction of such projects could obtain no-down-payment mortgages that would be 90% insured by the FHA.

James F. Haught, ⁴ the Director for West Virginia's FHA program, invited lenders, real estate brokers, community officials and other interested individuals--including potential sponsors--to attend a meeting in Charleston, where he described the opportunities available under the plan. One of those in attendance was Fred Wilmoth, an agent for the Prudential Life Insurance Company. ⁵ Wilmoth was authorized to make long-term loans on behalf of Prudential, and following the meeting, he spoke with Haught. According to Haught, Wilmoth subsequently asked him to travel to Parkersburg, West Virginia to meet with Morlang, who was an area banker and builder in an effort to interest Morlang in participating as a contractor.

Some time thereafter, Wilmoth and Haught visited Morlang's office in Parkersburg to discuss the substance of the program. According to Haught, the three discussed potential areas of profit, including illegally contrived architectural fees, and concluded that there was 'plenty in it for all.' ⁶ They also allegedly agreed that former West Virginia Governor W. W. Barron would have to be taken care of because of his previous assistance and political contacts. Both Wilmoth and Morlang flatly deny that there was ever any discussion in Morlang's presence other than as to the general nature of the federal program.

Seven projects were thereafter launched by Morlang under the FHA plan, one of which was the Hanna Drive development. Price Ballard, ⁷ a licensed realtor and a corporate officer of Elk Realty Company of Charleston, West Virginia, and former Governor Barron were enlisted as partners in this project. When approval of the development became bogged down in the FHA office in Philadelphia, Haught allegedly solicited a $2000 bribe 'to walk it through Philadelphia and again the Washington office.' This bribe was purportedly paid by Wilmoth, Barron, Ballard and Morlang, although Wilmoth testified that Morlang was in no way involved.

Haught also testified at trial that approximately three or four months prior to the $2000 bribe being paid, Morlang personally gave him $800 while in the presence of Wilmoth. Both Wilmoth and Morlang deny having any knowledge of the $800 payment being made.

By its verdict of not guilty, the jury indicated that it did not believe beyond a reasonable doubt Haught's story as to either the $800 or $2000 bribes. It did, however, find Morlang guilty on the charge of conspiracy to bribe.

I

As to the first issue raised, Morlang contends he was denied a fair trial by the prosecution's refusal to waive a jury trial in view of the pre-trial publicity and the likelihood of prejudice growing out of former Governor Barron's involvement. Prior to trial, he filed a request under FRCrP 23(a) ⁸ to waive trial by jury. The motion recited the very substantial publicity that the case had received--both from the government's civil suit against Morlang as well as from the criminal charges then pending. In response to this motion, the court noted that the government objected to the request and denied the motion.

Morlang concedes in his brief that he has no absolute constitutional right to a non-jury trial. The Supreme Court, in Singer v. United States, 380 U.S. 24, 85 S.Ct. 783, 13 L.Ed.2d 630 (1965), held that there was 'no constitutional impediment to conditioning a waiver of (the right to a trial by jury) on the consent of the prosecuting attorney and the trial judge. . . .' 380 U.S. at 36, 85 S.Ct. at 790. The appellant, however, in pressing his claim, relies upon a caveat laid down by the Singer court suggesting that 'there might be some circumstances where a defendant's reasons for wanting to be tried by a judge alone are so compelling that the Government's insistence on trial by jury would result in the denial to a defendant of an impartial trial.' Id. at 37, 85 S.Ct. at 791.

Based upon the quoted language from Singer, Morlang contends that the trial judge erred in disposing of his request for a non-jury trial in two distinct respects: (1) He failed to exercise any discretion in determining whether a non-jury trial would have increased the likelihood of a fair trial, and (2) Even if the court did exercise its discretion, it did so in such an erroneous manner as to constitute an abuse of discretion. We do not agree with either assertion.

To begin with, the burden was upon the appellant to rebut the presumption of impartiality on the part of prospective jurors. See Reynolds v. United States, 98 U.S. 145, 157, 25 L.Ed. 244 (1878); Irvin v. Dowd, 366 U.S. 717, 722--23, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961). In deciding whether the burden of proof has been carried, a court should be cognizant of the admonition of Chief Justice Marshall, who, in 1807, wrote:

'(L)ight impressions which may fairly be supposed to yield to the testimony that may be offered; which may leave the mind open to a fair consideration of that testimony, constitute no sufficient objection to a juror; but that those strong and deep impressions, which will close the mind against the testimony that may be offered in opposition to them; which will combat that testimony and resist its force, do constitute a sufficient objection to him.' ⁹

Moreover, the conclusion of the trial court upon the issue of impartiality ought not be set aside by a reviewing court unless the error is manifest. Reynolds v. United States, 98 U.S. 145, 156, 25 L.Ed. 244 (1878); see also Spies v. Illinois, 123 U.S. 131, 8 S.Ct. 22, 31 L.Ed. 80; Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961).

A review of the record indicates no error on the trial judge's part, manifest or otherwise, in refusing the appellant's motion. At the time Morlang asked to be tried without a jury, no evidence was offered to establish actual prejudice on the part of any of the prospective jurors. Instead, the appellant merely cited the extensive publicity surrounding the case, arguing that a non-jury trial would, as a result, increase the likelihood of a fair trial. ¹⁰

Yet, the record indicates no substantial likelihood that any of the prospective jurors would have been unfair or biased in rendering their verdict. It is true that five members of the venire, one of whom was ultimately excused, responded in the affirmative when asked by the court:

Do any of you know anything about this case, that is the case of the United States of America versus Theodore D. Morlang? Have you heard it discussed?

But, when asked if they had any doubt as to their ability to sit as fair and impartial jurors, each indicated that they could decide the case solely on the evidence.

Based on the record then, it is clear that the trial court, in examining the prospective jurors, took great care to assure itself that a fair and impartial trial could be had before the jury, and, thus, it properly exercised its discretion before proceeding to trial. Although a number of jurors had heard or read about the case, this alone is not a sufficient basis upon which to conclude that the likelihood of a fair trial would be substantially diminished by the use of a jury. As we have noted before, it is not inconceivable that prospective jurors previously exposed to publicity could truthfully answer that they would be unaffected by their recollection. United States v. Abbott Laboratories, 505 F.2d 565, 572 (4th Cir. 1974).

The court pointed out in Irvin that '(i)t is not required . . . that . . . jurors be totally ignorant of the facts and issues involved. In these days of swift, widespread and diverse methods of communication, an important case can be expected to...