U.S. v. Neiswender

• Decision Date: 09 January 1979
• Docket Number: No. 77-1642,77-1642
• Parties: UNITED STATES of America, Appellee, v. Charles E. NEISWENDER, a/k/a Lee Anderson, Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 1269

590 F.2d 1269

UNITED STATES of America, Appellee, v. Charles E. NEISWENDER, a/k/a Lee Anderson, Appellant.

No. 77-1642.

United States Court of Appeals, Fourth Circuit.

Argued Dec. 9, 1977.

Decided Jan. 9, 1979.

J. Frederick Motz, Baltimore, Md. (Charles M. Kerr, Baltimore, Md., on brief), for appellant.

Barnet D. Skolnik, Asst. U. S. Atty., Baltimore, Md. (Jervis S. Finney, U. S. Atty. and Ronald S. Liebman, Asst. U. S. Atty., Baltimore, Md., on brief), for appellee.

Before HAYNSWORTH, Chief Judge, BRYAN, Senior Circuit Judge, and RUSSELL, Circuit Judge.

HAYNSWORTH, Chief Judge:

The appellant in this action seeks reversal of his conviction for obstruction of justice. Although the case raises serious issues, we find no reversible error and affirm.

I.

Shortly after commencement of the criminal trial of former Maryland Governor Marvin Mandel, Charles E. Neiswender, the defendant-appellant, contacted Arnold Weiner, Mandel's chief defense attorney. Neiswender told Weiner he could "guarantee" an acquittal of Mandel if "proper financial arrangements were made." Weiner promptly informed the United States Attorney and District Judge Pratt, then presiding over the Mandel trial, of this unusual development. Desirous of apprehending Neiswender, identifying a corrupted juror, if one existed, and averting prejudicial publicity likely to lead to a mistrial in the complex Mandel prosecution, government agents cautiously undertook investigation of the Neiswender matter.

In further communications to Weiner and a postal inspector posing as Weiner's associate, Neiswender claimed that he represented a Baltimore man who had been contacted by a juror sitting on the Mandel case. For $20,000, Neiswender asserted, he could ensure that the trial "would come out the right way." Undercover investigators led Neiswender on, hoping he would identify his compatriots. After Neiswender repeatedly refused to disclose the name of his principal or the corrupted juror, government agents broke off contact in an attempt to provoke a disclosure. Neiswender, however, failed to resume communications for four weeks, and the investigators decided to arrest him. Sensitive to the explosive publicity that might attend an initial appearance before another court, the postal investigators approached Judge Pratt. The judge issued a warrant for Neiswender's arrest and, at the agents' request, agreed to make himself available in Baltimore for Neiswender's initial appearance.

On the morning of November 5, postal inspectors arrested Neiswender as he left his southern New Jersey home. He was shown the arrest warrant and a list of his constitutional rights. He was then driven to Baltimore, a distance by highway of about 107 miles. Within a few hours of arrival, Neiswender appeared before Judge Pratt. The initial appearance apparently was conducted in secret, and no record of the proceedings was made. It is clear, however, that Neiswender waived his right to counsel.

Apparently to foreclose the possibility of release, Judge Pratt set bail at $1,000,000. The police then took Neiswender into custody and interrogated him. That evening Neiswender called his wife, who came to Baltimore five days later and convinced Neiswender to obtain court-appointed counsel. On November 15, the government released Neiswender to avoid the publicity likely to accompany a preliminary examination. See F.R.Cr.P. 5(c) (requiring preliminary hearing within ten days of arrest if defendant is in custody). Prior to his release, Neiswender made incriminating statements.

After unrelated events resulted in the declaration of a mistrial in the Mandel case, Neiswender was indicted. The indictment charged that Neiswender "did corruptly endeavor to influence, obstruct, and impede the due administration of justice with respect to the then on-going trial in the federal criminal case of United States v. Mandel, et al. in that "(he) did solicit from an attorney in that case, and from another individual whom (he) then believed to be associated with that attorney, a certain sum of money to ensure that a juror would vote to acquit one or more of the defendants in that case."

Neiswender was convicted on essentially the evidence outlined above. There was no proof that he ever dealt with a juror or anyone who had contact with a juror. He now asserts three bases for reversal: (1) the misconduct of the police and trial judge in the post-arrest treatment of Neiswender; (2) a failure of the prosecution to prove the type of intent necessary for conviction coupled with faulty jury instructions essentially adopting the prosecution's theory of the case, and (3) a variance between the crime charged and the proof upon which the defendant was convicted.

II.

The defendant's first assignment of error need not long detain us. The defendant asserts that the handling of his case by the police, prosecutors, and trial judge was so egregious as to mandate the exercise of this court's supervisory powers by ordering dismissal of the indictment. Neiswender's principal complaints are:

(1) The arrest warrant violated F.R.Cr.P. 4(c)(4) because it did not direct the arresting officers to bring the defendant before the nearest available magistrate;

(2) Postal authorities were not authorized to obtain a warrant charging obstruction of justice, a non-postal offense (See 18 U.S.C.A. § 3061);

(3) The officers, following the arrest, moved Neiswender more than one hundred miles in violation of F.R.Cr.P. 40;

(4) The secretive nature of the initial appearance conducted by Judge Pratt contravened the spirit of F.R.Cr.P. 5 and the ABA Standards Relating to the Administration of Criminal Justice;

(5) Bail was excessive and imposed for a purpose not permitted by the federal bail provisions (See 18 U.S.C. § 3146); and

(6) The failure to obtain an indictment within thirty days of the initial arrest violated the Maryland District Court's local rule promulgated to comply with the Speedy Trial Act.

We need not carefully scrutinize these assertions of misconduct. Assuming the officers violated Neiswender's rights, such violations were essentially technical and nonprejudicial to his defense and resulted from judicially authorized and supervised police conduct undertaken to advance the understandable goal of avoiding a mistrial in the Mandel case. Under these circumstances, we refuse to invoke our supervisory powers to dismiss the indictment. While severe official misconduct born of malice, caprice or brazen lawlessness might justify supervisory intervention, the facts presented here simply fail to warrant such extreme action. See generally Note, Supervisory Power in the United States Courts of Appeals, 63 Cornell L. Rev. 642, 649-50, 659-65 (1978).

While we do not condone the abrogation of one man's rights to avoid unfairness to another, we refuse to adopt the defendant's proposed remedy for the government's purported wrongs. Assuming Neiswender's arrest and detention were illegal, the suppression of illegally obtained evidence provided a proper sanction. Indeed, the government did not use inculpatory statements made by Neiswender during his detention in Baltimore.

The defendant cites us to no case ordering a supervisory dismissal on facts similar to those presented here. He relies principally on United States v. Toscanino, 500 F.2d 267 (2d Cir. 1974). But that case involved the government kidnapping of a defendant in Uruguay in violation of several international treaties.

III.

The defendant also contends that the government failed to prove all the elements of the alleged crime. The federal obstruction of justice statute, 18 U.S.C. § 1503, provides in relevant part:

"Whoever . . . endeavors to influence, obstruct, or impede the due administration of justice, shall be fined not more than $5,000 or imprisoned not more than five years or both." ¹

Neiswender argues that the statute does not proscribe mere fraud, that it punishes instead illicit designs to undermine judicial processes, and that it therefore requires a specific intent to obstruct justice. Neiswender contends the government proved nothing more than an ill-advised attempt to obtain money by deception.

The government concedes that the defendant's primary intent was one to defraud. It urges, however, that every man intends the natural consequences of his acts. Had Neiswender convinced Weiner that he had a juror under his control and induced Weiner to participate in the scheme, the natural consequence would have been to reduce Weiner's efforts in defending his client. This debilitating effect on defense counsel would have altered the normal course of trial and prejudiced the client. This "natural consequence," the government contends, would have obstructed the due administration of justice.

Neiswender has a rejoinder to this argument. In his view, while operation of the time-honored "natural consequences" rule might normally suffice to establish specific intent, it should play no role in this case. Neiswender contends that whatever force a presumed intention has must give way to actual intent. Here Neiswender's motivation was directly at odds with any design to obstruct justice since a guilty verdict would have revealed Neiswender's fraud. It was in his best interest for Weiner to press hard in his efforts to obtain an acquittal. Indeed, the evidence suggests that Neiswender recognized this fact for, during negotiations with Weiner's "associate," he insisted that defense counsel were "not to slouch in their duties" and "were to give it the full effect."

The state-of-mind requirement of § 1503 has long confused the courts. Some cases require only that the defendant "intend to do some act which would tend to corruptly impede or influence the administration of justice." Ethridge v. United States, 258 F.2d 234, 235 (9th Cir. 1958); See Knight v. United States, 310 F.2d 305 (5th Cir. 1962) ("specific intent must be to do some act or acts which tend to impede . . . the...