U.S. v. Nickell

• Decision Date: 28 March 1977
• Docket Number: No. 76-2157,76-2157
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Cecil K. NICKELL, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 684

552 F.2d 684

UNITED STATES of America, Plaintiff-Appellee, v. Cecil K. NICKELL, Defendant-Appellant.

No. 76-2157.

United States Court of Appeals, Sixth Circuit.

Argued Dec. 7, 1976.

Decided March 28, 1977.

Bernard J. Gilday, Jr., Gilday, Jung & Gilday, Cincinnati, Ohio, Frank E. Haddad, Jr., Louisville, Ky., for defendant-appellant.

William W. Milligan, U. S. Atty., Anthony W. Nyktas, David E. Melcher, Cincinnati, Ohio, for plaintiff-appellee.

Before EDWARDS, McCREE and ENGEL, Circuit Judges.

EDWARDS, Circuit Judge.

Appellant was convicted of aiding and abetting in unlawful entry of a bank, in violation of 18 U.S.C. §§ 2113(a), 2(a) (1970). After a jury trial in the United States District Court for the Southern District of Ohio, he was found guilty and sentenced to 15 years. The appellate issues principally concern claims that the prosecutor prejudiced the trial by improper questions or comments. Appellant also argues several other issues, including that a government rebuttal witness gave false testimony and that the government failed to comply with the Jencks Act.

The underlying facts of the crime were established beyond peradventure of a doubt. The factual issue for the jury was whether or not appellant was a participant. The two would-be bank robbers, Roberts and Green, broke into the bank in question and were arrested in the bank when a silent alarm went off. According to the testimony of Roberts, one of the burglars, appellant was driving the proposed getaway car but failed to respond to their urgent CB radio request to be picked up. Appellant Nickell and the other burglar, Green, however, testified that Nickell had no part in the robbery scheme, and Nickell presented an alibi defense for the evening in question.

The government's corroboration of Roberts' testimony consisted of records of phone calls between appellant's phone and that of Roberts, and other admitted associations, including appellant's presence with both bank robbers at the scene of an accident two days before the robbery. All of these associations were within days or hours of the bank robbery attempt and hence somewhat suggestive of a relationship thereto. But none of them necessarily settled the conflict between the testimony of the two actual bank burglars. Green, the other burglar, testified that he and Roberts were at Nickell's apartment on September 15, 1974 the date of the attempted burglary but Nickell was not present on the scene and had no part in it. He testified that the pick-up man was a black man whose name he could not remember.

Appellant presented three alibi witnesses whose testimony, if believed, would have placed appellant in his own apartment at the time of the bank burglary attempt. In various ways the government's cross-examination and rebuttal evidence tended to contradict or throw doubt on the credibility of their stories.

Appellant does not dispute that there was sufficient evidence to support the jury's finding of guilt. He does, however, assert that the claimed errors in the trial prejudiced his case and demands a new trial. Because appellant's guilt rests primarily upon one witness who is also an accomplice, we approach his claims of prejudicial error with more than normal concern.

I. PROSECUTORIAL ABUSE

Illustrative of appellant's complaint in relation to this issue are the first five examples set out in appellant's brief:

During the testimony of the prosecution's witness, federal prisoner James Roberts who had already been convicted of the bank burglary at issue, . . . the prosecution gratuitously commented,

Q. That's kind of an interesting pasttime looking at banks.

Mr. Gilday: Judge, I object.

The Court: Sustained. The jury will please disregard the comment.

The defense objection was sustained.

At another point, the prosecution again gratuitously remarked to the witness that it's "a good idea not to spend too much time in a bank; is that right?" Immediately, the defense objected and the Court sustained the objection.

At yet another point in the testimony of this same witness, the prosecution gratuitously questioned the witness about the relative merits of leaving no fingerprints.

Q. Now, all these tools that you have here and those tanks, et cetera and this torch head, did anybody touch these with their bare hands?

A. Definitely not.

Q. That's not a good idea, is it?

Mr. Gilday: Objection.

The Court: Sustained.

The defense objection was sustained.

These repeated comments by the prosecution were objectionable because they were irrelevant to the inquiry at trial, whether or not the Defendant had participated in the alleged burglary. Finally, still during the prosecution's questioning of the same witness, the Court sua sponte cautioned the prosecution.

The Court: Again, what is the relevancy of this? What is the relevancy to this case? There is an admission that he was there and what happened. Why all the detail?

Mr. Winkler: I will speed it up, your Honor.

Finally, during the testimony of the same witness Roberts, the prosecution attempted to overrun repeated defense objections and even Court rulings to improperly buttress the testimony of this prosecution witness.

Q. Now, Mr. Roberts, have you given this testimony freely and voluntarily?

Mr. Gilday: Judge, I object.

The Court: Sustained, at this point.

Q. Have I promised you anything in return for your testimony?

Mr. Gilday: Again I object.

The Court: Sustained. The jury will please disregard the testimony.

Q. Have you told the truth?

Mr. Gilday: Again I object.

The Court: Same ruling.

From these examples and from review of the entire transcript of this trial, we believe that appellant's complaints about prosecutorial abuse have at least some merit. The record shows that the prosecutor was rarely able to let any witness' testimony go into the record without an effort on his own part to emphasize or to discredit it. None of his comment was such as to invade the constitutional rights of the appellant, and for the most part it would have been appropriate enough had he reserved it for the prosecutorial argument. It was, however, improperly interposed throughout the trial in a manner which cumulatively would have represented prejudicial error if it had gone unchecked or unrebuked.

Significantly, however, this record shows the contrary. The trial took place before Judge Timothy Hogan, an experienced trial judge in the Southern District of Ohio. As illustrated in the examples quoted above, at every defense objection and sometimes without awaiting such Judge Hogan interposed a ruling in defendant's favor and often an admonition to the jury. We can think of no better form of correction of an overzealous prosecutor than the immediate and firm response of the trial judge. However eagerly the prosecutor sought to curry favor with the jury by seeking to color the evidence with his own observations, he was calmly checked and rebuffed in every important instance by adverse rulings and admonitions from the bench. The totality of this record discloses that, whatever his intentions, the prosecutor did not succeed in achieving any unfair advantage.

We find no judicial error in the District Judge's rulings and no prosecutorial abuse which, after Judge Hogan's rulings, resulted in any unfair advantage for the government's case.

II. PERJURED TESTIMONY CLAIM

Appellant asserts entitlement to a new trial because a rebuttal witness, whose testimony contradicted a statement made by one of appellant's alibi witnesses, told a lie. Appellant claims that the lie served to cast doubt upon the alibi witness.

On cross-examination the witness, Mrs. Dils, denied that she had "lived in a residence with (her) daughter Gloria and with (the alibi witness) Bob Sauer." The question did not bear directly upon Sauer's previous alibi testimony and was not pursued. After the trial two affidavits were presented in which the declarants told of seeing Mrs. Dils in the Sauer home. Mrs. Dils was never asked at trial whether or not she had ever been in the Sauer residence, nor was the ambiguous phrase "lived . . . with . . . Sauer" ever clarified by the cross-examiner. Accepting the affidavits at face value, they by no means support the suggestion which we believe we are meant to derive from appellant's brief, that this elderly grandmother committed perjury by denying a previously existing illicit relationship with witness Sauer.

Appellant was clearly not entitled to a new trial on this ground. See Ashe v. United States, 288 F.2d 725, 733 (6th Cir. 1961).

III. THE JENCKS ACT ISSUE

Appellant claims prejudicial error also in the fact that the District Judge refused his motion to be allowed to inspect all of the "reports" of an FBI Agent who was a witness in the case. He asserts in effect that the Jencks Act required that on demand he be allowed to see the reports, or in the alternative that the District Judge screen the reports in camera to determine whether they should be turned over as "statements" under the Jencks Act. We do not find these requirements in the Jencks Act.

The Jencks Act defines "statement" as follows:

(e) The term "statement", as used in subsections (b), (c), and (d) of this section in relation to any witness called by the United States, means

(1) a written statement made by said witness and signed or otherwise adopted or approved by him;

(2) a stenographic, mechanical, electrical, or other recording, or a transcription thereof, which is a substantially verbatim recital of an oral statement made by said witness and recorded contemporaneously with the making of such oral statement; or

(3) a statement, however taken or recorded, or a transcription thereof, if any, made by said witness to a grand jury.

18 U.S.C. § 3500(e) (1970).

The "statement" referred to above is a statement of a witness whose direct testimony is presented in a criminal trial, which statement had been previously recorded and approved or adopted by the witness. Here it is undisputed that the...