U.S. v. Roe, 75--1433

• Citation: 529 F.2d 629
• Decision Date: 11 December 1975
• Docket Number: No. 75--1433,75--1433
• Parties: UNITED STATES of America, Appellee, v. Daniel Richard ROE, a/k/a 'Danny,' Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

Page 629

529 F.2d 629

UNITED STATES of America, Appellee, v. Daniel Richard ROE, a/k/a 'Danny,' Appellant.

No. 75--1433.

United States Court of Appeals, Fourth Circuit.

Argued Sept. 9, 1975.

Decided Dec. 11, 1975.

Rudolph L. Ditrapano, Charleston, W. Va. (Larry W. Andrews and Guy R. Bucci, Charleston, W. Va., on brief), for appellant.

John A. Field, III, U.S. Atty. (William A. Pope and Thomas A. Crawford, Jr., Sp. Attys., U.S. Dept. of Justice, on brief), for appellee.

Before BRYAN, Senior Circuit Judge, and RUSSELL and WIDENER, Circuit Judges.

DONALD RUSSELL, Circuit Judge:

This appeal is from the conviction of the defendant charged with corruptly endeavoring to influence and impede a petit juror in violation of § 1503, 18 U.S.C. The defendant appeals on the grounds of (1) the sufficiency of the evidence; (2) the reading of the defendant's grand jury testimony to the trial jury; (3) the Trial Court's definition of the term 'petit juror;' (4) failure to comply with the terms of the Jencks Act; and (5) withholding of exculpatory material from the defendant. We affirm.

Taking the view most favorable to the Government, as we must in considering the sufficiency of the evidence, we hold there was substantial evidence to sustain the jury's finding of guilt in this case. See, United States v. Sherman (4th Cir. 1970) 421 F.2d 198, 199--200, cert. denied398 U.S. 914, 90 S.Ct. 1717, 26 L.Ed.2d 78 (1970).

It is undisputed that around 11:30 o'clock on the evening after Mrs. Evans had been sworn as a juror in the Crouse trial, the defendant called the Evans house. In his grand jury testimony, the defendant admitted that earlier Crouse had shown him a list of the jurors drawn for the week of the Crouse trial and asked him if he knew Janet Evans. It was after this that the defendant made his telephone call to the Evans' home. Mrs. Evans answered the telephone when the defendant called. The defendant asked to speak to Mr. Evans, the husband of the juror. From this point there is some difference between the testimony of Mrs. Evans and her husband, on the one hand, and of the defendant, on the other. The testimony of the husband is that at the outset of his conversation the defendant inquired whether any member of the husband's family was on the jury. When the husband responded affirmatively, the defendant then told the husband that his wife was on the Crouse jury. At the time the husband, though knowing his wife was on a jury, did not know the case on which she had been selected as a juror. The defendant, according to the husband, proceeded to state that Crouse was not guilty but that an ex-chief 'was out to get him.' He referred to the fact that Crouse 'had been good to (him) since (he) had been on the police force.' He added that other officers would be in the courtroom the next day to give Crouse moral support and 'that there were some phone calls being made to try to help' Crouse in the trial. The defendant then shifted the conversation to a problem the husband was having with Beacon Ambulance Service, a problem of which the defendant apparently had some knowledge. He told the husband that '(I)f there is anything we can do to help you, we would.' ¹

The defendant would dismiss the conversation as an attempt to influence a juror claiming that in reality he made the call for the purpose of inquiring whether certain equipment in the garage of a deceased friend belonged to the husband and any reference to the Crouse trial was merely an innocent aside. He would, also, make much of the fact that he had talked to the husband and not the juror.

That the defendant talked with the husband of the juror, and not to the juror directly about the trial is, however, not a defense. ² Approaching a juror through an intermediary, even a police informer, is sufficient to constitute an endeavor. ³ Inducing a third person to contact a juror has been held by this Court to violate the statute. ⁴ Nor is it of any moment whether the effort to influence the juror was successful or not. '(T)he endeavor, whether successful or not, is the gist of the offense.' ⁵ Neither do we think the fact that the effort to influence was subtle or circuitous makes any difference. If reasonable jurors could conclude, from the circumstances of the conversation, that the defendant had sought, however cleverly and with whatever cloaking of purpose, to influence improperly a juror, the offense was complete. Whether the conversation was innocent and the reference to the Crouse case so incidental as to be innocuous, as the defendant would claim, was under the circumstances for the jury. In determining this issue the jury must rely on the testimony of the parties and their respective accounts of the allegedly improper approach to a juror. In the final analysis, the basic question was one of credibility as between Mrs. Evans and her husband, on the one hand, and the defendant, on the other. The jury chose to accept the version of Mrs. Evans and her husband. That was the jury's prerogative.

The defendant assails, also, the admission of his grand jury testimony. In that testimony, he admitted, as has already been stated, that Crouse had shown him a list of the jurors for the week of the Crouse trial prior to the time he called the Evans. When the Government indicated it intended to offer the grand jury testimony in evidence, defendant's counsel objected that the Miranda warnings had not been given. ⁶ The grand jury transcript, however, showed clearly that such warnings had been given the defendant. Counsel for the defendant then objected that certain statements by the United States Attorney, made during the defendant's appearance before the grand jury, were improper and for that reason he objected to the introduction of the entire transcript of the defendant's grand jury testimony. The United States Attorney agreed to excise all the objectionable parts of the testimony and the Trial Court indicated it would so excise the objectionable parts of the testimony. The defendant, however, would not consent, asserting that, if any part of the testimony went in, all should be admitted. Under those circumstances, the Trial Court admitted the entire transcript of defendant's grand jury testimony. While it would have probably been better practice for the Trial Court to have excised the objectionable language from the record before submitting it to the jury, the defendant is in no position to posit error on the Court's failure to do so. It was the defendant's own insistence that all or none of the record be admitted that occasioned the Court's ruling. Certain of the defendant's statements before the grand jury were plainly admissible and defendant could not defeat the Government's right to use that testimony by asserting that there were other statements in...