United States v. CL Guild Construction Co.

• Decision Date: 24 April 1961
• Docket Number: No. 6670.,6670.
• Citation: 193 F. Supp. 268
• Parties: UNITED STATES of America v. C. L. GUILD CONSTRUCTION CO., Inc., Charles L. Guild, alias William Unsworth, alias.
• Court: U.S. District Court — District of Rhode Island

193 F. Supp. 268

UNITED STATES of America v. C. L. GUILD CONSTRUCTION CO., Inc., Charles L. Guild, alias William Unsworth, alias.

No. 6670.

United States District Court D. Rhode Island.

April 24, 1961.

Joseph Mainelli, U. S. Atty., Samuel S. Tanzi, Asst. U. S. Atty., Providence, R. I., for plaintiff.

James A. Higgins, William C. Dorgan, of Higgins & Slattery, Charles A. Curran, Providence, R. I., for defendant.

DAY, District Judge.

On December 22, 1960, the defendants were found guilty by a jury on an indictment charging them with three violations of Title 18 U.S.C.A. § 641. Thereafter, within the time prescribed by the Federal Rules of Criminal Procedure, they filed a motion for judgment of acquittal under Rule 29 of said Rules of Criminal Procedure, 18 U.S.C.A., renewing a similar motion made by them at the close of all the evidence presented during their trial, and pursuant to said Rule 29, included therein a motion for a new trial under Rule 33 of said Rules.

While the motion for a new trial is based upon the usual grounds, defendants in their oral argument and brief filed in support thereof emphasize the following grounds as entitling them to a new trial, viz., (1) prejudicial cross-examination of the defendant, William Unsworth, (2) prejudicial error in calling one Valentino Tirocchi to the stand, (3) prejudicial cross-examination of the defendants' character witnesses, (4) failure to substantiate the charge, (5) erroneous exclusion of evidence, and (6) prejudicial argument by Government's counsel.

The defendant, William Unsworth, as did his co-defendant, Charles L. Guild, testified in his own defense. The record shows that as the District Attorney was concluding his lengthy cross-examination of Mr. Unsworth the following incident occurred:

"Q. Is it a fact, Mr. Unsworth, that you, along with Mr. Guild and the corporation, Tirocchi, Mr. Boisvert, several other defendants, are presently under other indictments outstanding in this court?

"Mr. Curran. Wait a minute, your Honor.

"Mr. Mainelli. I would like to argue the point, your Honor.

"Mr. Curran. I object, and I have a motion to make, your Honor.

"The Court. Take out the jury, Mr. Marshal."

From the foregoing it will be seen that counsel for the defendants made prompt and timely objection to the question which they now claim was prejudicial to them. The record further discloses that the jury was excused at 11:35 o'clock a. m.

In the absence of the jury, counsel for the Government argued vigorously that the question to which defendants objected was proper and cited three cases, two civil and one criminal, upon which he continues to rely, along with others, as authorities for the propriety of said question. No authorities holding to the contrary were then cited by counsel for the defendants who argued with equal vigor that said question was grossly prejudicial and that I should declare a mistrial. Having grave doubt as to the weight to be given to the authorities cited by the Government, I declared a recess in order to examine the authorities and invited counsel to submit whatever legal precedents they might find bearing upon the propriety of said question. During the noon recess I read whatever additional cases bearing upon the problem that I could find in the limited time available to me, as well as those submitted to me by counsel for the defendants. As a result of this limited study, I concluded and ruled at 2:00 o'clock p. m. on the same day that the question was improper, should not have been asked, and sustained the defendants' objection. I also denied defendants' motion for a mistrial, stating that I believed that appropriate cautionary instructions to the jury that they must disregard the question would adequately protect the rights of the defendants.

The jury then returned to the court room. At that time I advised the jurors that I considered the question, which was then read to them, to be "highly improper" and admonished and instructed them to disregard it completely.

The defendants and the Government have filed briefs citing the respective legal authorities upon which they rely. I have considered and studied them and any others that I have been able to find.

My examination of these authorities convinces me that inquiries of an accused on cross-examination as to other arrests or indictments found against him are generally excluded as not competent to affect his credibility. See Annotations, 6 A.L.R. 1616; 25 A.L.R. 341; 103 A.L.R. 354; and 161 A.L.R. 233. And this is the well settled rule in the federal courts. Michelson v. United States, 1948, 335 U.S. 469, 69 S.Ct. 213, 93 L.Ed. 168; Manley v. United States, 6 Cir., 1956, 238 F.2d 221; Echert v. United States, 8 Cir., 1951, 188 F.2d 336, 26 A.L.R.2d 752; Little v. United States, 8 Cir., 1937, 93 F.2d 401; Coulston v. United States, 10 Cir., 1931, 51 F.2d 178; Havener v. United States, 8 Cir., 1926, 15 F.2d 503; Coyne v. United States, 5 Cir., 1917, 246 F. 120; Glover v. United States, 8 Cir., 1906, 147 F. 426.

In Michelson v. United States, supra, in distinguishing the rule permitting cross-examination of a character witness for a defendant as to the arrest of the defendant for other offenses from the rule prohibiting cross-examination of a witness as to an arrest of the witness himself, stated at page 482 of 335 U.S., at pages 221-222 of 69 S.Ct.:

"Since the whole inquiry, as we have pointed out, is calculated to ascertain the general talk of people about defendant, rather than the witness' own knowledge of him, the form of inquiry, "Have you heard?" has general approval, and "Do you know?" is not allowed.

"A character witness may be cross-examined as to an arrest whether or not it culminated in a conviction, according to the overwhelming weight of authority. This rule is sometimes confused with that which prohibits cross-examination to credibility by asking a witness whether he himself has been arrested.

"Arrest without more does not, in law any more than in reason, impeach the integrity or impair the credibility of a witness. It happens to the innocent as well as the guilty. Only a conviction, therefore, may be inquired about to undermine the trustworthiness of a witness."

Similarly, in Manley v. United States, supra, the court at page 222 of 238 F.2d held:

"It is well settled that it is not permissible for the government to show that a defendant has been accused of, arrested for, or indicted for a crime. Only a previous conviction for crime is admissible, under appropriate circumstances.

"The United States Court of Appeals for the Eighth Circuit has ruled that acts of misconduct not resulting in conviction of a crime are not the proper subject of cross-examination to impeach a witness. Little v. United States, 8 Cir., 93 F.2d 401, 408; Echert v. United States, 8 Cir., 188 F.2d 336, 26 A. L.R.2d 752. Numerous other cases recognizing the same principle could be cited."

In Coyne v. United States, supra, where the defendant's conviction was set aside, the court states the rule at page 121 of 246 F.:

"* * * The fact that an unproven charge has been made against one has no logical tendency to prove that he has been guilty of any offense, or to impair the credibility of his testimony. An indictment is a mere accusation, and raises no presumption of guilt. On the contrary, the indicted person is presumed to be innocent until his guilt is established, by legal evidence beyond a reasonable doubt, in a court of competent jurisdiction * * * It is not uncommon for entirely innocent persons to be indicted. It would be a gross injustice to permit the fact of such a making of a charge to be used to the prejudice of the person against whom the unproved charge is made. * * *"

This rule prohibiting cross-examination to credibility by asking an accused who testifies in his own defense whether he has been arrested or indicted is well stated in Glover v. United States, supra, at pages 429-430 of 147 F.:

"* * * It is competent for the purpose of discrediting a witness to show that he has been convicted of a crime. The general rule is that the crime must rise to the dignity of a felony or petit larceny (citing authorities). Whatever may be the limit in this respect, nothing short of a conviction of a crime is admissible for the purpose of impeachment. A mere accusation or indictment will not be admitted, for the reason that innocent men are often arrested charged with a criminal offense. 1 Greenleaf on Evidence (16th Ed.) 461b, 461c, pp. 579, 580. * * *"

The cases relied upon by the Government are either contrary to the overwhelming weight of authority or clearly distinguishable. For example, State v. Maslin, 1928, 195 N.C. 537, 143 S.E. 3, wherein the court permitted inquiry of a defendant as to whether he was then under indictment for other offenses is merely representative of the view followed by a meager minority of the jurisdictions of this country. Terminal Transport Co., Inc. v. Foster, 5 Cir., 1947, 164 F.2d 248, also cited by the Government, was a civil case and is readily distinguishable from the instant case. In United States v. Empire Packing Co., 7 Cir., 1949, 174 F.2d 16, it was held not error to permit cross-examination of one of the defendants as to a former conviction for income tax evasion, from which an appeal was then pending. In its opinion the court pointed out that trial below was before the court without a jury and if the reception of that evidence was error, it would appear to have been harmless. However, relying on the rule that an accused, taking the stand in his own defense, may be cross-examined regarding a prior conviction for a felony as affecting his credibility, the court held that until the judgment of the trial court was reversed the accused stands convicted and may be properly questioned regarding said conviction solely for the purposes of testing credibility. However, other United States Courts of Appeals have held to the contrary. See United States v....