United States v. Duardi, 23939-1.

• Decision Date: 02 January 1973
• Docket Number: No. 23939-1.,23939-1.
• Citation: 384 F. Supp. 856
• Parties: UNITED STATES of America, Plaintiff, v. James S. DUARDI et al., Defendants.
• Court: U.S. District Court — Western District of Missouri

384 F. Supp. 856

UNITED STATES of America, Plaintiff, v. James S. DUARDI et al., Defendants.

No. 23939-1.

United States District Court, W. D. Missouri, W. D.

January 2, 1973.

Bert C. Hurn, U. S. Atty., Gary Cornwell, Strike Force, Kansas City, Mo., for plaintiff.

Michael J. Drape, Kansas City, Mo., for Duardi.

Lawrence F. Gepford, Kansas City, Mo., for Brancato.

David R. Freeman, Federal Public Defender, Kansas City, Mo., for Bishop.

Patrick A. Williams, Tulsa, Okl., for King.

Roehm A. West, Tulsa, Okl., for Husong.

Stephen Jones, Oklahoma City, Okl., for Grayson.

MEMORANDUM AND ORDER

JOHN W. OLIVER, District Judge.

This case pends on the defendants' timely filed joint motion for acquittal, to set aside the verdict, and, in the alternative, for a new trial. We shall rule that motion and direct further proceedings in regard to two other matters.

I.

The suggestions in support of the defendants' post-trial motions accurately state that "all the grounds relied upon in the instant motion were raised during the trial of this case and fully discussed with the Court in all respects." Defendants' suggestions do not direct the Court's attention to any authorities not heretofore considered during the trial of the case. Defendants expressly recognize that the citation of the same cases to which the Court's attention had already been directed would merely "duplicate the arguments already of record."

We have reviewed our notes and have reconsidered the questions presented in defendants' pending motion. We find and conclude for the reasons which, for the most part, have already been stated of record that the sixteen grounds stated in defendants' pending motion are without merit.

Accordingly, such motion and defendants' joint alternative motion for new trial will be denied.

On December 21, 1972 counsel for defendant James S. Duardi filed a motion for acquittal, to set aside the verdict, and, in the alternative, for new trial. That motion was not filed within the time provided in Rule 33 of the Rules of Criminal Procedure. The ground stated, however, was ruled at trial. We indicate of record that had defendant Duardi's motion been timely filed, it would have been denied on the merits for reasons stated in connection with the Court's action in granting defendants' motion for bill of particulars.

II.

Counsel will recall that shortly after the jury resumed its deliberation the morning after the case had been submitted to it, it requested all of the exhibits. Counsel for all defendants agreed that all exhibits admitted in evidence should be sent to the jury. Counsel also agreed that the numerous exhibits attached to Court Exhibit 1, which was a pretrial stipulation relating to the authenticity of exhibits which might be adduced in evidence, should not be sent to the jury. Procedures were directed by the Court at that time which were designed to avoid the complications of any inadvertent transmittal of any exhibit which had been offered but not admitted in evidence. It is the Court's recollection that specific reference was made to difficulties encountered in the case of Osborne v. United States, (8th Cir., 1965) 351 F.2d 111.

We deem it our duty to advise the parties that in spite of the precautions taken, the deputy clerk who served during the trial of the case, advised the Court that when he collected the exhibits after the trial he found that Government Exhibit R, the telephone toll record exhibit, had been found with the exhibits that went to the jury room. Apparently that exhibit had inadvertently been sent to the jury room with the other exhibits. That fact was not communicated to the Court until after all counsel had left the courthouse.

Under the circumstances, we deem it appropriate that the Court indicate its tentative view of the question presented, exercising power under Rule 52 of the Rules of Criminal Procedure, and that counsel be afforded an opportunity to make any further record which they may deem appropriate.

There is little doubt that it was error for the jury to have seen Government Exhibit R. Counsel will recall that during our discussion of defendants' objections to that exhibit the Court stated that defendants' objections were valid only in a limited sense and that the difficulty with the exhibit in the form it was offered was that many phone calls which had no probative value (in that they simply reflected calls between pay telephones in public places) were listed together with records of telephone calls between identified individuals which could be relevant.

Indeed, the record of the call from Mrs. Pitts' telephone number to that of defendant Bishop on January 19, 1972, about which Mrs. Pitts was cross-examined without objection is an example of the relevancy and materiality of a particular call between telephone numbers of identified individuals. At any rate, counsel for the government were advised at our discussion out of the presence of the jury that the Court would admit Exhibit R in a form which would eliminate the calls between the public pay phones which did not identify the individual making the call, but that it would sustain defendants' objection to Exhibit R in the form that Exhibit was originally offered.

The government, however, failed to alter the form of Exhibit R and simply offered the exhibit in its original form. We, of course, adhered to our indicated ruling and sustained defendants' objection to the government's offer. It is obvious that Exhibit R should not have been sent to the jury and that error occurred when it was sent.

It is my tentative view that Rule 52 (a) requires this Court to determine whether that error, inadvertent as it may have been, did or did not affect the substantial rights of the defendants. Rule 52(a) requires that such error shall be disregarded if it is determined that the substantial rights of the defendants were not affected. Rule 52(b), of course, requires that such error must be noticed if it is concluded that the substantial rights of the defendants were affected.

Judge Van Oosterhout's opinion in Osborne v. United States, supra, collects the cases where the question presented has been discussed. The exhibit in Osborne which erroneously went to the jury was found to have contained "highly damaging and prejudicial matter which could well have an affect upon the jury verdict." Such a finding required that the defendant in that case be granted a new trial.

But neither Osborne nor any other case with which we are familiar, suggests that a per se rule is applicable to all cases in which the jury sees an exhibit which was not admitted in evidence. The error implicit in the circumstance of the two exhibits not admitted in evidence which went to the jury in Finnegan v. United States, (8th Cir., 1953) 204 F.2d 105, for example, was found to be not prejudicial under the circumstances of that case.

It is our tentative view that the question of whether any substantial rights of the defendants were affected must be determined on a case by case basis and that, as stated in Kotteakos v. United States, 328 U.S. 750, 762, 66 S.Ct. 1239, 1246, 90 L.Ed. 1557 (1946), "in the final analysis judgment in each case must be influenced by conviction resulting from examination of the proceedings in their entirety, tempered but not governed in any rigid sense of stare decisis by what has been done in similar situations." Kotteakos teaches that where the judge "is sure that the error did not influence the jury, or had but very slight effect, the verdict and the judgment should stand, except perhaps where the departure is from a constitutional norm or a specific command of Congress."

On the other hand, Kotteakos also teaches that:

. . . . If one cannot say, with fair assurance, after pondering all that happened, without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error, it is impossible to conclude that substantial rights were not affected. The inquiry cannot be merely whether there was enough to support the result, apart from the phase affected by the error. It is rather, even so, whether the error itself had substantial influence. If so, or if one is left in grave doubt, the conviction cannot stand.

The Eighth Circuit cases and other Supreme Court cases which apply the rule were recently collected in United States v. Porter, (8th Cir., 1971) 441 F.2d 1204 at 1215.

I believe it appropriate to state that it is my tentative view that I do not deem it in the interest of justice to rule this type of question upon any theory that counsel were afforded a full and fair opportunity to check the exhibits for themselves. Judge Gardner gave some weight to that consideration in holding the error involved in Finnegan to be not prejudicial. And Judge Weick ...