United States v. Hamilton

• Decision Date: 26 January 1972
• Docket Number: No. 71-1031,71-1032.,71-1031
• Citation: 452 F.2d 472
• Parties: UNITED STATES of America, Appellee, v. Lloyd Theodore HAMILTON, Appellant. UNITED STATES of America, Appellee, v. Tommie DUNMORE, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

452 F.2d 472 (1971)

UNITED STATES of America, Appellee, v. Lloyd Theodore HAMILTON, Appellant.

UNITED STATES of America, Appellee, v. Tommie DUNMORE, Appellant.

Nos. 71-1031, 71-1032.

United States Court of Appeals, Eighth Circuit.

December 20, 1971.

Rehearing and Rehearing January 26, 1972.

COPYRIGHT MATERIAL OMITTED

Ronald M. Sokol, Asst. Fed. Public Defender, Kansas City, Mo., for appellants.

Anthony P. Nugent, Jr., Asst. U. S. Atty., Kansas City, Mo., for appellee.

Before MATTHES, Chief Judge, GIBSON, Circuit Judge, and VAN PELT, Senior District Judge.^*

Rehearing and Rehearing En Banc January 26, 1972.

MATTHES, Chief Judge.

Count I of an indictment returned on August 6, 1970, in the United States District Court for the Western District of Missouri charged Tommie Lee Dunmore and Lloyd Theodore Hamilton, appellants herein, and Benjamin Andre Franklin and James Ervin Riley, with violation of 18 U.S.C. § 371 by conspiring to perpetrate the armed robbery of "the Suburban Bank and Trust Company . . . Kansas City, Missouri, . . . a banking corporation chartered under and doing business pursuant to the laws of the State of Missouri, with its deposits being insured by the Federal Deposit Insurance Corporation . . .," in violation of 18 U.S.C. §§ 2113(a), (b), (c) and (d). Other persons were named as co-conspirators, but not as defendants.

Count II charged that defendants Benjamin Andre Franklin and James Ervin Riley wilfully and unlawfully took by force and violence from the same bank a substantial sum of money in violation of 18 U.S.C. Sections 2113(a) and 2113(d). This count also charged Dunmore and Hamilton with wilfully and unlawfully aiding and abetting the robbery of the bank, in violation of 18 U.S.C. Sections 2 and 2113(a) and (d).

The appellants, Dunmore and Hamilton, were jointly tried and each was convicted on both counts. At trial, each was represented by separate, appointed counsel. On this in forma pauperis appeal from the judgment of conviction both are represented by Hamilton's trial attorney.

Before considering the alleged errors, we briefly consider the pertinent evidence, viewing it as we must in the light most favorable to the government.

On July 22, 1970, the Suburban Bank and Trust Company of Kansas City was robbed by three, unmasked, armed, young Negro men: James Riley, then 18 years old, Robert Stuart, then 17, and Benjamin Andre Franklin. Riley and Stuart were photographed while in the bank committing the offense by surveillance cameras concealed in the bank. Franklin also entered the bank, but is not shown on the photographs apparently because he was positioned near the door and outside the focus of the cameras. The charge was subsequently dismissed as to Benjamin Andre Franklin, who was convicted in a separate proceeding of the robbery of a post office. Both Riley and Stuart pleaded guilty to the robbery in the present proceeding.

The testimony of the admitted accomplices, Riley, Stuart, Gary Burton and Elbert Thompson, showed that appellants Hamilton and Dunmore had planned the robbery, procured the services of these youths to perpetrate it, and had furnished the weapons used; that Burton's home was used as a site for planning the endeavor and disbursing the proceeds; that Thompson's car was used to facilitate the robbers' flight; and that all seven shared in the stolen money.

I.

Appellants in their joint brief present five contentions of error. Their first point levels this serious charge:

"Appellants were denied a fair trial and due process of law in that the government knowingly and intentionally used perjured, false and misleading testimony to obtain their conviction and withheld evidence favorable to the defense on the issues of their innocence or guilt." (Emphasis supplied)

Appellants' brief, at 34.

Although the word "government" could encompass all federal law enforcement officers involved in the investigation of the offense and the preparation of this case for trial, it is clear that the accusation was aimed at the Assistant United States Attorney who tried the case.¹ Appellants' attorney pinpointed the target of his charge by naming the Assistant United States Attorney several times in brief and oral argument.

This allegation is premised on the conclusion appellants' attorney draws from the fact that the testimony at trial was largely uniform among the accomplices while their grand jury testimony varied among them and from their trial testimony. Appellants' counsel deduces from this that all this testimony was perjured to falsely implicate the appellants and strongly implies that the Assistant United States Attorney who prosecuted the charge procured this fabrication in order to incriminate appellants. Counsel, however, equivocated somewhat on that argument and rests primarily on the equally drastic charge that it was the witnesses who concocted the story implicating appellants, but that the prosecutor, in his pretrial interview with the witnesses, persuaded them to alter their grand jury testimony to form a cohesive, persuasive presentation for trial² and then failed to state affirmatively at trial that he was aware of the instances of allegedly false recollections resulting from these alterations.³

As indicated, however, appellants' attorney is able to support these contentions of gross misbehavior by the Assistant United States Attorney only by pointing to inferences he draws from various discrepancies between the trial testimony and previous statements of the accomplices.⁴

Appellants' counsel has not directed our attention to any direct evidence of the procurement by the prosecution, or for that matter by any other person, of perjured testimony. Our careful examination of the transcript shows the variation between the testimony given at trial and before the grand jury relates only to minor facets of the recounting of the conspiracy such as whether, during their first meeting, Robert Stuart was across the street or joined in the conversation, whether the appellants told them the name of the bank on Tuesday or Wednesday, whether before and after the robbery Franklin came into Burton's house or remained in the car, and whether or not appellants told Thompson, or merely inferred to him, that their rental of his car was for a robbery.

As is frequently the situation during a hotly contested trial where numerous witnesses have given testimony on more than one occasion, such as on deposition or before a grand jury and again at trial, there were discrepancies between the grand jury testimony and the trial testimony. But none of the statements of the witnesses relied upon to formulate the assertion of perjury is substantively exculpatory of these appellants. To the contrary the key witnesses consistently testified as to the roles played by appellants in initiating the scheme to rob the bank and aiding and abetting the consummation of the offense. The only alleged inconsistency which goes to the substance of the indictment is Riley's denial upon cross examination that he had told appellant Hamilton's trial counsel by telephone that appellant Hamilton was not involved in this escapade.⁵ But, as appellants' counsel conceded at oral argument, since the telephone conversation was raised solely on cross examination, this denial can in no way be ascribed to the prosecution and thus lends no support to the serious allegation here advanced.

To allege that any attorney "knowingly used perjured . . . testimony" is to charge a violation of the legal profession's canons of ethics. Code of Professional Responsibility, DR 7-102(A) (4). To allege as here that the perjury was concocted at the pretrial interview and "through his efforts" is tantamount to an accusation of criminal conduct. 18 U.S.C. § 1622. To allege such misconduct by the Assistant United States Attorney is to allege official perversion of the administration of justice. To air such an allegation without substantial basis is itself questionable conduct. "While a lawyer as a citizen has a right to criticize such officials publicly, he should be certain of the merit of his complaint and use appropriate language, . . . for unrestrained and intemperate statements tend to lessen public confidence in our legal system." Code of Professional Responsibility, Ethical Consideration 8-6. The lawyer must be mindful that it "rests with him to preserve the purity of the legal system"⁶ not only by exposing unethical conduct, but also by giving careful scrutiny to his allegations that it exists. The obligation to expose unethical conduct when it comes to his attention "does not permit one to make charges which are . . . unfounded in fact. When one's fancy leads him to make false charges, attacking the character and integrity of others, he does so at his peril. He should not do so without adequate proof of his charges and he is certainly not authorized to make careless, untruthful and vile charges against his professional brethren." Code of Professional Responsibility, Canon 8, Note 10, quoting In re Meeker, 76 N.M. 354, 364-365, 414 P.2d 862, 869 (1966), appeal dismissed, 385 U.S. 449, 87 S.Ct. 613, 17 L.Ed.2d 510 (1967) (emphasis supplied).

We are mindful that vigorous advocacy by trial attorneys is commendable and desirable. Indeed, Canon 7, Code of Professional Responsibility, teaches: "The duty of a lawyer, both to his client and to the legal system is to represent his client zealously within the bounds of the law. . . ." EC 7-1. But a lawyer should not become so engrossed in his client's cause that he resorts to making serious charges against his opponent on the basis of conclusions and inferences drawn from an insubstantial factual premise.

An objective consideration of this record leads us to believe that appellants' counsel mistakenly equated minor testimonial discrepancies with perjury of the entire testimony, and that when he learned subsequent to the trial that the Assistant United States Attorney had interviewed...