United States v. Hill

• Decision Date: 19 May 1964
• Docket Number: No. 14318.,14318.
• Citation: 332 F.2d 105
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Lawrence HILL, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

332 F.2d 105 (1964)

UNITED STATES of America, Plaintiff-Appellee, v. Lawrence HILL, Defendant-Appellant.

No. 14318.

United States Court of Appeals Seventh Circuit.

May 19, 1964.

R. Eugene Pincham and Charles B. Evins, Chicago, Ill., for appellant.

Edward V. Hanrahan, U. S. Atty., Douglas G. Brown, Asst. U. S. Atty., Chicago, Ill., John Peter Lulinski, John Powers Crowley, Asst. U. S. Attys., of counsel, for appellee.

Before DUFFY, SCHNACKENBERG and CASTLE, Circuit Judges.

DUFFY, Circuit Judge.

Two alleged sales of narcotics are involved in this case. The defendant was found guilty by a jury verdict. In the trial, the Government was required to rely largely on the testimony of one Brown who was a "special employee" of the Federal Bureau of Narcotics, and was also a thrice-convicted felon, one of the convictions being on the charge of post-office safe robbery.

Defendant contends he did not receive a fair or impartial trial by reason of the trial court's advocacy for and on behalf of the prosecution, the Court's cross-examination of the defendant and defendant's witnesses, and the alleged prejudicial and erroneous instructional comment on the evidence and other comments.

We think this was a close case. Defendant, at all times, denied trafficking in narcotics. None of the pre-recorded currency nor the narcotics or paraphernalia used in connection therewith, were found in defendant's possession. The testimony of "special employee" Brown was practically uncorroborated except for the agents' identification of defendant's voice which was heard by the agents for the first time over the telephone and a battery-powered transmitting and receiving set, sometimes referred to as a "Fargo Device."

We agree with the Court's statement in Gomila v. United States, 5 Cir., 146 F.2d 372, 373-374: "* * * A fair and impartial trial is guaranteed to every defendant, and fundamentally means a trial before an impartial judge and by an impartial jury. In aid of truth and in furtherance of justice, the court may question a witness, — in fact, he may call and question a witness not used by either party, — but in so doing the court should be careful to preserve an attitude of impartiality and guard against giving the jury any impression that the court was of the opinion that defendant was guilty. * * *"

Also pertinent is United States v. Carmel, 7 Cir., 267 F.2d 345, 350 where this Court stated: "We realize that an alert and capable judge at times feels that he can assist in developing the evidence by participating in the interrogation of witnesses. However, he would ordinarily do well to forego such intrusion upon the functions of counsel, thus maintaining the court's position of impartiality, in the eyes of the ever-observant jurors. The record in this case reveals no justification for the extensive intervention of the able trial judge."

A reading of the record discloses that in the case at bar, the trial court did participate extensively in the cross-examination of the defendant. The Government was represented by able trial counsel and there was no apparent reason why that counsel needed any help on the cross-examination of the defendant or defendant's witnesses. The trial court asked thirty-five questions of the defendant on cross-examination, and a number of them were so...