United States v. McBride

• Decision Date: 11 August 1972
• Docket Number: No. 71-2332.,71-2332.
• Citation: 463 F.2d 44
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Alvin McBRIDE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

463 F.2d 44 (1972)

UNITED STATES of America, Plaintiff-Appellee, v. Alvin McBRIDE, Defendant-Appellant.

No. 71-2332.

United States Court of Appeals, Fifth Circuit.

June 27, 1972.

Rehearing and Rehearing Denied August 11, 1972.

Louis P. Trent, George M. Leppert, New Orleans, La., for defendant-appellant.

Gerald P. Gallinghouse, U.S. Atty., Joseph R. McMahon, Jr., Mary Williams Cazalas, Asst. U.S. Attys., New Orleans, La., for plaintiff-appellee.

Before RIVES, COLEMAN and DYER, Circuit Judges.

Rehearing and Rehearing En Banc Denied August 11, 1972.

COLEMAN, Circuit Judge:

This is an odd case.

Almost three years ago, the grand jury for the Eastern District of Louisiana indicted Alvin McBride for the theft of thirteen bags of coffee, while it was moving in foreign commerce from Mexico to the United States, 18 U.S.C. § 659. A conviction followed. This Court affirmed, United States v. McBride, 438 F.2d 517 (February 10, 1971). We held, "There is no merit to any of the appellant's contentions".

Our opinion Judges Brown, Wisdom, and Roney further stated:

We note especially that there was probable cause to arrest the defendant and seize the coffee when the harbor police officer, Captain Allemand, observed the coffee in the rear of the parked truck which had been driven by the defendant.

The Supreme Court denied certiorari, McBride v. United States, 403 U.S. 920, 91 S.Ct. 2236, 29 L.Ed.2d 698 (1971).

About a month subsequent to the denial of certiorari, alleging the discovery of new evidence, McBride filed a motion for a new trial. This motion was denied. McBride again appeals. We affirm.

At the original trial there was a motion to suppress the coffee which had been seized at the time of McBride's arrest. It was argued that there was no probable cause for the arrest; hence the search of McBride's truck, from which the coffee had been seized, was unlawful. The key witness at the suppression hearing was Captain Allemand, of the New Orleans Harbor Police.

There had been a rash of thefts from the docks. Prior to the date of the offense in question a paid informer had been calling the harbor police to report various thefts. On the day of McBride's arrest, this informer notified the harbor police that he had observed a vehicle used in one of the previous thefts. Captain Allemand and some of his men set out to investigate. On Market Street, they spotted a van and commenced to follow it. It later turned out that this was not the van observed by the informer.

At the suppression hearing, Allemand testified that he identified McBride as the driver of the van and this aroused his suspicion because McBride had been involved in an investigation of dock thefts some four years before (from which no arrest or conviction resulted). After McBride's van had been followed for sometime, it turned into a driveway at a residence. Allemand got out of his vehicle and approached the van. He looked into the van through the rear windows, upon which he saw burlap bags on the floor, which he identified as coffee bags. McBride was arrested, the truck was searched, the bags were seized, and they had been stolen from the wharves.

With that testimony in the record, this Court held that there was probable cause to arrest the defendant and to seize the coffee.

To this point, there is no difficulty, but difficulties soon developed in a most unprecedented manner.

After McBride had been convicted, Captain Allemand suffered a stroke. McBride was out on bail, pending appeal. He went to see Allemand at the hospital, visited him every night in his home, and taught him to walk again.

On November 23, 1970, Captain Allemand's condition took a quick turn for the worse and he was rushed to the hospital. He died the next morning. Before he died, Allemand sent for McBride to come to the hospital. They conversed privately. Allemand told his wife that he had not told the truth at the suppression hearing; that, in fact, he had not recognized McBride when the van was first sighted but had followed the van essentially out of general suspicion. Moreover, he had not looked into the van nor had he seen any coffee bags before making the arrest. Specifically, Allemand thus repudiated the testimony which had established probable cause and had paved the way for the admissibility of the stolen coffee. He asked Mrs. Allemand to so inform the Court.

In the light of these developments, McBride moved for a new trial. The District Court heard Mrs. Allemand's testimony, stated that he had no doubt that she was telling the truth as to what her husband had said, but denied the motion.

Under the recited circumstances the sole issue is: Did the District Court err in the denial of a new trial?

Rule 26 of the Federal Rules of Criminal Procedure provides that:

The admissibility of evidence and the competency and privileges of witnesses shall be governed, except when an act of Congress or these rules otherwise provide, by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience.

The common law applied by the Federal Courts is determined by the Supreme Court of the United States on all points on which that Court has spoken, United States v. Heideman, 21 F.R.D. 335, 339 (D.D.C., 1958), affirmed, 1958, 104 U.S.App.D.C. 128, 259 F.2d 943, cert. denied 359 U.S. 959, 79 S.Ct. 800, 3 L.Ed. 2d 767.

This situation points directly to the decision of the Supreme Court in Mattox v. United States, 156 U.S. 237, 15 S.Ct. 337, 39 L.Ed. 409 (1895).

In that case Mattox, on his third trial, had been sentenced to death for a murder allegedly committed in a part of the Indiana Territory within the exclusive jurisdiction of the United States. Mattox had been once convicted and that conviction was reversed. A second trial resulted in a hung jury. At the trial under review the government introduced, by transcript, the testimony of a witness who had died since the preceding trial. Mattox then proposed to impeach this testimony by showing that subsequent to the former trial the dead man had said that he did not see Mattox do the shooting, that he could not tell who did the shooting, that all he had testified to on the former trial was false, and that he wanted to leave the country; moreover, he had told a second individual that he had been forced to testify falsely.

Quoting the opinion of the Supreme Court, 156 U.S. at 245, 15 S.Ct. at 340:

Objection was made by the district attorney to the introduction of this testimony upon the ground that Whitman the deceased witness had been examined and cross-examined upon the former trial; that the questions could not be propounded to the witnesses James and Violet for the purpose of impeachment, as the government had lost the opportunity, by the death of the witness Whitman, of putting him upon the stand and contradicting them. The facts were that the statements of Whitman, which the defendant proposed to prove by the witnesses James and Violet, were made after the former trial, so that the proper foundation could not have been laid by asking Whitman whether he had made such statements.

The Supreme Court, although divided six to three, held:

The authorities, except in some of the New England States, are almost unanimous to the effect that, before a witness can be impeached by proof that he has made statements contradicting or differing from the testimony given by him upon the stand, a foundation must be laid by interrogating the witness himself as to whether he has ever made such statements. Justice to the witness himself requires not only that he should be asked whether he had ever made such statements, but his attention should be called to the particular statement proposed to be proven, and he should be asked whether, at such a time and place, he had made that statement to the witness whose testimony is about to be introduced. This method of impeachment was approved by this court in Conrad v. Griffey, 16 How. 38, 46 14 L.Ed. 835, wherein the rule is stated to be `founded upon common sense, and is essential to protect the character of a witness. His memory is refreshed by the necessary inquiries, which enable him to explain the statements referred to, and show that they were made under a mistake, or that there was no discrepancy between them and his testimony.' In this case the deposition of a witness taken in the cause was sought to be impeached by a letter of the witness written before his deposition, and addressed to the plaintiff, with an affidavit annexed by him of the same date. The general rule is also approved in The Charles Morgan, 115 U.S. 69, 77, 5 S.Ct. 1172 29 L.Ed. 316, although in that particular case it was held that proper foundation had been laid for the introduction of the evidence. The principle was also approved in Chicago, Milwaukee & St. Paul Railway v. Artery, 137 U.S. 507 11 S.Ct. 129, 34 L.Ed. 747.

It is insisted, however, that the rule ceases to apply where the witness has died since his testimony was given, and the contradictory statements were either made subsequent to the giving of his testimony, or, if made before, were not known to counsel at the time he was examined; that if such contradictory statements be not admitted, the party affected by his testimony is practically at the mercy of the witness; that the rule requiring a foundation to be laid is, after all, only a matter of form, and ought not to be enforced where it works a manifest hardship upon the party seeking to impeach the witness. The authorities, however, do not recognize this distinction emphasis added.

* * * * * *

While the enforcement of the rule, in case of the death of the witness subsequent to his examination, may work an occasional hardship by depriving the party of the opportunity of proving the contradictory statements, a relaxation of the rule in such cases would offer a temptation to perjury, and the fabrication of testimony, which, in criminal cases especially,...