United States v. Morris

• Decision Date: 15 January 1970
• Docket Number: Crim. No. 23175.
• Citation: 308 F. Supp. 1348
• Parties: UNITED STATES of America v. Galveston MORRIS a/k/a Sonny.
• Court: U.S. District Court — Eastern District of Pennsylvania

308 F. Supp. 1348

UNITED STATES of America v. Galveston MORRIS a/k/a Sonny.

Crim. No. 23175.

United States District Court E. D. Pennsylvania.

January 15, 1970.

Victor Wright, Asst. U. S. Atty., E. D. Pennsylvania, for plaintiff.

Milton Leidner, Bernard Segal, Philadelphia, Pa., for defendant.

OPINION

MASTERSON, District Judge.

The defendant in this case was apprehended in Philadelphia on January 17, 1968, and was charged with having illegally sold heroin on May 2, 1967. The defendant's arrest effectively closed what had been an extensive undercover investigation by both State and Federal agents into a narcotics ring, of which the defendant was the reputed head. At a trial before a jury, the defendant was found guilty of a sale of narcotics in violation of 26 U.S.C. § 4704(a). Presently before this Court is defendant's Motion for a New Trial and a Motion to Quash the Indictment.

MOTION FOR A NEW TRIAL

In support of his Motion for a New Trial, the defendant alleged the following grounds:

(1) the verdict was against the evidence;

(2) the verdict was against the weight of the evidence;

(3) the verdict was against the law;

(4) the trial court erred in over-ruling the defendant's motion for judgment of acquittal;¹

(5) the court committed error in failing to grant the defendant a pre-trial hearing on his motion to dismiss the indictment; further, the court erred in denying the defendant's pre-trial motion to dismiss.

I.

Initially, we will consider defendant's claim that a new trial should be granted because the verdict was against the evidence and also against the weight of the evidence. On a motion for a new trial, the court may weigh the evidence and consider the credibility of witnesses. Indeed, it has been said that on such a motion the court sits as a "thirteenth juror". Wright, Federal Practice and Procedure, § 553. If the court reaches the conclusion that the verdict is contrary to the evidence, or its weight, and that a miscarriage of justice may have resulted, the verdict may be set aside and a new trial granted. Suffice it to say that after reviewing the evidence on both sides and assessing the credibility of the witnesses, we find that the verdict was fully justified by the evidence.

II.

Defendant also avers that a new trial should be granted in that the verdict was against the law. The motion does not specifically allege what legal errors were committed. However, in his Memorandum in Support of the Motion, the defendant states that the court erred in its charge relating to the "interest in the outcome" of the litigation as regards the defendant and the informer. (N.T.T. pp. 401-403). This, we assume, is the basis for the defendant's assignment of legal error.

Fatal to the defendant's objection is Rule 30 of the Federal Rules of Criminal Procedure, 18 U.S.C., which provides, in pertinent part, that:

"* * * No party may assign as error any portion of the charge or omission therefrom unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects and the grounds of his objection. * * *"

Here, the defendant failed to object to the charge before the jury retired to consider its verdict, even though the court provided a suitable opportunity for counsel to make specific objections. (See N.T.T. pp. 416-417). This would normally be enough to allow us to find against the defendant. However, we are aware that our own Circuit Court of Appeals has cautioned against applying the technicalities of Rule 30 so "woodenly" as to cause it to become "a trap for the unwary."² United States v. Currens, 290 F.2d 751 (3rd Cir. 1961). In this spirit, then, we will read the requirements of a Rule 30 objection in connection with Rule 52(b), Federal Rules of Criminal Procedure, which allows plain errors or defects affecting substantial rights to be considered although they were not timely brought to the attention of the trial court. Wright, Federal Practice and Procedure, § 484.

In assigning error, the defendant points to the Court's following language in discussing the "interest" of the informer, George Payne:

"Payne, it is difficult to see how he would have a technical interest in the outcome of the case. He is a prisoner. He was a professional informer. You will just have to use your judgment in assessing his credibility." (N.T.T. p. 402).

The defendant now asserts that the above language obscured possible motives for Payne to give false testimony incriminating the defendant. It is argued, for example, that Payne might have been motivated by the expectation of favorable consideration by the government for early release from the Federal penitentiary. We do not find the above argument compelling for the language of our charge does not preclude any finding of interest on the informer's part. We merely state that it is not readily apparent and that the jurors should use their own judgment in this matter. This we find to be within appropriate grounds of judicial comment and instruction.

Nor do we find prejudicial our statements as to the defendant's interest in the outcome of the case. We merely stated the obvious — that the defendant has an interest in not being convicted. (N.T.T. p. 402). Defendant now complains that this was neither fair nor balanced, in that we failed to state that not all defendants are ultimately found guilty and that the jury should have been instructed that Morris had an interest of a possibly innocent man. This objection by the defendant we find specious at best, especially when read in light of our charge as to the presumption of the defendant's innocence. (N.T.T. pp. 416-417).

Thus, we conclude, that defendant's assignment of error regarding the Court's charge is lacking in merit. Rule 52(a), Federal Rules of Criminal Procedure, 18 U.S.C.

III.

We next turn to defendant's contention that the Court erred in denying the motion for judgment of acquittal, which was made at the close of all the evidence and before the jury was charged. (N.T.T. pp. 352-353). The standard by which the court is to be guided in passing on a motion for judgment of acquittal is whether, taking the view most favorable to the government, United States v. Giuliano, 263 F.2d 582, 584 (3rd Cir. 1959), the evidence is "insufficient to sustain a conviction." Rule 29(a), Federal Rules of Criminal Procedure. "The question is whether all the pieces of evidence against the defendant, taken together, make a strong enough case to let a jury find him guilty beyond a reasonable doubt." United States v. Allard, 240 F.2d 840, 841 (3rd Cir. 1957); cert. denied, Fishman v. United States, 353 U.S. 939, 77 S.Ct. 814, 1 L.Ed.2d 761 (1957). However, in passing on this question, we recognize that our powers are not as broad as when we consider a motion for a new trial, for it is not for a judge, ruling on a motion for judgment of acquittal, to assess the credibility of witnesses, weigh the evidence, or draw inference of fact from the evidence. These are functions of the jury. United States v. Saka, 339 F.2d 541 (3rd Cir. 1964); Wright, Federal Practice and Procedure, §§ 467, 553. With these limitations in mind, we have reviewed the evidence and have concluded that our denial of the defendant's motion for judgment of acquittal was proper.³

IV.

Before the trial commenced, defendant's counsel made a preliminary motion for the dismissal of the indictment on the basis of Ross v. United States, 121 U.S. App.D.C. 233, 349 F.2d 210 (1965). In Ross, the Circuit Court overturned a conviction for narcotics violation on the ground of denial of due process because of their finding that the defendant was unable to adequately defend himself. The complaint against the defendant there was not sworn out until 7 months after the alleged offense, although the defendant was continuously available for arrest during this period. Apart from the narcotics, the prosecution's case consisted solely of a policeman's testimony that he had purchased narcotics from the defendant.

On the basis of Ross, supra, the defendant here urged that the fact that approximately 8½ months had expired between the date of the alleged illegal drug transaction and the date of the arrest was enough for the Court to dismiss the indictment before trial. However, we did not think that the 8½ month delay, without more, provided us with an adequate basis to decide the Ross claims in the pre-trial stage. More specifically, we had no evidence as to the qualifying factors which were present in the Ross case, vis., whether there was any evidence to corroborate the undercover agent's testimony and whether the delay in arresting the defendant was reasonable. We expected that evidence bearing on these points might be developed during the ordinary course of trial. However, we advised counsel that if the defendant were found guilty, and if an adequate trial record had not been established on the Ross issue, we would entertain a separate post-trial factual hearing on this matter.⁴ (N.T.T. pp. 4-6).

Defendant now claims that our failure to hold an evidentiary hearing and decide the Ross question in the pre-trial stage resulted in prejudicial error. Specifically, defendant avers that, as a result, he was "compelled" to question the undercover agent in order to protect the record in regard to his Ross claim, and that such questioning elicited from the witness the prejudicial fact that Morris had been declared a "fugitive" by the Federal Bureau of Narcotics.⁵ (N.T.T. p. 106). It is argued that had an adequate pretrial hearing been held this allegedly prejudicial statement as to the flight of the defendant would not have been elicited.

Initially we find that defendant's failure to timely object at trial to the testimony, pursuant to Rule 51 of the Federal Rules of Criminal Procedure, where an opportunity to so object existed, precludes the defendant from claiming prejudice now. United States v. Grosso, 358 F.2d 154 (3rd Cir. 1966), ...