United States v. Pierce

• Decision Date: 20 January 1936
• Docket Number: No. 4952.,4952.
• Parties: UNITED STATES v. PIERCE. SAME v. ROACH.
• Court: U.S. District Court — Western District of Tennessee

13 F. Supp. 301

UNITED STATES v. PIERCE.

SAME v. ROACH.

No. 4952.

District Court, W. D. Tennessee.

January 20, 1936.

Wm. McClanahan, U. S. Atty., and Joseph M. Bearman and R. G. Draper, Asst. U. S. Attys., all of Memphis, Tenn., for the United States.

L. E. Gwinn, of Memphis, Tenn., and Wm. H. Pierce, of Huntsville, Ala., for defendant J. E. Pierce.

Edgar Webster, of Memphis, Tenn., for defendant E. H. Roach.

MARTIN, District Judge.

The defendants, J. E. Pierce and E. H. Roach, were jointly indicted in twenty-one counts; in the first of which they were charged with the violation of title 18, § 76, U.S.C.A., in conspiring to commit an offense against the United States; and in the other twenty counts the charge was laid against them that they had violated title 18, § 76, U.S.C.A., in falsely pretending to be United States officers.

After a trial by jury which consumed four days' time, embracing night sessions, and in which forty-eight witnesses testified, the jury found both defendants guilty on seventeen counts of the indictment charging them with falsely pretending to be United States officers; acquitted them on two counts laying the same charge; and also acquitted them on the first count of the indictment, charging conspiracy. The remaining count was dismissed by United States attorneys for lack of evidence of the offense charged.

The testimony of government witnesses established that the defendant J. E. Pierce, a newspaper publisher of Huntsville, Ala., accompanied by E. H. Roach, called upon various farmers and persons closely identified with the interests of farmers in several West Tennessee counties; and that Pierce introduced himself and Roach as "representatives of the United States government, selling TVA units."

Concisely stated, the proof showed that the defendant Pierce would inquire of the prospective victim of the scheme if he were interested in having electric power and good roads for his community and in the development of the natural and potential resources of his county. When the beguiled one — generally a farmer — would reply that he had such interest, Pierce, aided and abetted by Roach, would inform him that such advantages could be obtained if he and his neighbors would purchase units in TVA. Pierce represented that the United States government would co-operate with the residents of the county by matching "dollar for dollar," the total amount raised by the sale of TVA units in the county.

Substantive transactions had by the defendants with ten individuals in violation of title 18, § 76, U.S.C.A., were charged in the indictment, and proven at the trial. The defendants were convicted upon seven of these separate transactions, each embracing two counts, and upon three transactions, each covered by one count. In some instances the defendants obtained no money, and in others they did obtain money.

In all convictions of defendants on two counts of the indictment pertaining to one substantive transaction, money was obtained as a result of their falsely pretending to be United States officers. The jury verdict in this respect was consistent with the proof and the proper interpretation of the statute; because title 18, § 76, U.S. C.A., defines two offenses, one falsely impersonating an officer or employee of the United States and acting to defraud the United States or some person; and the other, falsely impersonating an officer or employee, and demanding or obtaining money or other valuable thing with intent to defraud. United States v. Rush (D.C. Wash.1912) 196 F. 579; United States v. Taylor (D.C.Mo.1900) 108 F. 621; United States v. Curtain (D.C.S.C.1890) 43 F. 433; (principle recognized) Lamar v. United States (N.Y.1916) 241 U.S. 103, 36 S.Ct. 535, 60 L.Ed. 912; Brafford v. United States (C.C.A.6) 259 F. 511.

The separate substantive transactions were also distinct offenses, each cognizable by title 18, § 76, U.S.C.A. This principle is recognized in Scala v. United States (C.C.A.7, 1931) 54 F.(2d) 608, certiorari denied by the Supreme Court of the United States, 285 U.S. 554, 52 S.Ct. 411, 76 L.Ed. 943.

The defendants filed seasonably their joint motion for a new trial, specifying seven grounds. On consideration of the motion for a new trial, counsel for the defendants and for the government have been heard in elaborate and skillful oral argument, consuming eight hours of court sessions.

The first, second, and third grounds of the motion for a new trial charged, respectively, that the court erred (1) in overruling defendants' motion to quash the indictment, (2) in overruling defendants' demurrer to the indictment, and (3) in overruling defendants' motion for a directed verdict. The court stated, at the conclusion of the argument, that the reasons offered in support of the first three assignments of error are insufficient to merit further consideration.

The seventh ground of the motion for a new trial is predicated upon newly discovered evidence, supported by affidavits. All of such newly discovered evidence is deemed cumulative in support of the defendants' theory, adequately presented at the trial, and is of such slight significance that had it been introduced at the trial, the verdict of the jury would not have been affected thereby. Ample testimony was produced by defendants to the effect that they had sold advertising space in the Huntsville Daily Register, and not TVA units, to numerous persons whom they had approached. But the verdict of the jury clearly rested upon the testimony of the host of witnesses who swore that defendants had represented to each of them that they were representatives of the government, selling TVA units. The seventh ground of the motion is, therefore, considered to be without merit. See Miller v. Commonwealth (C.C.A.6) 40 F.(2d) 820.

Following oral argument of the motion, the court has taken under advisement and thoughtfully deliberated upon the force of the able argument, supplemented by exhaustive briefs, of the counsel for defendants upon the fourth, fifth, and sixth grounds of the motion.

When analyzed, these three assignments so intertwine into the pattern of a single proposition of law that logic demands that they be considered as a whole, and not separately. Each rests upon the alleged unfair and prejudicial attitude and actions of the government attorneys; the fourth assignment on specified questions asked in the examination of witnesses, the fifth assignment on specified instances of improper argument, and the sixth assignment on questions asked and statements made in the presence of the jury as to indictments and proceedings against the defendant Pierce in the state of Mississippi.

It is not contended by counsel for defendants that the court failed to exclude from the jury the consideration of incompetent evidence, or failed to instruct the jury to disregard the alleged improper argument of the United States attorneys. In fact, in the voluminous record of the trial, no exception appears to any ruling of the court upon the objections of the defendants to arguments of the government attorneys, or to the rulings of the court in admitting or excluding evidence upon material matters.

Their contention is based upon allegations of continued disregard by the district attorney and his assistants of the rulings and admonitions of the court — not, of course, to the extent of contempt, but to the degree of material prejudice of the right of defendants to a fair trial. It is conceded that the court constantly sustained objections to improper questions asked and arguments made by the government attorneys. It is urged that the cumulative effect of the extraneous prejudicial matter presented before the jury, even though the court excluded it from their consideration, tended to so prejudice the minds of the jurors as to result in an unfair trial and conviction of defendants.

This opinion would be extended to an unreasonable length should all specific instances of alleged misconduct of government counsel be detailed. It is sufficient to recite some of the most important instances, in which the defendants charge that government attorneys transgressed; conveying to the jury by improper questions the suggestion that defendant Pierce had been tried in the federal courts of Alabama; that he could not obtain credit in his home town of Huntsville, Ala., or procure reputable witnesses who resided there to testify to his good character; that United States Senator Bankhead of Alabama, after interviewing Senator McKellar of Tennessee, could not be procured as a character witness for defendant Pierce; that Pierce had transferred property to his wife and son in fraud of creditors; that he had been frequently detained and investigated by law enforcement officials; and that he was under indictment in the state courts of Mississippi and was a fugitive from justice of that state.

A few illustrative excerpts from the record, sufficient to demonstrate the character of action taken by the court in certain of the specific instances alleged as misconduct by government counsel, will be quoted.

During the cross-examination of defendant Pierce, he was asked by the district attorney:

"Q. You are under bond right now for a complaint in Mississippi, aren't you? A. No sir; there has been no complaint."

Whereupon, Mr. Webster, attorney for defendant Roach, said: "If your Honor please, that matter has heretofore been referred to, and there is absolutely nothing to it. The matter has been considered by the Grand Jury, and a not true bill returned. Why go further into it?"

Then followed the following colloquy:

"Mr. Draper: (Asst. District Atty.) If your Honor please, if Mr. Webster wants to testify let him be sworn and take the stand.

"The Court: The Court could not receive any statement about the matter except from the witness stand.

"Mr. Webster: Well, I think this, if your Honor please, the Attorney General's office, if it really wants to, can find out the true...