United States v. Ramos, 7454.

• Decision Date: 04 October 1968
• Docket Number: No. 7454.,7454.
• Citation: 291 F. Supp. 71
• Parties: UNITED STATES of America v. Anthony Dennis RAMOS, alias John Doe.
• Court: U.S. District Court — District of Rhode Island

291 F. Supp. 71

UNITED STATES of America v. Anthony Dennis RAMOS, alias John Doe.

No. 7454.

United States District Court D. Rhode Island.

October 4, 1968.

Edward P. Gallogly, U. S. Atty., and Frederick W. Faerber, Jr., Asst. U. S. Atty., Providence, R. I., for plaintiff.

Seth K. Gifford, Providence, R. I., for defendant.

OPINION

PETTINE, District Judge.

The matter before the court is a motion for a new trial filed on behalf of the defendant, Anthony Dennis Ramos.

The indictment in question involved two hearings. The first was on the defendant's motion to dismiss the indictment on the claimed grounds that the arbitrary and capricious actions of the Selective Service System's Local Board in denying him conscientious objector classification constituted a denial of due process. It was heard on July 15, 1968 and denied as a matter of law. Subsequently, on August 2, 1968, the charge in the indictment was tried before a jury. The defendant was convicted of a violation of 50 App.U.S.C. § 462.

Turning to the instant motion, the court resorts to the defendant's memorandum of law in support thereof to determine its basis. He accuses the court of unfairness, attacks the conduct of the court and claims it "went beyond the bounds of impartiality — certainly of disinterestedness — by urging the prosecution (to) introduce further evidence (and that such action) was unfair to the defendant." Counsel concludes his claim by asserting that the court's knowledge of evidentiary facts gained during the course of the pre-trial hearing on defendant's motion to dismiss "raises an inference that the defendant did not receive a fair trial."

The factual basis for such contention is founded on a colloquy which occurred in a court chambers conference by and between the judge, counsel for both sides and the court reporter. As authority for his position, counsel for the defendant cites "Webster(s)" definition of impartiality and the single case of State v. Nunes, 99 R.I. 1, 205 A.2d 24 (1964). He relies on the Supreme Court holding in Nunes, supra, that the trial judge's remarks following a verdict of guilty disclosed a prejudicial state of mind on the part of the court that reasonably must have existed at the trial. In short, he is arguing that the conference held in chambers disclosed a prejudice which must have existed at the time of trial.

The conference in question was held at the court's request immediately after the close of the evidence by both sides. In order to safeguard the respective rights of the parties, the court reporter was ordered to be in attendance and was directed to make a verbatim record of the proceedings. The transcript of this meeting consumes nine pages, and though defense counsel was given an automatic exception, he offered no argument.

The only words uttered by him were, "thank you very much" and "thank you." Now for the first time, an attack is made on the conduct of the court, relying exclusively upon the colloquy at issue. At that conference the court, in substance, asked the Government its reasons for resting the case without the introduction of certain evidence, which was known to exist by both parties and the court and which had a bearing on an essential element of the offense charged, namely, the refusal of the defendant to be inducted. The prosecutor disclosed that he mistakenly labored under the view that the introduction of such evidence would open for inquiry the whole issue of the defendant's claim as a conscientious objector which had been determined at the first hearing on the motion to dismiss. The court dispelled that erroneous view and stated it would allow the Government to reopen its case if Government counsel chose to do so for the limited purpose of offering certain evidence concerning that issue. Defendant's counsel was then expressly told he had an exception on the record to such procedure. The chambers conference was then adjourned. Thereafter the Government moved the court for leave to reopen its case for this limited purpose and proceeded to introduce the additional evidence.

At the outset it must be recognized that the trial judge is not a mere umpire, referee or moderator in a contest between opposing parties or counsel. True, he may not cast aside his judicial robes and advocate for one side or the other, and under no circumstances is he justified in any way affecting a defendant's right to a fair trial. However, let us not lose sight of the fact the people of the United States are entitled to the same right. Superimposed on this delicate balance is the fundamental duty of the trial judge, representative of a sovereign, to see that justice is done and to conduct the trial according to law, to bring about a just result.

The defendant in this motion does not bring into question any ruling, order or act of the trial judge in the conduct of the trial itself before the jury; nor does he rely on newly discovered or after-acquired evidence. The sum total of his reason for a new trial is the conference held in the court's chambers outside the presence of the jury.

The holding of such proceedings where matters of evidence are discussed is perfectly proper and normal, Cox v. United States (8th Cir. 1962), 309 F.2d 614. The court may proceed in any lawful manner not inconsistent with the Federal Rules of Criminal Procedure or other applicable statute. Rule 57(b), Fed.R. Crim.P.

The judge may not sit back with "disinterestedness" as defendant's counsel would have him do. He is properly interested in seeing that all salient facts are presented to the jury to bring about a just result. The Government counsel had a duty to elicit and present information available to him bearing upon each and every essential element of the offense charged; mistakenly he believed he was precluded from introducing certain evidence bearing on the defendant's refusal to submit himself to induction into the Armed Forces of the United States. On the defendant's motion to dismiss prior to the opening of the jury trial, Government counsel in opposition to that motion on hearing presented testimony bearing on the precise question of the defendant's refusal to submit himself to induction. At the trial, however, it was not presented to the jury and the Government rested its case. The defendant may not seize upon Government counsel's mistaken belief and claim a windfall.

A mistaken belief cannot stand in the way of the court to see that justice is done, and a mistaken belief of Government counsel can be corrected by suggestions to counsel. United States v. Laurelli, 187 F.Supp. 30 (D.C.1960), citing Fischer v. United States, infra; Levey v. United States (9 Cir. 1937), 92 F.2d 688, 692. In Carrado v. United States, 93 U.S.App.D.C. 183, 1953, 210 F.2d 712, the judge, in a prosecution for violation of the narcotics laws, not only made suggestions to the prosecutor but also developed essential elements of proof by his questioning of a witness, which had not been done by the prosecutor. Unlike here, the judge's suggestions and questioning was done in the presence of the jury. The Court of Appeals for the D.C. Circuit found nothing improper in the court's conduct stating, "it is well settled that (the trial judge) is more than a mere umpire * * *" id. at 722. Similarly, the duty and proper function of a trial court was again emphasized in Fischer v. United States (10 Cir. 1954), 212 F.2d 441. There, as here, a claim of error was urged in that the direction given to the prosecutor by the trial judge "transcended the bounds of an impartial presiding judge * * *" id. The Court of Appeals for the 10th Circuit rejected the defendant's claim and said:

"During the direct examination * * *, the court directed the District Attorney to pursue a line of questioning to `find out where, and when, and under what circumstances' an incident occurred. It is contended that this direction transcended the bounds of an impartial presiding judge and tended to convey to the jury that special weight should be given to such testimony. There is no merit to the contention. The trial court is not a mere umpire in the trial of a case. One of its functions is to see that all relevant facts are brought intelligibly to the attention of the jury and it may intervene in the conduct of the trial for this purpose. The court has the power, within reasonable bounds, to question a witness for the purpose of eliciting the truth and there is no reason why it may not direct an attorney to pursue a line of questioning if it is relevant to the case." (emphasis added). Citing Glasser v. United States, 315 U.S. 60, 82, 62 S.Ct. 457, 86 L.Ed. 680; Quercia v. United States, 289 U.S. 466, 469, 53 S.Ct. 698, 77 L.Ed. 1321; Griffin v. United States, 83 U.S.App.D.C. 20, 164 F.2d 903 denied 333 U.S. 857, 68 S.Ct. 727, 92 L.Ed. 1137, new trial granted on other grounds 87 U.S.App.D.C. 172, 183 F.2d 990; National Mut. Casualty Co. v. Eisenhower, 10 Cir., 116 F.2d 891; United States v. Gross, 7 Cir., 103 F.2d 11, 13; United States v. Breen, 2 Cir., 96 F.2d 782, certiorari denied 304 U.S. 585, 58 S.Ct. 1061, 82 L.Ed. 1546."

A court on its own motion in the interests of justice may depart from usual procedure and call a witness, adduce evidence, and itself examine those who testify in the presence of the jury. United States v. Brandt (2 Cir. 1952), 196 F.2d 653, 655. Smith v. United States, 8 Cir., 331 F.2d 265 at 273. See 67 A.L.R.2d 538. There is no reason why this court could not adopt the procedure it did. It must further be noted that all genuine possibility of prejudice, which could befall the defendant, was removed by conducting the proceedings in court chambers out of the presence of the jury.

The knowledge of evidentiary facts gained by this court on defendant's motion to dismiss warranted the suggestion made to the Government concerning the possible use of those facts as to the ultimate issue of the defendant's guilt or innocence. Where, as here, the judge's...