United States v. Ramsey

• Decision Date: 08 July 1963
• Docket Number: Crim. A. No. 6582,6629.
• Citation: 220 F. Supp. 86
• Parties: UNITED STATES of America, Plaintiff, v. Leroy RAMSEY, Defendant. UNITED STATES of America, Plaintiff, v. Raymond HURST, William Reece et al., Defendants.
• Court: U.S. District Court — Eastern District of Tennessee

220 F. Supp. 86

UNITED STATES of America, Plaintiff, v. Leroy RAMSEY, Defendant.

UNITED STATES of America, Plaintiff, v. Raymond HURST, William Reece et al., Defendants.

Crim. A. Nos. 6582, 6629.

United States District Court E. D. Tennessee, Northeastern Division.

July 8, 1963.

J. H. Reddy, U. S. Atty., Chattanooga, Tenn., David Smith, Asst. U. S. Atty., Knoxville, Tenn., for plaintiff.

G. Edward Friar, William A. Reynolds, Knoxville, Tenn., for defendants.

NEESE, District Judge.

The respective captioned defendants were convicted by juries of violating the federal internal revenue liquor laws. Each conviction rests on the entrapping activities of J. S. (Stokes) French, a paid informer of the federal government. French, himself, was not produced by the prosecution as a witness although the defendants, in an informal pretrial conference, called on the prosecution to have French present to testify on the trials and themselves had caused subpoenas to be issued for this informer. The prosecution relied on the testimony and other evidence adduced by regular agents of the Alcohol and Tobacco Tax Division, Internal Revenue Service, Treasury Department. Each defendant, inter alia, contended he had been unlawfully entrapped by French.

The Court took under advisement, at the conclusion of all the proof in each of the cases, motions of the respective defendants for entry of judgments of acquittal. Following the respective jury verdicts, each defendant either filed or lodged with the clerk respective notices of appeal, motions for judgments of acquittal "notwithstanding the verdict", or in the alternative, for new trials, and motions for new trials.

Patently, the Federal Rules of Criminal Procedure have not been followed literally by the defendants in the post-trial pleadings, and the prosecution urges the Court not to consider these post-verdict motions for such reason.

The issue with which the Court is confronted is whether federal trial courts possess the power to supervise federal law enforcement to the extent of requiring fair conduct from federal agents in furnishing evidence of crime, and if so, whether the prosecution will be required to offer as a witness, where the defense interposed in a criminal case is unlawful entrapment, its paid informer on whose entrapping activities convictions rest.

As to the initial part of this proposition, defendants invite the Court's attention to the majority opinion from the Fifth Circuit with reference to "* * * the duty of the courts in federal criminal cases to require fair and lawful conduct from federal agents in the furnishing of evidence of crimes. * * *" Williamson v. United States, C.A. 5th (1962), 311 F.2d 441, 4442. Each of the three Circuit Judges considering Williamson wrote separate opinions, the majority concluding that entrapment is generally unlawful as a matter of law where government agents hire an informer under a contingent fee arrangement and the conviction is sustained by evidence provided by such informer. Ibid.

Williamson, however, is superseded by the more recent opinion of the Supreme Court of the United States in Lopez v. United States, 373 U.S. 427, 83 S.Ct. 1381, 10 L.Ed.2d 462. There are also three separate opinions in Lopez: the majority opinion by Mr. Justice Harlan raises and discusses the entrapment issue but questions the submission of this issue by the trial court to the jury in the first place; the dissenting opinion of Mr. Justice Brennan pretermits consideration of the entrapment question; while the Chief Justice, concurring with the majority's result, appears to support Williamson, supra, as to the necessity of the Government's having the informer present to testify and to be cross-examined by defense counsel. Further, both the concurring and dissenting opinions conclude that the majority was wrong in affirming sub silento the hallmark 5-4 holding in On Lee v. United States (1952), 343 U.S. 747, 72 S.Ct. 967, 96 L.Ed. 1270 regarding the duty of courts to require fair play in federal law enforcement. Ibid. Some of the justices seem to be at variance as to whether and when courts even possess the power to so supervise federal law enforcement, viz.:

The majority in Lopez states that "* * * the court's inherent power to refuse to receive material evidence is a power that must be sparingly exercised. * * * (adding:)

"The function of a criminal trial is to seek out and determine the truth or falsity of the charges brought against the defendant. Proper fulfillment of this function requires that, constitutional limitations aside, all relevant, competent evidence be admissible, unless the manner in which it has been obtained—for example, by violating some statute or rule of procedure—compels the formulation of a rule excluding its introduction in a federal court." citations. The majority found none such in the case there under consideration, stating: "* * * There has been no invasion of constitutionally protected rights, and no violation of federal law or rules of procedure. * * There has, in short, been no act of any kind which could justify the creation of an exclusionary rule. * * *"

The dissenters, on the other hand, expressed the view that insofar as Olmstead v. United States (1928), 277 U.S. 438, 48 S.Ct. 564, 72 L.Ed. 944 "* * * rests on the notion that the federal courts may not exclude evidence, no matter how obtained, unless its admission is specifically made illegal by federal statute or by the Constitution, the decision is manifestly inconsistent with what has come to be regarded as the scope of supervisory power over federal law enforcement. citations. We are empowered to fashion rules of evidence for federal criminal trials in conformity with `the principles of the common law as they may be interpreted * * * in the light of reason and experience.' Rule 26, Federal Rules of Criminal Procedure. In the instance before the Court we ought to devise an appropriate prophylactic rule. The Court's suggestion that the supervisory power may never be invoked to create an exclusionary rule of evidence unless there has been a violation of a specific federal law or rule of procedure is * * * a gratuitous attempt to cripple that power. * * *" Ibid.

The Chief Justice joined his dissenting colleagues on this point, stating that "* * * (i)f a party were to show that the interests of justice in a particular case so require, the Court should consider limiting the use of certain described evidence * * *. * * * To so condition the use of evidence in the federal courts is clearly within the power of this Court. * * * citing McNabb v. United States (1943), 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819 and others"

A majority of the Court in a subsequent decision observed that the "* * * `principles governing the admissibility of evidence in federal criminal trials have not been restricted * * * to those derived solely from the Constitution. In the exercise of its supervisory authority over the administration of criminal justice in the federal courts * * * this Court has * * * formulated rules of evidence to be applied in federal criminal prosecutions.' McNabb v. United States, 318 U.S. 332, 341, 63 S.Ct. 608, 613, 87 L.Ed. 819 (1943); cf. Miller v. United States, 357 U.S. 301, 78 S.Ct. 1190, 2 L. Ed.2d 1332 (1958); Nardone v. United States, 302 U.S. 379, 58 S.Ct. 275, 82 L.Ed. 314 (1937). * * *" Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726. After pointing to the fact that the Court had invoked its supervisory power over the administration of criminal justice in the federal courts in Elkins v. United States (1960), 364 U.S. 206, 216, 80 S.Ct. 1437, 4 L.Ed. 2d 1669, Mr. Justice Clark stated for this later majority that "* * * the demands of our federal system compel us to distinguish between evidence held inadmissible because of our supervisory powers over federal courts and that held inadmissible because prohibited by the United States Constitution. * * *" Ibid.

Thus, it appears to this Court that a majority of the Supreme Court of the United States has now agreed that the Supreme Court has supervisory powers over the administration of justice in the federal courts. It also appears that there is respectable authority for the proposition that federal trial courts have the duty to require fair and lawful conduct from federal agents in the furnishing of evidence of crime. Williamson v. United States, supra, 311 F.2d at page 444.

Proceeding to the latter part of the question raised, the Court relies on both Williamson, supra, and the concurring opinion of the Chief Justice of the United States in Lopez, supra. In the latter, discussing On Lee, supra, regarding...