United States v. Schrimsher, 73-2627.

• Decision Date: 03 May 1974
• Docket Number: No. 73-2627.,73-2627.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. David SCHRIMSHER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

493 F.2d 848 (1974)

UNITED STATES of America, Plaintiff-Appellee, v. David SCHRIMSHER, Defendant-Appellant.

No. 73-2627.

United States Court of Appeals, Fifth Circuit.

May 3, 1974.

Charles D. Butts, San Antonio, Tex., for defendant-appellant.

William Sessions, U. S. Atty., Wayne E. Speck, Asst. U. S. Atty., James W. Kerr, Jr., San Antonio, Tex., for plaintiff-appellee.

Before RIVES, GEWIN and RONEY, Circuit Judges.

RIVES, Circuit Judge:

After a jury trial, David Schrimsher was convicted on a one-count indictment which charged him with wire tapping in violation of 18 U.S.C. § 2511(1)(a).¹ Schrimsher was sentenced to a three-year indeterminate sentence under 18 U.S.C. § 4208(a) (2), and he appeals. We affirm.

I.

At about one o'clock on the afternoon of July 16, 1972, Jane Roberts noticed that a small door leading to the crawl space under her house was ajar. When she attempted to put the door back in place, the door fell to the ground, and Roberts found herself face-to-face with the appellant Schrimsher. Understandably startled, Roberts screamed, and then ran into her house, where she telephoned for help. Schrimsher fled the premises. Upon investigation, the authorities found a large number of items under the house—including a cassette tape which contained telephone conversations between Roberts and others, a cassette tape recorder, a telephone jack, a microphone jack, a male extension plug that was cut into the electrical system of the house, an extension cord, a tool box, newspapers, a camping mattress, a thermos, an ice bucket, cantaloupe rinds, and other items.

Schrimsher took the stand in his own defense. He testified that he and Roberts had been lovers, and that she had led him to believe that he had fathered one of her children. He stated that in early 1972 Roberts told him to leave her alone and threatened to turn him over to her grandfather, who she said had underworld connections. Schrimsher explained that he became worried about his own safety and the well-being of the children, and thereupon embarked upon a course of investigation to ascertain where he stood with her and to determine whether she had told the truth about her grandfather.

Schrimsher's course of investigation apparently included wire tapping. Under cross-examination, he admitted the following conduct :

"Q. Mr. Speck, Assistant U.S. Attorney : You put all that stuff equipment under Janie Roberts\' house ?

"A. Mr. Schrimsher : Yes, I did.

"Q. Your purpose was to listen to the telephone calls and record them, right ?

"A. Yes, it was.

"Q. And that is what you did?

"A. Yes, I did.

"Q. Was that your only purpose ?

"A. Yes, it was.

"Q. When did you go under there first ?

"A. I believe it was Monday, the 11th of July.

"Q. You are sure you weren\'t under there before that ?

"A. No.

"Q. Pardon me ?

"A. I was not under there before that.

"Q. Okay. You were under there until the 16th.

"A. Yes.

"Q. You recorded all the telephone calls that came in and out of there.

"A. Most of them, yes. Tr. 305-306.

II.

In a recent civil case, Simpson v. Simpson, 5 Cir. 1974, 490 F.2d 803, this Court held that the wire interception provisions of the Omnibus Crime Control and Safe Streets Act of 1968 did not apply to an interception by a husband of the conversations of his wife with a third party over the telephone in the marital home. The Court in Simpson relied in part upon a provision in the Act which indicated that Congress intended to adjure from deciding the extent of privacy family members could expect within the home vis-a-vis each other. The Court expressed doubts about even this limited exclusionary construction of the statute, however, and emphasized that "No public official is involved, nor is any private person other than appellee the wife, and the locus in quo does not extend beyond the marital home of the parties." (490 F.2d at p. 810.)

Schrimsher has never been married to Roberts. At the time of the incident in question, he was not a part of the Roberts' household, and had no legal right to be on the premises or to tape record Roberts' telephone conversations. Under these circumstances, Schrimsher's conduct is within the scope of the statute.

III.

Schrimsher claims that the trial judge took a prosecutorial role during the trial; that the judge cast aspersions upon, harassed and intimidated defense counsel; and that the judge by his actions and manner during the trial demonstrated bias and prejudice against the defendant and his attorney. Schrimsher cites incidents which occurred before, during and after the trial in support of his position that the trial judge lacked the impartiality necessary to give the defendant a fair trial.

Schrimsher complains that the trial judge improperly tried to force Butts, counsel for the defendant, to reveal the details of a proposed defense witness' testimony. During the discussion of a motion to quash a subpoena issued for Albino Alonzo, a male friend of prosecution witness Roberts, the judge asked Butts what he intended to show by Alonzo's testimony. At first, Butts refused to answer because Roberts, who was under the Rule,² was in the courtroom. The judge apparently expected Butts to put Alonzo on the stand in the absence of the jury to show the relevance of Alonzo's proposed testimony, and therefore saw no reason to exclude Roberts until Alonzo actually took the stand. Butts in fact intended simply to relate to the court what Alonzo was expected to testify. He consequently wanted Roberts excluded before he made his explanation. After some discussion, the judge agreed to exclude Roberts from the courtroom. Then, when the judge pressed Butts to tell what he proposed to prove through Alonzo, Butts replied, "I respectfully decline to try my case until the Government has rested its case." The court asked only one further "yes" or "no" question, and Butts answered without objection. The court subsequently allowed Butts to call Alonzo and to question him at some length. On these facts, Schrimsher has no legitimate cause for complaint. The judge excluded Roberts after Butts made clear his objection, and overruled the government's motion to quash Alonzo's subpoena.

Schrimsher points to several incidents which occurred during Butts' cross-examination of Roberts as evidence of the judge's bias. At one point in the cross-examination, Butts asked Roberts if she recognized a photograph. The judge asked Butts to mark the photograph as an exhibit. When Butts resisted³ the judge apparently lost his temper, and in the presence of the jury told Butts to "Shut up." The jury was then excused for the noon recess, and the judge and Butts immediately became embroiled in argument. The dispute ended when the judge found Butts in contempt and asked the marshal to take him to jail until the beginning of the afternoon session. In the case of United States v. Schrimsher; In re: Charles D. Butts, Attorney at Law, Appellant, No. 73-1061, 493 F.2d 842 decided contemporaneously with this appeal, we reverse Butts' conviction for contempt because of the trial court's failure to comply with the technical requirements of Rule 42, F.R.Cr.P. It would be fair to say that the judge displayed impatience with Butts on this occasion.

When the afternoon session began, Butts resumed his cross-examination of Roberts. Schrimsher claims that at this time the judge questioned Butts' good faith and integrity during a bench conference. Butts was examining Roberts about letters she had apparently sent to Schrimsher when the government requested an opportunity to make an objection at the bench. The government suggested that it was unfair not to show the witness the letters under consideration. The court commented, "All right, I assume he Butts has the letters or he wouldn't ask the questions." Tr. 133. As the conference concluded, the judge stated, "I am letting you Butts have the full right of cross-examination, so continue, but just remember that I expect every one of those questions to be backed up with a legitimate handwriting exemplar." Tr. 134.⁴ Nothing in this incident suggests that the judge was questioning Butts' integrity. The judge assumed that Butts was acting in good faith, and overruled the government's objection on this assumption. The statement that there should be evidence to back up the questions was purely cautionary, and probably resulted from the government's repeated statements of concern that no authentic letters existed.

On the same afternoon, while Butts was questioning Roberts, the court stated: "We've got to move this case, it is already 2:30. I want to finish it by tomorrow evening." Tr. 135. Schrimsher complains that this constituted harassment. It is true that the comment was probably intended for Butts. However, the suggestion was never repeated, and there is nothing in the record to indicate that the judge took any other measure to speed the case, or that Butts shortened his examination of the witnesses.

Schrimsher also suggests that actions taken by the judge both before and after the trial demonstrate the judge's bias. At a conference in chambers before the trial, Butts tried to convince the judge to reduce the charge to a misdemeanor. The judge refused. The government on appeal admits that government counsel would have preferred to "carve out" a misdemeanor, but states that the government was unable to find a misdemeanor to which the matter could be reduced. Certainly the judge committed no error in going forward under the grand jury indictment, and his decision to do so may not be used as evidence of bias. After the trial, the government moved that bond be revoked and that the defendant be remanded to the custody of the marshal without bond. A hearing was held. The government introduced evidence of an anonymous telephone call to Roberts' mother. Also, Roberts testified about an incident earlier in the year where Schrimsher had threatened her and the children. The trial court found that Schrimsher...