United States v. Sims

• Decision Date: 21 March 1969
• Docket Number: Crim. No. CR 67-50.
• Citation: 297 F. Supp. 1009
• Parties: UNITED STATES of America v. Horace W. SIMS and Ralph Howard Freeman.
• Court: U.S. District Court — Western District of Tennessee

297 F. Supp. 1009

UNITED STATES of America v. Horace W. SIMS and Ralph Howard Freeman.

Crim. No. CR 67-50.

United States District Court W. D. Tennessee, W. D.

October 1, 1968.

Memorandum Opinion and Order March 21, 1969.

Thomas L. Robinson, former U. S. Atty. for Western Dist. of Tenn., Memphis, Tenn., for United States.

Lucius E. Burch, Jr., Charles F. Newman, Freeman Marr and Robert Rose, Memphis, Tenn., for Horace W. Sims.

John Heiskell, Memphis, Tenn., for Frederick Hunt Rayner.

J. Richard Cox, Memphis, Tenn., for James Henry Capell.

Vincent Vorder Bruegge, Memphis, Tenn., for Hugh Connell Day.

John Aycock, Memphis, Tenn., for Van Lee Boyd.

Warner Hodges, Memphis, Tenn., for Ralph Howard Freeman.

Cordell Hull Sloan, Memphis, Tenn., for Robert E. Hendrix.

William Walsh, Memphis, Tenn., for George Henry Norman.

Walter Bailey, Jr., Memphis, Tenn., for Willie Albert Johnson.

James Allen, Memphis, Tenn., for William Ivory Claxton.

Clyde West, Memphis, Tenn., for Vester Lee Price.

J. Minor Tait, Jr., Memphis, Tenn., for Klaus Klingenberg.

MEMORANDUM DECISION AND ORDER ON MOTION FOR NEW TRIAL OF DEFENDANTS SIMS AND FREEMAN

BAILEY BROWN, Chief Judge.

During the course of this trial, it was necessary for this Court to decide whether it was proper to admit in evidence, over the objection of defendants Sims and Freeman, a written confession made by co-defendant Price, which also inculpated them. All of these defendants were on trial. It was the position of counsel for Sims and Freeman that such statement could not properly be admitted in evidence even with a careful instruction to the jury that it was evidence only as to Price and not as to the others.

This trial began on April 29, 1968 and was not completed until June 5, 1968. The decision of the Supreme Court in Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476, was rendered on May 20, 1968, this Court called the attention of counsel to this decision, and a full argument was had during the trial as to the proper interpretation to be given to the decision. We ultimately concluded that Bruton was not applicable since Price testified and was thereby subject to cross-examination by counsel for Sims and Freeman. However, because it was possible to maintain the sense of the statement with the name of Freeman (but not Sims) deleted, this was done. The jury was carefully instructed that the statement was evidence only as to Price. The statement was proved as part of the Government's case, Price was cross-examined concerning the statement, and it was passed to the jury.

Defendants Sims and Freeman have moved for a new trial on the ground, among others, that it was improper to admit the statement of Price into evidence under the circumstances just related.

In Bruton, the Supreme Court overruled Delli Paoli v. United States, 352 U.S. 232, 77 S.Ct. 294, 1 L.Ed.2d 278 (1957), and held that the admission in evidence of the oral confession of Bruton's co-defendant, Evans, which inculpated Bruton, was reversible error as to Bruton in spite of the fact that the trial court carefully charged the jury that the confession was evidence only as to Evans. The Court placed its decision on the Confrontation Clause (which guarantees the right to cross-examination) of the Sixth Amendment. In its Bruton opinion, the Court emphasizes that Evans did not testify and therefore he was not subject to cross-examination by counsel for Bruton.^* We will not lengthen this opinion by quoting all instances in the opinion of the Supreme Court that made it clear, at least to this Court, that it was the failure of Evans, the declarant, to testify and the consequent inability of Bruton's counsel to cross-examine him that required the holding that Bruton had been denied his Sixth Amendment right of confrontation, but many such statements are in the opinion. We, therefore, as stated, considered Bruton inapplicable.

In Roberts v. Russell, 392 U.S. 293, 88 S.Ct. 1921, 20 L.Ed.2d 1100, decided June 10, 1968, Bruton was made completely retroactive in effect. Moreover, on the same day, the Supreme Court vacated and remanded several criminal convictions for further consideration "in light of Bruton v. United States." 392 U.S. 295, 88 S.Ct. 1922. In three of these cases, Hunt v. Connecticut, 392 U.S. 304, 88 S.Ct. 2063, 20 L.Ed.2d 1110; Bujese v. United States, 392 U.S. 297, 88 S.Ct. 2064, 20 L.Ed.2d 1113; and Serio v. United States, 392 U.S. 305, 88 S.Ct. 2063, 20 L.Ed.2d 1111, the declarant, whose statement had been admitted in evidence, did testify, and therefore he was subject to cross-examination. Moreover, in Serio, the name of Serio had been deleted from the statement and Serio's counsel had agreed to the admissibility of the statement upon the deletion.

We can, therefore, only conclude that Bruton is applicable even if the declarant, in the instant case Price, has testified, and has been subjected to cross-examination. We therefore grant the motion of Sims and Freeman for a new trial.

It is so ordered.

MEMORANDUM OPINION AND ORDER

Subsequent to our granting the motions for a new trial of defendants Sims and Freeman on October 1, 1968, the Government moved to vacate and set aside our order. The parties have filed memorandum briefs and we have heard argument on the motion. The purpose of this opinion and order is to dispose of the Government's motion.

In this case, twelve defendants were indicted and charged with conspiracy to violate 18 U.S.C. § 201 (a bribery statute), and some of the defendants, including Sims and Freeman, were also charged with the substantive offense. In general, the Government's contention was that Sims, who was a cotton merchant in Memphis, together with defendant Klingenberg, his bookkeeper, entered into an agreement with other defendants, who were either cotton classers or laborers in the local Department of Agriculture facility, whereby cotton being purchased by Sims from the Government was corruptly downgraded with the result that Sims paid less for the cotton.¹ Five of the defendants pleaded guilty before trial—Capell and Boyd (classers) and Hendrix, Johnson, and Claxton (laborers). Norman, another laborer, pleaded guilty during the trial. Sims, Freeman and Day (both classers), and Price (a laborer) were found guilty and Klingenberg was found not guilty at the end of this six-week jury trial.

It developed at the trial that one of the classers, Russell, who was invited to participate in this illegal activity, so advised the F.B.I. agents. He was asked by them to appear to cooperate in this activity and to report to the F.B.I., which he did, with the result that several of the defendants were under surveillance for some time before the F.B.I. moved in and made arrests. Accordingly, in addition to the testimony of Russell, the Government had the eyewitness testimony of the F.B.I. agents as to the activities of Sims and Freeman, as well as photographs and movies which the agents had made. Moreover, the classers Capell and Boyd testified for the Government with respect to the activities of Sims and Freeman.

Following the jury verdict, those defendants who were convicted moved for a new trial, but Day withdrew his motion and is now serving or has served his sentence. At the time we granted the motion of Sims and Freeman for a new trial, we took under advisement such motion of Price. Sims and Freeman had separate employed counsel and Price had separate appointed counsel.

The motions for a new trial of Sims and Freeman contained several grounds, but the only ground that we determined to have sufficient merit to require discussion, as is shown by our memorandum decision and order granting the motions, was that the admission into evidence of Price's statement was such error as to these defendants as would require a granting of a new trial. It would therefore be proper at this time to set out the circumstances concerning Price's statement.

In the course of putting on its case in chief, the Government offered the signed statement of Price taken by F.B.I. agents. Price's counsel objected, primarily on the ground that Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), was not complied with. Counsel for Sims and counsel for Freeman objected on the ground that the statement inculpated their clients and that cautionary instructions would not adequately protect them. A lengthy hearing was held outside the presence of the jury. Both the F.B.I. agents who took the statement and Price testified, and counsel for Sims and Freeman participated in the questioning. Although Price had initialed numerous corrections and each page and had written at the end of the statement that he had read it and that it was true and correct, when he testified at this hearing, he denied parts of the statement, equivocated as to other parts, and confirmed still other parts. At the conclusion of this hearing, the Court concluded that Miranda was clearly complied with and overruled Price's objection. We likewise overruled the objections of Sims and Freeman, relying on Delli Paoli v. United States, 352 U.S. 232, 77 S.Ct. 294, 1 L.Ed.2d 278 (1957). However, since the name of Freeman appeared in only one place in the statement and could be elided without affecting the sense of the statement as to the participation of Price, we did order Freeman's name elided. This could not, however, be done with respect to Sims, because his name appeared throughout the statement and deletion of his name would have made it meaningless. We then, when the statement was admitted in evidence before the jury, instructed the jury fully, in substance, that it could be considered as evidence only against Price, and this instruction was repeated to the jury from time to time and in the charge to the jury.

Later Price took the stand as a witness in his own behalf. He was cross-examined at length about the statement by Government counsel and again, rather consistently, adopted...