United States v. Tobin, 17872.
| Decision Date | 15 May 1970 |
| Docket Number | No. 17872.,17872. |
| Citation | 426 F.2d 1279 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Daniel TOBIN, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Anton R. Valukas, Chicago, Ill., for appellant.
Frank J. Violanti, U. S. Atty., Springfield, Ill., Max J. Lipkin, Peoria, Ill., for appellee.
Before SWYGERT, Chief Judge, HASTINGS, Senior Circuit Judge, and FAIRCHILD, Circuit Judge.
On April 5, 1967, defendant Daniel Tobin was charged in a two count indictment with the knowing transportation in interstate commerce of two women, Janice Tressa and Venus Wright, for immoral purposes, in violation of 18 U.S. C.A. § 2421.1 On January 15, 1968, defendant appeared in the district court and entered a plea of guilty to count one of the indictment; count two was dismissed. Defendant was sentenced to four years' imprisonment.
On appeal of that conviction, this court reversed and remanded with instructions to vacate the guilty plea which we found to have been entered without counsel or a knowing waiver thereof. Tobin v. United States, 7 Cir., 402 F.2d 307 (1968).
On remand, defendant was found guilty on the count pertaining to Janice Tressa after a one day jury trial before the same trial judge. The second count was not reinstated. He was sentenced to five years' imprisonment. He appeals the judgment of conviction and sentence. We reverse.
Defendant's major contention on this appeal is that he was denied a fair and impartial trial when, in the jury's presence, the trial judge displayed hostility toward his attorney and then subjected defendant to extensive cross-examination after the Government had finished its cross-examination.
At trial, defendant admitted that he transported Janice Tressa from Peoria, Illinois, to Topeka, Kansas; that he was aware that she had been engaging in prostitution in Peoria; and that he was at that time living off her earnings as a prostitute. His defense was that his dominant motive in transporting Janice Tressa to Topeka was not for immoral purposes but rather was for accommodation in that he had been living with her as her common law husband and desired to continue to do so. Both Tobin and Janice, as a Government witness, testified that they were living together as "boyfriend and girlfriend" and that while Tobin took money from Janice, he in no way compelled or aided her in her profession.
Conflicting accounts were given of the circumstances which led Tobin to drive Venus Wright and Janice to Topeka. It seems clear that Venus had independently planned a trip to Topeka to work as a prostitute in a hotel at which she had previously worked. She had purchased a train ticket for the trip. Janice and Tobin then arrived on the scene with a car which he had borrowed to bring Janice back to Peoria after a sojourn in East St. Louis. Venus testified she told Tobin she was going to Topeka and that he then asked if another girl could work there and if he and Janice could go. Venus said yes. Janice testified that Tobin told her of this arrangement and that they were going to go with Venus. However, Janice also testified that she was present during the conversation and that "we just decided to go, I mean there was this other girl going and we just decided to go with her."
Tobin testified that he and Janice talked to Venus and that it was just decided that all three would go to Topeka by car because it would be cheaper. He denied asking Venus if Janice could work in Topeka and also denied asking Janice if she wanted to go. He said that Janice wanted to go because she wanted to get away from her family, which was giving her trouble, and that Venus was the only person she knew and Venus was leaving.
It is undisputed that all three then drove to Topeka in Tobin's borrowed car and that all three shared expenses for the trip. Once in Topeka, Venus handled all business arrangements for herself and Janice. Tobin had no part in such arrangements. He did continue to live with Janice.
Defendant does not contend that the Government produced insufficient evidence to support his conviction. Rather, he asserts that the success of his defense depended directly on whether the jury believed his testimony or that of the two prostitutes who testified for the Government. He contends that his credibility was effectively destroyed in the eyes of the jury by the actions of the trial judge.
Defendant first points to certain interchanges between the trial judge and his attorney in which the judge made remarks which might have been construed by the jury as expressing disapproval of counsel's tactics and the merits of the defense. When defendant's attorney requested leave to recall a Government witness later in the trial if that proved necessary, the court remarked that the witness's time was at Government expense but that she would be asked to stay. At the close of the Government's case, the defense requested a recess for the purpose of moving for a directed verdict out of the presence of the jury. The court denied this request indicating that it was a waste of time, that motions should be in writing and that defendant's attorney should refrain from trying to tell the court what the usual practice was.
Defendant does not contend that these remarks standing alone amount to reversible error. Cf. Federal Rules of Criminal Procedure, Rule 47, 18 U.S.C.A. Rule 47; Tanner v. United States, 8 Cir., 401 F.2d 281, 285 (1968), cert. den. 393 U.S. 1109, 89 S.Ct. 922, 21 L.Ed. 2d 806 (1969); and United States v. Coke, 2 Cir., 339 F.2d 183, 186 (1964). However, he asserts that these comments, combined with the judge's later cross-examination of the defendant, conveyed to the jury the judge's own doubts about the merits of the defense and thus denied him a fair trial.
At the close of the Government's cross-examination, the court cross-examined Tobin as follows:
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...jury the impression that the court had doubts concerning the truthfulness of his testimony on a crucial issue. See United States v. Tobin, 426 F.2d 1279, 1283 (7th Cir.1970); see also People v. Jackson, supra (trial court's cross-examination of defendant held error where it "cast a cloud of......
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