United States v. Williams
Citation | 447 F.2d 894 |
Decision Date | 30 July 1971 |
Docket Number | No. 29937.,29937. |
Parties | UNITED STATES of America, Plaintiff-Appellee, v. Franklin Eugene WILLIAMS and James Edison Williams, Defendants-Appellants. |
Court | United States Courts of Appeals. United States Court of Appeals (5th Circuit) |
John A. DeVault, III, Jacksonville, Fla. (Court Appointed), for Franklin E. Williams.
Edward J. Witten, Jacksonville, Fla. (Court Appointed), for James E. Williams.
John L. Briggs, U. S. Atty., Joseph W. Hatchett, Harvey E. Schlesinger, Asst. U. S. Attys., Jacksonville, Fla., Richard J. Mandell, Asst. U. S. Atty., Orlando, Fla., for plaintiff-appellee.
Before TUTTLE, AINSWORTH and SIMPSON, Circuit Judges.
The Williams brothers, Franklin and James, here appeal from convictions in the district court for alleged dealings in counterfeit United States currency.1 We find support in the record for such claims of irregularities in the proceedings below as to require that the case be retried. We accordingly reverse and remand.
A number of asserted errors are insisted upon by the appellants between them. We dispose of the more serious of these contentions more or less in the order in which they are raised by the briefs. We limit our discussion of the evidence because of the likelihood of retrial.
Appellant James Williams contends that the method the trial judge employed in the selection of the jury violated his Sixth Amendment right to a fair and impartial trial. The trial judge, a senior district judge from another circuit sitting by designation, employed a method of jury selection beyond the experience of the Florida lawyers in the case. 32 jurors were initially brought inside the rail and seated, both within and without the jury box. The five defendants were limited to a total of ten peremptory challenges, which could be utilized by the defendants jointly, or two to each defendant.2 See Rule 24(b), F. R.Crim.P. The government had the six peremptory challenges allowed by Rule 24(b). The parties were at this point required to exercise all of their sixteen peremptory challenges to reduce the panel of 32 jurors to 16. Of the remaining four extra jurors, each side was allowed to strike one, in turn so that a jury of twelve and two alternates remained and was empaneled.
James Williams, while asserting that this method of empaneling the jury was prejudicial, fails to indicate the basis for such a claim. None appears from an inspection of the voluminous record. There is no suggestion that any biased, prejudiced or otherwise objectionable juror served in the trial. It must be assumed then that all such jurors were eliminated either by peremptory challenge or by challenge for cause.
James Williams here actually presents the identical unsuccessful contention made by defense counsel in Amsler v. United States, 9 Cir. 1967, 381 F.2d 37, 44, that twelve jurors should have been called and challenges exercised against the panel with replacements then called to fill the place on the panel of the excused juror. There is no authority known to us for so limiting the discretion of trial judges in the federal system of courts. Indeed the whole procedure outlined by Rule 24, F.R.Crim. P., emphasizes the wide discretion committed to the trial judge in the methods employed to select juries. As did our sister circuit in Amsler, we conclude that there is no substance in this argument.
Moreover, the limitation of the five defendants to ten peremptory challenges and permitting them to be exercised separately or jointly is in direct compliance with F.R.Crim.P., Rule 24(b). Under that rule the court may (not must) allow additional peremptory challenges where there are multiple defendants. See also, Gradsky v. United States, 5 Cir. 1965, 342 F.2d 147, 152, United States v. Crutcher, 2 Cir. 1968, 405 F.2d 239, 245.
The method of jury selection employed, while strange to Florida counsel in the case, is not demonstrated to have been erroneous.
Over defense counsel's objection, on cross-examination of Franklin Williams, government counsel asked whether his wife, Sarah Hart Williams, made a statement at the time Franklin Williams was arrested by a government agent:
On rebuttal Police Officer Powell testified that Mrs. Williams at the time of such arrest in the presence of the defendant Franklin Williams and Agent Williamson, in the course of having a violent argument, stated:
"I told you that goddamn JE was going to get you in trouble with them goddamn counterfeits."
Appellant Franklin Williams claims here that the admission of Officer Powell's testimony violated the common law rule that a wife's testimony is inadmissible against her husband. Counsel claims that this was the singularly most damaging piece of evidence admitted against appellant Franklin Williams because it was the only evidence which linked him to the activities of his brother James, and that it also presented evidence that the notes found in his possession were known to be counterfeit. The government asserts that the testimony is proper for the following reasons: (1) It impeaches defendant's denial on cross-examination; (2) it is an incriminating statement in the presence of the defendant; and (3) it is an admission against interest by a co-conspirator. Sarah Hart Williams was not then on trial, her case having been severed for trial.
In Hawkins v. United States, 1958, 358 U.S. 74, 79 S.Ct. 136, 3 L.Ed.2d 125, the Supreme Court reaffirmed the common law rule that grants to a husband in a criminal proceeding the privilege to prevent his spouse from testifying against him. This Court, in Ivey v. United States, 5 Cir. 1965, 344 F.2d 770, held that the admission of the testimony of a government agent to the contents of a statement made prior to trial by a wife against her husband was reversible error. We said in Ivey:
344 F.2d at 772.
This Court noted no distinction between a statement allegedly made out of court, as in the instant case, and one made on the witness stand:
344 F.2d at 772.
We view this case as indistinguishable from Ivey unless it can be demonstrated that since Sarah Williams was a charged co-conspirator in the indictment the evidence was an admission against the interest of a co-conspirator admissible against the other conspirators.3 We need not consider that question, however, since even if the law is that the statements of a wife may be introduced in derogation of the husband-wife privilege where the wife is also a co-conspirator, (a question which we expressly refrain from deciding) it is without dispute that here the statement of the wife was made after the arrest (and hence the termination of the conspiracy) and could therefore be admissible only against the defendant who made the statement. See Wharton, Criminal Evidence (12th Ed.), Sections 429, 433; United States v. Harrell, 5 Cir. 1970, 436 F.2d 606.
We hold that the admission of the statement of Sarah Hart Williams was prejudicial error as to Franklin Williams.
The jury began its deliberations in this case at 10:35 A.M., on Tuesday, March 31, 1970. The jury deliberated until 4:30 P.M., when they sent word to the court that they were thirsty and requested that some Coca-Colas be sent to them. At that point, the trial judge, sua sponte, without any intimation from the jury that they were deadlocked, or any request for further instruction, and without informing counsel of his intentions called the jury back into the courtroom and gave them the following variation on the so-called "Allen" Charge4 or "dynamite" charge:
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