United States v. Williams

Citation447 F.2d 894
Decision Date30 July 1971
Docket NumberNo. 29937.,29937.
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Franklin Eugene WILLIAMS and James Edison Williams, Defendants-Appellants.
CourtUnited 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.

SIMPSON, Circuit Judge:

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.

METHOD OF JURY SELECTION

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.

ADMISSION OF STATEMENT OF MRS. FRANKLIN WILLIAMS

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:

"Q Didn\'t she say, `I told you you were going to get in trouble messing with J. E. Williams and those counterfeits?\'
"A No, sir, she did not."

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:

"Miley\'s testimony relating what Mrs. Ivy sic had told him about the appellant\'s participation in the importation not only violates the rule against admitting hearsay testimony but also the rule against admitting testimony of one spouse against the other. In Hawkins v. United States, 358 U.S. 74, 79 S.Ct. 136, 3 L.Ed.2d 125 (1958), the Court reaffirmed the old common law rule, to the extent that a wife\'s testimony was inadmissible against her husband." 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:

"The Hawkins case, supra, involved the admission of a wife\'s testimony in open court, but we know of no reason why the rule there reaffirmed is not equally applicable to a statement alleged to have been made by her out of court. She might as well be permitted to testify against her husband in open court as to permit the introduction of a statement she made against him out of court." 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 "ALLEN" CHARGE

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:

THE COURT:
Now, Mr. Carter, I have had the statement from the Marshal that some of you are getting a little thirsty and would like to have some Cokes and he will take care of those needs right after I have said a few words to you.
I hope that you will be able to come to an agreement on at least some count to each defendant and I want to say this to you: This is an important case and in all probability it cannot be tried better or more exhaustively that it has been on either side. It is desirable that you agree upon a verdict or verdicts.
The Court does not want any juror to surrender his or her conscientious convictions. Each juror should perform his or her duty conscientiously and honestly according to the law and the evidence. All the verdicts to which the jurors agree must be his or her own verdict. It is the result of his or her own convictions and not a mere acquiescence in the conclusion of other jurors.
Yet in order to bring 12 minds to a unanimous result, you must examine the questions submitted to you with candor and with the proper regard and deference to the opinions of each other. You should consider that the case at some time must be decided and that you 12 are selected in the same manner and from the same source from which each future jury must be, and there is no reason on the part of anyone to suppose that the case will ever be submitted to a jury more
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