Williams v. United States
| Decision Date | 20 December 1937 |
| Docket Number | No. 8252.,8252. |
| Citation | 93 F.2d 685 |
| Parties | WILLIAMS et al. v. UNITED STATES. |
| Court | U.S. Court of Appeals — Ninth Circuit |
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Leslie S. Bowden and Clyde C. Shoemaker, both of Los Angeles, Cal. (Samuel W. Blum, of Los Angeles, Cal., of counsel), for appellant Williams.
Ames Peterson, of Los Angeles, Cal., for appellant Black.
Peirson M. Hall, U. S. Atty., and Leo V. Silverstein and Howard V. Calverly, Asst. U. S. Attys., all of Los Angeles, Cal., for appellee.
Before GARRECHT, DENMAN, and HANEY, Circuit Judges.
The appellants were indicted with five other persons on mail fraud charges. The first ten counts of the indictment alleged the devising of a scheme and artifice to defraud and the use of the United States mails for the purpose of executing such scheme, in violation of section 215 of the Federal Penal Code, 18 U.S.C.A. § 338. The eleventh count charged a conspiracy to do the acts set forth in the first ten counts, all in violation of section 37 of the Penal Code, 18 U.S.C.A. § 88.
The appellants interposed demurrers, both of which were overruled. Requests for a bill of particulars were denied, with the exception of two items requested by the appellant Black. Exceptions were noted to the adverse rulings.
Three defendants were placed on trial, namely, the appellants and William J. Munton. The indictment was dismissed as to the defendants David E. Fulwider and Clare Clee. Before the trial commenced, the defendants Henry M. Dermer and Herbert R. Freeland entered pleas of nolo contendere to the first count, and the remaining ten counts entered against them were dismissed.
Before the trial commenced, counsel for Munton and the appellant Black made a statement to the court which he termed "a demurrer to the evidence," as to all defendants and all counts, and counsel for the appellant Williams moved to exclude all evidence on each count of the indictment. The demurrer was overruled and the motion was denied.
At the conclusion of the appellee's case in chief, counsel for the defendants moved for a directed verdict and to dismiss, which motions were denied and exceptions noted, except that counts 2 and 3 of the indictment were dismissed as to all defendants.
At the conclusion of all the evidence, the appellants renewed the motions made at the conclusion of the appellee's case, for instructed verdicts of not guilty. The motions were denied and exceptions noted.
The jury returned a verdict finding the appellants guilty on counts 1 and 4 to 11, inclusive, and finding the defendant Munton not guilty on all counts of the indictment.
The appellants' motions for a new trial were denied, and judgment in accordance with the verdict was pronounced. From that judgment, the present appeal has been taken.
There are 55 assignments of error, but only 15 specifications are urged in the briefs by the appellant Black and 9 by the appellant Williams.
One of the most meritorious assignments and specifications of error is the one which sets forth that the lower court "erred during the trial of the case in indulging in acts of advocacy, in that the trial court, in examining and cross-examining witnesses and the defendants, virtually assumed the role of a prosecuting attorney."
In reviewing this assignment, we are not unmindful that the able District Judge who tried this case has, heretofore, established a reputation for fairness and judicial poise, and in this opinion we do not wish to imply that the trial judge intentionally was unfair. But as the authorities herein referred to point out, the harm done is not diminished where the judge, by reason of unrestrained zeal, or through inadvertence, departs from "that attitude of disinterestedness which is the foundation of a fair and impartial trial."
The appellants estimate that approximately one-third of the transcript of testimony is devoted to the examination of witnesses by the trial court — or about 220 out of 675 pages. The appellee does not deny this, but, on the contrary, concedes that the court's examination of witnesses was "of considerable length." The appellee contends, however, that the lower court's examination had "no earmarks of unfairness or unfriendly attitude toward the defendants, but only that of enlightenment to everyone concerned."
It would unduly lengthen this opinion to attempt to summarize the court's entire activities with regard to the examination of witnesses. A few examples, however, will suffice.
To place these examples in their proper setting, a brief glance at the issues is necessary. The case deals with the sale of the stock of the Hollywood Dry Distributing Company, a Delaware corporation, organized in 1928, the name of which was changed to Hollywood Dry Corporation. The appellant Black was general manager of the company, and was also president of the Consolidated Investment Corporation, which had offices both in Los Angeles and Fresno, Cal. Later Black became a director and the executive vice president of the Hollywood Dry Corporation.
The appellant Williams was president of the First National Bank of Fresno. He testified that he and the defendant Dermer brought about the incorporation of Hollywood Dry, Inc., in the summer of 1926. That company, which engaged in the manufacturing of ginger ale and other beverages, was the predecessor of the Hollywood Dry Distributing Company and the Hollywood Dry Corporation. Williams was elected director and vice president of Hollywood Dry Distributing Company on November 12, 1928. The company's plant was first located in San Francisco, but in 1928 moved to Los Angeles.
The indictment charges that, as a part of the "scheme and artifice to defraud," the defendants, while dominating and controlling the Hollywood Dry Distributing Company and the Hollywood Dry Corporation, caused those corporations to issue to the defendants and others large amounts of stock without any consideration being received by the companies therefor; that, as part of the same scheme, the defendants caused certain letters to be sent through the mails; that, also as part of the plan, the defendants, on January 15, 1930, paid to the holders of Class A stock of the Hollywood Dry Corporation moneys which the defendants represented were dividends from the earnings of the corporation, when in truth and in fact the corporation was then operating at a loss, the so-called "dividends" being paid from a source other than the profits of the corporation; and that, still as part of the scheme to defraud, the defendants set up on the books of the Hollywood Dry Corporation two contracts at a valuation of $485,000 and a promissory note for $200,000, including the contracts and note as assets, when the defendants well knew that such contracts and such note had little or no value.
By far the greater part of the examination of the defendant Freeland was conducted by the District Judge. Freeland, who had filed a plea of nolo contendere, was a witness for the appellee. The court's examination of Freeland consumes approximately 64 pages of the transcript. Frequently the court completely took away the examination from counsel, despite the fact that the attorneys on both sides seemed to be conducting their respective cases in an able and lawyer-like manner. The following is an example:
But the court ignored the appellee's attorney and proceeded to conduct the redirect examination in its own way, propounding leading and suggestive questions that would not have been permitted to the prosecutor himself.
Similarly, the court took over the cross-examination of Freeland:
And thereupon the court began questioning the witness, the examination covering 3 pages of the transcript.
Approximately 32 pages of the transcript are taken up with the lower court's examination of the defendant Munton, who had been bookkeeper and assistant secretary of the Hollywood Dry Corporation. Although Munton was acquitted, it must be borne in mind that he testified strongly in favor of his codefendants, particularly the appellants, so that any attempt to hamper or discredit his testimony would be prejudicial to them.
As in the case of other witnesses, the trial judge interrupted Munton while the latter was answering a proper question on cross-examination. The appellee's attorney had asked the witness why a certain item, derived by subtracting the base valuation of certain shares of stock from the excess of assets over liabilities, had been entered into the surplus account:
The testimony was thus veered off to another subject, and for approximately 13 pages of the transcript the examination was conducted by the District Judge.
We believe, furthermore, that the court indulged in unnecessary sarcasm in the following colloquy with Munton.
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