Woodring v. United States

• Decision Date: 01 February 1963
• Docket Number: No. 17013.,17013.
• Citation: 311 F.2d 417
• Parties: Robert A. WOODRING, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

311 F.2d 417 (1963)

Robert A. WOODRING, Appellant, v. UNITED STATES of America, Appellee.

No. 17013.

United States Court of Appeals Eighth Circuit.

January 8, 1963.

Rehearing Denied February 1, 1963.

Wayne H. Bigler, Jr., St. Louis, Mo., Husch, Eppenberger, Donohue, Elson & Jones, St. Louis, Mo., on the brief, for appellant.

William C. Martin, Asst. U. S. Atty., St. Louis, Mo., D. Jeff Lance, U. S. Atty., St. Louis, Mo., on the brief, for appellee.

Before VOGEL and VAN OOSTERHOUT, Circuit Judges, and VAN PELT, District Judge.

PER CURIAM.

Robert A. Woodring, appellant-defendant herein, was charged by a grand jury in a seven-count indictment, the first six counts of which alleged use of the mails to defraud in violation of 18 U.S.C.A. § 1341. The seventh count charged a violation of 18 U.S.C.A. § 1343, which proscribes fraud by interstate wire, radio or television. At a jury trial commencing on December 4, 1961, and concluding on December 7, 1961, Woodring was acquitted on Counts 1, 2, 3, 5 and 7. During the trial and at the conclusion of the evidence, Count 6 was dismissed on motion of the United States Attorney. The jury found Woodring guilty on Count 4. He was thereafter sentenced to three years' confinement. This is an appeal from the judgment of conviction.

Two errors are alleged:

"I.

"The Comments and Cross-Examination by the Trial Judge During the Testimony of the Three Chief Defense Witnesses Was Plain Error and Prejudiced the Jury Against Appellant, Deprived Him of a Fair and Impartial Trial and Resulted in His Conviction on Count 4.

"II.

"The Dismissal of Count 6 Immediately Before the Case Was Submitted to the Jury Without Appellant\'s Consent Prejudiced Appellant\'s Defense to Count 4 of the Indictment."

The indictment alleged that Woodring, as president of the Youngstown Home Improvement Company, schemed to obtain money by false pretenses. He allegedly induced persons to invest money in Youngstown by falsely representing that: He needed employees and partners, that the company was a profitable and well established concern, successfully operating in the home improvement field, that there existed inventory security for the investments, that the investors would receive large profits and commissions, that they would receive university training, that they would have control of company funds, that the company had substantial value, that he would repurchase stock of any unsatisfied investor, and that the company, not Woodring, was to receive the money thus invested. To carry out this alleged scheme, Woodring placed advertisements in a newspaper which called for answers through the mails. It was also alleged in Count 7 that he made an interstate telephone call soliciting one such investment.

Six persons ultimately invested varying amounts of money in the corporation and received stock in return. Five of these investors came into the company in late 1959 or early 1960. Use of the mails and interstate telephone to defraud as to them was charged in Counts 1, 2, 3, 5 and 7. Woodring was acquitted on all such counts.

The sixth investor was one Leonard Herman. Youngstown had issued but 100 shares of stock. Some of such shares had been sold to those who had invested in late 1959 or early 1960. Dissension between those investors and Woodring developed in the operation of the business by May or June, 1960. Some of the investors had dropped out and were requesting a return of their money. On June 26, 1960, appellant placed an advertisement in the St. Louis Post-Dispatch in the column "Partners Wanted", which read as follows:

"Man who is honest and sincere and is seeking same with a Gentile partner: I have a very profitable and expanding business but need a partner to expand: $6,000 required; references."

Herman used the mails to respond to Woodring's advertisement. The ensuing negotiations culminated on August 10, 1960, in Herman's paying $6,000 to Woodring for 50 shares of Youngstown in order to become "a full partner" with Woodring. (Prior investors had paid from $1,000 to $2,000 per share.) During the negotiations between Woodring and Herman, Woodring led Herman to understand that the corporation bank account had funds in it exceeding $6,000 and that with Herman's $6,000 the corporation assets would total approximately $12,000. On the day Herman closed the deal by giving Woodring his check for $6,000, the two went to the Lindell Trust Company, where they signed a signature card which provided that their two signatures were necessary to make withdrawals from the account of the Youngstown Home Improvement Corporation. At that time, there was a balance in the corporation account of $6,504.69. Later that day, without Herman's knowledge or consent, Woodring withdrew the corporation's funds from its checking account, such withdrawal resulting in an overdraft the next day when other checks he had issued were presented for payment. He also deposited Herman's $6,000 in his personal account. At the time of the negotiations between Woodring and Herman, Woodring did not own the remaining 50% of the stock of Youngstown nor did he disclose that fact to Herman. In defense, he claimed he intended to purchase back other outstanding shares so that he and Herman would each own 50%. No evidence of such attempts to purchase was disclosed. On the day following that on which he received and cashed Herman's check and withdrew the corporation's funds from its account, which he claimed were commissions due him, he called Herman on the telephone and told him that his doctor had advised him to take a vacation for health reasons. His explanation to the jury for withdrawing the corporation's funds and keeping Herman's $6,000 was that there was still left $12,000 worth of corporation assets represented by equipment, signed contracts and accounts receivable. Herman had no opportunity to participate in any of the affairs of the company. Business activities of the company appeared to cease completely following his becoming a full partner.

Count 4 of the indictment, on which Woodring was convicted, deals with his transactions with Herman and Herman having used the mails to respond to Woodring's advertisement in the St. Louis Post-Dispatch. Evidence of Woodring's guilt in connection with the charge contained in Count 4 was most substantial, whereas evidence supporting the charges contained in the other five counts was not nearly so convincing.

It is earnestly contended on behalf of the appellant that he was deprived of a fair and impartial trial by reason of comments made by the trial judge and cross-examination conducted by the trial judge of the defendant and his witnesses. We have read the entire transcript of 388 pages of the witnesses' testimony taken during the trial. It is true that the judge did interrupt the examination and cross-examination of the defendant and his witnesses on a number of occasions. It is also true that he made some comments during the trial which reflected skepticism with reference to the statements made by some of the witnesses and their willingness to make fact disclosures and that some of the questions asked could have come much better from the prosecutor than the court. In only one instance was an objection made to the trial judge's questioning or to his comments. On that one occasion the judge had chided the defendant for not reading correctly to the jury from a document which he held in his hands. It was obvious that the defendant was not quoting accurately. We think it fair to say, however, that generally the trial judge's purpose in interjecting himself into the examination of the defendant and his witnesses had for its objective the clarification of facts for the jury in a case where some of those testifying were forgetful, obtuse or uncooperative. However, the understanding impatience of the judge with a witness who misreads a document he holds in his hand, a witness who testifies that from his own knowledge the company had orders for "better than a hundred thousand dollars", which latter statement is disclosed upon the court's questioning to be based solely upon a hearsay statement of the defendant himself, and a witness who was lax in preparation and careless in statement does not justify the court's injudicious statements and vigorous cross-examination as disclosed by the record before us here. We cannot approve the practice and must conclude that the extent to which the trial court participated was unnecessary and to a degree improper. See Hargrove v. United States, 8 Cir., 1928, 25 F.2d 258.

While we find that the comments of the trial judge and his participation in the questioning of the defendant and his witnesses exceeded the bounds of judicial propriety, we must nevertheless also conclude that such activities prejudiced the defendant before a new trial may be ordered on such grounds. As Judge John Sanborn expressed it for this court in Goldstein v. United States, 8 Cir., 1933, 63 F.2d 609, 613:

"* * * An appellate court should be slow to reverse a case for the alleged misconduct of the trial court, unless it appears that the conduct complained of was intended or calculated to disparage the defendant in the eyes of the jury and to prevent the jury from exercising an impartial judgment upon the merits."

See also United States v. Aaron, 2 Cir., 1951, 190 F.2d 144, certiorari denied Freidus v. United States, 1951, 342 U.S. 827, 72 S.Ct. 50, 96 L.Ed. 626; Garber v. United States, 6 Cir., 1944, 145 F.2d 966; Hargrove v. United States, 8 Cir., 1928, 25 F.2d 258. While we are convinced here that impropriety has been established, we nevertheless conclude, for the reasons hereinafter stated, that no prejudice resulted.

At no time during the presentation of the testimony or during his charge to the jury did the trial judge here express an opinion as to the facts nor did he comment directly upon the witnesses and their testimony, although it was his prerogative so to do. Buchanan v. United...