United States v. Kenneth C. Gordon , 253 F.2d 177 ( 1958 )

PARKINSON, Circuit Judge.

A four-count indictment was returned by the 1950 Grand Jury for the Northern District of Illinois, Eastern Division, against Kenneth C. Gordon, Kenneth J. MacLeod and Albert Swartz. Counts 1 and 3 alleged that defendants unlawfully possessed goods stolen while being transported in interstate commerce, in violation of Title 18 U.S.C.A. § 659, and counts 2 and 4 that they caused the property described in counts 1 and 3 to be further transported in interstate commerce, in violation of Title 18 U.S.C.A. § 2314. Swartz died previous to trial. Gordon and MacLeod were found guilty by a jury on all counts, upon which judgment was entered by the court. On appeal, this court affirmed. United States v. Gordon, 7 Cir., 196 F.2d 886. The Supreme Court allowed certiorari and reversed. Gordon v. United States, 344 U.S. 414, 73 S.Ct. 369, 97 L.Ed. 447.

Upon a second trial, MacLeod was acquitted on all counts, by a directed verdict as to counts 3 and 4, and by a jury verdict as to counts 1 and 2. Gordon was found guilty on all counts and sentenced by the court to imprisonment for a period of seven years on each count, the sentences to be served concurrently. From this judgment Gordon appeals.

Defendant asserts and argues numerous errors as grounds for reversal. In abbreviated form, the issues thus raised are: (1) counts 1 and 3 of the indictment are void in the absence of an allegation as to the value of the stolen property alleged to have been possessed by defendants ; (2) the proof is insufficient to sustain the jury verdict, particularly as to counts 2 and 4; (3) there is a fatal variance between the proof and the allegations of the indictment as to value and description of the property; (4) the court erred in its admission and rejection of testimony; (5) the court erred in denying defendant’s challenge to the jury panel, based upon a distribution to the jurors of a “Handbook for Jurors”; (6) the court erred in failing to poll the jury regarding newspaper publicity, and (7) the court deprived defendant of his constitutional right to counsel.

In view of the conclusion which we have reached relative to a disposal of the case, we shall consider only those issues which we regard as decisive. In the interest of brevity, we refer to our opinion on the first appeal reported at 196 F.2d 886 as well as to that of the Supreme Court for a more detailed statement of facts than is necessary to make for our present purposes.

It was shown that Kodak film shipped by truck from Rochester, New York to Chicago, Illinois was stolen while in transit. A portion of this film was subsequently found in Detroit, Michigan, in the possession of one Marshall, or in the possession of persons who had received it from him. He was the government’s principal witness in the present as well as in the previous trial. Marshall testified concerning two trips made from Detroit to Chicago in his car, accompanied by Swartz (named as a defendant but since deceased), on July 20 and July 27, 1950. On the occasion of these visits he contacted Gordon and MacLeod, from whom he procured certain film which was stored in a garage jointly controlled by them. Both Gordon and Mac-Leod on one or both occasions assisted Marshall in loading the film into his car, which bore Michigan license plates. In this car the film on each occasion was transported by Marshall, accompanied by Swartz, from Chicago to Detroit. Defendant Gordon as a witness contradicted the testimony of Marshall on all material matters. We are not concerned, of course, with this conflicting testimony because in the present posture of the case, the proof must be considered in the light most favorable to the government. Moreover the record furnishes considerable corroboration for Marshall’s testimony.

No question is raised as to the sufficiency of the proof relative to the interstate transportation of the film from Rochester, New York to Chicago, Illinois, that it was stolen while in transit, or as to its interstate transportation by Marshall from Chicago, Illinois to Detroit, Michigan on the two occasions mentioned. It is neither alleged nor claimed that either Gordon or the other named defendants stole the film. As already noted, 1 and 3 are possession counts, and 2 and 4, transportation counts. The former two counts allege that the defendants had possession of the film, with knowledge that it had been stolen. The latter two counts allege that the defendants did “knowingly transport and cause to be transported in interstate commerce” the merchandise described in counts 1 and 3.

In our opinion on the first appeal we found it unnecessary to decide the issue as to the sufficiency of counts 1 and 3, on the well recognized theory that the sentence, being general, was supported by counts 2 and 4. We have now reached the conclusion, for reasons subsequently stated, that the proof is insufficient to support the judgment on counts 2 and 4. Therefore, it becomes essential to consider defendant’s attack on the sufficiency of counts 1 and 3.

Section 659, upon which these counts are predicated, provides so far as here material that “Whoever * * * has in his possession any such goods or chattels [previously stolen from an interstate shipment], knowing the same to have, been embezzled or stolen,” shall be “fined not more than $5,000 or imprisoned not more than ten years, or both; but if the amount or value of such * * goods or chattels does not exceed $100, he shall be fined not more than $1,000 or imprisoned not more than one year, or both.” Title 18 U.S.C.A. § 1, entitled “Offenses classified,” provides: “(1) Any offense punishable by death or imprisonment for a term exceeding one year is a felony. (2) Any other offense is a misdemeanor.” It is at once apparent that the statute under consideration describes two classes of offenses, dependent upon the value of the property, that is, a felony if the value exceeds $100, and a misdemeanor if the value does not so exceed. Neither count 1 nor count 3 contains any allegation, by reference or otherwise, as to the value of the property alleged to have been unlawfully possessed. Are the counts for this reason insufficient as a matter of law ? We hold they are.

It is the universal rule, so far as we are aware, that “each count in an indictment is regarded as if it was a separate indictment.” Dunn v. United States, 284 U.S. 390, 393, 52 S.Ct. 189, 190, 76 L.Ed. 356; Walker v. United States, 9 Cir., 176 F.2d 796, 798; United States v. Denny, 7 Cir., 165 F.2d 668, 670; McClintock v. United States, 10 Cir., 60 F.2d 839, 840. It is true, of course, that one count may be aided by incorporating the allegations of another count by reference. Both the Walker and McClintock cases so hold. To the same effect, United States v. Taylor, 2 Cir., 207 F.2d 437, 438, with Supreme Court citations in support of the proposition.

We know of no Federal case where the precise issue has been decided. However, in Cartwright v. United States, 5 Cir., 146 F.2d 133, the court, in discussing the statutory distinction between a felony and a misdemeanor, stated (page 135):

“It is, therefore, well settled that where the grade of larceny, and consequently the punishment, depend on the value of the property, it is essential that the value of the property defendant is charged with having taken be alleged and proved, 32 Am. Jur., Sec. 112, p. 1023.”

In Illinois, it is definitely settled that there must be both allegation and proof of value where the place of imprisonment, the length of sentence or the amount of fine is dependent thereon; further, that proof of value in the absence of an allegation is as futile as an allegation without proof. Brown v. People, 173 Ill. 34, 37, 50 N.E. 106; People v. Jackson, 312 Ill. 611, 612, 144 N.E. 314; People v. Swinson, 406 Ill. 233, 236, 92 N.E.2d 758.

The government points to the fact that counts 2 and 4 incorporate by reference the goods set forth in counts 1 and 3, and allege a value of more than $5,000. This allegation, while an aid to counts 2 and 4 is of no aid to 1 and 3, which, as noted, contain no reference to counts 2 and 4. The government argues “that after reading the indictment in this case there could be no doubt in anyone’s mind that the goods set forth in counts 1 and 3 were valued at more than $100.” Assuming such to be true, the argument is beside the issue. Each count must be judged on its own allegations, either those made directly or by reference. To hold that an allegation of value is not essential would place both the accused and the court in an awkward, if not intolerable, situation. A defendant should not be expected or required to plead to a count without knowledge as to whether it charges a felony or a misdemeanor. A plea of guilty to such a count would leave the court in the dark as to whether to impose sentence for a felony or misdemeanor. The government argues that it does not follow from a failure to allege value that no offense was proved. This, if true, is immaterial. The issue is a failure to allege, not a failure to prove.

The government cites Tinder v. United States, 345 U.S. 565, 73 S.Ct. 911, 97 L. Ed. 1250; United States v. Scarlata, 3 Cir., 214 F.2d 807, 809, and United States v. Marpes, 3 Cir., 198 F.2d 186. Both the Tinder and Scarlata cases involved proceedings under Title 28 U.S.C.A. § 2255, to vacate or correct sentences. It is not shown that any question as to the sufficiency of the indictments was raised or put in issue. In the Marpes case defendant was tried on two indictments, one of which failed to allege the value of the goods stolen. Again no question was raised as to the sufficiency of the indictment. The issue on review was whether the proof concerning value alleged in one of the indictments was sufficient. The most that can be said of these cases is that where a defendant raises no question as to the sufficiency of a count which fails to allege value and enters a plea of guilty or is convicted, such a count will sustain a judgment for a misdemeanor but not a felony. We think they are of no benefit to the government in the instant situation.

A serious challenge is made as to the sufficiency of the proof on counts 2 and 4, that is, those which allege transportation. It is not claimed and there is no proof that Gordon actually transported the film from Chicago to Detroit as alleged. As noted, the transportation was made in a car owned and driven by Marshall, accompanied by Swartz. Proof that Gordon assisted in loading the stolen film into Marshall’s car is sufficient, so it is argued, to make him an aider and abetter in the commission of the offenses charged, and therefore, he was properly convicted as a principal. The government concedes that under this theory it was incumbent upon it to show that Gordon, at the time the film was loaded into Marshall’s car, had knowledge that it was to be transported in interstate commerce. In fact, the government relies upon Anstess v. United States, 7 Cir., 22 F.2d 594, a decision of this court, wherein it was held that one who sells contraband whiskey to another with knowledge that the purchaser intends to transport it unlawfully participates in the purchaser’s plan to transport. The court stated (page 595): “One who, with full knowledge of the purpose with which contraband goods are to be used, furnishes those goods to another to so use them, actively participates in the scheme or plan to so use them.”

The factual basis upon which the government relies in support of the sufficiency of the proof is stated in its brief as follows:

“From the possession and furtive manner of disposition of this film the jury was justified in inferring that the defendant Gordon knew the film to have been stolen and that having known Swartz for a number of years, that he was in the jewelry business in Detroit, and he had done business with him on a number of occasions and that on two occasions he assisted loading the stolen film into the car bearing Michigan license plates, they were also justified in inferring that he knew where the film was going.”

Even this statement is more favorable to the government than the record justifies. “Bold” would be more accurate than “furtive,” inasmuch as the film was disposed of in broad daylight, in a thickly populated area of Chicago. Defendant asserts that there is no proof, and we find none, that he had knowledge that Swartz was in the jewelry business in Detroit, or that he had done business with him on numerous occasions. There is no proof that defendant saw or had knowledge that the car in which the film was placed bore Michigan license plates. The government’s statement is loaded with inferences. The jury was required to infer that defendant had knowledge that the film had theretofore been stolen, infer that he had knowledge that the car bore Michigan license plates, and further infer that he had knowledge that the film was to be transported by Marshall and Swartz from Chicago to Detroit.

In our view, the assertion that defendant had such knowledge can rest on nothing more than a strong suspicion. The record indicates that after the film was loaded into the car, defendant had no further interest therein, or in the proceeds to be derived therefrom. Such being the case, what difference could it have made to Gordon whether the film was transported by Marshall and Swartz to some other location in the city of Chicago, or to some other point in Illinois, such as Peoria or Cairo? It is not shown how transportation of the film to Detroit was of any benefit to or concern of defendant.

The government in its brief suggests: “What would be more natural than to get it [the film] away from the place of theft, where the law enforcement officers would be searching for it, and have it disposed of in some distant market, such as Detroit.” The argument is not impressive. We cannot assume that Gordon or any of the parties involved had reason to believe that the law enforcement officers of Detroit were any less vigilant than those of Chicago.

A conviction of causing stolen property to be transported in interstate commerce may depend upon the character of the transaction. Illustrative is Pereira v. United States, 347 U.S. 1, 9, 74 S.Ct. 358, 98 L.Ed. 435, and United States v. Sheridan, 329 U.S. 379, 391, 67 S.Ct. 332, 91 L.Ed. 359. In those cases, defendants cashed worthless cheeks drawn on banks located in other states. The court held that this was sufficient proof of causing transportation, on the ground that the defendants had knowledge at the time they cashed the checks that they would be sent for collection across state lines to the banks upon which they were drawn. This knowledge was imputable to the defendants because they knew there was no other place the checks could be sent. In contrast, no such knowledge is imputable to defendant in the instant case because the point of destination could have been one place as well as another, and was a matter of indifference to defendant.

The court instructed the jury, and properly we think:

“In order to justify a jury in finding a verdict of guilty based on circumstantial evidence, the circumstances must not only be consistent with the guilt of the defendant, but they must be inconsistent with any other reasonable hypothesis that can be predicated on the evidence; or, stated in another form, it is not sufficient that the circumstances proved coincide with, account for, and therefore render probable the hypothesis of guilt asserted by the prosecution, but they must exclude to a moral certainty and beyond a reasonable doubt, every other hypothesis but the single one of guilt, or the jury must find the defendant not guilty.”

If the jury had followed this instruction, the conclusion is inescapable that defendant was entitled to a verdict of acquittal on the counts under discussion. Certainly the proof does not exclude to a moral certainty the hypothesis that the-transportation of the film by Marshall and Swartz was a matter of indifference-to defendant and that he had no concern with or knowledge of the place of its. destination. We hold the proof insufficient to sustain a conviction on counts 2. and 4.

We think we should not pass unnoticed one phase of defendant’s contention that he was deprived of a fair-trial because of the admission of incompetent testimony. The witness Booth testified, over objection, to a statement, made to him by MacLeod in April 1952, and the witness McCormick, also over an objection, testified as to a conversation with MacLeod in June 1952. (These conversations took place almost two years, after the commission of the alleged crimes and subsequent to the reversal of' the previous conviction.) Both statements by MacLeod were made to these witnesses out of the presence of Gordon.. They were admitted only against MacLeod, with the usual cautionary instruction by the court that they were not to-be considered against Gordon. The important portion of MacLeod’s statement; as related by Booth is as follows:

“Kenneth Gordon was mixed up in some stolen film at that time that had been stored in the rear of the: garage at 217, and that he had * * Kenneth Gordon had stolen this * * * or had gotten the film from some thief and had stored it at the back of the garage at 217 Bast Erie, and that he hadn’t made anything out of the deal, and that he had * * * they had got caught with it. * * * Gordon * * * I mean, that the deal was that he said Gordon was supposed to send fellows over with cars and he was supposed to help load it in the cars for a percentage of the profit, and they got caught and there was no profit in it for him.”

MacLeod’s statement as testified to by McCormick is as follows:

“He [MacLeod] said first he had not stolen the films, that the film had been obtained by Gordon from the people who stole it. * * * He said that he had had nothing to do with the theft of the film; that the first he knew about it was when Gordon had brought it to 215 East Erie Street; that he didn’t want the film there in the first place, but that he and Gordon were in partnership at that time in the roominghouse and there wasn’t much he could do about it. He also said that Gordon told him they would make some money on it.”

It is evident that this testimony could not have been other than damaging and prejudicial to Gordon. The government justifies its admission, however, on the premise that it represented incriminating admissions by defendant MacLeod and that the court’s cautionary instructions sufficiently protected Gordon. Numerous cases are cited which have embraced the fanciful theory that any damage done to Gordon was cured by the court’s admonition to the jury. While the courts still cling to the theory, there is a growing tendency to repudiate it, and we think the sooner this is done, the better. As the late Justice Jackson stated in his concurring opinion in Krule-witch v. United States, 336 U.S. 440, 453, 69 S.Ct. 716, 723, 93 L.Ed. 790, “The naive assumption that prejudicial effects can be overcome by instructions to the jury [citing case], all practicing lawyers know to be unmitigated fiction.”

A similar issue was before the Supreme Court in Delli Paoli v. United States, 352 U.S. 232, 77 S.Ct. 294, 1 L. Ed.2d 278, wherein a judgment of conviction was affirmed by a five to four decision. The majority reasoned that the cautionary instructions of the court were sufficient under the circumstances of that case to safeguard the rights of a co-defendant. The circumstances of the instant case, as we shall point out, are different and observations made by the dissenting members of the court in Paoli are pertinent. The dissent states (352 U.S. at page 247, 77 S.Ct. at page 302): “The fact of the matter is that too often such admonition against misuse is intrinsically ineffective in that the effect of such a nonadmissible declaration cannot be wiped from the brains of the jurors.” And again (352 U.S. at page 248, 77 S.Ct. at page 303): “The Government should not have the windfall of having the jury be influenced by evidence against a defendant which, as a matter of law, they should not consider but which they cannot put out of their minds.”

The circumstances of the instant case are different in at least one important respect, that is, it is doubtful if the testimony under discussion can be properly characterized as incriminating admissions by MacLeod; in fact, they are exculpatory rather than incriminating. It is not discernible how these statements could have been of any material aid to the government’s case against MacLeod. At the same time, they were, as to Gordon, deadly poison. It is not surprising that the jury convicted Gordon and acquitted MacLeod. That the damaging effect of this testimony was cured by the cautionary instructions ignores realities and is contrary to all logic and common sense. Its admission on the flimsy pretext for which it was offered was of such a prejudicial nature as to require a reversal.

The foregoing is and was, by our opinion of July 16, 1957, dispositive of this case on appeal. However, we then went on to say that although there was no necessity for considering other errors relied upon by the defendant we felt constrained to make an exception and consider defendant’s challenge to the venire. The defendant had filed a written challenge to the entire panel of petit jurors in the District Court upon the grounds that they had been furnished with a pamphlet entitled “Handbook for Jurors” by either the Clerk or Deputy Marshal; that such handbook had improperly indoctrinated them so that they could not fairly and impartially sit as jurors in this case; that the handbook contained erroneous and misleading statements “the reading of which would so influence a prospective juror that he could not give to the defendants a fair and impartial trial” and the distribution thereof deprived the defendant of due process of law.

The only evidence offered by the defendant in an attempt to prove those allegations was the testimony of one Margaret Mulane, the person to whom the petit jurors report at the commencement of their service, that she gave a copy of the handbook to each of the prospective jurors and told them it was “a nice jury book and they should read it” but that she did not know whether they did read it or not.

The Government having made no issue as to whether the question was properly raised by a challenge to the venire we, upon the record that the challenge as made was admittedly sufficient to preserve the question for review, gave minute and careful consideration to the contents of the handbook and held that it was prejudicial and that the challenge should have been sustained.

The Government then filed a petition for rehearing era banc pertaining solely to the handbook portion of our opinion specifically contending that a challenge to the array does not properly raise the question. We granted the petition and, sitting era banc, reheard the handbook issue.

That it is too late to present a question for the first time on a petition for rehearing is so well settled that citation of authority would be superfluous. However, under the circumstances of a reversal of the cause for the reasons heretofore stated, to ignore the failure of the challenge to the venire to properly raise the handbook question would extend the office of such a challenge clearly beyond all proper limits and permit the addition of a ground not heretofore recognized by the law and for which there is no justifiable reason whatsoever. This we must not do.

A challenge to the array or, as entitled in some jurisdictions, a challenge to the venire is of common law origin. It was based on some partiality or default of the sheriff or his under officer and, as it was the duty of the sheriff to summon the jury, this was the only ground for such challenge. Chitty’s Criminal Law, Fifth American Edition, Vol. I, pages 535(a) to 539; Cooley’s Blackstone, Third Edition, Vol. II, pages 357 to 359. It goes to the form and manner of making up the whole panel and relates to the legality of drawing, selecting or impaneling the array. Whippany Paperboard Co., Inc. v. Local No. 301, 1952, 11 N.J. 153, 93 A.2d 349, 357. It can only lie when there is partiality or misconduct of the sheriff or some irregularity in making out the list, State v. Levy, 1924,187 N.C. 581,122 S.E. 386, 388; State v. Kirksey, 1947, 227 N.C. 445, 42 S.E.2d 613, 614, and will only be allowed upon some ground affecting the validity of the whole panel growing out of the proceedings in selecting and summoning the jurors composing the panel. State v. Smith, 1951, 138 Conn. 196, 82 A.2d 816, 820. It is universal and well established law that, absent statutory enactment, a challenge to the array or venire can only raise the question of the invalidity of the entire panel because of some vitiating defect or irregularity in the selection or summoning of the jurors. Am.Jur. Vol. 31, Jury § 112, page 640, 50 C.J.S. Juries § 262, p. 1021.

The challenge of the defendant Gordon raised no question whatsoever as to the drawing, selecting or impaneling the array or venire nor was it grounded upon any charge of partiality or default of the officer who selected or summoned the panel. Moreover, the grounds of the challenge, even if sufficient to properly present the issue, were not supported by sufficient proof. The only evidence offered by the defendant was that the handbooks were distributed to the prospective jurors with a suggestion that they be read. The record is completely devoid of any evidence that any of the members of the jury read the handbook or had any information as to its contents or, if read, would have been influenced thereby against the defendant. It was incumbent upon the defendant to introduce, or to offer, distinct evidence in support of the challenge and the failure to prove his contentions was fatal. Glasser v. U. S., 1942, 315 U.S. 60, 87, 62 S.Ct. 457, 86 L.Ed. 680.

Assuming, arguendo, that the entire panel read the handbook and that the handbook did contain statements inimical to a defendant in a criminal case, the defendant had the right of challenge to the polls. On voir dire examination he had the right, unless he desired to waive it, and it was his duty, to ascertain the true facts. In the event any member had read the handbook and for that reason could not give him a fair and impartial trial he had the right to challenge the juror for cause. Failure of the court to sustain such a proper challenge would constitute reversible error and defendant’s right to a fair and impartial trial would be preserved. Under the law he could assert that right in no other manner.

In the case of Frazier v. U. S., 1948, 335 U.S. 497, 69 S.Ct. 201, 93 L.Ed. 187, the Supreme Court of the United States held that the jurors had to be examined individually for actual bias or prejudice resulting from their employment. This is the procedure that must be followed when the panel has been legally and properly selected, drawn and summoned without favor. In the absence of a challenge to the polls for cause, if interrogation on voir dire revealed any juror was disqualified because he was biased or prejudiced against the defendant by reading the handbook, the defendant cannot complain. He has waived that right.

The District Court was correct in overruling the defendant’s challenge to the venire.

Judgment reversed and cause remanded.

Our former opinion of July 16, 1957 is superseded hereby and is withdrawn.