Appeals from the District Court of the United States for the Eastern District of Wisconsin; John P. Barnes, Judge.
Before EVANS, MAJOR, and TREANOR, Circuit Judges.
Defendants were indicted, tried, and convicted of "corruptly and by threats" endeavoring "to influence and intimidate * * * a witness who was then and there * * * appearing before a United States Commissioner," in proceedings then pending for the removal of two named individuals from Wisconsin to South Dakota.
Three individuals, Ray Trawczynski, E. W. Klein, and Sam Meltzer, were indicted in two counts, in one for intimidation of a witness, and in the other count, for endeavoring to obstruct the due administration of justice. 18 U.S.C.A. §§ 241, 245. The defendant Trawczynski pleaded guilty and testified for the Government. The jury found the other two, guilty on the first, and not guilty on the second count. Upon the pronouncement of sentences of imprisonment and fines, defendants each separately appealed.
Briefly, the Government's testimony tended to show that defendants were professional bondsmen. They had furnished bail bond for T in a prior removal proceeding, begun August 5 and dismissed September 9, for lack of evidence. T was rearrested and new removal proceedings begun in September. Defendants again signed his bail bond, this time without charge, inasmuch as he had paid them $200 for signing the earlier bond.
Klein and Meltzer became apprehensive, so they asserted, lest T would be removed, in which case they would have to furnish a second, a removal bond, for T's appearance in South Dakota. It was for this reason, they say, that they contacted one Mrs. Lage to ascertain whether her husband, an inmate of Leavenworth Penitentiary, was to testify against T on the removal hearings. It is the Government's contention that Klein and Meltzer contacted Mrs. Lage for the purpose of unlawfully inducing her, through bribes, to persuade her husband not to testify; that they promised her $100 and her expenses if she would go to Winona, Minnesota (where Lage would be taken before coming to Milwaukee), and speak to her husband, advising him that he should refuse to testify for the Government to facts which would involve him in a crime. They offered to procure counsel for her husband for his protection, and she mentioned an attorney who had acted for her husband. Defendants saw him immediately and were told that a Government witness needed no counsel to represent him. The prosecution also produced witnesses, Mr. and Mrs. T., who testified that they paid money to "fix the case" and have it dismissed. The court ordered the testimony of T as to the payment of $1200 to "fix the case" stricken on defendants' motion. Thereby support for the charges made in the second count of the indictment failed. It was the Government, therefore, not the defendants, who suffered by this ruling.
Meltzer had signed criminal bail bonds in about 3,000 instances, and Klein, in about 30. Klein was in the furniture business and acted as bail bondsman at Meltzer's request, the latter being morally bound to reimburse him.Klein testified he did not know that he could have surrendered a principal of whom he had become apprehensive; Meltzer said he surrendered his principals only upon a finding of guilt and sentence, and that he kept a close eye on them and their cases.
At the meeting at Mrs. Lage's home, her brother-in-law, Oscar Ellefson, a telephone lineman, was present. He corroborated Mrs. Lage's testimony in all respects.
The evidence was sufficient to sustain a conviction.
The Government's proof was squarely denied by the defendants, however, and this situation necessitated a submission of the case to a jury under proper instructions. Defendants' assignments of errors are directed to rulings made during the trial, and are more particularly directed to the court's instructions. Several of these assignments are without merit and will not be discussed, but at least three of them raise questions which must be separately considered.
Defendants argue that inasmuch as they were acquitted on the second count, conviction on the first count can not be sustained because of inconsistency. This contention, we reject, first because there is no inconsistency where the offenses charged in the two counts of the indictment are defined as separate crimes by two separate sections of the statute. They are not similar. One may be guilty of obstructing justice, although he did not attempt to improperly influence a witness.
Moreover, even though there be apparent inconsistency in the verdict in a criminal case, it affords no valid ground for setting aside the verdict on the count whereof the accused was found gulty, provided there is substantial evidence to support the verdict. Dunn v. U.S. 284 U.S. 390, 52 S. Ct. 189, 76 L. Ed. 356, 80 A.L.R. 161; Carrignan v. U.S., 7 Cir., 290 F. 189; Nadl v. U.S. 7 Cir., 6 F.2d 574; Chiaravalloti v. U.S., 7 Cir., 60 F.2d 192; Davey v. U.S., 7 Cir., 208 F. 237.
More serious are the two assignments of error which deal with the instructions of the court to the jury. One such assigned error arose when an objection by defendants' counsel was made to the correctness of the Government counsel's statement of the evidence. The other occurred later in the instructions dealing (a) with the way one who has signed bail for another may relieve himself of his bail bond obligation, and (b) with the weight of testimony of witnesses unfamiliar with court proceedings and court atmosphere, as compared to the credibility or witnesses who are intimate with court room proceedings.
The record discloses the following proceedings during the argument of counsel to the jury. The Government's attorney was addressing the jury. He said, "What right did Meltzer have to go to see Mrs. Lage and say to her that her husband who was a government witness, that her husband should stand on his constitutional rights?"
"Mr. Rothstein: Well, if the Court please, I have to object to the statement of counsel for the Government that Mr. Meltzer said that: he didn't say that.
"Judge Barnes: Constitutional rights haven't anything to do in this case; don't be misled by the term; just turn it out of your minds; it's dust being thrown into your eyes; that's all that 'constitutional rights' has to do in this case."
Exceptions were duly taken to the court's observation.
Defendants also complain of the following instructions:
"Now, what is the relationship between a bondsman and a defendant? I'll tell you what the relationship is. When a defendant is arrested, when a defendant is charged with a crime or an offense against the United States, and is arrested, he is in the custody of the United States; he is in the custody of the United States Marshal, and when he is in the custody of the United States Marshal, he is in the custody of the United States; and if he desires to be released on bond, released from that custody, if he wants to get out of jail, he seeks a bondsman, and the bondsman signs his bond, and then in contemplation of law, the bondsman becomes the custodian of the defendant; he is his jailer.The defendant from the signing of the bond for him, is released by the United States Marshal, and then the bondsman becomes the jailer of the defendant; and, if that jailer, that bondsman, feels himself insecure; if he feels that his defendant is going to jump his bail, his bond; all that he has to do is to bring him into court, and say, Your Honor, I desire to surrender this defendant; that's all he has to do; and the Judge says to the Marshal; Mr. Marshal, take the defendant into custody; whereupon, the Marshal takes the defendant back into the custody of the United States, and the bondsman is released of his liability on the bond.
"If this defendant Klein felt himself insecure, or, if this defendant, Meltzer, felt that his friend, his business associate, was insecure on the bond, all that Mr. Klein had to do was to say to Mr. Trawczynski come with me over to the United States Commissioner, and if Mr. Klein was not strong enough physically to take Mr. Trawczynski over to the United States Commissioner, all that he had to do, was to call to his assistance someone who was strong enough physically to take the defendant Trawczynski over to the United States Commissioner, and after having him brought there; all he had to say is, Mr. Commissioner, I desire to surrender the defendant Trawczynski; whereupon, the Commissioner would say, Mr. Marshal, take the defendant Trawczynski into custody; and Mr. Klein would, thereupon, have been released of his liability upon his bond; and, if Mr. Meltzer felt that his friend, or business associate, Mr. Klein, was insecure, in that Mr. Trawczynski might jump his bond; all that Mr. Meltzer had to do was to say to Mr. Klein, surrender the defendant Trawczynski and terminate your liability on the bond.
"Now, gentlemen, it is inconceivable, that a man, who has written as many bonds as Mr. Meltzer or Mr. Klein did not know, - it is just inconceivable that all they had to do with the defendant Trawczynski was to surrender him. But, what did they do? They began having conversation with Lage's wife. Now, what honest purpose could there be for those conversations? What honest purpose could there be for those conversations?
"It seems to me that there couldn't be any honest purpose for those conversations. If they were afraid of their security on his bond, all they had to do was to surrender the defendant Trawczynski. * * * "
"In considering the weight to be given to the testimony of these two defendants, I suggest that you take into account their experience about the courts; are they accustomed to be in and about courts. There is one defendant here, Meltzer, who says that he has written about three thousand bonds; and there is the other defendant, Klein, and he says that he has written about thirty bonds in this court; consider whether they are accustomed to be in and about courts. Are they likely to be embarrassed when they are in court; are they likely to be embarrassed when they are on the witness stand? When you consider the weight of the testimony and the credibility of the witnesses, as I said to you before, the question of credibility of witnesses, and the weight to be given to their testimony, is a question for you to determine. That is a question for you and for your judgment; and, if your judgment disagrees with mine, it is your duty to follow your own judgment.
"But that brother in law of Mrs. Lage, Oscar Ellefson; he looked to me and he seemed to me like an honest man, I can't see any reason why he, with his responsible position, with the Wisconsin Telephone Company, why he should be here telling anything other than the truth. He is not accustomed to courts. Maybe this was the first time that he has ever been in a court, and he meticulously tried to tell the truth; therefore, he was slow in his testimony; his mind doesn't operate very rapidly, at best; he works out on construction jobs; he seemed to me like an honest man; but if your judgment of him is different, it is your duty to follow your judgment; because that is the law."
To ascertain the propriety of a court ruling or to determine the probability possibility of prejudicial error in an instruction, it is ordinarily necessary to scrutinize the fact background to which it applies. This is so in the instant case. The ruling complained of seemingly bears no relation to the objection made by the defendants' counsel who merely challenged the accuracy of the Government counsel's statement of evidence.
We are inclined, however, to view what, literally, is the ruling on an objection, as an instruction to the jury. Even so ...