Before SCHNACKENBERG, KNOCH and CASTLE, Circuit Judges.
These two appeals were both taken from judgments and convictions resulting from a single trial of four indictments.
Defendant-appellant Alice M. Gilmore was one of thirteen defendants charged with violation of the federal narcotics control laws. The indictment in District Court Case No. 59 CR 466 charged her and twelve others with conspiracy to violate the federal narcotic laws over a period of time from about August 1, 1954, continuously to and including the date of indictment, September 2, 1959. The indictment in District Court Case No. 59 CR 468 charged Alice M. Gilmore, Jeremiah Hope Pullings and Florine Whitlow Johnson with unlawful sale of narcotics on or about January 11, 1958, to Victoria Marie Basemore and James S. Bailey. These two indictments were consolidated for trial with two other indictments in District Court Cases 59 CR 467 and 470, which charged Miles J. Cooperman, Sheldon R. Teller, and Delores Keeby, respectively with two other narcotics violations. These three defendants were also named in the general conspiracy indictment in No. 59 CR 466.
The trial resulted in a verdict of guilty and Alice M. Gilmore was sentenced to serve ten years imprisonment.
"The errors urged on this appeal arise out of the consolidation of indictments for a joint trial, prejudicial errors in the admission of evidence to the jury, prejudicial errors in overruling appellant's motions for acquittal and entering judgments against appellant without proof beyond a reasonable doubt that appellant was guilty as charged; and prejudicial errors in setting aside an order of the trial court which granted appellant a new trial because of prejudicial conduct of government officers after return of the verdict of the jury, but before the trial court had ruled on appellant's post-trial motions."
It is appellant's position that the proof on the trial established mere episodes unrelated to the conspiracy charged; that the continuing conspiracy charged in the indictment was never proved; that there was a lack of substantial evidence to prove that appellant had knowingly been part of such conspiracy and had committed the crimes charged. Appellant contends that she was prejudiced by joinder of indictments charging her with a sale of narcotics and with being a party to a conspiracy, and the indictments charging others with substantive offenses which were not alleged in the conspiracy indictment as committed in pursuance of the conspiracy charged. Thus appellant argues that the jury heard evidence concerning unconnected charges against her and others which were unrelated to the conspiracy.
It is the government's position that, the evidence viewed in the light most favorable to the government, as this Court must view it on this appeal, shows a single, unified conspiracy to deal in narcotics and that there was no prejudicial variation between the charges in the indictment and the proof. The government asserts that the substantive indictments were properly consolidated for trial with the general conspiracy indictment because two of those substantive indictments involved acts listed among the Overt Acts which furthered the conspiracy, and the third charged a co-conspirator with concealment of heroin during the period charged in the conspiracy indictment. The government argues that no testimony was admitted at the consolidated trial which would not have been admissible on trial of the general conspiracy charge.
Appellant characterizes as prejudicial error admission of testimony concerning a conversation between a government witness and one of the defendants which was recorded by federal agents through electronic equipment in violation (appellant asserts) of Illinois law and in deprivation of the appellant's Constitutional privilege of due process. The government's view is that the evidence of conversations overheard through electronic devices was not inadmissible under the provisions of Federal Rules of Criminal Procedure No. 26*fn1 which makes federal courts sitting in Illinois the sole judges of admissibility of evidence in federal criminal trials regardless of the rules of evidence followed in the criminal courts of the State of Illinois.
It is further contended that appellant was prejudiced by destruction prior to trial of government exhibits 20 and 21, both allegedly comprising narcotics obtained by government witnesses. The government's view is that this evidence was inadvertently destroyed and that proper foundation was laid for introduction of secondary evidence of its chemical composition.
Appellant further asserts that she was deprived of a fair and impartial hearing of her motions for acquittal and new trial by the conduct of certain government officials, including two assistant United States attorneys. Three Chicago police officers had been named in the general conspiracy indictment (59 CR 466) as having advised and protected the other defendants and co-conspirators in return for certain sums of money. They were charged with specific overt acts, and, in a separate indictment (59 CR 467) two of them were charged with an unlawful sale of narcotics.
At the close of all the evidence, these three police officers moved for judgment of acquittal. The Trial Judge granted these motions after the jury had begun its deliberations and after the jury had actually brought in sealed verdicts [which proved to be guilty verdicts against some of the defendants (not including the three police officers)] in cases numbered 59 CR 466 and 468.
In response to the Trial Court's inquiry, the jury had indicated that additional time would be required to arrive at a verdict respecting the four defendants not covered by the sealed verdicts. At this time, the Trial Judge indicated that he had reluctantly allowed the jury to consider the case of the three police officers. He reviewed the evidence against them at length, indicated his view that it would not support a verdict of guilty, and then granted the motions to acquit the three police officer defendants.
The jury then returned to its deliberations and brought in a verdict of not guilty as to the remaining defendant, William L. Jones, in case No. 59 CR 466.
The government officials, mentioned above, visited some, if not all, of the jurors in their homes, to ascertain their views of the Trial Court's action respecting the three police officers. Subsequently, articles appeared in the newspapers indicating critical views held by various jurors, particularly the foreman, respecting the Court's ruling. Appellant asserts that this incident, and the presence of some of the same jurors in the courtroom at the time that the Trial Judge ruled on the motions for acquittal or new trial for certain of her co-defendants, prejudiced the Trial Court's ruling on those motions and on her own motions for acquittal and new trial which were heard at a later time.
Prior to ruling on this appellant's own motions for acquittal and new trial, the Trial Judge's attention had been invited to the incident of the visits to the jurors by motions filed on behalf of appellant's co-defendants Jeremiah Hope Pullings and Delores Keeby. At the hearing on those motions, the Trial Judge indicated that he saw in these visits to the jurors, and the subsequent events, an attempt by the government to influence him. He stated that the defendants had a fair trial; that there was overwhelming evidence of the guilt of Jeremiah Pullings, Delores Keeby and this appellant; of a general conspiracy in which appellant and three others were key personnel;*fn2 but that he would grant a new trial for all parties because of these post trial incidents involving the jurors. This order was entered May 4, 1961.
The government moved to vacate this order on the ground that two of the defendants to whom the order of May 4, 1961, granted a new trial (Jeremiah H. Pullings and Delores Keeby) had already filed their notice of appeal. The Trial Judge then vacated the order not only as to those two defendants but also as to appellant. Later appellant's own motion for acquittal and new trial and her motion to set aside the order vacating grant of a new trial were denied. The government contends that appellant had a full and complete hearing at that time.
Appellant contends that gaps in the proof necessarily result from the following circumstances: Simon H. Stallsworth was dead at the time of trial and the proof was silent as to his part in the conspiracy; Sheldon R. Teller, Miles J. Cooperman, and Richard E. Austin, the three policemen, were acquitted on directed verdicts; Gladys Davis and James White were granted new trials; William L. Jones was found not guilty; Morris Wheeler Roller and Armando Piemonte were dismissed. All of these were included in the general conspiracy indictment case No. 59 CR 466. Thus appellant reasons that the conspiracy charged, involving thirteen defendants and ...