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    United States v. James Lowe, 234 F.2d 919, 3rd Cir. (1956)

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    The defendant appealed his conviction under the Hobbs Act for extortion. He argued the trial court erred in allowing cross-examination beyond the scope of direct examination regarding his sources of income. The appeals court found no error, noting the defense opened the door to this line of questioning by minimizing the defendant's income. The court also found no error in admitting the defendant's tax returns, in the jury instructions on interstate commerce, or in the prosecution's questions regarding a witness not called in the first trial. The court ultimately affirmed the conviction, finding the trial was fair and the issues were properly submitted to the jury.

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    United States v. James Lowe, 234 F.2d 919, 3rd Cir. (1956)

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    The defendant appealed his conviction under the Hobbs Act for extortion. He argued the trial court erred in allowing cross-examination beyond the scope of direct examination regarding his sources of income. The appeals court found no error, noting the defense opened the door to this line of questioning by minimizing the defendant's income. The court also found no error in admitting the defendant's tax returns, in the jury instructions on interstate commerce, or in the prosecution's questions regarding a witness not called in the first trial. The court ultimately affirmed the conviction, finding the trial was fair and the issues were properly submitted to the jury.

    Original Description:

    Filed: 1956-06-14 Precedential Status: Precedential Citations: 234 F.2d 919 Docket: 11789

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    The defendant appealed his conviction under the Hobbs Act for extortion. He argued the trial court erred in allowing cross-examination beyond the scope of direct examination regarding his sources of income. The appeals court found no error, noting the defense opened the door to this line of questioning by minimizing the defendant's income. The court also found no error in admitting the defendant's tax returns, in the jury instructions on interstate commerce, or in the prosecution's questions regarding a witness not called in the first trial. The court ultimately affirmed the conviction, finding the trial was fair and the issues were properly submitted to the jury.

    Copyright:

    Public Domain
    Download as PDF or read online from Scribd
    Download as pdf
    51 views5 pages

    United States v. James Lowe, 234 F.2d 919, 3rd Cir. (1956)

    Uploaded by

    Scribd Government Docs
    The defendant appealed his conviction under the Hobbs Act for extortion. He argued the trial court erred in allowing cross-examination beyond the scope of direct examination regarding his sources of income. The appeals court found no error, noting the defense opened the door to this line of questioning by minimizing the defendant's income. The court also found no error in admitting the defendant's tax returns, in the jury instructions on interstate commerce, or in the prosecution's questions regarding a witness not called in the first trial. The court ultimately affirmed the conviction, finding the trial was fair and the issues were properly submitted to the jury.

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    of 5

    234 F.

    2d 919

    UNITED STATES of America


    v.
    James LOWE, Appellant.
    No. 11789.

    United States Court of Appeals Third Circuit.


    Argued May 10, 1956.
    Decided June 14, 1956.

    John W. McGeehan, Jr., Newark, N.J., Max Mehler, Newark, N.J., of


    counsel (Anthony A. Calandra, Newark, N.J., on the brief), for appellant.
    Pierre P. Garven, Asst. U.S. Atty., Newark, N.J. (Raymond Del Tufo, Jr.,
    U.S. Atty., Hamilton F. Kean, Asst. U.S. Atty., Newark, N.J., on the
    brief), for appellee.
    Before MARIS, GOODRICH and KALODNER, Circuit Judges.
    GOODRICH, Circuit Judge.

    The defendant appeals from a judgment of conviction in a prosecution brought


    under the Hobbs Act, 18 U.S.C. 1951 (1952).1 It is not claimed that there is
    not sufficient evidence to sustain the conviction. But it is claimed that there
    were errors at the trial of such nature that the accused is entitled to a new trial.
    While the appellant presents five questions in his list of alleged grounds for
    reversal, it will be convenient, in discussing the case, to combine some of them.

    The appellant devotes a great deal of argument to the fact that the United States
    Attorney was permitted to question the defendant when he took the stand
    concerning his sources of income for the years 1951 and 1952. He makes the
    argument that the court thus permitted cross-examination to go beyond the
    scope of the direct examination and, under the federal rule, this was erroneous
    and a basis for reversal. We do not stop to comment upon the desirability of the
    alleged restriction in the federal rule except to note that it has been criticized by
    writers of eminence in the field.2 Our point here is that in this case the rule was
    inapplicable.

    The question of the defendant's financial standing was not introduced into the
    case by the government but by the defendant himself. The principal witness for
    the prosecution, a man named C. Hubert Gragg, was alleged to have paid the
    money secured by extortion. It was brought out in cross-examination that
    Gragg's part in the performance of the contract for building a pipe line was one
    that was highly profitable to him. When the defense opened, defendant's
    counsel said at the very start, that Mr. Lowe 'is not a man who lives in a fifty
    thousand dollar house,' and traced Lowe's personal history from his birth on a
    farm to a worker in a steel mill, as a structural iron worker doing 'that very
    hazardous work' and then into his work representing labor unions. On direct
    examination, the defendant was asked about his house and his personal history.
    Also, it was brought out that while Lowe held positions in various union
    organizations his only salary came from a job as business agent for
    Ironworkers, Local No. 11. When he was asked by the prosecution whether he
    had any other income he was very evasive and at one point, being pressed,
    denied further income. Then the cross-examiner pressed certain specific
    instances on him and he admitted the receipt of the income items brought to his
    attention.

    There are two equally conclusive answers to an objection to the examination


    along this line. One is that the defense itself had opened up the subject. It not
    only presented Lowe in argument as a humble citizen and minimized his
    income, but also expressly brought out the fact that while he owned a two and a
    half story house he lived in only one floor and rented out the rest. The
    prosecution met this by showing income not only from his salary but
    'commissions,' dividends from stock and profits from stock transactions. When
    a party opens up a subject, even though it may not be strictly relevant to the
    case, he cannot complain on appeal if the other side gives him a Rowland for
    his Oliver. 3

    All of this was brought out on cross-examination and was within the discretion
    which the trial judge has under the federal rule.4

    The second reason why there was no error in the exploration of this subject is
    that it was cross-examination. When a defendant takes the stand in a criminal
    case he is subject to cross-examination as any other witness is. No authority
    needs to be cited for the proposition that one of the purposes of crossexamination is to test the credibility of the witness and, subject to the judge's
    control, that cross-examination may go rather far. The scope of direct
    examination poses no limitation in this respect. 5 Here the cross-examination
    was very material in testing the credibility of the defendant. See United States
    v. Pagano, 2 Cir., 1955, 224 F.2d 682, 685, certiorari denied 350 U.S. 884, 76

    S.Ct. 137.
    7

    What has been said already takes care of the appellant's objections to the
    admission into evidence of his income tax returns for the years 1951 and 1952.
    The defendant as a witness had been questioned about items in the returns,
    They had been in the hands of the prosecutor and also in the hands of the
    defendant to examine them on the stand and answer questions concerning
    certain items. The admission of the documents into evidence really gave no
    more information to the jury than it had already received from the oral
    examination of the defendant as a witness. The suggestion now made that their
    introduction suggested that the defendant had committed other crimes is
    fanciful. We quite recognize the rule that when a witness is cross-examined on
    a collateral matter introduced for impeachment purposes the answer the witness
    gives ordinarily ends introduction of testimony on that point. 6 But here the
    introduction of the returns did not contradict the witness for he had admitted in
    his oral examination all the points that the returns showed.

    The next problem raised by the appellant presents a question of law. He


    complains of the original instructions by the court and certain supplemental
    instructions given because these instructions did not leave to the jury the
    determination of whether the alleged conduct by the defendant affected
    commerce or the movement of any article in commerce. There was testimony in
    the case concerning the part which this piece of pipe line played in a gas
    distribution system which had its origin in Texas. There was testimony to the
    effect that this particular piece of line was connected to a meter which was part
    of the main line from the source of supply. The trial judge mentioned these
    statements to the jury and said 'if believed by you beyond a reasonable doubt
    (they) satisfy the necessary federal jurisdictional element of interstate
    commerce under the law under which this indictment is drawn.' In this
    instruction the judge was following Hulahan instruction the judge was
    following Hulahan v. United States, 8 Cir., 1954, 214 F.2d 441, 445, certiorari
    denied 348 U.S. 856, 75 S.Ct. 81, 99 L.Ed. 675, as closely as though he had had
    the report on the desk before him when he charged the jury. We have no doubt
    that he was right. The position taken in the Hulahan case is strengthened by the
    decision of the Second Circuit in United States v. Varlack, 1955, 225 F.2d 665,
    670.

    It appears in the testimony that the appeal is from the second trial of this case
    and that the first trial resulted in disagreement among the jury. The appellant's
    last complaint has to do with questions concerning that trial. The defendant was
    asked whether in the former trial he called as a witness a man named William
    H. Payne. When a negative answer was given he was asked why. His answer to

    that was that the question was one for his lawyer. In the summation the
    prosecutor commented on the failure to call Payne in the first trial.
    10

    This is really not a very important point. The rule is well known that as a
    general proposition when one fails to call a witness who might have something
    relevant to say about his case an unfavorable inference can be urged against the
    one who fails to call him. 7 The idea is that if one does not call a person who
    knows something about the matter it is because he is afraid that what the
    possible witness will say is something that will not help his case.

    11

    Payne had died before the second trial occurred. He was in court during the
    first trial but neither side called him. Payne was married to a niece of the
    defendant Lowe. She was his 'favorite niece' and Lowe had testified that he had
    advanced $15,000. to Payne to get him into the lumber business. It was through
    the lumber company with which Payne was connected that the alleged extortion
    money was paid.

    12

    We think it inferable that neither side called Payne at the first trial because they
    could not depend upon what he might say. In any event, we think the question
    which brought out the fact that Payne was not called and Lowe's lawyer would
    have to be asked for the reason was not an important element in this trial and
    we cannot conceive how it could possibly be a ground for reversal.

    13

    The trial was a fair one. Counsel on each side knew his business. The case was
    submitted to the jury under instructions so explicit that its members could not
    fail to understand them. The issues which the jury faced were issues of fact
    where a decision had to be made between the categorical assertions on one side
    and equally categorical denials on the other. Fact conclusions were resolved in
    favor of the prosecution.

    14

    The judgment will be affirmed.

    '(a) Whoever in any way or degree obstructs, delays, or affects commerce or


    the movement of any article or commodity in commerce, by robbery or
    extortion or attempts or conspires so to do, or commits or threatens physical
    violence to any person or property in furtherance of a plan or purpose to do
    anything in violation of this section shall be fined not more than $10,000 or
    imprisoned not more than twenty years, or both
    '(b) As used in this section--

    '(2) The term 'extortion' means the obtaining of property from another, with his
    consent, induced by wrongful use of actual or threatened force, violence, or
    fear, or under color of official right.
    '(3) The term 'commerce' means commerce within the District of Columbia, or
    any Territory or Possession of the United States; all commerce between any
    point in a State, Territory, Possession, or the District of Columbia and any point
    outside thereof; all commerce between points within the same State through
    any place outside such State; and all other commerce over which the United
    States has jurisdiction.'
    2

    6 Wigmore, Evidence 1888, p. 543 (3d ed. 1940); 1 Morgan, Basic Problems
    of Evidence 60 (1954); McCormick, Evidence 27 (1954)

    1 Wigmore, Evidence 15 (3d ed. 1940); Bradley v. Adams Express Co., 6


    Cir., 1937, 89 F.2d 641, certiorari denied 302 U.S. 698, 58 S.Ct. 17, 82 L.Ed.
    539; Stentor Electric Mfg. Co. v. Klaxon Co., 3 Cir., 1940, 115 F.2d 268, 274,
    reversed on other grounds, 1941, 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477;
    United States v. Regents of New Mexico School of Mines, 10 Cir., 1950, 185
    F.2d 389

    6 Wigmore, Evidence 1890 (3d ed. 1940); McCormick, Evidence 24 (1954)

    6 Wigmore, Evidence 1891 (3d ed. 1940); 1 Morgan, Basic Problems of


    Evidence 62 (1954); McCormick, Evidence 22 (1954)

    United States v. Klass, 3 Cir., 1948, 166 F.2d 373, 376

    United States v. Walker Co., 3 Cir., 1945, 152 F.2d 612

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