United States of America, Plaintiff-appellee, v. John Calvin Smith, Defendant-appellant.united States of America, Plaintiff-appellee, v. Carl Edward Smith, Defendant-appellant, 328 F.2d 848 (6th Cir. 1964)

The appellants, John Calvin Smith and Carl Edward Smith, were arrested in June or July of 1962. They were charged with the possession of counterfeit notes in the Eastern District of Tennessee, and with conspiracy in the Middle District. Some time during the summer of 1962 the appellants retained counsel. The record is not clear as to whether the appellants were arraigned on a complaint and warrant or as to what happened to them between the time of their arrest and December 3, 1962, when they were arraigned on an indictment in the Eastern District of Tennessee. The first count of the indictment charged the appellants and one Andy Sprinkle with falsely making and counterfeiting Federal Reserve Notes. The second charged the appellants with possession of counterfeit notes on March 28, 1962. The third charged John Calvin Smith alone with possession of counterfeit notes on June 2, 1963. The indictment was returned on November 20, 1962; a copy of the indictment was not furnished counsel for the appellants, however, until December 3, 1962. The District Judge then set the matter for trial on December 17, 1962, over the appellants' objection that the matter was complicated and required considerable investigation and that the appellants' counsel was not given sufficient time in which to prepare his case.

Since the appellants employed counsel during the summer of 1962, some four or five months were permitted for investigation, and although the language of the indictment might have altered the form of the investigation, we doubt if it was in fact altered to such a degree that the defense was materially affected. It may be noted that counsel has never pointed out specifically how the defense was affected. The case of McBee v. Bomar, 6 Cir., 296 F.2d 235, may be distinguished on its facts. Nothing contained in the appellants' argument substantiates the charge that the District Judge abused his discretion.

The appellants also challenge the propriety of the Government's tender of a witness in the presence of the jury, for examination by the court or cross-examination by the appellants. The name of the witness had been referred to frequently during the trial. The appellants claim that this was a most unusual procedure and was prejudicial. No statement was made by the Government to suggest that the witness would corroborate the other witnesses that had been called. Perhaps counsel for the appellants was placed in a dilemma; however, the procedure was proper. It is discussed in Litsinger v. United States, 7 Cir., 44 F.2d 45, 47:

"The rule which permits the trial court to call and examine a witness at the request of the government's attorney is quite a reasonable one and is well recognized. If judiciously exercised it is productive of no harm; and many times, by extending to attorneys the right to cross-examine and to impeach on material matters, it prevents a failure of justice."

See also United States v. Marzano, 2 Cir., 149 F.2d 923.

In a later case, United States v. Lutwak, 7 Cir., 195 F.2d 748, aff'd, 344 U.S. 604, 73 S. Ct. 481, 97 L. Ed. 593, the procedure was again approved. The court commented on it as follows:

"Indeed, it is generally recognized that where there is a witness to a crime for whose veracity and integrity the prosecuting attorney is not willing to vouch, he is not compelled to call the witness, but that the court, in its discretion, may do so and allow cross-examination by both sides within proper bounds." (Emphasis supplied.)

Id. 195 F.2d at 754, 755.

Far from being error, it may well be the duty of the Government's attorney to make available one who might be a material witness, yet one for whom he does not desire to vouch. Whatever prejudice there may have been was occasioned by the appellants' counsel himself through references to the witness as a convict and a swindler. The District Judge properly instructed the jury to disregard counsel's references to the witness, which were not supported by the evidence.

Error is claimed with respect to a ruling in which the Government was permitted to use portions of a statement made by Andy Sprinkle, who appeared as a Government witness, on redirect examination after counsel for appellants had used other portions for impeachment. Since the Government went no further and the matter was dropped, it is clear there could not have been any prejudice. The District Judge instructed the jury that any portion of the statement to which reference was made could be considered only for whatever bearing it might have on the credibility of the witness. The Judge was entirely correct in his ruling and his instructions to the jury. There is a well-worn phrase "opening the door" which suggests the reason for his ruling. See United States v. Corrigan, 2 Cir., 168 F.2d 641, 645. Generally, when the testimony of a witness has been impeached by evidence of his prior inconsistent statements, his testimony may not be confirmed by proof of his prior consistent statements. Nevertheless, if some portions of a statement made by a witness are used on cross-examination to impeach him, other portions that are relevant to the subject matter about which he was cross-examined may be used to meet the force of the impeachment. Affronti v. United States, 8 Cir., 145 F.2d 3.

We have examined carefully the remaining questions raised by the appellants. We are fully satisfied there was no error. In this appeal, which is an appeal of the shotgun type, ten questions are raised, but case law is cited to support the appellants' position on only three. Although many of the matters raised go to the court's discretion, we should have liked some assistance, even though the assistance were only cases cited by way of analogy.

The judgment of the District Court is affirmed.