United States of America, Plaintiff-appellee, v. Joe Delores Gomez, Defendant-appellant, 603 F.2d 147 (10th Cir. 1979)

On the whole we in this country have set for ourselves an enviable model of caution and fairness in litigating accusations of criminal conduct. For the most part this case, involving charges that a convicted felon was in unlawful possession of two guns and had made false applications in connection with their acquisition,¹  was an outstanding example of that caution and fairness. The government's evidence was more than enough to meet its burden. The defendant testified in his own behalf, but his testimony centered on his lack of any recollection of the events in question as a result of excessive drinking.²  On appeal, defendant raises five particulars in which he claims his trial did not conform to the model. Each of these particulars relates to a matter which is left almost entirely to the discretion of the trial judge, whose first-hand observation of the testimonial setting and whose judgment, even in the press of trial, usually is superior to that of an appellate tribunal after the fact.

As to one of the guns, the evidence about possession, purchase, and the preparation of a false application form was direct and convincing. As to the other, the government learned shortly before trial that its eyewitness gun seller would be unavailable. A handwriting expert was therefore called to testify concerning the relevant application form. The government did not make a timely disclosure of its intent to use the expert, and, pursuant to a defense request, the court struck the witness' testimony and instructed the jury in an attempt to minimize the effect of the testimony.³  While it appears to us that the prosecutor's representation to the court about his failure timely to disclose his intended use of this witness was dangerously close to lacking in the candor required of counsel, the trial court expressly found no "devious purpose" on the government's part.⁴  Record, vol. 2, at 115. If the discrepancy between the expert witness' and the prosecutor's versions of the underlying facts were any greater, we would not hesitate to reverse notwithstanding defendant's failure to request a mistrial at the time of the incident.⁵  However, we do not believe that the trial court's decision against declaring a mistrial Sua sponte constituted reversible error. His handling of this aspect of the case was within the bounds of caution and fairness.

Another way in which defendant claims his trial deviated from the perfect model concerns the refusal of the trial court to grant a delay to permit defendant an opportunity to utilize the services of retained counsel. The timing of the request and the able and vigorous representation by appointed counsel lead to the conclusion that the trial court's denial of the motion for a continuance was within the bounds of his discretion.

The third particular in which it is claimed the trial did not conform to the perfect model relates to the trial court's permitting the prosecutor, deprived of his handwriting expert, to use the defendant's probation officer to identify the defendant's signature on the application form. In general, we do not approve of the use of other lay persons to tell jurors what they can judge for themselves, as the jurors in this case could have done by comparing the contested signature with the known signatures of defendant that had been received into evidence. However, we do not in every circumstance disapprove of laymen identifying the signature of persons whose handwriting they are familiar with. See, e. g., United States v. Kilgore, 518 F.2d 496, 498 (5th Cir. 1975); Ryan v. United States, 384 F.2d 379 (1st Cir. 1967); Schaefer v. United States, 265 F.2d 750, 754 (8th Cir.), Cert. denied, 361 U.S. 844, 80 S. Ct. 97, 4 L. Ed. 2d 82 (1959).⁶  We do not think the trial court's ruling in this matter exceeded the bounds of good judgment, although his judgment certainly was lenient on behalf of the prosecutor whose delinquence, after all, had made this testimony necessary.

The fourth matter complained of concerns the propriety of certain rebuttal testimony. The defendant testified that due to the effects of alcohol he had no memory of the gun purchases. On rebuttal, the trial court permitted one of the gun sellers to testify concerning a third transaction in which the defendant filled out an application with a false denial of prior felony convictions. This transaction occurred about an hour after one of the transactions charged in the indictment. The gun seller's narrative strongly suggested a different version of the defendant's state of mind. The difficulty with this testimony was that it placed before the jury evidence of an uncharged crime. The continuing and difficult task of trial courts in instances where evidence is proffered of crimes other than those at issue is to exercise true judgment in balancing the probative value of the evidence against the high likelihood of its prejudicial impact on jurors. We will continue to supervise trial courts to insure that they exercise true judgment and not prosecutorial bias in these matters. We are satisfied that, in the circumstances of this case, the court exercised sound judgment in permitting this testimony. He also properly instructed the jury concerning its limited significance.⁷ 

The final particular complained of does not in any respect depart from the model. The defendant claims he had been previously prosecuted in state court for negligent use of one of these firearms.⁸  Whatever may be said of the legislative judgment to dissect various activities into multiple crimes, the authority to do so is not challenged in this case. Insofar as defendant is contending that deviation from the Justice Department's "Petite Policy" requires reversal, the law in this Circuit simply forecloses that argument. United States v. Thompson, 579 F.2d 1184 (10th Cir.) (en banc), Cert. denied, 439 U.S. 896, 99 S. Ct. 257, 58 L. Ed. 2d 243 (1978); United States v. Fritz, 580 F.2d 370 (10th Cir.) (en banc), Cert. denied, 439 U.S. 947, 99 S. Ct. 340, 58 L. Ed. 2d 338 (1978).

We affirm.