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UNITED STATES v. TINNEY

April 13, 1972

UNITED STATES of America
v.
Dennis Eugene TINNEY


Higginbotham, District Judge.


The opinion of the court was delivered by: HIGGINBOTHAM

HIGGINBOTHAM, District Judge.

 I.

 After two highly contested trials on a bank robbery indictment the defendant now seeks a motion for judgment of acquittal as to the one count on which he was found guilty. Defendant has not filed a motion for a new trial.

 For the reasons hereinafter noted, I find that defendant has failed to meet the burden required for a judgment of acquittal. *fn1"

 On November 7, 1969, Dennis Eugene Tinney (hereinafter referred to as the defendant, or Tinney) and five codefendants were indicted for conspiracy, and bank robbery pursuant to Title 18, United States Code ยง 2113(a), (b), and (d). Initially, all defendants entered pleas of "Not Guilty." Subsequently, on December 16, 1969, Lucky Allen Johnson (hereinafter referred to as "Johnson"), a codefendant under the same indictment, changed his plea to guilty. The first trial was held before the Honorable Harold K. Wood from January 21 to January 27, 1970. At that trial Johnson testified extensively against defendants Sellers and Tinney. *fn2"

 On the last day of the first trial and prior to Judge Wood's instructions to the jury, defendant Tinney was late for trial. Thus, Judge Wood appropriately granted a withdrawal of the jury as to defendant Tinney, but submitted Sellers' case to the jury. Thereafter, the jury failed to agree on a verdict as to defendant Sellers, and Judge Wood accordingly declared a mistrial. (See N.T., Pages 541, 548 and 549.) By reason of the other trial commitments of Judge Wood, I agreed to take this series of cases (as to defendants Tinney and Sellers) for a retrial pursuant to Judge Wood's approval. During the course of the second trial, defendant Sellers changed his plea to guilty to the conspiracy count contained in the indictment (Count I). (See N.T., pages 101 through 120.) Thereafter, Sellers was subsequently called as a witness for the government and testified against Tinney. On February 3, 1971, the jury returned a unanimous verdict of "Guilty" against Tinney on Count I (conspiracy) of the indictment. Tinney was found "not guilty" on the remaining substantive counts of the indictment.

 At both the first and second trials defendant Tinney was represented by Milton Leidner, Esquire, who argued defendant's case with unlimited zeal and effectiveness. At the conclusion of the second trial, Mr. Leidner requested permission to withdraw from the case because of defendant's inability to pay for his professional services. (N.T., pages 551-553.) This request was granted. A few days after the trial, Mr. Leidner had a heart attack and several extensions were granted for the filing of the normal post trial motions. (See Docket Entries Nos. 59, 61 and 62.) The motion ultimately filed was limited to a motion for judgment of acquittal, and counsel did not file a motion for a new trial. (See Doc. No. 69, filed May 10, 1971.) In addition, to the aforementioned delays, there were unavoidable delays in the transcription of the notes of testimony; still further delay was caused by the extensive court commitments of defendant's present counsel. Thus, the matter was not argued before me until December 3, 1971. It should be noted, however, that defendant has not been in custody during this period because he posted surety bail.

 At the outset I must emphasize again that defendant has filed a motion for judgment of acquittal. The standard for evaluating such a motion is not helpful to the defendant. In viewing such a motion I must review the evidence "in a light most favorable to the government." *fn3" This standard is quite different from that which is applied in determining a motion for a new trial. In the latter motion a trial judge has broader discretionary power. I do not know why counsel filed only a motion for judgment of acquittal. Maybe he reasoned that Tinney, having had two prior trials, would stand no better chance of acquittal by a third jury. I do not suggest that I would have been inclined to grant such a motion for a new trial if timely filed, however, the critical point is that I now have no jurisdiction to grant a motion for a new trial.

 As noted by the Advisory Committee on Criminal Rules of the Judicial Conference of the United States in their comments on Rule 33 of the Rules of Criminal Procedure:

 
"The amendments . . . make it clear that a judge has no power to order a new trial on his own motion, that he can act only in response to a motion timely made by a defendant."

 Thus, just six weeks ago in United States v. Newman, 456 F.2d 668, filed February 24, 1972, the Court of Appeals of this Circuit held that it would grant a writ of mandamus against a United States District Judge who had granted a new trial for reasons which had not been listed in defendant's motion for a new trial. The Court stated, inter alia:

 
"Since it is, therefore, clear that the defendant in this case could not have amended his motion for a new trial to include a new ground after the seven-day period prescribed in Rule 33 had expired, it would be entirely inconsistent with the purpose of the 1966 amendments to Rule 33 to allow the district court to grant a new trial motion four and one-half months after this seven-day period has elapsed for reasons advanced sua sponte by the court."

 A fortiori, this Court cannot grant a motion for a new trial, where, as here, not even a motion for a new trial has been filed and over fourteen months have elapsed since the jury's verdict.

 As a basis for his motion for judgment of acquittal, defendant asserts the following grounds: First, he contends that the admission of the testimony of Lucky Allen Johnson resulted in his conviction. Secondly, he argues, that the Court "coerced" the jury into reaching a compromise verdict. I will review and discuss these principal contentions of the defendant seriatim.

 II.

 THE TESTIMONY OF JOHNSON

 Lucky Allen Johnson, as previously noted, had pleaded guilty on December 19, 1969, and had testified extensively in the first trial held in January 1970. Unfortunately, the high drama of this trial can never be fully reflected by the written record. It appears that Johnson was apparently kept in the cell room of the Marshal's Office for a few days during the course of Tinney's second trial. When cross-examining identification witnesses, Tinney's defense counsel would request that Johnson be brought into the courtroom. *fn4" In the presence of the jury, Johnson was walked in by U.S. Marshals and circled the trial area. Of course, the jury, both counsel, and witnesses riveted their attention on him. No questions were asked of him, and the courtroom was quiet during Johnson's sojourn; Johnson made no comments during these "exhibitions" for purposes of identification. Understandably Johnson could have felt that he was like an object in the zoo being paraded for observation with no reasons given for the parade. When he was finally called to testify, it was not surprising that in his own mind he might have felt that he had been subjected to harassment; for Johnson had testified in a prior trial where he had been subjected to dramatic, extensive, and unsympathetic cross-examination. Moreover, he had already pleaded guilty to the crime, and had been sentenced. When Johnson finally arrived at the witness stand in this case on January 26, 1971, it was at least the third time in three court days *fn5" that Johnson had appeared in Court. I must quote, perhaps too extensively, the record as to what transpired when Mr. Johnson was brought into the Court on the two prior occasions before his testimony of January 26, 1971.

 On January 21, 1971, during the cross-examination by defense counsel of a government witness, the following events occurred:

 
"MR. LEIDNER: May we approach the bench? I don't want to propound the next question.
 
"THE COURT: Very well.
 
"(And at side bar:)
 
"Mr. LEIDNER: I am going to ask the Government to produce Johnson so she can look at him.
 
"THE COURT: Is Mr. Johnson in the building?
 
"MR. SCHWARTZ: Yes, sir, he is in the Marshal's office.
 
"THE COURT: O.K. Have him brought down.
 
"(Concluded at side bar.)
 
"BY MR. LEIDNER:
 
"Q. Mrs. Dimmick, someone is going to be produced in the courtroom, and I want you to look at him closely, and no questions will be asked you in his presence, and I don't want you to make any statement in his presence.
 
Now, before this man gets down here when you saw the two men in your rear-view mirror I think you testified you got out of your car again because you were inquisitive or curious as to who they were and where they went; is that correct?
 
"A. That is correct."
 
(N.T., pp. 141-142.)
 
* * *
 
"(A man enters the courtroom.)
 
"MR. LEIDNER: Your Honor, may I have the gentleman who was just brought in the courtroom brought up here for just about ten seconds?
 
"THE COURT: Very well. Do you want to bring him up, Marshal?
 
(Man approaches the witness.)
 
"THE COURT: All right. Thank you, gentlemen. You can take him back."
 
(N.T., pp. 143-144.)

 Again, on the same day, defense counsel during cross-examination of defendant Sellers, made the following statements and requests:

 
"Q Who was the other man that was with you in there that had the yellow shirt on?
 
"A Allen Johnson.
 
"Q Is that the man that was brought in to court this morning?
 
"A I didn't see his face too good, but it ...

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